Principles of Equity. Henry Home, Lord Kames

in Scotland. Decisions of the Court of Session had long been collected privately and circulated in manuscript, but it was not until the 1680s that any collection was put into print.² In the early eighteenth century, the Faculty of Advocates appointed a number of individuals to develop an official collection of decisions, and some of their work found its way into print. At the same time, unofficial collections which would contribute to the systematization of reporting were made by other lawyers,

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      including the young Henry Home. In 1728, he published a collection of Remarkable Decisions of the Court of Session from 1716 to 1728, in which he sought to illustrate new points of law which had developed since the publication of Lord Stair’s Institutions. In 1766, he published a further set of Remarkable Decisions, covering the years 1730 to 1752; and shortly before his death, another collection of Select Decisions appeared. More influential still was his work in assembling a dictionary of decisions, the first volume of which was published in 1741.³ In it, he gathered together and abridged material from eight printed and seventeen manuscript collections, arranging it in a way to illustrate particular principles. Kames’s two volumes were supplemented by two further volumes by Alexander Fraser Tytler published in 1770 and 1797. Together, these works laid the foundation for William Maxwell Morison’s definitive thirty-eight-volume Dictionary.

      By the time Principles of Equity was published, Kames had been on the bench for eight years. As a judge, he acquired the reputation of wanting to get through business as quickly as possible, to leave time for his other pursuits. He was not always popular, since he could be blunt or coarse, having a “fretfulness and liveliness in his expressions as an Ordinary, which did not suit with the gravity and dignity of a judge.”⁴ At the same time, if the nature of the case was such as to encourage metaphysical speculation, he could engage in subtle and abstract reasoning which might go over the heads of the audience. Kames was also sometimes unpopular with his colleagues for seeking to make innovations both in substantive law and procedure, in line with his view that law was mutable and susceptible to improvement with the progress of society. The tension is well captured in Boswell’s ditty:

      Alemoor the judgement as illegal blames,

       ’Tis equity, you bitch, replies my lord Kames.⁵

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      Kames on Legal Development

      Kames’s legal and philosophical thought developed together. His view of law was informed by his ideas on the nature of human development and the influence of the moral sense. In turn, some of these ideas were developed in his elaboration of legal doctrines, both in his reports and in his treatises. For instance, in his first work, Essays upon Several Subjects in Law, he explained that an examination of human nature could show that rules of prescription were not merely the creature of positive law, but derived from natural feelings. Mankind, he argued, had an affection for property, which “leads us to bestow Care in preserving, Labour and Industry in improving what we thus consider as our own.” This affection was “as much founded in Nature as that we bear to our Children, or any Affection whatever.” Rules of prescription, according to which rights to land could be lost and gained over time, thus derived from the fact that the feelings of affection one had for one’s property faded the more one was separated from it. Anyone who consulted “his own Heart about it” would find confirmation of this basis for prescriptive rights.⁶

      Kames’s theory of the moral sense, and its relation to law, was first set out in his Principles of Morality and Natural Religion. It was later restated in the preliminary discourse to the second edition of Principles of Equity and then included in the Sketches. According to his theory, the principles of morality—or the law of nature—were not to be found in abstract reason but in the facts of human nature. This nature “is made up of appetites and passions, which move us to action, and of the moral sense, by which these appetites and passions are governed.”⁷ Unlike animals, man was endued with a conscience “to check and control his principles of action, and to instruct him which of them he may indulge, and which of them he ought to restrain.”⁸

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      While Kames’s view of the moral sense built on the work of Shaftesbury and Hutcheson, he considered that these writers had not fully explored the nature of duties and justice in a way that would provide principles to guide human actions. In Kames’s view, the moral sense taught a distinction between duty and benevolence. The moral sense dictated—as a matter of fact confirmed by everyone’s experience—that actions directed at harming others were wrong and that people were consequently under a duty not to perform them. Equally, it taught that people were under a duty to be grateful to their benefactors and to perform their engagements. These “primary virtues” were essential to society: since society could not subsist without them, they “are objects of the foregoing peculiar sense, to take away all shadow of liberty, and to put us under a necessity of performance.” Kames argued, against Hume, that the sense of justice which taught these duties was naturally universal, not artificial as argued by his kinsman. Anyone who harmed another or invaded his property, or who failed to keep his positive promises, experienced remorse and felt that he merited punishment for breaching a duty. By contrast, the virtues of benevolence or generosity, which were not “so necessary to the support of society,” were regarded by the moral sense as “secondary.” They were a matter of choice rather than compulsion, and were “left upon the general footing of approbatory pleasure.”⁹ Against Shaftesbury, he argued that there was no principle of universal benevolence. While the principles of justice were enforced by effective natural sanctions, universal benevolence could not be made into a strict duty, since the limited abilities and capacities of man were unsuited to it. However, Kames also argued that benevolence could become a duty in certain circumstances. The stronger the connection between two parties, the greater was the impulse to benevolence. Where the connection was a close one—as between parent and child—benevolence could become a duty, since neglecting to act would be “attended with remorse and self-condemnation.”¹⁰ But the more distant the connection, the weaker the sense of duty.

      Kames also argued that the moral sense developed with the progress

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      of society. The law of nature was not stationary, but “must vary with the nature of man, and consequently refine gradually as human nature refines.”¹¹ The four-stage theory of human development played a prominent role in Kames’s views of both social and legal development.¹² He argued that in his original state, man was ruled more by his appetites and passions than by general principles which could be derived from the moral sense. Hunter-gatherer societies had only the most limited notion of property—that a man who caught prey could use it—and no notion of contracting. But since man was not designed to be an animal of prey, this precarious life was not suitable to his nature, and he progressed naturally to the pastoral, agricultural, and finally commercial stages of society, where the respect for property and fidelity to promises which were part of the moral sense could become more cultivated. At the same time, as societies progressed, the legal concepts of property and contract became ever more refined.

      With this social and moral advance, the number of duties enforced by law increased, as the boundary between duty and benevolence changed. Municipal law, he noted, was concerned only with whether a man transgressed the regulations necessary for the preservation of society; it was not concerned with whether or not he was virtuous. One reason for this was that municipal law had to be reducible to precise and clear rules, which could be applied in general. Only matters which could be reduced to rules could be regarded as duties which were enforced as a matter of justice. The duty to be benevolent could not usually be reduced to a rule, since the degree of benevolence called for depended too much on particular circumstances. Nonetheless, Kames argued, in some cases, the “duty of benevolence arising from certain peculiar connections among individuals” could be made into a precise rule. In such cases, “benevolence is also taken under the authority of the legislature, and enforced by rules passing commonly under the name of the law of equity.”¹³

      In the Principles of Equity, Kames aimed