Question XI: On the punishment of thieves

St. Bonaventure, in the Mirror of the Soul, cap. 4, reduces to the genus of theft the secret taking of a thing, the detention of a thing found, sacrilege, the property of Religious, and bad dispensation.

To rapine likewise he reduces new tariffs, new customs of burdens, iniquitous exactions, extortions, the acceptance of gifts, and the game of dice.

NOW we must treat of theft and rapina in the proper sense.

Scotus, 4. dist. 15. quaest. 3. §. De secundo, teaches that daytime thieves cannot rightly be hanged. His reason is that God commanded: Thou shalt not kill, nor dispensed except for night thieves; but it is not permitted to dispense in the law of a superior.

Alensis, part. 3. quaest. 47. memb. 4. art. 3., teaches that there can indeed be power in the Republic to put thieves to death, yet they are not to be hanged as a rule, because life is preferred to stolen goods. Sotus also, lib. 5. de Iust. quaest. 3. art. 3. ad 3., takes it rather ill that simple thieves are hanged; hence he inveighs against Baldus, in the Law sed novo iure, Cod. de servis fugitivis, who held that thieves ought to be hanged for simple theft thrice repeated, or for one enormous theft equivalent to three.

The common opinion, however, is that a thief can be put to death for one notable theft alone, or for several repeated. So the jurists, the Law cited, where Baldus, and Paulus de Castro, and others, whom Covarruvias reports.

Among Theologians, however, John Maior 4. dist. 15. quaest. 27. quaest. 27. art. 4. Gabriel 4. dist. 15. quaest. 15. art. 3. dub. 1. John Medina Cod. de restit. quaest. 4. John Driedo Lib. 1. de libertate Eccles. cap. 10. Alph. Castro Lib. 1. de Lege poen. cap. 6. Victor relect. de homicid. num. 21. Covarruvias lib. 2. var. cap 9. num. 7. Salon. 2. 2. quaest. 66. art. 6. controv. 4. Aragon there, Bannes there, dub. 1. Petrus Navarrus lib. 2. de restit. cap. 3. disput. 1. Valentia Tom. 3. disp. 5 quaest. 8. puncto 1. Sayrus lib. 9. cap. 15. num. 33. The same is intimated by St. Bonaventure in Diaeta, salv. tit. 3. cap. 6, proving it from Ecclesiasticus 34, where the Holy Spirit makes the thief almost equal to the homicide, of whom the Holy Doctor said in cap. 4 that hanging is due to him.

This opinion is proved from the disturbance of the Republic induced by thieves.

To the argument of Scotus Sayrus responds, num. 25., from St. Bonaventure cap. 6. in Decalogum, that the same God who commanded: Thou shalt not kill, also commanded in Exodus 22: Wizards thou shalt not suffer to live.

Thus in many provinces thieves were hanged, as Aulus Gellius reports, book 11 of the Attic Nights, last chapter, on the Roman Emperors. And among the Egyptians a thief was put to death. Which some gather from Genesis 44, where Joseph's brothers said: With whomsoever that which you seek shall be found, let him die; he himself more mercifully said: He shall be my servant.

In the Lombard Constitutions, however, approved by the Emperor, it is established that a thief be punished the first time with the cudgel, the second time mutilated, and the third time hanged.

The Holy Doctor brings forward, in the Confessionale, cap. 3. particula 54, the decree against the ravishers of churches, but notes that it is not universally in use. They can also sometimes be excommunicated, as St. Bonaventure notes in 4. dist. 18. part. 2. quaest. 3. fundamento 3.