Front Page Titles (by Subject) Of Contract - Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence
Return to Title Page for Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
Of Contract - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence 
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).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.
©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
That obligation to performance which arises from contract is founded on the reasonable expectation produced by a promise, which considerably differs from a mere declaration of intention. | Tho’ I say I have a mind to do such a thing for you, yet on account of some occurrences do not do it, I am not guilty of breach of promise. A promise is a declaration of your desire that the person for whom you promise should depend on you for the performance of it. Of consequence the promise produces an obligation, and the breach of it is an injury.
Breach of contract is naturaly the slightest of all injuries because we naturaly depend more on what we possess than what is in the hands of others. A man robbed of five pounds thinks himself much more injured than if he had lost five pounds by a contract. Accordingly in rude ages crimes of all kinds, except those that disturb the public peace, are slightly punished, and society is far advanced before a contract can sustain action or the [or the] breach of it be redressed. The causes of this were the little importance of contracts in these times, and the uncertainty of language.
The first contracts that sustained action would be those where the damage done was very great, and where there could be no doubt but the person once intended to perform. Accordingly among the ancients promises entered into with great solemnity first sustained action. Among them no stipulation could be made unless the contractors were personaly present, and no promissary note in writing was binding.
As no promises by the Roman law sustained action without a stipulation, so by the English a consideration or cause for the promise was at first necessary to make it obligatory. | It was thought contrary to good manners to insist on a promise. If a man promised with his daughter a certain sum, there is a consideration and therefore he was obliged to perform it. But if he promised it with any other man’s daughter it was sine causa, and unless she was a relation could not sustain action. If I made you a promise it did not sustain action, but if I again promised not to forget my former promise, the latter promise was obligatory, and the former was the consideration that made it so.93
By the civil law the first promises that sustained action were those entered into in presence of a court where there could be no doubt of the intention, and accordingly recognizance of every promise was taken before some court. A recognizance is when the debtor comes before a court with the creditor, and acknowledges that he owes him a certain sum; a copy of this acknowledgement was given to the creditor and another lodged in the hands of the clerk, and whenever the creditor produced this, if it was found to correspond to the other, he might pursue for his money. Afterwards a recognizance before the magistrate of a staple town served the purpose.94
The next contracts that sustained action were the contractus reales, or those which were entered into by the delivery of a thing to be returned itself, or in species, or in value. These are of four kinds, the mutuum, commodatum, depositum, and pignus.
The mutuum is when I lend any thing to be returned in value, as money. This soon sustained action.
| Commodatum is when the thing itself is to be restored, as a borrowed horse.
Depositum is when a thing is committed to anothers care, but not to his use.
Pignus is a security for debt.
All these sustained action before the consensualu contracts, which are also four, to witt, buying and selling, letting and hireing, partnership, and commission. In buying, if the contract be not fullfilled you lose your earnest money. Letting and hireing once comprehended leases, days wages, building, and almost every thing with regard to society. If the contract of commission was performed gratuitously it could not at first sustain any action. But if a reward was given it was nearly the same with the commodatum. If a small price be paid for the loan of a thing it becomes letting and hireing. The mutuum does not inferr interest, and in a bond unless the interest be specified it will carry none.
Besides these there was in the Roman law what was called a pactum nudum, when there was a bare promise without any consideration, which produced an exception or defence against the action of the pursuer. As contracts deprive men of that liberty which every man wishes to enjoy, a very small defence sett them free. Originally no95 contracts were sued before any court but the ecclesiastic, but they came gradually to civil courts. The common96 law, which judged from principles of honour and virtue, | obliged men to perform even these promises that were made gratuitously. This was imitated by the civil law, and by our law if a promise be clearly proven he who promises must perform it. In general the law gave only action for damages till the Court of Chancery was introduced. It is indeed the natural idea of <a> court to redress injuries, and accordingly if a person refused to perform his contract he was only obliged to pay the loss which the other had sustained. But the Court of Chancery forced the person to a performance of the agreement.
Nothing can be more different than the present and ancient state of contracts. Execrations and the most solemn ceremonies were scarce thought sufficient to secure the performance of a contract; drinking blood and water mixed, bleeding one another, promising before the altar, breaking a straw, and a number of other ceremonies to impress the mind, were invented; at present almost any thing will make a contract obligatory.
