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Protecting Trade vs. Protecting Individualism

The explosion of trade during the fifteenth and sixteenth centuries created the need to protect property entrusted to carriers. The courts were faced with rules of larceny that had been established when most transactions were face-to-face and not national, much less transnational, in scope. Courts and legislatures were anxious to protect burgeoning trade and sometimes created fictions to capture persons who otherwise did not fit within the “elements” of larceny. Thus, the infamous Carrier’s Case, discussed below, sought to protect merchants who almost by necessity had to “entrust” their property to others.

On the other hand, the “caveat emptor” ideology of the day, that individuals, and not the state, should protect themselves from loss whenever possible, made courts reluctant to broaden the net of the criminal law. For example, in R. v. Wheatley, 2 Burr. 1125, 97 Eng. Rep. 746 (1761), the defendant had unquestionably defrauded the victim by asserting that the cask of amber beer that he sold him contained 18 gallons, while in fact it contained only 16. Nevertheless, when the defendant was prosecuted for larceny, the court acquitted. Lord Mansfield held that the defendant had committed no crime: This was “only an inconvenience and injury to a private person, arising from that private person’s own negligence and carelessness in not measuring the liquor upon receiving it.” Mr. Justice Wilmot concurred, declaring that “it was [the victim’s] own indolence and negligence if he did not [measure the beer].” In such an atmosphere, courts were unlikely to protect victims by criminalizing the defendant.[4]

Given these different pressures, it may not be surprising to see courts and legislatures maneuvering, from one fact pattern to another, to mold doctrine to reach the “correct” result. However, such distortions of the “rule of law” inevitably created confusion and intricate, if artificial, distinctions among crimes. It surely would have been better if the courts had created new offenses rather than stretch and distort the definition of larceny. But the history of the law, as Mr. Justice Holmes said, has been experience and not logic. Too bad.

In the nineteenth century, the task of defining and expanding the reach of the criminal law while reducing the impact of the death penalty shifted from courts to the legislatures. In the latter part of our own century, legislatures, abetted by courts, have slowly sought to clarify and rationalize the law of property offenses. The Model Penal Code is one of several such attempts.

[4] The case was different, however, when false weights or tokens were used. There, the argument was, the victim could not have protected himself against fraud. Statutes punished such “cheating” but not with the death penalty. This limitation is not uniquely English. French law, at least as late as 1952, punished as criminal only elaborate swindling schemes, and mere misrepresentation was not punished. See MPC Commentary, part II, §223.1 n.5, p.130 (1980).

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