What is theft? And how is it distinguished from robbery?

I respond and state First: The name of theft (furtum), just as that of robbery (rapina), is sometimes used in a very general sense — and thus, taken most generally, it can be defined as: the unjust taking and usurpation of another’s property. In this way, according to Augustine, Book ii, Questions on Exodus, Question 7, it is used in the Seventh Precept of the Decalogue, when it is said “You shall not steal” — for he says that one who forbade theft did not permit robbery. Augustine uses the name of robbery with the same generality when he writes: “If you found something and did not return it, you seized it” — as is reported in Causa XIV, Question 4.To this general signification can be accommodated that definition of theft found in l. 1, D. De furtis, where it is said to be the fraudulent handling of a thing for the sake of making a profit — whether of the thing itself, or also of its use or possession — explaining, that is, “fraudulent handling” as unjust handling. See Navarro, Chapter 17, No. 1, where he explains this definition.I state Second: Theft taken so broadly can be divided into occult theft, violent theft, and fraudulent theft.Occult theft, which is most properly called theft and is commonly understood by the name of theft, is defined by the Theologians as: the secret taking away of another’s property, against the will of the owner. St. Thomas here, Question 66, Article 3; Arragon, ibid.; Soto, Book 5, Question 2, Article 1; Molina, Volume ii, Disputation 68, No. 16; and others throughout. Some add “and unjust” — but this does not seem necessary, since “unjust” is sufficiently contained in the other parts; nothing, however, prevents its being added for the sake of greater clarity.The said definition has three principal parts.

The first is: secret taking or acceptance. Under the term “acceptance” is also understood detention, which is tantamount to acceptance — because acceptance and the detention of what has been accepted, when the same circumstances and actions are present, are morally considered the same act. Hence if someone detains unjustly what he even justly accepted — for example, on loan, or what he took up by finding it — not restoring it at the proper time and place, he commits theft; because he does the same as if he were then first taking it unjustly; as St. Thomas holds in the place cited, in the Reply to the 2nd objection.Secret is added in order to distinguish it from robbery properly and specially so called — for robbery is not done with the owner unaware, but with him knowing and resisting as much as he can. As for the word secret, understand it from the intention of the one who takes. Hence if someone were to take away another’s property while the owner was watching but the taker did not know this, he would commit theft, not robbery.Someone will say: A crime does not appear to take its species or specific distinction from being secret or open; therefore, the specific nature of theft is not correctly established in its being done secretly.It is replied: When being secret is the cause of the sin — as when someone uses concealment in order to sin — then it constitutes the species of the sin. But if someone uses concealment only to avoid shame or punishment, it will be merely a circumstance of the sin, as St. Thomas holds in the place cited, ad 1. This reasoning can be supplemented and perfected from what the same Thomas has in Article 4, in the body, and ad 1 of the same question, and in Article 9 — namely, that theft and robbery have the nature of sin because the taking is involuntary on the part of the one from whom something is taken, or because it is done against his will. Hence, according to the different nature of the involuntary found in one and in the other, they can be distinguished in species. Now a secret taking causes one kind of involuntariness in the one from whom it is taken, and an open taking causes another — because there is one kind of involuntariness by reason of ignorance, and another by reason of violence; and from this arises the specific diversity between theft and robbery.The second part of the given definition is: the taking of another’s property. For the taking of one’s own property, which is in another’s possession, is not theft insofar as it is at least the taking of one’s own thing — although it can be theft insofar as that thing was pledged or lent to the other, as Bonacina, Volume ii, On Restitution in Particular, Disputation ii, Question 8, Point 1, notes from Filuccius — for then there is taken from him his right that he had in that thing for his security or for the use of the lent thing. In a similar manner, one would commit theft who took a thing of which he indeed had dominion and property, but another had the usufruct or use.Another’s property is here properly said of what is possessed by another with true dominion or quasi-dominion — as even incorporeal things, as jurists call them, are possessed, such as rights, servitudes, and rents. And thus, on account of this part, one who takes or carries off a free person — for example, another’s wife or daughter — is not properly said to commit theft; because in this sense a free person is not properly another’s property, since a free person has no owner by whom he is possessed. Such a person is said to commit properly the crime of plagium (man-stealing), if he carries them off to sell or keep as a slave; but speaking generally and less properly, he can be said to commit theft. If he carries off someone only for licentious enjoyment of the person, it is then called the crime of rape. If, however, he carries off another’s slave to sell or to have serve him, it will be true and properly called theft — because a slave is, as it were, the money of the owner, and thus it is a taking of another’s property.By the same second part, the causing of damage that someone secretly inflicts upon another without personal benefit — that is, without applying another’s property to oneself — can be excluded; such as when someone secretly sets fire to another’s house or crops. For this is not, properly speaking, the taking of another’s property, but only its destruction; hence such a person is not customarily called a thief by that name.The third part of the definition is: against the will of the owner. For if someone were to think, on some just ground, that the owner did not object to his taking of the thing, he would not commit theft even if he took it secretly — because taking occurs with the owner’s consent, and no injury