De Specialibus Legibus (lib. i‑iv)

[*](in Yonge, this is "A TREATISE ON THOSE SPECIAL LAWS WHICH ARE CONTAINED UNDER AND HAVE REFERENCE TO THE EIGHTH, NINTH, AND TENTH COMMANDMENTS ON THEFT.")I have in my previous treatises spoken of the laws relating to adultery and murder, and to all the subordinate offences which come under those head, with, as I persuade myself, all the accuracy which the case admits of, and now, proceeding in the regular order, I must consider what is the third commandment in the second table, but the eighth in all, if the two tables are taken together, namely, the commandment, "Thou shalt not steal." [*]( Exodus xx. 13,)

Whoever carries off or leads away the property of another when he has no right to do so, if he does it openly and by main force, shall be set down as a common enemy, and shall be prosecuted as having with lawless wickedness contrived a shameless act of audacity. But if he has done it secretly, endeavouring to escape notice like a thief, exhibiting some modesty, and making the darkness the veil of his iniquity, let him then be punished privately as only liable to condemnation in respect of the one individual whom he endeavoured to injure; and let him restore double the value of the thing stolen, making amends by his own most righteous suffering for the unrighteous advantage he has endeavoured to gain.

But if he is a poor man, and consequently unable to pay the penalty, let him be sold (for it is fitting that that man should be deprived of his freedom who for the sake of his most iniquitous gain has endured to become a slave to guilt), that he who has been ill-treated may not be allowed to depart without consolation, as if he appeared to have his claims disregarded by reason of the poverty of the man who has robbed him.

And let no one accuse this ordinance of inhumanity; for the man who is sold is not left as a slave [*]( Exodus xx. 13,)

And let him be content to pay the double penalty, or even to be sold, since he has committed no slight offence; sinning in the first place in that, not being content with what he had, he has desired more, encouraging a feeling of covetousness, a treacherous and incurable wickedness. Secondly, because he has cast his eyes on the property of others and longed for it, and has laid plots to deprive his neighbour of his own, depriving the owner of what belongs to him. Thirdly, because through his desire to escape detection, he very often keeps to himself all the advantage that can be derived from the thing he appropriates, and diverts the accusation so as to cause it to fall upon the innocent, thus making the investigation of the truth blind.

And such a man appears in some degree to be himself his own accuser, being convicted by his own conscience of the theft of those things which he has secretly stolen, being filled either with shame or fear, one of which feelings is a proof of his considering his action a disgraceful one, for it is only disgraceful actions which cause shame, and the other is a sign of his thinking it deserving of punishment, for punishment causes fear.

If any one being insanely carried away by a desire for the property of others attempts to steal it, and not being able easily to carry it off breaks into a house at night, using the darkness as a veil to conceal his wicked action, if he be caught in the fact before the sun has risen, he may be slain by the master of the house in the breaches, having accomplished the lesser object which he had proposed to himself, namely, theft, but having been hindered by some one from accomplishing the greater crime which might have followed it, namely, murder; since he was prepared with iron house-breaking tools which he bore, and other arms, to defend himself from any attack. But if the sun has risen, then let him no longer be slain by the hand of the master of the house, but let him be led away and brought before the magistrates and judges, to

For while men are remaining in their houses at night, and when they have betaken themselves to rest, whether they be rulers or private individuals, in either case there is no refuge or assistance for the offender; on which account the inmate of the house has the power of punishment in his own hands, being appointed magistrate and judge by the very time itself.

But in the day time the courts of justice and the council chambers are open, and the city is full of persons who will help to arrest the criminal; some of whom have been formally appointed guardians of the laws; and others, without any such appointment, by their natural disposition which hates iniquity, take up the cause of those who are injured; and before these men the thief must be brought; for thus the man who seeks revenge will escape the charge of arrogance or rashness, and appear to be acting in the spirit of the democracy. -