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So in the case of one Bartue, who married the Duchess of Suffolk, they obtained a licence from Queen Mary to go out of the realm, under pretence of recovering debts as executors to the duke; when in reality it was on account of the religion established by Queen Mary, and living with other fugitives under the protection of the Palsgrave of the Rhine, in Germany, who was an eminent Calvinist, were sent to by privy seal, but the messenger, in endeavouring to serve them with his letters, being obstructed and abused by their attendants, a certificate was made of this, and their lands and tenements seized. Dyer, 176; Jenk. Cent. 220.

So in the case of Sir Francis Englefield, who departed the kingdom on a licence obtained for three years, but not returning at the expiration of the three years, a privy seal was sent to him by Queen Elizabeth, which he not obeying, and this matter being certified into Chancery by the queen, under her sign manual, his lands and tenements were seized in the fifth year of her reign, by virtue of a commission under the great seal. 1 Leon. 9; Moor, 109; 1 And. 95, S. C. See also 7 Co. 18; Poph. 18; 4 Leon. 135.

nonsuit; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court; but the attorney-general may enter a non vult prosequi, which has the effect of a nonsuit. Co. Lit. 139. For the same reason, also, in the forms of legal proceedings, the King is not said to appear by his attorney, as other men do; for in contemplation of law he is always present in court. Finch, L. 81. From the same original, of the King's being the fountain of justice, may also be deduced the prerogative of issuing proclamations, which is vested in the King alone. These proclamations have then a binding force, when they are grounded upon and enforce the laws of the realm. 3 Inst. 162. For though the making of laws is entirely the work of a distinct part, the legislative branch of the sovereign power; yet the manner, time, and circumstances of putting these laws in execution, must frequently be left to the discretion of the executive magistrate; and therefore his constitutions or edicts concerning these points, which we call proclamations, are binding upon the subject where they do not either contradict the old laws, or tend to establish new ones, but only enforce the execution of such laws as are already in being, in such manner as the King shall judge necessary. Thus the established law is, that the King may prohibit any of his subjects from leaving the realm: a proclamation, therefore, forbidding this, in general, for three weeks, by laying an embargo upon all shipping in time of war, will be equally binding as an act of parliament, because founded upon a prior law. 4 Mod. 177, 179.

So in the case of Sir Robert Dudley, who intending to travel, obtained a licence from James the First to go to Venice; but before his departure, he, by indenture inrolled, for valuable consideration, as was expressed in the deed, (but none paid,) conveyed the manor of Killingworth, with other lands, to the Earl of Nottingham and others, in fee, with a proviso, that on tender of an angel of gold, all should be void; and with a covenant on the part of the bargainees, that they should make all such estates as the said Sir Ro- But a proclamation to lay an embargo in time of peace bert should appoint; the bargainees were not parties to the upon all vessels laden with wheat (though in time of a public deed, nor had they notice of it till some time after; but scarcity,) being contrary to law, and particularly to a staafterwards they made a lease to Sir Robert Lee, to the in- tute then in force (22 C. 2. c. 13.) the advisers of such a tent that Lady Dudley should take the profits of part of the proclamation, and all persons acting under it, always found it premises for ten years, if their estate continued so long un-necessary to be indemnified by special acts of parliament. revoked. The King hearing that Sir Robert had been guilty See stats. 7 G. 3. c. 7; 30 G. 3. c. 1; and title Imbargo. of some bad practices beyond sea, in the fifth year of his By the stat. 31 H. 8. c. 8. it was enacted that the King's reign, sent his privy seal to him, which he not obeying, the proclamations should have the force of acts of parliament; great question in this case was, whether those lands thus a statute, which was calculated to introduce the most desconveyed were forfeited; and adjudged that they were, the potic tyranny, and which must have proved fatal to the conveyance being fraudulent as to the King. Lane, 42, &c. liberties of this kingdom, had it not been luckily repealed In these cases it hath been held, that the King hath only in the minority of his successor, about five years after, by an interest in the offender's lands till he return; and that stat. 1 Edw. 6. c. 12. It was anciently held, though that is his restoring them is not a matter of grace but of right. not now law, that the King might suspend, dispense with, or Lane, 48, alter any particular law that he deemed hurtful to the public; and it has been said, that he may dispense with a penal statute wherein his subjects have not any interest. 4 Inst. 7; 4 Rep. 36; but by stat. 1 W. & M. st. 2. c. 2. it is declared and enacted, "that no dispensation by non obstante of or to any statute, or any part thereof, be allowed, but that the same shall be held void and of none effect, except a dispensation be allowed in such statute.' It is plain, however, that the King, by his prerogative, may in certain cases and on special occasions, issue proclamations for prevention of From the inherent right inseparable from the King to dis-offences, to ratify and confirm an ancient law, or, as some tribute justice among his subjects, it hath been held that an appeal from the Isle of Man lies to the King in council, without any reservation in the grant of the Isle of Man of any such right; and though there had been exclusive words, yet the grant must have been construed to be void on the King's being deceived, rather than the subject should be deprived of a right inseparable to him as a subject, of applying to the crown for justice. 1 P. Wms. 329.

