Front Page Titles (by Subject) CHAPTER XVII: Of the Damage done by an Injury, and of the Obligation thence arising. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XVII: Of the Damage done by an Injury, and of the Obligation thence arising. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of the Damage done by an Injury, and of the Obligation thence arising.
I.That an Injury obliges us to repair the Damage.I. We have already shewn, that a Man may have a Right to a Thing three several ways, either by Contract, by an Injury done him, or by Law. Of Contracts we have fully treated. Let us now come to that Right, which arises by the Law of Nature from an Injury received. We here call any Fault1 <370> or Trespass, whether of Commission or Omission, that is contrary to a Man’s Duty, either in respect of his common Humanity, or of a certain particular Quality,2 an Injury.3 From such a Fault or Trespass there arises an Obligation by the Law of Nature to make Reparation for the Damage, if any be done.
II.Damage is that which is contrary to a Man’s Right strictly so called.II.1 The Word Damnum, Damage, probably derived from demo to take away, is τὸ ἔλαττον, when a Man has less than his Right; whether that Right be merely from Nature, or some super-added human Act, such as the Establishment of Property, Contract, or Law. A Man’s Life is his own by Nature (not indeed to destroy, but to preserve it) and so is his Body, his Limbs, his Reputation, his Honour, and his Actions. As to what belongs to every one in Consequence of the Establishment of Property, or by Vertue of any Agreement, we have shewn above, both in Regard to the Things which thus become ours, and in Regard to the Right which we thus acquire over the Actions of others. Every one has likewise certain Rights, wherewith he is invested by some Law; because the Law has an equal or greater Power over the Persons and Estates of those who are subject to it, than any private Man has over himself,2 and what belongs to him. So an Orphan has a Right to require his Guardian to take strict Care of his Affairs,3 the same may the State require of a Magistrate, and not the State only, but any private Member of it, as often as the Law authorises him, either expresly, or by plain Consequence.4
III.A Fitness for a Thing is carefully to be distinguished from a Right strictly so called.III. 1. But from a mere Aptitude or Fitness, which is improperly called a Right, and belongs to attributive Justice, arises no true Property, and consequently no Obligation to make Restitution; because a Man cannot call that his own, which he is only capable of, or fit for. For, as Aristotle observes, He does not transgress the Rules of Justice, who out of Covetousness refuses to relieve a poor Man with his Riches.1 And this, says Cicero, in his Oration for Cn. Plancius, is the Privilege of free States, that by their Vote they can give or take from any Man what they please.2 And yet he presently after subjoins, that it sometimes happens, that the People do what they will, not what they ought, the Word ought being taken in a larger Sense.3
2. But we here must take care that we do not confound Things of a different Kind. For he, to whom the Power of making Magistrates is committed, is bound<371> to the Commonwealth to make choice of such a Person as is fit for the Office; and the Commonwealth has properly a Right to require this of him. Wherefore if the Commonwealth shall by his bad Choice suffer any Damage, he is obliged to make it good. So likewise any Citizen that is not unqualified, although he have no proper Right to a Place or Office, yet the Right of being a Candidate truly belongs to him. And if he be hindred, either by Force or Fraud, from exercising this Right, he may require Satisfaction, not according to the full Value of the Place, but the uncertain Damage he sustained there by. He has the same Right to sue for Satisfaction to whom a Testator would have left a Legacy, but by Force or Fraud was hindered. For to be qualified to receive a Legacy, is a kind of a Right, and consequently, to deprive the Testator of his Liberty of bequeathing it, is an Injury.
IV.That Damage is to be extended even to the Fruits or Increase of any Thing.IV. A Man is understood to have less than is due, and consequently to suffer Damage, not only in the Thing itself, but in its genuine Fruits, whether they be gathered or not, if he should otherwise have gathered them, deducting the necessary Expences of improving the Thing and gathering the Fruits, from the Rule that forbids us to enrich ourselves by another Man’s Loss.
