Historical Law-Tracts. Henry Home, Lord Kames
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“Whether law may or should be handled as a rational discipline, having principles from whence its conclusions may be deduced?”3 Kames had no doubt that the answer was that it may and should—in other words, that those lawyers were mistaken who, as Stair had put it, “esteem[ed] law, especially the positive and proper laws of any nation, incapable of such a deduction, as being dependent upon the will and pleasure of lawgivers.”4 Kames went on to produce a huge two-volume work entitled The Decisions of the Court of Session from Its Institution to the Present Time, Abridged and Digested under Proper Heads, in Form of a Dictionary (1741). This was a further attempt to show that the opinions of the judges on the Court were “founded … for the most part, upon solid principles”—to show, in other words, that it was not a fatal flaw in Scottish law that it had so little foundation in statute.5 Late in life Kames told Boswell that he didn’t like to remember how much time this dictionary took to complete. However, he had the energy to press on to a consideration of Scottish statute law, Statute Law of Scotland Abridged, with Historical Notes (1757). In the years before Historical Law-Tracts he also wrote two more miscellaneous books: Essays upon Several Subjects in Law (1732) and Essays on Several Subjects concerning British Antiquities (1747).
Kames was a man of extraordinary energy and intellectual range. He was interested in philosophy as well as law, because he wanted to expose law’s philosophical foundations, but also because he found metaphysical and moral questions fascinating in their own right. He had the confidence to engage in correspondence with Samuel Clarke about a priori arguments for
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the existence of God and with Joseph Butler about various issues raised in his Sermons Preached at the Rolls Chapel. Kames was part of the active intellectual community based in the Scottish Borders in the 1730s, a community that included the young David Hume, for a time so close a friend that the pair are said by some to have laid plans to start a new Edinburgh-based journal.6 Kames’s conversations with Hume, and his inability to accept the younger man’s scepticism, gave rise to his first non-legal work, Essays on the Principles of Morality and Natural Religion (1751). In this book Kames gave systematic expression to a belief that underlies all of his writing on law: that there is such a thing as natural law, prior to and independent of all positive law, and revealed to us, not by reason or by divine will, but rather by human sentiment. The true ground of our knowledge of the primary laws of nature, Kames argued, was human nature. The laws of nature could be defined as “Rules of our conduct founded on natural principles approved by the moral sense, and enforced by natural rewards and punishments.”7 One of these natural principles was a “principle of justice,” consisting of two branches, “one to abstain from harming others, and one to perform our positive engagements.”8 Another was benevolence. Kames gave particular emphasis to the naturalness of principles of justice conceived of as grounded in an innate sense of duty distinct from the sense of benevolence, and in this he meant himself to be understood as correcting Francis Hutcheson. But of course the language of a moral sense was Hutcheson’s language, and it is probably right to see Kames’s moral philosophy as, at bottom, Hutchesonian in inspiration.9 What differentiated Kames from Hutcheson, and from Hume for that matter, was his interest in how universal principles of human nature found different particular expressions in different times and places.
This was an interest Kames shared with Montesquieu, and it is usual to group Kames with those Scots whose intellectual life was fundamentally
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altered by the publication of Montesquieu’s De l’Esprit des Lois in the late autumn of 1748. In his Life of Adam Smith (1794), Dugald Stewart described Kames in the Historical Law-Tracts as having “given some excellent specimens” of Montesquieu’s consideration of laws “as originating chiefly from the circumstances of society.” He provided further instances of the attempt “to account, from the changes in the condition of mankind, which take place in the different stages of their progress, for the corresponding alterations which their institutions undergo.”10 John Craig, inhis1806“Life of John Millar,” likewise claimed that in his history of property law, Kames had followed Montesquieu’s way of deploying a comparative study of law in relation to human nature in order to “deduce the causes of those differences in laws, customs, and institutions, which, previously, had been remarked merely as isolated and uninstructive facts.”11 Kames, though, had already made a historical turn in his thinking about law in Essays upon Several Subjects in Law and Essays on Several Subjects Concerning British Antiquities, both published before De l’Esprit des Lois. Furthermore, he could be seen as rather self-consciously refusing to acknowledge any significance for Montesquieu in the writing of Historical Law-Tracts. By 1758 the intellectual life of Scotland was more or less saturated by Montesquieu.12 When John Dalrymple published An Essay towards a General History of Feudal Property in 1757, he made no bones about the influence upon
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his book of “the greatest genius of our age.” Montesquieu was quoted on the title page, and if Kames “directed” Dalrymple’s thoughts in the Essay, as Dalrymple wrote in the dedication to him, those thoughts were later revised by Montesquieu himself. In the Preface, Montesquieu is said to have been one of the first to have “suggested … that it was possible to unite philosophy and history with jurisprudence, and to write even upon a subject of law like to a scholar and a gentleman.”13 Books 30 and 31 of De l’Esprit des Lois are then cited repeatedly in Dalrymple’s “History of the Introduction of the Feudal System into Great Britain.” In Historical Law-Tracts, by contrast, there is not a single mention of Montesquieu or of De l’Esprit des Lois. In the Preface, the authority cited “in order to recommend the history of law” is, of all people, Bolingbroke—an author, as Kames himself says, “in whose voluminous writings not many things deserve to be copied” (viii).
Kames certainly read Montesquieu and admired him greatly. In his magnum opus Sketches of the History of Man, published in 1774, Kames describes the author of De l’Esprit des Lois as “the greatest genius of the present age.”14 The remark is made in the context of a discussion of manners and their causes. This is significant because on this topic Kames disagrees with Montesquieu profoundly, and at great length. Like Hume, Kames found the case made for the influence of climate made in Book 14 of De l’Esprit des Lois quite unpersuasive. Montesquieu may have been, as Kames says elsewhere in the Sketches, “a judicious writer, to whom every one listens with delight,”15 but this did not mean that everyone, least of all Kames himself, agreed with everything that Montesquieu said. The majority of the references made to Montesquieu in Sketches of the History of Man are critical in tone. So the greatness of Montesquieu’s genius was not, for Kames, a matter of his always having been right.
In one important respect, even so, the agenda of Historical Law-Tracts is notably similar to that of Montesquieu. In its treatment of criminal law,
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De l’Esprit des Lois, before it is anything else, is a plea for moderation and the relaxation of senselessly severe regimes of punishment. The rigor of punishments is argued to vary in direct proportion to the liberty allowed by a state’s form of government. “Severity in penalties suits despotic government, whose principle is terror,” Montesquieu observes, “better than monarchies and republics, which have honor and virtue for their spring.”16 Even in a despotism, however, it is possible for penalties to be too severe, as is shown by the case of Japan, where punishments are so excessive that, as Montesquieu puts it, “one is often obliged to prefer impunity.”17 In a despotism there is only one judge, the despot himself. It is a mark of the freedom of a republic, in Rome and, Montesquieu adds, “in many other cities,” that citizens are permitted to accuse one another, for it is in the spirit of a republic, “where each citizen should have boundless zeal for public good, where it is assumed that each citizen has all the rights of the home land in his hands.”18 Between these two extremes lies what is appropriate in a monarchy, where citizens cannot be supposed to have that kind of zeal for the public good and where it is a danger that prosecutions might be attempted merely in order to please the prince. “At present we have an admirable law,” Montesquieu writes; “it wants the prince, who is established