Historical Law-Tracts. Henry Home, Lord Kames
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dato eum in finem fidejussore; simulque ad talionem seu similitudinem supplicii sese obstringet, si in probatione defecisse et calumniatus esse deprehensus fuerit.19
Had the Roman law continued to flourish any considerable time after this regulation, we may be pretty certain it must have been altered. It was indeed
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a complete bar to accusations true or false; for what man will venture his life and fortune, in bringing to punishment a criminal who hath done him no injury, however beneficial it may be to the state to have the criminal destroyed? This would be an exertion of public spirit, scarce to be expected among the most virtuous people, not to talk of times of universal corruption and depravity.
In modern governments, a better method is invented. The privilege of prosecuting public crimes belongs to the chief magistrate. The King’s Advocate in Scotland is calumniator publicus; and there is delegated to him from the <61> crown, the privilege of prosecuting public crimes. In England, personal liberty has, from the beginning, been more sacred than in Scotland; and to prevent the oppression of criminal prosecutions, there is in England a regulation much more effectual than that now mentioned. A grand jury is appointed in every county for a previous examination of capital crimes intended to be prosecuted in name of the crown; and they must find a billa vera, as it is termed, without which the trial cannot proceed. But the crown is not tied to that form. A criminal trial may proceed on an information, without any previous examination by a grand jury.20
With respect to private crimes, where individuals are hurt in their persons, goods, or character, the public, and the person injured, have each of them separately an interest. The King’s Advocate may prosecute such crimes alone, as far as the public is concerned in the punishment. The private party is interested to obtain reparation for the wrong done him. Even where this is the end of the prosecution, our forms require the concurrence of the King’s Advocate, as a check upon the prosecutor, whose resentment otherwise may carry him beyond proper bounds. But this concurrence must be given, unless the Advocate will take upon him to show, that there is no foundation for the prosecution; for the Advocate cannot bar the private party from the <62> reparation due him by law; more than the private party21 can bar the Advocate from exacting that reparation or punishment which is a debt due to the public.
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The interposition of the sovereign authority, to punish crimes more severely than by a composition, was at first, we may believe, not common; nor to be obtained at any rate, unless where the atrocity of the crime called aloud for an extraordinary punishment. But it happened in this, as in all similar cases where novelty wears off by reiteration of acts, that what at first is an extraordinary remedy, comes in time to be reckoned a branch of common law. There being at first, however, no rule established for the King’s interposition, it was understood to be a branch of his prerogative to interpose or not at his pleasure; and to direct an extraordinary punishment, or to leave the crime to the composition of common law. Though evidently this prerogative could not regularly subsist after criminal jurisdiction was totally engrossed by the public;22 yet our forefathers were not so clear-sighted. The prerogative now mentioned, was misapprehended for a power of pardoning even after sentence; and the resemblance of the cases made way for the mistake. It appears to me, that the King’s prerogative of pardoning arbitrarily, which is asserted by all lawyers, can have no foundation other than this now assigned. <63> Were it limited in criminal as in civil cases, not to give relief but where strict law is over-balanced by equity, the prerogative would have a more rational foundation. But we must prosecute the thread of our history. Though the option of inflicting an adequate punishment, or leaving the crime to common law, was imperceptibly converted into an arbitrary power of pardoning even after sentence; yet the foundation of this new prerogative was not forgot. The King’s pardon is held as leaving the crime to common law, by which the person injured is entitled to a composition. And the evident injustice of a pardon upon any other condition, tends no doubt to support this construction: For it would be gross injustice, that the law should suffer a man to be injured, without affording him any satisfaction, either by a public punishment, or by a private composition. This, however, it would appear, has been attempted. But the matter was settled by a law of Edward the Confessor,* declaring, That the King, by his prerogative, may pardon a capital crime; but that the criminal must satisfy the person injured, by a just composition.
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Thus the Vergelt, or composition for crimes, which obtained in all cases by our old law, is still in force where the criminal obtains a pardon; and the claim that the relations of the <64> deceased have against the murderer who obtains a pardon, known in the law of Scotland by the name of assythment, has no other foundation. The practice is carried farther, and may be discovered even in civil actions. When a process of defamation is brought before a civil court, or a process for any violent inversion of possession, a sum is generally decreed in name of damages, proportioned to the wrong done; even where the pursuer cannot specify any hurt or real damage. Such a sentence can have no other view, but to gratify the resentment of the person injured, who has not the gratification of any other punishment. It is given, as lawyers say, in solatium; and therefore is obviously of the nature of a Vergelt, or composition for a crime. Damages awarded to a husband, against the man who corrupts his wife, or against the man who commits a rape upon her, are precisely of the same nature.
In taking a review of the whole, the manners and temper of savages afford no agreeable prospect. But man excels other animals, chiefly by being susceptible of high improvements in a well-regulated society. In his original solitary state, he is scarce a rational being. Resentment is a passion, that, in an undisciplined breast, appears to exceed all bounds. But savages are fierce and brutal; and the passion of resentment is in the savage state the chief protection that a <65> man hath for his life and fortune.23 It is therefore wisely ordered, that resentment should be a ruling passion among savages. Happy it is for civilized societies, that the authority of law hath in a good measure rendered unnecessary this impetuous passion; and happy it is for individuals, that early discipline under the restraint of law, by calming the temper and sweetening manners, hath rendered it a less troublesome guest than it is by nature. <66>
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Moral principles, faint among savages, acquire strength by refinement of manners in polished societies.*1 Promises and covenants, in particular, have full authority among nations disciplined in a long course of regular government: But among barbarians it is rare to find a promise or covenant of such authority as to counterbalance, in any considerable degree, the weight of appetite or passion. This circumstance, joined with the imperfection of a language in its infancy, are the causes why engagements are little regarded in original laws.
It is lucky, that among a rude people in the first stages of government, the necessity of engagements is not greater than their authority. Originally, every family subsisted by hunting, and by the natural fruits of the earth. The taming wild animals, and rendering them domestic, multiplied greatly the means of subsistence. The invention of agriculture produced <67> to the industrious a superfluity, with which foreign necessaries were purchased. Commerce originally was carried on by barter or permutation, to which a previous covenant is not necessary. And after money was introduced into commerce, we have reason to believe, that buying and selling also was at first carried on by exchanging goods for money, without any previous covenant. But in the progress of the social life, the wants and appetites of men multiply faster than to be readily supplied by commerce so
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narrow and confined. There came to be a demand for interposed persons, who take care to be informed of what is redundant in one corner, and of what is wanted in another. This occupation was improved into that of a merchant, who provides himself from a distance with what is demanded at home. Then it was, and no sooner, that the use of a covenant came to be