Historical Law-Tracts. Henry Home, Lord Kames

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СКАЧАТЬ writings not many things deserve to be copied, has however handled the present subject with such superiority of thought and expression, that in order to recommend the history of law, I will cite the passage at large.

      I might instance (says he) in other professions the obligation men lieunder of applying themselves to certain parts of history, and I can hardly forbear doing it in that of the law, in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety-nine in a hundred at least, to use some of Tully’s words, nisi leguleius quidem cautus, et acutus praeco actionum, cantor formularum, auceps syllabarum.¹ But there have been lawyers that were orators, philosophers, historians: there <ix> have been Bacons and Clarendons. There will be none such any more, till in some better age, true ambition or the love of fame prevails over avarice; and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the vantage ground, so my Lord Bacon calls it, of science, instead of groveling all their lives below, in a mean, but gainful, application to all the little arts of chicane.² Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions: and whenever it happens, one of the vantage grounds to which men must climb, is metaphysical, and the other, historical knowledge. They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws: and they must trace the laws of particular state, especially of their own, <x> from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced.^*

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      The following discourses are selected from a greater number, as a specimen of that manner of treating law which is here so warmly recommended. The author flatters himself, that they may tend to excite an historical spirit, if he may use the expression, in those who apply themselves to law, whether for profit or amusement; and for that end solely has he surrendered them to the public.

      An additional motive concurred to the selection here made. The discourses relate, each of them, to subjects common to the law of England and of Scotland; and, in tracing the history of both, tend to intro-<xi>duce both into the reader’s acquaintance. I have often reflected upon it as an unhappy circumstance, that different parts of the same kingdom should be governed by different laws. This imperfection could not be remedied in the union betwixt England and Scotland; for what nation will tamely surrender its laws more than its liberties? But if the thing was unavoidable, its bad consequences were not altogether so. These might have been prevented, and may yet be prevented, by establishing public professors of both laws, and giving suitable encouragement for carrying on together the study of both. To unite both in some such plan of education, will be less difficult than at first view may be apprehended; for the whole island originally was governed by the same law; and even at present, the difference consists more in terms of art than in substance. Difficulties at the same time may be overbalanced by advantages: the proposed plan has great advantages, not only by re-<xii>moving or lessening the foresaid inconvenience, but by introducing the best method of studying law; for I know none more rational, than a careful and judicious comparison of the laws of different countries. Materials for such comparison are richly furnished by the laws of England and of Scotland. They have such resemblance, as to bear a comparison almost in every branch; and they so far differ, as to illustrate each other by their opposition. Our law will admit of many improvements from that of England; and if the author be not in a mistake through partiality to his native country, we are rich enough to repay with interest, all we have occasion to borrow. A regular institute of the common law of this island, deducing historically the changes which that law hath undergone in the two nations, would be a valuable present to the public; because it would make the study of both laws a task easy and agreeable. Such institute, it is

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      true, is an undertaking too great for any <xiii> one hand. But if men of knowledge and genius would undertake particular branches, a general system might in time be completed from their works. This subject, which has frequently occupied the author’s thoughts, must touch every Briton who wishes a complete union; and a North-Briton in a peculiar manner. Let us reflect but a moment upon the condition of property in Scotland, subjected in the last resort to judges, who have little inclination, because they have scarce any means to acquire knowledge in our law.³ With respect to these judges, Providence it is true, all along favourable, hath of late years been singularly kind to us. But in a matter so precarious, we ought to dread a reverse of fortune, which would be severely felt. Our whole activity is demanded, to prevent if possible the impending evil. There are men of genius in this country, and good writers. Were our law treated as a rational science, it would find its way into England, and be studied there <xiv> for curiosity as well as for profit. The author, excited by this thought, has ventured to make an essay; which, for the good of his country more than for his own reputation, he wishes to succeed. If his Essay be relished, he must hope, that writers of greater abilities will be moved to undertake other branches successively, till the work be brought to perfection. <1>

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       TRACT I

       Criminal Law

      Of the human system no part, external or internal, is more remarkable than a class of principles, intended obviously to promote society, by restraining men from harming each other. These principles, as the source of the criminal law, must be attentively examined: and to form a just notion of them, we need but reflect on what we feel when we commit a crime, or witness it.¹ Upon certain actions, hurtful to others, the stamp of impropriety and wrong is impressed in legible characters, visible to all, not excepting even the delinquent. Passing from the action to its author, we perceive that he is guilty; and we also perceive, that he ought to be punished for his guilt. He himself, having the same perception, is filled with remorse; and, which <2> is extremely remarkable, his remorse is accompanied with an anxious dread that the punishment will be inflicted, unless it be prevented by his making reparation or atonement. Thus in the breast of a man a tribunal is erected for conscience: sentence passeth against him for every delinquency; and he is delivered over to the hand of Providence, to be punished in proportion to his guilt. The wisdom of this contrivance is conspicuous. Asense of wrong is of itself not sufficient to restrain the excesses of passion: but the dread of punishment, which is felt even where there is no visible hand to punish, is a natural restraint so efficacious, that none more perfect can be imagined.^* This dread, when the result of atrocious or unnatural crimes, is itself a tremendous punishment, far exceeding all that have been invented

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      by men. Happy it is for society, that instances are rare, of crimes so gross as to produce this natural dread in its higher degrees: it is, however, still more rare, to find any person so singularly virtuous, as never to have been conscious of it in any degree. When we peruse the history of mankind, even in their most savage state, we discover it to be universal. One instance I must mention, because it relates to the Hottentots, of all men <3> the most brutish. They adore a certain insect as their deity; the arrival of which in a kraal, is supposed to bring grace and prosperity to the inhabitants; and it is an article in their creed, that all the offences of which they had been guilty to that moment, are buried in oblivion, and all their iniquities pardoned.^* The dread that accompanies guilt, till punishment be inflicted or forgiven, must undoubtedly be universal, when it makes a figure even among the Hottentots.

      For every wrong, reason and experience make us apprehend the resentment of the person injured: but the horror of mind that accompanies every gross crime, produceth in the criminal an impression that all nature is in arms against СКАЧАТЬ