The King is also considered as the fountain of justice, and general conservator of the peace of the kingdom. All jurisdiction exercised in these kingdoms, that are in obedience to our King, is derived from the crown; and the laws, whether of a temporal, ecclesiastical, or military nature, are called his laws; and it is his prerogative to take care of the due execution of them. Hence it is that all judges derive their authority from the crown, by some commission warranted by law. Fleta, c. 17; Co. Lit. 99 a, 144; see title Judges.

A consequence of this prerogative is the legal ubiquity of the King; his Majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice. Fortesc. c. 8; 2 Inst. 186. His judges are the mirror by which the King's image is reflected. It is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions or pronounce judgment for the benefit and protection of the subject; and from this ubiquity it follows, that the King can never be

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books express it, quoad terrorem populi, to admonish_them that they keep the laws on pain of his displeasure; and such proclamations being grounded on the laws of the realm, are of great force. Fortesc. de Laud. c. 9; 11 Co. 87; 12 Co. 74, 75; Dal. 20. pl. 10; 2 Rol. Abr. 209: 3 Inst. 162.

It is likewise clear, that the subject is obliged, on pain of fine and imprisonment, to obey every proclamation legally made, and though the thing prohibited were an offence before, that yet the proclamation is a circumstance which highly aggravates it, and on which alone the party disobeying may be punished. 12 Co. 74; Hob. 251. It is clearly agreed, that no private person can make any proclamation of a public nature, except by custom, as is usual in some cities and boroughs; this being a prerogative act, with which alone the King is intrusted. Bro. Procl. pl. 1; 12 Co. 75; Crom. Juris. 41.

But, according to the principles already laid down, the

King, by his proclamation, cannot change any part of the common law, statutes, or customs of this realm; nor can he by his proclamation create any offence which was not an offence before. 11 Co. 87 b; 12 Co. 75.

On this foundation it hath been held that the King's proclamation prohibiting the importation of wines from France, on pain of forfeiture, was against law, and void; there being at that time no war subsisting between the nations. 2 Inst. 63.

So where an act was made by which foreigners were licensed to merchandize within London; and Henry IV. by proclamation, prohibited the execution of it, and ordered it should be in suspense usque ad proximum parliamentum; and this was held to be against law. 12 Co. 75.

On a conference between some lords of the privy council, and the two chief justices (of which Lord Coke was one,) and chief baron and baron Altham, the question was,

1st, Whether the King by proclamation might prohibit new buildings in and about London?

2d, If the King might prohibit the making starch of wheat? And the judges were of opinion that the subject could not be restrained in these particulars by the King's proclamation. 12 Co. 74.

