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I have expressed the more anxiety on this subject of burglary, because the selfish sensibilities of mankind
be too apt to excite an incautious indignation against the persons accused thereof; and because the lists of capital cxecutions shew it in fact to be peculiarly fatal to Englishmen.
If the existence of those who are convicted of this offence be really dangerous to the safety of society, it is certainly both justifiable and proper to punish them with death ; but this criterion of severity ought most strictly to be regarded.
It cannot be too strongly inculcated, that capital punishments, when unnecessary, are inhuman, and immoral; an observation very applicable to the punishment, inflicted by our laws on the crimes, which I am next to mention.
Private larceny from the person, of any money or goods above the value of twelve perice, is deprived of the benefit of clergy by the 8th. Hiliz. c. 4*, “ that the fraternity or brotherbood of cutpurses and pickpockets" (as they are described in the preamble) “ may not continue to live idle by the secret spoil of good and true subjects.” A public and well regulated work-house would have been a more proper remedy for this offence. “The punishment of robbery, not accompanied by violence, should” (says Beccaria).“ be pecuniary; he, who endeavours to enrich himself by the property of others, should be deprived of part of his own. But this crime, alas! is commonly the effect of misery and despair ; the crime of that unhappy part of mankind, to whom the right of exclusive property hath left but a bare existence.” It would be absurd then to extort pecuniary satisfaction from those, who are already struggling in the extremity of want; but there would be
* The reason assigned by L. C. J. Kelyng for the framing of this statute is not satisfactory. See Kel. p. 70.
no absurdity in the infliction of temporary imprisonments, with compulsion to labour ; a mode of punishment, which, by inducing a habit of industry, and by the effects of that habit, would be equally beneficial to the criminal and the public.
Larceny from the house, whether privily committed without violence, or openly in the day time, and therefore in neither case amounting to burglary, is, nevertheless, by the laws of England, made capitally penal in almost every instance ; and this hy a multiplicity of statutes, so complicated in their limitations, and so intricate in their distinctions, that it would be painful, on many accounts, to attempt the detail of them. It is a melancholy trutlı, but it may, without exaggeration, be asscrted, that, exclusive of those who are obliged by their profession to be conversant in the niceties of the law, there are oot ten subjects in England, who have any clear perception of the several sanguinary restrictions, to which, on this point, they are made liable.
A modern writer, whose book is peculiarly calculated for the general benefit of mankind, hath, by a diligent collation of the statutes to which I allude, recluced this chaos to some degree of order. I shall transcribe froin his account, that the benefit of clergy is now denied upon the following supposed aggravations of larceny*; viz. “in all larcenies above the value of twelve pence from a church, or from a dwelling. house, or booth, any person being therein ; in all larcenies, to the value of five shillings, committed by breaking the dwelling-house, though no person be therein ; in all larcenies to the value of forty shillings from a dwelling-house, or its outhouses, without breaking in, and whether any person be therein or no; and in all larcenies to the value of five-shillings frəm any shop, warehouse, coach house, or stable, whether the
* Commentaries, B. iv. 220.
sume 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."
These severities have, with great plausibility, been ascribed 4 to the increasing opulence of the kingdom; and indeed there seems sufficient reason to believe, that sanguinary laws are the probable consequence of national prosperity. Sensibility sleeps in the lap of luxury; and the legislat r is contented to secure his own selfish enjoyments, by subjecting his fellow: citizens to the miseries of a dungeon, and the horrors of an ignominious death. Still, however, he feels a tacit disapprobation of the laws, which he hath enacted ; and even, when injureil, hesitates to bring the offender to justice. The knows, that the punishment is disproportionate to the offence; or, ai least, if humanity beobliterated by interest, he foresees, that the punisliment cannot be inflicted without raising the indignation of society against the accuser. The delinquent therefore is discharged without prosecution ; be repeats the crime, under the expectation of repeated mercy ; he becomes gradually familiar with dishonesty ; and, at length, falls a victim to that preposterolis severity of the law, which hath so long been the subject of his mockery. It is a property inseparable from harsh laws, that they are neither regular, nor expeditious in their execution ; consequently, that they flatter the hope of impunity, and, equally injurious to the society and to the criminal, tend to the fatal multiplication both of crimes and of punishments.
