The Legal Context of Armory

‘The Law of Charity’

Whilst allegations of finding were a prevalent fiction in the old forms of action at common law, they also had a non-fictitious, substantive role to play. It seems that a plea of finding could work to the advantage of a defendant charged with trespass or detinue sur bailment. In Isaack v Clark, Coke CJ declared that a finder who kept goods in safe custody for their owner committed no wrong:

it is the law of charity, to lay up the goods which do thus come to his hands by trover, and no trespass shall lie for this.[94]

We do not know much about the origins of this proposition. Certainly it was contemplated arguendo by Littleton in the case of 1455 discussed above,[95] and implicitly accepted by the court in allowing the plaintiff his writ of detinue. In the years that follow, we find many opinions in the same terms, and it may be that initially the expression of charity was a fiction designed to move proceedings out of trespass and into detinue.[96] In a case of 1467, the plaintiff brought trespass for certain goods carried away.[97] The defendant pleaded to the action that he was executor for a testator who was co-owner with the plaintiff; that he had found the goods complained of amongst those of the testator; that he had taken them to keep them safely for the plaintiff; and that for this reason the plaintiff should have brought his claim in detinue rather than trespass. Nedham J allowed the plea:

This is a plea to the action, for it is a good justification, for it was lawful for him to take them when he found them among his testator’s goods, for if a man lose a thing in the road and I come and find the thing in the road and take it to guard it for the use of him that lost it, if he bring trespass against me of this thing I shall plead this to the action and not to the writ, for it was allowable for me to take it for the use of him that lost it.[98]

Soon this idea of lawfulness was developed to give the plea a more substantive flavour. In 1485, Donnington J characterised the finder’s justification as an invocation of jeopardy: a finder might justify himself, and so escape a writ of trespass, by taking goods ‘for the sake of saving them’.[99] This was followed in 1505, where Kingsmill J refused to allow a defendant to justify for trespass of a quantity of corn carried away because the corn was not ‘in peril of perishing’.[100] By the time of Isaack v Clark we have the beginnings of a doctrine of rightful and wrongful finding, such that one who takes goods for the sake of their owner cannot be charged in trespass, but ‘where one takes goods, where there is no such danger of being lost, or findes them before they are lost, otherwise it shall be’.[101] In substantive law, this amounted to holding that a finder of goods could not excuse himself in trespass merely by claiming that he found the goods. Something must be ‘lost’ before it could be found. This proposition was not much developed in the civil courts of the seventeenth century, but the same question would arise again in the criminal context of larceny, to which now we turn.[102]

Larceny by Finding

To complete our contextual picture of finding allegations, we must note that they have always been significant to criminal liability for theft offences. Bracton defined theft as ‘the fraudulent mishandling (contrectatio) of another’s property without the owner’s consent, with the intention of stealing’.[103] In Roman law contrectatio was a term with many meanings.[104] In England, its import was restricted to the situation where the actions of a thief effected a physical change in the possession of the goods stolen,[105] and for that reason there came quickly to be an association between larceny and trespass, such that the former would not lie without the latter.[106] Once it was established through the ‘law of charity’ that it was not trespass to take up lost goods, it was neither larceny. So, in the seventeenth century, Coke declared confidently that there could be no larceny where goods were acquired by trover or finding, even when they were acquired dishonestly:

If one lose his goods, and another finde them, though he convert them, animo furandi, to his own use, yet it is no larceny, for the first taking is lawfull.[107]

Yet the ultimate root of this proposition, ie that larceny involved a trespassory violation of possession, as opposed to a more abstract interference with property, was far from uncontroversial. Consistently it was regarded as the principal difficulty of the law of theft,[108] and the history of larceny might well be understood as a series of attempts by the courts to circumvent the requirement in cases where it was felt that the dishonest conduct of the defendant demanded punishment. One notorious example is The Carrier’s Case of 1473,[109] where the Star Chamber convicted a carrier of larceny of the contents of certain bales of dyer’s weed. The objection that there was no taking on the facts[110] was overcome by holding that the bales entire had been bailed to the defendant, and not their contents, so that when he broke open the bales and removed the contents he committed a trespass.[111] In the fifteenth and sixteenth centuries, the concept of taking was extended to allow larceny in cases where servants took away goods entrusted to them by their masters,[112] and there was a similar extension in later cases where goods were obtained under false pretences. In R v Pear,[113] the defendant hired a horse from the prosecutor saying that he intended to go from London to Surrey, but later sold the horse at Smithfield market. The jury found that the defendant’s intentions were fraudulent from the start. With this, the judges thought him guilty of felony because ‘the parting of the property had not changed the nature of the possession … [which] remained unaltered in the prosecutor at the time of the conversion’.[114]

