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 con sequently disposed them to punish him severely. Since 1 5 Ric. II, cap. 7; 15 Ric. II, P.C., bk. i. ch. Ixiv. § 8.
cap. 2; 8 Hen. VI, cap. 9; Haw- 3 But Heineccius, Antiq. Rom. kins, P.C., bk. i. ch. Ixiv. §§ 6, 7. lib. iv. tit. i. § 12, says they bor- 2 31 Eliz. cap. ii; Hawkins, rowed it ' ex iure Attico.'
148 PART I: JUSTICE the thirteenth 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 undoubt edly 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 treason1, 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 sum2. 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 statute3. 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 1 ' One circumstance in the 2 No sum was specified, man}' offender, namely, his being a circumstances besides value landed man, formerly made the being taken into account, punishment of this crime [theft] 3 2 Geo. III,cap.29,ormoreprobto be that of high treason.' Bayne, ably an error for ' late statutes.'
Institutions of the Criminal Law MacDouall, Institute, vol. i. p. 594; of Scotland, p. 46. Bacon, Abridgement, s.v. 'Game.'
PRIVATE LAW 149 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 wife1 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 him2.
Piracy is punished still more severely3.
A man may be injured in his personal estate by fraud or forgery. The natural punishment of the dolns mains is 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 punish ment. 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 punishment4. It was a ques tion 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 1 'A husband his wife ' should compel him to sell them to him be 'a wife her husband.' against his will, he is guilty of 2 Hawkins, Pleas of the Croivn, robbery, though he give for them bk. i. ch. xxxv. § 10, says that more than they are worth.' some hold that ' if a man meeting 3 Ibid. ch. xxxvii.
another going with his goods to 4 i Ann. St. 2, cap. 9. market in order to sell them, 150 PART I: JUSTICE 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 l.
In England a bankrupt may have a discharge on sur rendering 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 death2. Forgery is also punished capitally, and nobody complains that this punish ment 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 3, 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 capitally4.
As there are several ways of acquiring personal rights so there are several ways in which they expire. First, by payment of what is due by contract or quasi-contract, because the fulfilment of the obligation satisfies the other party. Secondly, by discharge or acquittance, even though the debt be not paid. This also takes place with regard 1 Among 'certain offences which ing to the plough.' Institutions will not fall under the definition of the Criminal Law of Scotland, of theft, which however have p. 47.
been so called because they were 2 Hawkins, Pleas of the Crown, declared to be punishable as bk. i. ch. Ivii.
theft,' Bayne mentions ' cutting 8 Ibid. chs. Iviii, Ixx.
and destroying the gear belong- 4 Ibid. ch. Ixix.
PRIVATE LAW 151 to crimes, for when the king or the injured person choose to drop prosecution or to give a pardon, the person is free. Thirdly, 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. No body 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 rea sonable 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 year1; but an indictment does not prescribe so soon 2, 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 fora 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 entirety lost. Treason itself prescribes in a few years3. 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 1 This applies only to appeals 2 Ibid. ch. xxvi. § 41.
of death. See Hawkins, Pleas 3 Three years, under 7 & 8 W.
of the Crown, bk. ii. ch. xxiii. Ill, cap. 3.
152 PART I: JUSTICE 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 l. Dr. Cameron suffered in Scotland in the same manner2. 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 1 This was Charles Ratcliffe, Howell's State Trials, 1813, vol.
who claimed to be Earl of Der- xviii. p. 430 sqq. wentwater in succession to his 2 Dr. Archibald Cameron, brother James. Both were con- Lochiel's brother, was executed demned to death in 1716, but in London in 1753 on the Charles escaped from prison. strength of a bill of attainder In 1745 he was captured on passed against him in 1746.
board a vessel said to be going Ibid. vol. xix. p. 734 sqq. ' Su'fto the assistance of the rebels, fered in Scotland ' is probably and was arraigned and executed a mistake of the reporter for in London without another trial. ' suffered after being captured He had resided abroad, not in in Scotland,' or some equivalent Scotland as stated in the text, phrase.
PRIVATE LAW 153 action. Resentment is on the whole a very indiscrimin- ating 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.
PART II: OF POLICE [DIVISION I. CLEANLINESS AND SECURITY.]
POLICE is the second general division of jurisprudence. The name is French, and is originally derived from the Greek TroAn-em, which properly signified the policy of civil government, but now it only means the regulation of the inferior parts of government, viz:— cleanliness, security and cheapness or plenty1. The two former, to wit, the proper method of carrying dirt from the streets, and the execution of justice, so far as it regards regulations for preventing crimes or the method of keeping a city guard, though useful, are too mean to be considered in a general discourse of this kind. An observation or two before we proceed to the third particular is all that is necessary.
