Whosoever committeth Robbery,* shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
* Robbery was a felony at Common law. 3 Inst. 68. ‘Scelus
inexpiable,’ by the LI. Cnuti. 61. [See before in Arson.] It
was punished with death. Briit c. 15, ‘De robbours et de
larouns et de semblables mesfesours, soitaussi
ententivernent enquis—et tauntost soient ceux robbours
juges a la morl.’ Fleta says, ‘Si quis conviclus fuerit de
bonis viri robbatis vel asportatis ad sectam regis judicium
capitale subibit.’ L. 1. c. 39. See also Bract. L. 3. c. 32
§ I.
Whatsoever act, if committed on any mansion-house, would be deemed Burglary,* shall be Burglary, if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
* Burglary was felony at the Common law. 3 Inst. 63 It was
not distinguished by ancient authors, except the Mirror,
from simple House-breaking, ib. 65. Burglary and House-
breaking were called ‘Hamsockne.’ ‘Diximus etiam de pacis
violatione et de immunitatibus domus, si quis hoc in
posterum fecetit ut perdat ornne quod habet, et sit in regis
arbitro utrum vitam habeat.’ ‘Eac we quasdon be mundbryce
and be ham socnum,sethe hit ofer this do tha:t he dolie
enlles thces the age, and sy on Cyninges Jome hwsether be
life age: and we quoth of mound-breach, and of home-seeking
he who it after this do, that he dole all that he owe
[owns], and is in kings doom whether he life owes [owns].’
LI. Eadmundi, c. 6 and see LI. Cnuti. 61. ‘bus btec,’ in
notesion Arson, ante. A Burglar was also called a Burgessor.
‘Et soit enquis de Burgessours et sunt tenus Burgessours
trestous ceux que felonisement en temps de pees debrusornt
esglises ou auter mesons, ou murs ou portes de nos cytes, ou
de nos Burghes.’ Britt. c. 10. ‘Burglaria est nocturna
diruptio habitaculi alicujus, vel ecclesise, etiam murorum,
portarurnve civitatis aut burgi, ad feloniam aliquam
perpetrandam. Noclanter dico, recentiores se-cutus; veteres
enim hoc non adjungunt.’ Spelm. Gloss, verb. Burglaria. It
was punished with death. Ib. citn. from the office of a
Coroner. It may be committed in the outset houses, as well
as inset, 3 Inst. 65. though not under the same roof or
contiguous, provided they be within the Curtilage or Home-
stall. 4 BI. 225. As by the Common law all felonies were
clergiable, the stat. 23 H. 8. c. 1; 5 E. 6. c. 9. and 18
El. c. 7. first distinguished tfiem, by taking the clerical
privilege of impunity from the principals, and 3 & 4 W. M.
c. 9. from accessories before the fact. No statute defines
what Burglary is. The 12 Ann. c. 7. decides the doubt
whether, where breaking is subsequent to entry, it is
Burglary. Bacon’s Elements had affirmed, and T. H. P. C.
554. had denied it. Our bill must distinguish them by
different degrees of punishment.
Whatsoever act, if committed in the night time, shall constitute the crime of Burglary, shall, if committed in the day, be deemed House-breaking;* and whosoever is guilty thereof, shall be condemned to hard labor three years in the public works, and shall make reparation to the persons injured.
* At the Common law, the offence of House-breaking was not
distinguished from Burglary, and neither of them from any
other larceny. The statutes at first took away clergy from
Burglary, which made a leading distinction between the two
offences. Later statutes, however, have taken clergy from so
many cases of House-breaking, as nearly to bring the
offences together again. These are 23 H. 8. c. 1; 1 E. 6. c.
12; 5 k 6 E. 6. c. 9; 3 & 4 W. M. c. 9; 39 El. c. 15; 10&11
W. 3. c.23; 12 Ann. c. 7. See Burr. 428; 4 Bl. 240. The
circumstances, which in these statutes characterize the
offence, seem to have been occasional and unsystematical.
