CHAPTER 17: On Damages Occasioned by Injury and the Obligation to Repair
On Damages occasioned by injury, and the obligation to repair them —
Every misdemeanor obliges the aggressor to repair the loss — By loss is
meant any thing repugnant to right strictly so called — Distinction
between fitness and strict right — Loss or diminution of possession
includes every injury done to the produce as well as the property itself —
Loss estimated from the time that gain ceases Injuries done by principals
— By accessories — Injuries done by the neglect of principal or of
secondary agents — What persons are implicated in those charges, and in
what degrees — The parties engaged answerable for all consequences —
The case where homicide or any other act of violence ensues — Case of
robbery — Or theft — Promises obtained through fraud or unjust fear
— In what cases the consequences are imputable to the suffering party
— How far the law of nations authorises states to take advantage of an
enemy's fear — How far sovereigns are answerable for any acts of violence
committed by their subjects — The case where subjects in violation of
their sovereign's permission and orders commit acts of piracy upon allied or
neutral states — No one answerable by the law of nature for the mischief
done by his cattle, his slaves, or his ship — Damages allowed for injuries
done to reputation or honour — What kind of reparation allowed.
I. IT HAS been said above that the rights due to us arise from three
sources, which are contract, injury and law. It is unnecessary here to dwell
upon the nature of contracts which has been already so fully discussed. The
next point therefore to which we proceed is an inquiry into the rights
resulting to us from injuries received. Here the name of crime or misdemeanor
is applied to every act of commission or neglect repugnant to the duties
required of all men, either from their common nature or particular calling. For
such offences naturally create an obligation to repair the loss or injury that
has been sustained.
II. By loss is meant a diminution of what any one possesses, whether
it be a right derived to him purely from the law of nature, or from the
addition of human authority, that is from the law of property, contract, or
civil law. God has given life to man, not to destroy, but to preserve it;
assigning to him for this purpose a right to the free enjoyment of personal
liberty, reputation, and the controul over his own actions. The manner, in
which property and contracts convey to any one a right to things, as well as to
the service of another, has been shewn in the preceding part of this treatise.
In the same manner from the law every man derives his peculiar right; because
the law has the same, if not greater power over persons and things than
individuals themselves have. Thus by the appointment of law, a ward has a right
to demand the strictest diligence of a guardian, the state of a magistrate, and
not only the state, but every subject has a right to require it; where the law
expressly declares or evidently implies that certain acts shall be performed.
But the bare circumstance of an action being fit or proper gives not the right
of POLITICAL justice to demand its performance, nor does the neglect of it
entitle the party suffering to any legal redress. Because it does not follow
that a thing must belong to a person because it is fit or beneficial for him.
Thus, as Aristotle says, there is no actual injustice, though it may be
illiberal to refuse assisting another with money. To the same purpose Cicero,
in his speech for Cneius Plancus, says, that giving their votes to whom they
please, or withholding them if they think proper, is the true characteristic of
a free people. He afterwards, indeed, corrects his assertion by adding, that
they may happen to do what they like, rather than what they ought to do, taking
the word OUGHT to signify propriety.
III. A precaution is necessary here, in order to avoid confounding
things of a different kind.
Now those who are entrusted with the power of appointing magistrates, are
bound, from motives of public good, to chuse the properest persons, and this is
what the state has a RIGHT to require of them. They are bound therefore to
repair any loss which the state may sustain by the choice of improper persons.
So any subject who is not disqualified, though he has no peculiar right to an
office, has an equal right with others to endeavour to obtain it. In the
exercise of which right, if, he is obstructed by violence or fraud, he may
recover damages, not to the full value of the office which he sought, but
according to the probable loss which he may reasonably be supposed to have
suffered. Similar to which is the right of a legatee, when a testator has been
prevented by fraud or violence from making a bequest. For the capability of
receiving a legacy is a kind of right, which to obstruct a testator from
conferring, is undoubtedly an injury.
IV. The loss or diminution of any one's possessions is not confined
to injuries done to the SUBSTANCE alone of the property, but includes every
thing affecting the produce of it, whether it has been gathered or not. If the,
owner himself had reaped it, the necessary expence of reaping, or of improving
the property to raise a produce, must also be taken into the account of his
loss, and form part of the damages. For it is an established maxim that no one
ought to derive benefit from the loss of another.
