The Act

We have seen that D.47.2 (De Furtis) is made to start with an excerpt from Paul, 39 On the Edict. It contains his definition. But it does not start with it. It starts with the etymology, and within a few lines it has made the link between furtum and carrying off: furtum from ferre, and the text adds auferre for good measure.

How far did theftuous intent have to be manifested in conduct before liability could attach? At what point in the story did the law say that the theft had actually happened? What was the necessary and sufficient act? These three are all the same question, put in slightly different ways.

The words used in the definition are contrectatio rei, contrectation of a thing. We can assume for the moment that we know what a res is. Contrectation is more difficult. That is why it is anglicised rather than translated. The requirement of contrectatio is strongly and confidently asserted. Not only in Paul’s definition. At D.47.2.52.19 (Ulpian, 37 On the Edict), Ulpian says:

You cannot commit theft by word or by writing. For this is the law we use, that furtum sine contrectatione non fiat (theft does not happen without contrectation).

And we have already seen that Gaius had previously affirmed, at G.3.195:

Theft is committed not only when someone removes another’s thing for the sake of keeping it sed generaliter cum quis rem alienam invito domino contrectat (but, generally, when someone contrectates something belonging to another without the owner’s consent).

So contrectatio was for these jurists the necessary and sufficient act. The question is, What did it mean? If we confine that to these high classics, there are two other questions about the history. What did contrectatio mean later to Justinian who preserved its use? Was there an earlier period in which the act was differently denominated or understood?

i. What did contrectatio mean to the high classics?

In the dictionary contrectare can be seen to be a strong word for handling, something like �to get to grips with’. �Touching’ would be on the weak side. It therefore looks as though a statement such as �furtum sine con­trectatione non fiat’ means �without handling there can be no theft.’ That is the starting point. The question is whether they meant to take �handling’ literally. The alternative is that they might have meant it loosely, in a sense such as �meddling’ or �addressing’ or �interfering’, senses in which physical contact ceases to be necessary in every case.

There is room for prolonged argument. I start from the point that the stricter meaning is more likely. If contrectatio means, in ordinary usage, �handling’, it would seem to be rather remarkable to assert �You have to have handling’ while meaning that something less would do. Still, that is only a starting point. But there are some cases strongly in support.

Gaius, at G.3.202, gives examples of people who do not themselves commit theft but are liable to the actio furti for helping. The examples then work two ways. They are examples of complicity, also of not committing theft. Among them are the case of knocking coins out of a man’s hand or driving away his animals. Neither involves handling but both entail a looser notion of contrectation, meddling or interfering with the res. There can only be two reasons why on such facts the defendant has not himself committed theft, a deficiency of intent or a deficiency of act. If the reason is the latter, then the sufficient act must be handling.

It might be objected that he says �... non solum cum... amovet sed generaliter cum... contrectat (not only when he removes but also, gener­ally, when he contrectates)’.^[XLIV] The argument would be that there is amovere even if there is not handling of the coins and animals. That, in my view, mistakes the effect of the �not only... but also’ whose role is to contrast the lay view with the version selected by the law. What is the meaning ofgeneraliter? I think it is �generically’ in the sense of �right across the whole category’. As we might say �categorically’ or �defini­tively’. Its effect, if that is right, is to reinforce contrast between lay­man’s and lawyer’s version.

The next case is The Peacock.

My tame peacock flew from my house. You chased it quoad isperit (till it got lost). I shall be able to bring an actio furti against you provided that someone (aliquis) has begun to possess the bird.

This is not without difficulty, but as it stands it contains a proviso which can only be explained on one or other of the bases mentioned in relation to the last text. Why are you not a thief as soon as you chase? Either because mere meddling short of handling will not do or because your intent is wrong for theft. Nothing is said of your intent but the case is so much like those of Gaius I just discussed that we are entitled to incline to the view that the same point is in issue. Further if you lacked theftuous intent it is difficult to see that you should incur liability even after the intervention of aliquis. On the whole, the text supports the view that meddling was not enough.

The next case is The Filched Pedigree from Ulpian. It is D.47.2.52.20 (Ulpian, 37 On the Edict). Someone drives his mares to another's stallion to be served, or the stallion to the mares. Modestinus, who was Ulpian's pupil, wrote from Dalmatia asking whether Ulpian thought that was theft. Ulpian answered in the form �only if...'. The condition which we now see is �only if there was animus furandi, theftuous intent.' That is too banal. He would never have said, espe­cially not to his brilliant pupil, �Do remember that acts in themselves are neutral, till cumulated with the right intent.' It is obvious enough that the point of the operation was to avoid paying the stud fees. So why did Modestinus write? The case must have been interesting, interesting enough to do justice to their intellectual relationship. The clue comes from the nature of the facts and their location immediately after the assertion that there can be no theft without contrectatio. A case is always interesting if it puts common sense and technical doctrine in conflict.

