The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 2

THE FELONIES

Even in Anglo-Saxon times, as we have seen, the Crown began to establish a list of pleas over which it had particular rights. Some of these became, after the Conquest, felonies. Not all of them, however; the breach of the King’s peace, for example, became steadily less serious as the peace became further extended. As a serious crime it was confined to the days when the peace was given (as it was also in France) by a solemn diploma under the royal seal.

Felony is a feudal conception particularly applying to the breach of the fidelity and loyalty which should accompany the feudal relationship which has been consecrated by homage. Its characteristic punishment is therefore loss of tenement—escheat. On the continent felony was often confined to this class of crime, but in England, by means unknown, there came “a deep change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty”.1 The transition may have been helped by the fact that already in Anglo-Saxon law there were crimes which put their author at the absolute mercy of the King, their property, limb and life. The King’s “great forfeiture” may thus have caused these crimes to be equated with true felony which resembled it. In any case, this extension of the meaning of felony must have been welcome to lords, for it was they who reaped the harvest of escheats (subject always to the King’s wasting the tenement for a year and a day).

The list of felonies during the middle ages was always short, and the definitions of the crimes within the list were generally narrow; they almost always were subject to benefit of clergy, and could always be prosecuted by appeal. Indeed, the appeal is distinctly an appeal of felony, and at least one crime, mayhem, was a felony if prosecuted by an appeal, although it was not a felony upon indictment.1

TREASON

The history of treason in the middle ages is as distinctive as the nature of the offence. It is one of the very few crimes which were defined by statute during that period; and it is one of the equally few crimes whose scope was extended by “construction”. Unlike treason, the mediaeval felony was (generally speaking) neither statutory nor constructive.2

High Treason was never clergyable, and more than one prelate has paid the penalty; for a time, however, there were certain sanctuaries which claimed the extraordinary privilege of protecting traitors. The definition of treason before the statute was certainly wide, including the murder of royal messengers, and apparently even highway robbery. Such extensions fell heavily on lords who lost their escheats (for these offences were capital felonies even if they were not treason). The matter was therefore raised in Parliament with the result that the famous statute of treasons in 1352 laid down a definition, coupled with the proviso that any further definitions in doubtful cases shall be made in Parliament. The statute makes treason to consist in3 —

all of which involved forfeiture of land and goods to the Crown. The statute further defined “another sort of treason” (which was generally called petty treason) as being—

• “the slaying of a master by his servant;
• the slaying of a husband by his wife;
• the slaying of a prelate by his subject, secular or religious.”

These were to involve escheat, and not forfeiture, of lands. Then follows the provision for the parliamentary declaration of treason in future cases not covered by the act, and a declaration that riding armed, robbery, kidnapping for ransom and the like are not treason, and a rescission of recent judgments to the contrary, with the restoration of the forfeitures already exacted by the Crown to the lords of the fee as escheats. The motives of the statute are patently to prevent the loss of escheats by treating felonies of certain sorts as treason. This is made perfectly clear, moreover, in the petition which led to the statute.1 There is no trace of political theory in the act.

It is impossible to enter here into the large number of judicial and statutory changes which took place in the ensuing five centuries of history. Many times of unrest produced statutory extensions which were repealed when quiet was restored, but all through the succeeding ages it has been felt that treason should, wherever possible, rest solely on the act of 1352. A few of these later statutes have become permanent or are otherwise remarkable. Thus there is the famous act declaring that service with a de facto king shall not be treason to the King de jure,2 and the act requiring two witnesses of the overt act or acts alleged in the indictment.3

The act of 1352 may itself have hampered the orderly growth of the law relating to offences against public security by including so few of them in the definition of treason, making no provision for the lesser (but still serious) crimes. It remained for the Star Chamber and the Legislature to introduce some order into a tangled and dangerous mass of law by separating from treason such crimes as riot, sedition, espionage, incitement to mutiny, and the like. Similarly, the petty treasons were reduced to ordinary murder in 1828 (9 Geo. IV, c. 31).