We observe then, that in cities where there is most police and the greatest number of regulations concerning it, there is not always the greatest security. In Paris the regula tions concerning police are so numerous as not to be comprehended in several volumes; in London there are 1 Johnson (Dictionary, 1755) and government of a city or describes ' police ' as of French country, so far as regards the origin, and mentions Ti-oXireia as inhabitants;' and ' policy ' as ' the the original of ' policy.' He de- art of government, chiefly with fines ' police ' as ' the regulation respect to foreign powers.'
CLEANLINESS AND SECURITY 155 only two or three simple regulations. Yet in Paris scarce a night passes without somebody being killed, while in London, which is a larger city, there are scarce three or four in a year. On this account one would be apt to think, that the more police there is the less security; but this is not the cause. In England as well as in France, during the time of the feudal government, and as late as Queen Elizabeth's reign, great numbers of retainers were kept idle about the noblemen's houses1, to keep the tenants in awe. These retainers, when turned out, had no other way of getting their subsistence but by committing robberies, and living on plunder, which occasioned the greatest disorder. A remain of the feudal manners, still preserved in France, gives occasion to the difference. The nobility at Paris keep far more menial servants than ours, who are often turned out on their own account or through the caprice of their masters, and, being in the most indigent circumstances, are forced to commit the most dreadful crimes. In Glasgow, where almost nobody has more than one servant, there are fewer capital crimes than in Edinburgh. In Glasgow7 there is not one in several years; but not a year passes in Edinburgh without some such disorders. Upon this principle, therefore, it is not. so much the police that prevents the commission of crimes as the having as few persons as possible to live upon others. Nothing tends so much to corrupt mankind as dependency, while independency still increases the honesty of the people.
The establishment of commerce and manufactures, which brings about this independency, is the best police for pre venting crimes2. The common people have better wages in 1 Hume, History of England industry in towns where courts under the House of Tudor, vol. ii. and parliaments reside is at- P- 735- Cp. above, p. 35. tributed to the fact that the 2 In W. of N. bk. ii. ch. iii. inhabitants are not employed by vol. i. pp. 338-340, the want of capital.
156 PART II! POLICE this way than in any other, and in consequence of this a general probity of manners takes place through the whole country. Nobody will be so mad as to expose himself upon the highway, when he can make better bread in an honest and industrious manner. The nobility of Paris and London are no doubt much upon a level; but the common people of the former, being much more dependent, are not to be compared with those of the latter: and for the same reason the commonalty in Scotland differ from those in England, though the nobility too1 are much upon a level.
Thus far for the two first particulars which come under the general division of police.
1 I.e. the nobility of England and Scotland as well as the nobility of Paris and London.
[DIVISION II. CHEAPNESS OR PLENTY.]
[§ i. Of the Natural Wants of Mankind^ IN the following part of this discourse we are to confine ourselves to the consideration of cheapness or plenty, or, which is the same thing, the most proper way of procuring wealth and abundance. Cheapness is in fact the same thing with plenty. It is only on account of the plent}' of water that it is so cheap as to be got for the lifting; and on account of the scarcity of diamonds (for their real use seems not yet to be discovered) that they are so dear *. To ascertain the most proper method of obtaining these conveniences it will be necessary to show first wherein opulence consists, and still previous to this we must consider what are the natural wants of mankind which are to be supplied; and if we differ from common opinions, we shall at least give the reasons for our non-conformity.
Nature produces for every animal everything that is sufficient to support it without having recourse to the improvement of the original production. Food, clothes and lodging are all the wants of any animal whatever2, and most 1 The cheapness of water on of useful water arising from its account of its abundance is an plcntifulness is contrasted with ancient commonplace. Bar- the high value of useless diamonds beyrac on Pufendorf, De Jure arising from their scarcity b}- naturae et gentium, lib. v. cap. i. § Law, Money and Trade considered, 4, quotes Plato, Euthydem. 304 B, 1705, ch. i, and by Joseph Harris, TO yap airiiviov, Z> EiBvfypf, Ti(w>t>' Essay on Money and Coins, 1757, 6(/>?7 IlivSapr.s. The low value " 'Les choses nccessaires a la 158 PART II I POLICE of the animal creation are sufficiently provided for by nature in all those wants to which their condition is liable. Such is the delicacy of man alone, that no object is produced to his liking. He finds that in everything there is need of improvement. Though the practice of savages shows that his food needs no preparation, yet being acquainted with fire, he finds that it can be rendered more wholesome and easily digested, and thereby may preserve him from many diseases which are very violent among them. But it is not only his food that requires this improvement; his puny constitution is hurt also by the intemperature of the air he breathes in, which, though not very capable of improvement, must be brought to a proper temperament for his body, and an artificial atmosphere prepared for this purpose. The human skin cannot endure the inclemencies of the weather, and even in those countries where the air is warmer than the natural warmth of the constitution, and where they have no need of clothes, it must be stained and painted to be able to endure the hardships of the sun and rain. In general, however, the necessities of man are not so great but that they can be supplied by the unassisted labour of the individual. All the above necessities everyone can provide for himself, such as animals and fruits for his food, and skins for his clothing.
