Robbery and PiracySeptember 9, 2015
A man may be injured in his moveables three ways, by=
Theft is the clandestinely taking away the property of another. It does not naturally invite the resentment that urges capital punishment. For a long time. it was not punished with death.
By the old Roman law the thief was obliged to restore what he had taken, and to add to it as much more.
- If he stole a sheep he restored two.
There was, however, a peculiar distinction between the fur manifestus and fur nec manifestus.
- fur manifestus gives punishment for being caught in the act and demanded a quadruple repayment
- Barbarous nations punish crimes according to the degree of resentment they excite, and so being caught prompted severe punishment
- fur nec manifestus demanded only double the value of things stolen
They borrowed this from the Spartans who taught their youth to steal and hide well, as it improved them in that cunning which is necessary in war. However, they never encouraged the stealing the property of another.
In their feasts, nothing was prepared for their young men. They were expected to steal from the tables of their fathers what was sufficient for themselves, such as a crust of bread, but nothing else.
Since the 13th century, theft has been punished capitally.
- The vassals of great lords were continually invading neighbouring territories and carrying off booty.
When government came to be established, it naturally most severely punished those crimes that excited resentment.
The Emperor Barbarossa first made theft a capital offence.
- He was followed by all civilized nations
By the old Scotch law, theft by a landed gentleman was considered as treason because the gentry were considered as the abettors and assistants of thieves and vagrants
- Such a theft looked like an usurpation of sovereignty and so was looked on as treason.
By the English law, any theft below a shilling was punished with the pillory, and above that with death.
- In Scotland it requires a much greater sum.
Nothing is theft with us but what belongs to particular persons. The man who stole deer in a forest or pigeons at a distance from a pigeon-house could not be punished till by a late statute.
House-breaking was punished capitally even if nothing was stolen. Such punishments were necessary before, but are now too severe.
Government was then weak and could not punish crimes. It was obliged to interpose in those cases in which the interest of society was concerned.
But when it acquired more strength, it made punishments severe to restrict the licentiousness arising from lax discipline. Accordingly, the laws of the twelve tables made almost every crime capital.
In Europe after the custom of compensation went out, they punished everything as treason=
- theft in a landed man
- a servant killing his master
- a curate killing his bishop
- a husband killing his wife
These were all petty treason. Afterwards, only crimes respecting the state were considered as treason. Gradually, treason came to its proper extent.
Robbery puts a man to the greatest bodily fear and so it is subjected to the greatest punishment.
Nothing can save the robber, even though he should cover the injury by pretending to buy a man’s goods after he has forced him to sell them to him.
Piracy is punished still more severely. A man may be injured in his personal estate by fraud or forgery. The natural punishment of the dolus malus is not death, but some sort of ignominy such as the pillory.
Some frauds, however, on account of the facility and security with which they may be committed, and the loss which they occasion, are justly subjected to capital punishment.
For example, when an insured ship is cast away, it is difficult to prove that it was done by fraud. But if she were insured to the full value there is a great temptation to cast her away. Therefore the law made death the punishment in order to intimidate the merchant.
Should a ship be insured for her value at the port where she came from? Or at the port where she is supposed to go? It was determined that it should be at the port where she comes from.
- If a Glasgow merchant sends out a ship with £3,000 worth of goods for Virginia, they are worth more than £4000 when they arrive in Virginia
- If the merchant were allowed to insure it for £4,000, he would have a great temptation to make shipwreck of her.
He can expect no more than £3,000 while he is shipping his goods to Virginia. He may meet with bad debtors, and he can lose nothing by the insurers.
In the same way, it was anciently a capital offense to steal anything from the plough, as it was so much exposed.
In England, a bankrupt may have a discharge by surrendering himself and all his effects. But he can defraud his creditors if he does not give up all he has. And so this is punishable by death.
Forgery is also punished capitally. Nobody complains that this punishment is too severe, because when contracts sustain action property can never be secure unless the forging of false ones be restrained.
However, the forgery of every deed is not capital, but only the forgery of deeds payable to the bearer on demand, because any forgery of a deed regarding the conveyance of land may easily be discovered before any damage be done.
Perjury is not punished capitally.
There are several ways of acquiring personal rights, so there are several ways in which they expire.
- By payment of what is due by contract or quasi-contract, because the fulfilment of the obligation satisfies the other party.
- By discharge or acquittance, even though the debt be not paid. This also takes place with regard to crimes, for when the king or the injured person choose to drop prosecution or to give a pardon, the person is free.
- By prescription. If a debt be not claimed within a certain time the debtor is free.
This is very reasonable. If a debt be not claimed for a long time the negligence of the debtor is encouraged.
By the Scotch law, if he call for neither principal nor interest of a bond for forty years, it very justly prescribes. Nobody of common prudence would neglect any part of his affairs for forty years, if ever he intended to meddle with them again.
According to strict law, if the interest be demanded in the thirty-ninth year the capital does not prescribe. Crimes likewise prescribe, and it is reasonable that they should, whether they be punished from a sympathy with the resentment of the sufferer, or from public utility, or to satisfy the public. Resentment wears out in a few years, and a person who has behaved well for twenty years, the time fixed on by our law, cannot be very dangerous to the public.
Appeals by the English law prescribe in one year, but an indictment does not prescribe so soon, because the king prosecutes for public security and not to gratify private resentment, and therefore the law favours his claim. At any rate it would be unreasonable to prosecute a man for a crime committed forty years ago, because he may now be a quite different man from what he was then. Besides, the thing is quite forgotten, and the end of punishing and public example is entirely lost. Treason itself prescribes in a few years.
From a resentment in law, however, if sentence have actually passed upon a person, and he have made his escape, he may be executed on his former sentence= the escape is considered as a new crime.
However, this is not very natural, and if a man live quietly after his return he is seldom troubled. We had an instance of an earl who had been sentenced in 1715 and had returned to his native country and lived peaceably in it till the year 1745, when he again joined the rebels and was executed on his former sentence.
Dr. Cameron suffered in Scotland in the same manner. In every country, if a person return after twenty years he is not troubled; it would be thought invidious in the officers of justice to meddle with him.
Some general observations on the criminal law is all that remains on this subject.
Resentment seems best to account for the punishment of crimes. If a person fires a pistol down a street, though he do no harm, public utility requires that he should be punished;
but such crimes are by the laws of every country more slightly punished than if some mischief had ensued. The reason is plain. Resentment never rises to any great pitch unless some injury be actually done; some things that are in themselves criminal are not punished unless some bad consequence follow. A man meets with little resentment for riding an unruly horse in the market-place, but if he kill anybody, resentment is very high. For the same reason, deodands, though inanimate objects, are accounted execrable. In many cases the resentment falls upon the very member of the body which perpetrated the action. Resentment is on the whole a very indiscriminating principle, and pays little attention to the disposition of the mind.
Certain persons are not to be considered as subjects of punishment, such as idiots, madmen, and children. We are not so much shocked by an action done by a madman, as one done by another person. We think binding the only punishment adequate to their crimes.
These are all the injuries that a man can do to another man.
Having now considered man as a member of a state, as a member of a family, and as a man, we proceed to police, [the] second division of jurisprudence.