MURDRUM

Murder is the product of many different lines of development. Slaying wilfully or accidentally had the same consequences in Anglo-Saxon law—the offender must bear the feud, or else he must provide the sum of money amounting to the dead man’s wer. Even before the conquest, however, deliberately planned assassinations came to be distinguished and put into the list of Crown pleas as forsteal. The original sense of this word was lying in wait to ambush the victim. After the conquest this is expressed in various terms in French and Latin, but frequently takes the form of assault purpensé, or assultus premeditatus. In time this yields before malitia excogitata, and so introduces us to the very troublesome word “malice”.4 Numerous pardons for accidental slayings explain that the offence was not done of malice aforethought, but on the positive side the word was used very vaguely; it seems impossible to maintain that it signified spite or hate, or indeed any definite allegation of intention. It is best regarded as a traditional form which only occasionally coincided with the natural meaning of the word. The Anglo-Saxon forsteal, like much else of the older legal language, survived only in local courts, and like its surroundings gradually sank to a petty significance. Forsteal thus became “forstall”, an offence which consisted in intercepting sellers on the way to a market and attempting to raise prices artificially.

The word “murder” has also had a devious history. Its original sense is the particularly heinous crime of secret slaying. After the conquest it was observed that Normans were frequently found dead under mysterious circumstances, and so William I enacted that if anyone were found slain and the slayer were not caught, then the hundred should pay a fine; this fine is a murdrum.1 The practice soon grew up of taking inquests and if it were presented that the dead man was English, then the fine was not due. In 1267 it was enacted that accidental deaths should not give rise to murdrum,2 and finally in 1340 presentment of Englishry and murdrum were abolished.3 Henceforth the word slowly tends to get linked up with “malice aforethought” and so we get the classical formulae describing the crime of murder.

Suicide (especially if it were done to avoid capture) involved forfeiture of chattels, and so it was argued backwards that it was a felony.

MURDER AND MANSLAUGHTER

In the thirteenth century misadventure and self-defence were still recognised, not so much as defences to a charge of homicide as circumstances entitling one to a pardon; but if these defences were not involved, there was but one other case, and that was homicide. Whatever might be urged in mitigation of this offence could only be urged before the King as part of an appeal for pardon; it could not be considered by a court of law.4 It is important to remember that the prerogative of mercy was the only point at which our mediaeval criminal law was at all flexible; hence pardons were issued with liberality for all sorts of felonies throughout the middle ages and long afterwards, and it is in the history of pardons, therefore, that the gradual growth of a classification of homicides is to be sought. A beginning was made in 1328 when a statute called in general terms, for restraint in issuing pardons,5 and in 1390 the Commons secured a statute which recognised certain pardons as issuing from the Chancery as a matter of course (no doubt cases of self-defence or misadventure); with these the statute contrasts pardons for “murders done in await, assault, or malice prepense”. In such cases pardons were subjected to almost impossible conditions.1 The pardoning power in other cases was not touched, and so the Crown retained its normal powers and procedure for pardoning homicide, except cases of what we may call wilful murder. The distinction becomes clearer in the Tudor reigns when benefit of clergy was being redistributed among the various crimes. Thus, James Grame wilfully murdered his master, Richard Tracy, on 9th February 1497 and then pleaded his clergy. An indignant Parliament was determined that he should hang, and so attainted him, and abolished clergy for his and all like cases of prepensed murder in petty treason.2 A number of such statutes followed in the reign of Henry VIII, and one of them3 uses (probably for the first time) the words “wilful murder”; from that date it is clear that the statutes have, in effect, divided the old felony of homicide into two separate crimes, “wilful murder of malice aforethought” which was not clergyable and therefore capital, and on the other hand, those homicides which were neither in self-defence, nor by misadventure. Some such division was obviously necessary, but unfortunately the boundary was generally sought in glossing the ancient formula “malice”. “Manslaughter”, as it came to be called, exercised the analytical skill of writers on pleas of the Crown for a century and more before very much order could be introduced, and even now serious questions as to the import of “malice” in murder have been raised.4

LARCENY

Few headings in criminal law have had so interesting a history as larceny. Its earliest form is naturally determined by the circumstances of agricultural life, and so the scope of larceny has gradually developed from the original type of cattle theft. We have already seen that the procedure derived from Anglo-Saxon times and remodelled as the appeal of larceny was merely a standardisation of the normal steps which would be taken upon the discovery of a theft of cattle—the hue and cry, the pursuit of the trail, and so on to summary judgment. One old distinction died away. This was the difference between manifest and secret theft. In Anglo-Saxon England, as in many early systems, the manifest thief fared much worse than the one whose guilt was only established after a lapse of time. No reasons seem to be evident for the rule in England,1 but some savages are said to adopt it as a special condemnation for those who are not merely thieves, but incompetent thieves. The distinction between grand and petty larceny is also ancient, although the explanation by a glossator of Britton that a man can steal enough to keep himself from starvation for a week without committing a major crime seems more modern than the rule; perhaps the gloss is under canonical influence, for the Church would not condemn a famished man for stealing bread.2

