The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER II.

Of Crimes Against the Right of Individuals to Their Property.

Every crime includes an injury: every injury includes a violation of a right. The investigations, which we have hitherto made concerning rights, will direct our course in that which we are now to make concerning wrongs.

I assumed, though, for the reasons assigned, I have not yet proved, that a man has a right to his property. I begin my enumeration of crimes with those which infringe this right.

I have observed that every injurious violation of our rights, natural and civil, absolute and relative, may lay the foundation of a crime.a I did not mean, however, to insinuate, by this observation, that every injury ought to be considered by the law in a criminal point of view. For every injury let reparation be made by the civil code, in proportion to the loss sustained; but let those injuries alone, which become formidable to society by their intrinsick atrocity, or by their dangerous example, be resented by society and prosecuted as crimes. Agreeably to this principle, a private injury done without actual violence, cannot be prosecuted by an indictment.b It is not considered as affecting the community.

This principle, however, seems to have gained its full establishment only by the liberality of modern times. It is remarkable, that a law made on this liberal principle, in an early period of Pennsylvania, was repealed by the king in council.c But this is not the only instance, in which the improving spirit of our legislation has been at first checked, but has received subsequent countenance by late decisions in England.

With the enjoyment and security of property, the security and the authenticity of its evidences is intimately connected. For this reason, dangerous and deliberate attacks upon that security or authenticity are crimes by the common law.

Forgery, at the common law, may be described “the fraudulent making or alteration of a writing, to the prejudice of another man’s right.” For this crime, the punishment of fine, imprisonment, and pillory may, by the common law, be inflicted on the criminal.d

Among the Egyptians, publick notaries, who forged false deeds, or who suppressed or added any thing to the writings, which they had received to copy, were condemned to lose both their hands. They were punished in that part, which had been particularly instrumental in the crime.e In Lorrain, so long ago as the fourteenth century, forgery was punished with banishment.f

The first act of parliament, which appears against it, was made in the reign of Henry the fifth. This act punishes it by satisfaction to the party injured, and by a fine to the king.g But this first statute has been the fruitful mother of a thousand more. True it is, that the increase of commerce, the invention of negotiable and even current paper, the institution of national funds, and the many complex securities and evidences of real property have justly rendered the crime of forgery, beside its intrinsick baseness—for it is a species of the crimen falsi1 —a consideration of great importance and extent. But is it equally true, that all this is a sufficient reason, why, in almost all cases possible to be conceived, every forgery, which tends to defraud, either in the name of a real or of a fictitious person, should be made, as in England it is now made, a capital crime?h “Pluet super populum laqueos.”2 There is a learned civilian, says my Lord Bacon, who expounds this curse of the prophet, of a multitude of penal laws; which are worse than showers of hail or tempest upon cattle; for they fall upon men.i

By a law of Pennsylvania, whoever shall forge, deface, corrupt, or embezzle deeds and other instruments of writing, shall forfeit double the value of the damage sustained, one half of which shall go to the party injured; and shall in the pillory, or otherwise, be disgraced as a false person.j

By a law of the United States it is enacted, that if any person shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any certificate, indent, or other publick security of the United States; or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment or for sale, any such false, forged, altered, or counterfeited certificate, indent, or other publick security, with intent to defraud any person, knowing the same to be false, altered, forged, or counterfeited, and shall be thereof convicted; every such person shall suffer death.k

To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare or fabricare. And this is properly taken when the act is done in the name of another person.l “Falsely to make,” says he, are larger words than “to forge;” for one may make a false writing within this act (he speaks of the 5th. Eliz. c. 14. in which, as to the present point, the words used are substantially the same with the words of the law now under consideration) though it be not forged in the name of another, nor his seal nor hand counterfeited. As if a man make a true deed of feoffment under his hand and seal of the manor of Dale unto B.; and B. or some other rase out D and put in S, and then when the true deed was of the manor of Dale, now it is falsely altered and made the manor of Sale; this is a false writing within the purview of the statute.m

Another crime against the right of property is larceny. Larceny is described—the felonious and fraudulent taking and carrying away of the personal goods of another.n The Mirrour describes the crime as committed, “treacherousement.”o More indictments are to be found for larceny, among the records of England, than for all the other crimes known to the law. It is computed that nineteen criminals out of twenty are prosecuted for this crime.p

