XVIII
[18arg] The punishment which Draco the Athenian, in the laws which he made for his fellow-citizens, inflicted upon thieves; that of Solon later; and that of our own decemvirs, who compiled the Twelve Tables; to which it is added, that among the Egyptians thefts were permitted and lawful, while among the Lacedaemonians they were even strongly encouraged and commended as a useful exercise; also a memorable utterance of Marcus Cato about the punishment of theft.DRACO the Athenian was considered a good man and of great wisdom, and he was skilled in law, human and divine. This Draco was the first of all to make laws for the use of the Athenians. In those laws he decreed and enacted that one guilty of any theft whatsoever should be punished with death, and added many other statutes that were excessively severe.
Therefore his laws, since they seemed very much too harsh, were abolished, not by order and decree, but by the tacit, unwritten consent of the Athenians. After that, they made use of other, milder laws, compiled by Solon. This Solon was one of the famous seven wise men. 1 He thought proper by his law to punish thieves, not with death, as Draco had formerly done, but by a fine of twice the value of the stolen goods.
But our decemvirs, who after the expulsion of the kings compiled laws on Twelve Tables for the use of the Romans, did not show equal severity in [p. 345] punishing thieves of every kind, nor yet too lax leniency. For they permitted 2 a thief who was caught in the act to be put to death, only if it was night when he committed the theft, or if in the daytime he defended himself with a weapon when taken. But other thieves taken in the act, if they were freemen, the decemvirs ordered to be scourged and handed over 3 to the one from whom the theft had been made, provided they had committed the theft in daylight and had not defended themselves with a weapon. Slaves taken in the act were to be scourged and hurled from the rock, 4 but they decided that boys under age should be flogged at the discretion of the praetor and the damage which they had done made good. Those thefts also which were detected by the girdle and mask, 5 they punished as if the culprit had been caught in the act.
But to-day we have departed from that law of the decemvirs; for if anyone wishes to try a case of manifest theft by process of law, action is brought for four times the value. But “manifest theft,” says Masurius, 6 “is one which is detected while it is being committed. The act is completed when the stolen object is carried to its destination.” When stolen goods are found in possession of the thief (concepti) or in that of another (oblati), the penalty is threefold.
But one who wishes to learn what oblatum means, and conceptum, and many other particulars of the same kind taken from the admirable customs of our forefathers, and both useful and agreeable to know, will consult the book of Sabinus entitled On Thefts. In this book there is also written 7 a thing that is not [p. 347] commonly known, that thefts are committed, not only of men and movable objects which can be purloined and carried off secretly, but also of an estate and of houses; also that a farmer was found guilty of theft, because he had sold the farm which he had rented and deprived the owner of its possession. And Sabinus tells this also, which is still more surprising, that one person was convicted of having stolen a man, who, when a runaway slave chanced to pass within sight of his master, held out his gown as if he were putting it on, and so prevented the slave from being seen by his master.
Then upon all other thefts, which were called “not manifest,” they imposed a two-fold penalty. 8 I recall also that I read in the work of the jurist Aristo, 9 a man of no slight learning, that among the ancient Egyptians, a race of men known to have been ingenious in inventions and keen in getting at the bottom of things, thefts of all kinds were lawful and went unpunished.
Among the Lacedaemonians too, those serious and vigorous men (a matter for which the evidence is not so remote as in the case of the Egyptians) many famous writers, who have composed records of their laws and customs, affirm that thieving was lawful and customary, and that it was practised by their young men, not for base gain or to furnish the means for indulgence or amassing wealth, but as an exercise and training in the art of war; for dexterity and practice in thieving made the minds of the youth keen and strong for clever ambuscades, and for endurance in watching, and for the swiftness of surprise.
Marcus Cato, however, in the speech which he [p. 349] wrote On Dividing Spoils among the Soldiers, complains in strong and choice language about unpunished thievery and lawlessness. I have quoted his words, since they pleased me greatly: 10 “Those who commit private theft pass their lives in confinement and fetters; plunderers of the public, in purple and gold.”
But I think I ought not to pass over the highly ethical and strict definition of theft made by the wisest men, lest anyone should consider him only a thief who privately purloins anything or secretly carries it off. The words are those of Sabinus in his second book On Civil Law: 11 “He is guilty of theft who has touched anything belonging to another, when he has reason to know that he does so against the owner's will.” Also in another chapter: 12 “He who silently carries off another's property for the sake of gain is guilty of theft, whether he knows to whom the object belongs or not.”
Thus has Sabinus written, in the book which I just now mentioned, about handling things for the purpose of stealing them. But we ought to remember, according to what I have written above, that a theft may be committed even without touching anything, when the mind alone and the thoughts desire that a theft be committed. Therefore Sabinus says 13 that he has no doubt that a master should be convicted of theft who has ordered a slave of his to steal something.