The King, by proclamation, may call or dissolve parliament, and declare war or peace; for these are prerogative acts with which he is intrusted, as the executive part of the law; but if there be an actual war, it is not necessary in pleading to shew that such war was proclaimed. 3 Inst. 162; 1 Hal. H. P. C. 163; Owen, 45; Rast. Ent. 605; see ante. The King, by proclamation, may legitimate foreign coin, and make it current money of this kingdom, according to the value imposed by such proclamation; he may legitimate base coin, or mixed below the standard of sterling; he may enhance coin to a higher denomination or value, and may decry money that is current in use and payment; and in all these cases a proclamation, with a proclamation writ under the great seal, is necessary. Co. Lit. 207 b; 5 Co. 114b; Dar. 21; 1 Hal. H. P. C. 192, 197; see title Coin.

The King, by proclamation, may appoint fasts and days of thanksgiving and humiliation, and issue proclamations for preventing and punishing immorality and profaneness, and enjoin reading the same in churches and chapels. Comp. Incumb. 354,

A proclamation must be under the great seal, and if denied, is to be tried by the record thereof; but if a man pleads he was prevented doing a thing by proclamation, it seems the better opinion that he need not aver that such proclamation was under the great seal; for alleging that such proclamation was made, it shall be intended to have been duly made. Cro. Car. 180; see 1 Rol. Rep. 172; vide Cro. Car. 130.

The King is likewise the fountain of honour, of office, and of privilege; and this in a different sense from that wherein he is styled the fountain of justice; for here he is really the parent of them. It is impossible that government can be maintained without a due subordination of rank, that the people may know and distinguish such as are set over them, in order to yield them that due respect and obedience; and also that the officers themselves being encouraged by emulation, and the hopes of superiority, may the better discharge their functions: and the law supposes that no one can be so good a judge of their several merits and services, as the King himself who employs them. It has, therefore, intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none but such as deserve them. And, therefore, all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown, either expressed in writing by writs or letters-patent, as in the creation of peers and baronets; or by corporal investiture, as in the creation of a simple knight. See titles Precedency, Peer.

VOL. II.

From the same principle also arises the prerogative of erecting and disposing of offices; for honours and offices are in their nature convertible and synonymous. All officers under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. And, on the other hand, all honours in their original had duties or offices annexed to them; an earl, comes, was the conservator or governor of a county; and knight, miles, was bound to attend the King in his wars. For the same reason, therefore, that honours are in the disposal of the King, offices ought to be so likewise; and as the King may create new titles, so may he create new offices; but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices, for this would be a tax upon the subject, which cannot be imposed but by act of parliament. 2 Inst. 533. Wherefore, in 13 H. 4. a new office being created by the King's letters-patent for measuring cloths, with a new fee for the same, the letters-patent were, on account of the new fee, revoked and declared void in parliament.

On this subject it hath been further said, that the King, as the fountain of justice, hath an undoubted prerogative in creating officers, and all officers are said to derive their authority mediately or immediately from him; those who derive their authority from him are called the officers of the crown, and are created by letters-patent; such as the great officers of state, judges, &c.; and there needs no stronger evidence of a right in the crown herein, than that the King hath created all such officers time immemorial. Dyer, 176; 2 Rol. Abr. 152; 4 Co. 32; 2 Inst. 425, 540; 12 Co. 116; 1 Rol. Rep. 206; Show. Par. Ca. 111; 1 Lev. 219. But though all such officers derive their authority from the crown, and from whence the King is termed the universal officer and disposer of justice; yet it hath been held, that he hath not the office in him to execute it himself, but is only to grant or nominate; nor can the King grant any new powers to such officers, but they must execute their offices according to the rules prescribed by law. Co. Lit. 3, 114; 2 Vent. 270; 4 Inst. 125; 6 Co. 11, 12.

Neither can the King create any new office inconsistent with our constitution or prejudicial to the subject. 2 Inst. 540; 2 Sid. 141; Moor, 808; 4 Inst. 200.

