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.
Petty Larceny shall be, where the goods stolen are of less value than
five dollars; and whosoever shall be guilty thereof, shall be forthwith
put in the pillory for a quarter of an hour, shall be condemned to hard
labor one year in the public works, and shall make reparation to the
person injured.
Robbery* or larceny of bonds, bills obligatory, bills of exchange, or
promissory notes for the payment of money or tobacco, lottery tickets,
paper bills issued in the nature of money, or of certificates of loan on
the credit of this Commonwealth, or of all or any of the United States
of America, or Inspectors’ notes for tobacco, shall be punished in the
same manner as robbery,or larceny of the money or tobacco due on or
represented by such papers.* 2 G. 2. c. 25 §3; 7 G 3. c. 50.
Buyers* and receivers of goods taken by way of robbery or larceny,
knowing them to have been so taken, shall be deemed accessaries to such
robbery or larceny after the fact.
* 3 &. 4 W. & M. c. 9. § 4; 5 Ann. c. 31. § 5; 4 G. 1. c.
11. § 1.
Prison breakers,* also, shall be deemed accessaries after the fact, to
traitors or felons whom they enlarge from prison.**
* 1 E. 2.
** Breach of prison at the Common law was capital, without
regard to the crime for which the party was committed. ‘Cum
pro criminis qualitate in carcerem recepti fuerint,
conspiraverint (ut ruptis vinculis aut fracto carcere)
evadant, atnplius (quam causa pro qua recepti sunt exposuit)
puniendi sunt, videlicet ultimo supplicio, quamvis ex eo
crimine innocentes inveniantur, propter quod inducti sunt in
carcerem et imparcati.’ Bracton L. 3, c. 9. § 4. Britt. c.
11. Fleta, L. 1. c. 26. § 4. Yet in the Y. B. Hill. 1 H. 7.
2. Hussey says, that, by the opinion of Billing and Choke,
and all the Justices, it was a felony in strangers only, but
not in the prisoner himself. S. C. Fitz. Abr. Co-ron. 48.
They are principal felons, not accessaries, ib. Whether it
was felony in the prisoner at Common law, is doubted. Stam.
P. C. 30. b. The Mirror c. 5. § 1. says, ‘Abusion est a
tener escape de prisoner, ou de bruserie del gaole pur peche
mortal 1, car eel usage nest garrant per nul ley, ne in nul
part est use forsque in cest realme, et en France, ems
[mais] est leu garrantie de ceo faire per la ley de nature’
2 Inst. 589. The stat. 1 E. 2, ‘de fragentibus priso-nam,’
‘restrained the judgment of life and limb for prison-
breaking, to cases where the offence of the prisoner
required such judgment.’
It is not only vain but wicked, in a legislator to frame
laws in opposition to the laws of nature, and to arm them
with the terrors of death. This is truly creating crimes in
order to punish them. The law of nature impels every one to
escape from confinement; it should not, therefore, be
subjected to punishment. Let the legislator restrain his
criminal by walls, not by parchment. As to strangers
breaking prison to enlarge an offender, they should, and may
be fairly considered as accessaries after the fact. This
bill saying nothing of the prisoner releasing himself by
breach of jail, he will have the benefit of the first
section of the bill, which repeals the judgment of life and
death at the Common law.
All attempts to delude the people, or to abuse their understanding by
exercise of the pretended arts of witchcraft, conjuration, enchantment,
or sorcery, or by pretended prophecies, shall be punished by ducking and
whipping, at the discretion of a jury, not, exceeding fifteen stripes.*
* ‘Gifwiecan owwe wigleras mansworan, owwe morthwyrhtan owwe
fule afylede eebere horcwenan ahwhar on lande wurthan
agytene, thonne fyrsie man of earde, and claensie lha.
theode, owwe on earde forfare hi mid ealle, buton hi
geswican and the deoper gebetan:’ ‘if witches, or weirds,
man-swearers, or murther-wroughters, or foul, defiled, open
whore-queens, ay--where in the land were gotten, then force
them off earth, and cleanse the nation, or in earth forth-
fare them withal, buton they beseech, and deeply better.’
LI. Ed. et Guthr. c. 11. ‘Saga; mulieres barbara
factitantes sacrificia, aut pestiferi, si cui mortem
intulerint, neque id inficiari poterint, capitis pcena
esto.’ LI. Aethelst. c. 6. apud Lambard. LI. Aelfr. 30. LI.
Cnuti. c. 4. ‘Mesmo eel jugement (d’etrears) eyent
sorcers, et sorceresses,’ &c. ut supra. Fleta tit et ubi
supra. 3 Inst. 44. Trial of witches before Hale, in 1664.
