Historical Law-Tracts. Henry Home, Lord Kames

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СКАЧАТЬ he dreads it from the hand of God, and from the hand of man:

      And Cain said unto the Lord, My punishment is greater than I can bear. Behold, thou hast driven me out this day from the face of the earth: and from thy face shall I be hid, and I shall be a fugitive and a vagabond in the earth, and it shall come to pass, that every one that findeth me shall slay me.^†

      Hence the efficacy of human <4> punishments in particular, to which man is adapted with wonderful foresight, through the consciousness of their being justly inflicted, not only by the person injured, but by the magistrate or by any one. Abstracting from this consciousness, the most frequent instances of chastising criminals would readily be misapprehended for so many acts of violence and oppression, the effects of malice even in judges; and much more so in the party offended, where the punishment is inflicted by him.

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      The purposes of Nature are never left imperfect. Corresponding to the dread of punishment, is, first, the indignation we have at gross crimes, even when we suffer not by them; and next, resentment in the person injured, even for the slightest crimes: by these, ample provision is made for inflicting the punishment that is dreaded. No passion is more keen or fierce than resentment; which, when confined within due bounds, is authorised by conscience. The delinquent is sensible, that he may be justly punished; and if any person, preferably to others, be entitled to inflict the punishment, it must be the person injured.²

      Revenge, therefore, when provoked by injury or voluntary wrong, is a privilege that belongs to every person by the law of Nature; for we have no criterion of right or wrong more illustrious than the approbation or dis-approbation of <5> conscience. And thus, the first law of Nature regarding society, that of abstaining from injuring others, is enforced by the most efficacious sanctions.

      An author of the first rank for genius, as well as blood, expresses himself with great propriety on this subject:

      There is another passion very different from that of fear, and which, in a certain degree, is equally preservative to us, and conducing to our safety. As that is serviceable in prompting us to shun danger, so is this in fortifying us against it, and enabling us to repel injury, and resist violence when offered. ’Tis by this passion that one creature offering violence to another, is deterred from the execution, whilst he observes how the attempt affects his fellow, and knows by the very signs which accompany this rising motion, that if the injury be carried further, it will not pass easily, or with impunity. ’Tis this passion withal, which, after violence and hostility executed, rouses a creature in opposition, and assists him in returning like hostility and harm on the invader. For thus as rage and despair increase, a creature grows still more terrible; and, being urged to the greatest extremity, finds a degree of strength and boldness unexperienced

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      till then, and which had never risen except through the height of provocation.^* <6>

      But a cursory view of this passion is not sufficient. It will be seen by and by, that the criminal law in all nations is entirely founded upon it; and for that reason it ought to be examined with the utmost accuracy. Resentment is raised in different degrees, according to the sense one hath of the injury. An injury done to a man himself, provokes resentment in its highest degree. An injury of the same kind done to a friend or relation, raises resentment in a lower degree; and the passion becomes gradually fainter, in proportion to the slightness of the connection. This difference is not the result of any peculiarity in the nature of the passion: it is occasioned by what is inherent in all sensible beings, that every one has the strongest sense of what touches itself. Thus a man hath a more lively sense of a kindness done to himself, than to his friend; and the passion of gratitude is in proportion. In the same manner, an injury done to myself, to my child, to my friend, makes agreater figure in my mind, than when done to others in whom I am less interested.

      Every heinous transgression of the law of Nature raiseth indignation in all, and a keen desire to have the criminal brought to condign punishment. Slighter transgressions are less regarded. A slight injury done to a stranger, with whom we have no connection, raiseth our indignation, it is true, but so faintly as not to prompt any <7> revenge. The passion in this case, being quiescent, vanisheth in a moment. But a man’s resentment for an injury done to himself, or to one with whom he is connected, is an active passion, which is gratified by punishing the delinquent, in a measure corresponding to the injury. And many circumstances must concur before the passion be completely gratified. It is not completely gratified with the suffering of the criminal: The person injured must inflict the punishment, or at least direct it; and the criminal must be made sensible, not only that he is punished for his crime, but that the punishment proceeds from the person injured. When all these circumstances concur, and not otherwise, the passion is completely gratified; and commonly vanisheth as if it had never been. Racine

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      understood the nature of this passion, and paints it with great accuracy in the following scene.

      CLEONE.

      Vous vous perdez, Madame. Et vous devez songer—

      HERMIONE.

      Que je me perde, ou non, je songe à me venger.

      Je ne sai même encor, quoi qu’il m’ait pu promettre,

      Sur d’autres que sur moi, si je dois m’en remettre.

      Pyrrhus n’est pas coupable à ses yeux comme aux miens,

      Et je tiendrois mes coups bien plus sûrs que les siens. <8>

      Quel plaisir, de venger moi-même mon injure;

      De retirer mon bras teint du sang du parjure;

      Et pour rendre sa peine et mes plaisirs plus grands,

      De cacher ma rivale à ses regards mourans!

      Ah! si du-moins Oreste, en punissant son crime,

      Lui laissoit le regret de mourir ma victime!

      Va le trouver. Dis-lui qu’il aprenne à l’ingrat,

      Qu’on l’immole à ma haine, et non pas à l’état.

      Chére Cléone, cours. Ma vengeance est perdue,

      S’il ignore, en mourant, que c’est moi qui le tue.

      ANDROMAQUE, act. 4. sc. 4.³

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      Injury, or voluntary wrong, is commonly the cause of resentment; we are taught, however, by experience, that sudden pain is sufficient sometimes to raise this passion, even where injury is not intended. If a man wound me by accident in a tender part, the sudden anguish, giving no time for reflection, provokes resentment, which is as suddenly exerted upon the involuntary cause. Treading upon a gouty toe, or breaking a favourite vase, may upon a warm temper produce this effect. The mind engrossed by bodily pain, or any pain which raises bad humour, demands an object for its resentment; and what object so ready as the person who was the occasion of the pain? that it was undesigned is never thought of. In the same manner even a stock or a stone becomes sometimes the object of resentment. Striking my foot by accident against a stone, a smart pain en-<9>sues: Resentment, suddenly enflamed, prompts me to bray the stone to pieces. The passion is still more irregular in a losing gamester, when he vents it on the cards and dice. All that can be said as an apology for such absurd fits of passion, is, that they СКАЧАТЬ