And on this foundation an office created by letters-patent for the sole making of all bills, informations and letters-missive in the council of York was unreasonable and void. 1 Jon. 231. See further title Office.

Upon the same, or a like reason, the King has also the prerogative of conferring privileges upon private persons, such as granting place or precedence to any of his subjects as shall seem good to his royal wisdom. 4 Inst. 361. See title Precedence. Or such as converting aliens, or persons born out of the King's dominions, into denizens, whereby some very considerable privileges of natural-born subjects are conferred upon them. See title Aliens. Such also is the prerogative of erecting corporations; which is grounded upon this foundation, that the King, having the sole administration of the government in his hands, is the best and the only judge in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve

and act under him.

Another light in which the laws of England consider the King, with regard to domestic concerns, is as the arbiter of domestic commerce, by the establishment of markets, the regulating of weights and measures, and of the coin. See this Dictionary under those titles.

The King is, lastly, considered by the laws of England as the head and supreme governor of the national church.

To enter into the reasons upon which this prerogative is founded, is matter rather of divinity than law. It shall only, therefore, be observed, that by stat. 26 H. 8. c. 1. (reciting D

that the King's Majesty justly and rightfully is and ought to be the supreme head of the church of England, and so had been recognized by the clergy of this kingdom in their convocation,) it is enacted, that the King shall be reputed the only supreme head in earth of the church of England, and shall have annexed to the imperial crown of this realm, as well the title and style thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. And another statute to the same purport was made, 1 Eliz. c. 1. See titles Oaths, Supremacy. In virtue of this authority the King convenes, prorogues, restrains, regulates, and dissolves, all ecclesiastical synods or convocations. This was an inherent prerogative of the crown long before the time of Henry VIII. as appears by the stat. 8 H. 6. c. 1. and the many authors, both lawyers and historians, vouched by Sir E. Coke. 3 Inst. 322, 323; 5 Rep. 9. So that the stat. 25 H. 8. c. 19. which restrains the convocation from making or putting in execution any canons repugnant to the King's prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common laws, 12 Rep. 72; that part of it only being new which made the King's royal assent actually necessary to the validity of every canon. See further titles Bishop, Convocation. As head of the church, the King is likewise the dernier resort in all ecclesiastical causes; an appeal lying ultimately to him in Chancery from the sentence of every ecclesiastical judge; which right was restored to the crown by stat. 25 H. 8. c. 19. See title Courts Ecclesiastical.

justice. 10. Royal fish. 11. Shipwrecks. 12. Mines. 13. Treasure-trove. 14. Waifs. 15. Estrays. 16. Forfeitures of lands and goods for offences; in which are included deodands. 17. Escheats of lands. 18. The custody of idiots. As to all which, see this Dictionary, under title Taxes, and the several other appropriate titles.

The ordinary revenue, or proper patrimony of the crown, was very large formerly, and capable of being increased to a magnitude truly formidable: for there are very few estates in the kingdom that have not, at some period of time or other since the Norman conquest, been vested in the hands of the King, by forfeiture, escheat, or otherwise. But fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits arising from the other branches of the census regalis, are likewise almost all of them alienated from the crown. In order to supply the deficiencies of which, we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the King's extraordinary revenue. For the public patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. And, perhaps, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown, was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feudal tenures, and was to resign into the King's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like; he would find himself a greater loser than by paying his quota to such taxes as are necessary to the support of government. The thing, therefore, to be wished and aimed at in a land of liberty is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity; but wisdom and moderation, not only in granting, but also in the method of raising, the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare, and at the same time most 4. The King's fiscal prerogatives, or those which regard consistent with economy and the liberty of the subject; who, his revenue, are such as the British constitution hath vested when properly taxed, contributes only some part of his proin the royal person, in order to support his dignity and main-perty, in order to enjoy the rest. See further titles Taxes, tain his power; being a portion which each subject contri-National Debt, Excise, Customs, &c. butes of his property, in order to secure the remainder.

