29.12. 12. That Laws which appear the same are sometimes really different.
The Greek and Roman laws inflicted the same punishment on the receiver
as on the thief;
[18]
the French law does the same. The former acted
rationally, but the latter does not. Among the Greeks and Romans the
thief was condemned to a pecuniary punishment, which ought also to be
inflicted on the receiver; for every man that contributes in what shape
soever to a damage is obliged to repair it. But as the punishment of
theft is capital with us, the receiver cannot be punished like the thief
without carrying things to excess. A receiver may act innocently on a
thousand occasions: the thief is always culpable; one hinders the
conviction of a crime, the other commits it; in one the whole is
passive, the other is active; the thief must surmount more obstacles,
and his soul must be more hardened against the laws.
The civilians have gone further; they look upon the receiver as more
odious than the thief,
[19]
for were it not for the receiver the theft,
say they, could not be long concealed. But this again might be right
when there was only a pecuniary punishment; the affair in question was a
damage done, and the receiver was generally better able to repair it;
but when the punishment became capital, they ought to have been directed
by other principles.
Footnotes
[18]
Leg. 1, ff. de receptatoribus.
