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Thursday Febry 3d 1763 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

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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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Thursday Febry 3d 1763

The only injuries which can be done to a man as a man which have not been already considered are those which injure one in his estate.d {This may be done either by injuring him in his real or his personall estate. First, of the injuries done to one in his real estate.} These may | be of two sorts, for they may either 1st injure him in his immoveable or 2dly in his moveable possessions. Again one may be injured in his immoveable possessions either by burning and destroying his house, which by the English law is called arson; or by being forcibly dispossessed of his estate. — Fire raising, incendium or arson, when a fire is raised wilfully in an others house, is punished capitally by the Roman, English, and Scots law. The setting ones own house on fire, if it be done with design to raise fire in the adjoining, has also been thought liable to be capitally punished. It is also punishable in a less degree if it be done with intention to hurt any one or his goods who may be in it. {But the burning of a house thro negligence is not punishable.} The dispossessing one of his estate is in all cases punishable; and the dispossesser is obliged to restore the estate to the person who was turned out, by a very short and expeditious process. And in this case the civil constitution extends considerably farther than reason and | nature dictate. For naturally any one who is turned out of what he justly poss<ess>es would think himself intitled to reinstate himself in thee possession of his property by force. But this civil governments do not allow, as dissagreable to the peace and order of society. Insomuch that one <who> violently takes possession of what he knows he has a right <to> is, as well as any other who turns one out of what he possesses, liable to be sued by an action on that head, which by a very summary process obliges him to give up the estate. And this process requires no more than the proof of the force used to dispossess him, whereas the proof of ones right to the estate is always tedious and often very doubtfull. When one has been thus reinstated in the estate he possessed, the other may then bring the proofs of his right; but violence is at all times prohibited in the taking possession of an estate. It is to be observed however, that if one | who has thus violently taken possession of an estate be allowed to possess it peaceably for the space of two years,92 he can not afterwards be sued on the plea of violence, but must be allowed to continue in the possession of it untill the other make out his rights, which <is> as was said a much more doubtfull and tedious process.—It is to be observed also that tho it be unlawfull to take possession of ones own by violence, yet it is not unlawfull to keepf ones possessions by force, as that is no more than acting in his own defence.

In the moveable part of ones estate the injury may be of thre<e> sorts, either 1st, theft, that is, the clandestinely conveying away anothers goods with design to apply them to his own use; 2d, robbery; and 3d, piracy, which differs from the other as the one is committed by land and the other at sea.