The Kings of England not having the whole legislative power, if the King and clergy make a canon, though it bind the clergy in re ecclesiastica, it does not bind laymen; for they are not represented in the convocation, but in Parliament. In the primitive church, the laity were present at all synods; and when the empire became Christian, no canon was made without the emperor's consent, and indeed the emperor's consent included that of the people, he having in himself the whole legislative power; but the kings of this kingdom have it not. 2 Salk. 412, 673. See title Canon Law.

This revenue is either ordinary or extraordinary. The King's ordinary revenue is such as has either subsisted time out of mind in the crown, or else has been granted by parliament, by way of purchase or exchange, for such of the King's inherent hereditary revenues as were found inconvenient to the subject.

It is not, however, to be understood, that the King is at present in the actual possession of the whole of this revenue. Much (nay, the greatest part,) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the Kings of England, which has rendered the crown, in some measure, dependent on the people for its ordinary support and subsistence. So that among the royal revenues are now recounted, what lords of manors and other subjects frequently look upon to be their own absolute inherent rights, because they are, and have been, vested in them and their ancestors for ages, though in reality originally derived from the grants of our ancient princes. See I Comm. c. 8. . The King's ordinary revenues are stated by the learned commentator to arise from: 1. The custody of the temporalities of bishops. 2. A corody from each bishopric. 3. The tithes in extra-parochial places. 4. First-fruit and tenths of all spiritual preferments, 5. The demesne lands of the crown. (See stats. 26 G. 3. c. 87; 30 G. 3. c. 50.) 6. Military tenures, purveyance, and pre-emption. 7. Wine licences. 8. Forest courts. 9. Fines and fees in courts of

By these taxes a vast sum of money is annually raised; but the civil list is properly the whole of the King's revenue in his own distinct capacity; the rest being rather the revenue of the public, or its creditors, though collected and distributed again in the name and by the officers of the crown; it now standing in the same place as the hereditary income did formerly; and as that has gradually diminished, the parliamentary appointments have increased.

Formerly the expenses defrayed by the civil list were those that in any shape related to civil government; as the expenses of the royal household; the revenues allotted to the judges; all salaries to officers of state, and every of the King's servants; the appointments to foreign ambassadors; the maintenance of the Queen and royal family; the King's private expenses, or privy purse; and other very numerous outgoings, as secret-service money, pensions, and other bounties, which sometimes so far exceeded the revenues appointed for that purpose, that application was made to parliament to discharge the debts contracted on the civil list.

The whole revenue of Queen Elizabeth did not amount to more than 600,000l. a year; that of King Charles I. was 800,000l. and the revenue voted for King Charles II. was 1,200,000l. though complaints were made (in the first years at least) that it did not amount to so much. The revenue of the Commonwealth between the time of Charles I. and Charles II. was upwards of 1,500,000l. A striking instance (says Mr. Christian in his note on this passage in the Com

upon

drop, and it fell again into the pocket: this was considered a sufficient asportation to constitute larceny. R. & M. 78. Thirdly, This taking and carrying away must also be felonious; that is, done animo furandi. This requisite, besides excusing those who labour under incapacities of mind or will, indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse, without his knowledge, and brings him home again; if a neighbour takes another's plough that is left in the field, and uses it his own land, and then returns it; if, under colour of arrear of rent, where none is due, one distrein another's cattle or seize them; all these are misdemeanors and trespasses, but no felonies. 1 Hal. P. C. 509. The ordinary discovery of a felonious intent, is where the party doth it clandestinely; or, being charged with the fact, denies it; but this is by no means the only criterion of criminality, for in cases that may amount to larceny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animum furandi; wherefore they must be left to the due and attentive consideration of the Court and Jury.

