FullReads

As the law has been sometimes administered, it lays us open to wounds, because it is imagined to have the power of healing. To punish fraud, when it is detected, is the proper art of vindictive justice; but to prevent frauds, and make punishment unnecessary, is the great employment of legislative wisdom. To permit intromission, and to punish fraud, is to make law no better than a pitfall. To tread upon the brink is safe; but to come a step further is destruction. But, surely, it is better to enclose the gulf, and hinder all access, than by encouraging us to advance a little, to entice us afterwards a little further, and let us perceive our folly only by our destruction.

As law supplies the weak with adventitious strength, it likewise enlightens the ignorant with extrinsick understanding. Law teaches us to know when we commit injury and when we suffer it. It fixes certain marks upon actions, by which we are admonished to do or to forbear them. “Qui sibi bene temperat in licitis,” says one of the fathers, “nunquam cadet in illicita:” he who never intromits at all, will never intromit with fraudulent intentions.

The relaxation of the law against vitious intromission has been very favourably represented by a great master of jurisprudence[1], whose words have been exhibited with unnecessary pomp, and seem to be considered as irresistibly decisive. The great moment of his authority makes it necessary to examine his position: ‘Some ages ago,’ says he, ‘before the ferocity of the inhabitants of this part of the island was subdued, the utmost severity of the civil law was necessary, to restrain individuals from plundering each other. Thus, the man who intermeddled irregularly with the moveables of a person deceased, was subjected to all the debts of the deceased, without limitation. This makes a branch of the law of Scotland, known by the name of vitious intromission: and so rigidly was this regulation applied in our courts of law, that the most trifling moveable abstracted mala fide, subjected the intermeddler to the foregoing consequences, which proved, in many instances, a most rigorous punishment. But this severity was necessary, in order to subdue the undisciplined nature of our people. It is extremely remarkable, that, in proportion to our improvement in manners, this regulation has been gradually softened, and applied by our sovereign court with a sparing hand.’

I find myself under the necessity of observing, that this learned and judicious writer has not accurately distinguished the deficiencies and demands of the different conditions of human life, which, from a degree of savageness and independence, in which all laws are vain, passes, or may pass, by innumerable gradations, to a state of reciprocal benignity, in which laws shall be no longer necessary. Men are first wild and unsocial, living each man to himself, taking from the weak, and losing to the strong. In their first coalitions of society, much of this original savageness is retained. Of general happiness, the product of general confidence, there is yet no thought. Men continue to prosecute their own advantages by the nearest way; and the utmost severity of the civil law is necessary to restrain individuals from plundering each other. The restraints then necessary, are restraints from plunder, from acts of publick violence, and undisguised oppression. The ferocity of our ancestors, as of all other nations, produced not fraud, but rapine. They had not yet learned to cheat, and attempted only to rob. As manners grow more polished, with the knowledge of good, men attain, likewise, dexterity in evil. Open rapine becomes less frequent, and violence gives way to cunning. Those who before invaded pastures and stormed houses, now begin to enrich themselves by unequal contracts and fraudulent intromissions.

It is not against the violence of ferocity, but the circumventions of deceit, that this law was framed; and, I am afraid, the increase of commerce, and the incessant struggle for riches, which commerce excites, give us no prospect of an end speedily to be expected of artifice and fraud. It, therefore, seems to be no very conclusive reasoning, which connects those two propositions:–‘the nation is become less ferocious, and, therefore, the laws against fraud and covin shall be relaxed.’