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Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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Friday. January 21^st. 1763.

In my last lecture I endeavoured to shew in what manner the obligation of contracts arises; that it arose intirely from the expectation and dependance which was excited in him to whom the contract was made. I shewed also that declaration of the will or intention of a person could not produce any obligation in the declarer, as it did not give the promittée a reasonable ground of expectation. It is the dissapointment of the person we promise to which occasions | the obligation to perform it. What we have solemnly promised^r to perform begets a greater dependance in the person we promise to than a bare declaration of our intention. But the dissapointment occasion’d by the breach of a promise depends on two causes; not only on the solemnity and certainty with which the promise is made, but also upon the importance of the thing promised. The dissapointment occasioned by the breach of a promise of little value is not so great as when it is a matter of more importance. If one promised to drink tea with me tonight and did not fullfill the engagement, I would not be so much dissapointed as if he^s paid me a summ of money he owed me.12 We see accordingly that all sensible men have measured the obligation one is under to perform a promise by the dissappointment the breach of it would occasion. Thus if I promised to drink tea or walk at the cross with one, and, something intervening, could not conveniently do it; tho’ I had made this promise in pretty solemn terms yet the matter itself is of so small importance that the dissa|pointment can not be great. If I did not fulfill it^t I might very reasonably be thought to have acted amiss and in an ungentlemany manner; and might perhaps be thought to have put a slight affront on the person, but not such^u an injury as would merit a very high resentment, or give a sufficient cause for a suit at law.

On the other hand if I had come under an engagement to pay a summ of money, as a debt, this may be of such importance to the person as may^v if not performed dissapoint and perplex him considerably. All such contracts are therefore thought binding by every one; whereas trifling engagements, though they ought in good manners and fair gentlemany behaviour to be performd, yet the injury occasioned by the breach of them, nor the crime of the breaker, are never looked on as so heinous.

We may observe here that the obligation to perform a promise can not proceed from the will of the person to be obliged, as some authors13 imagine. For if that were the case a promise which one made without an intention to perform it would never be binding. If I promised to pay you | £10 tomorrow, but had no intention of performing, this promise according to the doctrine abovementioned would be noways binding, as the promisor did not will that he should be under any obligation. But such promises are and have universally been acknowledged to be as binding as any others, and the reason is plain: they produce the same degree of dependance and the breach of them the same dissapointment as the others.—Nor can the obligation to fullfill a contract be probably derived from the obligation to veracity which most writers14 on the law of nature and nations assign as the cause of this obligation; nor the crime of a breach of a promise from that of the breach of veracity. For all that veracity can extend to is either what is past or what is present. If one tells what he realy thinks to be true with regard to the past and the present state of things, this is all that the man of the greatest veracity can require of him; with regard to what is future veracity can have no effect, as knowledge does not extend to it.—Besides, it can never happen that a less crime should be | of a greater.15 Now it is evident that the breach of a contract or promise is a much greater crime than that of the breach of veracity. If we see one whom we know makes a common custom of telling lies and making up wonderfull and amazing adventures to entertain the company with, we may justly look on this as a very low and despicable character, but we do not consider him as being guilty of a very great crime. A man of this sort may often have a very strong sense of the obligation of a contract; and we would do him a very great injury if we should conclude from this way of talking that he would pay no regard to his promise or contract.—If a man should engage to do me some considerable service, his failing in which would be a great dissappointment to me, and should in this promise act sincerely and realy have an intention to perform, but should afterwards thro some inconvenience he found in the performance [should] not fullfill his promise; if again | another should thro levity or idleness promise me the same service tho he had no intention to perform it, but afterwards, from a sense of the great dissapointment his failure should give me, should alter his former design and perform his promise: which of these two, I ask, would be the best man. The latter without doubt, who tho he promised what he did not intend to perform, yet afterwards, reflecting on the dissapointment I must suffer, became of a better mind. But the other man is he who adhered strictly to the truth and had the greatest sense of honour, as he did not undertake what he had no design of fullfilling, but being overballanced by a selfish motive broke his obligation notwithstanding of the dissapointment he knew it would produce. We may see from this instance that sometimes the sense of honour and veracity may be without a sense of the obligation of a promise, and that on the other hand, one who is no great | observer of truth in small matters may yet pay a great regard to the obligations of a contract, at least to the dissapointment the breach of them would produce.

I endeavoured also to point out some reasons which would hinder contracts from sustaining action, that is, from being a subject for a judiciall claim, and cause that constitution to be of very late introduction into most nations. These were, 1^st, the smalness of the injury done by a breach of promise, which I showed to be much less in the eyes of most men than the breach of property; 2^dly, the uncertainty of language, which would make it hard to determine whether a man barely signified his intention or made a promise; 3^dly, the difficulty and inconvenience of^w obtaining a trial of any crime. Men are at first very shy in punishing crimes; the whole body of the people must be assembled at every trial. This makes all judicial procedings very troublesome. | It is not also^x what we call civill causes that are first brought into judgement, but criminall ones; that is, such as require force and violence (which <?we> call breaches of the peace) such as disturb the peace and order of society. Murder, robbery, larceny, and the like, which either violently injure a man in his person or in his property.—Breaches of contracts are in themselves done very quietly and without any open violence. They may indeed provoke the injured person to revenge, but do not in themselves produce great disturbance. 4^thly, to these we may add the small value of the things which contracts could include in the early times.

I showed also that those contracts were first allowed to sustain action, wherein the will and intention of each^y party to create a dependance in the other was indisputable; these were such as were conceived in a set form of words appointed for that purpose and were called stipulationes.— | We find too that those contracts where the will of the contracting parties was indisputable were the first which were thought to sustain action in England before the civill court. I mentioned that those which were confirmed by an oath were those which the ecclesiasticall court first allowed to sustain action; and afterwards extended this to all contracts whatsoever. But those which the civill court first sustain’d were such as the parties entered solemnly into in presence of the Kings Court. Of this there are some traces to this day in the English law. What they call a recognoiscance is precisely of the same nature. These are entered into by an indenture hoc modo16 wherein the terms of the agreement were wrote, and the paper being cut in two denticulariter, the one half was formerly kept by the contrahee and the other by the clerk of the court; but now each party has a half.—This method <is> in dissuse in Scotland. We may observe that where courts are | for a long time on the same footing there is much less difference^z in the manner of proceding from the old customs than where new courts are instituted. Now the constitution of England has been long much the same with regard to the courts as it is at present. The Court of Kings Bench is as old as Edward the 1^sts time; that of the Exchequer much older; and also that of Common Pleas is very old: these accordingly adhere in a great measure to the old manner of proceedings. A new court, as that of the Star Chamber instituted by Henry 8^th., would pay little attention to those of former courts, and we see accordingly that it proceeded very arbitrarily as long as it subsisted. The constitutions of Scotland are of very late establishment. The Court of Session in its present form was created by James the Blank in MS.17 . A new court, ispecially a supreme one as this is in | many causes, would instead of adhering to the proceedings of the old alter them in many circumstances; as all new courts are supposed to be intended to correct some defects of the old ones. We find accordingly that the English courts have many more traces of the old proceedings than those in Scotland, and this of recognizan<c>e amongst them. It is to be observed that after these contracts by stipulation sustained action,^a gratuitous contracts were not even then allowed to sustain action unless they had what was called a compensation,18 that is, some just cause of entering into them. Thus if a father promised a portion with his daughter, his being her father was a justa causa. If an uncle promised to give a portion with his niece, this was sustained also, quia loco parentis habetur. But if a stranger promised a portion this was not sustained, nor others of this sort. It is without question a very improper and blameable piece of conduct for | one thus to break thro his engagement, and such as he would be justly condemned for; but then it seems as ungentlemanny and worthy^b blame^c to ensist on ones^d making such a contract. It is to be taken notice of here that if one in this manner entered into a gratuitous contract, tho this would not sustain action, yet if he confirmed this engagement and declared his desire that he should depend upon the performance, the 1^st contract was sustained as a justa causa for the 2^d.

The same reason which made the contracts which were entered into by a solemn form of words sustain action would soon bring those which are called real contracts (which were before explained) to sustain action also, for in them all the inclination of the contracting parties to be bound is as plain as if expressed by the most solemn form of words. {At first a stipulation was required even in real contracts, but this was afterwards dispensed with, as the will of the contracters to great19 a dependance was equally evident as in those where a sollemn form of words was made use of.} In this manner, the four contractus nominati were soon allowed to sustain action. | When one enters into the contract which they called mutuum, the will of the parties is altogether plain. This contract is when a thing is lent which is consumed by use, as money, wine, corn, etc. The commodatum is that where a thing is lent to be used but not consumed. The distinction here is not merely an imaginary one but produces some real difference. In the mutuum the property of the thing is transferred and the borrower is allowed to consume it, and is only bound to restore an equall quantity and quality but not the same thing; in the other he is bound not to consume or destroy th<e> thing lent, but to restore the very individuall thing. In the first case there can be no action for damages done to the thing lent, as it is the property of the borrower, but in the 2^d. case there may, as he has only the use. These would very soon be allowed to sustain action, as the desire of the contracting parties is very plainly to be bound to fullfill the contract or at least to create a | dependance. When these were allowed to sustain action, deposita would soon follow, where the thing put into ones custody is not to be used but only kept for the owner. Here if he uses it contrary to the agreement or consumes it, the truster would have an action against him. In the same manner in pledges, the pledge is not given away intirely to pay the debt but only as a security of payment; the agreement in this case is plain; and therefore if the pledge was appropriated by the pawnee the pawner had an action against him on the contract of pledge.

