[Division Iii.] Private Law

We formerly explained the nature of rights, and divided them into natural and acquired. The former need no explanation; the latter are divided into real and personal. Real rights are property, servitude, pledge, and exclusive privilege. We are first to treat of property.

Property is acquired five ways. First, by occupation, or the taking possession of what formerly belonged to nobody. Second, by accession, when a man has a right to one thing in consequence of another, as of a horse’s shoes along with the horse. Third, by prescription, which is a right to a thing belonging to another arising from long and uninterrupted possession. Fourth, by succession to our ancestors or any other person, whether by a will or without one. Fifth, by voluntary transference, when one man delivers over his right to another.

We shall first treat of occupation, the laws of which vary according to the periods of human society. The four stages of society are hunting, pasturage, farming, and commerce. If a number of persons were shipwrecked on a desert island their first sustenance would be from the fruits which the soil naturally produced, and the wild beasts which they could kill. As these could not at all times be sufficient, they came at last to tame some of the wild beasts that they might always have them at hand. In process of time even these would not be sufficient; and as they saw the earth naturally produce considerable quantities of vegetables of its own accord, they would think of cultivating it so that it might produce more of them. Hence agriculture, which requires a good deal of refinement before it could become the prevailing employment of a country. There is only one exception to this order, to wit, some North American nations cultivate a little piece of ground, though they have no notion of keeping flocks. The age of commerce naturally succeeds that of agriculture. As men could now confine themselves to one species of labour, they would naturally exchange the surplus of their own commodity for that of another of which they stood in need. According to these stages occupation must vary. Occupation seems to be well founded when the spectator can go along with my possession of the object, and approve me when I defend my possession by force. If I have gathered some wild fruit, it will appear reasonable to the spectator that I should dispose of it as I please.

The first thing that requires notice in occupation among hunters is what constitutes it, and when it begins, whether it be on the discovery of the wild beast or after it is actually in possession. Lawyers have varied on this head, some give a part to the person who has formerly wounded a wild beast, though [he] have given up the chase, and others do not. All agree that it is a breach of property to break in on the chase of a wild beast which another has started, though some are of opinion that if another should wound the beast in its flight he is entitled to a share, as he rendered the taking of it more easy upon the whole. Among savages property begins and ends with possession, and they seem scarce to have any idea of anything as their own which is not about their own bodies.

Among shepherds the idea of property is further extended. Not only what they carry about with them, but also what they have deposited in their hovels, is their own. They consider their cattle as their own while they have a habit of returning to them. When the generality of beasts are occupied, they consider them as their own even after they have lost the habit of returning home, and they may be claimed for a certain time after they have strayed. But property receives its greatest extension from agriculture. When it first became necessary to cultivate the earth, no person had any property in it, and the little plot which was dressed near their hovels would be common to the whole village, and the fruits would be equally divided among the individuals. There are the remains of a common land property in our own country at this day. In many places there is a piece of ground belonging equally to several persons, and after harvest, cattle are, in many places, allowed to feed where they please. Private property in land never begins till a division be made from common agreement, which is generally when cities begin to be built, as every one would choose that his house, which is a permanent object, should be entirely his own. Moveable property may be occupied in the very first beginnings of society, but lands cannot be occupied without an actual division. An Arab or a Tartar will drive his flocks over an immense country without supposing a single grain of sand in it his own. By the laws of many countries there are some things, however, that cannot be occupied by any private person. Treasure and derelict goods, by the laws of Britain, belong to the king. This arises from that natural influence of superiors which draws everything to itself that it can without a violation of the most manifest rules of justice. In like manner seas and rivers cannot be occupied by any private person: unless [it is] particularly specified in your charter, you cannot take large fishes in a river running through your own estate. A sea surrounded by several nations cannot be occupied by any one, but all must have a part of the jurisdiction, but any nation may hinder another from fishing in its bays, or approaching its coasts with vessels of war.

The right of accession is not so much founded in its utility as in the impropriety of not joining it to that object on which it has a dependence. The milk of a cow I have purchased may not be of great value, but it is very improper that another person should have a right to bring up his calf upon it. The most important accessions are in land property. Land property is founded on division or an assignation by the society to a particular person of a right to sow and plant a certain piece of ground. In consequence of this right he must also have a right to whatever it produces, trees, fruit, minerals, &c. Alluvions made by any river naturally belong to the proprietor of the adjacent territory; but when the additions are very large, as is often the case in low countries, the government claims them, and the proprietor of the adjacent estate must purchase it before he possess it.