V.And also to the ceasing of that Increase.V. But the Hopes also of the Gain or Increase are to be computed, not as high as if it was already made, but according to the nearness of our Hopes of obtaining it, as for Instance, in the Case of a sown Field which has been ravaged, the Reparation of the Injury must be in Proportion to the greater or less Probability there was of a good Harvest.1
VI.Damage occasioned by doing what we ought not ; Primarily.VI. Besides the Person that doth the Injury himself, there are others also who may be responsible for it, either by doing what they ought not, or not doing what they ought to have done. By doing what they ought not to have done, Primarily, or Secondarily. Primarily, as he who commands it to be done, he who gives the necessary Consent for doing it, he who assists in the Action, he who protects him that committed it, or becomes in any other manner a Party in doing the Injury.1
VII.And Secondarily.VII. Secondarily, He that advises the doing it,1 or2 commends and flatters him who does it. For what Difference is there, saith Cicero, Philip. II.3between the Man that persuades us to do a Thing, and him that approves of it, when done?
VIII.Also by not doing what we ought: Primarily.VIII. By not doing what he ought, a Man is likewise bound to make Reparation, primarily, or secondarily. Primarily, when by his Station or Office he ought to hinder the doing it, by giving his Commands to the contrary,1 or to succour him that has the Wrong done him, and does it not; such a one is called by the Chaldee Paraphrast סער a Strengthner of Wickedness.<372>
IX.And secondarily.IX. Secondarily, He that doth not dissuade when he ought, or conceals the Fact when he ought to have discovered it. In all which Cases the Word ought, has Respect to that Right which is properly so called, and is the Object of expletive Justice, whether it arise from the Law, or from a certain Quality in the Person.1 For if it be due only by the Rules of Charity, the Omission of it is indeed a Fault, but not such an one as obliges one to make Reparation; which, as I have already said, arises only from Right properly so called.
X.What those must contribute towards the Act, who are bound to repair the Damage.X. It is likewise to be observed, that all these Men we have mentioned, lay themselves under this Obligation, only if they were the true Cause of the Damage done; that is, if they really contributed either to the Whole, or to any Part of it. For if he that did the Injury, would certainly have done it without their Act or Neglect (as it often happens in those of the second Order, and sometimes in those of the first) they are not bound to make Reparation. Which yet is not to be understood, as that, if others be not wanting to persuade or assist, those who have effectually advised and assisted, are not at all answerable, in Case he would not have done the Injury without their Assistance or Counsel. For those others too, if they had actually counselled or assisted, would have been bound to make Reparation.
XI.In what Order they are bound.XI. But those are principally bound, who by their Command, or by any other Means, have incited another to do an Injury: If there be none such, then he who committed the Fact; and after him the Rest, every one that contributed towards the Fact, is bound to make Reparation for the whole Damage,1 if the whole Fact proceeded from him, tho’ not from him alone.2
XII.This Obligation to be extended even to the consequent Damage.XII. He that is bound to make Reparation for the Fact,1 lies under the same Obligation2 in Regard to its Consequences.3 In one of Seneca’s Controversies this Question is handled in an Instance of a Plane-Tree set on Fire, whereby an House was burnt; where he gives us this as his Opinion upon it, Altho’ you were unwilling to have done Part of the Injury, yet are you bound to make Reparation for the Whole, as much as if you had intended it. For he ought to have been unwilling as to the Whole, that would excuse himself, because he did not design to do ill. Ariarathes, King of Cappadocia, having, through Wantonness, stopt up the Passage where the River Melas discharges itself into the Euphrates, the Damm broke down, and the Waters rushing with Violence, so swelled the Euphrates, that it swept away Part of the Cappadocian Lands, and did great Damage to the Galatians and Phrygians; whereupon, the Case being referred to the Romans, he was adjudged to pay 300 Talents Damage.4
XIII.An Instance in a Manslayer.XIII. Take these Instances that follow as Examples. He that kills a Man unjustly is bound to pay Physicians and Surgeons, if any be made Use of, and to make such Reparation to those whom the deceased Person was obliged in Duty to maintain, such as Parents, Wife, Children, as the Hope of that Maintenance (Regard being had to the Age of the Deceased) amounted to. Thus Hercules, having killed Iphitus, paid a Fine to his Children, in Order to obtain more easily the Expiation of his Crime. For as Michael the Ephesian well observes, upon Aristot. Nicom. 5. ἀλλὰ καὶ ὁ ϕονευθεὶς, &c. The Person that is killed has some Recompence made him, since what is paid to his Wife, his Children, or his Relations, is in some Measure paid to himself. We speak here of an unjust Manslayer, who had no<373> Right to commit that Violence which was the Cause of Death. Wherefore, when a Man may lawfully kill another, tho’ he be thereby guilty of a Breach of Charity, as he, who being assaulted by his Enemy, would not fly from him, but killed him in his own Defence, yet is he not bound to make Reparation. As for the Rest, the Life of a Freeman cannot be appraised, but that of a Slave, who might have been sold, may.