According as the opinions and sentiments of men concerning property have been more or less correct, their notions concerning larceny have been more or less pure. Indeed, in the nature of things, this must be the case. Theft, or the secret acquisition of property, was, at Sparta, thought neither a crime nor a shame. Why? Because at Sparta, Lycurgus had established a community of goods; and when one got hold of a larger share than his neighbours, especially among the young people, it was considered merely as an instance of juvenile address, and as indicating a superiour degree of future dexterity. The senatorial order at Rome, we are told, enjoyed the distinguished privilege of being exempted from every prosecution for larceny.q What is still more remarkable, a similar claim of privilege was, in the time of Charles the second, insisted on by the house of lords in England, when a bill was sent to them from the commons, to punish—wood stealers!r This anecdote we have on the authority of my Lord Clarendon, a peer, the chancellor, and the speaker of the house of lords.

Much has been said, in the English law books, concerning the distinction between grand and petit larceny. The distinction, however ancient, was never founded upon any rational principle; and the farther it flowed from its original source, the more unreasonable and cruel it became. Well might Sir Henry Spelman complain, that, while every thing else became daily dearer, the life of a man became more and more cheap.s But, what is more, this distinction, irrational and really oppressive, appears never to have been established with any degree of accuracy. The Author of Fleta says, if a person steals the value of twelve pence and more, he shall be punished capitally. Britton, in one place, says, if it is twelve pence or more. At this time, therefore—that is, in the reign of Edward the first—it was unsettled whether twelve pence was sufficient, or more than twelve pence was necessary, to superinduce the capital punishment.t A similar diversity and uncertainty of opinion appears in the reign of Edward the third.u

In the description of larceny, the taking is an essential part. For every felony includes a trespass; and if the person is guilty of no trespass in taking the goods, he can be guilty of no felony in carrying them away.v This is precisely the law language, conveying the doctrine, which I have illustrated generally and fully—that, without an injury, there can be no crime. A real trespass must be committed; but a real trespass will not be covered or excused by any artful stratagem to prevent the appearance of it. If one, who intends to steal the goods of another, obtains, with that intention, the process of the law to get them into his possession, in a manner apparently legal; this contrivance—an abuse of the law—will not excuse him from a charge of a felonious taking.w

To a larceny it is as necessary that the goods be carried away, as that they be taken. But the least removal of the goods is sufficient to satisfy this part of the description. To remove them from one place to another, even in the same room, is, in legal understanding, to carry them away. One, who intended to steal plate, took it out of a trunk, and laid it upon the floor, but was surprised before he could do more; he was adjudged guilty of larceny.x

The taking and carrying away, says Sir William Blackstone, and very truly, must also be felonious, that is, done animo furandi.3 This, by the way, is a clear and decided instance, that, in the meaning of the common law, felony is referred to the intention, and not to the event. As we saw in the former part of the description, that the crime could not exist without the injury; we see now, that the injury will not constitute the crime without the criminal intention. For, as the Author of the Commentaries next observes, this requisite indemnifies mere trespassers, and other petty offenders.y

The last part of the description of larceny at the common law is, that the goods must be personal. Land, or any thing that is adhering to the soil or to the freehold, cannot in one transaction be made the subject of larceny. But if any thing of this kind is, at one time, separated from the freehold, so as to become a chattel; and is, at another time, taken and carried away; larceny is now committed.z

In different nations, and in the same nation at different times, larceny or theft has received very different punishments. It would be tedious minutely to recite them. On no subject has there been more fluctuation in the criminal laws both of Greece and Rome. Seldom, however, was larceny punished capitally at Athens; never among the Romans. In the early part of the Anglo-Saxon period in England, theft of the worst kind did not expose the thief to any corporal punishment. But the compensation which he was obliged by law to make, rendered larceny a very unprofitable business when it was detected. Ina, the king of Wessex, declared stealing to be a capital crime; but allowed the offender or his friends to redeem his life, by paying the price at which it was valued by the law.a

The distinction between punishing theft as a crime, and exacting compensation for it as an injury, is strongly marked in a law of Howel Dha, the celebrated legislator of Wales: “If a thief is condemned to death, he shall not suffer in his goods; for it is unreasonable both to exact compensation, and to inflict punishment.”