The principal dispute concerning accession is, when does the principal belong to me, and the accession to another, or, if they be mixed, to whom does the whole belong? It is a maxim in law that no person be a gainer by another’s loss. If a man build a house by mistake upon my ground, though the materials be his, it is but reasonable that I should have the house, or be indemnified for my loss. In general the accession follows the principal, though in some cases, as where the workmanship is of more value than the materials, substantia cedet formae. The lawyers were, however, unwilling directly to contradict their general and established maxim, and therefore evaded it by giving the principal to the proprietor of the accession when it became a new species, that is, when it received a new form and a new name. This, however, was liable to exceptions. A picture and the board on which it was painted were in Latin of the same species; each was a tabula, and therefore the picture by this amendment still belonged to the proprietor of an insignificant board. The most general rule with regard to accessions is this, when the thing can be reduced to its primitive form without lessening its value or without any great loss to the proprietor of the accession, the proprietor of the principal may justly claim it, but when this cannot be done, the law justly favours the proprietor of the accession, and obliges him only to content the original proprietor for his property.

Prescription is founded on the supposed attachment of the possessor to what he has long been possessed of, and the supposed detachment of affection in the old possessor to what has been long out of his possession. There are four things requisite to form a right by prescription. First, bona fides, for if a person be sensible that his right to a thing is bad, it is no injury to deprive him of it, and the indifferent spectator can easily go along with the depriving him of the possession. Second, iustus titulus, by which is not meant a title just in all respects, for this is of itself sufficient without anything else, but a iustus titulus signifies some reasonable foundation that the person has to think a thing his own, such as [a] charter of some kind. If he claims a right without any such title, no impartial spectator can enter into his sentiments. Third, uninterrupted possession is also necessary to prescription, for if the property have often been claimed of him, the former possessor has not derelinquished his right. Fourth, the time is only to be reckoned when there was a person to claim the property; and therefore the longest uninterrupted possession when the proprietor was a minor, a lunatic, or in banishment, can give no right.

A iustus titulus is a proof of bona fides, and bona fides is requisite to a iustus titulus. By the Roman law, bona fides was only required at the first taking possession, and, though afterwards you found a fault in your title, prescription took place. Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country. At Rome, [im]moveables once prescribed in two years, but afterwards more was required. In our country a feudal lord, who continually had claims upon his neighbour, could scarce be brought to admit any law of this nature. He was willing to revive a claim though as old as the days of Noah, and when at last they fixed on a period, they made it as long as possible, to wit, forty years. Among the Romans, it is to [be] observed, that if anyone’s possession was interrupted during the time required for prescription, by an enemy coming into the country, he had to begin anew again. By the English law nothing can interrupt prescription but a claim of the old possessor. Kings seldom ever allow their claims to prescribe, at least they account no length of uninterrupted possession sufficient to do it. However, immemorial possession will ever carry this along with it.

Succession is either legal or testamentary. By legal succession is meant that the law should distribute the goods of the deceased to those [to] whom it is to be presumed the person himself would have chosen that they should be given, according to some lawyers. But this supposes that testamentary succession, or a distribution of the goods according to the will of the deceased, was previous to legal succession, which is contrary to experience. In a rude period a man had scarce the full property of his goods during his lifetime, and therefore it cannot be supposed that then he should have had a power to dispose of them after his death. In all nations the relations of the dead person succeeded long before there was any such thing as a testament. The twelve tables at Rome, and the laws of Solon at Athens, seem first to have introduced testamentary succession; but long before this there was legal succession in both countries. The claim of the heir of blood is always thought the preferable one, but this claim is never founded on the presumed will of the deceased. If we consider succession in the earliest times, we shall find that it is more founded on the connexion of goods than of persons. As the father and sons lived together, and were joint acquirers of any property they had, when the father died the children had a joint right to the goods, not so much on account of their relation to the father as on account of the labour they had bestowed on acquiring them. The mother and the children would therefore continue in possession. Among the Romans the wife was considered as a daughter, and had her share accordingly. If any of the children were settled out of the family or were emancipated, they had no share in the succession, because they ceased to co-operate with the rest in acquiring the goods. It may be observed that when families in this manner lived together it was necessary to prohibit marriages of cousins. When men’s sons and grandsons lived in the same house, if all succeeded equally it was called successio secundum capita, but if the grandson succeeded only to his father’s part it was secundum stirpes. If a man had three sons who were all dead, but the oldest had left behind him one son, the second two, and [the] third three, by the former rule, on the death of their grandfather, each would have a sixth; but by the latter, the son of the oldest would have a third alone, the two sons of the second a third between them, and the three sons of the third a third among them. The grandsons were as it were the representatives of their father. The right of representation is the same with the successio secundum stirpes. Among the Romans the right of representation was introduced in favour of the strong, and in prejudice of the weak, but in Britain [it] is the contrary.