The statutes 33 H. 8. c. 8. 5. El. c. 16 and 1. Jac. 1. c.
12. seem to be only in confirmation of the Common law. 9 G.
2. c. 25. punishes them with pillory and a year’s
imprisonment 3 E. 6 c 15. 5 El. c. 15. punish fond,
fantastical, and false prophecies, by fine and imprisonment.
If the principal offenders be fled,* or secreted from justice, in any
case not touching life or member, the accessaries may, notwithstanding,
be prosecuted as if their principal were convicted.**
* 1 Ann. c. 9. § 2.
**As every treason includes within it a misprision of
treason, so every felony includes a misprision, or
misdemeanor. 1 Hale P. C. 652. 75S. ‘Licet fuerit felonia,
tamen in eo continetur misprisio.’ 2 R. 3.10. Both principal
and accessary, therefore, may be proceeded against in any
case, either for felony, or misprision, at the Common law.
Capital cases not being mentioned here, accessaries to them
will of course be triable for misprisions, if the offender
flies.
If any offender stand mute of obstinacy,* or challenge preremp-torily
more of the jurors than by law he may, being first warned of the
consequence thereof, the court shall proceed as if he had confessed the
charge,**
* 3E. I.e. 12.
** Whether the judgment of penance lay at Common law. See 2
Inst. 178.2. H. P. C. 321. 4 Bl. 322. It was given on
standing mute: but on challenging more than the legal
number, whether that sentence, or sentence of death is to be
given, seems doubtful. 2 H. P. C. 316. Quære, whether it
would not be better to consider the supernumerary challenge
as merely void, and to proceed in the trial. Quære too, in
case of silence.
Pardon and privilege of clergy shall henceforth be abolished, that none
may be induced to injure through hope of impunity. But if the verdict be
against the defendant, and the court, before whom the offence is
heard and determined, shall doubt that it may be untrue for defect of
testimony, or other cause, they may direct a new trial to be had.*
* ‘Cum Clericus sic de crimine convictus degradetur, non
sequitur aliapoe-na pro uno delicto, vel pluribus ante
degradationem perpetratis. Satis enim sufficit ei pro pcena
degradatio, quse est magna capitis diminutio, nisi forte
convictus fuerit de apostatia, quia hinc primo degradetur,
et postea per manum laicalem comburetur, secundum quod
accidit in concilio Oxoni celebrato a bonas memoriae S.
Cantuaren. Archiepiscopo de quodam diacono, qui seapos-
tatavit pro quadam Judaea; qui cum esset per episcopum
degradatus, statim fuit igni traditus per manum laicalem.’
Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i. e. qui
ils soient ars) eye n’t sorcers et sorceresses, et sodomites
et mescreauntz apertement atteyntz.’ Britt. c. 9.
‘Christiani autem Apostatae, sortilegii, et hujusmodi
detractari debent et comburi.’ Fleta, L. 1. c. 37. § 2. see
3 Inst. 39; 12 Rep. 92; 1 H. P. C. 393. The extent of the
clerical privilege at the Common law, 1. As to the crimes,
seems very obscure and uncertain. It extended to no case
where the judgment was not of life or limb. Note in 2. H. P.
C. 326. This, therefore, excluded it in trespass, petty
larceny, or killing _se defendendo_. In high treason against
the person of the King, it seems not to have been allowed.
Note 1 H. P. C. 185. Treasons, therefore, not against the
King’s person immediately, petty treasons and felonies, seem
to have been the cases where it was allowed; and even of
those, not for _insidiatio viarum, depopulatio agrorum, or
combustio domorum_. The statute de Clero, 25 E. 3. st. 3. c.
4. settled the law on this head. 2. As to the persons, it
extended to all clerks, always, and toties quoiies. 2 H. P.
C. 374. To nuns also. Fitz. Abr. Coron. 461. 22 E. 3. The
clerical habit and tonsure were considered as evidence of
the person being clerical. 26 Assiz. 19 & 20 E. 2. Fitz.
Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple
reading became the evidence. This extended impunity to a
great number of laymen, and toties quoties. The stat. 4 H.
7. c. 13. directed that real clerks should upon a second
arraignment, produce their orders, and all others to be
burnt in the hand with M. or T. on the first allowance of
clergy, and not to be admitted to it a second time. A
heretic, Jew, or Turk, (as being incapable of orders) could
not have clergy. H Co. Rep. 29. b. But a Greek, or other
alien, reading in a book of his own country, might. Bro.
Clergie. 20. So a blind man, if he could speak Latin. Ib.
21. qu, 11. Rep. 29. b. The orders entitling the party were
bishops, priests, deacons, and sub-deacons, the inferior
being reckoned Clerici in minoribus. 2 H. P. C. 373. Quære,
however, if this distinction is not founded on the stat. 23.
