to give up his security on the other estate to B. The same was the case in tho Roman law with regard to tutory.
[§ ii. Of Delinquency^ We come now to the third kind of personal rights, those to wit, ex deli do.
Delicts are of two kinds, as they arise ex dolo when 1 ' Namqui solvendianimopecu- trahat potius ncgotium quam con- niamdat,inhocdarevidetur,utdis- trahat.' Instit. lib. iii. tit. xxvii. § 6.
136 PART I: JUSTICE 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 commodity1. 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 ex portation 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 parti cular 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 1 13 and 14 Car. II. cap. 18. of the penalty under 13 and 14 2 The preamble of 7 and 8 W. Car. II. cap. 18, 'the prosecution III. cap. 28, quoted in W. of N. of offenders hath not been so bk. iv. ch. viii. vol. ii. p. 232, effectually put in execution.' says that owing to the severity PRIVATE LAW 137 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 compensa tion 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 another1. 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 1 Lafitau, Mwurs des sauvages Anie'nquains, torn. i. pp. 486, 487, 490. See above, p. 15.
138 PART I: JUSTICE 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 resent ment 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 after wards 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 appeal1 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 1 ' Appeal is a word used in our by a party who had interest in law for the removal of a cause the person killed, or of a felon by from an inferior court or judge one of his accomplices.' G.Jacob, to a superior; but more commonly New Law Dictionary, 8th ed. 1762, for the accusation of a murderer, s. v. Appeal.
PRIVATE LAW 139 heir1. Any mistake in the process, such as a word wrong spelled, stopped the procedure 2, for the statute of amend ment, which permitted courts to overlook errors, did not extend to appeals. Appeals in former times were often made in cases of maiming, hurting, &c.3 There are several kinds of murder by the English law. The word originally signified stealth, as the crime was usually committed in private. Afterwards felonious4 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 infortnnium. 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 dcfcndcndo is when two persons quarrel, and the one is obliged to kill the other for his own safety. This is excusable, not justifiable homicide. Justi fiable homicide is of two kinds. First, in defence [of] one's person, goods, or house. It differs from homicide se defcn- dcndo in this, that there is no quarrel, but an attack on the highway, or in a man's house. Second, homicide is justifi able 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. How ever, 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, 1 Hawkins, Pleas of the Crown, ' Appeals of rape and robbery are bk. ii. ch. xxiii. §§ 36-43. now much out of use, but the - Ibid. §§ 103-125. appeal of murder still continues, 3 Jacob, New Law Dictionary and is often brought.'
(s.v. Appeal of Robbery), says, * MS. reads 'felony and.'
140 PART I: JUSTICE and without intending it, kill a man, it is murder. Where- ever 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 defendcndo 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 l.
The Scotch law makes no distinction between man slaughter and murder2. 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 agree able 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 fore thought as murder, and this they proved from Deuteronomy xixth. When any [clerical] person therefore had com mitted 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 \vho had 1 Hawkins, Pleas of the Crown, the intention to kill is antecedent bk. i. chs. xxviii-xxxi. even to the very blow; it follows 2 ' As by intended homicide we that the homicide which is corn- mean not only that which is pre- mitted in Rixa or Tulzie will be meditated and the consequence construed by us to be intended of malice preconceived, but also homicide,' Alex. Bayne, Institu- that which is instantly conceived tions of tlie Criminal Law of in the very encounter, so as to Scotland, 1748, pp. 33, 34. comprehend all slaughter where PRIVATE LAW 14!
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 equally1. 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 arraigned2.
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:i. 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.
1 'And forasmuch as when any of the Realm). The indulgence person is convicted for any felony had already been extended to within the benefit of clergy, upon women (who were of course inhis prayer to have the benefit capable of obtaining benefit of thereof allowed to him it hath clergy) by 3 W. and M. cap. 9.
been used to administer a book The account of the origin of to him to try whether he can benefit of clergy in the text is read as a clerk, which by ex- far from accurate, perience is found to be of no use, 2 Not quite accurately put. See be it therefore enacted ' that such Hawkins, Pleas of the Crown, bk. i.
person ' shall not be required to ch. xxix. § 25.
read, but without any reading s This is erroneous, as nothing shall be allowed, taken, and re- annexed to the freehold could puted to be and punished as be deodand. Probably 'house' a clerk convict.' 5 and 6 Ann. is a copyist's error for ' horse.' cap. 6 (6 Ann. cap. 9 in Statutes 142 PART I: JUSTICE 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 l.
A person may also be injured in his body by demem- bration, 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 1 Hawkins, Pleas of the Croivn, bk. i. ch. xxvi.
PRIVATE LAW 143 in Holland to this day. When a person was maimed in any member that rendered him incapable of military service 1, the punishment was more severe.
By the Coventry Act, maiming in the face from malice or forethought was punished with death2. 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 3. 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 murder4.
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 1 The term 'mayhem 'or 'maim' * In 1721 Arundel Cooke or was properly applied only to such Coke, an attorney, was tried at injuries. Hawkins, Pleas of the the Suffolk assizes with John Crown, bk. i. ch. xliv. § i. Woodburne, his hired accomplice, 2 22 and 23 Car. II. cap. i. for lying in wait for and disfigur- 3 ' The Prince of Wales ' is an ing his brother-in-law, who had extraordinary mistake for 'the just been supping with him. king's son,' i.e. Monmouth. Ra- Attempt to murder was not at pin's account is that the attack on that time a capital oifence, and Sir John 'was, by the king's order, there is no doubt that Cooke did committed to the Duke of. Mon- intend to murder his brother-in- mouth, his natural son, and the law, and not merely to maim him. Duke had employed some other Yet both criminals were con- persons, who after the deed re- demned, as stated in the text, tired to his house.' History of Eng- and executed. State Trials, 1730, land, translated by Tindal, vol. ii. vol. vi. pp. 212-228.
p. 658. Sir John's nose was slit.
144 PART I: JUSTICE 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 restrain ing 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 1 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 mctus iniustus.
1 ' Forty ' should be ' not in see above, p. 46, note 2. any case more than twenty;' - I.e. of course, prosecuted.
PRIVATE LAW 145 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 intro duced 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 prose cution. 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.
146 PART I: JUSTICE 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 l governments, and in Rome for a long time, they were not punished. Augustus at last revived the law subjecting the authors to a capital punishment2. 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-raising3 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 violence4. 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 1 Some words, possibly 'the 4 ' It seems that at the common Greek,' have evidently dropped law a man disseised of any lands out. or tenements (if he could not 2 Tacitus, Ann. lib. i. cap. 72. prevail by fair means) might 3 The term 'wilful fire-raising' lawfully regain the possession is used for arson in Scotch law thereof by force.' Hawkins, books. Bayne, Institutions of the Pleas of the Croivn, bk. i. ch. Criminal Law of Scotland, p. 26. Ixiv. § i.
PRIVATE LAW 147 that he was violently] dispossessed, his estate should be restored l. 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 restored2.
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 re stored two. There was, however, a peculiar distinction between ihefitr manifestus and fur nee manifestos. 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 Lace daemonians3, 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