The extension of commerce introduced severall others. All contracts which were necessary for the carrying on of business after this time were considered as sustaining action, and that^e whether made inter praesentes or absentes. Thus (as I said) contracts of sale, of letting and hiring, partnership, etc., were^f soon allowed to sustain action.— | We are to observe, however, that for some time at least these contracts were not allowd to sustain action unless a stipulation had accompanied them, either by word of mouth or one in the same manner by writing. Some solemnity is at first required to make a contract appear altogether binding.—Herodotus20 tells us that the Scythians, when they desired to make a contract entirely binding, drew blood of one another into a bowl, dip’t their arrows in it, and afterwards drank it off. The Arabians had a similar custom. And Tacitus21 tells us that the Armenians, when they made a contract, let blood of each other in the thumb and sucked out some of the blood. Sallust says it was commonly reported that Cataline and his conspirators, when they took the oath of secrecy, mixt blood with the wine they drank.22 This report he attributes to the fear and terror of the people. But that may serve to shew that the people generally believe that such horrid ceremonies make the contract which they | accompany appear the more binding, and they must make a great impression on the mind of the contracters. — — —

We may observe that those contracts which were allowed to sustain action on account of the great necessity they were of in the carrying on of commerce, at first even after this required the transmission of writings, at least in some cases. These were called contractus literales and are pretty fully explaind in the Theodosian Code.23 Justinian mentions them in his Institutions, but in a very confused manner.24 This afterwards was not required, and the consent of the parties was sufficient without either tradition or any other ceremony. These were called contractus consensuales. In this manner the contracts were at first of four sorts.^g 1^st, those which were entered into by a solemn form of words, or stipulation; 2^dly, real contracts; 3^dly, those which were enterd into literis; and 4^thly, consensuales, besides the nuda pacta which we shall take notice of immediately. Afterwards | they were reduced to four, even when the nuda pacta are included; the literales bein<g> put on the same footing as the consensuales; or indeed to three, as the consensuales had intirely the same effect as those per stipulationem.^h

The nuda pacta, as well as those verbal contracts which had a justa causa or compensatio, were never allowed by the Romans to sustain action. But at the same time they gave an exception.25 That is, they were sufficient to overturn an action, though they could not constitute one. Thus if I owed you an hundred pounds, and youⁱ said you would not require it of me, this was sufficient on a satisfactory | proof to free me from the debt; but if you had gratuitously promised to give me £100, this would not give me a claim at law for that summ. The same tenderness for the liberty of individualls which made action on contracts so late of taking place, as all such obligations are a restraint on this liberty, inclined them to free those who were under such obligations, on a very slight ground.—Among the European nations at first the common law gave no actions on contracts of any sort; the ecclesiasticall courts were the only ones which sustained them as giving action. When the civil courts came at length to allow action on contracts, it was only on such as were entered into in the form of a recognizance or a sollemn deed done in presence of the court and recorded in their books. The ecclesiasticall or cannon law^j proceeding alltogether on the principles of honour and virtue, did not so much attend to [the] what would naturally appear equitable | to a rude people, as what was the duty of a good Christian and the rules by which he ought to regulate his conduct. They accordingly gave action on every contract how slight soever.^k The Scots law and [in] that of most other nations of Europe^l are altogether the same with the civil law, except that the nuda pacta sustain action. If a man in this country promise any summ of money or other thing, and this can be plainly proved, he is obliged to perform. The reason of this was that these courts, as the Parliament of Paris and the Court of Session, were established long after the civil and cannon law had been in great force in those countries, and consequently borrow considerably from both of those laws. The English law was on the other hand formed into a system before the discovery of Justinians Pandects; and its courts established, and their method of proceedings pretty much fixed, before the other courts in Europe were instituted, or the civil or cannon law | came to be of any great weight. It is for this reason that it borrows less from those laws than^m the law of any other nation in Europe; and is for that reason more deserving of the attention of a speculative man than any other, as being more formed on the naturall sentiments of mankind.

On this account also it is very imperfect with regard to contracts. It was not till after the erection of the Court of Chancery and the great powers which it assumed that the English law allowed an action for the specifick performance of any contract. It allowed only of an action of damages for the breach of a contract. This indeed appears to be naturall enough in the first stages of a civill government, as the point it has in view is to redress injuries rather than make the individualls perform their engagements; that they left to their own good faith. This action for damages might in many cases be equall to the specifick performance, as where the one party in contract of sale had delivered the goods and the other | had not paid the price. Where there had been a rei traditio, in deposi[s]tum especially, indeed, by a fiction of law restitution at least of the thing given might be obtaind. This was done by the action of trouver and conversion,26 where they feigned that the thing had not come into his possession by his knowledge, but had been found and claimed in that manner; either the individuall if it existed, or the value if it had been converted to his use. But in all cases this might be evaded by the oath of the person against whom the suit was instituted. If it was but a simple contract, he might wage his law and a simple bailment was sufficient to acquit him.27 {The same reason was given as the Grecians gave for not giving acction on contracts, viz, that as he had trusted his honesty and fidelity, why might not they be allowed to trust it now he was put to his oath.}ⁿ That is, his oath without any proof on his side was sufficient to free him, and no proof on the side of the pursuer was admitted. An<d> in case there had been something delivered, the action may be voided by his oath and the concurrent testimony of six witnesses that he had either not received or had returned the thing claimed. And in cases where the contract was not performed on either side there | was no action till the Court of Chancery. The method they made use of in contracts where something had been delivered was to sue for damages whenever^o it was apprehended the defendant would wage his law; as in this case he cant swear that he has done no damage to the amount to be provd as he does not know what it is. The damages are left to the determination of the jury, which in many cases may make it equall to the specific performance, as before observed; and by this means the writ of detinue, which is that which is generally used^p with the action of trouver and conversion, is seldom applied, but the action of damages, in all cases where it is in the least to be suspected that the defendant would wage his law. But by the Scots law action is given on all contracts. They are here on precisely the same footing as | by the civil law, excepting that the nuda pacta are also allowed to sustain action. By which means there are but two species of contracts amongst us, viz real contracts which do not sustain action unless traditio rei has intervened, and consensual ones which are allowed to sustain action by the bare consent of the contracters.

There are two questions with regard to contracts which I shall just mention here, as there will be a more proper plac[c]e afterwards for treating of them. The 1^st is to what degree of diligence the contracters shall be bound. To this purpose we must take notice of the distinction of culpa or neglect into culpa lata, levis, and levissima, which is handled in the Institutes28 and was explained at length in the Theory of Morall Sentiments29 and therefore need not be here repeated. The Romans considered contracts as being either gratuitous or | onerous. Amongst the first were: mutuum, commodatum, depositum, and mandatum; in these the profit is intirely in ordinary cases on the side of the mutuarius, comm<o>daturius and deponens, and mandans. They therefore are bound to pay even culpa levissima and are bound to the greatest diligence; and the other person to the smallest, and the praestandum illegible word30 salam. For even in the mutuum th<e> contract is reckond to be gratuitous, as no reward or interest is given. And even in our law no interest is due on the loan of money unless it be seperately mentioned. It is true an accepted bill of exchange bears interest from the time it becomes due, but that is by a particular statute.31 In other cases where the[y] contract is onerous on both sides, they are bound to the culpa levis.

Another question is, if one borrows a summ of money and before the time of payment the money is called in and | a new coinage <?is introduced> where the value of the money is altered, commonly debased, whether the debtor will be allowed to pay his debt with the new coin or will be obliged to pay it in the old. As for instance if one should borrow £100 and before the payment the silver should be called in and a new coinage <?introduced> where the same nominall value <?is> put on the half of the silver debased with alloy as before, that is, that instead of near 400 ounces the £100 should contain only about 200; the question is whether in this case the debt is to be paid with 200 ounces debased in this way, or by 400 ounces of the old, or a real value equall to it in the new. And here the civil law of all countries and naturall justice and equity the32 quite contrary.33 Justice and equity plainly require that one should restore the same value as he received without regard to the nominal | value of money, and therefore he is to restore as much in the old coin or an equall value in the new as he receiv’d. But the civil government in all countries have constituted the exact contrary of this.—The reason of this conduct is as follows. The only cause which can induce the government to make any alteration on the value of the money {which as shall be shewn34 is a very detrimental step} is the difficulty of raising money. Suppose for instance that the government should have use for and be obliged to expend above 10,000000 liv^q but that by no means whatever they could raise above 5 millions. In this what shall they do. The only expedient they can fall on is to call in the coin and debase the value one half. It is seldom that such great changes [as these] are made as this; but in the year 1701 the French, being in this condition, instead of 28 caused 1^st of all 40, then 50, and at last 60 l<i>vres^r <?> out of the 8 oz French of silver.35 In this way with less than half the real value | they paid all their troops, fleet, officers, and loans. But least the imposition should be too soon felt by the creditors of the government, they ordered that all debts should in like manner be paid by the new coin. This expedient concealed the fraud. For there are two purposes in which we may use money, either 1^st, in bying commodities; or 2^dly, in paying of debts.^s Now in the 1^st method of using money, the money when debased in its real value and raised in its nominal one half, will purchase no more than the same quantity of silver did before, for^t the value of the money is always to be counted by the quantity of pure metall; the alloy goes for nothing, as the labour in seperating counterballances the small additionall value. By this means the money would soon fall to its former value with regard to all goods. But then it is also applied to pay debts. As I shall shew hereafter,36 | it is the riches of the lower class of people that regulate the price of all sorts of ordinary commodities, bread, beef, beer, etc. These can never rise higher than they can afford. Now the soldiers, and all sorts of mechanicks, being paid by the new money and consequently receiving but half their former wages, can afford but half the price they formerly gave for the commodities, so that here the new money would purchase as much for the same nominal value as the old. And by this means, and also by all former debts being paid in this manner, the value of money or coin would fluctuate betwixt the old and the new for some time. Its value in bying would only be the half; for instance, one of the new shillings would only purchase as much as an old 6^d.; but then a new sh. will pay as much as an old one, and by these combined the value will for some time continue abou<t> | 10 or 9^d. So that by such an alteration the loss of the creditors will not be so sensible, and the money will not by this lessening of its real value and increase of its nominall lose above 1/3.