Bracton adopts the Roman definition of theft,3 but there has been some doubt whether contemporary English (or Norman) law really did look for an animus furandi, “intent to steal”. There are dicta by judges, statements by text-writers, and even miracles, attesting the rule that a man who takes another’s chattel, even without intent to steal, may be held guilty of theft.4 The burden of all of them is that a lord who distrains will get into trouble if his conduct is not scrupulously correct. That lesson had to be taught (and it has been learnt), but there seems no actual case where a distrainor who sold the goods was hanged. It would almost seem that these are stories told from the bench to assembled landlords and that the gruesome ending was merely in terrorem. Their ultimate basis, however, lies in the impossibility of expecting a jury to ascertain a person’s state of mind.5

The list of things which can or cannot be the subject of larceny has varied, and for centuries after the reigns of the Norman kings became steadily more absurd and confused. Wild animals were easily excluded, unless they were game on a private estate; deeds could be stolen under King John but not under Edward IV; Coke without any authority extended this exception to all choses in action and so it became a rule of the common law that the theft of a bank-note was not larceny. One judge even suggested that the theft of diamonds was not larceny because their value was dependent largely upon fancy. So, too, peacocks and sporting dogs were luxury articles without economic value. A huge mass of legislation has tackled all these points separately and with little reference to related points. Often the rules of benefit of clergy were employed in order to introduce some sort of gradation in larcenies and their punishment.6

QUASI-THEFT

The nature of larceny is expressed in the old charge that the thief “stole, took, and carried away”. This is clearly an old form derived from the simplest type of stealing, and was made the basis of the theory that larceny is a violation of possession. It covered the great majority of cases likely to arise in simple agricultural communities, but as society became more complex and newer forms of economic relationships became frequent, many sorts of crime escaped the old definition of larceny. Not until the reign of Henry VIII do we find much effort made to include them, and not until the eighteenth century is the legislation on the subject very extensive. Both in Normandy and in England there is some mention, even in the middle ages, of “quasi-theft”, and in Normandy it is clear that the conception was capable of filling many of the gaps in the old law of larceny. It included the use of false weights, measures and coins; concealment of wreck and treasure trove; refusal to replevy a distress; the use of forged bonds; usury; and removing boundary marks.1

Bracton occasionally uses the expression quasi-theft, but his list is not so extensive as it was in Normandy, for treasure trove and the use of false coins might involve a charge of high treason, and coinage offences soon became statutory felonies as well; weights and measures were governed by their own assize and were best dealt with (although that best was imperfect) locally;2 withernam became a serious offence, but separated from larceny owing to the need for special procedure; and the use of forged deeds in court (but not elsewhere) seems to have been dealt with summarily by the court which had been deceived.3 Bracton does use the idea of quasi-theft in connection with treasure trove,4 and more curiously still, in an argument that robbery is also larceny.5 The Mirror of Justices would have it that a great many sorts of fraud and dishonesty were (or ought to be) larceny,6 but it is plain that they were not. Usury (a quasi-theft in Normandy) was left to the Church in England.

How, then, were the gaps in the law of larceny supplied in practice during the middle ages in England? We suggest that the action of account will give the clue. This action was available against bailiffs and also against receivers of money or goods to the use of their masters; it was also used commonly between partners and joint traders of various sorts, so that a great many business relationships fell within its scope. The statutory process upon it was remarkable, and indeed unique. Persons entitled to an account from “servants, bailiffs, chamberlains and all manner of receivers” were allowed to appoint auditors, and if the accountant was in arrear, the auditors could commit the accountant to prison. There he was to lie until the account was discharged; if it was disputed and the accountant “could find friends” the matter could be reviewed in the court of exchequer.1 This drastic procedure whereby imprisonment could be ordered without a court or trial, at the discretion of purely private persons (whom Coke2 later had to call, nevertheless, judges of record), must have provided speedy sanctions against those who were later subject to the statutes on embezzlement and kindred offences.3