Theft appears naturally not to merit a very high punishment; it is a | despicable crime and such as raises our contempt rather than any high resentment.— It is however punished capitally in most countries of Europe, and has been so since the Blank in MS.93 century. In England all theft which amounts to above the value of 12d is accounted grand larceny and is punish’d by death without the benefit of clergy. Thefts to a less amount than 12d are punishd by banishment, a fine, or whipping. The English law and the Scots also accounted, till the time of George 2d, no theft capitall unless the thing stole was the property of some certain person.94 Thus it is not theft punishable to convey away pigeons at a distance from the pigeon house, nor geese or ducks when they have strayed far from the house; {nor is it theft for one who has no title to shoot wild fowl of any sort.} tho it is theft to convey them from the house or the nests. In the same manner, till a statute of George the 2d, it was not theft to kill a deer in a forest or chase, tho it was in a park or inclosure, unless the theft was committed in the night time by persons whose faces were blacked.95 But by that | statute the killing of a deer by a person who has no right to it is punishable with death. In Scotland all sorts of theft are punishable by death, but the amount of the theft must be considerably greater than it is in England. Thefts of smaller value are punished by banishment. But there is one case wherein thefts of the smallest value are punished with death both by the Scots and English law, that is, where a house is broken open in the commission of it. The security of the individualls requires here a severer and more exact punishment than in the other cases. Burglary therefore is always capitally punished. The punishment which is commonly inflicted on theft is certainly not at all proportionable to the crime. It is greatly too severe, and such as the resentment of the injured person would not require. Theft appears to be rather contemptible and despicable than fit to excite our resentment. The origin of this severe punishment arose | from the nature of the allodial and feudal governments and the confusions which were then so frequent. Each allodiall lord was as it were an independent prince, who made war and peace as he inclined. Each of these lords was commonly at war or at least in enmity with all his nei<gh>bours, and all his vassalls were in like manner seperate from those of the other lords and would always endeavour to carry off plunder from the lands of their neighbours. The punishment of theft was at first some pecuniary fine, or compensation. {Amongst the Romans theft was punished with the restitution of double of the thing stolen, with this distinction, that if the thief was caught with the thing stolen about him he was to restore fould,96 and two fold if he was not caught in the fact: in the fang or not in the fang (as it is expressed in the Scots law<)>, and in the Latin writers fur manifestus et nec manifestus. It will be proper to take the more notice of this, as the reason of it does not appear to be very evident, and that which is alledged by Montesquieu,97 tho very ingenious, does not appear to me to be the true one. He says that this law was borrowed from the Lacedemonians, who, as they trained their youth chiefly to the military art, encouraged them in theft, as it was imagined this might sharpen their wit [v.150] and skill in the stratagems of war. Theft therefore was as they suppose not <?at> all discouraged amongst them, but rather honoured if it was not discovered before it was finished; but when the thief was discovered it was looked on as a disgrace, as being not cleverly performed. From this custom of the Lacedemonians, the Romans, says he, borrowed their law; which though it was proper enough in the Lacedemonian government was very unfit in the Roman. But this does not appear probable in any part. For in the 1st place there is no good ground for imagining that the Lacedemonians encouraged theft. This is conjectured from some passagesg of Blank in MS.98 , particularly one where he tells that there was a table kept at the publick charge for the old men of the city, but none for the younger men. They however were encouraged to pourloin for themselves what they could from the table, for the reason above assigned. This however is very different from what is properly denominated theft, which was not at all encouraged. 2dly, we do not see that theft was ever encouraged by the Romans, for the fur nec manifestus was punished as well as the fur [nec] manifestus; though not so severly. The reas[v.151]on was this. Punishment is always adapted originally to the resentment of the injured person; now the resentment of a person against the thief when he is caught in the fact <?is greater> than when he is only discovered afterwards and the theft must be proved against him, which gives the persons resentment time to cooll. The satisfaction he requires is much greater in the former than in the latter case. We see too that there was the same odds made in the punishment of other crimes. The murderer who was caught rubro manu was punished much more severely than he against whom the murder was afterwards proven.} But to prevent the abovementioned dissorders the Emperor the Blanks in MS.99 made a law that theft should be punished with death. From this law of his, capitall punishment first was inflicted on those who were guilty of theft; this took place at first in Germany and Italy and spread afterwards over the whole of Europe. The great facility of committing any crime, and the continuall danger that thereby | arises to the individualls, always inhance the punishment. Theft was in this state of government very easily and securely committed and therefore was punished in a very severe manner.—The Scots law some time ago inflicted a punishment still more severe than on any others on those landed gentlemen who were guilty of theft. This would appear very odd at this time, but naturally followed from the manners of the times. Every clan was at enmity with all its neighbours, and each chieftan was the chief abbettor and receipt of all the thefts, robberies, and illegible wordh that were committed. They were the grand receipt and the chief spring of all those irregularities; it was therefore necessary that their punishment should be the more severe. It was therefore not only a capitall punishment, but this crime was allso attended with forfeiture of goods, an incapacity of inheriting, and all other parts of the punishment of petty treason.1 But tho a capitall | punishment might be in some respects proper in those times, yet it is by no means a suitable one at this time. Ignominy, fine, and imprisonment would be a far more adequate punishment.

