In some African countries a thief caught in the act may be killed with impunity.

The condemnation of theft, in one and the same people, varies in degree according to a variety of circumstances. It is influenced by the value of the goods stolen, as appears from the different punishments inflicted in cases where the value differs. Thus, when the penalty consists of a fine, its amount is often strictly proportioned to the loss suffered by the owner, the thief being compelled to pay twice, or three, or four, or five, or ten times the worth of the appropriated article. Among the Aztecs a petty thief became the slave of the person from whom he had stolen, whilst theft of a large amount was almost invariably punished with death."

According to the Koran, theft is to be punished by cutting off the offender's right hand for the first offence ; but a Sunneh law ordains that this punishment shall not be inflicted if the value of the stolen property is less than a quarter of a deenár. Ancient Scotch law proportioned the punishment of theft to the value of the goods stolen, heightening it gradually from a slight corporal to a capital punishment, if the value

(Bakoki), 346 (Karamojo). François, op. cit. p. 175 (Herero). Andersson, Lake Ngami, p. 197 (Ovambo). Casalis, op. cit. p. 228 (Basutos). Shooter, kafirs of Natal, p. 155. Tyler, op. cit. p. 192 (Zulus). Kolben, op. cit. i. 158 (Hottentots). Post, Afrikanische Jurisprudenz, ii. 88 sq.

i Hubbe-Schleiden, Ethiopien, p. 143 (Mpongwe). Cunningham, Uganda, p. 333 (Lendu). Burton, Zanzibar, ii. 94 (Wanika). Macdonald, Africana, i. 162, 183 (Eastern Central Africans). Macdonald, 'East Central African Customs,' in Jour. Anthr. Inst. xxii. 109. Supra, i. 289.

* Steinmetz, Rechtszerhüllnisse, p. 52 (Banaka and Bapuku). Nicole,

133 (Diakité-Sarracolese).
Beverley, ibid. p. 215 (Wagogo).
Bussman, op. cit. p. 142 (Negroes of
Hinde, op.


p. 107 (Masai). Post, Afrikanische Juris. prudens, ii. 91. Idem, Grundriss der

ethnologischen Jurisprudenz, ii. 420. Ta 7'sing Len Lee, sec. cclxix. $21: p. 284 599. (Chinese). Keil, Manual of Biblical Archæology, ii. 366. Laws of Manu, viii. 320 594. Wilda, Das Strafrecht der Germanen, p. 870 599: ; Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 296 5019. ; Stemann, Den danske k'etshistorie indtil Christian Vi's Lov, pp. 621, 677 sq. ; Brunner, Deutsche Rechtsgeschichte, ii. 639 s11. (ancient Teutons). Du Boys, Histoire du droit criminel de l'Espagne, p. 721.

3 Supra, ii. 4, 6 8, 12.

4 Bancroft, Natize Races of the Pacific States, ii. 450.

Koran, v. 42. Lane, Manners and Customs of the Modern Egyptians, p. I 20 sq.

Idem, Arabian Society in the Middle Ages, p. 20.

Sachau, Muhammedanisi hos Recht, pp. 810, 811, 825 $49.

ibid. P:


amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two sheep.' In England a distinction was made between “grand” and “petty larceny,” the line between them being drawn at twelve pence, and grand larceny was capital at least as early as the time of Edward I. Among various peoples custom

or law punishes with particular severity the stealing of objects of à certain kind, such as cattle, horses, agricultural implements, corn, precious metals, or arms. The Negroes of Axim, says Bosman, “will rather put a man to death for stealing a sheep, than killing a man. The Kalmucks regard horse-stealing as the greatest of all crimes. The ancient Teutons held cattle-lifting and robbery of

crops to be particularly disgraceful. According to Roman law, people who stole an ox or horse from the pastures or from a stable, or ten sheep, or four or five swine, might be punished even with death.” The natives of Danger Island, in the South Seas, punished with drowning anyone who was caught stealing food, “the most valuable property they knew of.”$ In Tahiti, on the other hand, those who

S stole clothes or arms were commonly put to death, whereas those who stole provisions were bastinadoed. Among other peoples the appropriation of a small quantity of food belonging to somebody else is not punished at all. The Masai do not punish a person for stealing milk or meat." Among the Bakoki“ it was not a crime to steal bananas. In ancient Mexico “ every poor traveller was permitted to

1 Erskine, Principles of the Law of 6 Grimm, Deutse he RechtsalterthuSiotland, p. 568. Innes, Scotland in mer, p. 636 sq. Wilda, op. cit. p. 875 the Middle Ages, p. 190. Mackintosh, sq. Nordström, op. cit. ii. 307. Brunner, History of Civilisation in Scotland, i. Deutsche Rechtsgeschichte, ii. 645 sq.

