[175] Decle, Three Years in Savage Africa, p. 165.
[176] de Abreu, op. cit. p. 138.
The moral valuation of theft varies according to the social position of the thief and of the person robbed. Among the Marea a nobleman who commits theft is only obliged to restore the appropriated article; but if a commoner steals from another commoner, the whole of his property may be confiscated by the latter’s master, and if he steals from a nobleman he becomes the nobleman’s serf.[177] Among the Káfirs of the Hindu-Kush the penalty for theft is theoretically a fine of seven or eight times the value of the thing stolen; “but such a punishment in ordinary cases would only be inflicted on a man of inferior mark, unless it were accompanied by circumstances which aggravated the original offence.”[178] In Rome, according to an old law, a freeman caught in the act of thieving was scourged and delivered over to the party aggrieved, whereas a slave in similar circumstances was scourged and then hurled from the Tarpeian rock;[179] and according to an enactment of Hadrian, the punishment for stealing an ox or horse from the pastures or from a stable was only relegation if the offender was a person of rank, though ordinary persons might have to suffer death for the same offence.[180] In ancient India, on the other hand, the punishment increased with the rank of the criminal. According to the Laws of Manu, “in a case of theft the guilt of a Sûdra shall be eightfold, that of a Vaisya sixteenfold, that of a Kshatriya two-and-thirtyfold, that of a Brâhmana sixty-fourfold, or quite a hundredfold, or even twice four-and-sixtyfold; each of them knowing the nature of the offence.”[181] In other cases, again, the degree of guilt is determined by the station of the person robbed.[182] Among the Gaika tribe of the Kafirs, for instance, the fine by which a theft is punished “is fixed according to the rank of the person against whom the offence is committed, confiscation of property being the general punishment imposed for offences against chiefs.”[183] Among many other peoples theft or robbery committed on the property of a chief or king is treated with exceptional severity.[184] Sometimes difference in religion affects the criminality of the thief. According to modern Buddhism, “to take that which belongs to a sceptic is an inferior crime, and the guilt rises in magnitude in proportion to the merit of the individual upon whom the theft is perpetrated. To take that which belongs to the associated priesthood, or to a supreme Buddha, is the highest crime.”[185] But the commonest and most important personal distinction influencing the moral valuation of theft and robbery is that between a tribesman or fellow-countryman and a stranger.
[177] Munzinger, Ostafrikanische Studien, p. 243 sq.
[178] Scott Robertson, Káfirs of the Hindu-Kush, p. 440.
[179] Mommsen, Römisches Strafrecht, p. 751.
[180] Digesta, xlvii. 14. 1. pr., 3.
[181] Laws of Manu, viii. 337 sq.
[182] Crawfurd, op. cit. iii. 115 (Javanese). Desoignies, in Steinmetz, Rechtsverhältnisse, p. 281 (Msalala). Maclean, Compendium of Kafir Laws and Customs, p. 143.
[183] Brownlee, in Maclean, op. cit. p. 112.