XIV.In one who maims another.XIV. He1 that maims another, is obliged, in like Manner, to pay for his Cure, and to make him Satisfaction for the Loss of his Limb, because he is hereby rendered incapable of getting so much by his Labour as he might otherwise have done. But as I said before of the Life, so here I say of the Limbs, of a Freeman, that they cannot be valued.2 The same may be said of false Imprisonment.
XV.In an Adulterer and Fornicator.XV. So an Adulterer and Adulteress are not only bound to free the Husband from the Expence of Keeping the Child, but to make the legitimate Children Reparation for what soever Damage they shall sustain, by any Share or Portion that Child shall claim in the Inheritance. He that either by Force or Fraud deflowers a Virgin, is bound to pay her so much as she is damaged in her Hopes of Marriage: Nay, moreover, if he obtained his Desires by promising her Marriage, he is bound to perform that Promise.
XVI.In a Thief, a Robber, and others.XVI. A Thief or Robber is bound to restore what he has taken away, together with its natural Increase, and to repair the Damage the Owner has sustained, as well in what he has ceased to gain, as in what he has positively lost. But if the Thing stolen or robbed be no more in Being, then is he to return the Value of it, not according to the highest, nor the lowest, but a moderate Computation.1 Among these we may also rank such as defraud their Prince of his lawful Taxes or Customs. In like Manner are those Men bound to make Reparation, who either by an unjust Sentence, by false Accusation, or false Testimony, have done their Neighbour an Injury.
XVII.In one who procures a Promise by Fraud or unjust Fear.XVII. As also he that procures a Contract or Promise by Force, Fraud, or unjust Terror, is bound to release the Person who made the Contract or Promise, from any Obligation of Performance;1 for such a Practice is a Breach of a double Right that belongs to everyone, not to be imposed upon or deceived, and not to be compelled; the one springing from the Nature of Contracts, the other from his natural Liberty or Freedom of Action. And in this Class we may insert those who will not do what by their Office they are obliged to do, without a Bribe.2
XVIII.What if by Fear that is accounted just by the Law of Nature?XVIII. But he that hath given just Cause,1 why he ought to be compelled by Force or Terror, must blame himself; for an involuntary Act, arising from a voluntary one, is accounted morally a voluntary one.2 <374>
XIX.What if by Fear accounted just by the Law of Nations?XIX. But as it is established by the Consent of Nations, that all Wars declared in Form, and carried on by the Authority of the supreme Powers on both Sides, shall be accounted lawful, as to the outward Effects or Consequences of them, (whereof we shall treat hereafter) so likewise is the Fear whereby one has been induced to do any Thing in such a War, so far to be accounted just, that if any Advantage be obtained, it cannot be required by the adverse Party. And in this Sense may be admitted the Distinction made by Cicero,1 between an Enemy in Form, with whom, says he, we have many Rights in common, that is, by the Consent of Nations, and Pirates, and Robbers. For if these extort any Thing from us by Fear we may require it, unless we bind ourselves by an Oath not to require it; but of an Enemy we cannot. Wherefore, what Polybius saith of the Carthaginians,2 that they had just Cause to enter into the second Punick War, because the Romans had declared War against them, and extorted from them the Island Sardinia, and a great Sum of Money, while they were engaged in Quelling a Sedition of some People they had taken into their Service, has indeed some Shew of Equity according to the Law of Nature, but is contrary to the Law of Nations, as shall be shewn elsewhere.