Among the Romans a son could not succeed to the mother when she died, because, as she was considered as a daughter of the family, everything she had belonged to the husband; if the husband died first, the wife shared with her children, and then went home to her father’s house, and succeeded anew to her father. But in times of more refinement under the emperors, the mother could succeed to the son, and the son to the mother. Anciently, when a son died, no person succeeded to him, because he and everything he had belonged to his father. Caesar first made a law that a son might possess as his own whatever he got in war, or acquired by the liberal arts.

Three classes of men may succeed, ascendants, descendants, and collaterals, as those in an upper line may succeed to those in a lower, those in a lower to those in an upper line, or those of the same line to one another. Collateral succession at first extended only to the nearest in blood, and if he refused it the goods belonged to the public, but afterwards the praetor extended it to the seventh in blood. When a brother died and another succeeded, it was in consequence of their connexion with the father, who is the common stock, and therefore succession of ascendants must have been prior to that of collaterals. But the right of descendants is stronger than either of these, because the son’s claim on the father is evidently more strong than that of the father on the son. The principles of succession then in moveables are founded on the community of goods which took place anciently in families.

The different state of families in our country makes a considerable difference betwixt our law and that of the Romans. The wife is among us a much more considerable person than a daughter, and accordingly succeeds to more. When the husband dies, the goods are supposed to be divided into three equal parts, one of which is supposed to belong to the deceased husband, one to the wife and one to the children: there is however this difference, that the husband can dispose of his part by testament, which the wife cannot. A forisfamiliated son is not in the same condition with an emancipated son among the Romans. He can succeed with his brothers; only if he has got a portion he must bring it into the common stock at his father’s death. Grandchildren do not succeed in place of their deceased father, as among the Romans. The English law, however, admits of representation, and it prefers ascendants, if males, to collaterals.

We come now to treat of indivisible inheritance, which was introduced by the feudal law. When the nations that conquered the Roman Empire settled in the West of Europe, an inequality of fortune necessarily ensued. As the great had no way of spending their fortunes but by hospitality, they necessarily acquired prodigious influence over their vassals. They gave out their lands merely as a maintenance to their dependents; and it is observable that the Saxon word farm signifies victuals.

The chieftains, from their influence, were the sole administrators of justice in their own territories. It was the interest of government to authorize this jurisdiction, as it was the only method of preserving peace, and as the superior was the leader both in peace and war. So lately as in the year 1745 this power remained in the Highlands of Scotland, and some gentlemen could bring several hundreds of men into the field. As these lords had no other way to dispose of their lands, they gave some of them as munera, which were revocable at their pleasure, and others they gave as beneficia, which continued during life and returned to the lord after their decease.

The benefices of the clergy seem to have been on this foundation and have retained the name. By this means the lords secured the fidelity of their vassals. As benefices were for life, the property of them naturally came to be extended to the son of the deceased tenant, and by degrees the tenures became hereditary and were called feudal; thus the tenant became more independent. When any chieftain died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use. When a female succeeded, the lord had the power of disposing of her in marriage, as it was reasonable that he should name the husband who was to be his own vassal. As the lord was guardian of the heir male, it was also thought unreasonable that he should marry without his consent. As the feudal lord possessed the lands during a minority, before the minor could recover his estate, he was obliged to pay what is called a relief. This was introduced by the court of the king or lord, before which the minor was obliged to swear fealty before he could recover his estate. He was also obliged to promise homage to his superior before he could enter on possession. Thus they held their lands of the superior for military service, homage, fealty, wardship, marriage, relief, &c. Allodial estates were free from all such services; but as it was for security of property to hold of some great man who could protect the proprietor from violence, the generality of estates became feudal. For the same reason men possessed of great estates paid feu and swore fealty to the sovereign.