There are some questions concerning contracts much agitated by lawyers, especially one in the case when the coin happens to be debased. <?If> I borrow £100 when the coin is 4 oz. the pound, and it be afterwards debased to 2 oz., whether should I pay £100 of the new coin or 200£. When the government makes any alteration in the coin it is to answer some urgent necessity. In 170397 the crown of France had a demand for 10 million and could raise only five. They cried up the coin and paid the 10 with five. | As the government allows private persons to pay with the new coin, the injury is not great. The debasement of the coin cheapens for sometime all commodities and provisions, as all are paid in the new coin, and therefore the uses of money may be served by the new as well as the old coin.
Quasi contract is founded on the duty of restitution. If you find a watch on the way, you are obliged to restore it by the right of property, because a man loses not property with possession. But if you and I balance accompts, and you pay me a sum which both think due, but you afterwards find you did not owe that sum, how will you claim it? You cannot ask it as your property, for you alienated that sum, nor can you claim it by contract, for there never was one made between us, yet it is evident that I am a gainer by your loss and therefore restitution is due.
In the same manner if a man was called away by a sudden order of the state without leaving an attorney to manage a law suit that he had going on, and a friend undertakes this office without commission, as the defence is necessary and the undertaking it prudent, restitution of his expences are due. On the same principle were founded the actiones contrariae of the Roman law. If you lent me a horse which had cost me extraordinary expences, by the contract commodate you could redemand your horse in the same <?condition> in which you lent him, but I could claim | my extraordinary expences by an actio contraria.
The same principle takes place in many other cases. If a person borrows money and gets three of his acquaintances sureties for him jointly and severally, and if he turn bankrupt, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds. The Scotch law carries this still farther.98 If a bankrupt had two estates, and two creditors A and B. A has a security on both estates, B has security only on the best. A has a liberty of drawing his money from either estate he pleases, and draws from that on which B has his security. As B in this case is cut out, the law obliges A to give up his security on the other estate to B. The same was the case in the Roman–law with regard to tutory.
We come now to the third kind of personal rights, those, to witt, ex delicto.
Delicts are of two kinds, as they arise ex dolo when there is a blameable intention, or ex culpa when they are done thro’ a culpable negligence.
Injury naturaly excites the resentment of the spectator, and the punishment of the offender is reasonable as far as the indifferent spectator can go along with it. This is the natural measure of punishment. It is to be observed that our first approbation of punishment is not founded upon the regard | to public utility which is commonly taken to be the foundation of it. It is our sympathy with the resentment of the sufferer which is the real principle. That it cannot be utility is manifest from the following example. Wool in England was conceived to be the source of public opulence, and it was made a capital crime to export that commodity. Yet tho’ wool was exported as formerly and men were convinced that the practice was pernicious, no jury, no evidence, could be got against the offenders. The exportation of wool is naturaly no crime, and men could not be brought to consider it as punishable with death. In the same manner if a centinel be put to death for leaving his post, tho’ the punishment be just and the injury that might have ensued be very great, yet mankind can never enter into this punishment as if he had been a thief or a robber.
Resentment not only prompts to punishment but points out the manner of it. Our resentment is not gratified unless the offender be punished for the particular offence done ourselves, and unless he be made sensible that it is for that action. A crime is always the violation of some right, natural or acquired, real or personal. The non performance of a contract indeed is not a crime, unless it be thro’ some fraudulent intention.
The greatest crime that can be done against any person | is murther, of which the natural punishment is death, not as a compensation but a reasonable retaliation. In every civilized nation death has been the punishment of the murther<er>, but in barbarous nations a pecuniary compensation was accepted of, because then government was weak and durst not meddle in the quarrells of individuals unless in the way of mediation. In the age of hunters particularly, there was little more than the name of authority, and a man of superiour influence can do no more than perswade the parties to an agreement. When one man killed another the whole society met and advised the one party to give and the other to take a compensation. In America when one member of a family kills another the society does not intermeddle with them, as this cannot hurt the peace of the society. They only take notice of it when one family attacks another. It was long before the government could call a man before them and tell him what he must do, because it was long before people would submitt to such absolute authority. In the laws of all nations we have the remains of this ancient state of weakness.
When government became more powerfull, the murtherer was not only obliged to make a compensation to the relations of the slain, | but likewise to the publick, who were put to the trouble of lending him their protection on that occasion, against the revenge of those who were concerned. This was the state of criminal law among the Germans at the declension of the Roman Empire.
