Historical Law-Tracts. Henry Home, Lord Kames
In the tract “Criminal Law” Kames makes the same case for the need for a public prosecutor “[i]n modern governments” (60). This is a necessary restraint on the passion of private resentment, which is the origin of all criminal law, but which is admitted as the guiding principle of punishment only among savages. The public prosecutor, who should have no personal stake in any legal process, can be supposed to have only the public good in view in his determinations of appropriate punishment. It may well have been the case for the distinction of punishment from revenge that prompted Bentham to declare that
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“A very ingenious and instructive view of the progress of nations, from the least perfect states of political union to that highly perfect state of it in which we live, may be found in Lord Kaims’s Historical Law Tracts.”20 The point here, though, is not that Montesquieu should be supposed to have been an influence on Kames. Rather, both were part of a larger, pan-European, movement for the reform and modernization of criminal law.21
In Historical Law-Tracts Kames gives full expression to a long-standing antipathy to the feudal system. In the aftermath of the Jacobite rebellion of 1745 one key feudal form, the “regality,” or hereditary jurisdiction, was completely and finally abolished. In Tract VI Kames described the process whereby the regalities had in fact already, and naturally, ceded power as regards both civil and criminal matters to centralized and professional courts. This meant that, in truth, the Hereditable Jurisdictions Act of 1746 was “no harsh measure” (222). It is worth remembering that in a letter to Montesquieu of April 1749, Hume pointed to this act as proof of the truth of Montesquieu’s “novel and striking” remark that “In order to favour liberty, the English have removed all the intermediate powers that formed their monarchy. They are quite right to preserve that liberty; if they were to lose it, they would be one of the most enslaved peoples on earth.”22 “The consequences that you predict would certainly take place,” Hume wrote, “if there were a revolution in our government”—if, in other words, Britain’s monarchy were to take a despotic turn.23 Adam Ferguson shared Hume’s concern about the dangers inherent in the stripping away in Britain of the intermediate powers that, on Montesquieu’s analysis of monarchy, provided the surest protection of the individual from the power of the crown.24 So did Dalrymple. Kames did not. He can have had no sympathy for the implicit case made by Montesquieu in Books 29, 31, and 32 of De l’Esprit des Lois for the need, even in a modern monarchy, for the
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preservation of a traditional, which is to say feudal, balance of power between the king and the other powers of the state. Kames might have agreed, instead, with Smith’s assertions in his lectures on jurisprudence that, under feudalism, “the nobility are the greatest opposers and oppressors of liberty that we can imagine,” and that “[t]hey hurt the liberty of the people even more than an absolute monarch.”25
Wherever he saw the continuing presence of the spirit of feudalism in Scottish law, Kames saw something to be reformed. The feudal system, he writes in the tract on property, “was a violent and unnatural system, which could not be long supported in contradiction to love of independence and property, the most steady and industrious of all human appetites” (141). But the spirit of feudalism had penetrated deep into Scottish property law, in ways that were often only apparent to the judge whose business it was to decide hard cases concerning land and the various kinds of rights pertaining to it. Through the process of the normalization of the ownership and inheritance of land, the substance of feudal law might have been reduced to nothing. Yet the forms remained in place. For example, a purchaser of land, as Kames puts it in the tract on “Securities upon land for payment of debt,” “contrary to the nature of the transaction, was metamorphosed into a vassal,” and so was subjected to a variety of duties and fees (170). “When the substantial part of the Feudal law has thus vanished,” Kames observes, “it is dismal to lie still under the oppression of its forms, which occasion great trouble and expence in the transmission of land-property” (171). In several tracts Kames mounted a sustained attack on ways in which the continuing influence of feudal forms upon the law of inheritance in Scotland made it difficult, sometimes to the point of impossibility, for creditors to extract repayment of loans from the heirs of debtors. The spirit of feudalism was incompatible with an owner of land using that land as a means of raising loans, and thus the preservation of feudal legal forms was incompatible with one of the driving forces of a commercial society. It made borrowing more risky than it needed to be, and more expensive. There was reason to hope, now that the benefits of easy borrowing and low
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interest rates were obvious, that the dead hand of feudal forms would be felt less and less in legal disputes between debtors and creditors, and in the decisions of the Court of Session in particular. And yet, astonishingly, the great landowners had managed to arrest this natural process, with the passing in 1685 of a statute enshrining in law the right of entail.
Montesquieu’s view was that entails and other forms of “substitution” were appropriate to a monarchy but not to a republic. They were a means of keeping property in families, and were thus a means of reinforcing the “dignity” of noble and his fief, on which, in turn, the dignity of the monarch depended. In a republic, by contrast, all possible measures should be taken to restore fortunes to equality by the division of inheritances. Substitutions, he noted, “hamper commerce.”26 This was also Kames’s principal objection to entails. The very idea of an owner of land determining the line of succession for generations to come had its origin in the rights of a feudal superior. It had no basis, Kames insisted, in common law. It was a perversion of the perfectly natural sentiment of ownership, in the form of an attempt to maintain ownership forever, even after the death of the immediate heir. “No moderate man can desire more than to have the free disposal of his goods during his life,” Kames argued, “and to name the persons who shall enjoy them after his death” (154–55). No one in ancient Greece or Rome had imagined the rights of property to extend any further. It is interesting to contrast Kames’s unequivocal opposition to entails with the position developed by Dalrymple in his pamphlet Considerations upon the Policy of Entails (1764). Having argued against statutory abolition of entails in his earlier book on feudal property, Dalrymple now made a positive case for their preservation, and did so in language that was redolent of Montesquieu’s description of moderate monarchy. “[T]hat state of despotism is, of all others, the most irretrievable,” he intoned, “where the antient families of a country, being divested of their estates, there is no rank in the State, except that of Prince and Tenant; terms which will soon be converted, if not in name, yet in effect, into those of Master and Slave.”27 It is tempting to suggest that, in the disagreement between Kames and
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Dalrymple about entails, we see a disagreement as to whether, in Montesquieu’s terms, Britain was fundamentally a republic or a monarchy. In truth, though, and needless to say, Kames was no republican. His criticism of feudal legal forms was grounded, rather, in a sober pragmatism about what Scotland needed to do to have a chance of improving itself and competing with England on more or less equal commercial terms.
“I am afraid of Kames’ Law Tracts,” Hume wrote to Adam Smith in April 1759. “A man might as well think of making a fine sauce by a mixture of wormwood and aloes, as an agreeable composition by joining metaphysics and Scottish law.”28 Despite the book’s merits, Hume continued, few people would take the trouble to read it. Hume seems to have been wrong about that. Historical Law-Tracts went through four editions (new and corrected editions were issued in 1761, in 1776, and, posthumously, in 1792), and the tracts on criminal law and property were translated into French in 1766.29 William Robertson reviewed it in glowing terms in The Critical Review. Kames, according to Robertson, showed that it was possible to write on law in a more rational and instructive manner than had usually been managed hitherto. “[T]hough researches of this kind be, necessarily, intricate and profound,” Robertson added, “our author writes with remarkable perspicuity, and in a vigorous and manly stile. A subject seemingly dry and abstruse becomes, in his hands, not only instructive but amusing.”30 Historical Law-Tracts was well received also by The Monthly Review, where, like Robertson,