V. Damages are to be computed too, not according to any ACTUAL gain,
but according to the REASONABLE expectation of it. Which in the case of a
growing crop may be judged of by the general abundance or scarcity of that
VI. But besides the person immediately doing an injury, others may be
bound also to repair the losses of the suffering party. For as a person may be
guilty of offences by negligence as well as by the commission of certain acts,
so they may be done also by accessories, as well as principals. Now a principal
in any crime or offence is one, that urges to the commission of it, that gives
all possible consent, that aids, abets, or in any shape is a partner in the
perpetration of it.
VII. An accessory is one who gives his counsel, approbation, and
assent. For where is the difference, says Cicero, in his second Philippic,
between advising an act, and approving of it?
VIII. and IX. The obligation to repair the losses suffered by
negligence may be considered in a two-fold light. Firstly, when any person,
whose peculiar office it is, neglects either to forbid the commission of an
injury, or to assist the injured party. And secondly, when the person, who
ought to do it, either does not dissuade from the commission of an offence, or
passes over in silence, what he is bound to make known. In these cases, when it
is said that a person OUGHT to do, or to forbear doing certain actions, it is
meant that he is bound by that right, which strict justice requires, whether
that duty arises from law, or from the capacity, which the person bears. For
though it may be wrong to omit any duty enjoined by the law of charity, there
can be no redress for such omission, but every LEGAL REMEDY must be founded on
some PECULIAR RIGHT.
X. It is to be observed also that all the parties above mentioned, if
they have been the real occasion of loss to any one, or have abetted the person
doing him the injury, are so far implicated in the guilt, as to be liable to
full damages, or, at least, proportionably to the part they have taken. For it
may and often does happen that a crime would have been committed by an
offender, even without the aid of other principals or accessories. In which
case he alone is answerable. Yet neither principals nor accessories will be
allowed to plead as an excuse, that if they had not aided or abetted, others
would have been found to assist and encourage the perpetrator in the commission
of the act. Especially, if it appears that without such assistance from them
the crime would never have been committed. For those other imaginary abettors
would themselves have been answerable, if they had given their advice or aid.
XI. In the scale of implication the first degree applies to those,
who by their authority, or other means have compelled or urged any one to the
commission of an offence. On failure of these the perpetrator himself has the
greatest share of guilt, and next to him, others who have been concerned. In
short, all individuals, whose hands have been engaged in the perpetration, are
guilty, though they have not been the sole authors of the act.
XII. Now he who is answerable for an act, is answerable for all the
injurious consequences attending it. Seneca in one of his controversies,
treating upon this point, puts the case of a plane-tree set on fire, by which a
house was burnt, and he subjoins the following remark, "although the
mischief went further than was intended, yet the person doing it was answerable
for the WHOLE, as much, as if he had done it by design. For any one that puts
his defence upon the plea of UNINTENTIONAL INJURY, ought to have abstained from
all mischief whatsoever." When Ariarathes, king of Cappadocia had wantonly
obstructed the channel of the river Melas, which discharges itself into the
Euphrates, the swell of waters bursting the mounds, the Euphrates rose to such
a height, as to occasion excessive damage to the Cappadocians, the Galatians,
and the Phrygians. Upon which the decision of the matter being left to the
Romans, they imposed upon him a fine of three hundred talents.
XIII. XIV. XV. and XVI. But to proceed with
other instances of injury, which render the parties committing them liable to
repair the losses occasioned thereby. The case of excusable homicide may be
alleged as one, wherein the person, who has committed it, is bound to make
every reasonable compensation to the family, dependents, and connections of the
deceased party, in proportion to the loss, which they have sustained from his
death. As Michael the Ephesian in the fifth book of Aristotle's Ethics has
observed, that the compensation made to the parents, the wife or children of
the deceased is nearly the same as if it could be made to himself. The writer
is here speaking of excusable homicide, that is, when the person by whom it is
committed, does it not in the immediate discharge of some legal duty. Wherefore
if any one, in defending himself, has killed another from whom he might have
escaped, though he may have violated the law of charity, yet he has not
incurred the penalty of a capital offence.
Upon the same principle the person, who has maimed or mutilated another,
will be bound to make him a compensation, proportionably to the means of
subsistence which he is deprived of by such a calamity.
A thief or a robber is bound to restore what has been taken, and to return
it with all the improvements it may have acquired, or to make reparation to the
owner, in proportion to the gain, which the privation has prevented him from
making, or to the actual value of the thing itself. If the thing has been
irretrievably consumed, the estimation of damages must be made, according to a
medium between the highest and the lowest value.
