§ 32.01 Theft: Historical Overview

§ 32.01 Theft: Historical Overview¹

This chapter considers three traditional theft² offenses: larceny, embezzlement, and false pretenses. As is explained below, larceny is a common law felony; the other offenses find their origins in English misdemeanor statutes.

In very early English history, only forcible appropriation of property, i.e., robbery, was punished.³ By the middle ages, however, jurists expanded the scope of the criminal law to prohibit nonviolent, albeit nonconsensual, dispossessions of personal property, i.e., larceny.

The law of larceny did not develop simply or smoothly. Various economic conditions, originating as early as the fifteenth century, placed pressure on the English courts to expand the scope of theft law in order to deter new forms of dishonest conduct. To a significant extent the courts cooperated with the economic interests of the time. Rather than create new theft offenses, however, the judges manipulated the elements of larceny to encompass the new conduct. The outcome was larceny law riddled with technicalities and intricacies.

At the same time, judicial displeasure with capital punishment, the penalty for all but the most petty larcenies, deterred English courts from broadening the law to the extent that economic conditions might have justified. Consequently, various lacunae in the law of larceny developed. The "cure" for the gaps was the enactment of statutory "gap-fillers," most importantly the misdemeanor offenses of false pretenses and embezzlement.

In recent years, some legislatures have consolidated the three crimes discussed in this chapter into a single offense, often denominated, simply, as "theft." These efforts at consolidation are briefly noted later.⁴ Notwithstanding the reform movement, lawyers cannot confidently ignore the centuries of theft law that preceded consolidation. "History has its own logic."⁵ Many of the substantive doctrines discussed below remain highly relevant today.

It should be noted that, of course, legislators in recent years, particularly with the advent of computers and the Internet, have enacted new theft crimes to further fill in holes in the traditional offenses, to deal with identity theft and other technology-enabled crimes. Although these new statutory crimes are not the subject of this chapter, many of them are founded on the traditional offenses. Therefore, the concepts described here are useful.

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Notes:

^[1] See generally Jerome Hall, Theft, Law and Society (2d ed. 1952)...