Fourthly, This felonious taking and carrying away must be of the personal goods of another; for if they are things real, or savour of the realty, larceny at the common law cannot be committed of them. Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot, in their nature, be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed by the rules of the common law; but the severance of them was, and in many things is still, merely a trespass; which depended on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate; and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immoveable. And if they were severed by violence so as to be changed into moveables, and at the same time by one and the same continued act, carried off by the person who severed them, they could never be said to be taken from the proprietor in this their newly acquired state of mobility (which is essential to the nature of larceny,) being never, as such, in the actual or constructive possession of any one but of him who committed the trespass. He could not, in strictness, be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief sever them at one time, whereby the trespass is completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and come again at another time, when they are so turned into personalty, and takes them away, it is larceny; and so it is if the owner, or any one else, has severed them. 3 Inst. 109: 1 Hal. P. C. 510. See 8 Rep. 33; Dalt. 372. This question is now, however, very much put at rest by the statute law. (7 & 8 Geo. 4. c. 29.) See several of its provisions under tits. Fences, Fixtures, Gardens.

By § 37 of the same statute, to steal or sever with such intent any metal, lapis calaminaris, manganese, mundick, wad, black cauke, black lead, or coal, from any mine, bed, or vein, is felony, punishable as simple larceny; and by § 23, to steal any paper or parchment, written or printed, being evidence to the title or any part of the title to any real estate, is made a misdemeanor punishable by transportation for seven years, fine or imprisonment. By 21, stealing, or fraudulently taking from the place of its deposit, or obliterating, &c. any record, writ, panel, process, interrogatory, affidavit, &c. or original document, is a misdemeanor, punishable in like manner. By § 22, stealing, or for any fraudulent purpose destroying, or concealing, any will, codicil, or testamentary instrument, is likewise made a misdemeanor, punishable by transportation, imprisonment, &c.

In indictments for stealing any of the things mentioned in the three last sections of the above act, it is not necessary to allege that they are the property of any person, or are of any value.

Bonds, Bills, and Notes, being mere choses in action, were held also at the common law not to be such goods whereof larceny might be committed; being of no intrinsic value, and not importing any property in possession of the person from whom they are taken. 8 Rep. 33. But by 2 Geo. 2. c. 25. they were put upon the same footing with respect to larcenies as the money they were meant to secure. This statute was repealed by the 7 & 8 Geo. 4. c. 27., but by the 7 & 8 Geo. 4. c. 29. 85., if any person shall steal any tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, or to any deposits in any savings bank, or shall steal any debenture, deed, bond, bill, note, warrant, order, or other security whatsoever, for money, or for payment of money, whether of this kingdom, or of any foreign state, or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing, every such offender shall be deemed guilty of felony, of the same nature, and in the same degree, and punishable in the same manner, as if he had stolen any chattel of the like value, with the share, interest, or deposit to which the security so stolen may relate, or with the money due on the security so stolen or secured thereby, and remaining unsatisfied, or with the value of the goods or valuable thing mentioned in the warrant or order.

Larceny also cannot at common law be committed of treasure-trove, or wrecks, waifs, estrays, &c. till seized by the king, or him who hath the franchise: for till such seizure no one hath a determinate property therein. See Dalt. 370: 3 Inst. 208: H. P. C. 67.-By the 7 & 8 Geo. 4. c. 29. § 18. plundering or stealing from any ship in distress, or wrecked, &c., or any goods, &c. belonging thereto, is a felony, punishable with death; but where there are no circumstances of cruelty, or the goods are of small value, the offender may be prosecuted and punished as for simple larceny.