What violence, if any, does this do to common sense? To make handling the necessary and sufficient act is to say in effect that the moment at which theft is committed is when it begins to be commit­ted. The central image has the thief leaving the house, getting the thing and carrying it back with him. The law had to choose when in that story the liability attached. It could not have chosen �leaving home' because that would have landed it in all the problems of sola cogitatio, liability for mere intent. Hence the range of choice was in reality narrowed down to the part of the story after the thief's conduct had actually manifested his theftuous intent in relation to the res. �Handling' is the choice of the beginning of that part of the story. �Carrying away' comes next. Later still �arriving home with his res' or �arriving at the place where the res is to be put'.

So far there is no obvious affront to common sense. The trouble arrives because thefts can begin in different ways.

There is therefore some difficulty in the fact that in some cases a theft may have advanced beyond the handling stage without any handling actually happening. I rush out and catch him while he is driving off my cow. It is obvious to everyone that he has not yet touched her at all. He has a technical defence. Caught too soon. This is offensive to common sense. But the number of cases in which the technical defence will actually work is minute. Forensic realities will take over. If you got my donkey home you will find it easy to persuade the judge of the rule that touching is required but difficult to convince him that you operated only with a carrot. So in practice the sacrifice of common sense is small. And the gain in precision is considerable. Notions such as �meddling' or �interfering' are vague. And besides being of doubtful scope they work back into the field of sola cogitatio. �Handling' is clear and precise. It is also a reasonably unequivocal manifestation in conduct of a theftuous intent which has gone beyond reflection and temptation.

ii. What did contrectatio mean to Justinian?

The Digest and Institutes continue to denote the act as contrectatio. However, there is some ground for saying that the compilers were inclined in this area to strike a different balance in the competition between precision and common sense. Another example will be given later, in The Loyal Slave, a case on the owner's consent.

The Filched Pedigree now says that the owner of the mares will be liable for theft provided only that he had animus furandi. We have already observed that that ruling is banal, doubly so when given in answer to a star pupil. How can the text be explained in its present form? I think the point is that Ulpian's insistence on handling gave the defendant a very technical defence and that Justinian's team just would not tolerate his getting off. That is why they said �If there is theftuous intent then on these facts he will be liable.' And there almost always would be. The switch to animus implies that Justinian was no longer insisting on a handling. Something less would do.

Further evidence consists in the preservation in the Digest of early authority concluding for theft even in the absence of any handling. That is one of the best ways to make one's position respectable: revive old authority. If Justinian had decided to adopt the rigorous require­ment of handling he could have cut out all traces of a contrary doctrine. The fact that he did not shows that he wanted to loosen up the developed position by recurring to an earlier truth. We will see this when we get into the next question.

iii. Was there an earlier doctrine and nomenclature?

There almost certainly was. The word contrectatio was only established as the technical term for the act during the Principate. Under Tiberius, Sabinus used the verb adtrectare,² which seems to have the same mean­ing though with, no doubt, some slightly different nuance. Possibly the two words were used side by side for a while. Suppose we go back before Sabinus. Can we say anything about the Republican period?

Nearly everyone says that the starting point must have been asport­ation. That is, the original requirement was that the res must have been taken away. There is no evidence for that at all, except the etymology fromferre, �to carry'. The etymology tells us the central case. Nobody will deny that carrying away is and always has been the first picture to come to mind. From this, however, it does not follow that asportation was ever required by the law as something without which theft could not be said to happen. The law has an extra task, which laymen never have to face. It is, to say when a plan to carry away can be said to have been sufficiently put into action for liability to attach. Unflinching commitment to the central image still does not exclude the selection of a moment very early in the story. Put the other way about, acceptance of carrying away as the paradigm case does not entail the proposition of law that theft does not happen till the carrying off is complete.

One other factor should be borne in mind. It is an attribute of a developed system, with a well-organised and stable body of authority, to be able to draw firm technical lines at points not easily settled by common sense. The question when a theft happens does not have a common sense answer. A system still without an accumulated body of authority must be expected to handle it intuitively, from case to case. There will not be any precise generalisation.

Asportation, if it ever was a requirement, put the moment of liability rather late in the story, a stage further on than the classical contrectatio. One factor suggests that the moment of liability will always, right from the Twelve Tables, have been earlier. Roman law dealt more severely with the manifest thief, as we shall see. Worse consequences attached if you were caught red-handed. A system which does that can hardly insist on asportation. For to do so would give a technical defence to one caught just before he had moved the res away. Quite apart from the fact that the early system is unlikely to have the muscle to be technical, �caught too soon' can never have gone down well when more severe consequences attached to earlier catching. I catch you with your hand on my jewel-box, red-handed. I am not going to be impressed by any attempt you may make to tell me that you have not yet physically removed it.

