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Book IV: Of Public Wrongs · Chapter 17 · first edition pages 229-247 · about 27 minutes

Of Offences Against Private Property

Section headings, the boxes marked "Added by the editor" and the reading list at the end are not part of Blackstone's text. Everything else is Blackstone's, from the Oxford first edition, with the long s printed as a modern s.

Offences against private property

The next, and last, species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny, and malicious mischief: and one, that is equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of these three in their order.

Larceny

1. Larciny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixt or compound larciny, which also includes in it the aggravation of a taking from one's house or person.

Simple larceny

And, first, of simple larciny: which, when it is the stealing of goods above the value of twelvepence, is called grand larciny; when of goods to that value, or under, is petit larciny: offences, which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larciny in general; and then shall observe the different degrees of punishment, inflicted on it's two several branches.

Simple larciny then is "the felonious taking, and carrying away, of the personal goods of another." This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised tto his present use, seems to be the only offence of this king incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen1, any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt. At present we will examine the nature of theft, or larciny, as laid down in the foregoing definition.

A taking

1. It must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larcity. As if A lends B a horse, and he rides away with him; or, if I send goods by a carrier, and he carnes them away; these are no larcinies2. But if wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcinies3: for here the animus surandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken it's effect. But bare non-delivery shall not of course be intended to arise from a felonious design; since that may happen from a variety of other accidents. Neither by the common law was it larciny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their master's goods, may by writ out of chancery (issued by the advice of the chief justices and chief baron, or any two of them) and proclamation made thereupon, be summoned to appear personally in the court of king's bench, to answer their master's executors in any civil suit for such goods; and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII. c. 7. if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apyrentices, and servants under eighteen years old. But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law4. So if a guest robs his inn or tavern of a piece of plate, it is larciny; for he hath not the possessioni delivered to him, but merely the use5: and so it is declared to be by statute 3 & 4 W. & M. c. 9. if a lodger runs away with the goods from his ready furnished lodging. Under some circumstances also a man maybe guilty of felony in taking his own goods: as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with intent of charge the hundred with the loss according to the statute of Winchester6.

A carrying away

2. There must not only be a taking, but a carrying away: cepit et asportavit was the old law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away. As if a man be leading another's horse out of a close, and be inn, has removed them from his chamber down stairs; these have been adjudged sufficient carrying away, to constitute a larciny7. Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprized before he can make his escape with it; this is larciny8.

Felonious intent

3. This taking, and carrying away, must also be felonious; that is, done animo surandi: or, as the civil law expresses it, lucri causa. This reqquisite, besides excusing those who labour under incapacities of mind or will, (of whom we spoke sufficiently at the entrance of this book9) indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse, without his knowlege, and brings him home again: if a neighbour takes another's plough, that is left in the field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I distrein another's cattel, or fiefe them: all these are misdemesnors and trespasses, but no felonies10. The ordinary discovery of a felonious intent is where the party doth it clandefinely, or being charged with the facts, denies it. But this is by no means the only criterion of criminality: for in cases that may amount to larciny 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, of animum surandi: wherefore they must be left to the due and attentive consideration of the court and jury.

Personal goods of another

4. This felonious taking and carrying away must be of the personal goods of another: for if they are things real, or favour of the realty, larciny 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 larciny could be committed by the rules or 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 immoveable11. 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 larciny) 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 fevers them at one time, whereby the trespass ins completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and comes again at another time, when they are so turned into personalty, and takes them away; it is larciny: and so it is, if the owner, or any one else, has severed them12. And now, by the statute 4 Geo II. c. 32. to steal, or sever with intent to steal, any lead or iron fixed to a house, or in any court or garden thereunto belonging, is made felony, liable to transportation for seven years: and to steal underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to steal or otherwise destroy any turnips or the roots of madder when growing, are by the statutes 43 Eliz. c. 7. 15 Car. II. c. 2. 23. Geo. II. c. 26. and 31 Geo. II. c. 35. punishable criminally, by whipping, small fines, imprisonment, and satisfaction to the party wronged, according to the nature of the offence. Moreover, the stealing by night of any trees, or of any roots, shrubs, or plants to the value of 5s, is by statute 6 Geo. III. c. 36. made felony in the principlas, aiders, and abettors, and in the purchasers thereof knowing the same to be stolen: and by statute 6 Geo. III. c. 48. the stealing of any timber trees therein specified13, and of any root, shrub, or plant, by day or night, is liable to pecuniary penalties for the two first offences, and for the third is constituted a felony liable to transportation for seven years. Stealing are out of mines is also no larciny, upon the same principle of abherence to the freehold; with an exception only to mines of black lead, the stealing of are out of which is felony without benefit of clergy by statute 25 Geo. II. c. 10. Upon nearly the same principle the stealing of writings relating to a real estate is no felony, but a trespass14: because they concern the land, or (according to our technical language) favour of the realty, and are considered as part of it by the law; so that they descend to the heir together with the land which they concern15.

Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larciny might be committed; being of no intrinsic value16, and not importing any property in the possession of the person from whom they are taken. But by the statute 2 Geo. II. c. 25. they are now put upon the same footing, with respect to larcinies, as the money they were meant to secure. And, by statute 7 Geo. III. c. 50. if any officer or servant of the post-office shall secrete, embezzle, or destroy any letter or pacquet, containing any bank note or other valuable paper particularly specified in the act, or shall steal the same out of any letter of pacquet, he shall be guilty of felony without benefit of clergy. Or, if he shall destory any letter or pacquet with which he has received money for the postage, or shall advance the rate of postage on any letter or pacquet sent by the post, and shall secrete the money received by such advancement, he shall be guilty of single felony. Larciny also could not at common law be committed of treasuretrove, or wreck, till seised by the king or him who hath the franchise; for till such seisure no one hath a determinate property therein. But by statute 26 Geo. II. c. 19. plundering, or stealing from, any ship in distress (whether wreck or no wreck) is felony without benefit of clergy: in like manner as, by the civil law17, this inhumanity is also punished in the same degree as the most atrocious theft.

Animals and larceny

Larciny also cannot be committed of such animals, in which there is no property either absolute or qualified; as of beasts that are ferae naturae, and unreclaimed such as deer, hares, and conies, in a forest, chase, or warren; fish in an open river or pond; or wild fowls at their natural liberty18. But if they are reclaimed or 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, larciny may be committedu.And now, by statute 9 Geo. I. c. 22. to kill or steal any deer in a forest, or other place, enclosed; to rob a warren; or to steal fish from a river or pond, being in this last case armed and disguised; these are felonies without benefit of clergy. And by statute 13 Car. II. c. 10. to steal deer in any forest, though uninclosed, is a forfeiture of 20l. for the first offence, and by statute 10 Geo. II. c. 32. seven years transportation for the second offence: which punishment is also inflicted for the fist offence upon such as come to hunt there armed with offensive weapons. Also by statute 5 Geo. III. c. 14. the penalty of transportation for seven years is inflicted on persons stealing or taking fish in any water within a park, paddock, orchard, or yard; and on the receivers, aiders, and abettors: and the like punishment, or whipping, fine, or imprisonment, is provided for the taking or killing of conies20 in open warrens. And a forfeiture of five pounds to the owner of the fishery is made payable by persons taking or destroying (or attempting so to do) any fish in any river or other water within any inclosed ground being private property. Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19. is also felony21. It is also said22, 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. But, of all valuable domestic animals, as horses, and of all animals domitae naturae, which serve for food, as swine, sheep, poulty, and the like alrciny may be committed; and also of the flesh of such as are ferae naturae, when killed23. 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 them24, yet they are not of such estimation, as that the crime of stealing them amounts to larciny25.

Notwithstanding however that no larciny 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 larciny to steal it; and an indictment will lie, for the goods of a person unknown26. In like manner as, among the Romans, the lex Hostilia de furtis provided, that a prosecution for theft might be carried on without the intervention 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) is no felony, unless some of the gravecloths be stolen with it28. Very different from the law of the Franks, which seems to have respected both as equal offences; when it directed that a person, who had dug a corpse out of the ground in order to strip it, should be banished from society, and no one suffered to reflieve his wants, till the relations of the deceased consented to his readmission29.

