Delinquency: Ex Dolo, Ex Culpa

The third kind of personal rights are ex delicto.

Delicts are of two kinds:

• they arise ex dolo when there is a blameable intention, or
• ex culpa when they are done through a culpable negligence.

Injury naturally excites the resentment of the spectator, and the punishment of the offender is reasonable as far as the indifferent spectator can go along with it. This is the natural measure of punishment.

Our approval of punishment is based on our sympathy with the sufferer

People say that we initially approve of punishment for the sake of public utility. In reality, the real principle is our sympathy with the sufferer’s resentment.

English wool was thought as the source of public opulence. Exporting it was made into a capital crime.

Yet though wool was exported as formerly and men were convinced that the practice was pernicious, no jury, no evidence, could be got against the offenders.

The exportation of wool is naturally not a crime. , and men could not be brought to consider it as punishable with death.

In the same way, we approve of the execution of a sentinel who has left his post because the resulting injury might be very great. However, we can never approve of the same for a thief or a robber.

Resentment prompts us to punishment and also the manner of punishment.

Our resentment is not gratified unless the offender be punished for the particular offence done ourselves, and unless he be made sensible that it is for that action.

A crime is always the violation of some right, natural or acquired, real or personal. The non-performance of a contract indeed is not a crime, unless it be through some fraudulent intention.

The greatest crime that can be done against any person is murder, of which the natural punishment is death, not as a compensation, but as a reasonable retaliation.

In every civilized nation death has been the punishment of the murderer, but in barbarous nations a pecuniary compensation was accepted of, because then government was weak, and durst not meddle in the quarrels of individuals unless in the way of mediation.

In the age of hunters, a man of superior influence could only persuade the parties to an agreement.

• When one man killed another, the whole society met and advised the one party to give, and the other to take, a compensation.

In America, when one member of a family kills another, the society does not intermeddle with them, as this cannot hurt the peace of the society. they only take notice of it when one family attacks another. It was long before the government could call a man before them and tell him what he must do, because it was long before people would submit to such absolute authority.

In the laws of all nations we have the remains of this ancient state of weakness. When government became more powerful, the murderer was not only obliged to make a compensation to the relations of the slain, but likewise to the public, who were put to the trouble of lending him their protection, on that occasion, against the revenge of those who were concerned.

This was the state of criminal law among the Germans at the declension of the Roman Empire. The Germans were much farther advanced than the Americans at this day. Though they seldom punished with death, yet they seemed to make the punishment in some measure proportioned to the crime.

A price was set on every person according to his station.

There was one price paid for killing the king, and another for killing a slave. The compensation was proportioned to the dignity of the person and of his relations. What was paid to the prince for interposition was increased and diminished in the same proportion. It was a higher fine to kill a man belonging to a lord than one belonging to a little baron. To disturb the king’s peace subjected to a greater fine than to disturb the peace of a baron or lord. If the injurer refused to pay the compensation he was left to the resentment of the injured, and if he was not able to pay it, he was obliged to implore the assistance of his friends.

As the compensation was not adequate to the offence, the government, after it acquired strength, took this additional compensation to itself as the price of the offender’s freedom.

From this the sovereign acquired the right of pardoning criminals, for naturally he has no more right to pardon a crime than to discharge an unpaid debt.

Anciently a crime was considered in two lights, as committed against the family injured and against the peace. The government had the exclusive right of punishing those who had disturbed the peace and killed any of the king’s vassals.

The compensation to the government was afterwards changed into a capital punishment. After the king’s pardon, the offender was free, and the relation had no right to pursue him. In England the offender can be punished for the relation as well as for the king.

When an appeal is made to the king, he cannot pardon, but appeals are seldom or never used, as it is difficult to bring them about. If a man was murdered, nobody but the wife could pursue for an appeal, or, if she was accessory, the legal [139] heir. Any mistake in the process, such as a word wrong spelled, stopped the procedure, for the statute of amendment, which permitted courts to overlook errors, did not extend to appeals. Appeals in former times were often made in cases of maiming, hurting, &c.

There are several kinds of murder by the English law.

• The word originally signified stealth, as the crime was usually committed in private.
• Afterwards felonious killing of every kind was called murder, and compensation made for it accordingly.

Murder arises either from malice prepense, or from sudden provocation, or from chanceper infortunium. Of these the first alone is properly called murder, the second is manslaughter, and the last chance medley, which is often excusable and often justifiable.

Murder committed se defendendo is when two persons quarrel, and the one is obliged to kill the other for his own safety. This is excusable, not justifiable homicide.