The houses on which Burglary may be committed, and the
circumstances which constitute that crime, being
ascertained, it will be better to define House-breoking by
the same subjects and circumstances, and let the crimes be
distinguished only by the hour at which they are committed,
and the degree of punishment.
Whosoever shall be guilty of Horse-stealing,* shall be condemned to hard labor three years in the public works, and shall make reparation to the person injured.
* The offence of Horse-stealing seems properly
distinguishable from other larcenies, here, where these
animals generally run at large, the temptation being so
great and frequent, and the facility of commission so
remarkable. See 1 E. 6. c. 12; 23 E. 6. c. 33; 31 El. c. 12.
Grand Larceny* shall be where the goods stolen are of the value of five dollars; and whosoever shall be guilty thereof, shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor** two years in the public works, and shall make reparation to the person injured.
* The distinction between grand and petty larceny is very
ancient. At first 8d. was the sum which constituted grand
larceny. LI. Ælhelst. c. 1. ‘Ne parcatur ulli furi, qui
furtum manutenens captus sit, supra 12 annos nafo, et supra
8 denarios.’ Afterwards, in the same king’s reign, it was
raised to 12d. ‘Non parcaturalicui furi ultra 12 denarios,
et ultra 12 annos nato—ut occide-mus ilium et capiamus omne
quod possidet, et inprimis sumamus rei furto ablatse pretium
ab hserede, ac dividatur postea reliquum in duas partes, una
pars uxori, si munda, et facinoris conscia non sit; et
residuum in duo, dimi-dium capiat rex, dimidium societas.’
LI. Æthelst. Wilkins, p. 65. VOL. I. 17
** LI. Inse, c. 7. ‘Si quis furetur ita ut uxor ejus et
infans ipsius nesciani, solvat 60. solidos pcenae loco. Si
autem furetur testantibus omuibus haere-dibus suis, abeant
omnes in servilutem.’ Ina was King of the West Saxons, and
began to reign A. C. 688. After the union of the Heptarchy,
i. e. temp. Æthelst. inter 924 and 940, we find it
punishable with death as above. So it was inter 1017 and
1035, i. e. temp. Cnuti. LI. Cnuti 61. cited in notes on
Arson. In the time of William the Conqueror, it seems lo
have been made punishable by fine only. LI. Gul. Cohq. apud
Wilk. p. 218. 220. This commutation, however, was taken away
by LI. H. 1. anno 1108. ‘Si quis in furto vel latro-cinio
deprehensus fuisset, suspenderetur: sublata wirgildorum, id
est, pecu-niarse redemptions lege.’ Larceny is the felonious
taking and carrying away of the personal goods of another.
1. As to the taking, the 3 & 4 VV. M. c. 9. § 5, is not
additional to the Common law, but declaratory of it; because
where only the care or use, and not the possession, of
things is delivered, to take them was larceny at the Common
law. The 33 H. 6. c. 1 and 21 11. 8. c. 7., indeed., have
added to the Common law by making it larceny in a servant to
convert things of his master’s. But quære, if they should be
imitated more than as to other breaches of trust in general.
2. As to the subject of larceny, 4 G. 2. c.32; 6 G. 3. c. 36
48; 43 El. c. 7; 15 Car. 2. c. 2; 23 G. 2 c. 26; 31 G. 2. c.
35; 9 G. 3. c. 41; 25 G. 2. c. 10. have extended larceny to
things of various sorts, either real, or fixed to the
realty. But the enumeration is unsystematical, and in this
country, where the produce of the earth is so spontaneous as
to have rendered things of this kind scarcely a breach of
civility or good manners in the eyes of the people, quære,
if it would not too much enlarge the field of Criminal law?
The same may be questioned of 9 G. J. c. 22; 13 Car. 2. c.
10; 10 G. 2. c. 32; 5 G. 3. c. 14; 22 h 23 Car. 2. c. 25; 37
E. 3. c. 19. making it felony to steal animals ferte
natures.