[157] Wilda, op. cit. pp. 860, 911, 914. Grimm, Deutsche Rechtsalterthümer, p. 634 sq. Nordström, op. cit. ii. 314 sq. Maurer, Bekehrung des Norwegischen Stammes, ii. 173 sq. Brunner, Deutsche Rechtsgeschichte, ii. 647 sq. Thrupp, The Anglo-Saxon Home, p. 288. Pollock and Maitland, op. cit. ii. 493 sq.
[158] Bracton, De Legibus et Consuetudinibus Angliæ, fol. 150 b, vol. ii. 508 sqq. Pollock and Maitland, op. cit. ii. 494.
[159] Coke, Third Part of the Institutes of the Laws of England, p. 68. Blackstone, Commentaries on the Laws of England, iv. 252. Stephen, History of the Criminal Law of England, iii. 149. Pollock and Maitland, op. cit. ii. 493. Cf. Wilda, op. cit. p. 914.
A line has been drawn between manifest and non-manifest theft. Among many peoples thieves who are caught in the act may be killed with impunity,[160] or are punished much more heavily than other thieves, frequently with death.[161] We also hear that the worst part of the offence consists in being detected, and that a successful thief is admired rather than disapproved of.
[160] Supra, [i. 293]; [ii. 8], [13]. Brunner, Deutsche Rechtsgeschichte, ii. 642. Post, Grundriss der ethnologischen Jurisprudenz, ii. 441 sq.
[161] Mommsen, Römisches Strafrecht, p. 750 sq. Du Boys, Histoire du droit criminel de l’Espagne, p. 378. Brunner, Deutsche Rechtsgeschichte, ii. 642 sq.; Dareste, Études d’histoire du droit, p. 299 sq. Pollock and Maitland, op. cit. ii. 495 (ancient Teutonic law). Post, Grundriss der ethnologischen Jurisprudenz, ii. 443.
It is said of the Navahos that “the time is evidently not long gone by when with them, as among the Spartans, adroit theft was deemed honourable.”[162] Among the Californian Yuki “thieving is a virtue…, provided the thief is sly enough not to get caught.”[163] The Ahts “have a tendency to sympathise with some forms of theft, in which dexterity is required.”[164] Among the Thlinkets “theft does not seem to be considered a disgrace; the detected thief is at most ashamed of his want of skill.”[165] The Chukchi “have but a bad opinion of a young girl who has never acquitted herself cleverly in some theft; and without such testimony of her dexterity and address she will scarcely find a husband.”[166] In Mongolia “known thieves are treated as respectable members of society. As long as they manage well and are successful, little or no odium seems to attach to them; and it is no uncommon thing to hear them spoken of in terms of high praise. Success seems to be regarded as a kind of palliation of their crimes.”[167] Among the Kukis, according to early notices, the accomplishment most esteemed was dexterity in thieving, whilst the most contemptible person was a thief caught in the act.[168] The Persians say that “it is no shame to steal, only to be found out.”[169] The same view seems to be held by the Motu tribe of New Guinea,[170] the natives of Tana (New Hebrides),[171] the Maoris,[172] and several African peoples.[173] In Fiji “success, without discovery, is deemed quite enough to make thieving virtuous, and a participation in the ill-gotten gain honourable.”[174] Among the Matabele “the thief is not despised because he has stolen, but because he has allowed himself to be caught, and if his crime remains undetected he is admired by all.”[175] Among the aborigines of Palma, in the Canary Islands, “he was esteemed the cleverest fellow who could steal with such address as not to be discovered.”[176]
[162] Matthews, ‘Study of Ethics among the Lower Races,’ in Journal of American Folk-Lore, xii. 4.
[163] Powers, Tribes of California, p. 133.
[164] Sproat, op. cit. p. 158 sq.