XX.How far the Civil Powers are bound for Damages done by their Subjects, where the Question is handled concerning Prizes taken at Sea from Allies, contrary to publick Command.XX. 1. Kings and Magistrates are bound to make Reparation, if they do not use such Means, as they may and ought,1 to prevent Robberies and Piracy. For Neglect of which the Scyrians2 were formerly condemned by the Amphictyones. I remember I was asked the Question, concerning a Case that happened3 when our States had granted Commissions to several Privateers, some of whom had made Prizes on our own Friends, and deserting their native Country, roved about upon the Seas, and would not return, tho’ recalled, whether the States were bound to make Reparation, either for employing such lawless Men, or not taking Bail or Security of them, that they should not exceed their Commission. To which I answered, that the States were no farther obliged, than to punish or deliver up the Delinquents, if they could be taken, and to make over to the Persons injured, a Right to the Goods of these Pirates: Inasmuch as the States were neither the Cause of this Depredation, nor had any Hand in it, but had expressly prohibited the injuring of our Friends. That they were not in any wise obliged to require Security, since they may, even without express Commissions, give all their Subjects free Liberty to take as many Prizes as they can from their Enemy, as was formerly done: Nor can such a Licence be accounted the Cause of this Injury done to our Friends, since private Men may, without any such Licence, equip Ships and put out to Sea: Nor could it be foreseen that these Men would prove Rogues; nor can we altogether avoid the employing of dishonest Men; for then it would be impossible to raise an Army.
2. Nor are Kings bound to make Reparation, if their Soldiers, either by Sea or Land, shall do their Allies any Damage, contrary to their Command; which is<375> proved by the Testimonies of4France and England. But if any one be bound to make Reparation for what his Minister or Servant does without his Fault, it is not according to the Law of Nations, which is the Point now in Question, but according to the Civil Law, and even that Rule of the Civil Law is not general; it regards only the Masters of Ships, and some others, for particular Reasons. And thus hath this Case been determined by the Judges of the supreme Court, against certain Pomeranians, and that according to Precedents of adjudged Cases of the like Nature two Ages before.
XXI.That by the Law of Nature no Man is bound to repair Damages done by his Beast or Vessel without his Fault.XXI. It is likewise to be observed, that it is by the Civil Law, that a Master is answerable for the Damage1 caused by his Slave or his Beast. For the Master that<376> is not in Fault, is not bound to make Reparation by the Law of Nature; no more than he, whose Ship, without his Fault, falls foul upon his Neighbour’s Ship and damages it. Altho’ by the Laws of many Nations, as by our own, such Damages are to be equally divided between them both, by Reason of the Difficulty of proving the Fault.
XXII.That we may do a Man Damage in his Reputation and Honour; and how this is to be repaired.XXII. But, as aforesaid, we may suffer Damage, even in our Honour and Reputation, as by Blows, ill Language, Curses, Calumnies, Scoffs, and such like. And in these, no less than in Thefts and other Crimes, the Wickedness of the Action is to be distinguished from the Effect it produces. This Punishment answers to the former, and the Reparation of Damage to the latter. The Reparation is made by confessing one’s Fault, by1 declaring the Innocence of the injured Person, by giving Marks of esteem for him, and the like; tho’ if the injured Person desire it, Reparation may be made for such an Offence by Money, that being the common Standard, whereby every Thing that is profitable may be measured.
