29.13. 13. That we must not separate Laws from the End for which they were
made: of the Roman Laws on Theft.
When a thief was caught in the act,
this was called by the Romans a manifest theft; when he was not detected
till some time afterwards, it was a non-manifest theft.
The law of the Twelve Tables ordained that a manifest thief should
be whipped with rods and condemned to slavery if he had attained the age
of puberty; or only whipped if he was not of ripe age; but as for the
nonmanifest thief, he was only condemned to a fine of double the value
of what he had stolen.
When the Porcian laws abolished the custom of whipping the citizens
with rods, and of reducing them to slavery, the manifest thief was
condemned to a payment of fourfold, and they still continued to condemn
the non-manifest thief to a payment of double.
[20]
It seems very odd that these laws should make such a difference in
the quality of those two crimes, and in the punishments they inflicted.
And, indeed, whether the thief was detected either before or after he
had carried the stolen goods to the place intended, this was a
circumstance which did not alter the nature of the crime. I do not at
all question that the whole theory of the Roman laws in relation to
theft was borrowed from the Lacedmonian institutions. Lycurgus, with a
view of rendering the citizens dextrous and cunning, ordained that
children should be practised in thieving, and that those who were caught
in the act should be severely whipped. This occasioned among the Greeks,
and afterwards among the Romans, a great difference between a manifest
and a non-manifest theft.
[21]
Among the Romans, a slave who had been guilty of stealing was thrown
from the Tarpeian rock. Here the Lacedmonian institutions were out of
the question; the laws of Lycurgus in relation to theft were not made
for slaves; to deviate from them in this respect was in reality
conforming to them.
At Rome, when a person of unripe age happened to be caught in the
act, the prætor ordered him to be whipped with rods according to his
pleasure, as was practised at Sparta. All this had a more remote origin.
The Lacedmonians had derived these usages from the Cretans; and
Plato,
[22]
who wants to prove that the Cretan institutions were designed
for war, cites the following, namely, the power of bearing pain in
individual combats, and in thefts which have to be concealed.
As the civil laws depend on the political institutions, because they
are made for the same society, whenever there is a design of adopting
the civil law of another nation, it would be proper to examine
beforehand whether they have both the same institutions and the same
political law.
Thus when the Cretan laws on theft were adopted by the Lacedmonians,
as their constitution and government were adopted at the same time,
these laws were equally reasonable in both nations. But when they were
carried from Lacedmon to Rome, as they did not find there the same
constitution, they were always thought strange, and had no manner of
connection with the other civil laws of the Romans.
Footnotes
[20]
See what Favorinus says in "Aulus Gellius," book xx, chap. 1.
[21]
Compare what Plutarch says in the "Lycurgus" with the laws of the
"Digest," title De furtis; and the "Institutes," book iv, tit. 1, sections 1, 2,
3.
