CHAP. XIII.: 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 fact, this was called by the Romans an open theft; when he was not detected till some time afterwards, it was a private theft.

The law of the twelve tables ordained, that an open thief should be whipt with rods, and condemned to slavery, if he had attained the age of puberty; or only whipt, if he was not of ripe age; but as for the private 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 open thief was condemned to See what Favorinus says in Aulus Gellius, book xx. chap. 1. ^†858 a payment of four-fold, and they still continued to condemn the private thief to a payment of double.

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 but the whole theory of the Roman laws in relation to theft was borrowed from the Lacedæmonian 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 fact should be severely whipt: this occasioned among the Greeks, and afterwards among the Romans, a great difference between an open and a private theft Compare what Plutarch says in the life of Lycurgus with the laws of the Digest, title de Furtis; and the Institutes, book iv. tit. 1. sect. 1, 2, and 3. ^†859.

Among the Romans a slave who had been guilty of stealing was thrown from the Tarpeian rock. Here the Lacedæmonian 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 fact, the prætor ordered him to be whipt with rods according to his pleasure, as was practised at Sparta. All this had a more distant origin. The Lacedæmonians had derived these usages from the Cretans; and Plato Of laws, book 1. ^†860, who wants to prove that the Cretan institutions were designed for war, cites the following, namely, the habit or power of bearing pain in private combats, and in punishments inflicted for open thefts.

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 before-hand whether they have both the same institutions, and the same political law.

Thus when the Cretan laws on theft were adopted by the Lacedæmonians, 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 Lacedæmonia to Rome, as they did not find there the same constitution, they were always thought strange, and had no manner of connexion with the other civil laws of the Romans.