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

A distinction is further made between ordinary theft and robbery. The robber is treated sometimes more severely,149 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.150 In Uganda robbery is not thought shameful, although it is rigorously punished.151 In Sindh no disgrace is attached to larceny when the perpetrators are armed.152 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. 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.”153 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.154 According to 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.”155 The Arabian robber, says Burckhardt, considers his profession honourable, and “the term haràmy (robber) is one of the most flattering titles that could be conferred on a youthful hero.”156 In 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.157 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.158 But in later times robbery was regarded by the law of England as an aggravated kind of theft.159

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.

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

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.

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

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.”187 The Abipones, who never took anything from their own countrymen, “used to rob and murder the Spaniards whilst they thought them their enemies.”188 Among the Mbayás the law, Thou shalt not steal, “applies only to tribesmen and allies, not to strangers and enemies.”189 The 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.”191 Among 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.”192 Among the Ahts thieving “is a common vice where the property of other tribes, or white men, is concerned.”193 Of 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.”194 Of 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.”195 Another early authority states, “If they can purloin or even forcibly seize the property of a foreigner, it is a feather in their cap”;196 and, according to Dr. Nansen, it is still held by the Greenlanders “to be far less objectionable to rob Europeans than their own fellow-countrymen.”197 Many travellers have complained of the pilfering tendencies of Eskimo tribes with whom they have come into contact.198 Richardson believes that, in the opinion of an Eskimo, “to steal boldly and adroitly from a stranger is an act of heroism.”199 Of 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

The Chukchi201 and Koriaks202 consider 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.203 The 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.204 Other 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.”206 In Fiji theft is regarded as no offence at all when practised on a foreigner.207 The Savage Islanders consider theft from a tribesman a vice, but theft from a member of another tribe a virtue.208 Of 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.209 Speaking 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.”210 The 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