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But if we assume the ground in which all the cases, and indeed all men, whether learned in the law or not, agree, that the breach of trust does not extenuate the offence of larceny, and then disembarrass ourselves from the and in many cases almost puerile, notions on the subject of the taking, and exclude from it all limitation as to handling, moving, and separating the goods, and accept the term in a broad sense, corresponding to its general acceptation, which is the true law authority as to the meaning and application of language, there would then be no clashing of the doctrines assumed. There might, in such a case, be a diversity, in the opinions and decisions, as to what is a taking. But this diversity would not necessarily amount to any collision of doctrines; and this is the material point. This mingling of doctrines with what are, at the most, mere constructions of facts in particular cases, is one of the greatest sources of confusion in the law; as it breaks up all principle and system, and makes the law no science. In the present case, let the principle be that the taking is any act whereby the party converts or appropriates the goods to his own use.
So far there is no question; all agree in this. The books also agree, as the cases show, that a trust only qualifies the conversion, and negatives the larceny, as far as it shows that there was no taking, or that a taking was impracticable. On the questions of fact, as to what amounts to such a conversion, judges and juries may not always agree. In one point there is, however, a general agreement in this respect, namely, that the quo animo is material. It is incorporated into all the definitions as an essential ingredient. But when we proceed a step farther, and inquire what acts of the parties show an intent to steal, we have passed beyond the principles of law, and are making an inquiry as to a mere fact; and it would be no reproach to the law, though different judges should disagree as to the particular external acts which show such an intention. The cases on this point will all, then, be resolved into so many illustrations of the application of a principle which is acknowledged, and as far as the acknowledgment of it goes, we are dealing with law; but in the investigation and reasoning upon acts for the purpose of ascertaining the intention, we are only dealing with particular cases, and the inquiry is rather of a metaphysical than a legal character. However great the disagreement might be as to the construction of any such acts, the law ought not to be made answerable for those various constructions, any more than it should be made so, for the verdicts of juries. And the law books, more especially, ought to present the cases in this form, that is, as mere illustrations of the application of an acknowledged principle, distinguishing with precision what is a departure from the principle, from what is a mere diversity of the construction of facts, in particular cases.
Upon this ground and upon the strength of the cases above cited, and the others which it is unnecessary to cite, we venture to differ entirely from the books as to the manner of stating the doctrine respecting larceny by a party having a special property. Mr. Russell' says, “if the owner of goods parted with the possession of them without fraud practised by the taker, and if, after the owner had so parted with possession, nothing was done to determine the privity of contract under which the taker had the possession of them delivered to him, no trespass, and, therefore, no larceny can be committed by their conversion. If by this it be meant that the very act of taking animo furandi, determines the privity of contract, then the proposition amounts to nothing. If this is not the meaning, the supposition does not apply to the cases. Take that of the carrier's separating a part of the goods from the rest ; the very act of separating them is construed to be the felonious taking. So it is held in most of the cases, where this question arises. What then does this proposition, in the books, amount to, but saying that, “ a party having a rightful possession will not be guilty of larceny unless he does some act that amounts to larceny.' It is undoubtedly very true, that a party entrusted with a chattel to keep, to repair, or transport, will not be guilty of a larceny unless he does something else than the act for which the goods were entrusted to him. There is no denying this proposition, but one is at a loss for any reason for stating it. What meaning is there in saying the bailee, in such case, does not commit theft until, or until after, the privity of contract is determined? It appears to be only one of those seemingly learned technical disguises under which a want of sense and meaning are wont to be disguised. There is no doubt that a bailee of a chattel may do more or fewer acts, according to the purposes of the bailment, which, if done by a stranger, would show an animus furandi, and amount to an act of theft, which show no such intention, and amount to no such act on the part of the bailee. This is entirely a question of the construction of the facts of particular cases; to attempt to extract any thing like a general doctrine out of it, in the manner of the books, is only to throw obscurity over the law. This attempt, very usual in England, and not unfrequent with us, to raise facts, or mere constructions of facts, in particular cases, to the rank of doctrines or general propositions, instead of adding to the number of practical intelligible principles of law, on the contrary, cuts up all principles, and leaves the jurisconsults to hunt after vague similitudes of one case to another, and to make legal learning to consist in reading and remembering a great mass of these analogous cases, without extracting from them, or attempting to reduce them to, any clear, definite general principles. This is the reason why lawyers complain so much of the mass, and the increase of their books, for if a knowledge of the science of law, as some seem to suppose, consists only in the mass of analogous cases