In the ninth year of Henry the first, larceny above the value of twelve pence was, in England, made a capital crime, and continues so to this day; and, in a vast number of instances, it is, by modern statutes, deprived of the benefit of clergy. These statutes, says Mr. Eden, are so complicated in their limitations, and so intricate in their distinctions, that it would be painful, on many accounts, to attempt the detail of them. It is a melancholy truth, but it may, without exaggeration, be asserted, that, exclusive of those who are obliged by their profession to be conversant in the niceties of the law, there are not ten subjects in England, who have any clear conception of the several sanguinary restrictions, to which, on this point, they are made liable.b

By a law of the United States, larceny is punished with a fine not exceeding the fourfold value of the property stolen, and with publick whipping not exceeding thirty nine stripes.c In Pennsylvania, a person convicted of larceny to the value of twenty shillings and upwards, shall restore the goods or pay their value to the owner, shall also forfeit to the commonwealth the value of the goods, shall undergo a servitude for any term not exceeding three years, and shall be confined and kept to hard labour: a person convicted of larceny under twenty shillings, shall restore the goods or pay their value to the owner, shall forfeit the same value to the commonwealth, shall undergo a servitude not exceeding one year, and shall be confined and kept to hard labour.d

Forgery and larceny seem to be the only crimes against the right of private property known to the common law.

Robbery is generally classed among the crimes against the right of private property; but somewhat improperly, in my opinion. Robbery receives its deep dye from outrage committed on the person; but as property also enters into the description of this crime, I shall consider it here.

Robbery, at the common law, is a violent and felonious taking from the person of another, of money or goods to any value, putting him in fear.e From this description it appears, that, to constitute a robbery, the three following ingredients are indispensable: 1. a felonious intention, or animus furandi. 2. Some degree of violence and putting in fear. 3. A taking from the person of another.

1. There must be a felonious intention to steal: larceny is a necessary, though by no means the most important ingredient, which enters into the composition of a robbery. The circumstances which are calculated and proper to evince this felonious intention, it is impossible to describe or recount: they must, in this as in other crimes, be left to the attentive consideration of those, by whom the person accused is tried. The value, however, of the property on which the larceny is committed, is, as to the robbery, totally immaterial. In this respect, a penny is equivalent to a pound.f

2. There must be some degree of violence and putting in fear. This indeed is the characteristick circumstance, which distinguishes robbery from other larcenies. If one assault another with such circumstances of terrour as put him in fear, and he, in consequence of this fear, deliver his money; this is a sufficient degree of violence; for he was put in fear by the assault; and gave his money to escape the danger.g To constitute a robbery, it is sufficient that the force used be such as might create an apprehension of danger, or oblige one to part with his property against his consent. Thus, if a man be knocked down without any previous warning, and stripped of his money while he lies senseless; this, though he cannot strictly be said to be put in fear, is undoubtedly a robbery.h

3. There must be a taking from the person of another. The thief must be in the possession of the thing stolen. If he go even so far as to cut the girdle, by which a purse hangs, so that it fall to the ground; yet if he do not take it up, he has not completed the robbery, because the purse was not in his possession.i The taking must be from the person; but this part of the description is answered, not only by taking the money out of one’s pocket, or forcing from him the horse on which he actually rides, but by taking from him, openly and before his face, any thing which is under his immediate and personal care and protection. If one, wishing to save his money, throw it into a bush, and the thief take it up; this is a taking from the person.j

We are told by Mr. Selden, that, before the conquest, robbery was punished differently, by the different nations who came from the continent of Europe. By the Saxons, it was punished with death: by the Angles, and by the Danes, it was punished only with fine.k After the conquest, these different laws were settled by the Normans in the more merciful way; and if the delinquent fled, his pledge satisfied the law for him. But in the times of Henry the first, the law was again reduced to the punishment of this crime by death: and so it has continued ever since.l

In the ancient laws of Wales, it is expressly declared, that robbery shall never be punished with death; “because (say these laws) it is a sufficient satisfaction for this crime, if the goods taken be restored, and a fine paid to the person from whom they were taken, according to his station, for the violence offered him, and another to the king for the breach of the peace.”m

Robbery, by a law of the United States, is punished capitally.n By a law of Pennsylvania, a person convicted of robbery forfeits to the commonwealth his lands and goods, and undergoes a servitude not exceeding ten years, in the gaol or house of correction.o

I proceed now to the consideration of two other crimes at the common law, which, though property, as in the case of robbery, enters into their description, yet receive their deep dye from outrages against personal security. This cannot be enjoyed without a legal guard around the residence of the person.

