Principles of Equity, Kames makes frequent reference to the Roman Corpus Iuris Civilis (Body of Civil Law) compiled on the orders of Emperor Justinian between the years 530 and 534. Three principal works made up this body of law: the Institutes, the Code, and the Digest. Where Kames quotes or cites from these sources, I have given the modern form of citation, which is as follows:
| Inst | Institutes. References are given to the book, title (that is, chapter) and lex (that is, section). Thus, Inst. 2.23.1 refers to Justinian’s Institutes, book 2, title 23, lex 1. |
| C | Code. References are given to the book, title, and lex. Thus, C 8.34.3 refers to Justinian’s Code, book 8, title 34, lex 3. |
| D | Digest. References are given to the book, title, lex, and subsection of the lex. Thus D 9.2.29.3 refers to Justinian’s Digest, book 9, title 2, lex 29, and section 3. |
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| pr. | prooemium (preface). Many of the titles and leges have an introductory preface. Thus, D 9.2.2.pr. refers to the introductory preface to book 9, title 2, lex 2 of the Digest of Justinian. |
For quotations from the Digest of Justinian, I have relied on the translation in The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, ed. and trans. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985), and referred the reader to volume and page numbers in that edition, as well as giving the standard citation for the source. For translations of quotations from the Institutes, I have relied on the edition of Peter Birks and Grant McLeod: Justinian’s Institutes (London: Duckworth, 1987), and similarly given page references and standard citations. Other translations are my own.
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| APS | The Acts of the Parliament of Scotland, 12 vols., ed. T. Thomson and C. Innes (Edinburgh, 1814–75). |
| AS | The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553 to the 11th of July 1790 (Edinburgh: Elphinstone Balfour, 1790). |
| C | Codex Iustinianus (The Code of Justinian), ed. Paul Krueger (Berlin: Weidmann, 1877). |
| 1 Chancery Cases | Cases Argued and Decreed in the High Court of Chancery, 2nd ed. (London: Atkyns for Walthoe, 1707). |
| 2 Chancery Cases | The Second Part of Cases Argued and Decreed in the High Court of Chancery continued from the 30th Year of King Charles II to the 4th Year of King James II (London: Atkyns for Walthoe, 1701). |
| D | The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. and ed. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985). |
| Eq. Cas. Abr. | A General Abridgment of Cases in Equity, 2 vols., 4th ed. (London: Lintot, 1756). |
| Inst | Justinian’s Institutes, trans. and ed. Peter Birks and Grant McLeod (London: Duckworth, 1987). |
| Kames, Dictionary | (Kames, Henry Home, Lord), The Decisions of the Court of Session from its first institution to the present time. Abridged, and digested under proper heads in the form of a Dictionary, 2 vols. (Edinburgh: Richard Watkins, Alexander Kincaid and Robert Fleming, 1741). |
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| Kames, Remarkable Decisions i | (Kames, Henry Home, Lord), Remarkable Decisions of the Court of Session from 1716 to 1728 (2nd ed., Edinburgh: Bell & Bradfute, 1790, 1st ed. 1728). |
| Kames, Remarkable Decisions ii | (Kames, Henry Home, Lord), Remarkable Decisions of the Court of Session from 1730 to 1752 (2nd ed., Edinburgh: Bell & Bradfute, 1799, 1st ed. 1766). |
| Kames, Select Decisions | (Kames, Henry Home, Lord), Select Decisions of the Court of Session, from the year 1752 to the year 1768. Collected by a member of the Court (2nd ed., Edinburgh: Bell & Bradfute, 1799, 1st ed. 1780). |
| M | William Maxwell Morison, The Decisions of the Court of Session from its institution until the separation of the Court into two divisions in the year 1808, digested under proper heads in the form of a dictionary, 42 vols. (Edinburgh: Archibald Constable & Co., 1811). |
| Salkeld | William Salkeld, Reports of Cases Adjudg’d in the Court of King’s Bench (London: Nutt & Gosling for Walthoe, 1717). |
| Sid. | Thomas Siderfin, Les reports des divers special cases argue & adjudge en le Court del Bank le Roy, 2nd ed., 2 vols. (London: Nutt for Keble, Browne, Ward, Mears and Browne, 1714). |
| Vernon | Cases Argued and Adjudged in the High Court of Chancery Published from the Manuscripts of Thomas Vernon, 2 vols. (Dublin: Watts, 1726–29). |
| Watson | The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. Alan Watson et al., 4 vols., Philadelphia: University of Pennsylvania Press, 1985. |
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PRELIMINARY DISCOURSE BEING An Investigation of the Moral Laws of Society. *
The science of morality hath for its subject, human actions, with their effects; and its end or purpose is, to regulate these actions.
To act by instinct signifies, to act by blind impulse, without having any end in view. The brute creatures act generally by instinct: the instinct of hunger prompts them to eat, and of cold to take shelter, without considering what these actions may produce. The same must be the condition of infants: for infants are not capable of any consideration: they apply to the nipple, without foreseeing that this action will relieve them from hunger; and they cry when pained, without having any view of procuring relief. But as soon as our ripened faculties unfold to us the connection between our actions and their effects, then it is that we begin to act with an intention to produce certain effects; and our actions, in that case, are means employed to bring about the effects intended.
Intention and will, though generally reckoned synonymous terms, signify different operations of the mind: will is relative to the external action; for we never act without a will to act: intention is relative to the effect; for we act in order to bring about the effect intended. It is my intention, for example, to relieve a certain person from distress by giving money: as soon as I see that person, it is my will to deliver the money: the external act of delivery follows: and the person is relieved; which is the effect intended. <2>
Some effects proceed necessarily from the action. A wound is an effect
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necessarily connected with the action of stabbing
