Criminal Law - Theft & Fraud Notes
Extract from the 3rd Edition of Lacey, Wells and Quick, Reconstructing Criminal Law (CUP 2003) Chapter 4
II.a.i. The History of Theft
William Blackstone’s Commentaries, written in the middle of the eighteenth century, represent one of the first systematic expositions of the common law. His volume on criminal offences included a substantial section on ‘offences against private property’:
William Blackstone, Commentaries on the Laws of England 1765 Vol. IV p.230
'Simple larciny then is the 'felonious taking, and carrying away, of the personal goods of another'. This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt.'
In the next few pages, we shall examine the development of conceptions of theft since Blackstone's time, so as to provide a historical context in which to consider the contemporary law of theft. The history of theft produces a striking illustration of the way in which distinctive logics of legal argumentation may persist notwithstanding legal and social change, whilst also exemplifying a significant shift in the very basis of attributing criminal responsibility. Yet, despite the extensive legislative codification of property offences, many of the problems thrown up by the history of larceny reproduce themselves in a curious way in the modern law of theft. These traces serve to
II.a.i. The History of Theft
William Blackstone’s Commentaries, written in the middle of the eighteenth century, represent one of the first systematic expositions of the common law. His volume on criminal offences included a substantial section on ‘offences against private property’:
William Blackstone, Commentaries on the Laws of England 1765 Vol. IV p.230
'Simple larciny then is the 'felonious taking, and carrying away, of the personal goods of another'. This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt.'
In the next few pages, we shall examine the development of conceptions of theft since Blackstone's time, so as to provide a historical context in which to consider the contemporary law of theft. The history of theft produces a striking illustration of the way in which distinctive logics of legal argumentation may persist notwithstanding legal and social change, whilst also exemplifying a significant shift in the very basis of attributing criminal responsibility. Yet, despite the extensive legislative codification of property offences, many of the problems thrown up by the history of larceny reproduce themselves in a curious way in the modern law of theft. These traces serve to