“A man’s house is his castle” was the expression, in times rude and boisterous, when the idea of security was found only on its association with the idea of strength; and in such times, no expression more emphatical could have been used. In happier times, when the blessings of peace and law are expected and due—in such times, a man’s house is entitled to an appellation more emphatick still—in such times, a man’s house is his sanctuary. “Quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?”p3 Into this sanctuary, the law herself, unless upon the most urgent emergencies, presumes not to look or enter. We have seen, on many occasions, with what a delicate—I may add, with what a respectful—reserve, she treats the near and dear domestick connexions. We may well suppose, that she will guard, with peculiar vigilance, the favoured spot in which a family reside. Even those who endeavour clandestinely to pry into its recesses—such areq eaves-droppers—receive her reprehension: and unless the peace or security of the publick require it, she will not suffer its doors to be broken, to execute even her own imperial mandates. When she thus solicitously protects the residence of a family from inferiour insults, we may rely, that she will zealously defend it from atrocious crimes. Such are arson and burglary.

Arson is a felony at common law, in maliciously and voluntarily burning the house of another.r This is not intended merely of the dwelling house itself, but extends to the outhouses; as the barn, the stable, the cow house, the dairy house, the mill house, the sheep house; which are parcel of the mansion house.s

This crime may be committed by wilfully burning one’s own house, if the house of another is also burnt; but if no mischief is done to that of another, it is not felony, though the fire was kindled with an intention to burn the house of that other.t But if the intention is to burn the house of another person, and by the burning of this the house of a third person is also burned; the burning of the house of this third person is felony; because the pernicious event shall be coupled with the felonious intention.u

Neither the mere intention to burn a house, nor even an actual attempt to burn it, by putting fire to it, will, if no part of it be burnt, amount to felony; but if any part of the house be burnt, it is arson, though the fire afterwards go out of itself, or be extinguished.v No misfortune, nor even culpable negligence or imprudence, will amount to arson: it must be voluntary and malicious. A person, by shooting with a gun, set fire to the roof of a house; this was determined not to be felony.w

Arson is a crime of deep malignity. The object of other felonies against the right to property, is merely to give it a new master; the object of arson is to destroy it—to lose it to society, as well as to its owner. The confusion and terrour which attend arson, and the continued apprehension which follows it, are mischiefs frequently more distressing than even the loss of the property.

The crime of arson was one of the very few punished capitally by the Saxon law. In the reign of Edward the first, those who perpetrated this crime were burnt, that they might suffer in the same manner, in which they had been criminal.x This crime is also one of the very few still punished capitally in Pennsylvania.yz

Burglary is a felony at the common law, in breaking and entering, by night, the mansion house of another, with intent to commit a felony.a

There have been some opinions, that this crime, on a construction of the phrase “by night,” may be committed at any time after the setting and before the rising of the sun; because the day was deemed to begin at the end, and to end at the beginning of those times; but the later and better opinion is, that if there be day light enough to discern the countenance of a man when the crime is committed, it cannot amount to a burglary.b

To a burglary it is necessary, that the house be both broken and entered. The breaking must be actual, and not merely such as the law implies in every unlawful entry on the possession of another. To open a window; to unlock the door; to break a hole in the wall; to enter an open door and unlatch a chamber door; to come down the chimney; to knock at the door and rush in when it is opened; to gain admittance by an abuse of legal process, or by the means of a conspiring servant; all these are actual breaches. The least degree of entry with any part of the body, or with an instrument held in the hand, or even a load discharged from a gun, is sufficient to satisfy that entry, which the law deems necessary to constitute the crime of burglary.c

