The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

The fifteenth Dialogue, of Theft, Burglarie, and Robberie. (Book 15)

NOmomat.

Time now requireth that yee should deliuer your opinions of these crimes which are against the good estat of man, as theft, burglarie, & robberie, & because theft is either single as pettie larcenie, & the sole act of taking away feloniously a mans goods: or else compounded & mixt with other wrongfull acts, as when burglarie & robbery are committed, therefore first I would haue you to speake of the former, & after of the latter: wher∣fore shew me first Codicgn. what is accoūted pet∣tie larceny or pilfering the euery in your law, and how it is to be punished.

[Diuision. 1] Codicgn.

I think it fittest by your fauour, to de∣clare first what theft in generall is, & then to dis∣course of the particuler kinds of it as you haue proposed them.

Nomomat.

I like your course well, I pray you therefore proceed.

Codicgn.

* 1.1Theft is thus defined in our Law: (A fraudulent contrectation of an other mans cor∣porall moueable goods, which is don against the will of the owner, with a mind to gain either by the things stolne,* 1.2 or by the possession of them,r 1.3 or by the vse of them)^a and this word (fraudulent) is therefore vsed in the definition, because if a man

take away an other mans goods as thinking him to be the owner that biddeth him take them, or mistaking the goods which the owner appointed him to take, he is not in this case guilty of theft,b 1.4 because neither the contrectation onely, nor the fraud only doth make a theefe,c 1.5 By the imperiall law,* 1.6 if a man doe steale any thing worth v.s. or a∣boue, he shall be hanged, & if it be of a lesse value then he shall be whipped,d 1.7 but if he commit the secōd time, he is punished with the cutting off of one of his eares, or of one of his hands: & if he co∣mit it the third time he is to be hāged,e 1.8 & the first time he is called fur: the secōd time consuetus fur: the third time famosus fur:f 1.9 and he that stealeth a sheepe, a goat, or a swine, is less punished then he that stealeth an horse or an oxe: for he may be whipped if he be of a seruile condition:g 1.10 or if he be a freeman he may be banished for a certaine time:h 1.11 but he that stealeth a flock,* 1.12 as ten sheepe or foure swine: or he that stealeth an horse or an oxe shall be adiudged to perpetuall banishment.i 1.13

Anglon.

By our law it is felony,* 1.14 if a man steale aboue the value of xij. d. but if it do not exceed the value of xij. d. it is then pettie larceny, for the which the party shall haue imprisonment accor∣ding to the discretion of the Iustices,k 1.15 but as to the stealing of lesser or greater things which bee aboue the value of xij. d.l 1.16 we haue no difference of iudgement or punishment in our law.

Nomom.

Declare I pray you whether these that [Diuision. 2] receiue & fauor theefes, are not guilty of theft by your lawes, and punishable as theeues.

Codicgnostes,

* 1.17Because these receiuors are a lewd sort of men, without whom malefactors cannot long be vnknowne, therefore our Law inflicteth vpon them & the others which commit theft, the like punishment,l 1.18 but if a man do not receiue thē but do gainsay or refuse to offer vnto the triall & iudgment of law, such offendors which do lurke in his grange or in his manor, if he be personally resiant, and do keepe house there, he for this fact shal forfeit his grange or manor if he haue an in∣heritance in it, but if he haue only estate for yeres or at will, he shal be punished with perpetual ex∣ile:m 1.19 & they shal in both cases forfeit their goods,n 1.20 but that this matter may more clerely appeare vnto you, is is good to obserue that if a mā either keepeth the theefe in his house, grang, or manor, not knowing him to be a theef, or knowing him to haue committed theft: in the first case he shall not incur the aforesaid forfeiture, vnles he refuse to yeeld vp the theefe into the hand of Iustice, when he is pursued:o 1.21 but if the owner of the house or grang &c. do know that a theef lurketh within the precincts of his house or grang &c. then he is either a theefe simply, or a theefe compositiue, as a robber by the high way, or a burglarer if he be a theefe simply, he that hideth him, must sustaine the same punishment that the theefe himselfe,p 1.22 which punishment is sometime wayed by the quality of the person, by the greatnes of offences & by the multitude of offences iterated as before hath bin shewed: but if he whom he hideth, haue committed robbery or burglary, of what estate

soeuer he be, and though it were the first offence, both in the theefe & in the fauourer, yet either of them shal susteine the like punishment:q 1.23 but here an other distinction is to be vsed, for either he fa∣uored the theefe, or the theft: if he fauor the theft he shall haue equall punishment with the theefe,r 1.24 but if he fauor not the theft, but only the person of the theefe, then he is punishable by the same Law, but not by the same paine, for then his pu∣nishment is arbitrary, and left wholy to the dis∣cretion of the Iudge,s 1.25 & in the very same state are they, which when they may apprehend such ma∣lefactors doe either for lucre, or for part of the things stolne let them goe.t 1.26