BREAKING BULK

Account, however, had its limitations and occasions arose when criminal sanctions were deemed necessary. An early example is to be seen in the curious case of breaking bulk.4 The facts were that a carrier entrusted with merchandise to be transported to Southampton broke open a bale and misappropriated the contents. There was much argument first in the Star Chamber and then in the Exchequer Chamber whether this was felony. A majority of the judges finally held that it was, influenced no doubt by the fact that the owner of the goods was a foreign merchant who took his stand upon his treaty rights and the law of nature. In short, it was politically expedient to punish the carrier for larceny, but the devious reasoning by which this was accomplished was a native product of some antiquity;5 it left its mark for centuries to come on the law of larceny.

STATUTORY CRIMES IN THE NATURE OF LARCENY

From the breaking bulk case it is clear that the great defect in the common law of larceny was the rule that larceny was a violation of possession; this, coupled with the rule that a bailee has possession6 permitted a great many fraudulent misappropriations to pass unpunished. The exception of cases where bulk had been broken depended on accident, and so the legislature was finally moved to intervene.

It began with the case of servants entrusted with their master’s goods who leave their employment, taking the goods with them, or who “embezzle” them while in service; an act of 1529 made this felony if the goods were of the value of forty shillings or more, but it excluded from its penalty persons under eighteen years of age, and apprentices.1 The statute therefore confirmed a tendency already apparent in case law2 to distinguish possession from “charge” (the control which servants have over their masters’ goods, which charge did not amount to possession, with the result that misappropriation was a violation of the master’s possession and so larceny). The use of the word “embezzle” in this and several later statutes dealing with theft from arsenals and government departments does not correspond with the present definition; it later gave way to the word “purloin” which commonly appears in statutes dealing with thefts from factories—and it is typical that separate trades procured legislation covering their own machinery and operations instead of a general enactment about theft. There was, for a long time, therefore, not merely the law of theft, but various bodies of law of theft from weaving sheds, spinning mills, iron works and the like, which were not uniform.

“Embezzlement” in its modern form appears in the statute law in 1799 which reached “servants or clerks” who embezzle effects received in the course of their employment;3 in 1812 it was necessary to extend this to brokers, bankers, attorneys and other agents who were neither servants nor clerks;4 the frauds of factors were made criminal in 18275 and in 1857 trustees and bailees were reached.6

Most of these statutes were the immediate result of some unusually disturbing decision of the courts, and as a rule went little further than reversing that particular decision. The sum total was a frightfully complicated mass of law containing many artificial distinctions which made the work of a prosecution especially difficult, for it was often impossible to say which of several minutely differing crimes might eventually appear from the evidence. Indictments therefore became immensely long and technical documents as they endeavoured to provide for all eventualities.

Successive Larceny Acts of 1827,7 1861,8 and 1916,9 consolidated this vast mass of statutory exceptions to the common law, but did not provide a definition of larceny, as Sir James Stephen remarks.

OTHER COMMON LAW FELONIES

Every one of the common law felonies pursued its separate history with little reference to the others. Robbery gradually approached larceny, and blackmailing became a constructive robbery (and constructive felonies were rare) before it was made criminal by statute.1 Burglary had some curious statutory adventures, especially when it was accompanied by putting inmates of a house in fear.2 Rape, like several other crimes, could be made the subject of an appeal of felony, in which case it was variously punished, sometimes with mutilation, rarely with death. If no appeal was brought the crown could prosecute, and then the penalty was fine and imprisonment, and the offence seems in practice to have been dealt with rather leniently until 1275 when a statute prescribed two years’ imprisonment—one of the first statutes to prescribe a fixed term.3 Ten years later another statute brought a drastic change of policy by making rape a capital felony both on appeal and on indictment.4

The Larceny Act, 1861, was one of a group of consolidating acts passed in that year which repealed and consolidated the results of hundreds of statutes. Criminal law is very largely statutory, and periodical revision is essential where large numbers of acts dealing with comparatively minute sections of a subject are constantly being passed. A larger scheme was soon proposed. The application of English law in suitable circumstances in India made it desirable to “restate” it (to use a modern expression) in a form clear and compact enough to be intelligible in a distant and very different land. An Indian Penal Code was drafted by Lord Macaulay and a quarter of a century later was enacted as law in 1860. In 1878 a draft Criminal Code, drawn by Sir James Fitzjames Stephen, was introduced into Parliament, but subsequently referred to a royal commission. It was not proceeded with, but from time to time large topics of criminal law and procedure have been codified, and recodified, in the course of the last two generations.