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Digesta, xlvii. 14. I. pr., 1, 3; ? Pollock and Maitland, History of English Law before the Time of Edward 8 Gill, Life in the Southern Isles, p. I. ii. 495 sq.

Brunner, Rechtsgeschichte, ii. 640. Stephen, 9 Cook, Journal of a l'oyage round History of the Criminal Law of Eng.

the World, p. 41 sq. landi, ii. 129.

10 Supra, i. 286 sq. Post, Gunlriss 3 Post, Grundriss der ethnologischen der ethnol. Jurisprudens, ii. 426. Ellis, Jurisprudens, ii. 421 599.

History of Madagascar, i. 385. 4 Bosman, op. cit. p. 143.

11 Hollis, Masai, p. 310. 5 Bergmann, Nomadisihe Streifereien 12 Cunningham, Uganda, p. 102 sq. unter den Kalmuken, ii. 297.


xlvii. 14. 3.



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take of the maize, or the fruit-bearing trees, which were planted by the side of the highway, as much as was sufficient to satisfy immediate hunger."? Among the Hebrews a person was allowed to go into his neighbour's vineyard and eat grapes at his own pleasure, or to pluck ears in his field, but the visitor was forbidden to put any grapes in his vessel or to move a sickle into the standing corn. It is said in the Laws of Manu that “ a twice-born man, who is travelling and whose provisions are exhausted, shall not be fined, if he takes two stalks of sugar-cane or two esculent roots from the field of another man.' According to ancient Swedish laws, a passer-by could take a handful of peas, beans, turnips, and so forth, from another person's field, and a traveller could give to his fatigued horse some hay from any barn he found in the wood. However, whilst the punishment of theft is commonly, to some extent, influenced by the worth or nature of the appropriated property, there are peoples who punish thieves with the same severity whether they have stolen little or much. Among the North American Indians described by Colonel Dodge

" the value of the article stolen is not considered. The crime is the theft." ; Among the Yleou, a Manchurian tribe mentioned by ancient Chinese chroniclers, theft of any kind was punished with death." The Beni Mzab in the Sahara sentence a thief to two years' banishment and the payment of fifty francs, independently of the value of the thing he has stolen,

The degree of criminality attached to theft also depends on the place where it is committed. To steal from a house, especially after breaking the door, is frequently regarded as an aggravated form of theft. According to Muham

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medan law, the punishment of cutting off the right hand of the thief is inflicted on him only if the stolen property was deposited in a place to which he had not ordinary or easy access ; hence a man who steals in the house of a near

; relative is not subject to this punishment, nor a slave who robs the house of his master. Among some peoples a theft committed by night is punished more heavily than one committed by day.”

A distinction is further made between ordinary theft and robbery. The robber is treated sometimes more severely, sometimes more leniently than the thief, and is not infrequently regarded with admiration. Among the Wanyamwezi thieves are despised, but robbers are honoured, especially by the women, on account of their courage. In Uganda robbery is not thought shameful, although it is rigorously punished. In Sindh no disgrace is attached to larceny when the perpetrators are armed.

Among the Ossetes," where open robbery has been committed outside a village, the court merely requires the stolen article or an equivalent to be restored ; but in cases of secret theft, five times the value must be paid. Robbery and theft within the boundaries of a village are rated much higher. proverb says, What a man finds on the high-road is God's gift'; and in fact highway robbery is hardly regarded as a crime." ;

The Kazak Kirghiz go so far as to consider it almost dishonourable for a man never to have taken part in a baranta, or cattle-lifting exploit.” According to



ii. 445 so:

(Washambala). Wilda, op. cit. p. 878 sq. ; Brunner, Deutsche Rechtsgeschichte, ii. 646 (ancient Teutonic law). Digesta, xlvii. 11. 7 ; xlvii. 18. 2.

i Lane, Modern Egyptians, p. 121. C/. Burckhardt, Bedouins and Wahabys, p. 301.

