Part 4 (2/2)
The ancient Laws of this kingdom punished the crime of Theft differently.--Our Saxon ancestors did not at first punish it capitally.--The Laws of King Ina[12] inflicted the punishment of death, but allowed the thief to redeem his life, _Capitis estimatione_, which was sixty s.h.i.+llings; but in case of an old offender, who had been often accused, the hand or foot was to be cut off.
[Footnote 12: King of the West Saxons, anno 688.]
After various changes which took place under different Princes, in the rude and early periods of our history, it was at length settled in the 9th of Henry the First, (A.D. 1108,) _that for theft and robbery, offenders should be hanged_; this has continued to be the law of the land ever since, excepting in the county palatine of Chester; where the ancient custom of beheading felons was practised some time after the Law of Henry the First; and the Justices of the Peace of that county, received one s.h.i.+lling from the King, for every head that was cut off.
Montesquieu seems to be of opinion that as thieves are generally unable to make rest.i.tution, it may be just to make theft a capital crime.--But would not the offence be atoned for in a more rational manner, by compelling the delinquent to labour, first for the benefit of the party aggrieved, till recompence is made, and then for the State?[13]
[Footnote 13: That acute Reasoner, the Marquis BECCARIA, who wrote after MONTESQUIEU, holds this last opinion.--”A punishment, (says this able writer) to be just should have only that degree of severity which is sufficient to deter others: perpetual labour will have this effect more than the punishment of death.”
BECC. chap. 28.]
According to the present system the offender loses his life, and they whom he has injured lose their property; while the State also suffers in being deprived of a member, whose labour, under proper controul, might have been made useful and productive.
Observations have already been made on one consequence of the severity of the punishment for this offence; that persons of tender feelings conscientiously scruple to prosecute delinquents for inconsiderable Thefts. From this circ.u.mstance it is believed, that not one depredation in a hundred, of those actually committed, comes to the knowledge of Magistrates.
Mixed or _compound Larceny_ has a greater degree of guilt in it than simple Larceny; and may be committed either by taking from a man, or from his house. If a person is previously put in fear or a.s.saulted, the crime is denominated _Robbery_.
When a Larceny is committed which does not put the party robbed in fear; it is done privately and without his knowledge, by picking his pocket, or cutting the purse, and stealing from thence above the value of twelve pence; or publicly, with the knowledge of the party, by stealing a hat or wig, and running away.
With respect to _Dwelling Houses_ the Common Law has been altered by various acts of Parliament; the multiplicity of which is apt to create confusion; but upon comparing them diligently, we may collect that the following domestic aggravations of Larceny are punishable with death, without Benefit of Clergy.
First, _Larcenies above the value of twelve pence_; committed--1st. In a church or chapel, with or without violence or breaking the same; 23 Henry VIII. cap. 1: 1 Edward VI. cap. 12.--2d. In a booth or tent, in a market or fair, in the day time or in the night, by violence or breaking the same; the owner or some of his family, being therein; 5 and 6 Edward VI. cap. 9.--3d. By robbing a dwelling house in the day time, (which _robbing_ implies a _breaking_,) any person being therein: 3 and 4 William and Mary, cap. 9.--4th. By the same Act, (and see the Act 23 Henry VIII. cap. 1.) in a dwelling house, by day or by night; without breaking the same, any person being therein, and put in fear: which amounts in law to a Robbery; and in both these last cases the _Accessary before the fact_ is also excluded from the benefit of Clergy.
Secondly; _Larcenies to the value of five s.h.i.+llings_; committed--1st.
By breaking any dwelling house, or any outhouse, shop, or warehouse thereunto belonging, in the day time; although no person be therein, which also now extends to aiders, abettors, and accessaries before the fact: 39 Elizabeth, cap. 15; see also 3 and 4 William and Mary, cap.
9.--2d. By privately stealing goods, wares, or merchandise in any shop, warehouse, coach-houses, or stable, by day or night: though the same be not broken open, and though no person be therein: which likewise extends to such as a.s.sist, hire, or command the offence to be committed: 10 and 11 William III. cap. 23.
Lastly; _Larcenies to the value of forty s.h.i.+llings_ from a dwelling house, or its outhouses, although the same be not broken, and whether any person be therein or not; unless committed against their masters, by apprentices, under age of fifteen; 12 Anne, stat. 1. cap. 7.
Piracy is felony against the goods of the Subject by a robbery committed at sea.--It is a capital offence by the civil law, although by Act of Parliament, it may be heard and determined, according to the rules of the common law, as if the offence had been committed on land.
The mode of trial is regulated by the 28th of Henry VIII. cap. 15; and further by the Acts 11 and 12 William III. cap. 7. and 39 George III.
cap. 37; which also extend to other offences committed on the High Seas.
Felonies _against the Dwelling or Habitation of a man are of two kinds; and are denounced_ Arson _and_ Burglary.
_Arson_ or _Arsonry_ is a very atrocious offence--it is defined to be _the malicious burning of the House of another either by night or by day_. It is in this case a capital offence; but if a man burns his own house, without injuring any other, it is only a misdemeanor, punishable by fine, imprisonment, or the pillory.
By the 23d of Henry the Eighth, cap. 1. the capital part of the offence is extended to persons, (whether princ.i.p.als or accessaries,) burning dwelling houses; or barns wherein corn is deposited; and by the 43d of Elizabeth, cap. 13, burning barns or stacks of corn in the four northern counties, is also made Felony without Benefit of Clergy.
By the 22d and 23d of Car. II. cap. 7, it is made felony to set fire to any stack of corn, hay, or grain; or other outbuildings, or kilns, maliciously in the night time; punished with transportation for seven years.
By the 1st George I. cap. 48, it is also made single felony to set fire to any wood, underwood, or coppice.
Other burnings are made punishable with death, without Benefit of Clergy; _viz._ Setting fire to any house, barn, or outhouse, or to any hovel, c.o.c.k, mow, or stack of corn, straw, hay, or wood: or the rescuing any such offender: 9 George I. cap. 22.--Setting fire to a coal-mine: 10 George II. cap. 32.--Burning, or setting fire to any wind-mill, water-mill, or other mill: (as also pulling down the same:) 9 George III. cap. 29; but the offender must be prosecuted within eighteen months.--Burning any s.h.i.+p; to the prejudice of the owners, freighters, or underwriters: 22 and 23 Charles II. cap. 11; 1 Anne, stat. 2. cap. 9; 4 George I. cap. 12.--Burning the King's s.h.i.+ps of war afloat, or building: or the Dock-yards, or any of the buildings, a.r.s.enals, or stores therein: 12 George III. cap. 24.--And finally, _Threatening_ by anonymous or fict.i.tious letters to burn houses, barns, &c. is by the Act 27 George II. cap. 15, also made felony without Benefit of Clergy.
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