Another factor exerts a contrary force. It is probable that from earliest times it was true that, as in the formula of the actio furti, a plaintiff would have to name the res stolen. If the heavier consequences of red­handed theft suggest an early moment of liability this custom of

pleading imposes a limit. You will have to have manifested your intent in relation to some specific thing.

So what was required by way of act in the earliest period? One widespread view says asportation. The other, which I favour, says that the plan must have been put into action sufficiently to enable the plaintiff to name the res and substantiate the allegation thus advanced that �by Numerius Negidius theft was committed of a golden plate...’. On this second view the act is not named or otherwise specified. In a more amorphous way, it can be described as the initium furti, the beginning of the theft, with the acts varying according to the nature of the res and plan.

The first view has to suppose that the moment of liability was advanced from asportation to contrectation. Mommsen suggested that the aim was to penalise more thieves, there being no liability for mere attempts.^[45] The other view does not need to see any real change in the moment of liability, always very early in the story. Contrectatio on this view will have been hit on as a way of naming and making more precise the loose notion of the initium furti. Settling on a single description will have bought precision at the cost of some sacrifice of common sense.

Paul reports, and Justinian preserves, the case of The Mules. It is D.47.2.67.1 (Paul, 7 On Plautius). Someone dishonestly (dolo malo) calls a mule-driver off to court. His mules are lost in his absence. The old jurists (veteres) held in responsa that that was theft on the part of the in ius vocans. There is no handling. Yet the conclusion is for theft. The preservation of this old ruling is part of the evidence that Justinian did not want a strict insistence on handling. If the veteres are the jurists of the Republic the case appears to tell us that at that time contrectatio had not become a requirement. Those who start from asportation have either to explain the case away or to accept that the moment of liability was not moved from asportation straight to contrectatio but rather from asportation to initium furti to contrectatio, with the last step representing a retrenchment. That seems to be the view of Thomas.^[46] For him there was an intermediate phase in which theft was very wide indeed, deliberately made so in order to make good remedial deficiencies in the area of loss. On the other view The Mules fit in very easily. The

starting point is the initiumfurti. As the law grew up you would expect some case law illustration of the beginnings of thefts. The Mules would belong there, before the classics settled on contrectatio as the single sufficient act.

There are one or two other cases of similar kind, some explicable as including a contrectatio. Sabinus has one, The Toga. It is not preserved in the Digest but by Aulus Gellius. He reports that a iudex condemned a man who had been sued for theft of a fugitive slave because he had, by stretching out his toga, hidden him from his searching master's view.⁵ It is not clear whether Sabinus referred to this with approval or anecdotally. It does fit the picture of Republican and even early classical theft as lacking a firm description of the actus reus. And again the explanation may be deliberate enlargement from a requirement of asportation or illustration of the original idea, exemplification being the first juristic advance from an intuitive approach.

There are thus two versions of the pre-classical development in relation to the sufficient act. In one asportation gives way and the moment of liability is moved earlier in the story, probably to an un­named initium furti rather than straight to contrectatio. In the other the crucial moment is all along the beginning of the theft identified just intuitively and then by case-law illustration. The two versions meet up when, in the classical period, the decision is made to insist on a single description, contrectatio. Later Justinian diluted the precision of contrecta­tio by not insisting absolutely on immediate physical contact between the thief and the res.

The discussion has assumed that res required no exposition. That is not quite true. There are three points to be made. First, the res had to be movable, for land could not be stolen. That is implicit in the image of a carrying away. However, the selection of an early moment of liability opens the possibility of debate. Since liability is to attach before the carrying off is achieved, why adhere to the logical implications of the entire image? Thoughts of this kind may have influenced Sabinus's unsuccessful heresy that land could be stolen. Secondly, things divini iuris could not be stolen. There was the crime of sacrilege for those who committed the equivalent of furtum against the gods, as from temples and burial grounds; also the praetorian actio sepulchri violati, for violation of a tomb. In the same way those who stole from the state, res publicae, were guilty of peculatus, not liable for furtum. Thirdly, going back to a time when little or no distinction was made between patriarchal power over free dependants and ownership of property, there could be theft of sons, daughters and wives in manu. Gaius also mentions theft of judgement debtors and bonded gladiators (auctorati). To what extent actions for free dependents were actually brought can only be guessed. Justinian atJ.4.1.9 still repeats what Gaius says at G.3.199, deleting only the wife in manu long obsolete.

5.