stored in the memory; then the law that one knows, bears the same proportion to the whole law, that the number of cases in his memory bears to that of all the cases in all the books. Unless, therefore, he studies and stores his memory, with unremitting assiduity, he falls far in the rear. This is the view which most English lawyers, and some of our own, have of the science of the law, and under this view the mass is really appalling. But if we consider the law as consisting of a system of general principles, and that the infinite number of cases pouring forth from all the juridical laboratories, namely, the various tribunals, do not, in the aggregate, furnish a rapid addition to the mass of the science of the law, but are little else than the results of the application of this gigantic machine, with occasional slight alterations and repairs of the machine itself, the principles and operations of which the lawyer is supposed already to understand; the immensity of the work done, of the products thrown out, needs to be no subject of consternation, as long as it is not only not an impossible, but not so very arduous a task, to keep pace with the repairs, alterations, and improvements. It is the mode of presenting the law frequently adopted in the text books, treatises, and discussions, that causes the confusion, and bewilders us, by not distinguishing clearly where the inquiry is, as to a general fact to be inferred from particular facts, and where it relates to the construction of a doctrine of law. Reports of instances of the inference of a general fact from particulars, are very useful, no doubt, in throwing light upon subsequent cases, that occur in practice, and where the inference is invariably made by the law, it becomes a doctrine, and a part of the science, but when it is not invariably made, as in this case of theft by a bailee, the question then becomes one of the particular cases, and one of fact. The attempt to erect these decisions into principles, necessarily leads to contradictions, for immediately after the principle, as it purports to be by the manner of stating it, will come a direct contradiction, under the name of an exception. Then comes in the English and our own notion of the authority of precedents, which has been blindly carried to a most pernicious extent, which fastens upon us, as doctrines of law, what are nothing more, in their character and purport, than verdicts; and an immense mass of details is thus thrown upon the law, as being a part of it; and the profession is discouraged and languidly struggles under the oppressive weight.
1 Russell on Crimes, b. 4, c. 6, s. 1.
In the present case of larceny, instead of laying down the proposition, that while a party has a special property and right of possession, he cannot commit larceny upon the chattel, a doctrine which the cases will directly contradict, we should avoid a great deal of perplexity, by saying merely that a lien, or special property and right of possession for a particular purpose, are facts to be taken into consideration, and entitled to great weight in determining whether a certain act was a taking, and whether it was such animo furandi. Where the act is one that might be done in pursuance of the special trust, as where a horse being let to ride to a particular place, and the bailee does an act which might be done either in pursuance of the special trust, or with a felonious intention, as if, in the same case, the pretended hirer rides the horse towards the proposed place, but sells him before arriving there ; the case of theft may not be so plain as if he had broken open the stable, and taken the horse away by night. If he voluntarily comes back and tenders the owner the proceeds of the sale, this will entirely negative any felonious intention, just as a person's taking a chattel openly, before the owner's eyes, without violence, is considered to be a circumstance going to show the absence of any animus furandi. If we only say, in general, that the special property and possession are mere circumstances to be taken into consideration with a dozen others, in deciding on the act and intent, all the cases may be ranged under the general principles as to larceny very harmoniously, with only some diversity as to the force with which the fact of special property and possession has been held, in diverse cases, to bear
the conclusion that there was an intent to steal, and also an act of conversion. But if we begin with the doctrine that a special property and possession negative such an act and intention, and then undertake to frame other doctrines by way of exception and qualification ; inconsistency, contradictions, and confusion, are the necessary consequence.
ART. IX.-PROPOSED INSOLVENT LAW OF MASSACHUSETTS. Any one practically acquainted with legislation, knows how difficult it is to propose and mature any important statute upon a subject requiring a variety of provisions, through the medium of legislative committees. If committees, consisting of members of competent skill and talent, can be raised from among the body of legislators, they rarely have time, during the short and busy, and, occasionally, turbulent, sessions of those bodies, to mature a law requiring elaborate investigation and patient and intense reflection, and accordingly the attempt to frame laws upon the spur of the occasion, too often results in defective acts, attended with much doubt and embarrassment in their administration, and withal falling far short of the object intended. A practice has accordingly been resorted to in most of the legislatures of the States, of referring any difficult matter to commissioners, to be reported upon at a subsequent session, when the legislators, having the whole subject matured and digested, and the proposed law drawn up, can act upon it with greater intelligence and less danger of superficial, confused, or inadequate legislation. By this system of proceeding all the talents, learning, and skill of the state, whether comprised in the legislative assembly or not, are commanded for that most important and most difficult of proceedings, the devising and adopting the best