Canonologus,

By our Canon Law,* 1.27 they that are receiuors of heretikes are excommunicated, and are accursed with the highest degree of maledic∣tion, & when they are dead, Christian buriall is to be denied vnto thē,u 1.28 But this is to be vnderstood of such receiuors as fauor the person but not the heresy, for they are punished by the same punish∣ment which our Law doth appoint for the here∣tikes themselues,x 1.29 but in other crimes which are not heresies, our law vseth this distinction: either the receiuors are publikely diffamed, or not: if they be publikely diffamed, they are punished as the offendors themselues are punishable by our law, but if not publikely diffamed, then they are punished with a milder punishment.y 1.30

Anglomophyl.

Our law punisheth the receiuors of felons, with great and rigorous seueritie,* 1.31 and without respect of the qualitie and circumstance

of the persons: and if goods be stolne and I.S. knowing they be stolne receiueth them, in this case, though he receiue the goods onely, and not the felon himselfe, yet he is accessorie to the felo∣nie,a 1.32 but in case of high treason there be no ac∣cessaries, but all be principall,b 1.33 But otherwise it is in case of pettie treason:c 1.34 but in high treason as well the commanders as the assistors, abbettors, and receiuors, knowing thereof are principall,d 1.35 If a man receiue one that is attainted of felony by outlawry in the same County &c. he is acces∣sary to the felony, because the outlawry is a mat∣ter of record, of which euery one ought to take notice,e 1.36 but the Law would be otherwise, if hee should receiue him in an other County,f 1.37 and the reason wherefore the receiuors and accessories should be punished, as well as the principall of∣fendors, Lucan wittily sheweth in the person of one of his rebellious captaines:

Rheni mihi Caesar ad vndas Dux erat, hic socius, facinus quos inquinat, aequat.

[Diuision. 3] Nomom.

Now I pray you proceed and open vnto me the offence of robbery, how it is in your Lawes and how it is to be punished.

Codicgn.

* 1.38Robbery is committed, when a man by force bereaueth an other of his goods, lying in awaite in high waies and secreat pathes,* 1.39 in woods, in heathes, and in other places remoued from the sight and testimony of men: for this, the offendors head shall be cut off with a sword, and he shall forfeit his goods, and his body shall be layed vpon a wheele, vnto which are fastned the

boughes of these trees, vnder which the robbery was committed, as the witnesses of the crime,g 1.40 & he that doth wittingly and willingly receiue such felons, is no lesse capitally punished then they.h 1.41

Canonol.

This crime is so odious in our Law,* 1.42 that it suffereth not Temples to be sanctuaries, or places of protection to such offendors.i 1.43

Anglon.

By our Law,* 1.44 robbery is then commit∣ted, when a man taketh any thing from the per∣son of an other man feloniously, though it be but of the value of a peny, yet he shall be hanged:k 1.45 & if a man doe threaten one to deliuer his purse in∣continent, and if he will not that he will kill him whereupon he deliuereth it presently, this is rob∣bery as well as that, where he taketh it frō a mans person by force:l 1.46 and therefore the case was that two did lay hold on a man, and did make him sweare vpon a booke that hee would bring vnto them xx. li. by force whereof he brought vnto them xx. li. and they tooke it, this is robbery, for it must bee intended to bee done by force of the threatning, & against his will,m 1.47 but where a thefe taketh xl. s. from an other man by the high way, without assaulting him, and putting him in feare of loosing his life, this is not robbery, but he shall be put to his Clergie.n 1.48

Nomomath.

Now I would know somewhat of [Diuision. 4] the offence which is commonly called Burglary or breaking of houses in the night time, & stea∣ling things out of them, and how it is to be puni∣shed.

Codicgnost.

They which breake into any mans

house in the night time with purpose to kil,* 1.49 if any man be within the house that will resist their vio∣lence, are accounted in our Law famous theefes and are punished capitally.o 1.50

Anglon.

* 1.51Burglarie is where any man in time of peace, & in the night time, doth breake any dwel∣ling house, Church, Walles, Towers, or gates, to commit felony there, and he entreth, though hee carie nothing away, yet this is burglary, and the offendor shall be hanged.p 1.52

Nomom.

I giue ye great thanks for your pains bestowed in the cleering of these doubts, which I moued vnto you: I will not trouble you further in these matters; accounting my selfe for your trauaile so long continued, to be greatly beholden, and verie much bound in all duti∣full kindness vnto yee.

