I am thinking of the technical rule as to trespass ab
initio, as it is called, which I attempted to explain in a recent
Massachusetts case.

Let me take an illustration, which can be stated in a few words, to show
how the social end which is aimed at by a rule of law is obscured and
only partially attained in consequence of the fact that the rule owes
its form to a gradual historical development, instead of being reshaped
as a whole, with conscious articulate reference to the end in view. We
think it desirable to prevent one man's property being misappropriated
by another, and so we make larceny a crime. The evil is the same whether
the misappropriation is made by a man into whose hands the owner has put
the property, or by one who wrongfully takes it away. But primitive law
in its weakness did not get much beyond an effort to prevent violence,
and very naturally made a wrongful taking, a trespass, part of its
definition of the crime. In modern times the judges enlarged the
definition a little by holding that, if the wrong-doer gets possession
by a trick or device, the crime is committed. This really was giving
up the requirement of trespass, and it would have been more logical,
as well as truer to the present object of the law, to abandon the
requirement altogether. That, however, would have seemed too bold, and
was left to statute. Statutes were passed making embezzlement a crime.
But the force of tradition caused the crime of embezzlement to be
regarded as so far distinct from larceny that to this day, in some
jurisdictions at least, a slip corner is kept open for thieves to
contend, if indicted for larceny, that they should have been indicted
for embezzlement, and if indicted for embezzlement, that they should
have been indicted for larceny, and to escape on that ground.

Far more fundamental questions still await a better answer than that we
do as our fathers have done. What have we better than a blind guess to
show that the criminal law in its present form does more good than
harm? I do not stop to refer to the effect which it has had in degrading
prisoners and in plunging them further into crime, or to the question
whether fine and imprisonment do not fall more heavily on a criminal's
wife and children than on himself. I have in mind more far-reaching
questions. Does punishment deter? Do we deal with criminals on proper
principles? A modern school of Continental criminalists plumes itself on
the formula, first s