The punishment of simple larceny

Having thus considered the general nature of simple larciny, I come next to treat of it's punishment. Theft, by the Jewish law, was only punished with a pecuniary fine, and satisfaction to the party injured30. And in the civil law, till some very late constitutions, we never find the punishment capital. The late of Draco at Athens punished it with death: but his laws were said to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct, And so the Attic laws in general continued31; except that once, in a time of dearth, it was made capital to break into a garden, and steal figs: but this law, and the informers against the offence, grew so odious, that from them all malicious informers were stiled sycophants; a name, which we have much perverted from it's original meaning. From these examples, as well as the reason of the ting, many learned and scrupulous men have questioned the propriety, if not lawfulness, of inflicting capital punishment for simple theft32. And certainly the natural punishment for injuries to property seems to be the loss of the offender's own property: which ought to be universally the case, were all men's fortunes equal. But as those, who have no property themselfes, 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: yet how far this corporal punishment ought to extend, is what has occasioned the doubt. Sir Thomas More33, and the marquis Beccaria34, at the distance of more than two centuries, have very sensibly proposed that kind of corporal punishment, which approaches the nearest to a pecuniary satisfaction; viz. a temporary imprisonment, with an obligation to labour, first for the party robbed, and afterwards for the public, in works of the most slavish kind: in order to oblige the offender to repair, by his industry and diligence, the depredations he has committed upon private property and public order. But, notwithstanding all the remonstrances of speculative politicians and moralists, the punishment of theft still continues, throughout the greatest part of Europe, to be capital: and Puffendorf35, together with sir Matthew Halem,are of opinion that this must always be referred to the prudence of the legislature; who are to judge, say they, when crimes are become so enormous as to require such sanguinary restrictions37. Yet both these writers agree, that such punishment should be cautiously inflicted, and never without the utmost necessity.

Our antient 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; as, among their ancestors the Germans, by a stated numer of cattle38. But in the ninth year of Henry the first, this power of redemption was taken away, and all persons guilty of larciny above the value of twelvepence were directed to be hanged; which law continues in force to this day39. For though the inferior species of theft, or petit larciny, is only punished by whipping at common law40, or by statute 4 Geo. I. c. 11. may be extended to transportation for seven years, yet the punishment of grand larciny, or the stealing above the value of twelvepence, (which sum was the standard in the time of king Athelstan, eight hundred years ago) is at common law regularly death. Which, considering the great intermediate alteration in the price or denomination of money, is undoubtedly a very rigorous constitution; and made sir Henry Spelman (above a century since, when money was at twice it's present rate) complain, that while every thing else was risen in it's nominal value, and become dearer, the life of man had continually grown cheaper. It is true, that the mercy of juries will often make them strain a point, and bring in larciny to be under the value of twelvepence, when it is really of much greater value: but this is a kind of pious perjury, and does not at all excuse our common law in this respect from the imputation of severity, but rather strongly confesses, the charge. It is likewise true, that by the merciful extensions of the benefit of clergy by our modern stature law, a person who commits a simple larciny to the value of thirteen pence or thirteen hundred pounds, though guilty of a capital offence, shall be excused the pains of death: but this is only for the first offence. And in many cases of simple larciny the benefit of clergy is taken away by statute: as from horsestealing41; taking woollen cloth from off the tenters, or linen from the place of manufacture; stealing sheep or other cattle specified in the actsu;thefts on navigable rivers above the value of forty shillings; plundering vessels in distress, or that have suffered shipwreck; stealing letters sent by the post42; and also stealing deer, hares, and conies under the peculiar circumstances mentioned in the Waltham black act. Which additional serverity is owing to the great malice and mischief of the theft in some of these instances; and, in others, to the difficulties men would otherwise lie under to preserve those goods, which are so easily carried off. Upon which last principle the Roman law punished more severely than other thieves the abigei, or stealers of cattle43; and the balnearii, or such as stole the cloaths of persons who were washing in the public baths44: both which constitutions seem to be borrowed from the laws of Athens. And so too the antient Goths punished with unrelenting severity thefts of cattle, or of corn that was reaped and left in the field: fuck kind of property (which no human industry can sufficiently guard) being esteemed under the peculiar custody of heaven45. And thus much for the offence of simple larciny.

