Chapter 74

123Steinmetz,Rechtsverhältnisse, p. 52 (Banaka and Bapuku). Nicole,ibid.p. 133 (Diakité-Sarracolese). Beverley,ibid.p. 215 (Wagogo). Bosman,op. cit.p. 142 (Negroes of Axim). Hinde,op. cit.p. 107 (Masai). Post,Afrikanische Jurisprudenz, ii. 91.Idem,Grundriss der ethnologischen Jurisprudenz, ii. 420.Ta Tsing Leu Lee, sec. cclxix.sqq.p. 284sqq.(Chinese). Keil,Manual of Biblical Archæology, ii. 366.Laws of Manu, viii. 320sqq.Wilda,Das Strafrecht der Germanen, p. 870sqq.; Nordström,Bidrag till den svenska samhälls-författningens historia, ii. 296sqq.; Stemann,Den danske Retshistorie indtil Christian V.’s Lov, pp. 621, 677sq.; Brunner,Deutsche Rechtsgeschichte, ii. 639sqq.(ancient Teutons). Du Boys,Histoire du droit criminel de l’Espagne, p. 721.

124Supra,ii. 4,6-8,12.

125Bancroft,Native Races of the Pacific States, ii. 456.

126Koran, v. 42. Lane,Manners and Customs of the Modern Egyptians, p. 120sq.Idem,Arabian Society in the Middle Ages, p. 20. Sachau,Muhammedanisches Recht, pp. 810, 811, 825sqq.

127Erskine,Principles of the Law of Scotland, p. 568. Innes,Scotland in the Middle Ages, p. 190. Mackintosh,History of Civilisation in Scotland, 231.

128Pollock and Maitland,History of English Law before the Time of Edward I.ii. 495sq.Brunner,Deutsche Rechtsgeschichte, ii. 640. Stephen,History of the Criminal Law of England, iii. 129.

129Post,Grundriss der ethnologischen Jurisprudenz, ii. 421sqq.

130Bosman,op. cit.p. 143.

131Bergmann,Nomadische Streifereien unter den Kalmüken, ii. 297.

132Grimm,Deutsche Rechtsalterthümer, p. 636sq.Wilda,op. cit.p. 875sq.Nordström,op. cit.ii. 307. Brunner,Deutsche Rechtsgeschichte, ii. 645sq.

133Digesta, xlvii. 14. 1. pr., 1, 3; xlvii. 14. 3.

134Gill,Life in the Southern Isles, p. 47.

135Cook,Journal of a Voyage round the World, p. 41sq.

136Supra, i. 286sq.Post,Grundriss der ethnol. Jurisprudenz, ii. 426. Ellis,History of Madagascar, i. 385.

137Hollis,Masai, p. 310.

138Cunningham,Uganda, p. 102sq.

139Clavigero,History of Mexico, i. 358.

140Deuteronomy, xxiii. 24sq.

141Laws of Manu, viii. 341.Cf.ibid.viii. 339.

142Nordström,op. cit.ii. 297.

143Dodge,op. cit.p. 64.

144Castrén,op. cit.iv. 27.

145Chavanne,Die Sahara, p. 315.

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.146According to Muhammedanlaw, 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.147Among some peoples a theft committed by night is punished more heavily than one committed by day.148

146Post,Grundriss der ethnol. Jurisprudenz, ii. 423sq.von Rosenberg,Der malayische Archipel, p. 166 (Niase). Riedel,De sluik- en kroesharige rassen tusschen Selebes en Papua, p. 103 (Serangese). Lang, in Steinmetz,Rechtsverhältnisse, p. 259. (Washambala). Wilda,op. cit.p. 878sq.; Brunner,Deutsche Rechtsgeschichte, ii. 646 (ancient Teutonic law).Digesta, xlvii. 11. 7; xlvii. 18. 2.

147Lane,Modern Egyptians, p. 121.Cf.Burckhardt,Bedouins and Wahábys, p. 301.