The progress of government and the punishment of crimes is always much the same with that of society, or at least is greatly dependent on it. In the first stages of society, when government is very weak, no crimes are punished; the society has not sufficient strength to embolden it to intermeddle greatly in the affairs of individualls. The only thing they can venture upon, then, is to bring about a reconciliation and obtain some compensation from the offender to the offended. But when the society gathers greater strength, theyi not only exact a compensation but change it into a punishment. The punishment<s> in this stage of society are always the most severe imaginable. It is not the injuries done to individualls that a society which has lately obtained strength sufficient to punish crimes will first take into its consideration. These it can only enter into by sympathy, by putting | itself in the state of the person injured. Those which immediately affect the state are those which will first be the objects of punishment. These the whole society can enter into as they affect the whole equally. Of this sort are treason; all conspiracies against the state; and deserting the ranks in the field of battle, and all such cowardice. Tacitus2 tells us that cowardice and treasonable practises were the only crimes punishable amongst the antient Germans, {and all such crimes were capitally punished.} When therefore the state came to take under its consideration the injuries done to particular persons, it was rather as injuries to the state than as injuries to the individualls; the punishments therefore for all crimes were in this stage of society,j immediately after compensation had been thrown aside, the most bloody of any and often far from being proportionable to the injuries.k When society made a still greater progress and the peace and good order of the community were provided for, and tranquillity firmly established, these punishments would again be mitigated | and by degrees brought to bear a just proportion to the severall crimes. History affords us many instances of this. The laws of the 12 Tables, which were made about the time of the declension of compensation, punished many of the slighter crimes with death. A libell, as we observed,3 was capitally punished. But afterwards the praetors changed these punishments into milder ones, more suited to naturall equity. In the same manner the first laws that the Athenians had after the method of compensation had been laid aside were those of Draco, the most bloody ones imaginable. Death was the punishment of the smallest as well as of the greatest crimes; so that Blank in MS.4 says he punished in the same manner the stealing of a cabbage as he did sacrilege or murder. These were afterwards succeeded by the mild and equitable laws of Solon. In the same manner also in Britain allmost all crimes of moment were considered as treasonable; the killing of any person, at firstl and afterwards the husband or the wifes killing the other, robbery, and theft in some cases, as that | before mentioned, even the non payment of a debt, were considered as treasonable, and punishd accordingly. We already observed that this has been in some measure taken away as with regard to theft. That regarding debt has been altogether taken away in Scotland, and is laid aside in the practise of the English law. These treasons were in generall taken away at the union of the kingdoms in Queen Annes times.5 The first punishments after compensation is laid aside are always the most severe and are gradually mitigated to the proper pitch in the advances of society.

The 2d manner in which a man may be injured in his moveable estate is by robbery. Though theft does not excite our resentment to any great pitch, yet robbery, which forcibly takes our goods from us, will step up our resentment very much. Robbery has therefore been generally punished with death in all countries when compositions were laid aside, which was the first thing that was provided for in all criminall cases. Not only the forcible carrying off ones goods by putting him in fear of his person but | all extortions by means of fear are accounted robbery. Thus if one should either make one give him a summ of money for a commodity of no value, an expedient often try’d by robbers to evade the law, or if he should make one sell his goods at a great dissadvantage, all such extortions are accounted robbery and are punished with death. But if one should oblige another to sell him his goods for a price considerably higher than what he could reasonably expect, this would not be accounted robbery as the person was not deprivd of any part of his price, but would rather be attributed to whim and caprice.6

Piracy is another species of robbery which likewise requires a severe punishment, and that not only from the resentment which all robberies excite in us but also from the great opportunities there are of committing it andm the great loss which may be sustained by it, as a great part of a mans property may be at once exposed, render a very high punishment absolutely necessary; and this as I said is generally a capitall one.7

| We come now to those injuries which may be done one in his personall estate. These are either, first, by fraud, whereby one cheats another out of his property in his personall estate; or 3dly, by perjury; or 2dly, by forgery.

The lesser frauds are generally obliged to be recompensed by the deceiver and are besides punished with a fine. There are however two species of fraud which are more severely punished; the 1st is with regard to bankruptcy. By the statute of bankruptcy in England, the debtor, on giving up all his substance to his creditors, is freed from all farther distress; but if he embezzles above 20£, besides his and his wifes wearing apparel, he is punished with death.8 This law was made in the time of George 2d, and many have been since executed upon it; and with great justice. For though the resentment of the injured would not perhaps require so great a punishment yet there are severall circumstances which make it necessary. The great benefit the person bankrupt receives | from this statute is no small agravation of his crime. But besides this, there is no fraud which is more easily committed without being discovered; one may take 1000 ways to conceal his effects; and the loss of the creditors may by this means be very great, as the best part of the effects may in this manner be very great.n The temptation also the debtor is under to commit this fraud and save some part of his effects make a high punishment necessary. For where ever the temptation and the opportunity are increased, the punishment must also be increased.— {For this reason, tho theft amongst the Romans was punished in most cases with the restitution of double, one half for the thing stolen and the other for retaliation, yet the stealing any of the utensils of husbandry, as plows or harrow, was punished with death; and they were deemed sacred to Ceres.9 } The 2d. sort of fraud to be here observed is one with regard to insurance. The insurance,10 on the masters giving in an account of the value of the ship and cargo, insure her for that summ. There is an Act of Parliament11 however which makes it death for one to give in an <?account> of this sort above the real value. For by that means the master, having insured his ship above the value, might take an opportunity of wrecking her on some place where he might easily save | himself and crew; and by this means enrich himself to the great loss of the insurers. And as the detection of all such transactions is very difficult, and great profits might be made by it, the temptation to commit such a fraud is very great and consequently the punishment must be high.— — —

