Principles of Equity. Henry Home, Lord Kames

of Council and Session, from the 15th of January 1553 to the 11th of July 1790 (Edinburgh: Elphinstone Balfour, 1790). C Codex Iustinianus (The Code of Justinian), ed. Paul Krueger (Berlin: Weidmann, 1877). 1 Chancery Cases Cases Argued and Decreed in the High Court of Chancery, 2nd ed. (London: Atkyns for Walthoe, 1707). 2 Chancery Cases The Second Part of Cases Argued and Decreed in the High Court of Chancery continued from the 30th Year of King Charles II to the 4th Year of King James II (London: Atkyns for Walthoe, 1701). D The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. and ed. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985). Eq. Cas. Abr. A General Abridgment of Cases in Equity, 2 vols., 4th ed. (London: Lintot, 1756). Inst Justinian’s Institutes, trans. and ed. Peter Birks and Grant McLeod (London: Duckworth, 1987). Kames, Dictionary (Kames, Henry Home, Lord), The Decisions of the Court of Session from its first institution to the present time. Abridged, and digested under proper heads in the form of a Dictionary, 2 vols. (Edinburgh: Richard Watkins, Alexander Kincaid and Robert Fleming, 1741).

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Kames, Remarkable Decisions i	(Kames, Henry Home, Lord), Remarkable Decisions of the Court of Session from 1716 to 1728 (2nd ed., Edinburgh: Bell & Bradfute, 1790, 1st ed. 1728).
Kames, Remarkable Decisions ii	(Kames, Henry Home, Lord), Remarkable Decisions of the Court of Session from 1730 to 1752 (2nd ed., Edinburgh: Bell & Bradfute, 1799, 1st ed. 1766).
Kames, Select Decisions	(Kames, Henry Home, Lord), Select Decisions of the Court of Session, from the year 1752 to the year 1768. Collected by a member of the Court (2nd ed., Edinburgh: Bell & Bradfute, 1799, 1st ed. 1780).
M	William Maxwell Morison, The Decisions of the Court of Session from its institution until the separation of the Court into two divisions in the year 1808, digested under proper heads in the form of a dictionary, 42 vols. (Edinburgh: Archibald Constable & Co., 1811).
Salkeld	William Salkeld, Reports of Cases Adjudg’d in the Court of King’s Bench (London: Nutt & Gosling for Walthoe, 1717).
Sid.	Thomas Siderfin, Les reports des divers special cases argue & adjudge en le Court del Bank le Roy, 2nd ed., 2 vols. (London: Nutt for Keble, Browne, Ward, Mears and Browne, 1714).
Vernon	Cases Argued and Adjudged in the High Court of Chancery Published from the Manuscripts of Thomas Vernon, 2 vols. (Dublin: Watts, 1726–29).
Watson	The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. Alan Watson et al., 4 vols., Philadelphia: University of Pennsylvania Press, 1985.

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PRELIMINARY DISCOURSE BEING An Investigation of the Moral Laws of Society. ^*

      The science of morality hath for its subject, human actions, with their effects; and its end or purpose is, to regulate these actions.

      To act by instinct signifies, to act by blind impulse, without having any end in view. The brute creatures act generally by instinct: the instinct of hunger prompts them to eat, and of cold to take shelter, without considering what these actions may produce. The same must be the condition of infants: for infants are not capable of any consideration: they apply to the nipple, without foreseeing that this action will relieve them from hunger; and they cry when pained, without having any view of procuring relief. But as soon as our ripened faculties unfold to us the connection between our actions and their effects, then it is that we begin to act with an intention to produce certain effects; and our actions, in that case, are means employed to bring about the effects intended.

      Intention and will, though generally reckoned synonymous terms, signify different operations of the mind: will is relative to the external action; for we never act without a will to act: intention is relative to the effect; for we act in order to bring about the effect intended. It is my intention, for example, to relieve a certain person from distress by giving money: as soon as I see that person, it is my will to deliver the money: the external act of delivery follows: and the person is relieved; which is the effect intended. <2>

      Some effects proceed necessarily from the action. A wound is an effect

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      necessarily connected with the action of stabbing a man with a sharp weapon: death is the necessary effect of throwing a person downward from the battlements of a high tower. Some effects are probable only: I labour, for example, in order to provide for my family; fight for my country, in order to repel its enemies; take physic, in order to restore my health. In such cases, the event intended does not necessarily nor always follow.

      A man, when he wills to act, must at the same time intend to produce the effect that he knows to be necessarily connected with the action. But where the effect is probable only, a man may proceed to act without intending to produce the effect that follows. For example, a stone I throw at random into the market-place, may wound a man without my intending that effect.

      Instinctive actions, from their very definition, exclude intention: actions that necessarily produce their effects, must imply intention: effects that are probable only, not necessary, are sometimes intended, sometimes not.

      A right and a wrong, in such actions as are done intentionally to produce some effect, are universally acknowledged; and yet philosophers have been much difficulted to assign the cause of this eminent distinction. The various opinions that have been entertained about it, would be a delicate historical morsel; but come not within the compass of this short inquiry. I shall only observe, negatively, that the science of morals cannot be founded on any truths that may be discovered by reasoning: which will thus appear. As the faculty of reason is confined to the investigation of unknown truths by means of truths that are known, it is clear, that in no science can we even begin to reason, till we be provided with some data to found our reasonings upon: even in mathematics, there are certain principles or axioms perceived intuitively to be true, upon which all its demonstrations are founded. Reason is indeed of great use in morality, as well as in other sciences; but morality, like mathematics, is and must be provided with certain axioms or intuitive propositions, without which we cannot make a single step in our reasonings upon that subject; and to trace these with care and caution is the chief purpose of the present inquiry. <3>

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      CHAPTER I

      The Moral Sense.

      When we reflect upon the different branches of science, it might seem, that of all subjects human nature should be the best understood; because every man has daily opportunities to study it in his own passions, and in his own actions. But human nature, an interesting subject, is seldom left to the cool investigations of philosophy. Writers of a sweet disposition, inflamed with a warm imagination, compose man mostly or wholly of benevolent principles: others, of a cold temperament and narrow views, bring him down to be an animal entirely selfish. These systems are equally distant from truth: man is of a complex nature, endued with various principles, some selfish some social; and it is highly expedient that man should