Bracton: Thorne Edition: English. Volume 2, Page 425

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Volume 2, Page 425

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Of the action of theft.

[002] Among other appeals we must not fail to mention the action of theft, out of which
[003] an appeal arises, though it sometimes is decided [in another way] in various courts,
[004] as in the county court and courts baron, sometimes in the greater court of the king,

What theft is.

[006] [Therefore let us first see what theft is and how many kinds there are. Theft,
[007] according to the laws, is the fraudulent mishandling of another's property without
[008] the owner's consent,¹ with the intention of stealing, for without the animus
[009] furandi it is not committed.² I say ‘fraudulent’ [because] there is also another
[010] kind of mishandling without the owner's consent, rapine, which is the same with us
[011] as robbery.³ That is why a robber is a thief a fortiori, for who appropriates another's
[012] property more against the owner's will than he who seizes by force?]⁴

How many kinds of theft are there?

[014] [The kinds of theft are two, [a like punishment follows each offence,]⁵ for one is
[015] open and the other secret, that is to say, manifest and not manifest.⁶ It is not
[016] manifest where one is suspected of theft through ill-repute in the countryside,
[017] through indictment and accusation,⁷ where serious presumptions lie against him
[018] but he is not found seised of any stolen property.⁸ But of this kind of theft we say
[019] nothing more at present because what is to be done as to that may be drawn from
[020] what has been said above.⁹ Manifest theft is where a thief is apprehended seised of
[021] the stolen property,¹⁰ that is, hand-having and back-bearing,¹¹ and is sued by him
[022] whose property it is [or one] called the sacrabar.¹² If, without any suit against him
[023] he confesses that he is the thief thereof before the sheriff or the coroners or the king's
[024] serjeant, with reputable men as witnesses, he may not subsequently deny the theft,
[025] [according to some the same will be true even if he is not found seised,] because
[026] such persons have record in this matter.¹³ ¹⁴[If he is not found seised of any
[027] stolen property], no one has the power of inquiring or of proceeding to inquests
[028] against him except the lord king in his court.¹⁵ ¹⁶And if he confesses the theft
[029] before the bailiffs or coroners he is not bound by such confession, [that is], if he is not
[030] found seised, though they would have record if he were seised.]¹⁷

One may at the outset sue civilly or criminally.

[032] ¹⁸since he who sues may from the outset sue civilly or criminally, whichever he
[033] pleases. For he may claim his property as lost,¹⁹ supporting his claim by the testimony
[034] of reputable men, and thus sue to recover his property though it is stolen.
[035] If he

Notes

1. Azo, Summa Cod. 6.2, no. 1: ‘Est autem furtum fraudulosa contrectatio rei alienae quae fit invito domino’; cf. Kantorowicz, 47

2. Inst. 4.1.7: ‘quia furtum sine affectu furandi non committitur’; supra 290, 384

3. Reading: ‘cum animo furandi, quia sine ... committitur. Fraudulenta dico, quia est etiam aliud genus ... domini, rapina, quae idem est ... roberia, et unde ...’

4. Inst. 4.2. pr

5. ‘et similis poena ... utrumque delictum, from line 11

6. Inst. 4.1.3; D. 47.2.2

7. ‘rettum’

8. Infra nn. 14-15

9. For the next sentence, infra nn. 16-17

10. D. 47.2.3. pr.: ‘fur est manifestus qui deprehenditur cum furto.’

11. Supra 346, infra 436

12. Infra 436; D. M. Stenton, English Justice, 55-6, 124

13. Supra 404, 409, infra 430

14-15. ‘Si ... in curia sua,’ from lines 18-21; infra 436

16-17. ‘Et si coram ... haberent,’ from lines 22-24; cf. Assise of Northampton, ca. 3

18. Continued from supra line 4: reading: quamvis [diversimodo] in diversis ... regis, cum ille qui sequatur,’ or om: ‘in diversis ... regis’, supra 411

19. P. and M., ii, 161 n.