LITERATURE.

Globe, Volume IV, Issue 473, 21 December 1875, Page 3

LITERATURE.

CURIOUS CASE OF STEALING OR NOT STEALING.

In the year 1872, one George Middleton •was a depositor in a post-office savings bank in which a sum oi eleven shillings stood at his credit. He duly gave notice to with draw ten shillings, and a letter of advice was sent to the post-office at Notting Hill, London, to pay Mr Middleton that sum. He presented himself for payment, when the clerk in charge referred by mistake to another letter of advice for eight pounds sixteen shillings and tenpence, and placed the latter sum upon the counter. He entered the amount in the depositor’s pass book, and stamped it, and Mr Middleton walked away with eight pounds six shillings and tenpence which did not belong to him. There is no doubt Mr Middleton was perfectly aware of what he was doing, and of the clerk’s mistake, but probably he little thought that it would require the combined intellect and learning of no less than fifteen judges to decide whether or not he stole that money. To an unlearned mind the case presents no difficulty, but it has divided the judicial bench.

Middleton was tried at the Central Criminal Court on the 23rd of September, 1872, and was found guilty, the learned common serjeant reserving, for the opinion of the Court for Crown Cases Reserved, the question whether the circumstances amounted in law to a larceny. The latter Court met on the 23rd of November following, and was composed of five of the judges, under the presidency of Lord Chief Baron Kelly. The Court could not agree, and the case was again reserved, this time for the opinion of all the judges. On the 25th of January, 1873, it was argued by the tin n AttorneyGeneral. Six’ John Coleridge (now the Lord Chief Justice of the Common Pleas), befoi’e the Loi’d Chief J ustice of England, tlxe then Lord Chief Justice of the Common Pleas (Sir William Bovill), the Lord Chief Baron, Barons Martin, Bramwell, Pigott, and Cleasby, and Justices Blackburn, Keating, Mellor, Brett, Lush, Grove, Denman, and Archibald—Mr Bai’on Pollock and Mr Justice Quain being unavoidably absent. In effect, it was argued before the whole judicial bench of England. On the 7th of June following, judgment was delivered: Lord Chief Justice Cockburn, and Justices B 1 ckburn, Mellor, Lush, Grove, Denman, and

Archibald deciding that Mr Middleton was a thief, upon one ground; Lord Chief Justice Bovill, Lord Chief Baron Kelly, and Mr Justice Keating being of the same opinion, on another ground; Mr Baron Pigott coming to the same conclusion, on a third ground; and Barons Martin, Bramwell, and Cleasby, and Mr Justice Brett, being all four clearly and emphatically of opinion on one and the same ground, that no larceny had been committed.

The case of Middleton is interesting, if only as showing the scrupulous care with which the English law is administered, and how the ever-varying phenomena of life keep on producing combinations of circumstances that have not occurred, or at any rate have not been observed before, and which have to be classified with great travail of mind under some old principle, or else to be provided for afresh. Mr George Middleton’s little adventure at Netting Hill has formed the theme of the most able and elaborate judgments of some of the subtlest legal intellects of our time, extending over thirtyfour pages of the law reports, and representing who shall say how much experience, thought, and labour. The difficulty may be shortly stated. To steal is to take something which belongs to somebody else ; but the post office clerk gave Middleton the money in dispute, and how can a man steal that which is given to him ? This may sound like a quibble ; but there are noticeable differences between Middletons proceedings and an ordinary thief’s. There is m> premeditation, there is no preliminary fraud or trick upon hu part; he goes into the post-office with a perfectly innocent intention, and he simply takes what is given to him. He does not walk away with something that is wholly some one else’s, but with something that is partly his own. Again, it must always be remembered, judges are not legislators. It is their business to administer the law, and not to make it. They are sworn to give judgment acc irding to precedent. This being so, it having been admitted on all hands that the offence was larceny, if anything, the question was—not, ought George Middleton to be punished ?—but, did George Middleton’s offence against honesty fall within the established definitions of larceny ? It was agreed that it was covered by no statute ; therefore, if it was a crime at all, it was a crime in contemplation of the common law in the old days when stealing was a hanging matter. The question might then be put thus ; in olden time, would Middleton have been hanged for what he did at Netting Hill ? A majority of the judges thought he would, but a minority were very positive indeed that he would not. Mr Baron Bramwell vigorously argued, not only that Middleton was not a thief in law, but further, that he was not morally a thief. Admitting that he was a dishonest man, and that what he did ought to be made criminal, the learned baron urged with much force that bis unpremeditated act in fraudulently accepting what was given him by mistake, stops 'hort of that deliberate and forcible taking which constitutes theft, and is morally a lesser offence. But of course cases have to be decided by the judges not on principles of morality, but on principles of law, and these remarks are merely incidental to the legal argument. Before this can be understood, we should premise thatjin law, goods are subject to two incidents, property and possession. When my own watch is in my own pocket, property and possession coincide. The property in the watch is in me, and the possession of it is in me. When I lend my watch to you, the possession is in you, but the property remains in me. When I give or sell my watch to you, both the propei-fy and possession are transferred to you. Now, when property goes with possession, stealing is out of the question; for the moment the property in the article passes from the original possessor it ceases to be his, and therefore it cannot be stolen from him. Thus, it is well-settled law, that if a man goes into a provision shop, and by falsely pretending he has been sent by a regular customer, obtains a flitch of bacon, which of course he does not pay for, it is not a theft; because the shopkeeper, deceived by the fraud, parts with the property in the flitch as well as the possession of it. The man obtains the flitch by false pretences, for which he may be punished ; but he does not steal it.