[1 ]The Word Fault is here taken in a general Sense, which comprehends both Dishonesty and Imprudence.
[2. ]That is, not only on the Account of a certain Relation, which a Man has to others, or some particular Employment, but also by Vertue of every Engagement he enters into of his own Accord.
[3. ]Called by the Greeks, ἀμελίου δίκη, An Action of Neglect. See in Decretal. Tit. De injuria & damno dato, and D. ad L. Aquilam & Vicinas rubricas.Grotius.
[1 ]So Varro, Lib. V. Damnum from demtio an Abatement, when there is less made of a Thing than it stood one in. Others rather approve of its Derivation from the Greek δαπάνη an Expence, and will have it to be first Dapnum, afterwards Damnum, as ὕπνος Sopnus, Somnus. Nor is it any Absurdity to deduce it from the Greek δάμνω, which signifies βιάζω to offer Violence, or from ζημία damia, damnum, as regia, regnum.Grotius.
[2. ]See B. I. Chap. I. § 6.
[3. ]Thus, by the Roman Law, a Guardian is responsible, not only for Dishonesty, or gross Negligence, but also for what is termed a slight Fault, levis Culpa, that is, if he doth not do what a Master of a Family of moderate Prudence would have done. Cod. Lib. V. Tit. L I. Arbitrium Tutelae. Leg. VII.
[4. ]And consequently they may require Amends for the Damage done by the Magistrate by Want of Exactness in the Exercise of his Trust. Our Author here probably had his Eye on the Subsidiary Action allowed by the Roman Law to an Orphan against the Magistrates of the Town, who either had not assigned him a Guardian, when required so to do; or had not taken due Care, in the Choice, or required good Security. See the Title De Magistratibus conveniendis, Digest. Lib. XXVII. Tit. VIII. and Code, Lib. V. Tit. LXXV. But, commonly speaking, private Persons are obliged to bear the Loss, which happens by an Effect of the Negligence or even bad Conduct of the Magistrate, without having any Remedy at Law against the Magistrate, especially one of a very exalted Station. Not that, according to the inviolable Rules of natural Equity, any Magistrate is in Conscience excused making all Reparation in his Power for the Damage he has done private Persons, by a considerable Failure in the Execution of his Office, whatever Impunity the Laws may allow him in that Case. The Whole of the Matter is, that Magistrates being Men, we ought to make some Allowances on that Consideration; and consequently we are supposed to have before-hand cleared them of what happens by the Effect of a small Remissness, or such Negligence as human Frailty cannot always avoid, especially if, when they were guilty of it, there was no probable Reason for apprehending very bad Consequences, or at least that they were near.
[1 ]Ethic. Nicom. Lib. V. Cap. IV.
[2. ]Orat. pro Cn. Plancio, Cap. IV.
[1 ]Here the Author had in his Margin quoted a Law, which says, that if on making an Inventory of an Inheritance, it appears that the Deceased stood engaged to perform something under a Condition not performed at the Time of his Death, we are to place among his Debts, not all that he might one Day be obliged to pay, but the Value of the Expectation of the Performance of the Condition, which ought to determine the Quantity of that conditional Debt, which is as yet uncertain. Digest. Lib. XXXV. Tit. II. Ad. Leg. Falcid. Leg. LXXIII. § 2. See on this Law Cujas, Recitat. in Paul ad Edictum, Tom. V. Opp. p. 826, 827. Edit. Fabrott.
[1 ]In the Original we find aut qui alio modo in ipso crimine participat. I believe, says Mr. Barbeyrac, that the Author designed to write alio simili modo, tho’ all the Editions of this Work read as before. For he doth not pretend that these of the inferior Class have no Share in the Crime. The contrary appears from what he says in the tenth Paragraph. And in Reality, without supposing that, by Vertue of what will they become answerable for the Damage? He therefore designed to place in the first Class all such as have, by the prejudicial Action committed by another, an Influence like that of these whom he has mentioned. But he ought to have been more exact. See what I have said on this Subject in my Notes on the Duties of a Man and a Citizen, B. I. Chap. I. § 27. third and fourth Editions.
