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Which two being so dangerous, ought to be provided against by sharp and severe Laws; The Hebrew Law did punish a Thief more severely for stealing Sheep or Oxen out of the field, than out of the house, Exod. 22.1.9. For he that stole out of the field, was to re∣store four and fivefold; but he that stole out of the house but double: The reason where∣of
was; because Cattle in the field are more easily driven away, and therefore had need to be secured by the severer Laws.* 1.1 Those crimes, saith Cicero, are to be fitted with the se∣verest punishments,* 1.2 which cannot be prevented without great difficulty. So Justin, speak∣ing of the Scythians, saith,. There was no crime so heinous as Theft; because to them who had neither houses, nor inclosures to secure their herds of Cattle, or their flocks of Sheep in, what safety could there be, if it were permitted unto them to rob and steal? Much like unto that in Aristotle's Problems, where speaking of such Thieves as frequented Baths, he saith, That the Law-giver, considering that the owners could not in those places look after their things wisely, committed them to the safegard of severe Laws. And accordingly we find that these Balneary Thieves were in Athens punished with death; if what they there stole, were above the value of ten Drachmaes, as Demosthenes testifies against Timocrates. The Custom of a fact, although it detract somewhat from the crime; (for as Pliny speaks in such a case, he gave him his pardon, and that not without reason; for though the fact were forbidden by the Law, yet was it commonly committed, and not punished:) yet did it re∣quire, in some sort, to have been severely punished: Because as Saturninus speaks, Nimium multis grassantibus, opus exemplo est; when a sin begins to spread, and Malefactors grow nu∣merous, then some exemplary punishment seems necessary: (for as an hot-headed Horse hath need of a strong rein; so the more publick and customary a sin grows, the sharper should be the punishments to suppress it.) But the former that is, clemency in acquitting of∣fenders is more to be followed in giving sentence, and should be our guide in passing Judg∣ments; but the Laws themselves ought to be severe and impartial, yet with due regard had to the time when those Laws or Judgments were made and published, because the benefit that ariseth by punishments hath respect to the universality, as all Laws also have; but of∣fences do vary, and are not the same in every offender, for in some, they are greater, and in some, less
Orat. pro Roscio.
Ea maximè a∣nimadvertenda peccata, quae dif∣ficilimè praeca∣ventur.