Forgery is the next thing we are to consider. Whenever written obligations came to be binding, it became absolutely necessary that all frauds of this sort should be prohibited. For otherwise one by forging an obligation might extort any sum he pleased. Forgery therefore is both by the English and Scots law [is] capitally punished; with this difference, that by the Scots law all sort of forgery whatever, without regard to the nature of the obligation, is punished with death. By the English law only those forgeries are liable to a capitall punishment which are done in the manner of those papers which draw immediate payment, as bills, India bonds, banks bonds, bank notes, and all others payable at a certain time.12Blank in MS.o But | bonds, properly so called, conveyances of land estates, and such as do not exact any immediate payment, are not punished with death but with pillory, fine, and imprisonment. The reason here is the same as that of insurance and bankruptcy. For here the payment of the money being to be made immediately, the discovery of the person or the recovery of the money is very precarious. Whereas in bonds and conveyances the danger can not be so great, as the subjects are not so perishable and there is longer time to examine the title.

Perjury is a crime no less dangerous.13 For by it one may be deprived of his estate, or his life itself. The false oath of a witness may bring all that about; but this crime is not punished with death but with a very ignominious punished,14 the loss of both his ears which are naild to the pillory, his nose, and a fine and imprisonment. There are indeed some cases where one may <be> executed from perjury, but then that is not as a perjurer but as a murderer, having by his false oath been the occasion of a mans suffering innocently, | and this extends to the subborner as well as other cases of perjury. Some authors inde<e>d affirm that there have been instances of persons hanged on account of perjury, but these have probably been of the sort above mentiond. Sir George McKenzie and Forbes15 also alledge that women guilty of adultery have been hanged on the statute of perjury; but if there were any such instances it was a very wrong extention of that Act; for we are to observe that it is only affirmative perjury that is thus punishable. A promissory oath (tho it adds greatly to the solemnity of the obligation),p tho it may be very sincerely made, does not appear when broke to make on<e> guiltyq <of> so heinous a crime as one who willingly and knowingly affirmd what he then knew to be false. The breach of such oaths is rather to be attributed to weakness and frailty than to any malice or ill will, and this is the case with regard to adultery.—

Gap of three lines in MS.

| Before we leave the subject of personall rights, it will be proper to consider in what manner they come to an end. All reall rights come to an end in three different manners, either 1st., by Blank in MS.16 ; 2dly, by praescription; and 3dly, by voluntary transference. Personall rights of all sorts are in like manner ended in three different ways.17 — — —

The 1st of these is by the performance of that which we have a right to exact. Thus one who owes me a sum of money,r by paying this debt frees himself from the obligation. It would be absurd to suppose that I can have afterwards any claim against him. In the same manner one who has been guilty of a crime frees himself from the obligation he is under to the offended person by submittings himself to the punishment which is to be inflicted on that crime, whether it be required by the law of nature and equity or by the civil law of the country. If the punishment which is to be inflicted is death, the death of the person takes away the right of those to whom this punishment is due; and in the same way | if the punishment be a pecuniary fine or a lesser corporall punishment or any other whatever, the right of the party to demand it, whether it be the publick or an individual, is plainly at an end when the criminall pays the fine or submitts himself to the corporall punishment. For it is evident that a right against a person must end as soon as the thing or service we have a right to is payd or performed.— — —