It appears from this that it must have been a very difficult matter to secure property, especially if it was small, in those early times, and therefore nothing could have a worse consequence than the division of estates. The consequences of dividing the kingdom of France were sufficiently experienced, and the case would have been still worse in private estates. However, on account of the opposition from the rest of the sons, it was long before the right of primogeniture or the indivisibility of estates could be introduced, and in Germany it did not fully take place before the last century; but as the circumstances necessarily required it, estates were at last made indivisible, and since a single person was to be preferred, the oldest son would naturally be the person. This legal preference must be given for some quality that is altogether indisputable. If it were to be given to wisdom or valour, there might be great disputes, but among brothers there can be [no] contest who is the oldest. In the beginnings of society age itself is very much respected; and to this day, among the Tartars, the king is not succeeded by his son, but by that one of the royal family who is oldest.

Primogeniture, when introduced, would naturally occasion succession by representation for the following reason: the younger brothers at first would think it hard that their older brother should be preferred to them, and if he died they would still think it harder that his son, an infant, should come in before them; accordingly in many places this has been disputed in single combat. Bruce and Balliol disputed on this account. According to our notions, Balliol had the best right, for he was descended from the oldest daughter, though Bruce was a step nearer the common stock. The difficulty of introducing this at first gave rise to a new species of succession, by which, when a father died, his estate went to his eldest son, but if he died while his children were minors, or if he died while his father was alive, his brother, not his sons, succeeded. This was attended with one inconvenience, that on the death of the youngest his sons were preferred to those of the other brothers. By the Roman law a grandson succeeded only to his father’s part: he might succeed as a son, but not as an oldest son. The brothers naturally thought that they were nearer the father than any grandson he could have; but as this was a hardship to the brother’s claim, so it was also a hardship to cut off the reasonable expectation which the grandson had if his father had lived. This last circumstance after[wards] gave occasion to lineal succession. When this difficulty is got over there is little dispute about collateral succession. In feudal lordships a woman could not succeed, as she was incapable of performing military services; but they could succeed to lands where there was required any other kind of service. Of fiefs there are two kinds, masculine and feminine. France, to the crown of which no woman can succeed, is an instance of the former, and England of the latter.

There are some niceties whimsical enough in the Scotch law with regard to succession of collaterals. If the second brother has an estate and dies, it goes to the third and not to the oldest, who is supposed to have been sufficiently provided for. Conquest on the contrary ascends, but it does not go to the oldest, but to the immediately older brother. By the English law the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great.

We must observe that the right of primogeniture hinders agriculture. If the whole estate were divided among the sons, each one would improve his own part better than one can improve the whole; besides, tenants never cultivate a farm so well as if it were their own property. Primogeniture is also hurtful to the family, for, while it provides for one, it suffers all the rest in a few generations to be reduced to beggary. In succession to a monarchy, however, it has one evident advantage, that it prevents all dangerous rivalships among the brothers.

There are some other kinds of succession that take place, or have taken place in several countries. Thus in some countries the youngest son succeeds to the father. There is something like this among our tenants to this day: the older sons as they grow up are provided for, and the youngest, remaining with the father, succeeds to him.

So much for legal succession. We come next to testamentary. It is to be observed that there is no extension of property so great as this, and therefore it was long before it could be introduced; it was very natural to give a man a right to dispose of his property while he lived, but a testament supposes him to dispose of a right when, properly speaking, he can have none himself. He cannot be said to transfer his right, for the heir has no right in consequence of the testament till after the testator himself have none. Puffendorf whimsically accounts for this from the immortality of the soul. At Rome the right of making testaments was introduced gradually. At first it was only allowed, and that too after the consent of the fellow citizens was asked and obtained, to childless people. This was much the same with adopting children. When a person died and wanted to leave his estate to a son in exile, he would naturally request his neighbours not to take it from him after his own death. This request would be regarded, not so much on account of its being his will, as from a kind of piety for the dead. We naturally find a pleasure in remembering the last words of a friend and in executing his last injunctions, the solemnity of the occasion deeply impresses the mind; besides, we enter as it were into his dead body, and conceive what our living souls would feel if they were joined with his body, and how much we would be distressed to see our last injunctions not performed. Such sentiments naturally inclined men to extend property a little farther than a man’s lifetime.

