The primacy of the mental element

The attenuation of the physical element in furtum led inevitably to an increasing sharpness of focus on the mental state of the wrongdoer.

²⁵        (1664) Kel. 31.          ²⁶ S. 1(1).

²⁷        J. W. C. Turner (ed.), Kenny’s Outlines of Criminal Law (19thedn, Cambridge, 1966), 257.

²⁸        S. 1(1): ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’

²⁹        S. 3(1).

³⁰        See the eighth report of the Criminal Law Revision Committee, Theft and Related Offences ((1966) Crnnd. 2977), para 35: ‘[T]he offence will extend to ordinary stealing by taking property from another’s possession.’ It was this report that laid the basis for the new offence of theft.

³¹        J. C. Smith, The Law of Theft (1st edn, London, 1968), para. 27; E. Griew, The Theft Act 1968 (1st edn, London, 1968), para. 2.23 (implicitly); R. R. Stuart, ‘Reform of the Law of Theft’ (1967) 30 Modem Law Review 609, 624-5.

³²        Stuart (1967) 30 Modem Law Review 626.             ³³ [1984] A.C.

³⁴        See, for example, Shorter Oxford English Dictionary, s.v. ‘steal’, ‘thief’. The primacy of the popular conception is transparently visible in S. Gardner, ‘Is Theft a Rip-Off?’ (1990) 10 O.J.L.S. 441. It is central to the speech of Lord Lowry in Gomez [1993] A.C. 442. possible to distinguish between interferences which were theftuous and interferences which were not. It was not sufficient simply to specify that the interference had to be against the will of the owner, for such a test would not enable the Romans to draw any line between furtum and those cases of iniuriaclass=a0> or damnum iniuria datum that involved a deliberate invasion of property.

So long as liability was limited to cases of actual taking away, there was little need for precision in the specification of the mental element of the wrongdoer; it was enough that he had acted deliberately. Thus in D.47.2.67.2 Paul reports the view of the veteres that furtum was commit­ted by the man who dolo malo summoned a muleteer to court with the result that his mules disappeared.³⁵ By the end of the Republic, though, as the physical element had become more attenuated we find increasingly an emphasis that the wrongdoer had acted with a view to gain, lucri faciendi causa.³⁶ This also served to put a stop to the later republican tendency to extend the delict from the straightforward paradigm of taking to include cases of wrongfully causing loss, even where there was no gain. As well as the problematic case of the muleteer,³⁷ liability in furtum may have attached to the man who chased a peacock with the result that it was lost,³⁸ or by the person who waved a red rag at cattle, causing them to flee.³⁹ By the middle of the second century this expansive tendency had been checked, and the conception offurtum restricted to cases where there

³⁵        Paul, 7 ad Plautiunr.

³⁶        For example, Sabinus’ definition reported in Nodes Atticae 11.18.21. See generally J. A. C. Thomas, ‘Animus Furandi’ (1968), 19 lura 1, 2-6.

³⁷        D.47.2.67.2 (Paul, 7 ad Plautium). Watson has argued that this would mean that the wrongdoer was liable without animus furandi, which he would regard as an untenable belief (‘Contrectatio as an Essential of Furtum’ (1961) 77 L.Q. R. 526-7, ‘ “Contrectatio” Again’ (1962) 28 S.D.H.I. 337); yet this is what the text seems to say. But it does not seem too far-fetched to see this as indicating a broadening of the mental element and the causal connexion between the acts of the wrongdoer and the loss of the goods, analogous to the extension of the physical element visible in the move from subtraction to contrectatio. The only difference is that the latter became established law while the former did not.

³⁸        D.47.2.37 (Pomponius, 19 ad Sabinum: ‘Si pavonem meum mansuetum, cum de domo mea effugisset, persecutes sis quoad is perit, agere tecum furti ita potero [si aliquis eum habere coeperitj.’ ‘Si... coeperit’ has all the marks of an explanatory comment, though whether a comment of Pomponius on Sabinus or of a later hand on Pomponius is less easy to determine; the parallel formation ‘cum quis fugitivi fur esse coeperit’ in D.47.2.36 pr. (Ulpian, 41 ad Sabinum, quoting Pomponius) suggests that it might be genuine Pomponius, but for present purposes it does not matter.