[1 ]That is, in such a Manner, that the Advice, Commendation or Flattery contribute something toward the determining him who commits the prejudicial Action.
[2. ]Totilas in his Oration to the Goths in Procopius, Gotthic. III. ὁ γὰρ ἐπαινέσας, &c. For he who praises the Person who does it, is himself, to be accounted the Author of the Fact. And Ulpian, Lib. I. C. de servo corrupto. Tho’ he would certainly have run away, or stolen something of himself; yet if upon discovering his Intentions to another, that other shall commend his Design, he is bound to make Satisfaction; for we ought not by our Commendations to encourage another to do Mischief. Grotius.
[3. ]Ammianus in his twenty seventh Book applies this Saying to Probus the Prefect. And by the Lombard Law, Lib. IV. Tit. IV. even the Adviser is a Party concerned in making up the Matter. See Rom. i. at the end, and the antient Doctors on that Place. Grotius.
[1 ]Nicetas Choniates. in his Michael Comnenus, ὁ ἐμπρησμὸς, &c. He is not only to be accounted an Incendiary, who sets Fire to his Neighbour’s House, but he also, who could have extinguished it, and would not.Grotius.
[1 ]From certain particular Relations, by Vertue of which a Man is obliged to prevent the Evil others may do; and much more so not to engage them to do it. Of this Sort are all such as have any Authority over others, or are concerned in directing them.
[1 ]Lex Longobard, Lib. I. Tit. IX. 5. Grotius.
[2. ]See this explained on the Chapter of Pufendorf, on the Subject, § 5.
[1 ]See Aquinas, prim. secund. quaest. XX. Art. V. and L. si servus servum, § si quis insulam, D. ad L. Aquiliam. Grotius.
[2. ]There is a Law which orders, that whoever shall fire a House, and the Fire takes a neighbouring House, is obliged to indemnify, not only the Proprietor of the first House, but also the Owner of the neighbouring House, and the Tenants of both, whose Goods are burnt. Digest. Lib. IX. Tit. II. Ad Leg. Aquiliam, Leg. XXVII. § 8.
[3. ]Excerpt. V. 5. Grotius.
[4. ]Strabo, Geograph. Lib. XII. p. 813. Edit. Amst. (539. Edit. Paris.)
[1 ]L. ult. D. de his qui eff. vel. des. The same was observed among the Hebrews.Baba Kama, Cap. VIII. § 1. and among the English and Danes; see a Treaty of theirs in the learned Pontanus’s Discourse of the Sea. Grotius.
[2. ]See the Law quoted in the preceding Note; and what is said on Pufendorf’s Chapter that answers to this, § 8. Note 2.
[1 ]See the Chapter of Pufendorf so often quoted, § 11.
[1 ]No Doubt he is bound to do this; but tho’ he should refuse to do it, the Promise would not therefore be more valid. The Author here reasons on a false Principle, as we have observed on Chap. XI. of this Book, § 7. where we refer to the Treatise of Pufendorf, where he is confuted.
[2. ]That is, they are obliged to return the Money if he who gave it demands it.
[1 ]That is, if he has not freely consented, as he ought to do, by Vertue of the Right which the Person had to oblige him to it. See Pufendorf, B. III. Chap. VI. § 11.