Compound larceny

Mixed, or compound larciny is such as has all the properties of the former, but is accompanied with one of, or both, the aggravations of a taking from one's housc or person. First therefore of larciny from the house, and then of larciny from the person.

1. Larciny from the house, though it seems (from the considerations mentioned in the preceding chapter46) to have a higher degree of guilt than simple larciny, yet is not at all distinguished from the other at common law47: unless where it is accompanied with the circumstance of breaking the house by night; and then we have seen that it falls under another description, viz. that of burglary. But now by several acts of paliament (the history of which is very ingeniously deduced by a learned modern wrier48, who hath shewn them to have gradually arisen from our improvements in trade and opulence) the benefit of clergy is taken from larcinies committed in an house in almost every instance49. The multiplicity of which acts are apt to create some confusion; but upon comparing them diligently we may collect, that the benefit of clergy is denied upon the following domestic aggravations of larciny; viz. 1. In all larcinies above the value of twelvepence, from a church, or from a dwelling-house, or booth, any person being therein. 2. In all larcinies to the value of 5 s. committed by breaking the dwelling-house, though no person be therein. 3. In all larcinies to the value of 40 s. from a dwelling-house, or it's outhouses, without breaking in, and whether any person be therein or no. 4 In all larcinies to the value of 5 s. from any shop, warehouse50, coachhouse, or stable; whether the same be broken open or not, and whether any person be therein or no. In all these cases, whether happening by day or by night, the benefit of clergy is taken away from the offenders.

Larceny from the person

2. Larciny from the person is either by privately stealing; or by open and violent assault, which is usually called robbery.

The offence of privately stealing from a man's person, as by picking his pocket or the like, without his knowlege, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 14. But then it must be such a larciny, as stands in need of the benefit of clergy, viz. of above the value of twelvepence; else the offender shall not have judgment of death. For the statute creates no new offence; but only takes away the benefit of clergy, which was a matter of grace, and leaves the thief to the regular judgment of the antient law51. This severity (for a most severe law it certainly is) seems to be owing to the ease with which such offences are committed, and the difficulty of property, in the manual occupation or corporal possession of the owner, which was an offence even in a state of nature. And therefore the saccularii, or cutpurses, were more severely punished than common thieves by the Roman and Athenian laws52.

Robbery

Open and violent larciny from the person, or robbery, the rapina of the civilians, is the felonious and forcible taking, from the person of another, of goods or money to any value, by putting him in fear53. 1. There must be a taking, otherwise it is no robbery. A mere attempt to rob was indeed held to be felony, so late as Henry the fourth's time54: but afterwards it was taken to be only a misdemesnor, and punishable with fine and imprisonment; till the statute 7 Geo. II. c. 21. which makes it a felony transportable for seven years. If the thief, having once taken a purse, returns it, still it is a robbery: and so it is whether the taking be strictly from the person of another, or in his presence only; as where a robber by menaces and violence puts a man in fear, and drives away his sheep of his cattle before his face55. 2. It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery56. 3. Lastly, the taking must be by force, or a previous putting in fear; which makes the violation of the person more atrocious than privately stealing. For if one privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent58: neither is it capital, as privately stealing, being under the value of twelvepence. Yet this putting in fear does not imply, that any great degree of terror or affright in the party robbed is necessary to constitute a robbery: it is sufficient that so much force, or threatening by work or gestrue, be used, as might create an apprehension of danger, or oblige a man to part with his property without or against his consent59. Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery60. So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted61, whether the forcing a higler, or other chapman, to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery.

This species of larciny is debarred of the benefit of clergy by statute 23 Hen. VIII. c. 1. and other subsequent statutes; not indeed in general, but only when committed in or near the king's highway. A robbery therefore in a distant field, or footpath, was not punished with death62; but was open to the benefit of clergy, till the statute 3 & 4 W. & M. c. 9. which takes away clergy from robbery wheresoever committed.

