Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow CHAPTER XV: Of Rights Arising from Damage Done, and the Rights of War. - Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy

Return to Title Page for Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy

Search this Title:

CHAPTER XV: Of Rights Arising from Damage Done, and the Rights of War. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

Edition used:

Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER XV

Of Rights Arising from Damage Done, and the Rights of War.

I. From the former principles ’tis plain, that each one is obliged to repair any damages he may have done to others, if they desire it. But cases often happen when a good man justly may, and ought to do, what may occasion some damages to others; if, for instance, some goods of his of incomparably greater value cannot be preserved, or some of the greatest evils threatening him or his friends be prevented, otherways than by doing what may occasion some small loss to others. He has a perfect right to act thus; and yet he always in such cases becomes liable to make good their losses sustained for his safety or that of persons dear to him. Since this is a sacred social principle of equity [Since common interest as well as a principle of equity requires], that “no man for his own advantage should impair the advantages of others; or if any necessity force him to it, that he make good their loss as soon as possible.”

The same is more manifest in damages done injuriously. Human <union and> society cannot be maintained unless men are obliged to compensate all such damages, <that therefore are rightly claimed by violence>. Laws prohibiting <all violence> and injuries would have no effect, if after they were done, the injurious could enjoy their gain with impunity.

Nay the safety of society further requires that the injust should be restrained from injuries by the terror of severe punishment; lest the good should be continually exposed as a prey <and a laughing-stock> to them. And therefor altho’ God and nature require of us good-will, clemency and lenity, even toward the evil, yet surely they require a superior degree of these affections toward <the innocent and> the good. And the injust may be restrained by violence and punishments, and obliged to compensate the injuries done and give security for their innocent behaviour for the future, without any malice or ill-will toward them; nay ’tis doing them rather a good office, to restrain them thus from further crimes.1

II. By damage is understood not only “the depriving men of their goods, and spoiling or detaining them injuriously; but any intercepting or preventing their natural or artificial profits; with all those inconveniencies which ensue upon the first wrongs; all gain prevented, as well as losses occasioned.”2

Whoever by himself or by others, whether by acting or omitting contrary to his duty [what he was obliged to by a perfect right], has occasioned any damage, which otherways would not have happened, may be deemed an author of the injury. Such as only rejoice in the injuries done and praise them, <and encourage them> may indeed shew {such} perverseness of temper {as deserves punishment}; but as it cannot be discerned whether the same injuries might not have deen done without such congratulations or applauses, men are not made liable to compensation on these accounts alone.3 Where an injury has been done by many in concert, they are bound to compensation jointly and severally.4 But if one has compensated the whole, the sufferer can demand nothing further on this account from the rest; but he who repaired the whole damage may oblige his partners to bear their shares with him. The case of punishments is quite different; for punishment may be justly inflicted on all for the common safety.

5 Among the authors of damage, he is deemed the principal, who having authority over others, commanded them to do it. He therefor is first to be called to account, if it can be done; if not, we may demand reparation from the rest; since he could not by any orders of his give them any immunity from this obligation. And tho’ the executors may be free from any guilt, having had the plea of necessity, in avoiding the far greater evils threatened them {if they had not obeyed orders} <by occasioning only lighter damage to others>; yet they are notwithstanding bound to make compensation: since their innocent neighbours must not suffer, to free them from the evils they were threatened with.

III. If one without any fault, by mere accident does damage to another; he is not strictly bound to repair it.6 Nay if one engaged in any important services to the community, in any dangerous emergence, where ’tis scarce to be expected that men can use the greatest caution, happens by some negligence to do damage to his neighbour, it should be rather repaired by the community.7

Damage done by hired servants without their master’s orders, should be repaired by themselves. What is done by a slave binds the master to divide the price of the slave in the same manner as the effects of a bankrupt are divided among the creditors; computing on one hand the value of the slave, which is the claim of the master, and on the other that of the damage done, which is the claim of the sufferer; and in proportion to these two the price of the slave is to be divided.8 In the same manner the owner is bound to compensate damage done by his cattle, without any fault or negligence of his. If civil laws* have been more rigid upon the owners, it has been with this view, that the owners may be made more careful in guarding well their slaves and cattle{, which are kept for their own behoof}.