* Wilken, loc. cit. p. 109 (people of Bali). Digesta, xlvii. 17. I. Ler Saxonum, 32, 34; Wilda, op. cit. p. 877; Grimm, Deutsche Rechtsalter. thi mer, p. 637; Brunner, Deutsche Rechtsgeschichte, ii. 646 (ancient Teutonic law).

p. 283 (Chinese law). Digesta, xlviii. 19. 28. 10. Erskine, Principles of the Law of Scotland, p. 566. Post, Grundriss der ethnologischen Jurisprudenz,

* Reichardt, quoted by Steinmetz, Rechtsverhältnisse, p. 281.

5 Ashe, Two Kings of Uganda, p. 294. 6 Burton, Sindh, p. 195.

von Haxthausen, Transcaucasia, p. 411. Cf. Kovalewsky; Coutume contemporaine, p. 342.

3 Ta Tsing Leu Lei, sec. cclxviii.

& Vámbéry, Das Türkenvolk. p. 306, Cf. Georgi, op. cit. ii. 270 sq. (Kirghiz).


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Bedouin notions, there is a clear distinction between “ taking and stealing.” To steal is to abstract clandestinely, “ whereas to take, in the sense of depriving another of his property, generally implies to take from him openly, by right of superior force.”] The Arabian robber, says Burckhardt, considers his profession honourable, and “the term harámy (robber) is one of the most flattering titles that could be conferred on a youthful hero.” ? In ancient Teutonic law theft and robbery were kept apart; the one was the secret, the other the open crime. In most lawbooks robbery was subject to a milder punishment than theft, and was undoubtedly regarded as far less dishonourable. Indeed, however illegal the mode of acquiring property may have been, publicity was looked upon as a palliation of the offence, if not as a species of justification, even though the injured party was a fellow-countryman. This difference between theft and robbery seems still to have been felt in the thirteenth century, when Bracton had to argue that the robber is a thief. But in later times robbery was regarded by the law of England as an aggravated kind of theft.5

A line has been drawn between manifest and non-manifest theft. Among many peoples thieves who are caught in the act may be ķilled with impunity, or are punished much more heavily than other thieves, frequently with death.” We also hear that the worst part of the offence

Ayrton, in Wallin, Notes taken tudinibus Anglie, fol. 150 b, vol. ij. during a Journey through Part of 508 s99. Pollock and Maitland, op. Northern Arabia, p. 29, n. # (in Jour. cit. ii. 494. Roy. Geo. Soc. xx. 317, n. 1).

5 Coke, Third Part of the Institutes • Burckhardt, Bedouinsand Wahábys, of the Laws of England, p. 68. BlackP. 90. Cf. Burton, l'ilgrimage to Al- stone, Commentaries on the Laws of Madinah Gu Meccah, ii. 101; Blunt, England, iv. 252. Stephen, History op. cit. ii. 204 sq.

of the Criminal Law of England, iii. 8 Wilda, op. cit. pp. 860, 911, 914. Pollock and Maitland, op. cit. ii. Grimm, Deutsche Reihtsalterthiimer, p. 493. Cf. Wilda, op: cit. p. 914. 634 sq. Nordström, op. cit. ii. 314 sq.

Supra, i. 293 ;

Brunner, Maurer, Bekehrung des Norwegischen Deutsche Rechtsgeschichte, ii. 642. Post, Stammes, ii. 173 54. Brunner, Deutsche Grundriss der ethnologischen Jurispru Rrihtsgeschichte, ii. 647 sq. Thrupp,

dens, ii. 441 su The Inglo-Saxon

7 Mommsen, Römisches Strafrecht, Pollock and Maitland, op. cit. ii. 493 p. 750 sq. Du Boys, Histoire du

droit criminel de l'Espagne, p. 378. Bracton, De Legibus et Consue- Brunner, Deutsche Rechtsgeschichte, ii. VOL. 11




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