There is also another question pretty much similar to the last one. That is, <if> the gold should <be> lessend with regard to its comparative value [of it] to silver, whether one who had borrowd e.g. G.100 when they were worth 25 shillings would pay his debt by 100G. when they are brought to 21 shillings; and the answer plainly is that he would not, for he received 125 and would by this means pay only 105. For in all cases the value of gold is estimated by that of silver, and not that of silver by that of gold. Indeed if he had agreeed to pay 100 guineas in specie the case might be different. But all bonds are drawn with regard to the silver coin, so that this could seldom happen.—

| We come now to the 2^d species of obligations, viz those which arise from quasi contract, or quae quasi ex contractu nascuntur;37 that is, the duty of restitution. The most simple sort is that which the civilians call petitio indebiti, where one thinks that he is due an other a certain sum, and that other that the former is due that summ also, and payment therefore insues; but on casting up his accounts the former finds that this summ has been paid. In what way shall <he> claim restitution. He can not claim it from contract, for no contract was made, nor did either expect such an accident; nor can he claim the pieces as his own, they are probably spent; and besides he fairly alienated them without any reservation. But still the other has what belongs to him; est res aliena in ejus patrimonio, and no one it is presumed is inclined to be made richer by what is an others. | For this reason he is obliged to restore the money and the repetitio indebiti is given against him. In the same manner in the negotia utiliter gesta, tho my money is not in his patrimony yet there is something purchased by money. Therefore he is bound to make restitution of what I have laid out on it. This is the case when by these negotia some advantage accrues to the person for whom I act. And if there should no advantage accrue to him, yet if the negotia be utiliter and honestly done to encourage such good offices, he is bound to restitution. In the same manner it is with averaging the obligation which arises from the lex Rhodia de jactu,38 as here the goods of the others are savd by the loss of one. As well as the actions which joint sureties or cautioners have for being indemnified by each other, for here the others are locupletiores facti jactura ejus, qui debitum etc. solverit.^u 39 All the actiones contrariae of the Romans go on this principal, for from the contracti the cases in which they occur are never attended to. But in case any | impensae extraordinariae, non autem^v ordinariae, should be laid out, the expender has an action against the proprietarius; and in the same manner the action the tutor has against the pupil for extraordinary ex–expenses proceeds from this, but not for ordinary. {Neither need we consider the duty of tutors as arising from quasi contract, as their duty arises from their accepting of that office.} For in all these^w the obligation to indemnify the person who is at the expense is not from the contract but from the duty of restitution, which requires neminem locupletiorem fieri aliena jactura.40 In all countries these actiones contrariae are given; and as the duty of restitution is the foundation of them, so the expender may either bring an actio contraria or an actio negotiorum gestorum against the person whom he has served. I shall only observe farther on this head that it may often <?be> that all the severall kinds of personall rights may concur in the same cause, both that from contract, from quasi contract or restitution, and | from delinquency. Thus if I employ one to hire a house41 for me, the owner may have an action against the hirer to fullfill the contract; the hirer may have an action from quasi contract for what extraordinary expenses he may have been at; and the owner against the rider from delinquency if he has overrode or any way abused his horse.

I come now to consider the third species of personall rights or obligations, which is, those which arise from

Delinquency.

That is, the right one has to be repaid the damage he has sustained ex delicto, from the delinquency of an other. Delinquency may be of two sorts. Either the damage may arise from the willfull injury^xmalice propense of the person, or from a criminal or faulty negligence, or culpa. Negligence or culpa may also be considered, as was before observed,42 as being | of 3 sorts. Either the negligence is so great as that no man could have been guilty of the like in his own affairs, tho this man has been in those of another, in which case the delinquency is said to arrise from culpa lata; or 2^dly, it is called culpa levis, where the delinquent has been guilty of no greater negligence in the affairs of an other than he is in his own, being generally a man who was not very attentive to his affairs;43 or lastly, from culpa levis<sima>, where the^y negligence or culpa is no more than the most attentive man might have been guilty of.—I shall however consider in the 1^st place those which arise from dolus, or what we call malice propense, and is a willfull and designed injury done to another.

Now in all cases the measure of the punishment to be inflicted on the delinquent is the concurrence of the impartial spectator with the resentment of the injured.44 If the injury is so great as that the spectator can go along with the injured person in revenging himself by | ^z the death of the offender, this is the proper punishment, and what is to be exacted by the offended person or the magistrate in his place who acts in the character of an impartial spectator. If the spectator could not concur with the injured if his revenge led him to the death of the offender, but could go along with him if he revenged the injury by a small corporall punishment or a pecuniary fine, this is the punishment that ought here to be inflicted. In all cases a punishment appears equitable in the eyes of the rest of mankind^a when it is such that the spectator would concur with the offended person in exacting <it>. The revenge of the injured which prompts him to retaliate the injury on the offender is the real source of the punishment of crimes. That which Grotius and other writers45 commonly alledge as the originall measure of punishments, viz the consideration of the publick good, will not sufficiently account for the constitution of punishments. | So far, say they, as publick utility requires, so far we consent to the punishment of the criminall, and that this is the naturall intention of all punishments. But we fill46 find the case to be otherwise. For tho in many cases the publick good may require the same degree of punishment as the just revenge of the injur’d, and such as the spectator would go along with, yet in those crimes which are punished chiefly from a view to the publick good the punishment enacted by law and that which we can readily enter into is very different. Thus some years ago the British nation took a fancy (a very whimsicall one indeed<)> that the wealth and strength of the nation depended entirely on the flourishing of their woolen trade, and that this could not prosper^b if the exportation of wool was permitted. To prevent this it was enacted that the exportation of wool should be punished with death.47 This exportation was no crime at all, in naturall equity, and was very far from deserving so high^c a punishment in the eyes of the people; they therefore found that | while this was the punishment they could get neither jury nor informers. No one would consent to the punishment of <a> thing in itself so innocent by so high a penalty.48 They were therefore obliged to lessen the punishment to a confiscation of goods and vessel. In the same manner the military laws punish a centinell who falls asleep upon guard with death. This is intirely founded on the consideration of the publick good; and tho we may perhaps approve of the sacrificing one person for the safety of a few, yet such a punishment when it is inflicted affects us in a very different manner from that of a cruel murtherer or other atrocious criminall.

We may likewise observe that the revenge of the injured will regulate the punishment so as intirely to answer the three purposes which the authors above mentioned mention as the intention of all punishments. For 1^st., the resentment of the offended person leads him to correct the offender, as to make him | <?feel> by whom and for what he suffers. Resentment is never compleatly, nor as we think nobly gratified by poison or assassination. This has in all nations and at all times been held as unmanly, because the sufferer does not by this means feel from whom, or for what, the punishment is inflicted.—2^dly, the punishment which resentment dictates we should inflict on the offender tends sufficiently to deter either him or any other from injuring us or any other person in that manner. 3^dly, resentment also leads a man to seek redress or compensation for the injury he has received.

Crimes are of two sorts, either 1^st, such as are an infringement of our natural rights, and affect either our person in killing, maiming, beating, or mutilating our body, or restraining our liberty, as by wrongous imprisonment, or by hurting our reputation and good name. Or 2^dly, they affect our acquired rights, and are an attack upon our property, by robbery, theft, larceny, etc.

| It is to be observed that the declining to fullfill a contract has never been considered as a crime, tho a fraud always is. The judge sentences a person cited before him for having neglected to fullfill a contract, in the first place to fullfill it, and 2^dly to make satisfaction to the other party for what damages the delay and suit may have occasioned him, but never inflicts any punishment for the intended evasion. But on the other hand one who fraudently would bring another under a contract is very severly punished. Thus one who forges a bill or bond is in this country punish’d with death.49

We shall begin with those crimes which are an attack upon the person. The first and the most attrocious of these is willfull murder. For this, to be sure, the only proper punishment is the death of the offender. The resentment of the injured persons can not be satisfied by a mere simple punishment, unless there be an equality at least betwixt the sufferings of the injur’d person and the offender, (that is) unless the injury be in some measure retaliated. | We find accordingly that in all civilized nations the punishment has been the death of the murderer. But amongst barbarous nations the punishment has generally been much slighter, as a pecuniary fine.—The reason of this was the weakness of government in those early periods of society, which made it very delicate of intermeddling with the affairs of individualls. The government therefore at first interposed only in the way of mediator, to prevent the ill consequences^d which might arise from those crimes in the resentment of the friends of the slain. For what is^e the end of punishing crimes, in the eyes of people in this state? The very same as now of punishing civil injuries, viz the preserving of the publick peace. The crimes themselves were already committed, there was no help for that; the main thing therefore the society would have in view would be to prevent the bad consequences of it. This therefore they would not attempt by a punishment, which might interrupt it. For it was not till a society was far advanced that the government took upon them to cite criminalls | and pass judgement upon them.

Intercession was therefore made betwixt the parties, either by some individuall of eminent worth and consequently of authority, or by the whole society together, advising and exhorting the parties concerned to such and such measures. What then is the most reasonable thing persons thus interposing would propose to be done. They would certainly exhort the murderer to appease the friends of the slain by presents, and them to accept of such satisfaction. Pére Charlevoix50 and de La Fulage51 tell us that among the Iriquois and severall other of the savage nations of North America, when a person is slain by an other of the same family the society never intermeddles, but leaves it to the father or head of the family to punish or forgive it as he shall think proper. But if a person of one family is slain by one^f of another, then they interpose and settle the presents which are to appease the friends of the slain; and if the person is not able to furnish sufficient presents, the whole community makes a collection for him, every one contributing | something to so good a design. These presents are generally divided into 60 parts, one of which goes to the mother of the slain to get her something to sit upon to mourn over her son, another to procure her a pipe of tobacco for her comfort, another part is given to the sister, to the brothers, etc., one is to clear the road of the brambles, another to cover the blood which has been spilt, as they express it; and so on.—Among the northern nations which broke into Europe in <the> beginning of the 5^th century, society was a step farther advanced than amongst the Americans at this day. They are still in the state of hunters, the most rude and barbarous of any, whereas the others were arrived at the state of shepherds, and had even some little agriculture. The step betwixt these two is of all others the greatest in the progression of society, for by it the notion of property is ext<end>ed beyond possession, to which it is in the former state confined. When this is once established, <it> is a matter of no great difficulty to extend this from one subject to another, from herds and flocks to the land itself.—They had therefore got a good way before the Americans; and government, | which grows up with society, had of consequence acquired greater strength. We find accordingly that it intermeddled more with those affairs; so that in the laws of all those nations there is a particular rate fixed for the attonement that shall be made for the death of persons of every rank in the state from the king to the slave, and this is called the wingild.52 This wingild varies according to the different ranks of the persons; for as they were of higher rank their friends would be more powerfull and consequently more difficulty appeased, as they would have the greater hopes of obtaining satisfaction. For this reason the compensation or wingild of a king is much greater than that of a thain, that than that of an earl, that than <that> of a baron, that again greater than that of a simple free man, and this still more than that of a slave or villain.—By the Salick law,53 when a man was not able to pay the wingild he was confined by himself in a tent, {the first time he was asked if he could pay it; if not his friends were called and each asked seperately; if none of them would pay it for him, then they were desired to pay it amongst them; and if this third time they refused, he was delivered up, etc.} and his friends were three times called together arround him and asked if they would contribute to pay his fine; if they refused every time, then | he was delivered up to the friends of the slain to be put to death or treated as they had a mind. {The relations of the deceased were at firsst always the executioners, tho this is now given to the^g public officers, as the publick now comes in the place of these relations.—The death of one who has murthered a near relation from accident, or his punishment from some other cause, may sooth the anger of his friends but can not gratify their revenge, as it does not come from them.—Poison or assassination by unknown persons is somewhat more satisfactory, as they know he suffers by their means. But the revenge is then only fully and nobly gratified when he is made sensible that it is by them and for their sake that he suffers.} This expiation of a crime by presents we find very universall in ancient times. There are severall instances of it in Homer. Nestor54 tells Achilles that presents appease everyone; for presents a father forgives the death of his son.—In the description of the shield of Achilles, in one of the compartments the story represented is the friends of a slain man receiving presents from the slayer.55 The government did not then intermeddle in those affairs; and we find that the stranger who comes on board the ship of Telemachus tells us he fled from the friends of a man whom he had slain, and not from the officers of justice.56