THE RECOVERY OF STOLEN GOODS

As long as the appeal of larceny was in common use, the appellant recovered the goods if his appeal was successful—recovery being, in fact, one of the main objects of the procedure. Indictment was felt to constitute a rather different situation. The discovery of the thief was to the credit of the grand jury, not of the loser; the accuser was the Crown, not the loser. Even an appeal might be quashed if it had not been brought with considerable diligence, and if none were brought at all, it was felt that the owner ought to lose his claim.

The felon forfeited his chattels to the King, and if the stolen goods were among them, they too went to him, unless by a prompt and successful appeal the owner had recovered them.1 If the thief had been convicted after indictment then clearly the owner’s remissness had extinguished his claim. From this followed the plausible (but not strictly accurate) deduction that a thief acquires property in the goods.2 This seems to have been the law in the early fourteenth century and it remained law until it was enacted in 1529 that a writ of restitution should issue after conviction on indictment in the same way as it issued after conviction by appeal.3

There was, however, another aspect of the appeal. It could be brought against anyone found in possession of the goods, and a successful appellant could recover his chattels in this way from one who was not a thief; in other words, purchase in good faith would serve as a defence of the purchaser’s neck, but it would not give him title against the owner. Our earliest plea rolls are quite clear on the point. There was in early times a tendency to treat secret sales as in themselves suspicious, and so this defence is often one of purchase in market overt. Towards the end of the middle ages, there was a tendency for the privilege of market overt to be enlarged, and to allow a bona fide purchaser in market overt even to acquire title in stolen goods, but this development was checked by decisions that the statutory writ of restitution would lie even against such a purchaser.4

RECEIVING STOLEN GOODS

There was clearly a strong popular feeling that receiving stolen goods ought to be a felony, but it took some centuries before the legislature finally accepted that view. As an appeal of felony could be brought against any possessor, it seemed to suggest that he could be properly regarded as a felon, and it was certain that the receiver of a felon (although not of the goods) could be hanged as an accessory. When this is coupled with the fact that stolen goods generally ended up as forfeit to the Crown, it will be seen that receiving stolen goods looked very much like a felony. In the twelfth century the possessor of stolen goods, if of ill-fame, was sent to the ordeal;1 in 1219 the receivers of a thief (but not of the stolen goods?) were hanged in circumstances which brought an amercement upon the judges;2 in 1221 some receivers abjured and others were hanged;3 late in the century a formula book treats “receiving larcenously” as a plea of the Crown.4 We read of an appeal of receiving stolen goods in 1291,5 and the hundred court of Maidstone certainly hanged a woman in 1300 for receiving stolen goods, the only objection raised when the justices in eyre went into the matter twelve years later being that she had received the goods in one hundred, but was convicted in another.6 As late as 1358 a man was indicted for receiving, and tried for the offence on the assumption that it was a felony.7

In the middle of the fourteenth century, however, the superior courts adopted a policy of strictly defining the various crimes, and even restricted the already narrow scope of larceny. Hence we find in 1351 and 1353 that appeals of receiving stolen goods are no longer admissible.8 There was uncertainty under Elizabeth,9 and eventually parliament began to move, and made receivers of stolen goods accessories10 (those who received the thief himself were of course accessories at common law). This step did not advance matters very much, for even accessories had many chances of escape, especially in the rule that they could not be tried until their principal had been convicted.11 In the next century this line was abandoned and receiving was made an independent misdemeanour12 in 1707 and an independent felony13 in 1827.

ATTEMPTS

It was tempting to “take the will for the deed” and to punish attempts as if they had been successfully accomplished, but the temptation had to be resisted; our mediaeval common law was ill-equipped as yet for investigating a prisoner’s state of mind, and Bereford was not alone in his distrust of the tendency.1

[1]1 P. & M., 304.

[1]From 1275-1285 rape was in a similar position.

[2]Conspiracy was defined by statute, 33 Edw. I (but not as a felony); for the few and unimportant statutory felonies created during the middle ages, see Stephen, History of Criminal Law, ii. 206-207.