148Wilken,loc. cit.p. 109 (people of Bali).Digesta, xlvii. 17. 1.Lex Saxonum, 32, 34; Wilda,op. cit.p. 877; Grimm,Deutsche Rechtsalterthümer, p. 637; Brunner,Deutsche Rechtsgeschichte, ii. 646 (ancient Teutonic law).

A distinction is further made between ordinary theft and robbery. The robber is treated sometimes more severely,149sometimes 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.150In Uganda robbery is not thought shameful, although it is rigorously punished.151In Sindh no disgrace is attached to larceny when the perpetrators are armed.152Among 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. A 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.”153The Kazak Kirghiz go so far as to consider it almost dishonourable for a man never to have taken part in abaranta, or cattle-lifting exploit.154According toBedouin 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.”155The Arabian robber, says Burckhardt, considers his profession honourable, and “the termharàmy(robber) is one of the most flattering titles that could be conferred on a youthful hero.”156In ancient Teutonic law theft and robbery were kept apart; the one was the secret, the other the open crime. In most law-books 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.157This 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.158But in later times robbery was regarded by the law of England as an aggravated kind of theft.159

149Ta Tsing Leu Lee, sec. cclxviii. p. 283 (Chinese law).Digesta, xlviii. 19. 28. 10. Erskine,Principles of the Law of Scotland, p. 566. Post,Grundriss der ethnologischen Jurisprudenz, ii. 455sq.

150Reichardt, quoted by Steinmetz,Rechtsverhältnisse, p. 281.

151Ashe,Two Kings of Uganda, p. 294.

152Burton,Sindh, p. 195.

153von Haxthausen,Transcaucasia, p. 411.Cf.Kovalewsky,Coutume contemporaine, p. 342.

154Vámbéry,Das Türkenvolk, p. 306.Cf.Georgi,op. cit.ii. 270sq.(Kirghiz).

155Ayrton, in Wallin,Notes taken during a Journey through Part of Northern Arabia, p. 29, n. ‡ (inJour. Roy. Geo. Soc.xx. 317, n. ‡).

156Burckhardt,Bedouins and Wahábys, p. 90.Cf.Burton,Pilgrimage to Al-Madinah & Meccah, ii. 101; Blunt,op. cit.ii. 204sq.

157Wilda,op. cit.pp. 860, 911, 914. Grimm,Deutsche Rechtsalterthümer, p. 634sq.Nordström,op. cit.ii. 314sq.Maurer,Bekehrung des Norwegischen Stammes, ii. 173sq.Brunner,Deutsche Rechtsgeschichte, ii. 647sq.Thrupp,The Anglo-Saxon Home, p. 288. Pollock and Maitland,op. cit.ii. 493sq.

158Bracton,De Legibus et Consuetudinibus Angliæ, fol. 150 b, vol. ii. 508sqq.Pollock and Maitland,op. cit.ii. 494.

159Coke,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,160or are punished much more heavily than other thieves, frequently with death.161We also hear that the worst part of the offenceconsists in being detected, and that a successful thief is admired rather than disapproved of.

160Supra,i. 293;ii. 8,13. Brunner,Deutsche Rechtsgeschichte, ii. 642. Post,Grundriss der ethnologischen Jurisprudenz, ii. 441sq.

161Mommsen,Römisches Strafrecht, p. 750sq.Du Boys,Histoire du droit criminel de l’Espagne, p. 378. Brunner,Deutsche Rechtsgeschichte, ii. 642sq.; Dareste,Études d’histoire du droit, p. 299sq.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.”162Among the Californian Yuki “thieving is a virtue…, provided the thief is sly enough not to get caught.”163The Ahts “have a tendency to sympathise with some forms of theft, in which dexterity is required.”164Among the Thlinkets “theft does not seem to be considered a disgrace; the detected thief is at most ashamed of his want of skill.”165The 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.”166In 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.”167Among 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.168The Persians say that “it is no shame to steal, only to be found out.”169The same view seems to be held by the Motu tribe of New Guinea,170the natives of Tana (New Hebrides),171the Maoris,172and several African peoples.173In Fiji “success, without discovery, is deemed quite enough to make thieving virtuous, and a participation in the ill-gotten gain honourable.”174Among 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.”175Among 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

162Matthews, ‘Study of Ethics among the Lower Races,’ inJournal of American Folk-Lore, xii. 4.