If one without any malitious design has done damage, he ought to shew himself ready at first to do or perform whatever any wise arbiter shall judge reasonable, and to declare the innocence of his designs. If one has had an evil intention, and truly repents afterwards of it; he ought also to offer compensation, to beg pardon, and give whatever security against future injuries a prudent arbiter shall think sufficient. No man truly repents of any injury he has done, nay he persists in it, while he declines to do these things, and detains the gain of his injustice. But when the injurious offer all these things voluntarily, we are bound to be reconciled and to pardon them: which all of us should do the more readily and heartily, that each one so often needs to be pardoned, if not by his fellow-creatures, yet by our merciful creator.9

IV. When one obstinately persists in his injuries and won’t desist from his designs upon admonition, nor repair damages done; or refuses to perform what we have a perfect right to demand; not only our private interests, but the common interests, and safety of all requires, that the injuries intended should be repelled by violence, and reparation of damage and whatever else is due to us by a perfect claim should be obtained; and even some further evil inflicted on him, by the terror of which both he and others be restrained from the like practices.

This violent defence or prosecution of our rights is war. <War is “the state of those who are in violent conflict in order to defend a right.”> But as one grand view of constituting civil power was this, as ’tis known to all, that the controversies of citizens should be decided by impartial judges, and thus the mischiefs prevented which might arise from mens redressing themselves under fresh impressions of injuries; very different rules of violent defence or prosecution must obtain according as men are either in natural liberty or under civil government.10

Wars are divided into publick and private. The former are such as are undertaken by a state, or in the name of a body of people: private wars are those among private persons. The publick wars are divided into the solemn, <called also justa by the Romans, whatever was the occasion, even an obviously wicked action> or these authorized on both sides by the supreme powers of states, upon some specious shews of right; and <less solemn, or> those so authorized only on one side: such as the wars made upon bands of pyrates or robbers, or citizens making insurrections; or what are called civil wars, between different parties in the same state contending about some rights of the people, or of the government.

We first treat of the private wars of men in natural liberty. And the same reasonings hold in publickwars; since sovereign states and princes are with respect to each other in the same condition of natural liberty.

V. We have already shewn that wars both publick and private are sometimes lawful, nay necessary for the common safety. Nor do the scriptures prohibit them in all cases: as they plainly authorize civil power, give to magistrates the*power of the sword, and praise some eminent heroes in war.

In both kinds of war three points are to be settled: the just causes, the term of commencing, and the term of ending them, or the sum of our demands in war <which are called terminus a quo and terminus ad quem>. When we speak of these three in the wars of particular persons, they are to be differently determined according as the parties live in natural liberty or under civil government.

But we must always remember, that tho’ we have received the very greatest injuries from any person, yet we ought to maintain good will toward him, and even desire his happiness, as far as it is consistent with that of better men and of the community. All clemency consistent with these ends, toward even the most injurious, is what every man’s heart must approve. When therefor any injury is designed or done to us, we should try first all gentler methods, either to prevent it, or obtain reparation of damage and security for the future. Nor should we judge that an unjust enemy has forfeited all his rights, or that every outrage against him is justifiable. That violence alone is just which is necessary, or naturally conducive, to repell the injury, repair the damage, or obtain security for the future. Any cruelty not requisite for these ends is plainly criminal and detestable; as it occasions grievous sufferings to some of our fellows, without any necessity for the interests of others; and is a precedent to like cruelties on other occasions{, even toward those who have a just cause in war}.

VI. The just causes of beginning war in natural liberty are any violation of a perfect right. There could be no security in life, none of our rights could be safe, were we prohibited all violent efforts against the injurious, and they allowed to pass with impunity. By a frequent repetition of even smaller injuries the greatest wealth must soon be exhausted: and life must become intolerable to innocent men if they are thus exposed to the perpetual insults of their petulant or insolent neighbours. Humanity may often persuade a good man to overlook lighter injuries, which can easily be repaired; if especially, they proceeded from some sudden gust of passion in men who in the main parts of their character are good, and will soon repent of it. Yet no man can justly claim such patience toward himself from others. There are some more rare cases in which perhaps it may be just to make war before any injury is done or attempted: but of these hereafter.*

When therefor any of our perfect rights are violated, either by destroying or damaging our goods, or refusing what we have a perfect right to claim; or when a like injury is done to any innocent neighbour; ’tis lawful, nay often honourable by force to compell those who oppose us or our neighbour in obtaining our rights, to desist from these injuries, and to perform whatever is due to us <and to our neighbour>. We may seize the particular goods we have a claim upon; or if we cannot find them, seize any goods of the enemy sufficient to compensate all that’s due to us. And in computing this, we should include all our labours, and losses or expences occasioned by the injury. Nay we may proceed further <in seizing the goods of the enemy> by way of punishment, or obtaining security for the future, as far as a wise arbiter will judge necessary: [but of this presently].11