[3]25 Edw. III, st. 5, c. 2. Cf. B. M. Putnam, Chief Justice Shareshull, University of Toronto Law Journal, v. 265.

[1]Rot. Parl., ii. 166 no. 15 (1348).

[2]11 Hen. VII, c. 1 (1495).

[3]7 & 8 Will. III, c. 3 (1696).

[4]Malice aforethought is occasionally alleged in actions of trespass: Sayles King’s Bench, i. 66 (1280).

[1]Leis Willelme, 22; Yntema, Lex Murdrorum, Harvard Law Review, xxxvi. 146-179. By custom, murdrum was not due in some counties, e.g. Cornwall (Y.B. 30 & 31 Edward I (Rolls Series), 240), and Kent (ibid., xl).

[2]52 Hen. III, c. 25; Prov. Westm. (1259), c. 22; Treharne, i. 173 n. 2.

[3]14 Edw. III, stat. 1, c. 4.

[4]By the Statute of Gloucester, 6 Edw. I, c. 9 (1278), it was enacted that there should be no need in the future to get a special writ from chancery authorising an inquest, but trial judges at gaol delivery should ask the jury if the homicide was accidental or in self-defence; “then the justices shall inform the king, and the king shall give him grace, if he pleases”.

[5]2 Edw. III, c. 2. For the effectiveness of this statute to restrain the royal prerogative see Sayles, King’s Bench, iii. p. xli.

[1]13 Rich. II, stat. 2, c. 1 (1390).

[2]12 Hen. VII, c. 7 (1497).

[3]23 Hen. VIII, c. 1 (1532).

[4]Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, contains an elaborate history of certain aspects of “malice”. Marowe, De Pace (1503) in Putnam, Early Treatises, 378, speaks of manslaughter. Cf. Plucknett, “Commentary” in Putnam, Justices of the Peace (Ames Foundation), cxlvii ff.

[1]For some speculations and analogies, see Pollock and Maitland, ii. 497; as Le Foyer remarks (Droit pénal normand, 135) the story of the Spartan boy who stole a fox (told by Plutarch, Lycurgus) gives the ancient point of view.

[2]Britton, i. 56; Le Foyer, 133 n. 1.

[3]Bracton omits “lucri faciendi gratia vel ipsius rei vel etiam usus eius possessionisve”; these points are discussed in Stephen, History of Criminal Law, iii. 131 ff.

[4]The story told by a judge is in Y.B. 33 & 35 Edward I (Rolls Series) 503; the text-writer’s views are in Britton, i. 116, 138; the miracle is described in Stephen, i. 79.

[5]The averment of a man’s deceitful intention presented insuperable difficulties: Y.BB. 12 & 13 Edward III (Rolls Series), 83 (1339); “the thought of man shall not be tried, for the devil himself knoweth not the thought of man”—Brian, C.J., in Y.B. 7 Edward IV, Pasch. no. 2, f. 2 (1467). Cf. the comment “—words that might well be the motto for the early history of criminal law”: Pollock and Maitland, ii. 474-475.

[6]Abundant references will be found in Stephen, iii. 142-149.

[1]Le Foyer, Droit pénal normand, 149 ff.

[2]The control of weights and measures appears in the Anglo-Saxon laws, and in legislation during the next thousand years. For difficulties of enforcement see J. H. Thomas, Town Government in the Sixteenth Century, 69, 83.

[3]A petition that the forgery of private seals and their apposition to deeds should be punishable with life imprisonment upon indictment was rejected in 1371: Rot. Parl., ii. 308 no. 45. A forged warrant of arrest in 1497 cost only a fine of 6s. 8d. in the king’s bench: Bayne, Council of Henry VII, cliv n. 1.

[4]Bracton, f. 119 b.

[5]Ibid., f. 150 b.

[6]Mirror of Justices (ed. Whittaker, Selden Society), 25-28.

[1]Westminster II, c. 11 (1285). The less drastic remedy of Monstravit de Compoto given by the Statute of Marlborough, c. 23 (1267), was virtually suspended by the council early in the reign of Edward III: Sayles, King’s Bench, iii. p. cxix, app. l.

[2]2 Inst. 380.

[3]Long before the statute it seems to have been the practice, rightly or wrongly, for a lord to imprison in his own house a defaulting accountant: Eyre Rolls (Selden Society, vol. lix), no. 978 (1221). The point of the statute is that it requires the accountant to be confined in the royal gaol instead of in the lord’s private prison.

