3. The act must be accompanied with an intent to steal the goods. This intention is difcoverable by a great variety of circumftances, as where the perfon takes the thing clandeftinely, and fecretes it, or conducts with it in fuch a manner, as to fhew he intends to keep it from the owner, or being charged with the fact, denies it. But if the thing be taken and kept openly, as if a fervant takes his mafter's horfe without his knowledge and returns it, or if a neighbour takes another's plough left in the field and ufes it, thefe cafes are but trefpaffes.

4. It must be the perfonal goods of another. Every perfonal thing poffeffing value, and capable of ownership, may be the object of theft. The thing must be of a perfonal nature; for it the things are real, or favour of realty, theft cannot be committed of them, Thus things adhering, or annexed to the freehold, as corn, grafs, trees, fruit, or lead upon a house, cannot be the fubjects of this of fence: but the taking them with whatever intention, is merely a trefpafs. But if the thing be fevered from the freehold by a tortious act, at one time, and fo rendered moveable, or perfonal eftate, and then taken at another time, the laft taking will be theft; or if any other perfon make the feverance, the taking will then be criminal. This distinction of the common law is very whimfical. If a perfon fhould pluck an ear of corn from the ftalk, and carry it away, it is only a trespass; but if he finds an ear on the ground, feparated from the ftalk, and takes and carries it away, it is theft. The true principle is, that every act of taking the property of another, where the difpofition to fleal can be exercifed, fhould be called theft. It is apparent that this intent can as well accompany the act of taking things, which must be fevered from the realty, as in taking perfonal things, and that there is as much neceffity in guarding one fpecies of property, as the other. This doctrine of the common law produces great inconvenience, as it refpects the preservation of fruit. As fruit is to be fevered from the realty, and of course the taking it being only a trefpafs, there are many perfons who are capable of the mean act of ftealing fruit, when they would abhor the idea of stealing any other property. the act of ftealing fruit, the punishunent due to ftealing, and we

Annex to

fhould

4 Black. Com. 232. • Ibid.

fhould find that the difgrace of it, and the probability that they might be detected, and whipped as thieves, which they all deferve, would deter many from a practice, which is now very wickedly deemed by many as a matter of frolic and amufement. In England, statutes have been enacted to punish as theft, the taking of things annexed to the freehold, in a great variety of inftances.

Bonds, bills, notes, or any writings, which concern mere chofes in action, at conmmon law, cannot be the object of theft; becaufe it is faid they are of no intrinfic value, and import no property in the poffeffion of the perfon from whom they are taken. But this doctrine appears to me not to be warranted by the general principles of the law, for the paper on which fuch contracts are written, is certainly capable of ownership, and of course may be the object of theft. In England, they are by statute put on the fame footing as the money they were meant to secure.

Animals, in which there is no property, either abfolute, or qualified, cannot be the object of theft. Thus beafts of a wild nature, and unreclaimed, as fish in an open river, or pond, or wild fowls at their natural liberty, cannot in a legal view be stolen; but if they are reclaimed, and confined fo that they can be taken at pleafure, and ferve for food, the taking them may be theft. Theft may be committed of all domestic animals of a tame nature, which serve for food, as cattle, fwine, fheep, and poultry; but thofe animals which do not ferve for food, as dogs, and creatures which are kept for pleasure, or whim, tho the owner may maintain a civil action for the lofs of them, yet the taking them away can never be theft. Tho theft cannot be committed of a thing, unless there be fome property, and an owner, yet it is immaterial whether the owner be known, for a thief may be punished for ftealing the goods of a perfon unknown.

Theft in the English law is called larceny, and is divided into petty larceny, the ftealing of a thing of the value of twelve pence, or lefs, punishable by whipping: and grand larceny, the fealing of a thing of greater value than twelve pence, punishable with death, Larceny is alfo divided into fimple and mixed: fimple

d4 Black. Com. 234. e1 Hal. P. C. 511.

when

where the taking is not from the house or perfon: if the taking is by night, upon breaking, and entering the houfe, it is burglary: if from the perfon by violence, and putting in fear, it is robbery; but if the things are taken from the houfe without breaking, or from the perfon, in a private manner, it is mixed larceny. But in this state these distinctions are of no confequence. Our ideas of burglary and robbery correfpond with theirs and as to theft, it makes no difference whether the goods are taken from the house, the perfon, or the field.

This crime is prohibited and punished by ftatute. The offender forfeits treble the value of the goods ftolen, to the owner, and is to be fined at the difcretion of the court, not exceeding forty fhillings. If the value of the goods ftolen, amount to twenty fhillings, he fall faffer an additional punishment of whipping, not exceed ing ten ftripes, for one offence. If the value of the goods be more than five fhillings, and lefs than twenty, and the offender refuse, or is unable to pay the fine impofed, he may be whipped at the difcretion of the court, not exceeding ten ftripes. If the offender is unable to make reftitution, the court may affign him in service.'

