[205] CHAPTER XVII.

Of Damage done wrongfully and consequent Obligation.

I. We, have said above that there are three sources of debts due to us; Pact, Wrong, Law. Of pacts we have sufficiently treated: we come to what by Natural Law is due on account of Wrong. We have given the name of wrong to every fault, either of doing or of omission, which is at variance with what men ought to do, either on the ground of their common connexion, or of some special quality. From such fault arises by Natural Law an obligation, if the wrong be accompanied with damage: namely, the obligation of repairing the wrong.

II. 1 Damage, damnum(perhaps from demo,) is when a man has less than what is his, whether it be his by mere nature, or by some human act in addition, as ownership, pact, law. Things which a man may regard as his by nature are life, not indeed to throw away, but to keep, his body, limbs, fame, honour, his own acts. What is his by ownership and pact, and how, we have shewn above, both as to things, and as to right over others’ acts. In like manner the law determines for each what is his, for the law can do more for a man than he can do for himself. Thus a ward has a right to a certain care and diligence from his guardian; the State, from a magistrate; and not only the State, but each citizen, as often as the law expressly, or by clear implication, marks such a consequence.

2 But a mere Moral Claim, which is not properly a Right, and belongs to distributive or assignatory justice, does not produce true ownership, and the consequent obligation of restitution: for that is 206not any one’s to which he has merely a moral claim. A man does not wrong any one when he refuses to give from illiberality, says Aristotle. So Cicero.

III. But here we must take care not to confound things of diverse kinds: for he who has to appoint a magistrate is bound to the republic to elect one who is worthy; and the republic has a right to demand this: and therefore, if by an unworthy election he has produced damage to the republic, he is bound to make it good. So any citizen, not unworthy, although he has not a right to any office, yet has a right to be a candidate along with others; and if he is disturbed in this right by fraud or violence, he may demand, not the whole value of that which he sought, but the estimated value of his loss. So in the case of him to whom a testator was by force or fraud prevented from leaving a legacy; for the capacity to receive a legacy is a certain right, which has for its consequence this, that to impede the liberty of the testator as to that right, is a wrong.

IV. A person may have less than his own, and so, have suffered loss, not only in the thing which belongs to him, but in the produce of the thing, whether he has collected such produce, or only would have collected it: and his loss consists in that produce, minus the expense of improving the thing, and of collecting the produce.

V. Also the hope of gain from a thing which is ours may be estimated, not as what it is simply, but according to its prospect; as the hope of the harvest in the sower.

VI. Besides him who immediately causes the loss, others may be bound, either by doing or not doing.

By doing, some primarily, others secondarily: Primarily, he who commands it, who gives the requisite consent, who helps, who receives what is taken, or who participates in the crime in any other way.

VII. Secondarily, who advises, praises, approves. See Cicero.

VIII. Also by not doing, primarily and secondarily. Primarily, when one who by his proper right ought to forbid the act, or help the person wronged, does not.

IX. Secondarily, he who does not dissuade when he ought, or keeps silence about a fact which he ought to make known. And this ought, in all these cases, we refer to proper rights and expletory justice, whether arising from law or quality. For if he ought by the law of charity only, he sins indeed in not doing it, but is not held to reparation; for this has its origin in a proper right, as we have said.

X. It is to be noted also, that all those of whom we have spoken are bound if they were really the cause of the damage, that is, if their influence shared in producing either the whole loss or a part of it. For it often happens in agents or negligents of the secondary order, and sometimes in those who are of the first order, that even without their act or neglect, the person who committed the damage was certain to commit it: in which case they will not be liable. Which answer is not so to be understood as, that if others would not have been want207ing to persuade or assist, those who did persuade or assist are not liable; if without suasion or assistance the author of the damage would not have done it. For those others who should have persuaded or assisted would have been liable.

XI. Those are liable in the first place, who, by command, or in any manner, impel any one to the act: failing these, the perpetrator of the deed; after him, the rest in any way concerned; and those jointly who gave cause to the act, if the whole act proceeded from them, though not from them alone.

XII. They who are liable for the act, are also liable for the natural consequences of the act. Seneca puts a case of a man setting fire to a plane-tree, by which a house was burnt, and holds him liable. [See.] Ariarathes, having wantonly stopped the course of the river Melanus, caused a flood of the Euphrates, which produced great damage in Galatia and Phrygia: and the matter being referred to the Romans, paid 300 talents to make good the loss.

