years, if that ulterior felony is actually committed1; but (2) only for seven years, where nothing more is proved than that the breaking and entering were effected with the intent to commit some felony. A breaking out will suffice in the first of these two forms, but not in the latter. In either case, instead of penal servitude, imprisonment for not more than two years may be imposed, with or without hard labour.

We have seen that the definition of burglary includes a sacrilegious form, in which the place broken into at night is a church. Modern enactments have, in addition, created a statutory form of sacrilege which differs from that just now mentioned, (1) in being irrespective of the hour of the day, and (2) in extending to other places of worship besides those of the established religion. For, under provisions that are now consolidated in the Larceny Act, 1861, it is a felony, punishable with penal servitude for life3, to break and enter and commit a felony in-or to enter and commit a felony in and then break out of a church or chapel or meeting-house. And it is also a felony, but punishable with only seven years' penal servitude, to break and enter such a place with the intention of committing a felony, though without accomplishing that intention. In either case, instead of penal servitude, imprisonment for not more than two years, with or without hard labour, may be imposed.

It will readily be observed that the definitions of both burglary and housebreaking are wide enough to cover, along with acts of heinous guilt, others of a very trivial character. In 1801, Andrew Branning, a boy of thirteen (to whom three witnesses gave a good character) was sentenced to death for burglary, in having, after sunset but before closing-time, broken a pane of glass in a shop window and put his hand through the hole, and so stolen a spoon that lay inside. And

124 and 25 Vict. c. 96, s. 56 (following 7 and 8 Geo. IV. c. 29, s. 15). 2 Ibid. 8. 57. 3 Ibid. s. 50. • Ibid. s. 57. Old Bailey Sessions Papers, LXXVIII. 104.

in 1833 a boy of nine was sentenced to death for housebreaking, in having, during the day-time, pushed a stick through the paper which patched a broken pane in a shop window, and put his hand through the hole, and so stolen two pennyworth of paints that lay inside. The latter boy, however, was not executed; and probably Branning was not.

CHAPTER XIII.

LARCENY.

1. HISTORICAL

WE now pass from the offences which consist in destroying or damaging a man's property, to those which consist in depriving him of the enjoyment of it, though probably leaving the property itself uninjured. Of such offences the most ancient in English law is Larceny'. The rules relating to it can be traced back through a history of several centuries; and they have now become so complex as to be scarcely intelligible without a knowledge of their historical develop

ment.

Some seventeen hundred years ago, the jurist Paulus elaborated for Roman law a definition of the offence of Theft (furtum); which subsequently received legislative approval from Justinian. Bracton, more than a thousand years afterwards, embodied this definition, with some verbal alteration, in his account of English law as it then stood, in Henry III.'s reign. His words are: "Contrectatio rei alienae fraudulenta, cum animo furandi, invito illo domino cujus res illa fuerit?." ("The fraudulent dealing with another man's property against his will, with an intention of stealing it.") Bracton thus retains the wide Roman idea of theft, as including any kind of dealings (contrectatio) by which a dishonest appropriation could be effected. But it would seem that, in so doing,

1 Stephen, Hist. Cr. Law, 11. 121–176; Dig. Cr. Law, Arts. 304–334. 2 Bracton, I. 32. 1. The words of Paulus had been "Contrectatio rei fraudulosa, lucri faciendi gratia, vel ipsius rei vel etiam usus ejus possessionisve." Digest, XLVII. 2. 1, 3.

he greatly exaggerated the comprehensiveness of the English idea of theft. Here, as in all Germanic nations, that idea was too crude to go beyond punishing such dishonest dealings as took the "violent and unmistakeable form of a change of possession." This narrow conception was subsequently narrowed still further by various subtleties which were introduced by judicial decision. Some of these limitations would seem to us unaccountable, if we did not know that they had been inspired by motives of humanity. The desire of avoiding capital punishment-and in later times that of restricting the number of offences in which, by the old procedure in trials for felony, the accused person was denied the support of counsel and witnesses-led our mediaval judges to invent ingenious reasons for depriving many acts, that seemed naturally to fall within the definition of larceny, of all larcenous character. So extreme was the severity of the law of larceny that it exacted death as the penalty for stealing, except when the thing stolen did not exceed the value of twelve pence. This severity was ultimately tempered by two active forces. One was what Blackstone leniently terms “a kind of pious perjury" on the part of juries; who assessed the value of stolen articles in a humanely depreciatory manner. Thus a silver cup has been known to be valued on the purely conjectural hypothesis that it might be of copper barely silvered over. And in 1808, to avoid convicting a woman for the capital offence of "stealing in a dwelling-house to the value of forty shillings," a jury went so far as to find on their oaths that a £10 Bank of England note was worth only 39s. The other force which similarly 1 Pollock and Maitland, II. 497. that the taking and carrying away,'

"There can we think be little doubt upon which our later law insists, had been from the first the very core of the English idea of theft"; ibid.

2 Supra, p. 94.

3 4 Bl. Comm. 239.

4 Rex v. Bridget Macallister (Sessions Papers, LXXXVI. 18). Sir S. Romilly, citing this case in Parliament, mentioned another, in 1732, where a woman had stolen two guineas and two half-guineas, but the jury pronounced the total value of the four coins to be "under 40s."

struggled against putting men to death for thefts was that of the ingenious judicial legislation, to which we have already referred. By it, as early as the reign of Edward III., many articles were placed outside the protection of the law of larceny on the ground of their supposed connexion with immovable property, as for instance, title deeds to land, or even the boxes in which such deeds were kept. Again, under Edward IV., the judges declared certain acts of dishonest appropriation to be no larcenies, on account of their not involving a sufficient change of technical possession.

By these and other modifications, the legal idea of larceny has now come to be that of the crime which is committed when any person (1) takes, and (2) carries away-or when (3) a bailee appropriates (4) another person's (5) personal chattel, (6) of some value, (7) without any claim of right, and (8) with an intention to deprive that other person of the whole benefit of his title to the chattel'. Blackstone, with attractive brevity, defines it simply as "the felonious taking and carrying away of the personal goods of another""; but thereby leaves unanswered the main question, viz., when is such an act felonious?

We must proceed to consider separately the eight points which our own definition includes.

§ 2. THE TAKING.

We have seen that the common law made a change of possession essential to larceny. Where there was no infringement of possession, i.e., no "trespass," there could be no larceny. Thus the definition of this felony became embarrassed with "that vaguest of all vague questions-the meaning of the word Possession." The utter technicality of that question is vividly illustrated, for instance, by the 1 Cf. 3 Coke Inst. 107; East P. C. c. 16, s. 2.

2 4 Bl. Comm. 230.

3 1 Hawkins P. C. c. 33, s. 1; Dalton 493 (K. S. C. 211).

.

4 Per Erle, C.J., in Reg. v. Smith, Cox 554.