Malicious mischief

II. Malicious mischief, or damage, is the next species of injury to private property, which the law considers as a public crime. This is such as is done, not animo surandi, or with an intent of gaining by another's loss; which is some, though a weak, excuse: but either out of a spirit of wanton cruelty, or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property, of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree. Of these I shall extract the contents in order of time.

And, first, by statute 22 Hen. VIII. c. 11. perversely and maliciously to cut down or destroy the powdike, in the sens of Norfolk and Ely, is felony. By statute 43 Eliz. c. 13. (for preventing rapine on the northern borders) to burn any barn or stack of corn or grain; or to pery, or make spoil, of the persons or goods of the subject upon deadly feud, in the four northern counties of Northumberland, Westmorland, Cumberland, and Durham; or to give or take any money or contribution, there called blackmail, to secure such goods from rapine; is felony without benefit of clergy. By statute 22 & 23 Car. II. c. 7. to burn any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; or maliciously, unlawfully, and willingly to kill any horses, sheep, or other cattle, in the night time, is felony; but the offender may make his election to be transported for seven years: and to main or hurt such cattle is a trespass, for which treble damages shall be recovered. By statute 1 Ann. st. 2. c. 9. captais and mariners belonging to ships, and destroying the same, to the prejudice of the owners, (and by 4 Geo. I, c. 48. maliciously to set on fire any underwood, wood, or coppice, is made single felony. By statute 6 Geo. I. c. 23. the wilful and malicious traring, cutting, spoiling, burning, or defacing of the garments or cloaths of any person passing in the streets or highways, is felony. This was occasioned by the insolence of certain weavers and others; who, upon the introduction of some Indian fashions prejudicial to their own manufactures, made it their practice to cast aqua fortis in the streets upon such as wore them. By statute 9 Geo. I. c. 22. commonly called the Waltham black act, occasioned by the devastations committed in Epping forest, near Waltham inn Essex, by persons in disguise or with their faces blacked; (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the first committed great outrages on the borders of England and Scotland63;) by this black act, I say, which has in part been mentioned under the several heads of riots, mayhem, and larciny, it is farther enacted, that unlawfully and maliciously to set fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or to break down the head of any fishpond, whereby the fish shall be lost; or to kill, maim, or wound any cattle; or to cut down, or destroy, or platation, for ornament, shelter, or profit; all these malicious acts are felonies without benefit of clergy: and the hundred shall be chargeable for the damages, unless the offender be convicted. In like manner by the Roman law to cut down trees, and especially vines, was punished in the same degree as robbery64. By statutes 6 Geo. II. c. 37. and 10 Geo. II. c. 32. it is also made felony without the benefit of clergy, maliciously to cut down any river of sea bank, whereby lands may be overflowed; or to cut any hop-binds growing in a plantation of hops, or wilfully and maliciously to let fire to any mine or delph of coal. By statute 28 Geo. II. c. 19 to set fire to any goss, furze, or fern, growing in any forest or chase, is subject to a fine of five pounds. And by statute 6 Geo. III. c. 36 & 48. wilfully to spoil or destroy any timber or other trees, roots, shrubs, or plants, is for the two first offences liable to pecuniary penalties; and for the third if in the day time, and even for the first if at night, the offender shall be guilty of felony, and liable to transportation for seven years. And these are the punishments of malicious mischief.

Forgery

III. Forgery, or the crimen falsi, is an offence, which was punished by the civil law with deportation or banishment, and sometimes with death65. It may with us be defined (at common law) to be, "the fraudulent making or alteration of a writing to the prejudice of another man's right:" for which the offender may suffer fine, imprisonment, and pillory. And also by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general. I shall mention the principal instances.

