Montesquieu
 

XXIX.13 That laws must not be separated from the purpose for which they have been made. On Roman laws relative to theft

When the thief was caught with the sto­len object before he had taken it to the place where he had deci­ded to hide it, that was what the Romans cal­led a mani­fest theft ; when the thief was dis­co­ve­red only after­wards, it was a non-mani­fest theft.

The law of the Twelve Tables pres­cri­bed that the mani­fest thief be bea­ten with rods and redu­ced to sla­very if he was an adult, or only bea­ten with rods if he was not ; it condem­ned the non-mani­fest thief only to pay dou­ble the value of the sto­len object.

When the Porcian law had abo­li­shed the prac­tice of bea­ting citi­zens with rods and redu­cing them to sla­very, the mani­fest thief was sen­ten­ced to qua­dru­ple the value,1 and they conti­nued to punish the non-mani­fest thief with dou­ble the value.

It seems bizarre that these laws should have put such a dif­fe­rence in the qua­lity of these two cri­mes and in the punish­ment they inflict ; indeed, whe­ther the thief was caught before or after car­rying the object to the place he of his des­ti­na­tion was a cir­cum­stance which in no way chan­ged the nature of the crime. I can­not doubt that the whole theory of Roman laws on theft was taken from Lacedæmonian ins­ti­tu­tions. Lycurgus, with an aim to deve­lop­ping skill, shrewd­ness and acti­vity in his citi­zens, wan­ted chil­dren to be trai­ned in stea­ling, and wan­ted those who let them­sel­ves get caught to be whip­ped ; that esta­bli­shed for the Greeks, and sub­se­quently for the Romans, a great dif­fe­rence bet­ween mani­fest and non-mani­fest theft.2

Among the Romans, the slave who had sto­len was flung from the Tarpeian Rock. There Lacedæmonian ins­ti­tu­tions can­not be bla­med ; the laws of Lycurgus on theft had not been made for sla­ves ; to do dif­fe­rently from them on this point was to fol­low them.

In Rome, when a child under age had been caught stea­ling, the præ­tor had him bea­ten at his dis­cre­tion with rods, as they did in Lacedæmon. All this went back still far­ther. The Lacedæmonians had taken these prac­ti­ces from the Cretans ; and Plato, who wants to prove that the Cretans’ ins­ti­tu­tions were made for war, cites this one3 : the abi­lity to bear pain in indi­vi­dual com­bats and in thefts that requi­red one to hide.

As civil laws depend on poli­ti­cal laws, because it is always for a society that they are made, it would be a good thing if, when one wants to take a civil law from one nation to ano­ther, it was pre­viously exa­mi­ned whe­ther they both have the same ins­ti­tu­tions and the same poli­ti­cal law.

Thus, when the laws on theft pas­sed from the Cretans to the Lacedæmonians, since they pas­sed with the govern­ment and even the cons­ti­tu­tion, those laws were as sen­si­ble for one of these peo­ples as they were for the other. But when from Lacedæmon they were taken to Rome, as they did not find the same cons­ti­tu­tion there, they were always foreign, and had no rela­tion­ship to the Romans’ other civil laws.

See what Favorinus says about Aulus Gellius, book XX, ch. i.

Cf. what Plutarch says in Life of Lycurgus, with the laws of the digest, at the title Furtis, and the Institutes, book IV, tit. 1, §1–3.

Laws, book I.