As the governments of Europe gain’d more and more strength, they thought themselves intitled to some gratuity for their trouble in interposing. As their interposition was always favourable to the criminall, in protecting him from those who would take away his life and procuring him some easier way of satisfying them, they thought them|selves well intitled to some gratification for this protection. This was called the freedom or frank–guild. And as the composition bore proportion to the power of the relations of the deceased and the danger of his punishment, so this bore proportion to the power of the protector, and was greater or less according to the dignity of the person within whose peace (that is, jurisdiction) the crime was committed. Thus the freeguild payable for a crime committed within the jurisdiction of the king, for he too had a seperate jurisdiction, was much greater than that due for a murder committed within the peace of an earl, and this than that within the peace of a baron.—By degrees the sovereigns came to consider, at least in practise, themselves as the persons chiefly injured. The addition therefore which was made to the punishment of the offenders was not to the composition or wingild due to the friends of the deceased, but to the frank–gild due to the king. This in Scotland and severall other countries came to be a considerable part of the | kings revenues, and the kings advocates (as I shall show hereafter)57 were nothing else but officers who went about to collect these compensations due to the king which were inflicted by the judges, who then acted as the jury, tho now they have little more authority than to keep order and regularity. This compensation due to the king, in Scotland especially, so far exceeded that which was paid to the friends of the deceased that the criminal came to be considered as punished, not as the murtherer of the relation of such persons, but as the murtherer of the free subject of the king. The sovereigns however in time found it more for their advantage, in order to keep peace and harmony amongst their subjects, to substitute a capitall punishment in the room of that frankguild which was due them. This punishment in Scotland was never substituted in the room of the wingild, but as that due to the king for the death of his subject. This idea took place very compleatly in Scotland, where the government was very | early aristocraticall and favourable to the kingly power. So that the relations can not of themselves, nor without the concurrence of the kings advocate, prosecute the murtherers of the deceased. And as the prosecution, at least as far as it regards the life of the murtherer, is carried on in the name of the king, so he claims also the power of pardonning and forgiving the capitall punishment as due to him alone. But it was found by a late decree of the Court of Session in the case of one , a Blanks in MS.58 who murthered a smuggler without sufficient cause, that the royal pardon, tho it extended to the capital punishment, could not however free him from what is called the assythment (the name now given to the wingild) due to the friends of the deceased. Tho the king could^h pardon the capitall punishment due to himself, as any other man can forgive debts due to himself, yet he could not pardon that satisfaction due to the friends of the deceased, any more than he could excuseⁱ them from any other debt due to them. For it is realy and truly a debt as any other due | from contract. In England, where the seeds of democracy were earlier sown, {Capital punishment here came in place not only of the frank guild due to the king, but also of the wingild or compensation due to the friends of the slain.—} the relations had the power of prosecuting independent of the crown, and capital punishment followed on this prosecution as well as that derived from the kings authority. When therefore the king assumed the right of pardoning, the relations of the deceased had still a prosecution after this pardon, under the name of an appeal of blood, and the capitall punishment which followd on this the king could not pardon. This process still subsists but is very seldom attempted, because the legislature is very unfavourable to it and the least informality renders it void.59 —Thus if a husband is murthered no one can prosecute but the widow, and failing of her the nearest male relation, and failing of them no one. No one can prosecute for the death of his brother but the elder brother or other relation of the males, | ^j and failing one step the rest can not prosecute, etc. The error in the name, time, or other circumstances all render the suit void. So that it <is> hardly ever attempted nowadays — — — — — — Gap of one and two–thirds pages in MS.

| Excepting this priviledge of appeal, there is very little difference betwixt the English and Scots law with respect to murder, or indeed betwixt it and the law of most other countries. There are however some distinctions with regard to the killing of a man which are more fully observed in the English law than in any other. Murther properly signifies the killing of a man,^k for whom the murtherer has lain in wait. Men (as I observed before) are very late of punishing even the killing of a man with death. The first attempt that was made this way in England was by Canute the Dane.60 The resentment of the English against their new masters made it often happen that they lay in wait for the Danes and killed them on a sudden. Canute, to prevent this, made a law that any one who killed a Dane in this manner should be punished with death. The crime was also denominated murdrum, murder. This punishment, for reasons we | shall soon advance wore out after the Norman Conquest and a composition was taken, but was not long after established with regard to the wilfull and premeditated killing of a man in whatever manner, which is what is properly to be called murder and is always punished with death. But when one 2^dly who had no malice forethought or evill designs against the person he killed, but by some sudden provocation should thro passion kill an other, this is not considered as so great a crime, as there was no premeditated design of injuring the person; it is therefore called by the name of manslaughter, which [is] indeed is not accounted an excusable crime but a slight punishment inflicted when one claims the benefit of clergy (to be explained hereafter). {His goods are by law forfeited to the king but there is a regular process by which he may recover them and claim pardon, which is always done immediately after he pleads the benefit of clergy.} It is not however reckoned justifiable, for tho there was no premeditated intention of killing a man yet there must have been one before the action was committed. For this reason it is even esteemed felonious.^l {These two kinds are called felonious homicide, as the punishment is capitall, for even in manslaughter sentence of death is pronounced, and the punishment is not lessend till the criminall plead the benefit of clergy.} The 3^d distinction is that which they call chance manly,61 that is, when one kills a man altogether thro’ accident without any intention of killing him either beforehand | or at the time of his comitting the action. {This is said to be per infortunium—where the killing of the man is merely a matter of accident without any design. There is also a 2^d species of excusable homicide, which is that called homicidium se defendendo,62 where after a quarrell has been begun one is brought to such a condition that <he> has no probable means of making his escape. This is reckoned excusable but not justifiable, as the quarrel which brought it on and the using deadly weapons is of itself criminall.—} This is^m reckoned excusable and is therefore not capitally punished (but as there is generally some rashness attending such accidents the killer is generally punishedⁿ by the forfeiture of his goods, to make others be more upon their guard.) {We are also to distinguish the last species of excusable homicide from that one where it is reckoned justifiable63 to kill one in his own defence, as in the former case, viz se defendendo, a quarrell is supposed to have preceded, whereas in the other the man is reduced to this strait without any fault of his own but merely by the attack of another.} There are however two cases in [the] which the killing of a man is reckoned altogether justifiable, and is not affected with any punishment. These are the killing of a man who made resistance by any of the kings officers, going about their lawfull business and executing their office, or 2^dly the killing a man in^o defence of ones person or in that of his house and goods.^p This is to be distinguished from manslaughter by there being no injury done on the part of the killer, but merely in the defence of his rights. For these no punishment is exacted. The only thing that can be called in question is the distinction betwixt these severall different sorts of homicide. Murder, strictly speaking, is where one kills another of set purpose, having lain in wait for him. But all homicide which proceed<s> | from an evil intention where there was ill will before is also accounted murder. For though the killing of a man in passion be accounted only manslaughter, yet this is always taken in the strictest sense.64 Thus as to the provocation which will acquit one from murder, it is limited to that which proceeds from blows. Words or gestures are not reckoned to give a sufficient provocation. But at the same time the law is so far favourable to the man who kills one in this way, that if the provocation has been sufficient to provoke him to strike the person, and he has returned the blow, the killing him afterwards is looked on as manslaughter. If the persons having had a dispute should both draw and fight, the person who has been obliged to kill the other in this manner is only guilty of killing se defendendo,^q but can not be altogether justified, as the quarrel which preceded it and^r the fighting with deadly weapons is of itself a crime.—But if these persons had bore a grudge to on<e> another, tho neither of them had layn in | wait for the other, yet if they drew and fought on meeting this will be accounted murder. In like manner if two persons should fight in the evening for a quarrell that happend in the morning, or in the morning after having quarrelled the evening before, it will be constructed as murther. But if in the heat of the quarrel, when they had no weapons, they should run each to his house for arms and fight immediately, it will be accounted manslaughter only. {If after any quarrel one of the parties should challenge the other, and he should not accept of it, but should at the same time tell him that he was every day at such a place, the death of one of the parties would then be considered as murder, as it is evident they designed to evade the law by not fighting of set purpose. And all duels where time or place are mentioned are in like manner held as productive of murder.—} The same is found to be the law if a son should come in all^s beat and abused, and his father should immediately run out and come up with the person who had abused him and kill <him>, even tho’ he had 3/4 of a mile to run, so that he might be supposed to have cooled, yet as it was done uno actu, without any interruption, it is interpreted only as manslaughter.—Manslaughter is not punished with death, but with a brand in the hand, on the pannels pleading his clergy, and confiscation as above. The origin of this custom of acquitting one for manslaughter who | can read took it<s> rise in the following manner.65 The clergy in the earlier times, as we are all apt to think well and commend the customs of the times we live in and prefer them to all others, were very averse to the introduction of capitall punishments. They said that <?the> mild and humane temper of the Christian religion could not admit of such severe punishments, {as we find by severall of the books of cannon law}; a fine or composition was all that could be exacted by a man who had a due regard for religion, even for the greatest crimes.—They therefore opposed with all their might all capital punishments, ascribing that to religion which was no more than the remains of barbarity and an evident mark of the weakness of government. When Canute introduced capital punishments, they did all they could to illegible word^t that proceeding, but all their endeavours were to no purpose. They still however contended that the clergy could not be subjected to such an unjust constitution. When therefore any one | was condemned before the civil court, he might be claimed by the bishop, which generally was the case; or if not he might claim the benefit of clergy and by that means be carried before the ecclesiasticall court, which as it was of the least severity was always more agreable. Here, notwithstanding of his former sentence, he was allowed an oath of purgation, to which if he could add the oaths of 12 witnesses declaring him to be innocent in their opinion, he was acquitted. But altho he could not thus purge himself of the crime, the bishop might consider whether he was reclaimable or not; if he was thought reclaimable he was adjudged to perform certain ecclesiasticall pennances; and if he was not thought reclaimable he was confined for life.—In this manner not only the clergy themselves evaded the law, but all those who had any dependance on the church evaded the law; the man who swept the church, the doorkeeper and the other servants all came in as clergy. {As every one who was any way a clergy man was freed from the punishment, it was easy for the clergy to free any one they pleased from it by making one of the lower orders of clergy, as deacons, by the first tonsure, similar to what we call preachers; [v.111] and as the clergy were then inclin’d to grant their protection to any one who asked it few or none would be punished.} To | restrain therefore in some measure this power of the clergy, it was established that when one claimed the benefit of clergy the Bible should be brought him, and if he could read the claim was sustained but if he could not he was rejected. Reading was then thought a sufficient test of his being a clergy man, as the chief part of their employment was to read the liturgy and none but clergy men had acquired so much learning as to be able to do this. This continued till the time of Henry the 8^th, who took it away intirely with regard to murder.66 {This benefit of clergy extended at first not only to homicide but to all felonious deeds or felonies, that is, all crimes which were under the pain of capitall punishment excepting treason, and by this means included even homicide from malice forethought. — — —} But notwithstanding, it still subsists with regard to manslaughter, {which is the 2^d species of felonious homicide. In the excusable it was never necessary.—}^u and to this day it is in use that one who claims the benefit of clerg<y> having been guilty of manslaughter, excepting in the cases above mentioned, is acquitted, unless a small punishment of being branded in the hand. {The power of the clergy was no less in Scotland than in England; but as this benefit of clergy was not necessary in the civil courts here, so it was intirely abolished on the expulsion of the Romish clergy. And now there is no distinction betwixt murder and manslaughter according to the Scots law, both being equally punishable with death.67 [v.112] By a statute of Queen Anne68 this priviledge of the benefit of clergy was extended even to persons who can not read, as many cases occurred where the person was not to be got off, for want of that qualification.}