H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all the
statutes, it should seem that none but clerks would be
entitled to this privilege, and that they would, toties
quoties.
No attainder shall work corruption of blood in any case.
In all cases of forfeiture, the widow’s dower shall be saved to her,
during her title thereto; after which it shall be disposed of as if no
such saving had been.
The aid of Counsel,* and examination of their witnesses on oath, shall
be allowed to defendants in criminal prosecutions.
* 1 Ann. c. 9.
Slaves guilty of any offence* punishable in others by labor in the
public works, shall be transported to such parts in the West Indies,
South America, or Africa, as the Governor shall direct, there to be
continued in slavery.
* Manslaghter, counterfeiting, arson, asportation of
vessels, robbery, burglary, house-breaking, horse-stealing,
larceny.
[NOTE F.]--Coinage for the United States
_On the Establishment of a Money Unit, and of a Coinage for the
United States_.
In fixing the Unit of Money, these circumstances are of principal
importance.
I. That it be of _convenient_ size to be applied as a measure to the
common money transactions of life.
II. That its parts and multiplies be in an _easy proportion_ to each
other, so as to facilitate the money arithmetic;
III. That the Unit and its parts, or divisions, be _so nearly of the
value of some of the known coins_, as that they may be of easy adoption
for the people.
The Spanish Dollar seems to fulfil all these conditions.
I. Taking into our view all money transactions, great and small, I
question if a common measure of more _convenient size_ than the Dollar
could be proposed. The value of 100, 1000, 10,000 dollars is well
estimated by the mind; so is that of the tenth or the hundredth of a
dollar. Few transactions are above or below these limits. The expediency
of attending to the size of the Money Unit will be evident to any one
who will consider how inconvenient it would be to a manufacturer or
merchant, if instead of the yard for measuring cloth, either the inch or
the mile had been made the Unit of Measure.
II. The most _easy ratio_ of multiplication and division is that by ten.
Every one knows the facility of Decimal Arithmetic. Every one remembers,
that, when learning Money-Arithmetic, he used to be puzzled with adding
the farthings, taking out the fours and carrying them on; adding
the pence, taking out the twelves and carrying them on; adding the
shillings, taking out the twenties and carrying them on; but when he
came to the pounds, where he had only tens to carry forward, it was easy
and free from error. The bulk of mankind are school-boys through
life. These little perplexities are always great to them. And even
mathematical heads feel the relief of an easier, substituted for a more
difficult process. Foreigners, too, who trade or travel among us, will
find a great facility in understanding our coins and accounts from this
ratio of subdivision. Those who have had occasion to convert the Livres,
sols, and deniers of the French; the Gilders, stivers, and frenings of
the Dutch; the Pounds, shillings, pence, and farthings of these several
States, into each other, can judge how much they would have been aided,
had their several subdivisions been in a decimal ratio. Certainly, in
all cases, where we are free to choose between easy and difficult modes
of operation, it is most rational to choose the easy. The Financier,
therefore, in his report, well proposes that our Coins should be in
decimal proportions to one another. If we adopt the Dollar for our Unit,
we should strike four coins, one of gold, two of silver, and one of
copper, viz.
1. A golden piece, equal in value to ten dollars:
2. The Unit or Dollar itself, of silver:
3. The tenth of a Dollar, of silver also:
4. The hundreth of a Dollar, of copper.
Compare the arithmetical operations, on the same sum of money expressed
in this form, and expressed in the pound sterling and its divisions.
A bare inspection of the above operations, will evince the labor which
is occasioned by subdividing the Unit into 20ths, 240ths, and 960ths,
as the English do, and as we have done; and the ease of subdivision in
a decimal ratio. The same difference arises in making payment. An
Englishman, to pay £8 13s. 11d. 1/2qrs. must find, by calculation,
what combination of the coins of his country will pay this sum; but an
American, having the same sum to pay, thus expressed $38.65, will know,
by inspection only, that three golden pieces, eight units or dollars,
six tenths, and five coppers, pay it precisely.
III. The third condition required is, that the Unit, its multiples, and
subdivisions, coincide in value with some of the known coins so nearly,
that the people may, by a quick reference in the mind, estimate their
value. If this be not attended to, they will be very long in adopting
the innovation, if ever they adopt it. Let us examine, in this point of
view, each of the four coins proposed.
1. The golden piece will be 1/5 more than a half joe and 1/15 more than
a double guinea. It will be readily estimated, then, by reference to
either of them; but more readily and accurately as equal to ten dollars.