In civil society indeed, these injuries alone justify the violence of private persons against any fellow subject who is amenable to laws, which may occasion an irreparable damage. The warding off, or the repairing of others should be obtained in a more prudent way by the aid of the magistrate. But such as can neither be prevented nor remedied this way, we justly may repell with <any necessary or suitable> violence. But if any one, who is as to right a citizen or subject, renounces this bond; or makes his attempts so secretly that there’s small hope of bringing him to justice; we have the same rights against him as if we were in natural liberty.* Such are all robbers and thieves in the night. Against other citizens our remedy must be obtained from judges or magistrates.

VII. The term of commencing violence [the violent defence or prosecution of rights] in liberty, is when one either by express declaration or any hostile action <or other certain evidence> has discovered a fixed purpose of hurting us or any innocent neighbour; and won’t desist upon admonition. We are not obliged to receive the first assault; as it may perhaps prove fatal to us: nor need we wait till the injury is executed; which may perhaps prove irreparable: and ’tis generally easier to prevent than to remedy. We may therefor justly prevent and surprize such as have formed and declared sufficiently their injurious designs of hostility.

The proper term of commencing in civil life any violence that may be dangerous to others, is when the aggressor has brought us into such straits that we can neither retire without danger, nor obtain any aids from magistrates or our fellow-citizens.

VIII. The term or bounds beyond which we ought not to continue violence in natural liberty, are when the aggressor or the author of the injury either voluntarily repenting, or compelled by force, desists from injuring, and offers compensation of all damages done, and such security for the future as any prudent arbiter shall judge necessary. If he obstinately refuses these things we may justly obtain them by force. Nay the common interest of mankind requires that such as without any plausible shew of right, have done gross injuries, and given such dangerous example to others, should be punished in such a severe manner as may probably deter not only themselves, but all others from like crimes.

The same reasons which justify the inflicting of punishments in civil life, justify it also in natural liberty; tho’ in this state we cannot expect that punishments shall be so effectually executed, or so prudently regulated. Neither the grounds of punishments, nor the reasons of inflicting them, presuppose civil power in the inflicter, nor civil subjection in the sufferer.

Under civil government subjects ought not to continue violence after they are secured from present danger. The reparation of injuries and precautions for the future are to be obtained by the sentence of a judge, and not by the violence of the enraged parties. All just violence should be with a view either to the defence of our rights, or to some publick advantage. What has not such intention; and is accompanied with hatred of the person, and joy in his misery, is that criminal revenge, which is condemned both by the natural and christian laws.

And further as rights respect not only our holding or possessing, but also our obtaining sometimes from others some goods or services: in natural liberty we may use violence in pursuit of what is due to us from others, when they refuse to perform voluntarily what we justly demand. But in civil life all such prosecution of our rights should be made by actions in law, either for debts, reparation of damages, or precautions against damages apprehended; and these matters decided by the wisdom of magistrates and judges:12 as must appear from what was said about the causes of war in natural liberty, and the ends of civil government.

IX. From these principles it must follow that such duels as are often practised among us, where the challenger and the person challenged meet in a place appointed, intending the death of each other, or what may occasion death, cannot be justified <by any form of reasonable right> either in natural liberty or civil society. <Right> Reason would always teach a far better method of defending and prosecuting our rights; first, by committing any disputed point to arbiters in natural liberty; and if either side declined to submit to them, the other should obtain the assistance of such neighbours as the equity of his cause or regard to the common safety can engage to his side, and make open war in prosecution of his right. As to any reproaches or contumelies <or false reports>; the duel is often a foolish, and often too cruel a method of refuting them. The fortune of the combat is often as blind and capricious as any: and death is too grievous a punishment for opprobrious words. If one has hurt the character of others, either by false reports, or even by divulging inhumanly, without any necessity, their secret vices; in natural liberty we may justly, with the assistance of friendly neighbours, inflict such publick punishment as any wise arbitrators shall deem proper for the crime. And if in this state any one, <unprovoked,> has given full evidence of an hostile intention to destroy us; we should rather take the safest way to prevent by surprize, or to restrain him, in such manner as our own and the common safety requires. Nay under civil government, we are not bound to avoid publick places, or neglect any business which requires our appearing abroad, because we know that one designs to assault us; unless either humanity or a regard to our safety move us to it. And if we are unjustly attacked while we are employed in our own lawful business, we may justly defend ourselves even by killing the aggressor: and doing so [and killing in this way petulant and insolent men] is often a very useful service to mankind. All this may be done without any concerted duels.