The Germans were much farther advanced than the Americans at this day. Tho’ they seldom punished with death yet they seemed to make the punishment in some measure proportioned to the crime. A price was sett on every person according to his station. There was one price paid for killing the king, and another for killing a slave. The compensation was proportioned to the dignity of the person and of his relations. What was paid to the prince for interposition was increased and diminished in the same proportion. It was a higher fine to kill a man belonging to a lord than one belonging to a little baron. To disturb the kings peace subjected to [to] a greater fine than to disturb the peace of a baron or lord. If the injurer refused to pay the compensation he was left to the resentment of the injured, and if he was not able to pay it he was obliged to implore the assistance of his friends. As the compensation was not adequate to the offence, the government after it acquired strength took this additional compensation to itself, as the price of the offenders freedom. From this the sovereign acquired the right of pardoning criminals, | for naturaly he has no more right to pardon a crime than to discharge an unpaid debt.
Anciently a crime was considered in two lights, as committed against the family injured and against the peace. The government had the exclusive right of punishing those who had disturbed the peace and killed any of the kings vassals. The compensation to the government was afterwards changed into a capital punishment. After the king’s pardon the offender was free, and the relation had no right to pursue him. In England the offender can be punished for the relation as well as for the king. When an appeal is made to the king he cannot pardon. But appeals are seldom or never used, as it is difficult to bring them about. If a man was murthered no body but the wife could pursue for an appeal, or if she was accessory, the legal heir. Any mistake in the process, such as a word wrong spelled, stopped the procedure, for the statute of amendment, which permitted courts to overlook errors, did not extend to appeals. Appeals in former times were often made in cases of maiming, hurting, etca.
There are several kinds of murther by the English law. The word originaly signified stealth as the crime was usually committed in private. Afterwards felony and99 killing of every kind was called murther and | compensation made for it accordingly. Murther arises either from malice propense, or from sudden provocation, or from chance per infortunium. Of these the first alone is properly called murther. The second is manslaughter, and the last chance medley, which is often excusable and often justifiable. Murther committed se defendendo is when two persons quarrel, and the one is obliged to kill the other for his own safety. This is excusable, not justifiable homicide. Justifiable homicide is of two kinds. 1st. In defence <of> one’s person, goods, or house. It differs from homicide se defendendo in this, that there is no quarrel, but an attack on the highway or in a man’s own house. 2d. Homicide is justifiable in support of a constable or officer of justice.
These are the different species of murther and homicide; we shall next shew what is the nature of each. When a person lyes in wait for another and kills him it is plainly murther. It is the same when a man kills another without provocation. By the English law there is no provocation without a blow, no words or menaces are sufficient. However, if a man give you a blow and you return it and kill him it is not murther but manslaughter. If a man be shooting at tame fowl or doing any other criminal action | and without intending it kill a man, it is murther. Wherever there is any appearance of malice or forethought, it is murther. If a person kills another in the afternoon for some provocation received in the forenoon, it is murther. But if he has only retired a few steps and returned to do it immediately, it is not murther but manslaughter. Homicide se defendendo is not punishable if there was no possibility of escape, but if a man had time to retire and draw his sword it is punishable because he might have escaped. The Scotch law makes no distinction between manslaughter and murther. In England manslaughter was introduced by what is called benefit of clergy. When civil government encreased in authority, the punishments of crimes were made more severe that the peace might be less disturbed. The clergy pled that this was not agreable to the word of God, and as they derived their authority from Jesus Christ and the Pope they would answer before no civil judicatory. They pretended that the scripture did not consider any crime where there was no malice or forethought as murther, and this they proved from Deuteronomy XIXth. When any <?such> person therefore had committed a crime, the bishop had a power to claim him and take him out of the hands of the secular power. If a person could get 12 persons to swear for him he was acquitted; if not, the bishop judged whither he was corrigible or not. | If he was incorrigible he was degraded. The bishop could claim in this manner all clergy and beadles, wardens, or other persons who had any connection with the church. But the civil courts after allowed him only to claim those that could read, as this wasv more immediately connected with the office of the clergy. Queen Ann afterwards extended the priviledges aris[is]ing from benefit of clergy with regard to manslaughter to all equally.
