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By Root 1686 0

that property is not a thing, but a social concept. The definition changes with the times, and from place to place. Millions of black human beings, for example, were “property” in the American South before the Civil War; they were bought and sold and traded on the market; it was a crime to steal a slave. The Thirteenth Amendment, as we saw, made slavery unlawful; from then on, slavery was legally impossible, and, in fact, to enslave became a crime. There have been societies where wives were bought and sold; and others in which nobody could individually own land, since all land was held in common. And so it goes.

Theft and related acts were crimes, of course, from the very outset in this country. Certainly, colonial law punished theft in all its manifestations. What is interesting is how dominant theft and its cousins became in nineteenth-century criminal justice. To be sure, forms of punishment had changed—thieves in most states could not be sent to the gallows. Nonetheless, if we ask what the criminal justice system did in, say, the early nineteenth century, the best answer is: it protected property and punished stealing. It tried to safeguard what people owned, their money and goods, against nimble fingers, defrauders, and holdup men.

Property crimes were the most frequently punished crimes—or, at least, the most frequently punished serious crimes, disregarding the countless minor cases of liquor violation, drunkenness, disturbing the peace, vagrancy, and minor assault—the ordinary harvest of petty crime. Fifty-eight percent of the offenses punished in Boston’s Municipal Court in 1830 were larceny cases, 71 percent of the cases that year in the Philadelphia Court of Quarter Sessions and the Court of Oyer and Terminer, 50.8 percent of the cases in the city courts of New York.1

The law distinguished between a number of crimes: simple larceny, or stealing, and two more serious versions of theft—burglary, which involved “breaking and entering,” and robbery, that is, stealing “by assault or any violence, and putting in fear.”2 A holdup is the classical form of robbery. The lines between larceny, robbery, and burglary were legally significant, because the kinds of threat were different. Burglary and robbery were violations of body space or the sanctity of the home, and were thus more menacing than simple theft.

The essence of burglary is breaking and entering. If you enter a house through an unlocked door, this is no burglary—there is entering, but no breaking. An interesting North Carolina case, from 1849, drew a hairline but significant distinction. A clever slave, in the middle of the night, came dashing up to James McNatt’s house and told him his mother’s plantation was on fire. McNatt rushed off, leaving his door unlocked; his wife was alone in the house with a baby and a “small servant girl.” The slave, Henry, waited a bit, walked into the house, demanded money, threatened the wife, and ran off with a tin trunk of notes and papers. He was caught, charged with burglary, and convicted; but the appellate court reversed. The unlocked door meant that the slave had not broken in.3 In a somewhat later case, however, a slave entered a cabin through the chimney, with the purpose (unlike Santa Claus) of robbing the house. He was convicted of burglary. The court distinguished between a chimney, which cannot be locked, and a window or door, which can.4 Courts were groping for a line between trickery and violence, between “simple” theft and a darker, more sinister kind.

Receiving stolen goods was an ancillary crime, apparently first singled out and labeled as a crime in the eighteenth century; the receiver was an “accessary” to the main crime. In the nineteenth century, “receiving” became an independent crime. “Every person,” so ran the Illinois version, who “shall buy or receive stolen goods ... knowing the same to have been so obtained,” was guilty of a crime and could be imprisoned. 5 Receiving stolen goods was a city crime, and a crime that took on special importance where people did not know each other, where relationships