But if the legislator has been so negligent of a most important matter, as to appoint no suitable <laws, nor> legal redress for the citizens when injured in their characters by calumnies or reproaches; and if that custom prevails, which took its rise in the most barbarous and superstitious ages, that a man is deemed infamous, and always exposed to new insults, and these generally approved too, if upon certain reproaches or contumelies uttered against him, he does not challenge the author of them; which will be the case too with one who declines to accept a challenge from any who imagine they are injured by him.13 The larger share of this guilt is chargeable on the civil governors themselves; tho’ the parties are not excusable, especially the challenger. For a good man may generally find a better way of vindicating his character, and even of shewing his fortitude, if either there arise any publick wars, or if he is first attacked by violence.

There is indeed one case in which concerted duels may be lawful on one side:* if a publick enemy of our country, of superior power, trusting to the valour of some champion on his side, offers to grant us reasonable terms of peace only upon the event of this champion’s being defeated by one of our side; or will have the controversy decided according to the fate of such a combat. ’Tis no doubt foolish and inhuman to decide controversies <at least the serious ones that only are cause for a just war> this way, when it might be done by arbitration. But if a more potent enemy will not consent to any other way [will cast the controversy in the result of such a combat and will not decide it in a milder way]; ’tis a glorious action on our side, if one to prevent much blood-shed exposes himself for his country to this hazard, in which his country has better hopes of success than any other way.

[1. ]Cf. Pufendorf, De officio 1.5.17.

[2. ]This section corresponds to System 2.15.1, vol. II, pp. 86–88.

[3. ]See Pufendorf, De iure nat. 3.1.4.

[4. ]On this and the following paragraph see Pufendorf, De officio 1.6.8.

[5. ]Not a new paragraph in the Latin text.

[6. ]Cf. Pufendorf, De officio 1.6.10.

[7. ]Cf. this and the following paragraph with System 2.15.1, vol. II, pp. 88–90.

[8. ]According to Pufendorf, the owner is obliged either to repair the damage or to surrender the slave (De officio 1.6.11, De iure nat. 3.1.6). Hutcheson’s solution, rather surprisingly—as is clear from the examples given in A System—makes the reparation the smaller, the bigger the damage compared with the value of the slave.

[* ]Exod. xxi. 28, 30. Institutes. iv. title 8, 9. [Exodus xxi, 28–30 prescribes stoning for the negligent owner of a goring bull that kills somebody.]

[9. ]See Pufendorf, De officio 1.5.16.

[10. ]In System, the items relating to war in Sections 4–8 are not in the chapter on injuries and damages in Book II, but treated in Chapter X of the third book, “on the laws of peace and war,” Sections i–iv, vol. ii, pp. 347–352. Here Hutcheson seems closer to Grotius than to Pufendorf.

[* ]{The jus gladii is well known to include both the power of capital punishment, and of defending a country by arms, among the Romans to whom the apostle writes, Ch. xiii. 4.} See also Hebr. xi. 32, 33, 34. 1 Pet. ii. 13, 14. [Saint Paul, as well as Saint Peter, recommends obedience to the magistrates. In Hebr. xi. 32–34, Saint Paul praises some famous heroes of the Hebrews.]

[* ]Book III. ix. 2.

[11. ]Square brackets in the original text.

[* ]Exod. xxii. 2, 3 and some fragments of the 12 tables. [Exodus, xxii, 2–3 and Digest IX. Tit. 1 declare that there is no crime in killing thieves during the night. The issue is discussed by Grotius in De iure belli 2.1.12–14.]

[12. ]Cf. Carmichael, Notes on Puf., p. 70.

[13. ]Hutcheson shares with Carmichael (Notes on Puf., pp. 68–69) a rather strict censure against the practice of dueling. On duels cf. System 2.15.6, vol. II, pp. 97–98 and 100–101.

[* ]Grotius D. Jure B. &c. iii. 20. 43. [Here Hutcheson agrees with Grotius, De iure belli, 3.20.43. 4.]