[2. ]The Author means, that a Constraint which a Man had a Right to employ on another, doth not hinder his Consent, tho’ forced, from passing for a free one; because he has given Occasion to the Constraint, by a voluntary Refusal. But his Thought is expressed in such a Manner as may lead the Reader into a Mistake; and I find that Mr. Vitriarius, in his Abridgment of our Author, published with the Title of Institutiones Juris Naturae & Gentium, Lib. II. Cap. XVII. § 14. explains this Passage, as if our Author designed to speak of an express or tacit Renunciation of the Right of requiring that no Injury be done us. Whereas he is only talking of the Validity of Agreements, or Promises, extorted by a just Constraint; as is evident from the Connection of this with the preceding Paragraph. Our Author’s Maxim, according to the Turn given it, better agrees with, and is by the Moralists actually applied to what Men do, in a Situation where they have not the free Use of Reason, but so as that they have voluntarily put themselves in that Situation. It is sufficient that we say, that in the Case before us, when a Man is reduced to the Necessity of employing Constraint, for obtaining a Thing which he had a strict Right to demand of us, such forced Consent is to be reckoned voluntary, because it ought to have been so. This Constraint has not the Mark which gives it a Power of making Engagements void; I mean Injustice in him who uses Violence or Menaces. But if he who is constrained voluntarily submitted to the Direction or Authority of the Person whom he obliges to constrain him, the free Determination which preceded the Refusal, in Consequence of which the Consent was extorted, still farther removes all that is odious, and contrary to Liberty in the Constraint. In short, he who then consented against his Will, has no more Reason to complain and retract, than a bad Paymaster would have, who is sentenced by the Court, or forced by Arms, to satisfy his Creditor, or promise to do it at a certain Time.
[1 ]De Offic. Lib. III. Cap. XXIX.
[2. ]See that Historian, Lib. III. Cap. XIII. &c.
[1 ]See Chap. XXI. of this Book, § 2, and B. III. Chap. XVII. § 2. Num. 6.
[2. ]These were some Merchants of Thessaly, who escaping from Prison, where they had been detained after they were stripped, cast the Inhabitants of Scyros before the Tribunal of the Amphictyons.Plutarch, in Vitâ Cimonis, Tom. I. p. 483. Edit. Wech.
[3. ]This, probably, was debated in the Assembly of the States of Holland and West-Friesland, when our Author was deputed thither, as Pensionary of Rotterdam.
[4. ]See too Constitut. Tom. III. Tit. II. in the Constitution of the Year 1543. Cap. XLIV. Grotius.
[1 ]See the Titles of the Digest. Si quadrupes pauperiem fecisse dicatur, Lib. IX. Tit. 1. & de noxalibus actionibus, Tit. IV. Pufendorf doth not agree with our author in this. In the sixth Paragraph of the Chapter that answers to this, he maintains, that according to the Law of Nature alone, a Master is answerable for the Damage done, even without any Fault of his own, by his Slaves and Beasts. In Regard to Slaves, I was always of Pufendorf’s Opinion; but as to Damage done by a Beast, I was not entirely satisfied with his Reasons, tho’ I have not yet testified my Dislike of them; for I still found some Perplexity from which I could not free myself, without allowing the Matter some Consideration when more at Leisure. I had some Years ago an Opportunity of doing this; and I am glad to do Justice to the Gentleman who gave it me. It is Mr. Daniel Pury, of Neufchatel, who at an Age when it is sufficient Commendation, that a Man has tolerably retained the Lessons of his Masters, let the World see that he could take out of his own Stock. Among his Observationes Juridicae, which he published, and defended, at Basil, in 1714, for taking his Degree of Licentiate in Law, we have one (VII. de noxâ Bestiae) in which declaring for the Opinion of Grotius, he confutes what is urged in Favour of the contrary Opinion. He, however, confines himself to what regards the Damage done by a Beast, on a Supposition, that the Decision of this Question implies the Decision of that relating to Slaves. As it is said, that the Establishment of Property could not be formed, so as to deprive a man of a right to indemnify himself in some Manner, for the Mischief Beasts may do us; he answers, First, That all human Establishments being subject to some Inconveniencies, that in Question might follow from the Establishment of the Right of Property, and the Establishment itself remain useful; because the Inconveniency resulting from it is much less considerable than those prevented by it. Secondly, That all that can