The 2d manner in which personall rights come to an end is by discharge or acquittance, and pardon.— If one owes me a debt and I, tho I have not received payment of this summ, engage by a contract not to demand payment of it but to free him from it, his obligation will certainly be taken away. He has then as good or a better claim to be free from the debt as I have to exact it. I may indeed alledge that he is bound by contract to pay me such a summ and that I am dissapointed by his nonperformance, but he has the same claim to be exempted from performance as he has a contract on that also to free him from the debt; and his claim is besides greatly preferable to mine, as the disappointment I receive by his nonperformance must be very small | after I have engaged not to exact it; whereas the dissapointment of the debtor may reasonably be very great after I have received an obligation to be freed from the payment of the debt. {Thus the obligation the creditor comes under by a discharge, as it is called in Scotland, or acquittance in England, must free one from the debt. The debtor has here a much more reasonable expectation of being free from it, proceeding from the discharge or acquittance, than the creditor has of payment from the bond.} In the same manner also if one is liable,t either by the law of equity or the civill law of the country, to suffer such or such a punishment, he will be altogether freed from this if the party who has a right to exact it agrees voluntarily that he should be so. This it is which gives the foundation to the right of pardonning. The pardon frees the criminall from the punishment, in the same manner as an acquittance frees the debtor from the debt. In the same manner also, as it is the creditor alone who can grant an acquittance, so it is only the person who has a right to exact the punishmentu who can grant a pardon. If the punishment be due to an individuall, the individuall can grant him forgiveness; or if it be due to the community or the prince as representing them, the prince can for the same reason grant forgiveness | and pardon. Thus in England, where the relations of the deceased can prosecute the murderer on an appeal, as well as the king on information and indictment, these parties can free the person from the capitall punishment as due to them but not acquit him also from it asv due to the other. The private prosecutor can not stop the prosecution in the name of the crown, nor grant him acquittance from the sentence; nor does the kings pardon free him from capitall punishment on the appeal of the relations. But the relations may free him from it asw due to them, and the king may grant him pardonx and freedom from the punishment which is due to him as representing the community.

3d., personall rights are put an end to by prescription no less than real rights. The reason too is the same in both; the person who has not exercised his right for ay long time is supposed not to have thought of it, or at least not to have any great dependance on it; and on the other hand one who has for severall <?years> | not been called on may be imagined to have forgot his debt, or at least to have an expectation.z By the English law all bills and bonds that have a fixt day of payment prescribe in 6 years,18 and those that have any particular priviledges, as bills of exchange, lose those priviledges after three years. By the Scots law bills and obligations which have a day of payment specified do not prescribe in six years,19 but they lose their priviledges before that time also. Blank in MS.a Bonds which in the proper sense of the word bear no day of payment ought reasonably to take a longer time to be prescribed, as the dereliction or omissions of the creditor or the hopes of the creditor20 that the debt is forgiven can not take place so soon where the time of payment is left to the will of the creditor. But still if the creditor has [for a long] neglected to call for principall or interest for a long tract of years, it is altogether just that the bond | should prescribe. For if no interest has been stipulated, and consequently none due by the debtor, it must be presumed that such a debt is to be payed in a very short time, as few will incline to ly out of their money in that manner. The time however is by the Scots law fixt to forty years,21 as well as in immoveable subjects. If there is interest payable and this interest is duly called for, it is evident that the creditor still has his debt in view, and the debtor can not form any expectation of being free from payment. In this case a bond will not prescribe at all; one may have interest paid on a bond 100 or 200 years old and be in no danger of its prescribing, for it would be unjust that he should be deprived of that which he plainly accounted as a part of his estate and depended on for a share of his yearly support. But if on the other hand he should neither call for principall or interest for 20, 30, or 40 years, it appears probable that he has altogether forgot it, as one would not readily give up so great a part of his subsistence. | The bond is 20 years doubled by interest, and in 40 years there would be due 3 times the originall summ. No one would knowingly be so much out of pocket; and at the same time it would seem hard that one who had peaceably possessed a sum for so long a time should at once be called on to pay 3 times what he had received. By the strict law, however, if one should in the 39th year demand a years interest and obtain payment of it, neither the principall nor interest will prescribe. If in the 40th year he demands another and gets payment, and so on, this still saves the principall, but each year a years interest will also prescribe if not paid; thus in the 41st the 1st years, in the 42d the 2d years, and so on. This is what the strict law prescribes. But it is probable that the Court of Session, which is a court of equity as well as of strict law, would cut them off considerably faster. In the same manner as debts, so the punishment due for the commission of crimes, whether it be due to the public or to individualls, ought reasonably to | prescribe in a time considerably shorter than that of a mans life time. If one has been either overlooked or has kept out of the way for a considerable time, it would be altogether unreasonable that he should be punished. We will find that it is alltogether proper that the punishment of crimes should prescribe, whether we found the reasonablenessb of punishing crimes on that principle which I have here explaind, or on those on which Grotius and most other writers on this subject have founded it.22 These are, thec correction of the offender and the bringing him to a sense of his duty; 2dly, the deterring of others by making him an example to them; or 3dly, the safety of the community by taking away an unworthy and dangerous member.