It is alfo provided by ftatute, that where a conviction is before a single minister, an additional punishment may be inflicted, by com mitting the offender to the work houfe, or houfe of correction, to be kept to hard labour on the first conviction, not less than a month, nor more than three; on the fecond, not lefs than a year, nor more than three. If the conviction be before the county court, then not less than fix months for the first offence, and fo for a longer time, as the court fhall think proper, according to the circumflances of the offence, and the number of convictions: but for the firft offence no perfon fhall be committed to the work houfe, unless he be twenty-one years of age, and the court are of opinion that he is a rogue, vagabond, or common beggar, or a lewd, idle, profane, or diforderly perfon.

II. Receiving ftolen goods, knowing them to be fuch, is at common law, an offence punishable by fine and imprisonment: but a trial of the acceflary, mult have been preceded by a convicti. on of the principal. It has therefore been provided by ftatute, X X 4 Black. Com. 132. Statutes 245

g Statutes, 244.

L Iid. 208.

that

that those who conceal any theft, (unless committed by fome member of his family,) or shall receive and conceal ftolen goods, knowing them to be fuch may be proceeded against as principal, and punished in the fame manner tho the principal be not convicted.

III. Theft-bote is where the party robbed, or from whom goods are ftolen, takes them again, or other amends upon an agreement not to profecute: and at common law is punishable by fine and imprisonment: but the bare taking one's goods, without fhewing any favour to the theif, is no offence.

1.

CHAPTER TENTH.

OF CRIMES AGAINST THE PUBLIC PEACE,

F Challenges to Duels. To trace the hiftory of the ori gin and progress of duelling, would be an amusing and interesting work, but foreign to our enquiries. It is fufficient to remark, that in defiance of the folemn monitions of religion, and the tender claims of humanity, it has for many ages, produced immeafurable distress in many a private family, and ftill continues to reflect the deepest disgrace upon the manners and character of modern times. It is however a fubject of the greatest fatisfaction to remark, that this practice is growing every day lefs fashionable and reputable, and that the voice of reafon, feems to prevail over thofe vifionary ideas of honor, and that mad heroifm which have fo often prompted friends, for the moft trifling quarrels, to fhed each other's blood, and to involve their families in ruin and diftrefs.

Long experience having fhewn, that duelling could not be prevented, by confidering the fuccefsful combatant as a murderer, the measure of rendering the giving and accepting a challenge, highly punishable, has been adopted. This expedient is founded in good policy for a perfon will be cautious about entrusting his enemy with a challenge, which would furnish evidence to subject him to a heavy punishment. It is provided by ftatute-that if any perfon fhall challenge another, or fhall accept a challenge, to fight at fword,

Hawk. P. C. 125. * Statutes, 43.

fword, pistol, rapier, or other dangerous weapon, the person so challenging, or accepting, fhall forfeit to the public treasury, one thousand pounds, and find fureties for his good behaviour during life, and be forever difabled from holding any office of proat or honor, and if unable to pay the forfeiture, to be closely imprifoned during life.

If any perfon fhall willingly or knowingly carry or deliver any written challenge, or verbally deliver any meffage, purporting to be a challenge, or be prefent at fighting a duel as fecond, or aid and give countenance thereto, he fhall on-conviction fuffer the aforefaid punishment faving the finding fureties for good behaviour during life,

II. A Riot is where three or more perfans fhall come or affemble together, with an intent to do any unlawful act, by force and violence, against the perfon of another, as to kill, beat, or otherwife hurt him, or against his poffeffion or goods, as to break open or pull down any houfe, or fence wrongfully, or to cut or take away any corn, grafs, wood, or other goods wrongfully; or to do any other unlawful act, with force and violence, against the peace, or to the manifeft terror of the people, and being required or commanded by any of the civil authority, fheriff, deputy sheriff, felectmen, or conftable by proclamation, fhall not difperfe, and peaceably depart to their habitations and lawful business; where three or more perfons, being fo affèmbled, fhall do an unlawful act against any man's perfon, poffeffion or goods, or against the public intereft in any particular: fuch offenders before the fuperior or county courts, in the county where the offence is committed, may on conviction, be fined not exceeding ten pound each, be imprisoned not exceeding fix months, or be whipped not exceeding forty ftripes, at the difcretion of the court, according to the nature and circumstances of the facts,

or

For the purpose of preventing the commiffion of this crime, any affiftant, juftice of the peace, fheriff, deputy sheriff, felectman, or conftable, within the limits of their jurifdiction, are authorised and required on notice of any fuch unlawful and riotous affembly, to refort to the place, and among, or near as they can fafely come

/ Statutes 205.

to