Similar circumvention of the requirement of trespassory taking can be seen from the late seventeenth century onwards in cases involving finders. The earliest known case is R v Lamb,[115] in which the driver of a hackney coach was convicted of stealing a trunk left behind by a passenger. Eventually the criminal law would come to recognise a specific offence of larceny by finding,[116] but its development was extremely incremental, and the rationale for counting a trespass on the facts of finding was never entirely clear. One solution was to extend the doctrine of breaking bulk to finding cases. There are traces of this from the late eighteenth century. R v Wynne [117] was another hackney coach case, where the driver made off with a box left under a seat, despite the shouts of the passenger who ran into the street after the coach on realising his loss. Eyre B directed the jury that it should only return a guilty verdict if it was satisfied that the driver had opened the box with an intention to embezzle its contents.[118] If he had simply detained the box in the hope of a reward, however much a breach of his moral duty to the passenger, yet it would be no larceny, since it was no taking to keep that which had been ‘thrown upon him by the negligence of the prosecutor’.[119] In Cartwright v Green,[120] where the defendant found 900 guineas hidden in the secret drawer of a bureau sent to him for repair, Lord Eldon confirmed the requirement of felonious taking,[121] but thought it would certainly exist if the defendant had broken open any part of the bureau which it was not necessary to touch for the purpose of repair.[122] This application of breaking bulk to the facts of finding was criticised in R v Thurborn,[123] in a passage which is relevant to our present study because it makes reference to the existence of a property right in a finder. Parke B considered it ‘difficult to apply a doctrine which belongs to bailment, where a special property is acquired by contract, to any case of goods merely lost and found, where a special property is acquired by finding’.[124] Probably this view depends too much on a contractual theory of bailment, which was then, and is now, much disputed, but in any event, despite Parke B’s view, The Carrier’s Case doctrine certainly played a part in the development of larceny by finding.

An alternative analysis followed R v Pear and used the increasingly fluid concept of legal possession to hold that, although goods were in fact out of the immediate custody of their owner, in law they continued in his possession, such that any assumption of them was a trespassory interference. This rationale is evident in a series of US cases that would later become significant in the determination of the property rights of finders.[125] In Lawrence v State of Tennessee,[126] a barber was indicted for larceny of US$480 removed from a pocket-book accidentally left behind by one of his customers. The Supreme Court of Tennessee thought that, at the time of the appropriation, the pocket-book was in the constructive possession of its owner, and that larceny lay well on the facts.

There was still a third view, which laid its emphasis on the facts available to the defendant at the time of finding, and which appears to have been concerned with punishing dishonesty. With some refinement it would provide the rationale for the specific offence of larceny by finding, and it would also generate again the distinction between rightful and wrongful finding that had first been the product of ‘the law of charity’. In R v Lamb the driver of a hackney coach was convicted of larceny of a trunk left there on the ground that he must have known who its owner was.[127] In an anonymous case of 1804, the defendant found a pocket-book on the highway and converted banknotes therein to his own use. Lawrence J held that a finder committed larceny if he converted the find and either he knew who its owner was, or there was some mark upon the goods by which the owner could be known.[128]

The case of 1804 was followed by Park J in R v Pope [129] and R v Kerr,[130] and the rule expressed in similar terms, but the difficulty with all of these cases is that none of them explains why the facts as they appeared to the defendant at the time of the alleged taking should have had any bearing on the more general and essential question whether there was a taking on those facts. In 1834, reflecting the contemporary concern to punish dishonesty, the Criminal Law Commissioners expressed the view that if a lost thing was taken not for the benefit of the loser, but with an intent from the first to appropriate it to one’s own use, then this should be larceny.[131] A rationale began to emerge on this basis in Merry v Green.[132] That was another case of concealed goods, in which the plaintiff found a purse of money in the secret drawer of a bureau he bought at auction. Much of the argument in the proceedings[133] turned on whether the plaintiff, as a purchaser, had a colourable right to the contents of the bureau, and ultimately Parke B ordered a retrial to allow the jury to consider disputed evidence that the auctioneer had sold the bureau ‘with contents’.[134] But assuming the defendant’s case, ie that the plaintiff had express notice that he did not have title to contents, the learned judge thought that the plaintiff’s appropriation was larceny.[135] First, the justification was expressed in terms of constructive possession that had echoes both of The Carrier’s Case and R v Pear. So we read that, although the sale at auction gave the plaintiff a property in the bureau, it did not give him lawful possession of the contents.[136] Later, we find more or less a rehearsal of the dictum of Lawrence J from the anonymous case of 1804:[137]