Historical Law-Tracts. Henry Home, Lord Kames

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СКАЧАТЬ the first reflection. And yet such indulgence was by the Athenians given to this irrational emotion, that if a man was killed by the fall of a stone, or other accident, the instrument of death was destroyed.^* (1) Resentment raised <10> by

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      voluntary wrong, which is a rational and useful passion, is in a very different condition. It subsists till the sense of the injury be done away, by punishment, atonement, or length of time.

      But all the irregularities of this passion are not yet exhausted. It is still more savage and irrational, when, without distinguishing the innocent from the guilty, it is exerted against the relations of the criminal, and even against the brute creatures that belong to him. Such barbarity <11> will scarce find credit with those who have no knowledge of man but what is discovered by experience in a civilized society; and yet, in the history and laws of ancient nations, we find this savage practice, not only indulged without redress, but, what is still more astonishing, we find it authorised by positive laws. Thus, by an Athenian law, a man committing sacrilege, or betraying his country, was banished, with all his children;^* and when a tyrant was killed, his children were also put to death.^† By the law of Macedon(2), the punishment of treason was extended against the relations of the criminal.^‡ By a Scythian law, when a criminal was punished with death,

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      all his sons were put to death with him: His daughters only were saved from destruction.^* In the laws of the Bavarians,^† the use of women was forbidden to clergymen, “lest (as in the text) the people be destroyed for the crime of their pastor”: A very gross notion of divine punishment. And yet the Gre-<12>cians entertained the same notion; as appears from the Iliad, in the beginning:

      Latona’s son a dire contagion spread,

      And heap’d the camp with mountains of the dead,

      The King of men his rev’rend priest defy’d,

      And for the King’s offence the people died.⁴

      Lucan, for a crime committed by the King, thought it not unjust to destroy all Egypt.^‡ But it may appear still more surprising, that this savage and absurd practice continued very long in some parts of the Roman empire, though governed by laws remarkable for their equity. Of this the following statute of the Emperors Arcadius and Honorius^|| is clear evidence.

      Sancimus ibi esse poenam ubi et noxia est. Propinquos, notos, familiares, procul a calumnia submovemus, quos reos sceleris societas non facit. Nec enim adfinitas vel amicitia nefarium crimen admittunt. Peccata igitursuos teneant auctores: Nec ulterius progrediatur metus quam reperiatur delictum. Hoc singulis quibusque judicibus intimetur.⁵

      At the same time, these very Emperors, however mild and rational with regard to others, talk a very different language upon a crime which affected

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      themselves: After observing, that will and purpose alone, without any ouvert act, is treason, subjecting the guilty person to a capital punishment and forfeiture of <13> goods, they go on in the following words.

      Filii vero ejus, quibus vitam Imperatoria specialiter lenitate concedimus, (paterno enim deberent perire supplicio, in quibus paterni, hoc est here-ditarii, criminis exempla metuuntur), a materna, vel avita, omnium etiam proximorum hereditate ac successione habeantur alieni: Testamentis extraneorum nihil capiant: Sint perpetuo egentes, et pauperes, infamia eos paterna semper comitetur, ad nullos prorsus honores, ad nulla sacramenta perveniant: Sint postremo tales, ut his, perpetua egestate fordentibus, sit et mors solatium, et vita supplicium.^*6

      Every one knows, that murder committed by a member of any tribe or clan, was resented, not only against the criminal and his relations, but against the whole tribe or clan: A species of resentment so common as to be distinguished by a peculiar name, that of deadly feud. So late as the days of King Edmond, a law was made in England, forbidding deadly feud, except betwixt the relations of the deceased and the murderer himself; and declaring, that these relations shall forfeit all their goods, if they prosecute with deadly feud the relations of the murderer. In Japan, to this day, it is the practice to involve children and relations in the punishment of capital crimes.^† <14>

      A tendency to excess, so destructive in the passion of resentment, is often in other passions the occasion of good. Joy, when excessive, as well as gratitude, are not confined to their proper objects, but expand themselves upon

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      whatever is connected with these objects. In general, all our active passions, in their nascent state and when moderate, are accompanied with a sense of fitness and rectitude; but when excessive, they enflame the mind, and violently hurry it to action, without due distinction of objects.

      And this leads to a reflection upon the irregular tendency of resentment here displayed. If it be the nature of all active passions, when immoderate, to expand themselves beyond their proper objects, which is remarkable in friendship, love, gratitude, and all the social passions, it ought not to be surprising, that resentment, hatred, envy, and other dissocial passions, should not be more regular. Among savages, this tendency may perhaps have a bad effect, by adding force to the malevolent passions: But in a civilized state, where dissocial passions are softened, if not subdued, this tendency is, upon the whole, extremely beneficial.

      It is observed above, that revenge is a privilege bestowed by the law of Nature on those who suffer by a voluntary injury; and the correspondence hath also been observed betwixt this privilege and the sense of merited punishment, which <15> makes the criminal submit to the punishment he deserves. Thus by the law of Nature, the person injured acquires a right over the delinquent, to chastise and punish him in proportion to the injury; and the delinquent, sensible of the right, knows he ought to submit to it. Hence punishment is commonly said to be a sort of debt, which the criminal is bound to pay to the person he hath injured(3); and this way of speaking may safely be indulged as an analogical illustration, provided no consequence be drawn that the analogy will not justify. This caution is not unnecessary; for many writers, influenced by the foregoing semblance, reason about punishment unwarily, as if it were a debt in the strictest sense. By means of the same resemblance, a notion prevailed in the darker ages of the world, of a substitute in punishment, who undertakes the debt and suffers the punishment that another merits. Traces of this opinion are found in the religious ceremonies of the ancient Egyptians and other ancient nations. Among them the conceptions of a Deity were gross, and of morality no less so. We must not therefore be surprised at their notion of a transference

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      of punishment, as of debt, from one person to another. They were imposed upon by the slight analogy above-mentioned; which reasoning taught <16> them not to correct, because reasoning at that time was in its infancy.⁷ The prevalence of this notion in the religious ceremonies of the ancient Egyptians, is vouched by Herodotus.^* A bull is chosen pure white, for a sacrifice to their god Apis. The victim is brought to the altar, a fire kindled, wine poured out, and prayers pronounced. The bull is killed; and his head is thrown into the river, with the following execration: “May all the evils impending over those who perform this sacrifice, or over the Egyptians in general, be averted on this head.” Even in later times, when a Roman army was in hazard of a defeat, it was not uncommon for the general to devote himself to death, in order to obtain the victory.^† Is not this practice founded upon the same notion? Let Lucan answer the question.

      O utinam, coelique Deis, Erebique liberet

      Hoc caput in cunctas СКАЧАТЬ