Chapter 11: Delinquency
We come now to the third kind of personal rights, those to wit, ex delicto.
Delicts are of two kinds, as they arise ex dolowhen there is a blameable intention, or ex culpawhen 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.
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 defendendois 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 20 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 should have been tried, he has so much a day according to his station.
In England, if a person be confined the day after the assizes, 40 days after he may have the benefit of the Habeas Corpus Act, that is, he may be carried to London at his own 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 voluntarily.
- 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 13th 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 malusis 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.
- By payment of what is due by contract or quasi-contract, because the fulfilment of the obligation satisfies the other party.
- 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.
- 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.
Next: Part 2 Section 1