A laudable, though, perhaps, an improvable degree of accuracy has been attained by the common law, in its descriptions of crimes and punishments. On this subject, I now enter into a particular detail. To the description of each crime, I shall subjoin that of its punishment; and shall mention, as I proceed, the alterations introduced by the constitution and laws of the United States and of Pennsylvania. The laws of other nations will frequently be considered in a comparative view.1 [Forfeiture of property for crimes is very rare in the United States, and the constitutional provision (Art. 3, § 3, ch. 2)-"That no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted"-marks the boundary and extent of forfeitures. During the civil war of 1861-5, the law of forfeiture was applied and estates confiscated; but it was held that though the estate of the owner was a fee-simple, the forfeiture could only affect his life interest and power of alienation, and did not cut off his heirs. Bigelow v. Forrest, 9 Wall. U, S. 339] CHAPTER II. OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO THEIR PROPERTY. EVERY crime includes an injury: every injury includes a violation of a right. The investigations, which we have hitherto made concerning rights, will direct our course in that which we are now to make concerning wrongs. I assumed, though, for the reasons assigned, I have not yet proved, that a man has a right to his property. I begin my enumeration of crimes with those which infringe this right. I have observed that every injurious violation of our rights, natural and civil, absolute and relative, may lay the foundation of a crime.1 I did not mean, however, to insinuate, by this observation, that every injury ought to be considered by the law in a criminal point of view. For every injury let reparation be made by the civil code, in proportion to the loss sustained; but let those injuries alone, which become formidable to society by their intrinsic atrocity, or by their dangerous example, be resented by society and prosecuted as crimes. Agreeably to this principle, a private injury done without actual violence, cannot be prosecuted by an indictment.2 It is not considered as affecting the community. This principle, however, seems to have gained its full establishment only by the liberality of modern times. It 1 Ante, p. 359. 2 Burr. 1703-1733. is remarkable, that a law made on this liberal principle, in an early period of Pennsylvania, was repealed by the king in council. But this is not the only instance, in which the improving spirit of our legislation has been at first checked, but has received subsequent countenance by late decisions in England. With the enjoyment and security of property, the security and the authenticity of its evidences is intimately connected. For this reason, dangerous and deliberate attacks upon that security or authenticity are crimes by the common law. Forgery, at the common law, may be described "the fraudulent making or alteration of a writing, to the prejudice of another man's right." For this crime, the punishment of fine, imprisonment, and pillory may, by the common law, be inflicted on the criminal.2 Among the Egyptians, public notaries, who forged false deeds, or who suppressed or added any thing to the writings, which they had received to copy, were condemned to lose both their hands. They were punished in that part, which had been particularly instrumental in the crime. In Lorrain, so long ago as the fourteenth century, forgery was punished with banishment.4 The first act of parliament, which appears against it, was made in the reign of Henry the Fifth. This act punishes it by satisfaction to the party injured, and by a fine to the king. But this first statute has been the fruitful mother of a thousand more. True it is, that the increase of commerce, the invention of negotiable and even current paper, the institution of national funds, and the many complex securities and evidences of real property have justly rendered the crime of forgery, beside its intrinsic baseness-for it is a species of the crimen falsi-a considera 1 R. O. Book A. vol. 1, p. 14. 24 Bl. Com. 245. 1 Gog. Or. L. 59. + Bar. on St. 380. 5 Id. ib. tion of great importance and extent. But is it equally true, that all this is a sufficient reason, why, in almost all cases possible to be conceived, every forgery, which tends to defraud, either in the name of a real or of a fictitious person, should be made, as in England it is now made, a capital crime? "Pluet super populum laqueos." There is a learned civilian, says my Lord Bacon, who expounds this curse of the prophet, of a multitude of penal laws; which are worse than showers of hail or tempest upon cattle; for they fall upon men.2 By a law of Pennsylvania, whoever shall forge, deface, corrupt, or embezzle deeds and other instruments of writ ing, shall forfeit double the value of the damage sustained, one half of which shall go to the party injured; and shall in the pillory, or otherwise, be disgraced as a false person.3 By a law of the United States it is enacted, that if any person shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any certificate, indent, or other public security of the United States; or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment or for sale, any such false, forged, altered, or counterfeited certificate, indent, or other public security, with intent to defraud any person, knowing the same to be false, altered, forged, or counterfeited, and shall be thereof convicted; every such person shall suffer death.4 To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare or fabricare. And this is properly 14 Bl. Com. 247. 8 1 Laws Penn. 5. 24 Ld. Bac. 3. 4 Laws U. S. 1 cong. 2 sess. c. 9, s. 14. taken when the act is done in the name of another person.1 66 Falsely to make," says he, are larger words than "to forge;" for one may make a false writing within this act (he speaks of the 5th Eliz. c. 14, in which, as to the present point, the words used are substantially the same with the words of the law now under consideration), name of another, nor his As if a man make a true though it be not forged in the seal nor hand counterfeited. deed of feoffment under his hand and seal of the manor of Dale unto B.; and B. or some other rase out D and put in S., and then when the true deed was of the manor of Dale, now it is falsely altered and made the manor of Sale; this is a false writing within the purview of the statute.2 Another crime against the right of property is larceny. Larceny is described-the felonious and fraudulent taking and carrying away of the personal goods of another. The Mirror describes the crime as committed, "treacherousement." 4 More indictments are to be found for larceny, among the records of England, than for all the other crimes known to the law. It is computed that nineteen criminals out of twenty are prosecuted for this crime.5 According as the opinions and sentiments of men concerning property have been more or less correct, their notions concerning larceny have been more or less pure. Indeed in the nature of things, this must be the case. Theft, or the secret acquisition of property, was, at Sparta, thought neither a crime nor a shame. Why? Because at Sparta, Lycurgus had established a community of goods; and when one got hold of a larger share than his neighbors, especially among the young people, it was considered merely as an instance of juvenile address, and as indicating a superior degree of future dexterity. The senatorial order at Rome, we are told, enjoyed the distinguished 3 Id. 107, 4 Bl. Com. 230. 13 Ins. 169. + C. 1, s. 10, 2 Reev. 42. 23 Ins. 169. 5 Bar. on St. 443. |