Larceny cannot also be committed of such animals in which there is no property either absolute or qualified, as of beasts that are feræ naturæ, and unreclaimed, such as deer, hares, and conies, in a forest, chace, or warren; fish in an open river or pond; or wild fowls at their natural liberty. 1 Hal. P. C. 511: Fost. 366. But if they are reclaimed and confined, and may serve for food, it is otherwise, even at common law: for of deer so inclosed in a park that they may be taken at pleasure, fish in a trunk, and pheasants or partridges in a mew, larceny may be committed. 1 Hawk. P. C. c. 33. § 26: 1 Hal. P. C. 511. See Deer Stealers, Fish. It is said that if swans be lawfully marked, it is felony to steal them, though at large in a public river; and that it is likewise felony to steal them, though unmarked, if in any private river or pond: otherwise it is only a trespass. Dalt. Jus. c. 156. But, of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitæ naturæ, which serve for food, as neat or other cattle, swine, poultry, and the like, and of their fruit or produce, taken from them while living, as milk or wool, larceny may be committed. Dalt. 21; Crompt. 36; 1 Hawk. P. C. c. 33. § 28; 1 Hal. P. C. 507; the King v. Martin, by all the judges, P. 17 Geo. 3. And also of the flesh of such as are either domite or feræ nature when killed. 1 Hal. P. C. 511. As to those animals which do not serve for food, and which, therefore, the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to

larceny. 1 Hal. P. C. 512. For the punishment now inflicted by statute for stealing dogs or other animals, not the subject of larceny at common law, see tit. Dogs.

As to stealing oysters, see that title. Notwithstanding, however, that no larceny can be committed unless there be some property in the thing taken, and an owner, yet, if the owner be unknown, provided there be a property, it is larceny to steal it; and an indictment will lie for the larceny of the goods of a person unknown. 1 Hal. P. C. 512. This is the case of stealing a shroud out of a grave, which is the property of those, whoever they were, that buried the deceased; but stealing the corpse itself, which has no owner (though a matter of great indecency,) was no felony, unless some of the grave-clothes were stolen with it. It was, however, punishable by indictment as a misdemeanor, even though the body were taken for the improvement of the science of anatomy; it being a practice contrary to common decency, and shocking to the general sentiments and feelings of mankind. See 2 Term Rep. 733.

Where a person finds the goods of another that are lost, and converts them to his own use, it is no larceny; H. P. C. 61; even should he deny the finding of them, or secrete them. 1 Hale, 506. But it seems that in some extraordinary cases the law will rather feign a property, where in strictness there is none, than suffer an offender to escape justice. 1 Hank. P. C. c. 33. § 29.

And the above doctrine does not apply if he knows the owner; and, therefore, where a bureau was given to a carpenter to repair, and he found money secreted in it which he converted to his own use, it was held to be a felony. 8 Ves. 405; 2 Leach, 952. So if a hackney-coachman convert to his own use a parcel left by a passenger in his coach, by mistake, it is a felony if he know the owner; or if he took him up or set him down at any particular place where he might have inquired for him. 2 East P. C. 664; 1 Leach, 413, 415, n. And in all cases where there are marks on the property by which the owner may be traced, a conversion of it by the finder will be a larceny. 2 Russ. 102.

It must be proved on the trial that the goods stolen are the absolute or special property of the person named in the indictment. If he be described as a certain person to the jurors unknown, and it appears in evidence that his name is known, the prisoner will be acquitted. See 3 Camp. 264; 1 Holt, 595; 2 East, P. C. 651.

Where goods are stolen from a bailee, they may be described either as the property of the bailor or bailee, 2 Hale, 181, although they were never in the real owner's possession, but in that of the bailee merely. R. & R. 136. The property must not, however, be laid in one who has neither the actual nor constructive possession of the goods. R. & R.

225.

Thus if it appear the person named is merely servant to the owner, the prisoner must be acquitted, for the possession of the servant is the possession of the master. R. & R.

412.

By the 7 & 8 Geo. 4. c. 29. § 44. (before noticed) in case of the larceny of any fixtures in any square, street, or other like place, it is not requisite to allege the same to be the property of any person. See further, Indictment, VI.