The argument may now be understood. Stripped of its technicalities and its allusions to previously decided cases, the judgment of the majority of the judges may be paraphrased as follows: Granted that, if the property in the eight pounds six shillings and tenpence had passed to the prisoner, his offence would not amount to larceny ; as a matter of law, the property in that balance did not pass to him, and never vested in him for an instant. True, the possession of it was given to him, but that was only by mistake, and the property in it remained all the tune in the PostmasterGeneral. The money was always some one else’s; the prisoner, in taking it, took what did not belong to him, and the guilty intention having been found by the jury as a matter of fact, it is a case of larceny, and the conviction is affirmed. So far, so good ; this sounds like common sense, at all events, and we are not surprised to see attached to it the name of Lord Chief J ustice Cockburn. But one side is generally right until the other is heard; and in this case it is impossible to resist the powerful reasoning of the minority. That, say they in effect, may be common sense, though we doubt it; but certainly it is not common law, and law is what we are sworn to administer The arguments of Mr Baron Brain well, Mr Justice Brett, and Mr Baron Cleasby make tremendous breaches in the position taken up by the majority ; whilst old Baron Martin—brought up in a tough old school, in the days when law was law—has hardly patience to argue a point against which his veteran instincts obviously revolt. The reasoning of the minority is, says he, ‘ unanswered and unanswerable;’ and that of the majority appears to the old baron ‘ worthy of an ancient causist.; Mr Baron Bramwell is not so outspoken, but is quite as solid. ‘ Though those whose opinion I share may be, and probably arc, in the wrong,’ says the polite baron, ‘ considering the numerous and weighty opinions the other way, there is more doubt in the case than has appeared to some who seem to me to reason thus ; The prisoner was as bad as a thief (which I deny), and being as bad, ought to be treated as one (which I deny also).’ Mr Justice Brett thinks that the judgment of the majority ‘is founded upon and enunciates a wrong proposition of law, ’ and is of opinion that the prisoner ‘ could not be convicted according to law. ’ Mr Baron Cleasby thinks ‘ the conviction was against law, and ought to be quashed. ’ They are all four agreed upon the reason why, and argue irresistibly. Starting with the admitted proposition, that to constitute larceny the taking must be against the will, or at least without the will of the owner of the goods, it follows that it is the state of the owner’s mind, and not the state of the alleged thief’s, that is to be examined for the purpose of determining whether or not the taking was without his will. The guilty intention of the prisoner has therefore nothing to do with the question in dispute. This being cleared away, the question of unwillingness or willingness on the part of the owner is reduced to a question of the condition of the owner’s mind, in other words, of his intention. If he intends the property to pass, he is clearly not unwilling that it should; and whether or not in law it actually does, is immaterial. The question, therefore, is, say the minority, not that which has been put by the majority, namely, did the property pass ? but did the clerk intend that it should pass ? If he did, it was not taken from him against his will, and was not larceny. Now, did he ? Acting under the mistaken impression that he was paying over the cor ect sum, no doubt he meant the property to pass. Of course he would not have so meant if he had known what he was doing, but as a matter of fact, he did so mean. He clearly did not mean to pay the prisoner ten shillings, because that sum had never suggested itself to his mind ; so, if he did not mean to pay him eight pounds sixteen shillings and tenpence, he meant to pay him nothing, which is absurd. The payment, therefore, was a voluntary payment, and its fraudulent acceptance not a theft. Upon these grounds, the minority of the judges thought that the conviction should be quashed; but the majority being of the contrary opinion, it was affirmed. It mattered little to George Middleton what any of them thought, for he had long before served out his sentence, and been set at large. ’The following anomaly has thus been added to our law. If Middleton had deli ■ berately concocted a'false tale, on the faith of which he had obtained the money, he would have been guilty of the misdemeanour of obtaining it by false pretences ; but because it was accidentally given to him, and he simply walked off with it, he is a felon. The lesser offence is, by this new decision, made the greater. To some minds, the elaborate arguments, of a small part of which the foregoing is the faintest outline, exhausted upon such a question as the guilt of Middleton, may seem to be a piece of mere technical folly; but after all, the only justice that is worth the name is that which is administered on fixed and settled principles. It would never do for judges to make law to suit particular cases; and to strain the law, even to cover obvious injustice and absurdity, is a most dangerous practice. Mr Baron Bramwell evidently thinks his learned brothers have been doing this, and we cannot conclude better than by endorsing his sly recommendation in an article in the Law Times, where it is intimated that some judges ‘ might with advantage read and inwardly digest Paley’s “ Moral and Political Philosophy,” or some other approved treatise, in which the necessity for positive rules of general information, the doctrine of particular and general consequences, and the superior importance of and regard due to general consequences, are clearly expounded. ’