Historical Law-Tracts. Henry Home, Lord Kames
in proportion to the slightness of the connection. This difference is not the result of any peculiarity in the nature of the passion: it is occasioned by what is inherent in all sensible beings, that every one has the strongest sense of what touches itself. Thus a man hath a more lively sense of a kindness done to himself, than to his friend; and the passion of gratitude is in proportion. In the same manner, an injury done to myself, to my child, to my friend, makes agreater figure in my mind, than when done to others in whom I am less interested.
Every heinous transgression of the law of Nature raiseth indignation in all, and a keen desire to have the criminal brought to condign punishment. Slighter transgressions are less regarded. A slight injury done to a stranger, with whom we have no connection, raiseth our indignation, it is true, but so faintly as not to prompt any <7> revenge. The passion in this case, being quiescent, vanisheth in a moment. But a man’s resentment for an injury done to himself, or to one with whom he is connected, is an active passion, which is gratified by punishing the delinquent, in a measure corresponding to the injury. And many circumstances must concur before the passion be completely gratified. It is not completely gratified with the suffering of the criminal: The person injured must inflict the punishment, or at least direct it; and the criminal must be made sensible, not only that he is punished for his crime, but that the punishment proceeds from the person injured. When all these circumstances concur, and not otherwise, the passion is completely gratified; and commonly vanisheth as if it had never been. Racine
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understood the nature of this passion, and paints it with great accuracy in the following scene.
CLEONE.
Vous vous perdez, Madame. Et vous devez songer—
HERMIONE.
Que je me perde, ou non, je songe à me venger.
Je ne sai même encor, quoi qu’il m’ait pu promettre,
Sur d’autres que sur moi, si je dois m’en remettre.
Pyrrhus n’est pas coupable à ses yeux comme aux miens,
Et je tiendrois mes coups bien plus sûrs que les siens. <8>
Quel plaisir, de venger moi-même mon injure;
De retirer mon bras teint du sang du parjure;
Et pour rendre sa peine et mes plaisirs plus grands,
De cacher ma rivale à ses regards mourans!
Ah! si du-moins Oreste, en punissant son crime,
Lui laissoit le regret de mourir ma victime!
Va le trouver. Dis-lui qu’il aprenne à l’ingrat,
Qu’on l’immole à ma haine, et non pas à l’état.
Chére Cléone, cours. Ma vengeance est perdue,
S’il ignore, en mourant, que c’est moi qui le tue.
ANDROMAQUE, act. 4. sc. 4.3
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Injury, or voluntary wrong, is commonly the cause of resentment; we are taught, however, by experience, that sudden pain is sufficient sometimes to raise this passion, even where injury is not intended. If a man wound me by accident in a tender part, the sudden anguish, giving no time for reflection, provokes resentment, which is as suddenly exerted upon the involuntary cause. Treading upon a gouty toe, or breaking a favourite vase, may upon a warm temper produce this effect. The mind engrossed by bodily pain, or any pain which raises bad humour, demands an object for its resentment; and what object so ready as the person who was the occasion of the pain? that it was undesigned is never thought of. In the same manner even a stock or a stone becomes sometimes the object of resentment. Striking my foot by accident against a stone, a smart pain en-<9>sues: Resentment, suddenly enflamed, prompts me to bray the stone to pieces. The passion is still more irregular in a losing gamester, when he vents it on the cards and dice. All that can be said as an apology for such absurd fits of passion, is, that they are but momentary, and vanish upon the first reflection. And yet such indulgence was by the Athenians given to this irrational emotion, that if a man was killed by the fall of a stone, or other accident, the instrument of death was destroyed.* (1) Resentment raised <10> by
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voluntary wrong, which is a rational and useful passion, is in a very different condition. It subsists till the sense of the injury be done away, by punishment, atonement, or length of time.
But all the irregularities of this passion are not yet exhausted. It is still more savage and irrational, when, without distinguishing the innocent from the guilty, it is exerted against the relations of the criminal, and even against the brute creatures that belong to him. Such barbarity <11> will scarce find credit with those who have no knowledge of man but what is discovered by experience in a civilized society; and yet, in the history and laws of ancient nations, we find this savage practice, not only indulged without redress, but, what is still more astonishing, we find it authorised by positive laws. Thus, by an Athenian law, a man committing sacrilege, or betraying his country, was banished, with all his children;* and when a tyrant was killed, his children were also put to death.† By the law of Macedon(2), the punishment of treason was extended against the relations of the criminal.‡ By a Scythian law, when a criminal was punished with death,
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all his sons were put to death with him: His daughters only were saved from destruction.* In the laws of the Bavarians,† the use of women was forbidden to clergymen, “lest (as in the text) the people be destroyed for the crime of their pastor”: A very gross notion of divine punishment. And yet the Gre-<12>cians entertained the same notion; as appears from the Iliad, in the beginning:
Latona’s son a dire contagion spread,
And heap’d the camp with mountains of the dead,
The King of men his rev’rend priest defy’d,
And for the King’s offence the people died.4
Lucan, for a crime committed by the King, thought it not unjust to destroy all Egypt.‡ But it may appear still more surprising, that this savage and absurd practice continued very long in some parts of the Roman empire, though governed by laws remarkable for their equity. Of this the following statute of the Emperors Arcadius and Honorius|| is clear evidence.
Sancimus ibi esse poenam ubi et noxia est. Propinquos, notos, familiares, procul a calumnia submovemus, quos reos sceleris societas non facit. Nec enim adfinitas vel amicitia nefarium crimen admittunt. Peccata igitursuos teneant auctores: Nec ulterius progrediatur metus quam reperiatur delictum. Hoc singulis quibusque judicibus intimetur.5
At the same time, these very Emperors, however mild and rational with regard to others, talk a very different language upon a crime which affected
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themselves: After observing, that will and purpose alone, without any ouvert act, is treason, subjecting the guilty person to a capital punishment and forfeiture of <13> goods, they go on in the following words.
Filii vero ejus, quibus vitam Imperatoria specialiter lenitate concedimus, (paterno enim deberent perire supplicio, in quibus paterni, hoc est here-ditarii, criminis exempla metuuntur), a materna, vel avita, omnium etiam proximorum hereditate ac successione habeantur alieni: Testamentis extraneorum nihil capiant: Sint perpetuo egentes, et pauperes, infamia eos paterna semper comitetur, ad nullos prorsus honores, ad nulla sacramenta perveniant: Sint postremo tales, ut his, perpetua egestate fordentibus, sit et mors solatium, et vita supplicium.*6
Every one knows, that murder committed by a member of any tribe or clan, was resented, not only against the criminal and his relations, but against the whole tribe or clan: A species of resentment so common as to be distinguished by a peculiar name, that of deadly feud. So late as the days of King Edmond, a law was made in England, forbidding deadly feud,