163Powers,Tribes of California, p. 133.

164Sproat,op. cit.p. 158sq.

165Krause,op. cit.p. 167.

166Georgi,op. cit.iii. 183. Krasheninnikoff,History of Kamschatka, p. 232.

167Gilmour,Among the Mongols, p. 291.

168Dalton,Descriptive Ethnology of Bengal, p. 45.

169Polak,Persien, ii. 81.

170Stone,A few Months in New Guinea, p. 95.

171Brenchley,op. cit.p. 208.

172Shortland,Traditions and Superstitions of the New Zealanders, p. 224. Waitz-Gerland,Anthropologie der Naturvölker, vi. 224. DieffenbachTravels in New Zealand, ii. 111.

173Zöller,Forschungsreisen in der deutschen Colonie Kamerun, ii. 64 (Dualla). Wilson and Felkin,op. cit.i. 224 (Waganda). Leslie,op. cit.p. 256 (Amatongas).

174Williams and Calvert,op. cit.p. 110.

175Decle,Three Years in Savage Africa, p. 165.

176de 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.177Among 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.”178In 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;179and 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.180In 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 natureof the offence.”181In other cases, again, the degree of guilt is determined by the station of the person robbed.182Among 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.”183Among many other peoples theft or robbery committed on the property of a chief or king is treated with exceptional severity.184Sometimes 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.”185But 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.

177Munzinger,Ostafrikanische Studien, p. 243sq.

178Scott Robertson,Káfirs of the Hindu-Kush, p. 440.

179Mommsen,Römisches Strafrecht, p. 751.

180Digesta, xlvii. 14. 1. pr., 3.

181Laws of Manu, viii. 337sq.

182Crawfurd,op. cit.iii. 115 (Javanese). Desoignies, in Steinmetz,Rechtsverhältnisse, p. 281 (Msalala). Maclean,Compendium of Kafir Laws and Customs, p. 143.

183Brownlee, in Maclean,op. cit.p. 112.

184Ellis,Tour through Hawaii, p. 429sq.Ellis,Ew̔e-speaking Peoples of the Slave Coast, p. 225 (Dahomans). Decle,Three Years in Savage Africa, p. 73. Post,Afrikanische Jurisprudenz, ii. 91.Laws of Æthelbirht, 4, 9 (Anglo-Saxons).

185Hardy,Manual of Budhism, p. 483.

Among uncivilised races intra-tribal theft is carefully distinguished from extra-tribal theft. Whilst the former is forbidden, the latter is commonly allowed, and robbery committed on a stranger is an object of praise.186

186Cf.Tylor, ‘Primitive Society,’ inContemporary Review, xxi. 715sq.;Anthropology, p. 413sq.

