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LARCENY
ANOMALOUS DOCTRINE RESTRICTIVE2
Corrections2 given to the amonality by Statutes 3. Imperfection Defects of those corrections. 3.dly Another more numerous & extensive class descriptive of moveable property of which Larceny could
not be committed was composed of formed by all such things as had contracted an adherence
natural or artificial to that, viz: soil, which is was termed immoveable.
To endevor to trace out in a few words the origin of this exception is a task that will not be altogether uninstructive:
However general the concurrence has been among nations societies in the establishing a
wide distinction between the wrongful usurpation of moveable & immoveable property possessions & in
together with assigning names conformable to those distinctions, it is plain that in among those of ours at least
the reason of it that distinction [as founded in utility] has been very imperfectly obscrurely developed;
it has been rather felt than seen; & what is a circumstance that occurs pretty frequently in the History of the firmament. as is often the case has tacitly silently produced it's effect without any notice
being taken even by the persons activated influence of it's presence. The instinct which conducted them to this it distinction, having
performed it's office disappeared, & left it established as it were on the footing of positive
Law. For the principle of utility has never been as yet regularly applied to the solution of the various problems in Jurisprudence It thus became a ground work for imagination to work upon; & it is to this
we evidently owe the antient maxim: which excepts out of the catalogue of subjects which should have as exceptions
whereof Larceny may be committed all such as "savour of the realty."
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There was no such thing as a man's being hanged for stealing of a field an Entire House. That — the same indulgence was to no wonder it should the case should be shewn to be the case for
the taking stealing what was proposition which seemed included in the price but a part of it. No more was there for stealing of a field: no more therefore could there be according to their ideas, for that taking of that which had as intimate an union with the soil of which the field connoted, as any part of that soil had with another The whole sum of things existing on the Globe, & consequently the whole sum of things which
are capable of being the appropriate Instruments of men's happiness, are comprized within on the division
of the Naturalists into the 3 Kingdoms as they stile them, Animal, vegetable & minerals in two of these, namely
the two latter, a man is was deprived of an all adequate protection to his property during a period of their predicament under situation which
existence which every thing contained under them must at some time or other have undergone, by this at some period or other of their existence have subsisted
latter maxim: Wreck &c might not be worth the Sheriff's while to seize the maxim in question now before us: as he is of many a great part of the Articles comprized in the former by the
two ...... distinctions above mentioned. Vegetable and mineral substances not only possessed an original
incapacity of being the subjects of a Larceny primary & natural in their [original] state of adhesion, to the soil but acquired it
anew when fixed to it by Art. Taking away carrying off Trees as they grow, from the Field or Lead from the Mine, was no
Larceny. It commenced Larceny by the Trees being cut down & the Lead extracted, & ceased
again upon their being employd in Building: Every thing that natural that is at the same time reclaimed or confined & good to eat: which must depend upon the Taste of the Judge. Frogs; if cooped up, & the Judge was fond of French Cookery. for then once more they acquired the "savor of
the realty." & so takes quarters they were disjoined & and the driving in of of nail or drawing of it out would thus as often deterence, as often on the
whether one man was to have any protection safeguard for his own, on the other hand, whether another man was to live or die.
As nothing but Iron & Lead is marked in Brass & Copper & Enamel the statutes Brass House-plates Copper covering which has been put on some buildings lie still at many Wooden Palisades Qu. This savor tho' fumigated away in many instances by sundry Statutes, as will be seen by & by, & is
far from being banished from every one — A variety of Articles if it were worth while to search
them only would be found to smell still as rank as ever. This savor of the realty was so strong as to communicate it's virtue according to like to Title Deeds, & that, like Sr Kenelm Digby's Sympathetic Powder, to any distance: it also would penetrate the Box let it be of what value it would that contained them: not that this could be the reason after all, since it was the cause concerning with Muniments concerning property not real.
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