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.

Resentment not only prompts to punishment, but points out the manner of it.

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 the laws of all nations we have the remains of this ancient state of weakness.

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.

The Scotch law makes no distinction between manslaughter and murder.

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.

A person may also be injured in his body by demembration, mutilation, assault and battery, or restraint on his liberty.

By the Coventry Act, maiming in the face from malice or forethought was punished with death.

A man may also be injured by assault and battery.

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.

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.

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.

A rape or forcible marriage is capital, because the woman is so dishonoured that no other punishment can be a sufficient retaliation.

A man may be injured in his reputation, by affronts, by words, and by writings.

Verbal injuries are redressed both by ancient and modern laws.

Written injuries are subjected to severer punishments than verbal ones, as they are more deliberate malice.

A person may be injured in his estate, real or personal.

A man may be injured in his moveables three ways, by theft, robbery, and piracy.

Robbery, as it puts a man to the greatest bodily fear, is subjected to the greatest punishment:

Piracy is punished still more severely3

A man may be injured in his personal estate by fraud or forgery.

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.

Perjury is not punished capitally4

As there are several ways of acquiring personal rights so there are several ways in which they expire.

  1. By payment of what is due by contract or quasi-contract, because the fulfilment of the obligation satisfies the other party.
  2. 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.
  3. By prescription.

If a debt be not claimed within a certain time the debtor is free.

Some general observations on the criminal law is all that remains on this subject.

Resentment seems best to account for the punishment of crimes.

Certain persons are not to be considered as subjects of punishment, such as idiots, madmen, and children.

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