Historical Law-Tracts. Henry Home, Lord Kames

method of studying law; for I know none more rational, than a careful and judicious comparison of the laws of different countries. Materials for such comparison are richly furnished by the laws of England and of Scotland. They have such resemblance, as to bear a comparison almost in every branch; and they so far differ, as to illustrate each other by their opposition. Our law will admit of many improvements from that of England; and if the author be not in a mistake through partiality to his native country, we are rich enough to repay with interest, all we have occasion to borrow. A regular institute of the common law of this island, deducing historically the changes which that law hath undergone in the two nations, would be a valuable present to the public; because it would make the study of both laws a task easy and agreeable. Such institute, it is

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      true, is an undertaking too great for any <xiii> one hand. But if men of knowledge and genius would undertake particular branches, a general system might in time be completed from their works. This subject, which has frequently occupied the author’s thoughts, must touch every Briton who wishes a complete union; and a North-Briton in a peculiar manner. Let us reflect but a moment upon the condition of property in Scotland, subjected in the last resort to judges, who have little inclination, because they have scarce any means to acquire knowledge in our law.³ With respect to these judges, Providence it is true, all along favourable, hath of late years been singularly kind to us. But in a matter so precarious, we ought to dread a reverse of fortune, which would be severely felt. Our whole activity is demanded, to prevent if possible the impending evil. There are men of genius in this country, and good writers. Were our law treated as a rational science, it would find its way into England, and be studied there <xiv> for curiosity as well as for profit. The author, excited by this thought, has ventured to make an essay; which, for the good of his country more than for his own reputation, he wishes to succeed. If his Essay be relished, he must hope, that writers of greater abilities will be moved to undertake other branches successively, till the work be brought to perfection. <1>

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       TRACT I

       Criminal Law

      Of the human system no part, external or internal, is more remarkable than a class of principles, intended obviously to promote society, by restraining men from harming each other. These principles, as the source of the criminal law, must be attentively examined: and to form a just notion of them, we need but reflect on what we feel when we commit a crime, or witness it.¹ Upon certain actions, hurtful to others, the stamp of impropriety and wrong is impressed in legible characters, visible to all, not excepting even the delinquent. Passing from the action to its author, we perceive that he is guilty; and we also perceive, that he ought to be punished for his guilt. He himself, having the same perception, is filled with remorse; and, which <2> is extremely remarkable, his remorse is accompanied with an anxious dread that the punishment will be inflicted, unless it be prevented by his making reparation or atonement. Thus in the breast of a man a tribunal is erected for conscience: sentence passeth against him for every delinquency; and he is delivered over to the hand of Providence, to be punished in proportion to his guilt. The wisdom of this contrivance is conspicuous. Asense of wrong is of itself not sufficient to restrain the excesses of passion: but the dread of punishment, which is felt even where there is no visible hand to punish, is a natural restraint so efficacious, that none more perfect can be imagined.^* This dread, when the result of atrocious or unnatural crimes, is itself a tremendous punishment, far exceeding all that have been invented

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      by men. Happy it is for society, that instances are rare, of crimes so gross as to produce this natural dread in its higher degrees: it is, however, still more rare, to find any person so singularly virtuous, as never to have been conscious of it in any degree. When we peruse the history of mankind, even in their most savage state, we discover it to be universal. One instance I must mention, because it relates to the Hottentots, of all men <3> the most brutish. They adore a certain insect as their deity; the arrival of which in a kraal, is supposed to bring grace and prosperity to the inhabitants; and it is an article in their creed, that all the offences of which they had been guilty to that moment, are buried in oblivion, and all their iniquities pardoned.^* The dread that accompanies guilt, till punishment be inflicted or forgiven, must undoubtedly be universal, when it makes a figure even among the Hottentots.

      For every wrong, reason and experience make us apprehend the resentment of the person injured: but the horror of mind that accompanies every gross crime, produceth in the criminal an impression that all nature is in arms against him. Conscious of meriting the highest punishment, he dreads it from the hand of God, and from the hand of man:

      And Cain said unto the Lord, My punishment is greater than I can bear. Behold, thou hast driven me out this day from the face of the earth: and from thy face shall I be hid, and I shall be a fugitive and a vagabond in the earth, and it shall come to pass, that every one that findeth me shall slay me.^†

      Hence the efficacy of human <4> punishments in particular, to which man is adapted with wonderful foresight, through the consciousness of their being justly inflicted, not only by the person injured, but by the magistrate or by any one. Abstracting from this consciousness, the most frequent instances of chastising criminals would readily be misapprehended for so many acts of violence and oppression, the effects of malice even in judges; and much more so in the party offended, where the punishment is inflicted by him.

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      The purposes of Nature are never left imperfect. Corresponding to the dread of punishment, is, first, the indignation we have at gross crimes, even when we suffer not by them; and next, resentment in the person injured, even for the slightest crimes: by these, ample provision is made for inflicting the punishment that is dreaded. No passion is more keen or fierce than resentment; which, when confined within due bounds, is authorised by conscience. The delinquent is sensible, that he may be justly punished; and if any person, preferably to others, be entitled to inflict the punishment, it must be the person injured.²

      Revenge, therefore, when provoked by injury or voluntary wrong, is a privilege that belongs to every person by the law of Nature; for we have no criterion of right or wrong more illustrious than the approbation or dis-approbation of <5> conscience. And thus, the first law of Nature regarding society, that of abstaining from injuring others, is enforced by the most efficacious sanctions.

      An author of the first rank for genius, as well as blood, expresses himself with great propriety on this subject:

      There is another passion very different from that of fear, and which, in a certain degree, is equally preservative to us, and conducing to our safety. As that is serviceable in prompting us to shun danger, so is this in fortifying us against it, and enabling us to repel injury, and resist violence when offered. ’Tis by this passion that one creature offering violence to another, is deterred from the execution, whilst he observes how the attempt affects his fellow, and knows by the very signs which accompany this rising motion, that if the injury be carried further, it will not pass easily, or with impunity. ’Tis this passion withal, which, after violence and hostility executed, rouses a creature in opposition, and assists him in returning like hostility and harm on the invader. For thus as rage and despair increase, a creature grows still more terrible; and, being urged to the greatest extremity, finds a degree of strength and boldness unexperienced

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      till then, and which had never risen except through the height of provocation.^* <6>

      But a cursory view of this passion is not sufficient. It will be seen by and by, that the criminal law in all nations is entirely founded upon it; and for that reason it ought to be examined with the utmost accuracy. Resentment is raised in different degrees, according to the sense one hath of the injury. An injury done to a man himself, provokes resentment in its highest degree. An injury of the same kind done to a friend or relation, raises resentment