difference no doubt arises from the tendency to extend the bounds
of a delict and to limit the bounds of a crime. Thus it was
furtum (but it would not be theft at English common law) to use
a deposit of pledge contrary to the wishes of the owner, to retain
goods found, or to steal a human being, such as a slave or filius
familias (a special form of furtum called plagium). The latter
would be in English law an abduction under certain circumstances
but not a theft. One of two married persons could not commit
furtum as against the other, but larceny may be so committed
in England since the Married Women’s Property Act 1882.
As a furtum was merely a delict, the obligatio ex delicto could be
extinguished by agreement between the parties; this cannot
be done in England. In another direction English law is more
considerate of the rights of third parties than was Roman.
The thief can give a good title to stolen goods; in Roman law
he could not do so, except in the single case of a hereditas acquired
by usucapio. The development of the law of furtum at Rome
is historically interesting, for even in its latest period is found a
relic of one of the most primitive theories of law adopted by
courts of justice: “They took as their guide the measure of
vengeance likely to be exacted by an aggrieved person under
the circumstances of the case” (Maine, Ancient Law, ch. x.).
This explains the reason of the division of furtum into manifestum
and nec manifestum. The manifest thief was one taken
red-handed—“taken with the manner,” in the language of old
English law. The Twelve Tables denounced the punishment of
death against the manifest thief, for that would be the penalty
demanded by the indignant owner in whose place the judge stood.
The severity of this penalty was afterwards mitigated by the
praetor, who substituted for it the payment of quadruple the
value of the thing stolen. The same penalty was also given by
the praetor in case of theft from a fire or a wreck, or of prevention
of search. The Twelve Tables mulcted the non-manifest thief in
double the value of the thing stolen. The actions for penalties
were in addition to the action for the stolen goods themselves or
their value. The quadruple and double penalties still remain
in the legislation of Justinian. The search for stolen goods, as it
existed in the time of Gaius, was a survival of a period when the
injured person was, as in the case of summons (in jus vocatio),
his own executive officer. Such a search, by the Twelve Tables,
might be conducted in the house of the supposed thief by the
owner in person, naked except for a cincture, and carrying a
platter in his hand, safeguards apparently against any possibility
of his making a false charge by depositing some of his own
property on his neighbour’s premises. This mode of search
became obsolete before the time of Justinian. Robbery (bona vi
rapta) was violence added to furtum. By the actio vi bonorum
raptorum quadruple the value could be recovered if the action
were brought within a year, only the value if brought after the
expiration of a year. The quadruple value included the stolen
thing itself, so that the penalty was in effect only a triple one.
It was inclusive, and not cumulative, as in furtum.
In England theft or larceny appears to have been very early regarded by legislators as a matter calling for special attention. The pre-Conquest compilations of laws are full of provisions on the subject. The earlier laws appear to regard it as a delict which may be compounded for by payment. Considerable distinctions of person are made, both in regard to the owner and the thief. Thus, by the laws of Æthelberht, if a freeman stole from the king he was to restore ninefold, if from a freeman or from a dwelling, threefold. If a theow stole, he had only to make a twofold reparation. In the laws of Alfred ordinary theft was still only civil, but he who stole in a church was punished by the loss of his hand. The laws of Ina named as the penalty death or redemption according to the wer-gild of the thief. By the same laws the thief might be slain if he fled or resisted. Gradually the severity of the punishment increased. By the laws of Æthelstan death in a very cruel form was inflicted. At a later date the Leges Henrici Primi placed a thief in the king’s mercy, and his lands were forfeited. Putting out the eyes and other kinds of mutilation were sometimes the punishment. The principle of severity continued down to the 19th century, and until 1827 theft or larceny of certain kinds remained capital. Both before and after the Conquest local jurisdiction over thieves was a common franchise of lords of manors, attended with some of the advantages of modern summary jurisdiction.