To this class of offences and due reparation may be referred all frauds upon
the public revenue, all unjust decisions, or all false evidence, by which
states or individuals are injured.
XVII. Contracts, or promises obtained by fraud, violence or undue
fear entitle the injured party to full restitution. For perfect freedom from
fraud or compulsion, in all our dealings, is a RIGHT which we derive from
natural law and liberty.
With the same class of offenders we may rank all men in office, who are
unwilling to discharge their duty without a bribe.
XVIII. When a person has HIMSELF been the occasion of the fraud or
violence, the consequences are imputable to his own conduct. For where a
voluntary act gives rise to INVOLUNTARY consequences, those consequences,
considered in a moral light, are to be deemed the fruits growing out of the
exercise of a free will.
XIX. But to connect the preceding cases and arguments with public and
national concerns, it is necessary to observe, that it is a maxim introduced
and established by the consent of all nations that the wars which are declared
and conducted by the authority of the sovereign power on both sides are alone
entitled to the denomination of just wars: And the enemy has no right to demand
restitution for what the prosecution of such wars has reduced him to abandon
through fear. It is upon this principle we admit the distinction which Cicero
has made between an enemy, towards whom the consent and law of nations oblige
us to observe many common rights, and between robbers and pirates. For any
thing given up to pirates or robbers, through fear, is no lawful prize: but it
may be recovered, unless a solemn oath of renunciation has been taken. This is
not the case with the captures made in just war.
The justification which Polybius makes for the Carthaginians, in the second
Punic war, carries with it an appearance of equity, though it is not a question
immediately founded upon the law of nations. They alleged as a reason for their
making that war, that, when they were engaged in quelling a mutiny of their own
mercenaries, the Romans had declared war, seized upon Sardinia, and levied
contributions of money.
XX. Sovereign Princes and States are answerable for their neglect, if
they use not all the proper means within their power for suppressing piracy and
robbery. And on this account the Scyrians were formerly condemned by the
When some of the states of the united Provinces had, on a particular
occasion, granted commissions to many privateers, and those adventurers
plundered friends and enemies alike, and became general pirates, it was a
subject of great discussion, whether those states were justified in having made
use of the services of desperate and abandoned men, without exacting sufficient
security for their good conduct. At that time, it was maintained that they were
bound to nothing more, than to punish or deliver up the offenders, if they
could be found, and to see justice done by a forfeiture of their property. For
they themselves had neither authorised those UNJUST acts of plunder, nor shared
in the fruits of them. They had even strictly prohibited the privateers from
molesting the subjects of friendly powers. As to their taking securities, there
was no obligation to do that: for they had a right to grant a GENERAL
commission to all their subjects to seize upon the enemy's property: a thing,
which had frequently been done. Nor could that particular commission be
considered as an act of injustice against either allies or neutrals; since even
without such permission individuals might have fitted and sent out armed
vessels. The states could not foresee, nor consequently provide against the
misconduct of those adventurers, who had exceeded their commission; and if
nations were to decline using the assistance of wicked men, no army could ever
be collected. And it has been confirmed by the authority both of France and
England, that a sovereign cannot answer for every injury done to the subjects
of a friendly power by his naval or military forces; especially if it is plain
that they acted in violation of his orders.
But in what cases any one is released from being answerable for what is done
by his subordinate agents, is a point not so much for the law of nations, as
for the municipal law, and particularly the maritime code of each country to
decide. In a case similar to that alluded to, a decision of the supreme court
of judicature was made against the Pomeranians two centuries at least before.
XXI. It is the CIVIL law too, which makes an owner answerable for the
mischief or damage done by his slave, or by his cattle. For in the eye of
natural justice he is not to blame. So neither is the person, whose ship, by
running foul of another, has damaged it, though by the laws of many nations,
and of ours among the rest, the damages are usually divided between both
parties, owing to the difficulty of deciding, who was in fault.
XXII. Damages are allowed too for any injury done to our honour or
reputation, by assault, slander, or various other ways. In which, as well as in
theft and other crimes the nature of the offence is to be estimated by its
consequences. For the reparation in such cases answers to the penalty imposed
for crimes. And that reparation is made some times by acknowledging the injured
party's innocence; and some times by a compensation in money, which is a
standard value of all things.
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