Chance manly, which is the accidentall killing of a man without any design, is | reckoned altogether^v excusable; but this as well <as> manslaughter is under severall restrictions. For <if> it is committed in the attempting some felonious action, the crime is considered in the same light as murder.69 Thus if one in shooting tame fowls, in order to convey them away by stealth, should happen to kill a man, he is considered as a murderer altho he had no design to kill any one, as the action he was engaged in was of itself unlawfull and felonious. The same is the case with one who in breaking a warren or park in order to steal the deer or rabits^w should happen by accident to kill the keeper. For tho neither the accidentall killing of a man, nor the breaking of a park or warren, when there was no theft committed are capital, yet as the attempt is felonious he is considered as a murtherer. {And here not only the murtherer but all who were engaged in the same undertaking will be liable to a prosecution for murder.} The stricter lawyers are even of opinion that one who has no title to hunt or carry fire arms, if he should then happen to kill a man, would be capitally punished; but by the present law he | will only be liable in the penalty enacted against those who hunt or carry arms without a proper title. In the same manner, if one riding an unruly horse in the streets with a design to frighten people should by any means kill a man, he would according to the opinion of the more strict lawyers be considered as a murderer, but by mildness of the present laws would rather, I imagine, be punished in a less severe manner. {And in the same manner, in killing a man se defendendo it must be altogether evident that there was no other way of saving his life but the death of his adversary; as when he is pushed to the wall.} The 1^st of the justifiable homicides, {which is to be distinguished from se defendendo by there being no previous quarrel, in which case it is only excusable,} is that which is committed by one in the defence of his person or goods or house. Thus if one should be atta<c>ked on the high way and had no probable way of escaping but by killing the robber; or if his house was attacked and in the defence of it he should happen to kill the assailant, he would be liable to no punishment. Nor would one who was without provocation attacked in the streets and had no way of escaping. But if he should retire 10 or | 12 paces, not with a design to make his escape, which might have been done, but to draw his weapon, and should afterwards return to the charge, he will be accounted guilty of manslaughter at least.^x ,^y The other case is when a man who resists the kings officers or flies from them is^z killed either in the scuffle or in the pursuit by them or their attendants <?this> is not thought to render them any way punishable. But if he should be killed by persons no way concerned, they will be liable to the punishment of murther. For though they have a right to apprehend and stop him, yet they can not with any justice go the length of putting him to death as they are not going about their proper business. There is a 3^d case in which homicide is justifiable and liable to no punishment. That is, where one has no way to save his life but by killing another. There is but one case wherein this can occur, as far as I know, which is the instance commonly | given by authors, which is when two men after a shipwreck get upon the same plank, and it appears evident that they can not be both saved by it; if then one of them should push the other off the homicide would be accounted justifiable, for tho’ he had here no better right to push the other off than the other had to push him, yet he had the plea of necessity on his side as there was no other way of saving his life. But this is of so little consequence and so seldom occurs that the law omitts it altogether.70

Homicide therefore by the English law is of 3 kinds. 1^st, felonious homicide, which is of two species, murther from malice forethought, and manslaughter. 2^d, excusable homicide, also of two kinds, chance manly or homicidium per infortunium, and hom. se defendendo. 3, justifiable homicide, which is also considered as being of two sorts, either where one kills a man in defence of his person, family, or property, or when an officer in apprehending a criminal who makes resistance, or when one is in this case killed by those who are giving assistance to the kings officers.^a

There is a considerable difference betwixt justifiable homicide and those which are only excusable or | pardonable by the benefit of clergy. For if one be accused of murther and knows that he has been guilty only of manslaughter, he can not free himself by alledging that he was only guilty of manslaughter, but he must plead either guilty of m. or not g.,^b be arraigned of murder and stand his triall, and leave the circumstances of the proof to shew his crime to have been manslaughter. And if it appears so to the judge, or rather jury, they give in their verdict, not guilty of murther, but guilty of manslaughter, and he may then plead the benefit of clergy. In the same manner one who being only guilty of chance–manly or se defen. is accused of murder, he can not plead at first guilty of chance–manly or murder se defendendo, but must plead guilty of murder or not guilty, and leave to the jury from the alleviating circumstances to bring him not guilty of murder but guilty of chance manly, on which he is dismiss’d with penalty of goods, etc. But on the other hand, if one who is guilty only of justifiable <homicide> is accused of murder, he need not allow himself to be arrainged of murder, but may at the first plead not guilty of murder, and may | specify what sort of homicide they have been guilty of and the circumstances which shew it to be so, on which they will be immediately dismissed.

We may observe here also that not only the rationall creatures which have been the occasion of the death of a man are liable to punishment, but in allmost all nations even the animate and inanimate things which have been the occasion of so great a misfortune as the death of a man {were in a manner given up to punishment.} We naturally look upon such things as have been the occasion of the death of our friend, especially if it has been by accident, with a certain horror and aversion, as the sword or other instrument, or the ox which gored him. They were considered as horrenda et excrabilia, horrible, excrable, and devoted. Hence they were said to be deodat,71 which signifies not only consecrated but what was to be held as unhallowed. Among the Athenians there was a court called Blank in MS.72 which had the triall and disposall | of all such things; and we read that an ax, which falling from the cornice of a house by accident killed a man, was solemnly condemned and carried with great pomp and thrown into the sea.73 By the Jewish law the ox that gored was to be put to death.74 When in this manner animate or inanimate things happen to be the occasion of a mans death, it excites in us a sort of^c resentment or anger in our animall nature which must be appeased somehow or other;75 a sword which accidentally killed our friend is, as we said, looked on with abhorrence; but if when it performed that deed it was in the hand of another, our resentment passes from the sword to the person who held it as the cause of the death. By the English law of deodat, what ever was the occasion[s] of a mans death was thus devoted; formerly the clergy claimed it, and now the king, as being the head of the church. If a single^d horse in a^e when it was standing still, killed a man, or if one climbing up by the wheel fell and was | killed or much hurt, then the wheel or the horse is deodat. But if the team be in motion, and the man is killed by the joint force of the whole {or if one fell from a waggon in motion}, then the whole team and waggon and all in it is deodat. The same hel[le]d with regard to a miln–wheel. But it has lately been determined that the goods in the waggon shall not be deodat, nor the miln–wheel unless it be severed and set up against a wall. Not only the ox that gores or the horse who kicks {which are in most countries put to death}, but the horse from whom one has fallen and been killed, tho by his own negligence, may be claimed by the king. But one who is killed by a fall from a tree or a house, and in generall all that is called vincta et fixa, does not render that thing deodat. It has been disputed whether a man by falling into the sea from a ship rendered the ship deodat. This has been determined in the negative, as sailors are by their condition exposed to such dangers at all times and they must very frequently happen.76

| This is all I think necessary to say [to say] concerning homicide or the killing of a man, the most atrocious injury which can be committed against the person of a man.—We come now to another method by which men may be injured in their persons, that is, by mutilation, demembration, beating, bruising, etc.—With regard to all these the most antient laws of all countries have appointed pecuniary compensation, and that from the same motives as they appointed them for murder.—This appears to have been the practise of the barbarian ancestors of all the nations of Europe, in one generall manner. In the laws of every one of these nations we find a particular estimation set upon each particular member.—Thus in the [the] laws of the Lombards77 if one drives out 1 teeth of those^f [teeth] which appear in laughter he paid 2 shil.; if 1 of those which do not, that is a jaw tooth, 1^sh; if 2 of the former, 4^sh.; if 3, 6^sh; if two of the latter, 2^sh.; if 3, 3^sh.; but if he smote^g out any more of either sort | he paid no more but got them into the bargain. In the same manner there was a certain price set on a blow on the head, about 3 shill. But after they had given as many as came to 18^sh. they paid no more, the rest being taken into the bargain; for otherwise one might be ruined by giving an other a very hearty drubbing. In the same manner there was a set price for the cutting off every particular finger of ones hand, which differed also according as it was of the right or left hand; and so of the foot; so much for a hand or arm, foot or leg, as it was right or left; so much for an eye, a nose, or an ear. This prevailed over all Europe. It was only such members as were absolutely necessary for military service, the great business of those times, the mutilation of which were subjected to a severer punishment, as a capitall one or retaliation; and to these we may add castration.