By statute 5 Eliz. c. 14. 50 forge or make, or knowingly to publish or give in evidence, any forged deed, court roll, or will, with intent to affect the right of real property, either freehold or copyhold, is punished by aforfeiture to the party grieved of double costs and damages; by standing in the pillory, and having both his ears cut off, and his nostrils slit, and feared; by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment. For any forgery relating to a term of years, or annuity, bond, obligation, acquittance, release, or discharge of any debt or demand of any personal chattels, the same forfeiture is given to the party grieved; and on the offender is inflicted the pillory, loss of one of his ears, and half a year's imprisonment: the second offence in both cases being felony without benefit of clergy.

Besides this general act, a multitude of others, since the revolution, (when paper credit was first established) have inflicted capital punishment on the forging or altering of bank bills or notes, or other securieties66; of bills of credit issued from the exchequer67; of south sea bonds, & c68; of lottery orders69; of army or nany debenturese; of East India bonds71; of writings under seal of the London, or royal exchange, assurance72; of a letter of attorney or other power to receive or transfer stock or annuities, or for the personating a proprietor thereof, to receive or transfer such annuities, stock, or dividents73: to which ma be added, though not strictly reducible to this head, the counterfeiting of mediterranean passes, under the hands of the lords of the admiralty, to protect one from the piratical states of barbary74; the forging or imitating any stamps to defraud the stamp office75; and the forging any marriage register or licence76: all which are by distinct acts of parliament made felonies without benefit of clergy. And by statute 31 Geo. II. c. 32. forging or counterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offences of the like tendency, are made felony, but not without benefit of clergy.

There are also two other general laws, with regard to forgery; the one 2 Geo. II. c. 35. whereby the first offence in forging or publishing any forged deed, will, writing obligatory, bill of exchange, promissory note, indorsement or affirgnment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person, is made felony without benefit of clergy. And by statute 7 Geo. II. c. 22. it is equally penal to forge or utter a counterfeit acceptance of a bill of exchange, or the number of any accountable receipt for any note, bill, or any other security for money; or any warrant or order for the payment of money, or delivery of goods. So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived, wherein forgery, that tends to defraud, whether in the name of a real or fictitious person77, is not made a capital crime.

These are the principal infringements of the rights of property; which were the last species of offences against individuals or private subjects, which the method of our distribution has led us to consider. We have before examined the nature of all offences against the public, or commonwealth; against the king or supreme magistrate, the father and protector of that community; against the universal law of all civilized nations; together with some of the more atrocious offences, of publicly pernicious consequence, against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemesnors, with the punishment annexed to each, that are cognizable by the laws of England.

