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the place of manufacture, stealing sheep or cattle, plundering vessels, stealing deer, hares and fish, and robbing the mail of letters. The Romans punished most severely the stealers of cattle, as did the Goths for theft of cattle, and of corn left in the field ; such property being difficult to guard, and esteemed under the peculiar custody of heaven.
Mixed or Compound Larceny. This has all the properties of the former, but is accompanied with either one or both of the aggravations of a taking from one's house or person.
1. Larceny from the House. This is not distinguished from simple larceny at common law, unless accompanied by breaking into the house at night, when it is termed burglary. But by statute, the benefit of clergy is taken from larcenies committed in a house, in almost every instance.
2. Larceny from the Person. This is either by privately stealing, or by open and violent assault, which is usually termed robbery.
Pickpockets. The offence of picking a man's pocket or the like, privily, without his knowledge, of property worth over twelve pence, was punished without benefit of clergy by statute of Elizabeth. The severity of this law was owing to the ease with which such offences were committed, the difficulty of guarding against them, and the boldness with which they were practiced. These cut-purses were more severely punished than common thieves by both the Roman and Athenian laws.
Robbery. The rapina of the civilians is the felonious and forcible taking from the person of another of goods or money of any value, by violence or putting him in fear. To constitute robbery :
(1.) There must be a Taking. If a thief, having once taken a purse by violence, return it, still the act is a robbery; and the crime is also committed, where a robber, by menaces and violence, puts a man in fear, and drives away his cattle before his face. But if the taking be not either directly from his person, or in his presence, it is no robbery.
Attempt to Rob. By statute of George II, it is a felony maliciously to assault another with any weapon or offensive instrument, or by menaces or violence to demand any money or goods, with a felonious attempt to rob.
(2.) Value of the Thing Taken. The value is immaterial. The forcible extortion makes the act a robbery.
(3.) The Taking must be by Force. Or there must be a previous putting in fear, which makes the violation of the person more atrocious than privately stealing. This previous violence or putting in fear distinguishes robbery from other larcennies. Putting in fear is not requisite, if there have been violence; as when a man is knocked senseless by a footpad without previous warning, and then robbed. II. MALICIOUS MISCHIEF.
Defined. This offence is not done, animo furandi, or with an intent of gaining by another's loss, but either out of a spirit of wanton cruelty or of revenge ; in which, it bears a resemblance to the crime of arson. By statute, this offence is made highly penal. III. FORGERY.
Punishment. By the civil law this crimen falsi, as it was termed, was punished with death or banishment. It is the fraudulent making or alteration of a writing to the prejudice of another man's right. It was punished in England by fine and imprisonment, and at one time by the pillory. By a variety of statutes, severe punishment may be inflicted on the offender. Under Elizabeth, to forge, or knowingly to give in evidence a forged deed or will, with intent to affect the right of real property, was punished by forfeiture to the party aggrieved of double costs and damages; by standing in the pillory, and having both ears cut off, and the nostrils slit and seared; by forfeiture to the crown of the profits of the lands of the offender, and by perpetual imprisonment.
Later English Statutes. By statute, since the revolution, when paper credit was first established, capital punishment was inflicted for forging, altering or uttering as true, when forged, bank bills or notes, or other securities. By statute of George III, the forging or counterfeiting any stamp, or mark to denote the standard of gold and silver plate, was punished by transportation. There is now hardly a case possible, wherein forgery that tends to defraud, is not made a capital crime.
CHAPTER XVIII.-MEANS OF PREVENTING OFFENCES.
Preventive Justice. Preventive justice, upon every principle of reason, of humanity, and of sound policy, is preferable to punitive justice, the execution of which is always attended with harsh circumstances. Preventive justice consists, in obliging those persons, whom there is a probable ground to suspect of future misbehavior, to stipulate with, aud to give full assurance to the public that such offence shall not happen, by finding pledges or securities for keeping the peace, or for their good behavior.
Object of Punishment. Human punishments, in a comprehensive view, are rather calculated to prevent future crime, than to expiate past ones. They tend to the amendment of the offender, or to deprive him of the power to do future mischief, or to deter others by his example. The prevention of future crimes is thus sought to be effected by amendment, disability, or example.