The laws of all countries in their secondary state have introduced retaliation in place | of the pecuniary compensation. This was at first brought in when the delinquent was not able to pay the forfeit, in the same manner as capitall punishment for murder was introduced in place of the compensation, when the murderer or his friends were not able or would not pay the composition.—And in the same manner as^h revenge requires that the death of the person should attone for the death of the friend, so it will require that the delinquent should be as much hurt and in the same way as the offended person. Thus the Jewish law says eye for eye and tooth for tooth,78 and the laws of the Twelve Tables quicunque, etc. nisi pacit cum eo, detur talio.79 Laws still posterior to these gave damages to the injured person instead of retaliation. Retaliation is without doubt a barbarous and inhuman custom, and is accordingly laid aside in most civilized nations. In Scotland and England | it is quite abolished. It however still remains in some measure in Holland, particularly with regards to wounds in the face, which is a sort of maiming very common in that country. The offender is in this case brought to the scaffold, measures the wound he had made in the face of the other, and endeavours to make one in his face of the same length, breadth, and depth.—Maiming from malice forethought is death, by a particular incident which happened in the time of Ch. 2^d.—80 During a debate in the House of Commons, whether the playhouse should be kept up or not, some of the members happend to alledge in its defence that it was kept for the kings amusement. On this Sir John Coventry asked whether this was meant of the male or the female players. This so enraged the court party, as it was a rude joke tho very great | affront, that at the kings desire the Duke of Monmouth, his natural son, and some others way–laid Sir John, and tho he defended himself very gallantly, yet he was at last overpowered and the assassins slit his nose and ears. This appeared <so> shocking to the House of Commons that they immediately made a law,81 making it capitall for any person to ly in wait for and maim another. This law has only been once put in execution since that time; and in that case too was considerably extended. The case was this. One Woodbairn, an attorney, lay in wait for his brother in law, attended by Blank in MS.ⁱ , a smith, whom he had hired for his assistance.82 They knocked down the man with a hedge–bill and afterwards endeavoured to dispatch him with a reaping hook; but instead of killing him they only mangled his face and nose in a most shocking manner. The<?y> were apprehended and tried | on the above mentioned statute, which from the cause of its being enacted is called to this day the Coventry Act. He plead in his defence that he had not lain in wait for him with a design to maim him but with a design to murder him, and that as an attempt to murder the brought to the last point,^j as the firing a pistol is not punishable with death, so he could not be condemned. The jury, however, being anxious to bring him in guilty, answered to this that though he had not lain in wait with a desire to maim, yet <?as> the instruments he used were such as that if they did not kill they must maim he ought to be condemned, and he and his accomplice were accordingly executed. Since which time, the lying in wait for one with instruments which must either^k kill or maim has been considered as punishable with death.

Not only maiming, mutilation, and such like are punishable injuries, but even the | bringing a person into fear of them by any threat or menace, as the clenching a fist, the drawing of a sword or pistol. This is called an assault. In the same manner when one beats or bruises one, without maiming or mutilating, he is punishable for the batterie. These as they are generally concommitant come under the title of assault and batterie, and are punishable by an arbitrary fine and damages. For the law is to provide not only for the safety but also for the security of the individualls.

Another injury which may be done to a mans person is by confining him and depriving him of his liberty. No one ought in equity to be confined but a criminall; there would however be an end of all exercise of judgement if the judge were not allowed to confine one before there was full proof made of his guilt. He has therefore the power of emprisonment, but not at pleasure, for a capricious emprisonment without just | foundation is accounted wrongous or false (in England) imprisonment. But the information of one witness, whether it be attended with an oath or not, common fame, or any private knowledge of the judge, is a sufficient ground and frees him from the accusation of wrongous imprisonment. But if either the judge of himself commit one with<out> sufficient grounds or the witness give designedly a false information, the imprisonment is accounted false in England and wrongous in Scotland, and a very high penalty is inflicted on the judge in the 1^st. case and in the 2^d on the witness. Besides this if the judge refuses to take a sufficient bail for all crimes that are bailable (tho indeed an insufficient bail is highly punishable), which extends even to manslaughter, he is accounted as having been guilty of wrongous imprisonment, which in Scotland incurrs a penalty of £6000 for a peer, 300 for a gentleman, and so on.83 —It might however happen that notwithstanding | of all these precautions an innocent person (or other) might be detaind a long time. For if he was taken immediately after an assize, and was not able to procure sufficient bail, he would be confined for about 6 months till the next assize before he could be brought to a trial. In England therefore it is provided that one by being at the expense of a writ of Habeas Corpus, and paying his journey costs, may be transported to the metropolis, and trial is given in 40 days.84 This however is still a hardship, as a poor man can not afford these expences. This too is avoided in Scotland, as there is no need for a writ of Habeas Corpus, the sheriff in each county being a competent judge even in criminall causes, and judgement must be given in 60 days, and illegible word^l it is delayed is punished with a highe<r> penalty, being counted wrongous imprisonment, besides a compensation of 100 pound Scots for every such day for a peer, | and so proportionally for others; and if the party incline he may be transported personally to the Court of Session at Edinburgh. Gap of three–quarters of a page in MS.

| Besides this of wrongous or false imprisonment, a man may be injured in his liberty in other shapes. Thus a man who by forcible confinement or other violence done to his liberty, or any threatenings, compells another to come under an obligation to^m him, injures his liberty, as all obligations bring one under a restraint. Now all such contracts or obligations which are forced from on<e> by duresse, as it is called, that is, by bringing one into a hardship or fear of one, are void, being extorted by fear. And all fear in the parties renders the obligation they have entered into void from the beginning.—A rape, as it is a breach of the liberty of the woman and a great injury to her,ⁿ is by the law of all civilized nations punished with death, as that alone seems to be a sufficient compensation for the injury done her. In the same way a marriage which is entered into by force is void; and besides, the party who forced the other is liable to a capitall punishment; for as it is generally the man who compells the woman, the same injury is done to her reputation as | in the case of a rape. The death of the injurious person seems here to be the only satisfactory compensation for the injury of the woman. In the same manner also the person who compelled the other involuntarily to enter into an obligation not only loses that obligation but is also liable in an arbitrary penalty. Formerly indeed an arbitrary punishment of a fine was all that was exacted for a rape, but this in more civilized countries has always been converted into a capitall punishment; and this not only with regard to the compensation due to the person but also for the fine due to the king. There are in all criminall^o cases two ways by which the criminall may be sued, either 1^st on an indictment in the kings name, or 2^dly by an appeal, which is at the instance of the private prosecutor. If therefore in the case of a rape, or a marriage or obligation extorted by duresse, the person injured should give consent to it afterwards, or as they call it posterior agreement, this vitiates his appeal, | but still the criminal may be she[e]wed on an indictment in the kings name.—{We are to observe here that though^p threatenings which put the person in fear, and by this means oblige him to enter into an obligation, render such obligations null and void; yet we are to understand this only with regard to such fear as the person has no tittle to put him into, as the threatening him with any accusation or defamation; but if he should threaten him with a prosecution on the head the obligation was demanded, this as it is malus non injustus will not render the obligation void.} There is however none of the personall rights of mankind which it is more difficult for the government of a country to preserve intire to the subject than that of liberty of his person. It must often happen that innocent persons accused of a crime will be either obliged to find bail for their appearance; or if the crime be very heinous or the bail necessary very high, even to suffer imprisonment. This indeed is not by the law looked upon as wrongous or false imprisonment, if he be committed on due evidence or information, but is at the same time a great incroachment on the liberty of the subject. It is however unnavoidable in all societies; for if no person could be put in prison or secured till the crime he was accused of be proved against him, no criminall could ever be brought to justice. If the judge was not allowed to commit a person on sufficient grounds of his being guilty, it would be the same in effect as | if he was not allowed to punish a criminall. A man who is not due a debt may indeed be made to bring bail for the summ, or if it be great to suffer imprisonment, but unless the judge had it in his power to imprison for debt many debts could never be paid. And the difficulty of bringing criminalls to justice would be still greater. The liberty of the subject is indeed as well provided for in Great Britain as in any other country. For as was before observed, the judge if he commits wrongously on his own opinion, or the person who gives a false information, is liable in a very high penalty. 2^dly, judgement may be obtained, either by being brought personally before the supreme courts, or in Scotland before the sheriff of the county, who being a judge even in capitall causes supersedes the necessity of the Habeas Corpus Act, in a very short time; and 3^dly, every day in which the prisoner is detaind after that time and not brought to trial is punished by a severe penalty, either on the judge who delays to call him to judgement or on the officer | who delays ex<e>cuting the sentence are liable in a very high penalty.^q There are few countries where so great provision is made for the^r liberty of the subject; in all arbitrary governments the subjects may be put into prison at the pleasure of the monarch; a lettre de caché in France will clap any one into the Bastile, nor has he either the power of bailing himself or of bringing on his triall till the government pleases; and in most other countries in Europe there is the same power. It must however happen, notwithstanding of all these precautions, that innocent persons will sometimes undergo hardships of this sort, in every society.

The next species of personal rights are those which entitle a man to a fair character, etc. The injuries which may <be> done to one in this way are^s [are] commonly divided into those which are done by some action in presence of others, that tends to make on <e>meanly thought. These are called real affronts. The 2^d are those which are com|mitted by words, these are called verball affronts;85 or lastly when they are put into writing, which are called libells.

