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 cast doubt on the extent to which older forms of viewing crime have been entirely displaced by modern conceptions of responsibility and wrongdoing.
Laws against theft (or 'larceny') count among the most historically and geographically pervasive forms of criminal law, yet the form of the offence is bound to be culturally specific: it reflects prevailing ideas of property (Fletcher, 1978:1-122). Blackstone's comment neatly captures not only the interaction between prevailing social formations and the form of criminal offences against property, but also the persistent controversy about the shape of those forms within any particular polity. From the seventeenth century on, there was in England a growing body of statutory law which specified many different instances of larceny, grading them as grand or petit, and distributing penalties accordingly. For example, horse theft, sheep and cattle theft, theft from bleaching grounds, theft from houses and ships, shoplifting and picking pockets were all categories singled out as grand larcenies, reflecting socio-economic structures, the demands of local economies, and (closely related) popular perceptions of the relative seriousness of different kinds of theft (Beattie 1986). Among these distinctions, places or locations, and specific objects, are of particular importance, suggesting a conception of larceny as essentially about the transgression of commonly recognised boundaries. But as the integrity of these boundaries gradually dissolved in more mobile and fragmented modern societies, criminal law increasingly struggled to articulate a determinate conception of theft.
In his extensive analysis of the development of the modern law of theft, Fletcher (1978) distinguishes between three basic kinds of property crime: larceny, embezzlement and false pretences. Larceny, as defined by Blackstone, consists in a felonious taking and carrying away of the personal goods of another: it must be felonious in the sense of being...