fon of another goods of any value, and put-: ing him in fear, is robbery. However, if the: value were to enter into confideration, that would not avail the profecutors; for the gun. was very valuable. But the value does not at all enter into confideration, for this, among other reasons, that the value of a fubject depends upon the opinion and affection of the proprietor'; and this holds in all forts of property +, in immoveables, moveables, and animals, for which the proprietor may have, and commonly actually has, an infinite greater value than indifferent perfons. This is called the pretium. affectionis, and takes its rise from the association of ideas which has a great effect upon the human mind. Hence a man has a pretium affectionis for the farm in which he was born, or has cultivated himself. In the fame way a man has a pretium affectionis for an animal he has bred up and cherished. This is beautifully illuftrated in Nathan's parable to David He came unto ‡: him, and faid unto him, There were two men in one city, the one rich and the other poor. The rich man had exceeding many flocks and herds, but the poor man had nothing fave one ewe-lamb, which he had • bought and nourished up, and it grew up * See Locke's Effay, Book 2. c. 83. ‡ 2 Sam. ch. xii. ver. 1. et feq. • toge together with him and his children; it did B eat of his own meat, and drank of his own cup, and lay in his bosom, and was unto him as a daughter: and there came a tra• yeller unto the rich man, and he spared to take of his own flock and of his own herd to dress for the wayfaring man that was come unto him; but took the poor man's • lamb and dreffed it for the man that was • come to him. And David's anger was greatly kindled against the man; and he faid to Nathan, As the Lord liveth, the man that hath done this thing shall furely • die. This is a decifion of a judge after God's own heart, which proves that the value is immaterial; and if that judge thought it was just to punish the rich man with death, after he had taken away the lamb, he also must have thought it just in the poor man to have refifted the rich man, even to the last extremity, in defence of the lamb. And even for trifling moveables men have the fame pretium affectionis. There are few perfons who have not had in their poffeffion, fome time or other, moveables which to them -were of inestimable value from the affociation of ideas, though to others they would appear trifling, fuch as a ring, a cane, &c. This feeling was well understood by an author justly celebrated for his knowledge of human nature; nature; and upon it one of his most masterly performances is founded, the catastrophe being accomplished by the lofs of a handker chief. He introduces a husband giving his wife a handkerchief, with this folemn inftruction: Make it a darling like your precious eye; The panel had the fame feeling and pretium affectionis for his gun, which was a valuable one and an old companion; and the circumstance of his being an old foldier contributed much to make him determined rather to part with life than with his gun. Every foldier reckons it the greatest difgrace to have his arms taken from him: no wonder then the panel thought, with regard to his gun, that To lofe't or give't away were fuch perdition As to the argument, that the law ought not to allow killing in defence of property, because that may be recovered by legal process, there is nothing in it either. The legal remedy, in order to obtain restitution and reparation, must and cannot but be be extremely defective; unless the robber or trefpaffer please, it never can give restitution, except in the cafe of unmoveables, fuch as land or houfes; and even these the invader may damage irreparably, by destroying the planting on an eftate, the paintings and ornaments in a houfe, &c. but in moveables, after the poffeffion is taken away, the property. is for ever gone, unless the robber or trefpaffer pleases; for he may put them away or deftroy them; it is only in things called fungible, fuch as money, that reftitution can certainly be got. And, as to reparation by damages and costs, they are very seldom given to the full extent, and a pretium affectionis is never allowed *. • Sextus quoque Pedius ait, pretia rerum non ex affectione, nec utilitate fingulorum, fed communiter fungi. Itaque eum qui filium naturalem poffidet, non eo locupletiorem effe, quod eum plurimo, fi alius poffiderit redempturus fuit. Nec illum qui filium • alienum poffiderit tantum habere quanti eum patre vendere poffet. In lege enim aquilia confequimur et amififfe dicemur, quod ut confequi potuimus, aut erogare cogimur.'- -And, as to cofts, it is well known they are so taxed by all courts of juftice, that the party prevailing never gets all L. 33. pr. ff. ad leg. ad Aquil. that that he has difburfed in perfonal expences and other articles and hence an English fatyrift introduces a man faying, That he had been ruined by a decree which he had obtained in Chancery, with cofts.' From all which it is evident, that the law cannot give reftitution; fo that when a moveable is ravifhed from a man, all that remains with him is a claim at law for a thing of a different nature, viz. compenfation by a fum of money, which, for the most part, is inadequate. Befides, in a free country, the law is, and must be extremely tedious and expensive. In Turkey, it is believed, the panel might have recovered his gun, or the value of it, in a few hours, and at the expence of a few fhillings: in this country, it is perfectly clear, that Lord Eglinton might, and in all probability would, have put the panel to the trouble of a litigation for two years, and the expence of L. 200 fterling, before he got either gun or value: a procefs might have been brought for it, no doubt, before the sheriff, and might foon have been ended before that judge; but then it was removeable by advocation into the Court of Seffion, and from that court, by appeal, to the Houfe of Peers; and it is a moderate computation to allow but two years, and L. 200 fterling for the endurance and ex + Swift, pence |