For chance medley a man forfeits his goods, but he has the power of suing for them again and of obtaining pardon. In justifiable homicide a man must plead not guilty of any thing the court can meddle <with>, and if he can bring in his evidence he is not arraigned.
Our resentment naturaly falls upon inanimate as well as animate objects, and in many places the sword or instrument that had killed any person was considered as excrable, and accordingly was destroyed, particularly among the Athenians.
By the English law if a man fell from a house1 and was killed, the house1 was forfeited by the law of deodand. Deodand signifies to be given to the devil, by the same sort of metaphor that the scripture uses where it is said he blessed God in his heart, that is, he cursed him. Afterwards the clergy applied deodands to charitable uses. If a man was killed by an object at rest, only the part by which he was killed was forfeited. If he was killed <?falling> from the wheel of a waggon standing, only that wheel was deodand, but if the waggon was in motion the whole team was forfeited. It was long questioned if a ship was forfeited by a man being killed in it | but as mariners are so much exposed it was thought hard that it should.
A person may also be injured in his body by demembration, mutilation, assault and battery, or restraint on his liberty. Maiming and mutilation originaly by the Roman law were compensated for in the same way with murther, and if the person was incapable with the assistance of his friends to pay the compensation he was given over to the person maimed, to be maimed in the same manner, as we are acquainted by the Salic law which gives us the form of their procedure. In the same manner all hurts among many nations, particularly among the Lombards, were compounded for; they paid so much for a tooth, so much more if it was a foretooth, so much for two teeth, but, what is very remarkable, tho’ twenty were knocked out the injured person could claim no more than the price of three. They had a precise sum for every member of the body. Among the Romans, if a man could not pay his composition, he was obliged to make satisfaction by the law of retaliation; he received as many blows as he gave. An eye went for an eye, and a tooth for a tooth. This custom continued long, and is in general reasonable, but in some cases it is not proper. If a man got his arm broken in wrestling, it was hard that anothers should be broken for it in cold blood. In some cases it was impracticable, as when a man causes an abortion in a woman, he could not be punished in the same manner. This custom by degrees went out, and pecuniary fines | according to the circumstances of him who was to pay them were introduced, and the praetor at Rome caused them to be received, but in some countries it continued longer and there are remains of it in Holland to this day. When a person was maimed in any member that rendered him incapable of military service the punishment was more severe.
By the Coventry Act, maiming in the face from malice or forethought was punished with death. The reason of this was that Sir John Coventry had spoken impertinently against the king in Parliament. The Prince of Wales2 with some others, probably not without the king’s permission, laid wait for him and cut his ears and his face. The Parliament immediately enacted that maiming in the face from forethought should be punishable with death. There was never one, however, executed upon this law but one Cook, who lay in wait to murder his brother, but did not get it executed, only he maimed him in the face. He was therefore by the Coventry Act found guilty of deliberate malice. He pled that his intention was to murther, not to maim, but the court from the instrument he used found that he intended to maim as well as murder.
A man may also be injured by assault and battery. When a person is put to bodily fear it is assault, and when he is actualy beat it is battery. Originaly no assault by words subjected to punishment, unless there was likewise a shaking of the fist, drawing an instrument or something of this kind; | a composition was the first punishment for these crimes, but now it is fine and imprisonment.
A man may further be injured in his body by restraining his liberty, therefore the laws of every country are particularly carefull of securing it. No magistrate in this country has an arbitrary power of imprisonment. It is indeed reasonable that he should have it in his power to imprison when there is ground of suspicion, tho’ an innocent man may sometimes suffer a little by it. Nothing is more difficult than perfectly to secure liberty. If the person can bring some circumstances to alleviate the suspicion, he may be sett at liberty upon bail, unless it be a capital crime. If the bail be not sufficient it is unjust in the magistrate to accept of it. But if it be, he is punishable if he do not. If a person be wrongously kept in prison beyond the time when he ought to have been tried, he has so much a day according to his station. In England, if a person be confined the day after the assizes, 40 days after he may have the benefit of the Habeas Corpus Act, that is, he may be carried to London at his own expence, but if he cannot afford this he must wait till the next assizes. In Scotland, there is no occasion for the Habeas Corpus Act. A person may be tried by the sherriff if he pleases, and at any rate can be carried to Edinburgh to the Kings Court. All this is for the security of liberty in free governments, but in despotic governments the will of the magistrate is law.
| It is to be observed with respect to what is done thro’ fear, that a bond given from this principle is not binding. No obligation is valid unless the person acted voluntar<il>y. However, if a person is threatned to be pursued and gives a bond to avoid it, the bond is valid, and the fear is not considered as a metus injustus.