FINIS.

Notes

• * 1.1

  1 The defini∣tion of theft by the ciuill law.
• * 1.2

  2 Wherefore the word (fraudulent) is vsed in the definition of theft.
• r 1.3

  ff. de paen. l. 1. in fi.
• b 1.4

  Iusti. vi. bon. rapt. §. ita ta∣men.
• c 1.5

  Arg. d. l. 1. §. inde sola.
• * 1.6

  3 How pettie the euery is pu∣nished by the ciuill law.
• d 1.7

  c. 1. § si quis quinque soli∣dos de Feudis: & glos. in §. & iudican Au∣thent. de de∣fens. ciuitat glos. in l. fin. & ibi Alexan. ff. de in ius vo∣cand. glos. in §. fin. in fin. instit. de pen. temere litigant.
• e 1.8

  Authen. sed nouo iure C. de seru. fug. & Authen. vt nul. iud. §. quia ve∣rò nos oport.
• f 1.9

  d. Authent. sed nouo iure.
• g 1.10

  ff. de paen. l. in seruorum.
• h 1.11

  l. 1. ff. De abigeis.
• * 1.12

  4 How the stealing of things of grea∣ter value is pu∣nished by the ciuill law.
• i 1.13

  l. 1. §. quan∣quam ff. eo.
• * 1.14

  5 What is fe∣lony by the cōmon law, & what is petie
• k 1.15

  22. ass. p. 39. si foit est felony, ideo cest error
• l 1.16

  Stamf. lib. 1. c. 15. Cor. 178.
• * 1.17

  1 Receiuers and theeues haue the like punishment in the ciuil Law, but yet with many diuerci∣ties and limi∣tations.
• l 1.18

  l. 1. C. de his qui latron. vel alijs crim. reos occultant.
• m 1.19

  l. fin. in fin. eod.
• n 1.20

  l. 1. cod.
• o 1.21

  l. 1. eod. in versi. vel offer∣re. & l. requirē∣di, C. de serui•• fugit.
• p 1.22

  d. l. C. de his qui latron.
• q 1.23

  d. l. 1. C. de his qui latran. & l. 1. § in par. ff de receptat.
• r 1.24

  l. secunda. § non tantum ff. de incēd. ruin. naufrag.
• s 1.25

  l. 1. in fin. ff. de receptat.
• t 1.26

  d. l. 1. ff. eo.
• * 1.27

  2 How the receiuors of heretikes and other offen∣dors are puni∣shed by the Canon law.
• u 1.28

  ca. sicut ait. de heretic. Ex∣tra.
• x 1.29

  ca. 2. de. hae¦re. lib. 6.
• y 1.30

  Gloss. in ca. 1 sup. verb. recep¦tauerit de hon tic. li. 6 an. cor. quae habentur, in ca. cum non ab homi. de iu∣dic. in cap. tuae. de paen. & in ca fin de furt. Exir.
• * 1.31

  3 How recei∣uors of felons are punished by the comon law, & who be accounted re∣ceiuors
• a 1.32

  3. E. 6. c. 24 & 27. El. per Wind. Iust. al Ass. al Staff. Cromp. I. P. 37 Stamf. 43.
• b 1.33

  3. H. 7. 9.
• c 1.34

  Stamf. 40.
• d 1.35

  Exposit. ter∣min. leg. fol. 4.
• e 1.36

  Stamf 96. Dyer 355.
• f 1.37

  12. E. 2. Cor. 377.
• * 1.38

  1 The d scrip∣tion of robbery by the ciuill Law
• * 1.39

  2 The punish¦ment of rob∣bery by the said law.
• g 1.40

  l. 1. C. de hi•• qui latron. oc∣cult. & l. 1. ff. de receptato.
• h 1.41

  d. l. 1. ff. de recept.
• * 1.42

  3 The punish∣ment of robbe∣ry by the Canon law.
• i 1.43

  c. inter alia Ext. de immu. Eccles.
• * 1.44

  4 The descrip∣tion of robbery according to the Common Law.
• k 1.45

  22. Aff. pl. 55 31. H. 6. 16.
• l 1.46

  Stamf. 27.
• m 1.47

  44. E. 3. 14 4. H. 4. 3.
• n 1.48

  5. Eliz. 224. Dyer
• * 1.49

  1 What kind of house breach s capital in the ciuill law.
• o 1.50

  l. Capitalliū § Famosos ff. de poenis.
• * 1.51

  2 The defini∣tion of burgla∣rie by the Common law.
• p 1.52

  22. Aff pl. 95 & 39. Stam. 30. Brit. 17. Dy. 99. 18. Eliz. cap. 6.