Introduction

Kidnapping at Common Law

Introduction

A statute that says only "kidnapping is a felony" leaves a real question open, because the word means one thing in conversation and another in the law books. In everyday speech, kidnapping describes seizing a person and holding him against his will, whether for ransom, in a custody dispute, or for some worse purpose. At common law the offense was far narrower. Kidnapping was a misdemeanor consisting of forcibly abducting or carrying away a person from his own country and transporting him into another country.¹ "Common law" here means law made by judges over time, as opposed to law enacted by a legislature.² A student who asks only whether someone was grabbed and held is using the everyday sense of the word, and that sense is much wider than the old offense. A person seized and confined inside his own country had suffered a different wrong, since common-law kidnapping amounted to false imprisonment aggravated by moving the victim to another country.³

This narrow, old definition still matters because codified criminal law keeps borrowing from it. Many states continue to recognize common-law crimes, and even states that do not must consult the common law to learn what a statutory crime means whenever the statute names an offense without defining it.⁴ A provision that punishes kidnapping or false imprisonment and says no more therefore sends the court back to the traditional definition for the baseline meaning. That baseline also makes modern statutes easier to read, because they are best understood as departures from it. Early common law required a forcible asportation, which is the carrying away of the victim, to another country, whereas modern statutes demand movement that need not be nearly so extensive, with jurisdictions differing on how much they require.⁵ Without knowing what the old rule demanded, a reader cannot tell which part of it a given statute has relaxed and which part it has kept.

The common-law definition also has a structure worth seeing before it is taken apart. Remove the cross-border removal and what remains is plain restraint of a person, which was itself a misdemeanor called false imprisonment.⁶ Kidnapping is that companion offense plus one aggravating fact, and that relationship dictates the order of this chapter. The lesson studies the kidnapping definition first, then turns to false imprisonment and the consent rules that limit it, since kidnapping borrows those ideas, and then returns to the combined elements to sort fact patterns before surveying how modern statutes depart from the baseline. The first job is to take the traditional definition apart piece by piece.