* Stat, 23 Hen. VIII. C. I. 25 IIen. VIII. c. 3. 1 Edw. VI. c. 12. 5 and 6 Edw. VI.
39 Eliz. c. 15. 3 and 4 W. and M. c. 9 10 and 11 W. III. c. 23. 12 Ann.c. 7.
— Observations on the ancient statutes, p. 375.
In fact, upon trials of larcenies so limited, it is commonly found to be the chief anxiety both of judges and of jurors, to reduce the crime below its real predicament, by reducing the conviction below the value affixed by law. Such an anxiety is the natural consequence of laws, which, by an absurd distinction, make a trivial difference between two sums the cri. terion of a capital crime; and enact, that a penny more or less shall be equivalent to the life of a man.
Forgery, which is defined to be the fradulent making, or alteration, of a writing, with intent to prejudice the right of another, is also a crime against property.
It appears to have been a species of the crimen falsi among the Romans; but it is rarely mentioned by them, or in the laws of other ancient nations; and the reason is obvious.
The increase of modern riches, the invention of paper, the many complex securities, and representations of property, the institution of national funds, and rules of written evidence, have all contributed to render forgery a consideration of great extent and importance. The offender, by 5 Eliz. c. 14, is punished with forfeiture to the party aggrieved, of double costs and damages; with standing in the pillory, and having both his ears cut off, and his nostrils slit, and seared; with forfeiture to the crown of the profits of his lands, and with perpetual imprisonment. I have cited this statute, which extends only to certain forgeries therein described, merely as proper to be repealed. At present, “the imitation of stamps in order to defraud the stamp office; the ante. dating of a deed of conveyance in order to over-reach a former dieed; an alteration in the name and description of the premises conveyed, or in the sum of money secured by bond or other deed, or in the limitations of an estate intended to pass ; all these acts, and others of the like nature, tending to establish a false and fraudulent title to property, whether in the name
of a real or fictitious person, are forgeries *: and there is hardly a case of this kind, possible to be conceived and describ. ed, which hath not, in the course of the present century, been made a capital crime. The statutes for that purpose are innumerable; for, exclusive of many general provisions, it is become usual, upon the issuing of new bills of credit, lottery-orders, army-chebentures, &c. to add a special clause of forgery relative to the subject then in question. Here,
therefore, if any wherc, may be applied the observation, Pluit : super populum laqueos legum accumulatio +.
There is also a great variety of injuries against private property, which are in no degree fraudulent, but merely malicious; under this hcad the crime of Arson, which is capitally punished, is of the blackest dye, because destructive both of life and property. It hath, however, been thought expedient by the English legislature, to extend the same degree of severity to many mischiefs of very inferior criminality. Such are the offences of persons destroying turnpike gates upon roads, or posts, rails, or other fence, or fences, belonging to such turnpike gates, or the sluices, flood-gates, or other works of navigable rivers, of persons cutting any hopbinds growing in a plantation of hops ; breaking down the head or mound of any fish-pond, whereby the fish are lost and destroyed * ; killing, maiming, or wounding any cattle ; such also is the
* It is also a felony, without benefit of clergy, to make a false entry in a marriage register; to alter it when made; to forge or i counterfeit such entıy, or a marriage licence, or to aid and abet such
forgery ; to utter the same as true knowing it to be counterfeit; or to destroy, or procure the destruction of any register-book of
marriages, or any part of such register-book, with intent to avoid I any marriage. 26 Geo. II. c. 33. § 16.
+ De Angm. Scient.
Stat. 9 Geo. I. c. 22.