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 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 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 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.
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-inmouth, his natural son, and the law, and not merely to maim him. Duke had employed some other Yet both criminals were conpersons, 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.
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.
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.
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.
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 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.'
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. Housebreaking 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.'
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, 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.
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.
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.
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.
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^