As to the resentment of the injured person or his relations, it is plain that this must wear away by time; one who had been guilty of a great injury against me would not raise my resentment 20 years after near so much as at the time the deed was committed, or even in a much shorter time. On this principle it is plain therefore | thatd the punishment of crimes should not extend for a very long time. If again we should found it on those principles above mentioned the case will be the same.— As to the first, the correction of the offender, this can not make the punishment due for a very long time, for if one had been guilty of a very atrocious crime 10, 20, or 30 years ago, if he has lived since that time peaceably and innocently and with a fair character it would appear ridiculous to say that [t]hee any way required to be corrected; he may in that time have become a very different person.— In the same way the safety of the community, which requires the removall of a dangerous and pernicious member out of the society, can not extend to a very great number of years. For one who had been guilty 20 years ago of a very great crime and was then a very dangerous member of society may by this time have become a very different person; if he has lived since that time a peaceable and innocent life we could never think it just to remove him out of society as a | dangerous person. The other reason or foundation of punishment assigned by thes<e> authors may at first sight appear to justify the continuance of the punishment for a much longer time than the two former. For it would appear to tend greatly to deterr others from being guilty of a heinous crime, when they saw that even a long continuance of better conduct could not free them <from> the punishment of their former guilt. But even this will expire after a long time; for if one should be punished in this manner for a crime he had been guilty of long before, and which was very unlike his after conduct, no one would be greatly affected by the punishment as it would <?appear> to be rather capricious than following necessarily from the commission of the crime. In all cases therefore the punishment of crimes will prescribe in a considerable time; in most cases this <is> regulated by the resentment of the person injured, tho the others will no doubt have an effect on it also. In England the prosecution on appealls | expires in one year,23 as they are entirely founded on the resentment of the private prosecutor, and are not much encouraged by the government. Treasonable practises and such like must be prosecuted within three years after the commission, otherwise the prosecution is of no effect, except in such cases as the treason was not in one single act but a continuance of treasonable practises, in which the time is considerably longer.24 And in generall the legislature allows all crimes to expire in a certain time, which is longer or shorter according to the particular nature of the crime, unless it be some very horrid crimes where the punishment may be inflictedf at any distance of time whatever. We are to observe however that this only regard<s> those cases where the criminall has not been brought to a trial nor any sentence pronounced against him. For if sentence has been pronounced, and he has | afterwards made his escape, he may be executed or otherwise punished on that sentence by the strict law for forty years after. The very making his escape and evading the punishment that was justly pronounced against him is considered as a crime, which being added to the former lengthens the time of prescription. But tho this be the regulation according to the strict law, it will be very seldom put in practise. A very unhappy gentleman, Mr. Blank in MS.25 Lord Ratcliff, was executed on a sentence passed on him long before. He had engaged in the rebellion in the 1715 and had been tried and condemned, but made his escape to France. He resided however unmolested at London from the year forty till the forty five, solliciting his pardon. He then joined the rebellion at that time, and was apprehended and executed on the former sentence. But had he remain’d quiet it is not at all probable he would have been in | the least mollested, altho the forty years were not near being past. Dr. Cameron26 also was executed in the year 50 or 51 on the sentence passed on him in the year 1745. The government were then not altogether free from fear of another rebellion, and thought it necessary to take that precaution. But had he kept out of the way for some years longer he would probably have been altogether safe.— — —