A rape or forcible marriage is capital, because the woman is so dishonoured that no other punishment can be a sufficient retaliation. Tho’ forcible marriage be forbidden by law, yet if the woman afterwards consent the friends can have no appeal, yet the king may pursue it.
A man may be injured in his reputation, by affronts, by words, and by writings. An affront in company is a real injury; if the affront be offered in words it is a verbal injury, if in writing it is a written injury. In all these the law gives redress. Affronts by the old law were punished in the same manner with assault and battery. Affronts in company are most atrocious crimes. The triffling fine of five or ten pounds is by no means an adequate compensation for them. Where the law denies justice we are naturaly led to take it ourselves. This introduced dueling in Europe, which brings along with it an additional injury. I must not only receive a box on the ear, but I am obliged to expose my life or become altogether odious. It is to be observed that in Socrates time | the affront of giving the lie was little thought of. He does it himself without any ceremony.
Verbal injuries are redressed both by ancient and modern laws. When a person is accused by words it sustains a process before a court of justice. If he be accused of forgery, theft, or any crime, as he may be subjected to great dammages he is entitled to sufficient redress. In the same manner if a person’s right or tittle be slandered he suffers an injury. If I say you have no more right to your own house than I have, it is an injury, as it may excite those who have pretended tittles. Tho’ it be true, this is only an alleviation and will not secure me from a prosecution. There are some offences that are only prosecuted in spiritual courts, as if a person call a woman a whore.
Written injuries are subjected to severer punishments than verbal ones, as they are more deliberate malice. Abusive words in a lybel give a process tho’ the same words would not if spoken. Lybels and satyres are punished according to the nature of the government. In aristocratical governments they are punished severely. Little petty princes may be quite destroyed by abusive lybels, whereas kings and ministers of state in a free country, being far out of their reach, cannot be hurt by them. In governments and in Rome for a long time they were not punished.3 Augustus at last revived the law, subjecting the authors to a capital punishment. | In general people of circumstances take no notice of such lybels, unless it be absolutely necessary to clear themselves of some crime.
A person may be injured in his estate, real or personal. With regard to his real estate he may be injured either in his moveables or immoveables. In his immoveablesw he may be injured by arsine or forcible entry. Arsine is wilfull fire raising, either in the house of another or in our own, so as to affect that of another. By the Roman, English, and Scotch law this is punished capitally. If the fire be occasioned by negligence no punishment is inflicted. Forcible entry is the violently putting a man out of his estate. The laws are so strict on this head that the person outed may retake his own by violence.4 This was occasioned by the feudal customs, by which it was very common for barons and their vassals to deprive one another of their possessions, and this was the only way <that> then could be fallen on to get it restored. Afterwards it was enacted that if any person could prove that he was violent<ly> disspossessed his estate should be restored.5 But if the violent possessor had kept it three years, the old possessor must prove not only that he was disspossessed by violence, but that he has a real right to it, before it be restored.