This seems to have been the foundation of testamentary succession. It was a sort of impiety not to comply with the father’s desire, though it was no injury to deprive the heir of the estate, as there was no law established in his favour, and as his being in exile cut off all reasonable expectation of succeeding. The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again. It is to be observed that this practice is a considerable refinement in humanity, and never was practised in a rude nation. Before the twelve tables no Roman had a right to make a will. Our Saxon ancestors had no right to dispose of their lands by testament, and in the history of the Old Testament we hear of no such practice. Piety for the dead could take place only with regard to the immediate successor, and therefore at first the right of making testaments extended no further, unless in case the person in whose favour it was made should refuse to succeed, in which case another might be appointed. This was a further extent of the right. Again, if a man died and left his sister’s son heir to him, that the estate might not go to foreign relations, the testator was allowed to say that if the pupil die at a certain age, the estate shall go to such another person. This was called pupillar substitution. Thus property was still further extended.

The greatest of all extensions of property is that by entails. To give a man power over his property after his death is very considerable, but it is nothing to an extension of this power to the end of the world. In the beginnings of society the state of families is very different from what it is at present. As the wife was subject to the husband, and at the best only on the footing of a daughter, she seldom made any addition to the husband’s estate unless by her own industry; but when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which they insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death. By this arose a new species of marriage from agreement which rendered the parties equally independent. This great alteration in domestic affairs would naturally at first be complained of, and, as the ultimate cause of it was the succession of females, they would endeavour to prevent their opulence. On this account a law was made at Rome bringing matters to their ancient footing, called the Voconian law. To elude this law a fide[i] commissum was invented, by which, when a man had a mind to leave his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it. Augustus made a law obliging the trustee always to restore it, and appointed a [fidei-]commissary praetor for that purpose. The person to whom the estate was left was called heres fiduciarius, and the person to whom it was to be restored was called fide[i] commissarius: thus property was extended beyond the first successor, and when this step was gained they easily advanced further and introduced entails.

Entails were first introduced into the modern law by the ecclesiastics, whose education made them acquainted with the Roman customs. As they were the preachers of this doctrine, they naturally became the explainers and executors of wills till Theodosius and Valentinian took it from them. In England William the Conqueror restored it to the ecclesiastics.

By the customs of our country a man, if he leave a wife and children, can dispose only of a third by testament; and if he leave a wife without children, only a half. Lands after the introduction of the feudal system could only be disposed [of] by testament in the same way with military services, by the consent of the superior. Originally in England there were no entails by will, but by tenure. A man held an estate for himself and his heirs, but if he had no heirs he could not alienate it, it returned to the superior. But if he had heirs he could alienate it, and thus the lord was deprived of his right of reversion. A law was afterwards made to secure this.

Upon the whole nothing can be more absurd than perpetual entails. In them the principle of testamentary succession can by no means take place. Piety to the dead can only take place when their memory is fresh in the minds of men: a power to dispose of estates for ever is manifestly absurd. The earth and the fullness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity; such extension of property is quite unnatural. The insensible progress of entails was owing to their not knowing how far the right of the dead might extend, if they had any at all. The utmost extent of entails should be to those who are alive at the person’s death, for he can have no affection to those who are unborn. Entails are disadvantageous to the improvement of the country, and those lands where they have never taken place are always best cultivated: heirs of entailed estates have it not in their view to cultivate lands, and often they are not able to do it. A man who buys land has this entirely in view, and in general the new purchasers are the best cultivators.

In voluntary transference two things are required: first, a declaration of the intention both of the person who transfers, and of him to whom it is transferred: second, the actual delivery of the thing. In most cases the first of these is not binding without the latter, because there is no right without possession. If a man indeed have borrowed a thing and afterwards purchase it, there is no need of delivery, for it is already in his possession. Before possession you can have no right to the thing, though you may have a right to make the man keep his promise or contract. If I buy a horse from a man, and before delivery he sell him to a third person, I cannot demand the horse from the possessor, but only from the person who sold him. But if he has been delivered I can claim him from any person. Property therefore cannot be transferred without tradition or delivery. Grotius indeed justly observes that in the transference of a pledge there is no need of delivery, because in this case the thing is already in the man’s possession. In France, if a man declare his purpose to make a donation, and die before the delivery, the donation goes to the heir. This was also a custom among the Wisigoths. In transferring the property of lands and other large objects, what gives possession is not so easy to determine. As there cannot be an actual delivery, in our country a symbolical delivery is used; an ear or sheaf of corn signifies the whole field, a stone and turf, the estate to the centre of the earth, and the keys of the door, the house. By the Scotch law, if there be a transference of several estates, the purchaser must be infeft in each. By the English law infeftment in one serves for all when done in presence of the county court. In Scotland it must be done on the land: it is enough in England if it be done in view of it. Besides delivery a charter or writing, showing on what terms the transference was made, is also requisite for security. Till the custom was abolished by a late statute, no vassal or possessor had a right of alienating his estate without the consent of the superior. As he held it for military service, it was requisite that the estate should be resigned to the superior, who resigned it to the purchaser, as it was proper that his vassal should be of his own choosing. Afterwards, however, it became necessary to accept of creditors, and this was often used as a handle to elude the law. The seller gave a bond for a sum of borrowed money without any mention that it was a sale, by which means the lands were adjudged to the creditor, and the lord was obliged to accept of him as his vassal. In like manner, as the tenant was liable to oppression from a new superior, the lord could not dispose of his estate without consent of his vassal. If therefore either of them alienated any part of their estates without the other’s consent, his right was forfeited.