be inferred from the Reason alledged, is, that the Reparation of Damage done by a Beast, ought to be made out of what the Master of the Beast would not have had without it; that is, out of the Overplus of what it cost him, and what it would bring him if sold. As for the other Reason, That the Reparation of the Damage is a Title infinitely more favourable than the Acquisition of Gain; it is answered, that if this Maxim has any Meaning not evidently false; it signifies, that in an Equality of Right, or in a disputable Point, the Advantage is to be allowed, rather to the Party which would suffer Damage, than to him who would gain. Now, granting this, nothing but what has been said would follow in the Case before us. If, on one Hand, the Person who has received Damage from a Beast, may require any Reparation, supposing there is wherewithal to make it; on the other Hand, the Master of the Beast ought not to indemnify him so as to suffer Damage himself: For, both as he is Master, and as he was very far from having any Hand in the Mischief, he has the same Title, and a Title of a longer standing, with him whom the Beast has injured. But, adds he, the Maxim on which the Argument must be built in this Case is false. For when the Right is either fairly disputable, or equal on both Sides, the Rules of Justice evidently require, either that the Thing in dispute be divided, or that the Affair be decided by Lots. This is the Purport of the Observations made by the Author I have quoted. For my Part I am of Opinion, that the present Question, concerning Damage done by a Slave, ought to be decided in a different Manner from that concerning Damage done by a Beast. First, Then, in Regard to Damage caused by a Beast, I think it is evident, that, according to the Law of Nature alone, and independently of Civil Laws, he who has received Damage from a Beast belonging to another Man, can require no Satisfaction, when the Owner of the Beast doth not, by his Fault, contribute to the Damage done; that he cannot, I say, demand any Reparation, even out of the Profits arising to the Owner from the Possession of his Beast. A Beast, as it is an Animal void of Reason, can do no Damage, properly so called. When it is said, that in the State of Nature, he who has received any Damage from a Beast, might have taken his Satisfaction on the Beast; this is only a figurative Way of speaking, and not very exact, which must be laid aside when we would give just and philosophical Ideas. I should as soon say, that when a Tree falls on a Man in a Forest, and wounds him, he might have taken his Satisfaction for the Damage by Cutting the Tree, by Burning it, or making some other Use of it. But Secondly, The Case is not the same in Regard to a Slave. This Slave is a Man, and as such, capable of doing Damage, properly so called; and consequently, subject to the Law of Nature, which orders Satisfaction for the Damage. The Obligation of repairing a Damage is a general Obligation, from which no Man can be excused in what State soever. The Persons concerned may indeed renounce their Right of demanding Satisfaction; but then the Renunciation must be perfectly clear, and in Case of a Doubt, it is natural to presume, that as no one can, by his own Authority, free himself from the Obligation of repairing the Damage he has done; so no one easily excuses others that Obligation, in Regard to himself. So that the Exception of Cases, where a Damage is done to another, is, and ought to be, tacitly implied in all human Establishments, when it doth not appear that any Abatement is made of that Obligation. Now it cannot be shewn, that the Establishment of Property of Goods implies this Dispensation; and there is the less Reason to presume it, as Slaves would be encouraged, and in some Measure privileged, to insult Men, if the Master was not obliged, either to repair the Damage done by them, or deliver them up to the Person injured. A Master when he buys, or otherwise acquires the Property of a Slave, might therefore, and ought, to reckon, that his Right does not extend so far as to deprive those who may be insulted by the Slave, of the Satisfaction they might have taken on his Person, in the State of Nature, and which they have not renounced. It is his Business to consider whether he is willing to accept of the Advantage arising from the Slave’s Service, together with the Burthens belonging to it. I could say much more in Confirmation of what I have here laid down; but what I have said is sufficient, especially in a Note, which is already long enough.
[1 ]See the Example of Vivian, in Cassiodorus, IV. 41. who was touched with Remorse for, and repented of an unjust Accusation. Grotius.