2. The Unit, or Dollar, is a known coin, and the most familiar of all to
the minds of the people. It is already adopted from South to North; has
identified our currency, and therefore happily offers itself as a
Unit already introduced. Our public debt, our requisitions, and their
apportionments, have given it actual and long possession of the place of
Unit. The course of our commerce, too, will bring us more of this than
of any other foreign coin, and therefore renders it more worthy of
attention. I know of no Unit which can be proposed in competition with
the Dollar, but the Pound. But what is the Pound? 1547 grains of fine
silver in Georgia; 1289 grains in Virginia, Connecticut, Rhode Island,
Massachusetts, and New Hampshire; 1031 grains in Maryland, Delaware,
Pennsylvania, and New Jersey; 966 grains in North Carolina and New York.
Which of these shall we adopt? To which State give that pre-eminence of
which all are so jealous? And on which impose the difficulties of a new
estimate of their corn, their cattle, and other commodities? Or shall we
hang the pound sterling, as a common badge, about all their necks? This
contains 1718 grains of pure silver. It is difficult to familiarize a
new coin to the people; it is more difficult to familiarize them to a
new coin with an old name. Happily, the Dollar is familiar to them all,
and is already as much referred to for a measure of value, as their
respective provincial pounds.
3. The tenth will be precisely the Spanish bit, or half pistereen. This
is a coin perfectly familiar to us all. When we shall make a new coin,
then, equal in value to this, it will be of ready estimate with the
people.
4. The hundredth, or copper, will differ little from the copper of the
four Eastern States, which is 1/108 of a dollar; still less from the
penny of New York and North Carolina, which is 1/96 of a dollar;
and somewhat more from the penny or copper of Jersey, Pennsylvania,
Delaware, and Maryland, which is 1/90 of a dollar. It will be about the
medium between the old and the new coppers of these States, and will
therefore soon be substituted for them both. In Virginia, coppers have
never been in use. It will be as easy, therefore, to introduce them
there of one value as of another. The copper coin proposed, will be
nearly equal to three fourths of their penny, which is the same with the
penny lawful of the Eastern States.
A great deal of small change is useful in a State, and tends to reduce
the price of small articles. Perhaps it would not be amiss to coin
three, more pieces of silver, one of the value of five tenths, or half
a dollar, one of the value of two tenths, which would be equal to the
Spanish pistereen, and one of the value of five coppers, which would be
equal to the Spanish half-bit. We should then have five silver coins,
viz.
1. The Unit or Dollar:
2. The half dollar or five tenths:
3. The double tenth, equal to 2/10, or one fifth of a dollar, or to the
pistereen:
4. The tenth, equal to a Spanish bit:
5. The five copper piece, equal to 5/100 or one twentieth of a dollar,
or the half-bit.
The plan reported by the Financier is worthy of his sound judgment. It
admits, however, of objection, in the size of the Unit. He proposes that
this shall be the 1440th part of a dollar; so that it will require 1440
of his units to make the one before proposed. He was led to adopt this
by a mathematical attention to our old currencies, all of which this
Unit will measure without leaving a fraction. But as our object is to
get rid of those currencies, the advantage derived from this coincidence
will soon be past, whereas the inconveniences of this Unit will for
ever remain, if they do not altogether prevent its introduction. It
is defective in two of the three requisites of a Money Unit. 1. It is
inconvenient in its application to the ordinary money transactions.
10,000 dollars will require eight figures to express them, to wit,
14,400,000 units. A horse or bullock of eighty dollars’ value, will
require a notation of six figures, to wit, 115,200 units. As a money
of account, this will be laborious, even when facilitated by the aid
of decimal arithmetic: as a common measure of the value of property,
it will be too minute to be comprehended by the people. The French are
subjected to very laborious calculations, the Livre being their ordinary
money of account, and this but between 1/5 and 1/6 of a dollar; but what
will be our labors, should our money of account be 1/1440 of a dollar
only? 2. It is neither equal, nor near to any of the known coins in
value.
If we determine that a Dollar shall be our Unit, we must then say with
precision what a Dollar is. This coin, struck at different times,
of different weights and fineness, is of different values. Sir Isaac
Newton’s assay and representation to the Lords of the Treasury, in 1717,
of those which he examined, make their values as follows:
[Illustration: Sir Isaac Newton’s Assay, page137]
The Seville piece of eight . . . . 387 grains of pure silver
The Mexico piece of eight . . . . 385 1/2 ”
The Pillar piece of eight . . . . 385 3/4 ”
The new Seville piece of eight . . 308 7/10 ”
The Financier states the old Dollar as containing 376 grains of fine
silver, and the new 365 grains. If the Dollars circulating among us be
of every date equally, we should examine the quantity of pure metal in
each, and from them form an average for our Unit. This is a work proper
to be committed to mathematicians as well as merchants, and which should
be decided on actual and accurate experiment.