I shall only observe farther with regard to criminall causes that there are severall phenomena in the punishment of crimes which, as they are easily accountible for by the principle of punishment I have laid down, tend greatly to establish it. The attempt to committ a crime when it comes to the last point is in every respect as punishable, tho it has not taken effect, [as if it had] according to the principles of punishment laid down by | Grotius and others, as if the crime had actually been committed; for with regard to the guilt of the offender, there can be no difference; it is the intention and not the effect which regulates that. The safety of the society also would require the removing a dangerous person as well here as in the other case; as he has given the same proof of his being so, by firing a pistoll and running at one with a sword, as if he had actually killed him. It is evident also that there is the same reason for making an example of him to the deterring of others. Yet as far as I know there is no country where the attempt to committ a crime is punished with the same severity as the actuall committing it. The resentment of the party injured is not however so great; and it is on this, as I have endeavoured to shew, that the punishing of criminalls is founded. The resentment of the friends of one who had been attacked with a design to murder him and had made his escape is not near so great as if he had been actually murdered. In this case the grief for their friend | blows up their resentment and makes them demand the greatest rigour of punishment. In the other case their joy on the escape of their friend sooths and lays asleep their indignation. In the same manner one who, doing a thing in itself dangerous, if he happens to kill or hurt one, is punished much more severely than if no bad effect should follow. Thus if one by throwing a stone into the street should kill a man he would be punished as a murderer, the action being in itselfg improper and dangerous and such as a strict police would punish, tho in most countries it would be overlooked if no bad effects had followed.27 But in this case on those principles above mentioned he should be punished with no less rigour than when these bad effects follow. The guilt of the person is the same and requires the same correction, as there was the same danger in both cases and the effect was only accidentall. The safety of the society requires punishment rather more in the one case than in the other, and in reality rather more, as the committing | such an action without any harm following may give both him and others less reluctance in the commission of such actions on future occasions than if he had been the occasion of damage by so doing.h — The same may be said of one who, riding an unruly horse in the street or market place with design only to frighten the people for his diversion, happens to kill a man. In both these cases we feel a much less resentment against the offender when no bad effects follow[s], than when he is the occasion of a great misfortune.—It is on the same principle that we are apt to inflict some sort of punishment on irrationall animalls and even innanimate things when they have been the occasion of the death of any person. This proceeds from a resentment blind and foolish indeed, but such as illegible wordi legislators have not neglected.

There are also some persons which are never esteemed liable to punishment for any actions. Such are chil|dren, idiots, and madmen. If a childj say he would shoot or stab one and should actually do so, and altho this should proceed from rage and passion, he would not be esteemed liable to punishment. Yet by those principles they should be as liable as others. The danger is no less great to the community, and the examples where there may be an opportunity of committing are no less frequent, and even more so, as they have less reason to restrain them. But the insignificance and the weakness of that age both in mind and body makes them appear no proper objects of resentment; and in the same manner a madman who committs the most horrid crimes seems no object of resentment or punishment. The totall depravation and thek great appearance there is that their morall faculty is in them altogether obliterated puts them on a quite different footing from other men. They appear so different from | the common idea we form of men that those actions they commit do not in the least shock us. A madman is one who would knock a man on the head that he might see which way he would fall, and committ other such like actions from the most ridiculous and frivollous motives. It is the generall behaviour of a man which makes us look on those who are guilty of the most enormous crimes with abhorrence and aversion. When the crimes are not committed from such frivolous motives as those above mentioned, but from such as would have some considerable weight with any reasonable man, tho they would not influence a good man to be guilty of such horrid actions, it is then that from the resemblance such men bear to others [that] we are shocked at their actions. Thus one who murders an other to get his money becomes an object of our abhorrence and resentment, as that | is a very strong motive, and tho it would not influence a good man to commit that crime, is still one of considerable weight with any reasonable <?man>. The resemblance betwixt the motives of such men and those of others creates an abhorrence and resentment at the actions which are committed by them in a criminall manner from such reasonable motives.— — — — —

End of Volume Two of MS.

[d]Replaces ‘property’

[e]Possibly deleted

[92 ]In fact three years: 31 Elizabeth I, c. 11 (1589); Hawkins, I.64.8,14.

[f]Replaces ‘defend’

[93 ]Blank in MS. Probably ‘twelfth’ was intended; cf. the reference to Frederick I on p. 129 below.

[94 ]Hawkins, I.33.24–6 (English); M’Douall, II.3.12 (Scots). The reference is probably to statutes for the better protection of game by higher penalties for poaching, e.g. 10 George II, c. 32 (1737) (England) and 24 George II, c. 34 (1751) (Scotland).