In a dwelling house only burglary can be committed. But a house in which one sometimes resides, and has left with an intention to return; a house which one has hired, and into which he has brought part of his goods, though he has not lodged in it; a chamber in a college; a room occupied in a private house by a lodger; the out houses adjoining to the principal house; all these are mansion houses within the meaning of the law.d

A shop may be parcel of a mansion house; but if it is severed by a lease to one who works in it by day only, and does not lodge in it, it is not burglary to break and enter it in the night time.e

To a burglary, an intention to commit some felony, and not merely a trespass, is indispensable; but, as was shown on another occasion,f it is not necessary that the felony intended be committed; and it is immaterial whether that felony be by common or by statute law.g

By the law of Athens, burglary was a capital crime.h Among the Saxons also, burgessours4 were to be punished with death.i In Pennsylvania, burglary and robbery receive precisely the same punishment.j The punishment for robbery has been already mentioned.

[a. ]Ante. p. 1104.

[b. ]3. Burr. 1703. 1733.

[c. ]R. O. book A. vol. 1. p. 14.

[d. ]4. Bl. Com. 245.

[e. ]1. Gog. Or. L. 59.

[f. ]Bar. on St. 380.

[g. ]Id. ib.

[1. ]The crime of falsifying.

[h. ]4. Bl. Com. 247.

[2. ]A noose hangs over the heads of the people.

[i. ]4. Ld. Bac. 3.

[j. ]1. Laws Penn. 5.

[k. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 14.

[l. ]3. Ins. 169.

[m. ]3. Ins. 169.

[n. ]Id. 107. 4. Bl. Com. 230.

[o. ]C. 1. s. 10. 2. Reev. 42.

[p. ]Bar. on St. 443.

[q. ]Bar. on St. 491.

[r. ]Id. ibid.

[s. ]4. Bl. Com. 238.

[t. ]1. Reev. 485.

[u. ]2. Reev. 204.

[v. ]1. Haw. 89. Kel. 24.

[w. ]1. Haw. 90.

[x. ]Kel. 31. 1. Haw. 93.

[3. ]With intent to steal.

[y. ]4. Bl. Com. 232.

[z. ]1. Haw. 93.

[a. ]2. Henry 290.

[b. ]Eden. 289.

[c. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 16.

[d. ]2. Laws. Penn. 803. s. 3. 4.

[e. ]3. Ins. 68. 1. Haw. 95.

[f. ]3. Ins. 69.

[g. ]1. Haw. 96, 97.

[h. ]Fost. 128. 4. Bl. Com. 242.

[i. ]3. Ins. 69.

[j. ]3. Ins. 69. 1. Haw. 96.

[k. ]Bac. on Gov. 63.

[l. ]Id. 88.

[m. ]2. Henry 292.

[n. ]Laws U. S. 1. con. 2. sess. c. 9. s. 8.

[o. ]2. Laws Penn. 802. s. 2.

[p. ]Cic. pro dom. 41.

[3. ]For what is more protected in any religion than the home of each and every one of the citizens?

[q. ]4. Bl. Com. 169.

[r. ]3. Ins. 66. 1. Haw. 105.

[s. ]3. Ins. 67.

[t. ]Cro. Car. 376.

[u. ]3. Ins. 67.

[v. ]1. Haw. 106.

[w. ]1. Hale. P. C. 569.

[x. ]1. Reev. 485.

[y. ]1. Laws. Penn. 137. 476.

[z. ]By an act of assembly passed 22d April, 1794, arson is punished by imprisonment at hard labour, for a period not less than five, nor more than twelve years. 3. Laws. Penn. 600. Ed.

[a. ]3. Ins. 63. 1. Haw. 101.

[b. ]1. Haw. 101.

[c. ]1. Haw. 103.

[d. ]3. Ins. 64. 1. Haw. 103. 104. 4. Bl. Com. 226.

[e. ]Wood. Ins. 388.

[f. ]Ante. p. 1103.

[g. ]4. Bl. Com. 227.

[h. ]1. Pot. Ant. c. 26.

[4. ]Burglars.

[i. ]1. Reev. 485.

[j. ]2. Laws. Penn. 802. s. 2.