Saxon Frankpledges. By the Saxon constitution, these securities were always on hand by means of king Alfred's wise institution of decennaries or frankpledges, wherein the tithing of freemen of an entire neighborhood were mutually pledged for each other's good behavior. This great and general security having fallen into disuse, the laws of Edward the Confessor made suspected persons find special security in the following manner:
1. What the Security is. It consists in being bound, with one or more securities, in a recognizance or obligation to the king, entered on record, or by some judicial officer; whereby the parties acknowledge themselves indebted to the crown in a stipulated sum, with condition to be void, if the party shall appear in court on a day therein mentioned ; and meanwhile shall keep the peace, either generally towards the king, or particularly also with regard to the person who craves security. If it be for good behavior, then on condition, that he shall behave himself well, either generally or specially, for the time therein limited, or for life. This recognizance, if taken by a justice of the peace, must be certified to the next sessions, and if the conditions be broken, the recognizance becomes forfeited, or absolute, and the parties to it may be sued for the sums for which they are respectively bound.
2. Who May Take or Demand Security. Any justice of the peace may do so, by virtue of his commission, or those who are, ex officio, conservators of the peace. Or it
Or it may be granted at the request of any subject, upon due cause shown, if the demandant be under the king's protection. If the justice be averse to act, it may be granted by a mandatory writ, called a supplicavit, issued out of the king's court, or chancery; which will compel the justice to act as a ministerial, and not as a judicial officer; and he must make a return to such writ, specifying his compliance. But this writ is seldom used; for on application to the superior courts, they usually take the recognizance. Wives may demand such recognizance against their husbands, and husbands against their wives. But femmes covert and minors ought to find security by their friends only, for they are incapable of being themselves bound.
3. How it May be Discharged. By the demise of the king, to whom the recognizance is made; or by the death of the principal party bound, if it be not before forfeited; or by the order of the court to which such recognizance has been certified by the justices; or if granted on a private account, by the release of the party at whose request it was granted; or by his default of appearance to ask a continuance.
Difference in the Securities. These two species of securities, for the peace, and for good behavior, differ somewhat as to the cause of granting, or the means of forfeiting, as we shall explain.
Sureties for the Peace. Any justice of the peace may, ex officio, bind all those to keep the peace, who in his presence make any affray, or threaten to kill or beat another, or contend together with angry words, or carry unusual weapons, to the terror of the people; also all common barretors; all such as are brought before him by a constable, for a breach of the peace in his presence; and such persons, as have forfeited their recognizances to keep the peace.
Swearing the Peace. Also, whenever a private person has just cause to fear that another will do him, or his property, an injury, or will procure others to do so, he may demand surety of the peace against such person, on making oath, that he is actually under fear of death or bodily harm, and will show just cause for such apprehension, by reason of the menaces or attempts of the other; swearing that he does not require such surety out of malice, or for mere vexation. This is termed swearing the peace against another.
Recognizance Forfeited. Such recognizance for keeping the peace may be forfeited by any actual violence, or even by a menace to the person of him who demanded it, if it be a special recognizance; or if the recognizance be general, by any unlawful action whatsoever, that tends to a breach of the peace, or by any private violence committed against any of his majesty's subjects. But a bare trespass upon the lands or goods of another, which is a ground for a civil action, unless accompanied with a wilful breach of the peace, is no forfeiture of the recognizance. Neither are mere reproachful words, as calling a man a knave or a liar, a sufficient breach of the peace to forfeit a recognizance, unless they amount to a challenge to fight.
Sureties for Good Behavior. The justices have power to bind over to secure their good behavior all those who are not of good fame, wherever they be found, to the intent, that the people.be not troubled or damaged, nor the peace diminished. A man may be bound to his good behavior for causes of scandal, contra bonos mores, as well as contra pacem; as for frequenting bawdy houses, with women of ill fame, or for keeping such women in his own house; or for words tending to scandalize the government, or in abuse of the officers of justice, especially in the execution of their duties.
Commitments. A justice may bind over all night walkers, eavesdroppers, such as keep suspicious company, or are reported to be thieves, such as sleep in the day, and wake in the night, common drunkards, whoremasters, the putative fathers of bastards, cheats and tramps. But if he commits a man for want of sureties, he must express the cause thereof with convenient certainty, and take care that such cause may be a good one.
Recognizance Forfeited. This may be done by the same means as one for the security of the peace, and also by some others; as by going armed with unusual attendance, to the terror of the people, or by seditious language, or other misbehavior, which the recognizance was intended to prevent. But not by barely giving fresh cause of suspicion of that which perhaps may never happen: for though it is just to compel suspected persons to give security, yet it would be hard, upon such suspicion, without proof of actual crime, to forfeit their recognizance.