The original and more to read

Blackstone's notes

  1. 1. See Vol. II. pag. 8, & c.
  2. 2. 1 Hal. P. C. 504.
  3. 3. 3 Inst. 107.
  4. 4. 1 Hal. P. C. 506.
  5. 5. 1 Hawk. P. C. 90.
  6. 6. Foster. 123, 124.
  7. 7. 3 Inst. 108, 109.
  8. 8. 1 Hawk. P. C. 93.iInst. 4. 1. 1.
  9. 9. See pag. 20.
  10. 10. 1 Hal. P. C. 509.
  11. 11. See Vol. II. pag. 16.
  12. 12. 5 Inst. 109. 1 Hal. P. C. 510.
  13. 13. Oak, beech, chasnut, walnut, ash, elm, cedar, sir, asp, lime, sveaimore, and Birth.
  14. 14. 1 Hal. P. C. 510. Stra. 1137.
  15. 15. See Vol. II. pag. 438.
  16. 16. 8 Rep. 33.
  17. 17. Cab. 6. 2. 18.
  18. 18. 1 Hal. P. C. Fost. 336.
  19. 19. 1 Hawk. P. C. 94. 1. Hal. P. C. 511.
  20. 20. See stat. 22 & 23 Car. II. c. 25.
  21. 21. 3 Inst. 98.
  22. 22. Dalt. Just. C. 156.
  23. 23. 1 Hal. P. C. 511.
  24. 24. See Vol. II. pag. 393.
  25. 25. 1 Hal. P. C. 512.
  26. 26. Ibid.
  27. 27. Gravin. L. 3. §. 106.
  28. 28. See Vol. II. pag. 429.
  29. 29. Montesq. Sp. L. b. 30. ch. 19.
  30. 30. Exod. c. xxii.
  31. 31. Petit. LL. Attic. l. 7. tit. 5.
  32. 32. Est enim ad vindicanda furta nimis atrox, nec tamen ad refraenanda sufficiens: quippe neque furtum simplex tam ingens facinus est, ut capite debeat plecti; neque ulla poena est tanta, nt ab latrociniis cohibeat eos, qui nullam aliam artem quaerendi victus babent. (Mori Utopia. Edit. Glasg. 1750. pag. 21.) – Denique, cum lex Mosaica, Quanquam inclemens et aspera, tamen pecunia furtum, haud motce, mulctavit; ne putemus Deum, in nova lege clementiae qua pater imperat filiis, majorem indulsisse nobis invicem saeviendi licentiam. Haec sunt cur non licere putem: quam vero sit absurdum, atque etiam perniciosum reipublicae, surem atque homicideam ex aequo puniri, nemo est (opinor) qui nesciat. (Ibid. 39.)
  33. 33. Utop. pag. 42.
  34. 34. ch. 22.
  35. 35. L. of N. b. 8. c. 3.
  36. 36. 1 Hal. P. C. 13.
  37. 37. See pag. 9.
  38. 38. Tac. de mor. Germ. c. 12.
  39. 39. 1 Hal. P. C. 12. 3 Inst. 53.
  40. 40. 3 Inst. 218.
  41. 41. Stat. 1 Edw. VL. C. 12. 2. & 3. Edw. VI.
  42. 42. Stat. 7. Geo. III. c. 50.
  43. 43. Stat. 14 Geo. II. c. 6. 15 Geo. II. c. 34.
  44. 44. Ibid. t. 17.
  45. 45. Stiernh. de jure Goth. l. 3. c. 5.
  46. 46. See pag. 223.
  47. 47. 1 Hawk. P. C. 98.
  48. 48. Barr. 375. & c.
  49. 49. Stat. 23 Hen. VIII. c. 1. 25. Hen. VIII. c. 3. 1 Edw. VI. c. 12. 5. & Edw. VI. c. 9. 10 & 11 W. III. c. 23. 12. Ann. c. 7.
  50. 50. See Foster. 78, 79. Barr. 379.
  51. 51. 1 Hawk. P. C. 98.
  52. 52. Ff. 47. 11. 7. Pott. Antiqu. l. 1. c. 26.
  53. 53. 1 Hawk. P. C. 95.
  54. 54. 1 Hal. P. C. 532.
  55. 55. 1 Hal. P. C. 533.
  56. 56. 1 Hawk. P. C. 97.
  57. 57. Ff. 4. 2. 14. §. 12.
  58. 58. 1 Hal. P. C. 534.
  59. 59. Fost. 128.
  60. 60. 1 Hawk. P. C. 96.
  61. 61. Ibid. 97.
  62. 62. 1 Hal. P. C. 535.
  63. 63. 3 Inst. 197.
  64. 64. Ff. 47. 7. 2.
  65. 65. Inst. 4. 18. 7.
  66. 66. Stat. 7 & 8 W. III. c. 31. 8 & 9. III. c. 20. 11 Geo. I. c. 9. 12 Geo. I. c. 32. 15 Geo. II. c. 13.
  67. 67. See the several acts for issuing them.
  68. 68. Stat. 9 Ann. c. 21. 6 Geo. I. c. 4. & 11. 12 Geo. I. c. 32.
  69. 69. See the several acts for the lotteries.
  70. 70. Stat. 5. Geo. 1. c. 14. 9 Geo. I. c. 5.
  71. 71. Stat. 12 Geo. 1. c. 32.
  72. 72. Stat. 6. Geo. 1. c. 18.
  73. 73. Stat. 8 Geo. I. c. 22. 9 Geo. 1. c. 12.
  74. 74. Stat. 4. Geo. II. c. 18.
  75. 75. See the several stamp acts.
  76. 76. Stat. 26 Geo. 11 c. 33.
  77. 77. Fost. 116, & c.