2. Many learned and scrupulous men have questioned the propriety, if not lawfulness, of inflicting capital punishment for simple theft. The natural punishment for injuries to property seems to be the loss of the offender's own property; and might be universally the case were all men's fortunes equal. But as those who have no property themselves are generally the most ready to attack the property of others, it has been found necessary, instead of a pecuniary, to substitute a corporal punishment.

Our ancient Saxon laws nominally punished theft with death, if above the value of twelvepence; but the criminal was permitted to redeem his life by a pecuniary ransom; but in the ninth year of Henry I. this power of redemption

was taken away, and all persons guilty of larceny above the value of 12d. were directed to be hanged. 1 Hal. P. C. 12; 3 Inst. 53. And grand larceny, or the stealing above the value of 12d. continued liable to be visited with death at common law until the passing of the late statute, already mentioned, by which the distinction of grand and petit larceny was abolished. The value of the goods stolen is now immaterial, and every theft, whatever be the amount of property taken, is punishable under the third section of the same act, which provides that every person convicted of simple larceny, or of any felony by that act made punishable like simple larceny, shall (except as otherwise provided in the act) be liable to be transported for seven years, or be imprisoned not exceeding two years, and if a male to be once, twice, or thrice publicly whipped in addition to such imprisonment: and by § 4 such offenders (and persons convicted of any misdemeanor punishable under the act) may be sentenced to be imprisoned, or imprisoned and kept to hard labour in the common gaol or house of correction, and may also be kept in solitary confinement for the whole or any portion of such imprisonment, or such imprisonment with hard labour.

By 7 & 8 Geo. 4. c. 28. § 7. no person convicted of felony shall suffer death unless for some felony, which was excluded from the benefit of clergy before or on the first day of the then session of parliament, or which is made punishable with death by some statute passed after that day.

An acquittal of larceny in one county may be pleaded in bar of a subsequent prosecution for the same stealing in another county and an averment that the offences in both indictments are the same, may be made out by witnesses, or inquest of office, without putting it to trial by jury; though that of later years hath been the usual method. 2 Hark. P. C. c. 35. § 4. But it is no plea in appeal of larceny, that the defendant hath been found not guilty in an action of trespass brought against him by the same plaintiff for the same goods; for larceny and trespass are entirely different; and a bar in an action of an inferior nature will not bar another of a superior. 2 Hawk. P. C. c. 35. § 5. Ifa person be indicted for felony or larceny generally, and upon the evidence it appears that the fact is but a bare trespass, he cannot be found guilty, and have judgment on the trespass, but ought to be indicted anew; though it may be otherwise where the jury find a special verdict, or when the fact is specially laid, &c. In trespass, where the taking is felonious, no verdict ought to be given unless the defendant hath before been tried for the felony. 2 Hawk. P. C. c. 47. § 6. All felony includes trespass, so that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony or larceny in carrying them away; and in every indictment of larceny there must be the words felonice cepit & asportavit, &c. H. P. C. 61; 1 Hawk. P. C. c. 33. $ 2.

II. 1. Larceny in the dwelling-house, though it seems to have a higher degree of guilt than simple larceny, yet is not at all distinguished from the other at common law; unless where it is accompanied with the circumstance of breaking the house by night, and then it falls under another description, viz. that of Burglary.

By the 7 & 8 Geo. 4. c. 29. § 11 & 12. breaking and entering any dwelling-house, and stealing to any amount; stealing in a dwelling-house, any person being put in fear; or stealing therein to the value of 5l., were made capital felonies. But by the 2 & 3 Wm. 4. c. 62. the punishment of death for stealing to the value of 51. in a dwelling-house was abolished, and transportation for life substituted. And the 3 & 4 Wm. 4. c. 44. takes away the capital punishment for breaking and entering any dwelling-house and stealing to any amount, and in lieu thereof subjects the offender to transportation for life, or for not less than seven years, or previously to transportation to imprisonment for not exceeding four years or less than one year, with or without hard labour. See further as to stealing in dwelling-houses, &c. Buildings, Burglary, &c,

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