The Tehuelches of Patagonia, “although honest enough as regards each other, will, nevertheless, not scruple to steal from any one not belonging to their party.”187The Abipones, who never took anything from their own countrymen, “used to rob and murder the Spaniards whilst they thought them their enemies.”188Among the Mbayás the law, Thou shalt not steal, “applies only to tribesmen andallies, not to strangers and enemies.”189The high standard of honesty which prevailed among the North American Indians did not refer to foreigners, especially white men, whom they thought it no shame to rob or cheat.190“A theft from an individual of another band,” says Colonel Dodge, “is no crime. A theft from one of the same band is the greatest of all crimes.”191Among the Californian Indians, for instance, who are proverbially honest in their own neighbourhood, “a stranger in the gates who seems to be friendless may lose the very blankets off him in the night.”192Among the Ahts thieving “is a common vice where the property of other tribes, or white men, is concerned.”193Of the Dacotahs we read that, though the men think it undignified for them to steal even from white people, “they send their wives thus unlawfully to procure what they want.”194Of the Greenlanders the old missionary Egede writes:—“If they can lay hands upon any thing belonging to us foreigners, they make no great scruple of conscience about it. But, as we now have lived some time in the country amongst them, and are look’d upon as true inhabitants of the land, they at last have forborne to molest us any more that way.”195Another early authority states, “If they can purloin or even forcibly seize the property of a foreigner, it is a feather in their cap”;196and, according to Dr. Nansen, it is still held by the Greenlanders “to be far less objectionable to rob Europeans than their own fellow-countrymen.”197Many travellers have complained of the pilfering tendencies of Eskimo tribes with whom they have come into contact.198Richardson believes that, in the opinion of an Eskimo, “to steal boldly and adroitly from a stranger is an act of heroism.”199Of the Eskimo about Behring Strait Mr. Nelson writes:—“Stealing from people of the same village or tribe is regarded as wrong…. To steal from a stranger or from people of another tribe is not considered wrong so long as it does not bring trouble on the community.”200

187Musters,op. cit.p. 195.

188Dobrizhoffer,op. cit.ii. 148.

189Tylor, inContemporary Review, xxi. 716.

190Ibid.p. 716.

191Dodge,op. cit.p. 79.

192Powers,Tribes of California, p. 410sq.

193Sproat,op. cit.p. 159.Cf.Macfie,Vancouver Island and British Columbia, p. 468.

194Eastman,Dacotah, p. xvii.

195Egede,op. cit.p. 124sq.

196Cranz,op. cit.i. 175. See also Dalager,op. cit.p. 69.

197Nansen,First Crossing of Greenland, ii. 335sq.Cf.Idem,Eskimo Life, p. 159sq.

198Murdoch, ‘Ethnological Results of the Point Barrow Expedition,’ inAnn. Rep. Bur. Ethn.ix. 41. Seemann,Voyage of“Herald,” ii. 65; Armstrong,Discovery of the North-West Passage, p. 196 (Western Eskimo).

199Richardson,Arctic Searching Expedition, i. 352.

200Nelson, inAnn. Rep. Bur. Ethn.xviii. 293.

The Chukchi201and Koriaks202consider theft reputable or glorious if committed on a stranger, though criminal if committed in their own communities. The hill people of the Central Provinces of India, whilst observant of the rights of property among themselves, do not scruple to plunder those to whom they are under no obligation of fidelity.203The Bataks of Sumatra, who hardly ever steal among themselves, are expert at pilfering from strangers when not restrained by the laws of hospitality, and think it no moral offence to do so.204Other tribes in the Malay Archipelago likewise hold it allowable to plunder the same stranger or traveller who, when forlorn and destitute, would find a hospitable reception among them.205“The strict honesty,” says Mr. Melville, “which the inhabitants of nearly all the Polynesian Islands manifest towards each other is in striking contrast with the thieving propensities some of them evince in their intercourse with foreigners. It would almost seem that, according to their peculiar code of morals, the pilfering of a hatchet or a wrought nail from a European is looked upon as a praiseworthy action. Or rather, it may be presumed, that, bearing in mind the wholesale forays made upon them by their nautical visitors, they consider the property of the latter as a fair object of reprisal.”206In Fiji theft is regarded as no offence at all when practised on a foreigner.207The Savage Islanders consider theft from a tribesman a vice, but theft from a member of another tribe a virtue.208Of the Sandwich Islanders, again, we are told that they stole from rich strangers on board well loaded ships, whereas Europeans settled among them left their doors and shops unlocked without apprehension.209Speaking of the honesty of the Herbert River natives, Northern Queensland, Mr. Lumholtz adds:—“It is, of course, solely among members of the same tribe that there is so great a difference between mine and thine; strange tribes look upon each other as wild beasts.”210The aborigines of West Australia “would not consider the act of pillaging base when practised on another people, or carried on beyond the limits of their own tribe.”211

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