First as to reall affronts. The law has been apt to consider these rather in the sense they were taken by the old law than in that which is suitable to the customs of modern times. That is, rather as assault or batterie than as an affront; and accordingly has given but a very small satisfaction for them. And to this in a great measure may be ascribed the great frequency of duelling. A blow, or the shaking of ones fist at one, or the spitting in ones face, by the law can receive but a very small satisfaction; ten pounds is all the fine that is paid for a blow in the face. {In the Roman law the penalty for such an injury was only about 2 or 3 shillings;86 and of the same little consequence was the recompense for all those injuries which would be reckoned the highest affronts. And by our law at this day the fine for pulling ones nose, etc. is but very little.^t The smallness of the punishment had not [v.136] indeed the effect of introducing duels into Rome, but the different circumstances of the nations easily accounts for that.} And indeed these injuries, considered as assault and batterie, are but very inconsiderable and are sufficiently recompensed by the penalty incurred by law. But this fine is by no means an adequate satisfaction when they are considered in the manner they are in those countries where the laws[e] | of honour are received, for there they are considered as the greatest affront imaginable, and indeed are in this case very great ones. The injury does not consist in the hurt that is done, but in the necessity it puts one to, either of exposing his life in a duel, or being for ever after despised and contemned as <a> poor, mean–spirited, faint–hearted wretch by those of his own rank, from whose company he will be ever afterwards excluded. The small pecuniary^u punishment is no sufficient recompense for such an affront. The same is the case with regard to many verball injuries, such as giving one the lye, or other reproachfull words, which as they are looked on at this time as sufficient cause for a duel must be very heinous injuries. {They are in themselves very unmannerly, but without the consideration of their consequence would not be the most unpardonable.} It is intirely from this new notion of honour that the injury of such affronts has arose. This owed its first origins to the judicial combat which was established by law, but has several other concomitant causes which | have kept it up till this day, after the judicial combat has been 300 or 400 years in dissuse. Before that time these injuries were considered merely by the hurt they did the person, and the punishment is accordingly very small, and so inaddequate to the injury that no one will think it worth his while to sue for it.—We see that formerly those actions and words which we think the greatest affront were little thought of. Plato in his dialogues commonly introduces Socrates giving the lye to those whom he converses with, which is taken as no more than ordinary conversation. Longinus quotes, as one of the most sublime passages in all Demosthenes’ writings, that where he^v relates in the most pathetick terms the hearty drubbing the clien<t> had got, how his adversary struck him first in one place, then in another, and so thro the whole of the squabble, | dwelling on every particular and explaining it fully to his judges.87 This passage[s] Longinus quotes as an instance of the sublime, so that it is evident it was not reckoned mean in any one to sue one before a court for such an affront and to expatiate on all the circumstances. But if one should at this time explain to the judge all the particulars of the drubbing he had got and beg him to give redress, this would appear the most ridiculous and mean behaviour possible, that he had not called the offender to account of himself. For when the law do not give satisfaction somewhat adequate to the injury, men will think themselves intitled to take it at their own hand. The small punishment therefore which is incurred by these affronts according to our law is one great cause of duelling, and is to be accounted a deficientia juris. The punishment which was contrived by the court of honour in France, though it did not take effect, was much better calculated to the | injury received by such an affront. Viz, as the injury done was with a design to expose the person and make him ridiculous, so the proper punishment would be to make the person who injured the other as ridiculous as he had made him, by exposing to shame in the pillory, and by imprisonment or fine, arbitrarily adapted to the circumstances of the affront.— Verball injuries are of [of] all others least easily prevented, as there is nothing so ungovernable or which is so apt to offend on a sudden as the tongue. Those^w which are of little moment are not heeded by the law; tho some of them are punished very severely according to the strict laws of honour. The law however gives redress for the more important ones which might be of prejudice to the person. Thus if one is said by another to have been guilty of murder, adultery, or any other crime which would make him liable to punishment, he may have redress before | the civill court. Or if one injures anothers title, e.g. affirms that I have no better title to the house he possesses88 than he has, as by this means he may give me trouble by setting others to raise a claim against me, he may be called to account before the court. It is also to be observed that the truth of these calumnies, tho it may be alledged as an alleviation of the crime, can not altogether barr the prosecution, for it is not the business of any unconnected person to expose the secret faults or the secret defects of right of any one. {The punishments for these injuries are what are naturally pointed out by the revenge of the injured person. For as the injury was in exposing the person, so the punishment is an arbitrary fine, imprisonment, or pilloring.—} There are other calumnies which the civill court does not attend to, as that of incontinence, etc. The civill court does not punish these if they were realy committed; that is left to the ecclesiasticall court; and in like manner when an accusation is brought against one of having charged another with these crimes, the prosecution must be before the ecclesiasticall court. And in general all redress for false accusations must be obtained before that court where the crime, if com|mitted, would be prosecuted.

Written injuries or libells, as they are more deliberate and malicious injuries than those that are spoken, often without thought, so are they more severely punishable by the law. Not only the^x author but the writer, printer, or publisher or spreader of all such libells. Pillory, imprisonment, etc. are the penalties annexed to this crime, and this is even extended to those who, finding such a libell, are at pains to spread it. {But however as the libeller generally hurts his own character more than that of him whom he libells,^y it is most prudent to despise and not to raise prosecutions on such libell, unless the accusation be particularly marked with circumstances as to make it probable, and be of such a nature as to hurt considerably the reputation of the person. For in other cases the taking notice of a libell makes the person appear more probably to be guilty than if he had despised them.} The severity of the punishment of libells and the earnestness of their prosecution depends greatly on the form of the government. In all aristocraticall governments, or where ever the nobles have great power, they are punished with the greatest severity, and even more than in absolute governments. For a libell which would not affect the king, as being too much above such scandall, would greatly irritate a lesser lord [or]^z and consequently they would prosecute the offenders with the greatest rigour. There is no country in Europe | excepting the republics of Holland and Switzerland where they are less regarded than in England; libells and abusive papers are handed about here every day which would send the writers to the Bastile in France or be punished with death; and the severity is no less in most of the monarchies of Europe at this day. In old Rome, in the monarchicall and aristocraticall governments, the publishers of libells were punished with death. The law of the Twelve Tables ran thus, Qui malum carmen in alium condiderat,^a capite plectetur.89 This is said to have been only of those which accused one of capitall crimes, but for this there is no foundation.^b But in the time of the democraticall government of Rome this punishment, which was a very unreasonable one, was taken away, and great freedom in this respect indulged to the people. But when the monarchicall form of government was again restored, the old punishment returned; Augustus renewed the law of the 12 Tables, and many were executed on that law in his time, and still more under Tiberius.90 | And in the time of Valentinian and Theodosius or thereabouts, this extended not only to the author and writer but even to one who found a libell and did not immediately burn it but shewed it to others.91 In generall the freedom in this respect is a great test of the liberty of the people. In all absolute governments and arbitrary ones they are altogether suppressed, but where the people enjoy more freedom they are not much regarded. Libells of the most scandalous sort indeed, but which are of no great detriment by their frequency, are every day published without being taken the least notice of. Aristocracies are of all others most jealous of them, and all^c monarchies endeavour to suppress them, unless it be the British.

[r]Replaces ‘declared our intention’

[s]Reading of last three words doubtful

[12 ]Sic. Possibly something like ‘as if he promised to pay me a sum of money he owed me’ was intended.

[t]Replaces ‘them’

[u]‘a dissapoin’ deleted

[v]Illegible word or words deleted

[13 ]Grotius, II.11.2 ff.; Stair, I.10.1 ff. For the criticism, cf. Hutcheson, M.P., II.9.1; System, II.2–3; Hume, Treatise of Human Nature, III.ii.5 (ed. Selby–Bigge, 523–4).

[14 ]Pufendorf, III.5.5 ff.; Richard Price, Review of the Principal Questions and Difficulties in Morals (1758), ch. 7 (ed. Raphael, 155–6).

[15 ]Sic. Presumably something like ‘the ground of a greater’ was intended.

[w]‘tri’ deleted

[x]Illegible word deleted

[y]Replaces ‘the cont’

[16 ]A small diagram is drawn here, representing a document divided into two halves with a wavy line illustrating denticulariter, ‘like little teeth’.

[z]Replaces ‘variety’

[17 ]Blank in MS. It was created by James V in 1532.

[a]The last two words replace ‘were entered into’

[18 ]Causa in the civil law, consideration in English law.

[b]‘of’ deleted

[c]Numbers written above the last two words indicate that their order was intended to be reversed

[d]Reading doubtful

[19 ]Sic. Possibly ‘create’ was intended.

[e]‘wither’ deleted

[f]Illegible word deleted

[20 ]IV.70, but the blood was dripped into a bowl of wine. Also cited by Kames, Law Tracts, I.94.

[21 ]Annals, XII.47.

[22 ]Bellum Catilinae, XXII.1.

[23 ]C. Th., 2.27; 5.10; 11.39.

[24 ]Inst. 3.21.

[g]‘which bore action’ deleted

[h]The next two sentences, reading as follows, are struck out: ‘In England contracts are on a very different footing than they are in any other part of Europe. By the common law there is no action for the fullfilling of a contract there [several words, probably ‘is no action’, deleted] can be no more satisfaction obtaind before these courts than what arises from the compensation of damages.’

[25 ]i.e. a defence: D. 2.14.7. Bare pacts alone sustained no action.

[i]‘engaged’ deleted

[j]Illegible word deleted

[k]‘In’ deleted

[l]Two or three illegible words deleted

[m]‘any’ deleted

[26 ]The form of action was ‘trover and conversion’.

[27 ]Wager of law was a proceeding whereby a defendant discharged himself from a claim by his own oath denying it, accompanied by eleven (not six) neighbours who swore that they believed his denial to be true. It could not in fact be used in trover and conversion, but it was available in the older action of detinue; that action provided a remedy in the case of a ‘simple bailment’, which was the delivery of a chattel to the defendant with the plaintiff’s consent. The passage in the text is confused.

[n]Below this passage on the verso page there is written the word ‘Bell’ or ‘Ball’, which has possibly been deleted

[o]Reading doubtful

[p]‘against’ deleted

[28 ]The classification does not occur in any ancient sources, though culpa lata is in D. 50.16.213.2 and 223pr, and culpa levissima in D. 9.2.44pr. Cf. 89 below.

[29 ]II.iii.2.8–10.

[30 ]Illegible word, probably ‘custodiam’. ‘Salam’ should be ‘salvam’, and the meaning of the phrase is the duty to keep in safe custody.

[31 ]1681, c. 20 (A.P.S. VIII.352, c. 86).

[32 ]Sic. Presumably ‘are’ was intended.

[33 ]Cf. Pufendorf, V.7.6.