³⁹        D.47.2.50.4 (Ulpian, 37 ad edictum), G.3.202. Analogous situations were discussed: knocking coins out of the hand or throwing goods overboard with the result that they are lost (D.9.2.27.21 (Ulpian, ad edictum); D. 19.5.14.2 (Ulpian, 41 ad Sabinum); D. 19.5.23 (Alfenus, 3 Digestorum a Paulo Epitomatorum); D.47.2.52.13 (Ulpian, 37 ad edictum)); freeing an animal or a slave (D.4.3.7.7 (Ulpian, 11 ad edictum); D.41.1.55 (Proculus, 2 was some intention to make a gain either for the wrongdoer himself or for some person acting in concert with him.⁴⁰ The malicious waver of the red rag was now liable to the actio furti only if he was assisting another to take the cattle, and not if he merely caused them to charge over a precipice or to be lost;⁴¹ in the latter case he might still be liable, but only to a decretal actio in factum.⁴²

As the physical element of furtum became attenuated, so it became necessary to be more specific in the formulation of the wrongdoer’s mental state. No longer was it sensible to require simply that the act have been done dolo malo; it had to have been done furti faciendi causa,⁴³ or animo furandi.⁴⁴ Any handling of a thing may constitute furtum, but only if it is part of a removal of the thing; and normally the only way to determine whether it is part of a removal is to examine the state of mind of the wrongdoer.⁴⁵ This had the effect of narrowing the potential scope offurtum, and also of anchoring the legal scope offurtum to its popular conception.

In the same way as the Romans, as the physical requirement of the crime of theft became broader the English lawyers shifted from a loose and undefined ‘felonious intent’⁴⁶ to a more precisely defined requirement that there must have been an intention to deprive the owner of his property.⁴⁷ Nevertheless, English law has not yet gone as far as the Romans did in delimiting the mens rea in order to keep the offence of theft within reasonable bounds.

Epistularum)). That the texts say so consistently that an actio furti is not available suggests that there was once a view that it would lie. See generally J. L. Barton, ‘The Lex Aquilia and Decretal Actions’, in Watson (ed.), Daube Noster, 15.

⁴⁰        For the development of furtum ope et consilio see G. MacCormack, ‘Ope Consilio Furtum Factum’ (1983) 51 T.v.R. 271.

⁴¹        See the texts referred to supra, n. 39. Similarly the glossed reference to falling into the hands of thieves in the case of the peacock, D.47.2.37 (supra, n. 38).

⁴²        Tradition treats the actio in factum as an offshoot of the lex Aquilia, but this is too simplistic. For present purposes it is enough to recognise that in his Institutes (G.3.202) Gaius treats it as a case of not-furtum. Whatever analytical nicety might have suggested, from a pedagogical point of view it was this that had to be stressed.

⁴³        D.47.2.1.1 (Paul, 39 ad edictum); D.47.2.22 pr., 1 (Paul, 9 ad Sabinum); D.47.2.21.7 (Ulpian, 41 ad Sabinum); D.47.2.39pr. (Ulpian, 41 ad Sabinum); D.47.2.91.1 (Javolenus, 9 ex Posterioribus Labeonis). D.47.2.39 pr., holding that rapere a prostitute is not furtum if the motive is lust rather than theft, appears to cause difficulties, but they are convincingly dispelled by Thomas (1962) 13 lura 72-6.

⁴⁴        D.47.2.43.5 (Ulpian, 41 ad Sabinum); D.47.2.52.20 (Ulpian, 37 ad edictum); D.47.2.76 (Pomponius, 21 adQuintum Mucium); P.S.2.31.35 (FIRA 2.356).

1.

⁴⁵        Handling after removal (supra, n. 20) is an exception to the normal rule.

⁴⁶        E. H. East, A Treatise of the Pleas of the Crown (London, 1803), 662.

⁴⁷        Cabbage (1815) R. & R. 292. Cf. Holloway (1848) 3 Cox 241 (where the increasing precision is treated by Denman, C.J. as a recent, and not wholly desirable, development). the wrongdoer should have any view to gain, merely that he should intend permanently to deprive the other of his property.^[133] In theory, therefore, the deliberate release of a caged bird^[134] or the intentional destruction of another’s property could be treated as theft, even though in practice they would invariably be regarded as criminal damage.^[135] The popular concep­tion of theft as unauthorised taking may still essentially determine the scope of the offence, but only by directing the way in which prosecutorial discretion operates rather than by dictating formal legal rules.