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e had attained the age of puberty； or only whipped if he was not of ripe age； but as for the nonmanifest thief； he was only condemned to a fine of double the value of what he had stolen。
When the Porcian laws abolished the custom of whipping the citizens with rods； and of reducing them to slavery； the manifest thief was condemned to a payment of fourfold； and they still continued to condemn the non…manifest thief to a payment of double。＇20＇
It seems very odd that these laws should make such a difference in the quality of those two crimes； and in the punishments they inflicted。 And； indeed； whether the thief was detected either before or after he had carried the stolen goods to the place intended； this was a circumstance which did not alter the nature of the crime。 I do not at all question that the whole theory of the Roman laws in relation to theft was borrowed from the Laced？monian institutions。 Lycurgus； with a view of rendering the citizens dextrous and cunning； ordained that children should be practised in thieving； and that those who were caught in the act should be severely whipped。 This occasioned among the Greeks； and afterwards among the Romans； a great difference between a manifest and a non…manifest theft。＇21＇
Among the Romans； a slave who had been guilty of stealing was thrown from the Tarpeian rock。 Here the Laced？monian institutions were out of the question； the laws of Lycurgus in relation to theft were not made for slaves； to deviate from them in this respect was in reality conforming to them。
At Rome； when a person of unripe age happened to be caught in the act； the pr？tor ordered him to be whipped with rods according to his pleasure； as was practised at Sparta。 All this had a more remote origin。 The Laced？monians had derived these usages from the Cretans； and Plato；＇22＇ who wants to prove that the Cretan institutions were designed for war； cites the following； namely； the power of bearing pain in individual combats； and in thefts which have to be concealed。
As the civil laws depend on the political institutions； because they are made for the same society； whenever there is a design of adopting the civil law of another nation； it would be proper to examine beforehand whether they have both the same institutions and the same political law。
Thus when the Cretan laws on theft were adopted by the Laced？monians； as their constitution and government were adopted at the same time； these laws were equally reasonable in both nations。 But when they were carried from Laced？mon to Rome； as they did not find there the same constitution； they were always thought strange； and had no manner of connection with the other civil laws of the Romans。
14。 That we must not separate the Laws from the Circumstances in which they were made。 It was decreed by a law at Athens that when the city was besieged； all the useless people should be put to death。＇23＇ This was an abominable political law； in consequence of an abominable law of nations。 Among the Greeks； the inhabitants of a town taken lost their civil liberty and were sold as slaves。 The taking of a town implied its entire destruction； which is the source not only of those obstinate defences； and of those unnatural actions； but likewise of those shocking laws which they sometimes enacted。
The Roman laws ordained that physicians should be punished for neglect or unskilfulness。＇24＇ In those cases； if the physician was a person of any fortune or rank； he was only condemned to deportation； but if he was of a low condition he was put to death。 By our institutions it is otherwise。 The Roman laws were not made under the same circumstances as ours： at Rome every ignorant pretender intermeddled with physic； but among us； physicians are obliged to go through a regular course of study； and to take their degrees； for which reason they are supposed to understand their profession。
15。 That sometimes it is proper the Law should amend itself。 The law of the Twelve Tables allowed people to kill a night…thief as well as a day…thief；＇25＇ if upon being pursued he attempted to make a defence； but it required that the person who killed the thief should cry out and call his fellow…citizens。 This is indeed what those laws； which permit people to do justice to themselves； ought always to require。 It is the cry of innocence which in the very moment of the action calls in witnesses and appeals to judges。 The people ought to take cognizance of the action； and at the very instant of its being done； an instant when everything speaks； even air； countenance； passions； silence； and when every word either condemns or absolves。 A law which may become so opposed to the security and liberty of the citizens ought to be executed in their presence。＇26＇
16。 Things to be observed in the composing of Laws。 They who have a genius sufficient to enable them to give laws to their own； or to another nation； ought to be particularly attentive to the manner of forming them。
The style ought to be concise。 The laws of the Twelve Tables are a model of conciseness； the very children used to learn them by heart。＇27＇ Justinian's Novell？ were so very diffuse that they were obliged to abridge them。＇28＇
The style should also be plain and simple； a direct expression being better understood than an indirect one。 There is no majesty at all in the laws of the lower empire； princes are made to speak like rhetoricians。 When the style of laws is inflated； they are looked upon only as a work of parade and ostentation。
It is an essential article that the words of the laws should excite in everybody the same ideas。 Cardinal Richelieu＇29＇ agreed that a minister might be accused before the king； but he would have the accuser punished if the facts he proved were not matters of moment。 This was enough to hinder people from telling any truth whatsoever against the minister； because a matter of moment is entirely relative； and what may be of moment to one is not so to another。
The law of Honorius punished with death any person that purchased a freedman as a slave； or that gave him molestation。＇30＇ He should not have made use of so vague an expression； the molestation given a man depends entirely on the degree of his sensibility。
When the law has to impose a penalty； it should avoid as much as possible the estimating it in money。 The value of money changes from a thousand causes； and the same denomination continues without the same thing。 Every one knows the story of that impudent fellow at Rome＇31＇ who used to give those he met a box on the ear； and afterwards tendered them the five…and…twenty pence of the law of the Twelve Tables。
When the law has once fixed the idea of things； it should never return to vague expressions。 The ordinance of Louis XIV＇32＇ concerning criminal matters； after an exact enumeration of the causes in which the king is immediately concerned； adds these words； 〃and those which in all times have been subject to the determination of the king's judges〃； this again renders arbitrary what had just been fixed。 Charles VII says＇33＇ he has been informed that the parties appeal three； four； and six months after judgment； contrary to the custom of the kingdom in a country where custom prevailed； he therefore ordains that they shall appeal forthwith； unless there happens to be some fraud or deceit on the part of the attorney；＇34＇ or unless there be a great or evident cause to discharge the appeal。 The end of this law destroys the beginning； and it destroys it so effectually； that they used afterwards to appeal during the space of thirty years。＇35＇
The law of the Lombards does not allow a woman that has taken a religious habit；＇36＇ though she has made no vow； to marry； because； says this law； 〃if a spouse who has been contracted to a woman only by a ring cannot without guilt be married to another； for a much stronger reason the spouse of God or of the blessed Virgin。〃 Now； I say； that in laws the arguments should be drawn from one reality to another； and not from reality to figure； or from figure to reality。
A law enacted by Constantine＇37＇ ordains that the single testimony of a bishop should be sufficient without listening to any other witnesses。 This prince took a very short method； he judged of affairs by persons； and of persons by dignities。
The laws ought not to be subtle； they are designed for people of common understanding； not as an art of logic； but as the plain reason of a father of a family。
When there is no necessity for exceptions and limitations in a law； it is much better to omit them： details of that kind throw people into new details。
No alteration should be made in a law without sufficient reason。 Justinian ordained that a husband might be repudiated and yet the wife not lose her portion； if for the space of two years he had been incapable of consummating the marriage。＇38＇ He altered his law afterwards； and allowed the poor wretch three years。＇39＇ But in a case of that nature two years are as good as three； and three are not worth more than two。
When a legislator condescends to give the reason of his law it ought to be worthy of its majesty。 A Roman law decrees that a blind man is incapable to plead； because he cannot see the ornaments of the magistracy。＇40＇ So bad a reason