The duty of vassals to their lords continued longer in Scotland than in England, which may be accounted for from the difference of their government, for that [of] England all along favoured democracy, and that of Scotland aristocracy. After society was fully established, there was no occasion for mutual consent, because the tenant was protected by law, whatever the lord was.

In the time of the civil wars a new sort of delivery took place. When a person transferred his estate to another for his own use it was not affected by forfeiture; the person to whom it was transferred was considered as the bailiff, and took possession in the other’s name.

The second species of real rights is servitudes or burdens which one man has on the property of another. These rights were at first personal, as they were entered into by a contract between the persons. It is necessary that I should have a road to the market town; if a man’s estate lie between me and it, I must bargain with him for the privilege of a road through it. This contract produces only a personal right, though I should bind him not to sell this estate without the burden; but here was an inconveniency, for, if the land were sold and the new proprietor refused the road, I could not sue him on a personal right upon the former proprietor. Before I can come at the new purchaser, I must pursue the person from whom I had the right, who must pursue him to whom he sold it. If the land has gone through several hands this is very tedious and inconvenient. The law, to remedy this, made servitudes real rights, demandable a quocumque possessore.

Servitudes were rusticae, such as the right of a road to the town, or to the river, and of feeding so many cows on another man’s pasture grounds, or urbanae, such as the right of leaning the beams of my house on your gable, the right of obliging him who is proprietor of the under-story to make his wall strong enough to support mine, and the like. These are all naturally personal rights and are only made real by lawyers. Life rents on estates and many other things are also servitudes, and are properly personal. Feudal burdens were only persons’ rights, and therefore every new vassal must renew his homage and the promise of fealty.

In the beginning of the feudal law, if the proprietor did not perform his duty in every article he forfeited his feu; in like manner, if the tenant encroached on his lord’s grounds, what he had feued returned to the superior. The right of the vassal is founded on the charter of the superior, and every article of it must be fulfilled, and every new possessor must renew the obligation. When tenants became independent and had a real property, they were said to have the dominium directum, not the dominium utile.

Pledges and mortgages are certain securities for the payment of debts. At first they could not be claimed as real rights, though afterwards the law considered them as such. Pledges properly regard moveable subjects, and mortgages immoveable; if a pledge be not redeemed at a certain time, it is forfeited. As people in bad circumstances are naturally slothful, the negligence of debtors among the Romans gave occasion to the lex commissaria, by which the creditor was empowered to seize the pledge, and return the overplus if there was any. By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner. In immoveables, lands are mortgaged but not delivered, and in case of failure they are forfeited. The Roman law and ours are much the same on this head. If payment be not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred; but his property is not secure without long possession, for the proprietor has a power of redeeming it within a reasonable time; but, as upon redemption much trouble must be occasioned in examining old accounts and the like, the law has made twenty years the stated time in England for redeeming mortgages.

Hypothecs are another kind of pledges really arising from contract, but made real rights by the civil law. By them anciently the landlord was empowered to detain the furniture and whole stock of the tenant if he turned bankrupt, and could claim them a quocumque possessore. This arose from the practice of keeping tenants by steel-bow, by which the whole stock in the farm was the landlord’s. At present the landlord has only a right of preference, and we have not so many hypothecs as the Romans had.

All pledges are naturally personal rights, and are only made real by the civil law.

