Note 431 — Chapter II

Since the human race has existed there has been private property, however trifling and unimportant it may have been. It is therefore very unlikely that theft has ever been permitted431 (it is impossible to produce proofs in support of this), since it is difficult to imagine that anyone would consent to see himself stripped of things destined for his own use, to which, further he was more or less attached.432 But there is a great difference between a prohibited act and a crime. It is proved that among primitive peoples theft is not reckoned among the crimes. Hear the opinion of one of the greatest specialists in this field, Dr. Post. “We find here and there a phenomenon very surprising from our modern point of view, namely that theft is not universally regarded as a misdemeanor, but the thief rather respected for his cleverness. The maximum obligation that a theft lays upon the thief is simple restitution of the stolen property. The consequence of theft is thus simply the duty of restitution under the civil law.… Theft lies entirely outside of the province of criminal law.”433