THEFT

It is odd to our eyes to see Theft constantly treated in the Roman texts as a delictum, i.e. a tort, though it would not seem so odd to an English lawyer of some centuries ago who was familiar with the Appeal of Larceny and the restitution of property which could be obtained upon a conviction. But furtum was also a crime and even the texts tell us that it was usually so handled, and theft in our law is also a trespass, though we hear much more of it as a crime. But as theft has requirements which trespass has not, closely resembling the requirements of furtum, it seems more convenient and useful to compare furtum with larceny than with trespass to property. The law of furtum underwent great historical changes tending to greater definiteness and fixity of rule. The Digest contains texts representing the different stages in this development; this is convenient for the historical study of the subject, but, it must be supposed, it was rather inconvenient to those who had to use the book as a code of law and therefore is not very convenient when we desire to see just what the law was in the time of Justinian. The first point to note is that the Roman law, so far as we know it, never had our highly technical rule of asportation: the thing need not have been moved.