Under the common law larceny was a felony. It was affected by numerous statutes, the main object of legislation being to bring within the law of larceny offences which were not larcenies at common law, either because they were thefts of things of which there could be no larceny at common law, e.g. beasts ferae naturae, title deeds or choses in action, or because the common law regarded them merely as delicts for which the remedy was by civil action, e.g. fraudulent breaches of trust. The earliest act in the statutes of the realm dealing with larceny appears to be the Carta Forestae of 1225, by which fine or imprisonment was inflicted for stealing the king’s deer. The next act appears to be the statute of Westminster the First (1275), dealing again with stealing deer. It seems as though the beginning of legislation on the subject was for the purpose of protecting the chases and parks of the king and the nobility. A very large number of the old acts are named in the repealing act of 1827. An act of the same date removed the old distinction between grand and petit larceny.[1] The former was theft of goods above the value of twelve pence, in the house of the owner, not from the person, or by night, and was a capital crime. It was petit larceny where the value was twelve pence or under, the punishment being imprisonment or whipping. The gradual depreciation in the value of money afforded good ground for Sir Henry Spelman’s sarcasm that, while everything else became dearer, the life of man became continually cheaper. The distinction between grand and petit larceny first appears in statute law in the Statute of Westminster the First, c. 15, but it was not created for the first time by that statute. It is found in some of the pre-Conquest codes, as that of Æthelstan, and it is recognized in the Leges Henrici Primi. A distinction between simple and compound larceny is still found in the books. The latter is larceny accompanied by circumstances of aggravation, as that it is in a dwelling-house or from the person. The law of larceny is now contained chiefly in the Larceny Act 1861 (which extends to England and Ireland), a comprehensive enactment including larceny, embezzlement, fraud by bailees, agents, bankers, factors, and trustees, sacrilege, burglary, housebreaking, robbery, obtaining money by threats or by false pretences, and receiving stolen goods, and prescribing procedure, both civil and criminal. There are, however, other acts in force dealing with special cases of larceny, such as an act of Henry VIII. as to stealing the goods of the king, and the Game, Post-Office and Merchant Shipping Acts. There are separate acts providing for larceny by a partner of partnership property, and by a husband or wife of the property of the other (Married Women’s Property Act 1882). Proceedings against persons subject to naval or military law depend upon the Naval Discipline Act 1866 and the Army Act 1881. There are several acts, both before and after 1861, directing how the property is to be laid in indictments for stealing the goods of counties, friendly societies, trades unions, &c. The principal conditions which must exist in order to constitute larceny are these: (1) there must be an actual taking into the possession of the thief, though the smallest removal is sufficient; (2) there must be an intent to deprive the owner of his property for an indefinite period, and to assume the entire dominion over it, an intent often described in Bracton’s words as animus furandi; (3) this intent must exist at the time of taking; (4) the thing taken must be one capable of larceny either at common law or by statute. One or two cases falling under the law of larceny are of special interest. It was held more than once that a servant taking corn to feed his master’s horses, but without any intention of applying it for his own benefit, was guilty of larceny. To remedy this hardship, the Misappropriation of Servants Act 1863 was passed to declare such an act not to be felony. The case of appropriation of goods which have been found has led to some difficulty. It now seems to be the law that in order to constitute a larceny of lost goods there must be a felonious intent at the time of finding, that is, an intent to deprive the owner of them, coupled with reasonable means at the same time of knowing the owner. The mere retention of the goods when the owner has become known to the finder does not make the retention criminal. Larceny of money may be committed when the money is paid by mistake, if the prisoner took it animo furandi. In two noteworthy cases the question was argued before a very full court for crown cases reserved, and in each case there was a striking difference of opinion. In R. v. Middleton, 1873, L.R. 2 C.C.R., 38, the prisoner, a depositor in a post-office savings bank, received by the mistake of the clerk a larger sum that he was entitled to. The jury found that he had the animus furandi at the time of taking the money, and that he knew it to be the money of the postmaster-general. The majority of the court held it to be larceny. In a case in 1885 (R. v. Ashwell, L.R. 16 Q.B.D. 190), where the prosecutor gave the prisoner a sovereign believing it to be a shilling, and the prisoner
- ↑ This provision was most unnecessarily repeated in the Larceny Act of 1861.