[4]Y.B. 13 Edw. IV, Pasch. 5 (1473). Cf. Glanvill, x. 13.

[5]The idea of “breaking bulk” occurs in a detinue case of 1315 Y.BB. Edward II (Selden Society), xvii. 136.

[6]Thus it was not larceny for a bailee to sell the chattel: Calendar of Patent Rolls, 1266-1272, 537.

[1]21 Hen. VIII, c. 7 (1529). This seems to be the earliest statute to put young offenders in a special category.

[2]The fluctuating authorities are collected in Holdsworth, iii. 364.

[3]39 Geo. III, c. 85.

[4]52 Geo. III, c. 63.

[5]7 & 8 Geo. IV, c. 29, s. 51.

[6]20 & 21 Vict., c. 54.

[7]7 & 8 Geo. IV, c. 29.

[8]24 & 25 Vict., c. 96.

[9]6 & 7 Geo. V, c. 50.

[1]Extortion by letter was made criminal by statutes of 1722 (9 Geo. I, c. 22) and onwards; the actual extortion of money by only verbal threats was held a constructive robbery in R. v. Jones (1776), 1 Leach, 139; threatening with intent to extort became a statutory felony in 1823 (4 Geo. IV, c. 54).

[2]Cf. Plucknett, “Commentary” in Putnam, Justices of the Peace (Ames Foundation), cxlii ff. for the relations of burglary and house-breaking.

[3]Westminster I, c. 13; cf. c. 20.

[4]Westminster II, c. 34. On these changes, see Pollock and Maitland, ii. 490-491.

[1]For rules on the recovery of stolen goods, see the notes in Y.BB. Edward II, xxiv. 92 (c. 1319). Kindly suitors who improperly restored stolen goods to their owner might get into trouble: Eyre of Kent (Selden Society), i. 80 (1313). Even if taken with the maynor, the thief forfeited everything to the king: Joyce Godber, Supervisors of the Peace, Bedfordshire Historical Record Sociery, 65 no. G.2: the fact that he was acquitted at the king’s suit would not save the forfeiture—ibid., 67 no. G.7.

[2]See the exposition in Pollock and Maitland, ii. 166 n. 2. At common law (but not in the Cinque Ports) the thief also forfeited goods of which he was bailee; below, p. 474.

[3]21 Hen. VIII, c. 11. Long before the statute, there may have been some similar writ—see the cryptic remarks of Bereford, C.J., in Y.BB. Edward II (Selden Society), xxiv. 116 (1319).

[4]Holdsworth, v. 110-111; Case of Market Overt, 5 Rep. 83 b (1596).

[1]Assize of Clarendon, c. 12 (1166); above, p. 113.

[2]Bracton’s Note Book, no. 67.

[3]Maitland, Select Pleas of the Crown (Selden Society), no. 169; s.c. Eyre Rolls (Selden Society, vol. 59), no. 1241.

[4]Court Baron (Selden Society), 64.

[5]Sayles, King’s Bench, i. 70 (1280); ii. 53 (1291). Cf. below, p. 684 n. 1.

[6]Eyre of Kent, I. 88.

[7]Putnam, Justices of the Peace (Ames Foundation), 55.

[8]Y.B. 25 Edw. III, Pasch. 2; cf. 27 Ass. 69 (1353).

[9]See the notes to [Ellesmere], Discourse on Statutes (ed. S. E. Thorne), 116.

[10]3 Will. & Mar., c. 9 (1691).

[11]This rule seems to have been non-existent in 1221: Eyre Rolls (Selden Society, vol. lix), no. 832, but well-established by 1253: Richardson and Sayles, Proceedings without Writ (Selden Society, vol. lx), 31-32.

[12]6 Anne, c. 31.

[13]7 & 8 Geo. IV, c. 29.

[1]For a story told by Bereford, see Y.BB. Edward II (Selden Society), xi, pp. xxix-xxx. See Ullmann, Medieval Theory of Criminal Attempts, Revue d’Histoire du Droit, xvii. 17-81, F. B. Sayre, Criminal Attempts, Harvard Law Review, xli. 821-859; Plucknett, commentary in Putman, Proceedings before Justices of the Peace (Ames Foundation), cliii.