mesnors and trespasses, but no felonies'. (6) 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 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, or animum furandi: wherefore they must be left to the due and attentive consideration of the court and jury.

4. 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, 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 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 ab[233]solutely 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 larciny,) being

11 Hal. P. C. 509.

m See Vol. II. p. 16.

(6) But it must be understood, that if the arrear of rent, or claim of right be used as a mere colour to a felonious taking, which, though hard, is not impossible to be proved, so far from making the act innocent, they are the highest aggravation of the offence. A strong instance of this was the case of two persons, who procured possession of a house by a fraudulent ejectment, and arrested the tenant, and then rifled the house. This was done under an allegation that she was the tenant of one of them, and that rent was in arrear. All this was false; and the jury were directed, that if they believed that the prisoners had done all this with an intent to rob, they ought to find them guilty. This was done, and they were executed. Farr's case, Kel. Rep. 45.

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 severs 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 take them away; it is larceny: and so it is, if the owner, or any one else, has severed them ". And now, by the statute 4 Geo. II. c. 32. to steal, or rip, cut, or break, with intent to steal, any lead, or iron bar, rail, gate, or palisado, fixed to a dwelling-house or out-house, or in any court or garden thereunto belonging, or to any other building, is made felony, liable to transportation for seven years; (7) and to steal, damage, or destroy underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, pease, or carrots, or the roots of madder when growing, are punishable criminally, by whipping, small

n 3 Inst. 109. 1 Hal. P. C. 510.

o Stat. 43 Eliz. c. 7. 15 Car. II. c.2. 31 Geo. II. c. 35. 6 Geo. III. c. 48.

9 Geo. III. c.41. 13 Geo. III. c. 32. 13 Geo. III. c. 33.

(7) In a case where the lead stolen was fixed to a church, it was held that this was comprehended under the words "any other building," which were not to be confined in construction to the same sort of buildings only as those previously specified in the act. Lord Mansfield said, there was a great difference between bringing a case within the equity of an act, where it was not within the words, and taking a case out of the meaning of an act by an equitable construction, where it was within the words. That the first ought never to be done in a criminal case, neither ought the second, if the case were in equal mischief with others clearly within the meaning of the act. That here the words of the act comprised the case in question, and churches were equally within the mischief with dwelling-houses. R. v. Parker, East's P. C. c. 16. s. 31.

This act has been extended by the 21 G. 3. c. 68. to copper, brass, and bell-metal, and to iron rails or fencing in any square, court, or other place. Instead of transportation, the court may sentence the party to imprisonment with hard labour for any term not exceeding three years nor less than one, and public whipping not more than three times; all aiders, abettors, and those who buy or receive the things stolen, knowing them to be such, are made liable to the same punishment, and may be tried before conviction of the prineipal.

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 principals, aiders, and abettors, and in the purchasers thereof, knowing the same to be stolen: and by statutes 6 Geo. III. c. 48. and 13 Geo. III. c. 33. the stealing of any [234] timber trees therein specified, 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 ore out of mines is also no larceny, upon the same principle of adherence to the freehold; with an exception only as to mines of black lead, the stealing of ore out of which, or entering the same with intent to steal, is felony, punishable with imprisonment and whipping, or transportation not exceeding seven years; and to escape from such imprisonment, or return from such transportation, is felony without benefit of clergy, by statute 25 Geo. II. c.10. (8) Upon nearly the same principle the stealing of writings relating to a real estate is no felony; but a trespass because they concern the land, or (according to our technical language) savour 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 concern".

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 values, and not importing any property in 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

(8) By the 39 & 40 G. 3. c. 77., summary punishments, increasing with the repetition of the offences, are imposed upon the stealing of coal, culm, coke, wood, iron, ropes, or leather, not exceeding five shillings in value, and from certain specified places. This act does not make any new felony, but subjects a common law felony to summary punishment.

respect to larcinies, as the money they were meant to secure (9). By statute 15 Geo. II. c. 13. officers or servants of the bank of England, secreting or embezzling any note, bill, warrant, bond, deed, security, money, or effects intrusted with them or with the company, are guilty of felony without benefit of clergy. The same is enacted by statute 24 Geo. II. c. 11. with respect to officers and servants of the South-sea company. 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 or pacquet, he shall be guilty of felony without benefit of clergy. Or, if he shall destroy any letter or pacquet [ 235 ] 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 (10). Larciny also could not at common law be committed of treasuretrove, or wreck, till seized by the king or him who hath the franchise, for till such seizure no one hath a determinate property therein (11). But, by statute 26 Geo. II. c. 19. plun

(9) The principle and the provisions of this act are extended by the 5G.4. c.24. to the receivers of such securities. See ante, p. 133. n.10.

(10) By the same statute (7G.3. c. 50.) it is made a capital felony in any person to rob a mail of any letter or pacquet, or to steal any letter or pacquet out of any mail, or bag, or post-office, although such robbery or stealing shall not appear to have been from the person, or on the highway, or in any dwelling-house or out-house, and although no person was put in fear by it. This statute, it has been observed, does not make the stealing let. ters generally a capital offence, but only stealing them from certain specified places: this is a definite act, local in its nature, and cannot be extended by construction to a new taking in every county into which the thing is conveyed, as it would on general principles in the case of simple larciny. And therefore where a prisoner had stolen the letters out of the Bristol mail somewhere in Wilts or Berks, and did not leave the coach till it arrived at Hyde Park Corner, he was held to have been improperly tried and convicted at the Old Bailey; for the offence was not committed in Middlesex, but was complete in one of those two former counties. East's P. C. c. 16. s.39. Thomas's case. See post, pp.304.305.

(11) There seems to be some incorrectness in the generality of this position, as applied to treasure-trove, waifs, &c.; for though the lord has no determinate property in them till seizure, the true owner, though unknown, has still a property in them. Where, indeed, the circumstances of the case furnish a presumption of an intended dereliction of such property on the

part

dering 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 law, this inhumanity is punished in the same degree as the most atrocious theft.

LARCINY also cannot be committed of 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 liberty t. 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 committed ". And now, by statute 9 Geo. I. c. 22. to hunt, wound, kill, or steal any deer; to rob a warren; or to steal fish from a river or pond (being in these cases armed and disguised); also to hunt, wound, kill, or steal any deer, in the king's forests or chases inclosed, or in any other inclosed place where deer have been usually kept; or by gift or promise of reward to procure any person to join them in such unlawful act; all these are felonies without benefit of clergy. And the statute 16 Geo. III. c. 30. enacts, that every unauthorized person, hist aiders and abettors, who shall course, hunt, shoot at, or otherwise attempt to kill, wound, or destroy any red or fallow deer in any forest, chase, purlieu, or antient walk, or in any inclosed park, paddock, wood, or other ground, where deer are usually [236] kept, shall forfeit the sum of 201., or for every deer actually killed, wounded, destroyed, taken in any toyl or snare, or carried away, the sum of 30%., or double those sums in case the offender be a keeper: and upon a second offence, (whether of the same or a different species,) shall be guilty of felony, and transportable for seven years. Which latter punishment is likewise inflicted on all persons armed with offensive weapons, who shall come into such places with an intent to commit any of the said offences, and shall there unu 1 Hawk. P. C. c.33. § 41. 1 Hal. P.C. 511.

Cod. 6.2. 18.

t1 Hal. P. C.511. Fost. 366.

part of the owner, there the rule holds good, because the taking is not against his will. East's P.C. c. 16. s. 40.