Exclusive privileges are the last division of real rights. Among these is the right of inheritance, which is not a creature of the civil law, but arises from nature. The heir, previous to any other person, has a privilege of demanding what belonged to the deceased, and after he is admitted heir it is his real property. Again, if a person start a wild beast, he has an exclusive privilege of pursuing, and whatever person comes in upon the chase is liable to punishment because he breaks in upon his exclusive privilege. In the year 1701 an English man-of-war engaged with a French merchant fleet under convoy, which was just about to fall into their hands, when a Scotch privateer came and carried off the prize. A lawsuit commenced and the Scotch privateer was declared guilty of breach of property, but upon strict inquiry we shall find that it was only breach of privilege. Though these and some other exclusive privileges arise from nature, they are generally the creatures of the civil law. Such are monopolies and all privileges of corporations, which, though they might once be conducive to the interest of the country, are now prejudicial to it. The riches of a country consist in the plenty and cheapness of provisions, but their effect is to make everything dear. When a number of butchers have the sole privilege of selling meat, they may agree to make the price what they please, and we must buy from them whether it be good or bad. Even this privilege is not of advantage to the butchers themselves, because the other trades are also formed into corporations, and if they sell beef dear they must buy bread dear. But the great loss is to the public, to whom all things are rendered less comeatable, and all sorts of work worse done; towns are not well inhabited, and the suburbs are increased. The privilege, however, of vending a new book or a new machine for fourteen years has not so bad a tendency, it is a proper and adequate reward for merit. A right to servitudes and exclusive privileges, it is to be observed, may be acquired by prescription.

So much for the different kinds of real rights: we proceed now to personal rights, which arise either from contract, quasi-contract, or delinquency.

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. Though 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 naturally the slightest of all injuries, because we naturally 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 breach of it be redressed. The causes of this were the little importance of contracts in those 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 personally present, and no promissory 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.

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 a debtor comes before a court with the creditor, and acknowledges that he owes him a certain sum; a copy of this acknowledgment 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.

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 anything 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 another’s care but not to his use.

Pignus is a security for debt.

All these sustained action before the consensual contracts, which are also four, to wit, buying and selling, letting and hiring, partnership, and commission. In buying, if the contract be not fulfilled, you lose your earnest money. Letting and hiring once comprehended leases, day’s wages, building, and almost everything 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 hiring. The mutuum does not infer 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 set them free. Originally no contracts were sued before any court but the ecclesiastic, but they came gradually to civil courts. The canon law, which judged from principles of honour and virtue, obliged men to perform even those 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 anything 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. [to] 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 1705 the crown of France had a demand for ten million, and could raise only five. They cried up the coin and paid the ten 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 some time 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 accounts, 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 expenses 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 expenses, by the contract commodate you could redemand your horse in the same [state] in which you lent him, but I could claim my extraordinary expenses 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. 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 wit, 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 through a culpable negligence.

Injury naturally 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 though 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 naturally no crime, and men could not be brought to consider it as punishable with death. In the same manner, if a sentinel be put to death for leaving his post, though 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 through some fraudulent intention.

The greatest crime that can be done against any person is murder, of which the natural punishment is death, not as a compensation, but as a reasonable retaliation. In every civilized nation death has been the punishment of the murderer, but in barbarous nations a pecuniary compensation was accepted of, because then government was weak, and durst not meddle in the quarrels 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 superior influence can do no more than persuade 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 submit to such absolute authority.

In the laws of all nations we have the remains of this ancient state of weakness. When government became more powerful, the murderer was not only obliged to make a compensation to the relations of the slain, but likewise to the public, 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. Though they seldom punished with death, yet they seemed to make the punishment in some measure proportioned to the crime. A price was set 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 king’s peace subjected 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 offender’s freedom. From this the sovereign acquired the right of pardoning criminals, for naturally 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 king’s 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 murdered, nobody 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, &c.

There are several kinds of murder by the English law. The word originally signified stealth, as the crime was usually committed in private. Afterwards felonious killing of every kind was called murder, and compensation made for it accordingly. Murder arises either from malice prepense, or from sudden provocation, or from chance per infortunium. Of these the first alone is properly called murder, the second is manslaughter, and the last chance medley, which is often excusable and often justifiable. Murder 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. First, 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 house. Second, homicide is justifiable in support of a constable or officer of justice.

