Montesquieu
 

XXIX.12 That laws that appear the same are sometimes different in reality

Greek and Roman laws puni­shed the recei­ver of sto­len goods the same as the thief1 ; French law does like­wise. The for­mer were rea­so­na­ble, the lat­ter is not. For the Greeks and for the Romans, the thief being sen­ten­ced to a pecu­niary penalty, the recei­ver had to be puni­shed in the same way : for every man who contri­bu­tes in wha­te­ver way to damage must make repa­ra­tion. But for us, the punish­ment for theft being capi­tal, we could not without taking things too far punish the recei­ver the same as the thief. There are a thou­sand ways in which the man who recei­ves the sto­len item can do so inno­cently ; the man who steals is always guilty ; the one pre­vents convic­tion for a crime already com­mit­ted, the other com­mits that crime ; eve­ry­thing is pas­sive in one, and there is an action in the other ; the thief must sur­mount more obs­ta­cles, and his heart har­den itself for lon­ger against the laws.

The juris­consults went far­ther : they regar­ded the recei­ver as more repu­gnant than the thief ; for without them, they say, the theft could not long be hid­den.2 That, once more, might have been valid when the penalty was pecu­niary : it was about damage, and the recei­ver was ordi­na­rily in a bet­ter posi­tion to repair it ; but the penalty having become capi­tal, one would have to go by dif­fe­rent prin­ci­ples.

Law 1 following De receptatoribus.

Law 1 following De receptatoribus.