A man may be injured in his moveables three ways, by theft, robbery, and piracey. Theft is the clandestinely taking away the property of another. This crime does not naturaly excite that degree of resentment which prompts to capital punishment, and for a long time it was not punished with death. | By the old Roman law the thief was obliged to restore what he had taken, and to add to it as much more; if he stole a sheep he restored two. There was however a peculiar distinction between the fur manifestus and fur nec manifestus. The former as he was taken with the goods about him paid quadruple, and the latter only double the value of things stolen. This they borrowed, it is said, from the Lacedemonians, who taught their youth to steal and hide well as they thought it improved them in that cunning which is necessary in war. However, the Lacedemonians never encouraged the stealing the property of another. In their feasts nothing was prepared for their young men, and it was expected that they should purloin from the tables of their fathers what was sufficient for themselves. To steal such triffles as a crust of bread was indulged, but nothing else. The real reason of their punishing the fur manifestus more severely than another was that barbarous nations punish crimes according to the degree of resentment they excite, and when the thief was catched in the act their resentment was very high, and consequently disposed them to punish him severly. Since the 13th century this crime has been punished capitaly. The vassals of great lords were continually making incursions into the neighbouring territories and carrying off bootty. When government came to be established, it naturaly punished most severly these crimes to which men had the greatest propensity, | and consequently endeavoured to restrain this practice. The Emperor Barbarossa first made this crime capital, and he was followed by all civilized nations, tho’ undoubtedly the punishment is too great, for a thief is but a petty mean creature and does not excite a very high degree of resentment. He seems to be in some degree below this passion. By the old Scotch law theft in a landed gentleman was considered as treason, because the gentry were considered as the abutters and assistants of thieves and vagrants, and as they made war on one another, which looked like an usurpation of soveraignty, they were considered as guilty of treason. By the English law any theft below a shilling was punished with the pillory, and above that with death. In Scotland it requires a much greater sum. Nothing is theft with us but what belongs to particular persons. The man who stole deer in a forrest or pidgeons at a distance from a pidgeon house could not be punished till by a late statute.6 Housebreaking indeed, tho’ there was not the value of a shilling carried off, was punished capitaly. Such punishments, however necessary once, are certainly now too severe. Government wasx at first weak and could not punish crimes, but was obliged to interpose in these cases in which the interest of society was concerned. But when it acquired more strength it made punishments severe that it might | restrict the licentiousness of manners which lax discipline had introduced. Accordingly we find that the laws of the 12 Tables made almost every crime capital. In Europe after the custom of compensations went out, they punished every thing as treason. Theft in a landed man, a servant killing his master, a curate his bishop, or a husband his wife7 were all petty treason. Afterwards only crimes respecting the state were considered as treason, and this crime came by degrees to it’s proper extent.
Robbery, as it puts a man to the greatest bodily fear, is subjected to the greatest punishment; no occasion can save the robber, even tho’ he should cover the injury by pretending to buy a man’s goods after he has forced him to sell them to him.8
Piracey is punished still more severly.
A man may be injured in his personal estate by fraud or forgery. The natural punishment of the dolus malus is not death, but some sort of ignominy such as the pillory. Some frauds, however, on account of the facility and security with which they may be committed and the loss which they occasion, are justly subjected to capital punishment. When an insured ship, for instance, is cast away, it is difficult to prove that it was done by fraud. But if she be insured to the full value there is a great temptation to cast her away, and therefore the law, in order to intimidate the merchant, | make death the punishment. It was a question whether a ship ought to be insured for her value at the port whence she setts out, or at the port to which she is bound, and it was determined that it should be at the port where she setts out. If a Glasgow merchant sends out a ship with 3000£’s worth of goods for Virginia, they are worth more than 4000£ when they arrive there. And if the merchant were allowed to insure for this last sum he would have a great temptation to make shipwreck of her. He can expect no more when he is at the expence of taking his goods to Virginia; he may meet with bad debtors and he can lose nothing by the insurers. In the same manner it was anciently capital to steal any thing from the plow,9 as it was so much exposed.
In England a bankrupt may have a discharge on surrendering himself and all his effects, but as he has it in his power to defraud his creditors, if he does not give up all he has he is punishable by death.10
Forgery is also punished capitally, and nobody complains that this punishment is too severe, because when contracts sustain action property can never be secure unless the forgeing of false ones be restrained. However, the forgery of every deed is not capital, but only the forgery of deeds payable to the bearer on demand, because any forgery of a deed regarding the conveyance of land may easily be discovered before any dammage be done.
| Perjury is not punished capitaly.