is done to one who consents. See Sylvester, V. Furtum, Question 1; Bonacina above. In what is said, against the will of the owner, understand — that is, reasonably. Hence one who is in extreme necessity and takes another’s property, even without the owner’s consent and against his explicit refusal, does not commit theft — because the owner is not reasonably unwilling in that case. The same applies (says Bonacina) to one who takes heretical books from someone who does not have the faculty of reading them, so that he does not read them; and to one who takes away a sword from someone to prevent him from unjustly killing another — though understand this when it is established that he is already plotting another’s death.By the same clause there are also excluded certain injuries committed in contracts — some, because they are not done simply against the owner’s will, such as usury taken on a loan; others, because they do not properly appear to be secret takings of another’s property. So also one who defrauds in contracts does not so much intend to take another’s property, as he desires that the owner not notice the injustice of the contract.Some add that it must be a taking of a movable and corporeal thing — as Sylvester, V. Furtum, and he seems to base himself on Quod autem dictum est, Instit. De usucapionibus. But according to the common opinion of Theologians, these are better omitted — for there can also be theft of another’s field when it is invaded, and one can secretly occupy another’s rights. It is to be observed, however, that just as these have different names in law, so also they should be pursued by different actions; but since in the forum of conscience the thief is to be dealt with in the same manner regarding all of these, it is not necessary for Theologians to multiply terms in this way, as Malderus, Treatise 4, Chapter 1, Doubt 1, notes.St. Thomas in the cited question omitted that part against the will of the owner — very likely because he judged that another’s property is not taken when it is taken with the owner’s consent — which in a certain sense can be said not entirely inconveniently.You ask: Whether if someone takes another’s property while the owner watches and does not object, he is said to commit theft and to be bound to restitution?It is replied in the affirmative, if the owner is silent out of fear or shame — as often happens when those more powerful take certain things from inferiors or subjects; for then the owner is unwilling, l. penult., D. De furtis. It is otherwise if he is silent without fear or occasion of shame — for then the owner is not considered to be unwilling. Cap. Error, Dist. 23; Navarra, Book iii, Chapter 4, No. 379; Sylvester above; Azorius, Part 3, Chapter 5, No. 11; Bonacina above.Violent theft or robbery, taken in the special sense, is: the violent taking of another’s property against the will of the owner — that is, while he is watching or aware and unable to prevent it.This definition is sufficiently clear from what we have said thus far. From these things it is also easily understood how theft and robbery, both taken in the special sense, are distinguished from each other — namely, that robbery includes violence, which occurs in the presence and sight of the owner or at least of those who have care of the thing; which violence theft excludes. And therefore robbery places a new kind of involuntariness in the owner, and consequently a distinct kind of injury, as we indicated above from St. Thomas. Hence robbery is a more grave sin than occult theft, all else being equal, as St. Thomas teaches, cited question, Article 9; Cajetan ibid.; and others throughout.Hence if someone were even only mentally disposed such that what he was taking secretly he would have taken violently had the owner appeared and wished to prevent it, he must be considered guilty not only of theft but of robbery — which he will accordingly be bound to explain in confession. And this applies with stronger reason to one who takes a thing in the presence of an owner who does not resist, because he sees the other is prepared for violence which he cannot resist.If, however, the thief is unaware of the owner’s presence and does not contemplate using violence, while the owner of the thing watches and flees struck by a groundless fear, this will not be considered the crime of robbery, but of theft only.Fraudulent theft, taken in the special sense, is said to occur when someone cunningly circumvents another and claims another’s property for himself under the appearance of justice. Such theft is committed by those who employ frauds in buying or selling goods — as when they buy below the just price or sell above it; likewise when they sell damaged goods as intact; also when they use unjust weights or measures, etc.From what has been said, it is easy to gather what are, as it were, the species of theft taken generally: namely, theft strictly and altogether so called, robbery, and fraudulent theft — although the latter does not seem to differ from theft strictly so called so much by a specific difference as by a connotation, with which it can accordingly be comprehended together. For in these there does not appear a different kind of involuntariness on the part of the one who is unjustly deprived of his property, and consequently no different kind of injury — whether someone is secretly deprived of his goods through a fraudulent contract or through the secret removal of the thing, this seems to make little difference to the nature of the involuntariness and the injury he suffers. Although in the meantime the injustice committed in a contract is not so commonly called by the name of theft — just as those who commit it are not so commonly called thieves, but rather by the general name of iniquitous and unjust men.Furthermore, for theft strictly so called, certain quasi-accidental species can further be assigned, which differ not so much in the nature of the injustice as in the nature of the matter or some other accidental element. Of this kind are, for example: peculatus (embezzlement of public funds), when someone plunders the treasury of a community; sacrilege, when someone secretly removes a sacred thing, or profane things from a sacred place. To these some also refer plagium (man-stealing), by which a free person is carried off into slavery — but, as is clear from what was said before, this is not rightly placed among such species of theft except perhaps of theft taken analogically, since a free person is not a thing possessed by dominion or quasi-dominion.