As the delicacy of a man's body requires much greater provision than that of any other animal, the same or rather the much greater delicacy of his mind requires a still greater provision to which all the different arts [are] subservient. Man is the only animal who is possessed of such a nicety that the very colour of an object hurts him. Among different objects a different division or arrangement of them pleases. The taste of beauty, which consists vie sont la nourriture, le vete- en general, 1755, p. 163. Cf. Moral ment et le logement,' Cantillon, Sentiments, ist ed., pt. i. sect. iv. Essai sur la nature du commerce ch. ii., 6th ed., pt. i. sect. iii. ch. ii.
CHEAPNESS OR PLENTY 159 chiefly in the three following particulars, proper variety, easy connexion, and simple order, is the cause of all this niceness. Nothing without variety pleases us; a long uniform wall is a disagreeable object. Too much variety, such as the crowded objects of a parterre, is also dis agreeable. Uniformity tires the mind; too much variety, too far increased, occasions an over-great dissipation of it. Easy connexion also renders objects agreeable; when we see no reason for the contiguity of the parts, when they are without any natural connexion, when they have neither a proper resemblance nor contrast, they never fail of being disagreeable. If simplicity of order be not observed, so as that the whole may be easily comprehended, it hurts the delicacy of our taste. Again, imitation and painting render objects more agreeable. To see upon a plain, trees, forests, and other such representations, is an agreeable surprise to the mind l. Variety of objects also renders them agreeable. What we are every day accustomed to does but very indifferently affect us. Gems and diamonds are on this account much esteemed by us. In like manner our pinchbeck and many of our toys 2 were so much valued by the Indians, that in bartering their jewels and diamonds for them they thought they had made by much the better bargain.
[$ 2. That all the Arts are subservient to the Natural Wants of Mankind^ Those qualities, which are the ground of preference, and which give occasion to pleasure and pain, are the cause of many insignificant demands, which we by no means stand 1 ' Of the Imitative Arts,' thing of no value,' and quotes Essays, p. 137. from Abbot, ' They exchange for 2 Johnson (Dictionary, 1755) knives, glasses, and such toys, gives as the first meaning of toy, great abundance of gold and ' a petty commodity; a trifle; a pearl.'
l6o PART II: POLICE in need of. The whole industry of human life is employed not in procuring the supply of our three humble neces sities, food, clothes and lodging, but in procuring the conveniences of it according to the nicety and delicacy of our taste. To improve and multiply the materials, which are the principal objects of our necessities, gives occasion to all the variety of the arts.
Agriculture, of which the principal object is the supply of food, introduces not only the tilling of the ground, but also the planting of trees, the producing of flax, hemp, and innumerable other things of a similar kind. By these again are introduced different manufactures, which are so very capable of improvement. The metals dug from the bowels of the earth furnish materials for tools, by which many of these arts are practised. Commerce and naviga tion are also subservient to the same purposes by collecting the produce of these several arts. By these again other subsidiary [arts] are occasioned. Writing, to record the multitude of transactions, and geometry, which serves many useful purposes. Law and government, too, seem to propose no other object but this; they secure the individual who has enlarged his property, that he may peaceably enjoy the fruits of it. By law and government all the different arts flourish, and that inequality of fortune to which they give occasion is sufficiently preserved. By law and government domestic peace is enjoyed and security from the foreign invader. Wisdom and virtue too derive their lustre from supplying these necessities. For as the establishment of law and government is the highest effort of human prudence and wisdom, the causes cannot have a different influence from what the effects have. Besides, it is by the wisdom and probity of those with whom we live that a propriety of conduct is pointed out to us, and the proper means of attaining it. Their valour defends us, their benevolence supplies us, the hungry is fed, the naked is clothed, by the exertion of these divine qualities. Thus, CHEAPNESS OR PLENTY l6l according to the above representation, all things are sub servient to supplying our threefold necessities.
[§ 3. That Opulence arises from the Division of Labour.]