As there are several ways of acquiring personal rights, so there are several ways in which they expire. First, by payment of what is due by contract or quasi contract, because the fullfillment of the obligation satisfies the other party. Secondly, by discharge or acquittance, even tho’ the debt be not paid. This also takes place with regard to crimes, for when the king or the injured person choose to drop prosecution or to give a pardon the person is free. Thirdly, by prescription. If a debt be not claimed within a certain time the debtor is free. This is very reasonable, for if a debt be not claimed for a long time the negligence of the debtor is encouraged. By the Scotch law, if he call for neither principal nor interest of a bond for forty years, it very justly prescribes. No body of common prudence would neglect any part of his affairs for forty years, if ever he intended to meddle with them again. According to strict law, if the interest be demanded in the 39th year the capital does not prescribe. Crimes likewise prescribe, and it is reasonable that they should, whether they be punished from a sympathy with the resentment of the sufferer, or from public utility, or to satisfy the public. Resentment wears out in a few years, | and a person who has behaved well for twenty years, the time fixed on by our law, cannot be very dangerous to the public. Appeals by the English law prescribe in one year, but an indictment does not prescribe so soon, because the king prosecutes for public security and not to gratify private resentment and therefore the law favours his claim. At any rate it would be unreasonable to prosecute a man for a crime committed 40 years ago, because he may now be a quite different man from what he was then. Besides, the thing is quite forgotten and the end of punishing and public example is entirely lost. Treason itself prescribes in a few years. From a resentment in law, however, if sentence have actualy <been> passed upon a person, and he have made his escape, he may be executed on his former sentence. The escape is considered as a new crime. However, this is not very natural, and if a man live quietly after his return he is seldom troubled. We had an instance of an earl who had been sentenced in 1715 and had returned to his native country and lived peaceably in it till the year 1745, when he again joined the rebells and was executed on his former sentence. Dr. Cameron suffered in Scotland in the same manner. In every country, if a person return after twenty years he is not troubled; it would be thought invidious in the officers of justice to meddle with him.
Some general observations on the criminal law is all that remains on this subject.
| Resentment seems best to account for the punishment of crimes. If a person fires a pistol down a street, tho’ he do no harm, public utility requires that he should be punished. But such crimes are by the laws of every country more slightly punished than if some mischief had ensued. The reason is plain. Resentment never rises to any great pitch unless some injury be actualy done. Some things that are in themselves criminal are not punished unless some bad consequence follow. A man meets with little resentment for riding an unruly horse in the market place, but if he kill any body resentment is very high. For the same reason deodands, tho’ inanimate objects, are accounted execrable. In many cases the resentment falls upon the very member of the body which perpetrated the action. Resentment is on the whole a very indiscriminating principle and pays little attention to the disposition of the mind.
Certain persons are not to be considered as objects of punishment, such as ideots, madmen, and children. We are not so much shocked by an action done by a madman as one done by another person. We think binding the only punishment adequate to their crimes.
This is all we intended on the injuries that may be done to a man as a man.
Having now considered man as a member of a state, as a member of a family, and as a man, we proceed to Police, 2d division of jurisprudence.
Whole of 202 left blank in MS.
[93 ]Never quite English law, although attempts were being made to modify the doctrine of consideration in this direction before it was reasserted in Rann v. Hughes (1778), 7 T.R. 30n.
[94 ]M. Bacon, New Abridgement of the Law, s.v. Execution, II.330–2.
[u]Originally ‘consential’ and emended by a second (eighteenth–century) hand to ‘consensual’
[95 ]This is an exaggeration.
[96 ]Reporter’s or copyist’s error for ‘canon’.
[97 ]The last digit is not clear and might be ‘5’. The date is given as 1701 in the corresponding passage in LJ(A) ii.81, above, but it seems likely (as there noted) that the reference is in fact to the recoinage of 1709.
[98 ]Kames, Essays upon Several Subjects in Law (1732), II (‘Beneficium cedendarum actionum’); Kames, Principles of Equity (1760), I.1.2.1; Erskine, II.12.29.
[99 ]The last two words are perhaps a copyist’s error for ‘felonious’.
[v]Inserted by a second (eighteenth–century) hand
[1 ]Probably copyist’s error for ‘horse’. Cf. LJ(A) ii.120, above.
[2 ]In fact Charles II’s natural son, the Duke of Monmouth. Cf. LJ(A) ii.124–5, above.
[3 ]Something has evidently been omitted from this sentence. Cf. LJ(A) ii.142–3, above.
[w]The copyist wrote ‘moveables’ and a second (eighteenth–century) hand has inserted ‘imm’
[4 ]Hawkins, I.64.1.
[5 ]5 Richard II, c. 7 (1381); 15 Richard II, c. 2 (1391); 8 Henry VI, c. 9 (1429).
[6 ]Probably 24 George II, c. 34 (1751), applying to Scotland.
[x]Inserted by a second (eighteenth–century) hand
[7 ]Should be ‘a wife her husband’.
[8 ]Hawkins, I.34.10.
[9 ]Sir G. Mackenzie, Laws and Customes of Scotland in Matters Criminal (1678), I.19.9, citing Act, 1587, c. 82 (A.P.S. III.460).
[10 ]5 George II, c. 30 (1732); Hawkins, I.57.