These are the different species of murder and homicide, we shall next show what is the nature of each. When a person lies in wait for another and kills him, it is plainly murder. 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 murder, 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 murder. Whereever there is any appearance of malice or forethought it is murder. If a person kills another in the afternoon for some provocation received in the forenoon, it is murder, but if he has only retired a few steps, and returned to do it immediately, it is not murder, 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 murder. In England manslaughter was introduced by what is called benefit of clergy. When civil government increased in authority, the punishment[s] of crimes were made more severe that the peace might be less disturbed. The clergy pled that this was not agreeable 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 murder, and this they proved from Deuteronomy xixth. When any [clerical] 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 twelve persons to swear for him, he was acquitted. If not, the bishop judged whether 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 connexion with the Church, but the civil courts after[wards] allowed him only to claim those that could read, as this [was] more immediately connected with the office of the clergy. Queen Anne afterwards extended the privileges arising 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 anything the court can meddle [with], and if he can bring in his evidence he is not arraigned.

Our resentment naturally falls upon inanimate as well as animate objects, and in many places the sword or instrument that had killed any person was considered as execrable, and accordingly was destroyed, particularly among the Athenians. By the English law if a man fell from a house and was killed, the house 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 [by falling] from the wheel of a wagon standing, only that wheel was deodand, but if the wagon 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 originally by the Roman law were compensated for in the same way with murder, 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, though 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 another’s 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 Wales, 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 murder, 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 actually beat it is battery. Originally 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 careful 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, though 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 set 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, forty days after he may have the benefit of the Habeas Corpus Act, that is, he may be carried to London at his own expense, 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 sheriff if he pleases, and at any rate can be carried to Edinburgh to the king’s 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 through 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 threatened to be pursued, and gives a bond to avoid it, the bond is valid, and the fear is not considered as a metus iniustus.

A rape or forcible marriage is capital, because the woman is so dishonoured that no other punishment can be a sufficient retaliation. Though 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 trifling fine of five or ten pounds is by no means an adequate compensation for them. Where the law denies justice, we are naturally led to take it ourselves. This introduced duelling 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 damages, he is entitled to sufficient redress. In the same manner if a person’s right or title 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 titles. Though 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 libel give a process, though the same words would not if spoken. Libels and satires 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 libels, 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. Augustus at last revived the law subjecting the authors to a capital punishment. In general people of circumstances take no notice of such libels 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 immoveables he may be injured by arson or forcible entry. Arson is wilful 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 ousted may retake his own by violence. 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] dispossessed, his estate should be restored. But if the violent possessor had kept it three years, the old possessor must prove not only that he was dispossessed 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 piracy. Theft is the clandestinely taking away the property of another. This crime does not naturally 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 Lacedaemonians, 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 Lacedaemonians 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 trifles 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 severely. Since the thirteenth century this crime has been punished capitally. The vassals of great lords were continually making incursions into the neighbouring territories and carrying off booty. When government came to be established, it naturally punished most severely those 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, though 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 theabettors and assistants of thieves and vagrants; and, as they made war on one another, which looked like an usurpation of sovereignty, 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 forest or pigeons at a distance from a pigeon-house could not be punished till by a late statute. House-breaking indeed, though there was not the value of a shilling carried off, was punished capitally. Such punishments, however necessary once, are certainly now too severe. Government [was] at first weak, and could not punish crimes, but was obliged to interpose in those 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 twelve tables made almost every crime capital. In Europe after the custom of compensation went out, they punished everything as treason, theft in a landed man, a servant killing his master, a curate his bishop, or a husband his wife were all petty treason. Afterwards only crimes respecting the state were considered as treason; and this crime came by degrees to its 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 though he should cover the injury by pretending to buy a man’s goods after he has forced him to sell them to him.

Piracy is punished still more severely.

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, made death the punishment. It was a question whether a ship ought to be insured for her value at the port whence she sets out, or at the port to which she is bound, and it was determined that it should be at the port where she sets out. If a Glasgow merchant sends out a ship with £3000 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 expense 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 anything from the plough, 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. 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 forging 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 damage be done.

Perjury is not punished capitally.

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 fulfilment of the obligation satisfies the other party. Secondly, by discharge or acquittance, even though 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. Nobody 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 thirty-ninth 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 forty 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 actually 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 rebels 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, though 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 actually 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 anybody, resentment is very high. For the same reason, deodands, though 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 subjects of punishment, such as idiots, 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, [the] second division of jurisprudence.