[34 ]vi.119 ff. below.

[q]Reading doubtful

[r]Reading doubtful

[35 ]The reference is probably to the recoinage of 1709, discussed in J.–F. Melon, Essai politique sur le commerce (1734), ch. XVI (in E. Daire, ed., Économistes financiers du XVIIIe siècle (1843), 721 ff.), and the observations on that chapter of C. Dutot, Réflexions politiques sur les finances et le commerce (1738), ch. I, art. 4–6 (Daire, 797 ff.).

[s]Illegible word or words deleted

[t]‘tho’ deleted

[36 ]vi.73–5 below.

[37 ]Inst. 3.27; Hutcheson, M.P., II.14; System, II.77.

[38 ]The Rhodian sea–law concerning jettison; when goods were thrown overboard to lighten a ship and so save both ship and cargo from wreck, proportionate shares of loss were borne by the owners of ship and cargo saved, so ‘averaging’ the loss: D. 14.2.1.

[u]This sentence is written vertically at the side of the page

[39 ]‘Enriched at the expense of him who has paid the debt’.

[v]‘extra’ deleted

[w]‘January 26, 1763’ is interlined at this point

[40 ]The principle that ‘no one ought to be enriched to the detriment of another’ derives from D. 50.17.206.

[41 ]Sic. Presumably ‘horse’ was intended.

[x]Illegible word deleted

[42 ]78 above.

[43 ]This is culpa levis in concreto; more common is culpa levis in abstracto, failure to show the objective standard of care of the ‘good head of a family’.

[y]‘injur’ deleted

[44 ]For this doctrine, and for much of the whole paragraph, cf. TMS II.ii.3.6–11. See also Appendix II of the Glasgow edition of TMS, which includes and discusses an earlier version of Smith’s views on punishment.

[z]There is a large stain running down this page which renders the readings given of a number of the words more than usually doubtful

[a]The last three words replace ‘unconcerned spectator’

[45 ]Grotius, II.20.7–9; Pufendorf, VIII.3.9–12.

[46 ]Sic. No doubt ‘will’ was intended.

[b]Reading doubtful

[47 ]13 and 14 Charles II, c. 18 (1662) made export of wool a felony (as 18 Henry VI, c. 15 had done earlier).

[c]Reading doubtful

[48 ]Preamble of 7 and 8 William III, c. 28 (1696), which reduced the crime to a misdemeanour.

[49 ]Sir G. Mackenzie, Laws and Customes of Scotland in Matters Criminal (1678), I.27. English law was less severe.

[d]Illegible word or words deleted

[e]‘it that is’ deleted

[50 ]P.–F.–X. de Charlevoix, Histoire et description générale de la Nouvelle–France, avec le Journal historique d’un voyage . . . dans l’Amérique septentrionnale (1744), III.272 ff.

[51 ]Presumably J. F. Lafitau, Mœurs des sauvages amériquains, comparées aux mœurs des premiers temps (1724), I.486–90.

[f]Replaces ‘that’

[52 ]Usually wergeld, or vergelt: Kames, Law Tracts, I.43 ff.

[53 ]Pactus legis Salicae, 50.

[g]Illegible word deleted

[54 ]In fact Ajax: Iliad, ix.632.

[55 ]Iliad, xviii.500.

[56 ]Odyssey, xv.271 ff.

[57 ]v.13–14 below.

[58 ]Blanks in MS. Malloch, an exciseman. That a royal pardon did not affect the action for assythment was decided by Keay v. McNeill (1717), unreported; see Baron David Hume, Commentaries on the Law of Scotland re trial of crimes (1800), II.387. In Malloch v. Fulton’s relict and child (1751), Morison’s Dictionary of Decisions, 11774, it was decided that cessio bonorum of the debtor’s goods did not prejudice the claim of the widow and children, which presupposed that assythment was unaffected by the pardon. In the text, ‘friends of the deceased’ should be ‘family of the deceased’. Smith may have heard of Malloch’s case from Lord Kames, who as H. Home was Malloch’s advocate.

[h]‘not’ deleted

[i]Reading doubtful

[59 ]Hawkins, II.23, paras. 36 ff. and 103 ff.

[j]The first line on 104 of the MS., reading ‘and one step failing the prosecution [illegible word]’, has been deleted. The words ‘and one step failing the pro’, written at the top of the verso of 103, have also been deleted.

[k]‘for whom’ deleted

[60 ]Hale, I.35, saying that Canute penalized the township where a Dane was killed.

[l]This sentence is written vertically at the side of the page

[61 ]Chance medly or killing per infortunium: Hale, I.39; Hawkins, I.29.

[62 ]Hale, I.40.

[m]‘in the same manner’ deleted

[n]The word ‘uncertain’ is written in the margin at this point

[63 ]Hawkins, I.28.

[o]‘ones own’ deleted

[p]The last eleven words are written vertically at the side of the page

[64 ]Hale, I.36.

[q]The last four words, which are written vertically at the side of the page, replace ‘of manslaughter’

[r]The last six words are written vertically at the side of the page

[s]Possibly deleted

[65 ]Hale, II.44.

[t]Illegible word

[66 ]23 Henry VIII, c. 1 (1532).

[u]‘and chance manly’ deleted

[67 ]Cf. TMS II.iii.2.8: ‘if, by . . . imprudent action . . ., he should accidentally kill a man, he is, by the laws of many countries, particularly by the old law of Scotland, liable to the last punishment.’

[68 ]5 and 6 Anne, c. 6 (1706).

[v]The last two words replace ‘in like manner’

[69 ]Hale, I.37; Hawkins, I.31.40 ff.

[w]Numbers written above the words ‘deer’ and ‘rabits’ indicate that their order was intended to be reversed

[x]The last three words replace ‘murther’

[y]At this point the following sentence is struck out: ‘But he has now [illegible word] a legal process by which he can obtain his pardon.—’

[z]Illegible word deleted

[70 ]Hawkins, I.28.11, 17, and 26.

[a]At this point the following words are struck out: ‘There is this difference with regard to manslaughter peculiar to it, that the person who is accused of [‘it’ deleted] murther and found guilty can no’

[b]The reading of the last eight words, which are interlined between ‘must’ and ‘be’, is doubtful

[71 ]Sc. deodand.

[72 ]Blank in MS. ‘Prytaneum’: Pausanias, Description of Greece, I.28.11, mentioning the trial of an axe.

[73 ]Meursius, Themis Attica (1685), I.17, cited by Kames, Law Tracts, I.13; it was a statue which fell.

[74 ]Exodus 21:28.

[c]‘animall’ deleted

[75 ]In TMS II.iii.1.3, after noting that resentment and gratitude are often directed both at inanimate objects and at animals, Smith adds that the latter is less irrational than the former. ‘Animals, therefore, are less improper objects of gratitude and resentment than inanimated objects. The dog that bites, the ox that gores, are both of them punished.’

[d]Reading doubtful

[e]‘drawing’ deleted

[76 ]Hale, I.32; Hawkins, I.26.5,6.

[77 ]Lex Longobardorum, I.7.

[f]Numbers written above ‘teeth’ and ‘of those’ indicate that their order was intended to be reversed

[g]Reading doubtful

[h]‘murder is’ deleted

[78 ]Exodus 21:24, Deuteronomy 19:21.

[79 ]Si membrum rupit, ni cum eo pacit, talio esto (Tab. VIII.2). ‘For the breaking of a limb, unless there is agreement (for compensation) let there be talion’ (cited by Kames, Law Tracts, I.42).

[80 ]Rapin, History of England, tr. Tindal, II.658; Burnet, History of His Own Time (1753), I.397.

[81 ]22 and 23 Charles II, c. 1 (1670).

[i]Blank in MS.

[82 ]Woodburne and Coke’s Case (1722), Howell’s State Trials, XVI.53. The ‘attorney’ was in fact Coke (or Cooke), who, having unsuccessfully solicited Carter, a smith, to kill one Crispe (Coke’s brother–in–law), then persuaded Woodburne, a labourer, to do it in his presence.

[j]Sic

[k]Illegible word deleted

[83 ]Act, 1701, c. 6 (A.P.S. X.272) declares all non–capital crimes bailable. Failure to grant bail incurred the penalty of wrongous imprisonment: 6,000 pounds for a nobleman, 4,000 pounds a landed gentleman, 2,000 pounds another gentleman or burgess, and 400 pounds any other person.

[84 ]20 days: 31 Charles II, c. 2 (Habeas Corpus Act, 1679).

[l]Illegible word

[m]The last six words replace a number of illegible words, which may be ‘to make a contract with’

[n]Two or three illegible words deleted

[o]Replaces ‘capitall’

[p]‘all’ deleted

[q]The last seven words are clearly superfluous

[r]‘secu’ deleted

[s]‘what’ deleted

[85 ]Mackenzie, Laws and Customes of Scotland in Matters Criminal (1678), I.30: ‘injuries are either verbal or real.’

[86 ]25 asses; cf. Aulus Gellius, XX.1.13.

[t]A new paragraph apparently begins at this point in the verso note

[u]Replaces ‘arbitrary’

[v]‘introduces one’ deleted

[87 ]Demosthenes, 21.72 (Against Meidias), cited by Longinus, On Sublimity, 20, but simply as an example of combined figures of speech, not ‘as one of the most sublime passages . . .’. Smith has misremembered Longinus’ remark a few lines earlier (end of ch. 18) that a certain passage of Herodotus is reckoned one of the most sublime. The reporter first wrote ‘drubbing he had got’ (correctly, since the assault was on Demosthenes himself) but then changed ‘he’ to ‘the’ and interlined ‘clien’.

[w]‘therefore’ deleted

[88 ]Sic. Presumably ‘I possess’ was intended.

[x]‘writer’ deleted

[y]‘this’ deleted

[z]Illegible word deleted

[a]Several illegible words deleted

[89 ]‘Whoever had composed an incantation against another shall suffer a capital penalty’ (Tab. VIII.1). The exact text has to be conjectured, e.g. from Horace, Satires, II.1.82: si mala condiderit in quem quis carmina, ius est iudiciumque.

[b]The last sentence is written vertically at the side of the page

[90 ]Tacitus, Annals, I.72.

[91 ]C. 9.36.2 = C. Th., 9.34.7.

[c]‘other’ deleted

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Friday. January 21st. 1763. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]