[95 ]9 George I, c. 22 (1722), made perpetual by 31 George II, c. 42 (1758); Hawkins, I.49.

[96 ]Sic. Probably ‘four fold’ was intended. Inst. 4.1.3,5.

[97 ]XXIX.13.

[g]Reading doubtful

[98 ]Blank in MS. Plutarch, Life of Lycurgus, 17–18.

[99 ]Blanks in MS. Frederick I: Lib. Feudorum, II.27.8, and Gothofredus’ note thereto.

[h]Illegible word

[1 ]Sir G. Mackenzie, Laws and Customes of Scotland in Matters Criminal (1678), I.19.12, citing Act, 1587, c. 50 (A.P.S. III.451, c. 34).

[i]Replaces ‘and has’

[2 ]Germania, xii.

[j]‘when’ deleted

[k]Illegible word deleted

[3 ]143 above.

[4 ]Blank in MS. Plutarch, Life of Solon, 17.

[l]Numbers written above the last five words indicate that they were intended to read ‘at first of any person’

[5 ]7 Anne, c. 21 (1708).

[6 ]Hawkins, I.34.7.

[m]‘also’ deleted

[7 ]Hawkins, I.37.

[8 ]5 George II, c. 30 (1732); Hawkins, I.57.

[n]Sic

[9 ]The Twelve Tables, VIII.9, penalized the nocturnal cutting of and the pasturing of animals on another’s crops by death and sacrifice to Ceres.

[10 ]Sic. Probably ‘insurers’ was intended.

[11 ]4 George I, c. 12 (1717); Hawkins, I.48.

[12 ]5 Elizabeth I, c. 14 (1563); Hawkins, I.70.

[o]Blank in MS.

[13 ]Hawkins, I.69.

[14 ]Sic. Presumably ‘punishment’ was intended.

[15 ]Mackenzie, Laws and Customes of Scotland in Matters Criminal, XVIII.1,2; W. Forbes, Institutes of the Law of Scotland, II (1730), IV.5. Bigamy was punished as perjury under Act, 1551, c. 19 (A.P.S. II.486, c. 11).

[p]‘does not’ deleted

[q]The last three words replace ‘be’

[16 ]Blank in MS. Probably ‘renunciation’ or ‘abandonment’.

[17 ]Hutcheson, M.P., II.17.1.

[r]Illegible word deleted

[s]Replaces ‘subjecting’

[t]Replaces ‘bound’

[u]‘that’ deleted

[v]Reading of last two words doubtful

[w]Reading of last two words doubtful

[x]‘of th’ deleted

[y]‘a very’ deleted

[z]Sic

[18 ]21 James I, c. 16 (1623) limited actions on bills to six years but did not apply to bonds under seal.

[19 ]In Scotland sexennial prescription of bills was introduced by 12 George III, c. 72, sec. 37 (1772).

[a]Blank in MS.

[20 ]Sic. Presumably ‘debtor’ was intended.

[21 ]Act, 1469, c. 29 (A.P.S. II.95, c. 4); Act, 1474, c. 55 (A.P.S. II.107, c. 9).

[b]Replaces ‘right’

[22 ]Cf. 89–93 above. The third principle of Grotius and Pufendorf is as stated here, not as is implied on 93.

[c]‘pu’ deleted

[d]‘on’ deleted

[e]‘had’ deleted

[23 ]Appeals of death: Hawkins, II.23.48.

[24 ]7 and 8 William III, c. 3 (1695).

[f]Replaces ‘exacted’

[25 ]Blank in MS. Charles Ratcliffe, brother of the Earl of Derwentwater: Foster’s Reports, 40; Howell’s State Trials, XVIII.430.

[26 ]Dr. Archibald Cameron was executed in London in 1753 on the strength of a bill of attainder passed against him in 1746: Foster’s Reports, 109; Howell’s State Trials, XIX. 734.

[g]‘unju’ deleted

[27 ]Cf. TMS II.iii.2.8: ‘Thus, if a person should throw a large stone over a wall into a public street without giving warning to those who might be passing by, and without regarding where it was likely to fall, he would undoubtedly deserve some chastisement. A very accurate police would punish so absurd an action, even though it had done no mischief.’

[h]Reading of last two words doubtful

[i]Illegible word

[j]Illegible word deleted

[k]‘allmost’ deleted