that men generally bestow upon affairs, proportioned to their importance: if that degree were not sufficient to defend against a claim of reparation, individuals would be too much cramped in action; which would lead to indolence instead of activity: if a less degree were sufficient, there would be too great scope for rash or remiss conduct; which would prove the bane of society. These remarks concerning the good of society, coincide entirely with what the moral sense dictates, as above mentioned, that the man who acts with foresight of the probability of mischief, or acts rashly and incautiously without such foresight, ought to be liable for the consequences; but that the man who acts cautiously, without foreseeing
[print edition page lxxv]
or suspecting that any mischief will ensue, and who therefore is entirely innocent, ought not to be liable for the consequences.
And upon this subject I add the final cause of what is explained above, viz. That the moral sense requires from every man, not his own degree of vigilance and attention, which may be very small, but that which belongs to the common nature of the species. That this is a wise regulation, will appear upon considering, that were reparation to depend upon personal circumstances, there would be a necessity of inquiring into the characters of men, their education, their manner of living, and the extent of their understanding; which would render judges arbitrary, and such law-suits inextricable. But by assuming the common nature of the species as a standard, by which every man in conscience judges of his own actions, law-suits about reparation are rendered easy and expeditious.
NOTANDUM BENE10
Among the many divisions of human actions in the preliminary discourse, there is one all along supposed, but not brought out into a clear light. It is what follows: 1. Actions that we are bound to perform. 2. Actions that we perform in prosecution of our rights or privileges. 3. Actions that are entirely voluntary or arbitrary; such as are done for amusement, or from an impulse to act without having any end in view. Thus one leaps, runs, throws stone, merely to exert strength or activity; which therefore are in the strictest sense voluntary.
In the preliminary discourse, p. <lxii>. we have the following proposition, That the moral sense prohibits every action that may probably do mischief; and therefore, that if the probability of mischief be foreseen, or may be foreseen, the action is culpable or faulty. In stating this proposition no actions were in view but the last in the foregoing division; and it was an omission not to confine the proposition to these; for it holds not with respect to actions done in prosecution of our rights or privileges. Such actions are governed by a different principle, mentioned p. <41>, That the
[print edition page lxxvi]
probability of mischief, even foreseen, prohibits me not from following out my rights or privileges. And it is happily so ordered by nature. When we act merely for amusement, it is a salutary and just regulation, that we should be answerable for what harm we do that either is foreseen or may be foreseen. But our rights and privileges would be very little beneficial to us, were we put under the same restraint in making these effectual. What actions may be lawfully done in prosecuting our rights and privileges, are handled in book 1. part 1. chap 1. sect 1. What actions may be lawfully done without having in view to prosecute any right or privilege, are handled in the section immediately subsequent.
[print edition page 1]
IN TWO VOLUMES.
VOL. I.
EDINBURGH:
Printed for J. BELL, and W. CREECH, Edinburgh; and T. CADELL, London. MDCCLXXVIII.
[print edition page 2]
[print edition page 3]
An author, not more illustrious by birth than by genius, says, in a letter concerning enthusiasm, “That he had so much need of some considerable presence or company to raise his thoughts on any occasion, that when alone he endeavoured to supply that want by fancying some great man of superior genius, whose imagined presence might inspire him with more than what he felt at ordinary hours.”1 To judge from his Lordship’s writings, this receipt must be a good one. It naturally ought to be so; and I imagine that I have more than once felt its enlivening influence. With respect to the first edition of this treatise in particular, I can affirm with great truth, that a great man of superior genius was never out of my view: Will Lord Mansfield relish this passage—How would he have expressed it—were my constant questions.
But though by this means I commanded more vigour of mind, and a keener exertion of thought, than I am capable of at ordinary hours; yet I had not courage to mention this to his Lordship, nor to the world. The subject I had undertaken was new: I could not hope to avoid errors, perhaps gross ones; and the absurdity appeared glaring, of acknowledging a sort of inspiration in a performance that might not exhibit the least spark of it.
No trouble has been declined upon the present edition; and yet that the work, even in its improved state, deserves his Lordship’s patronage, I am far from being confident. But however that be, it is no longer in my power
[print edition page 4]
to conceal, that the ambition of gaining Lord Mansfield’s approbation has been my chief support in this work. Never to reveal that secret would be to border on ingratitude.
Will your Lordship permit me to subscribe myself, with heart-satisfaction,
Your zealous friend,
HENRY HOME
August 1766
[print edition page 5]
An author who exerts his talents and industry upon a new subject, without hope of assistance from others, is too apt to flatter himself; because he finds no other work of the kind to humble him by comparison. The attempt to digest equity into a regular system, was not only new, but difficult; and for these reasons, the author hopes he may be excused for not discovering more early several imperfections in the first edition of this book. These imperfections he the more regretted, because they concerned chiefly the arrangement, in which every mistake must be attended with some degree of obscurity. No labour has been spared to improve the present edition: and yet, after all his endeavours, the author dare not hope that every imperfection is cured: that the arrangement is considerably improved, is all that with assurance he can take upon him to say.
For an interim gratification of the reader’s curiosity before entering upon the work, a few particulars shall here be mentioned. The defects of common law seemed to the author so distinct from its excesses, that he thought it proper to handle these articles separately. But almost as soon as the printing was finished, the author observed that he had been obliged to handle the same subject in different parts of the book, or at least to refer from one part to another; which he holds to be an infallible mark of an unskilful distribution. This led him to reflect, that these defects and excesses proceed both of them equally from the very constitution of a court of common law, too limited in its power of doing justice; whence it appeared evident that they ought to be handled promiscuously as so