XIII. Take these examples: A person who unlawfully kills another is bound to pay the expenses of physicians, if any, and of those who depended for subsistence on the person killed, his parents, wives, children, as much as their hope of support was worth, considering the age of the person killed. So Hercules paid a fine for the death of Iphitus. So Michael Ephesius on Aristotle. We say unlawfully kills; for if a person was acting lawfully, as if he was assailed and did not run away, though he may have sinned against charity, he is not liable. The life of a free man cannot be valued: it is different in a slave, who may be sold.

XIV. If a person maims another, he is similarly liable to the expenses, and to the estimated value of how much less the maimed man can earn. But as the free man’s life, so his wound, is not capable of estimation. The same is to be said of unjust imprisonment.

XV. The adulterer and adulteress are liable not only to indemnify the husband for the expenses of rearing the progeny, but also to repay the legitimate offspring what loss they suffer from the concourse of the offspring so arising in the inheritance.

He who deflowers a virgin by force or fraud is bound to pay her as much as she loses by the diminished hope of marriage; and even to marry her if it was by such a promise that he became master of her person.

XVI. The thief and the robber are bound to restore the thing subtracted, with its natural increase, and with the consequent loss, or consequent cessation of gain; and if the thing have perished, its estimated value, not the highest, nor the lowest, but the medium value. In this class are to be placed those who defraud the lawful taxes. Also those are liable who by false testimony have occasioned damage in an unjust sentence, or an unjust accusation.

XVII. Also he who has caused a contract or promise by fraud, 208trick, or violence, is liable to restore to his original condition him who has been thus dealt with: because he had a right not to be deceived, and not to be forced: the former, from the nature of a contract, the latter from natural liberty as well. To these are to be reckoned those who would not do, except for money given, what they were bound to do for their office.

XVIII. He who gave cause why be should suffer force, or be compelled by fear, has himself to blame for what happens: for an involuntary act arising from a voluntary one is held morally for a voluntary one.

XIX. As, by the consent of nations, a rule has been introduced, that all wars, conducted on both sides by authority of the sovereign power, are to be held just wars; so this also has been established, that the fear of such a war is held a justly imposed fear, so that what is obtained by such means cannot be demanded back. And here the distinction appears between an enemy and pirates or robbers^*. For what these take, may be demanded back, except an oath have been introduced to prevent it; what those take, not so. Wherefore, what appears to Polybius to be a just cause for the Carthaginians beginning the second Punic war, that the Romans had before made war upon them when they were engaged with the mutiny of their mercenaries, and had wrung from them the island of Sardinia, and a money payment, has some show of natural equity, but is at variance with the Law of Nations, as we shall elsewhere explain.

XX. 1 Kings and magistrates are liable for neglect, who do not apply the remedies which they can and ought, to restrain robbery and piracy: on which ground the Scyrians were in ancient times condemned by the Amphictyons. I recollect the question being proposed to me,—from the fact that the rulers of our country had given several persons letters of privateering and authority to make captures, and some of these persons had captured the property of friends, and, leaving their country, led a life of sea-rovers, not returning even when summoned home;—Whether the rulers were bound to restitution; either as having used the agency of bad men, or as not having demanded caution-money. I gave my opinion, that they were bound to nothing more than to punish and surrender the guilty persons, if they could be found; and, besides, to make the goods of the plunderers liable: for that they had not been the cause of the unlawful spoliation, nor had in any way shared in it; and had forbidden by law the plunder of friends: that there was no law obliging them to demand caution-money, since they might, if they chose, give all their subjects the right of capturing enemy’s goods, which in former times had been done: and that such permission was not the cause why friends had been damaged, since private persons, even without such permission, could arm vessels and go to sea. And that whether those who went would turn out good or bad men, could not be foreseen; nor was it avoidable to use the 209agency of bad men as well as good, since otherwise no army could be got together.

2 Nor, if either soldiers or sailors, contrary to command, do any damage to friends, are the kings liable; which has been proved by the testimony both of France and England: that any one, without any fault of his own, is bound by the acts of his agents, is not a part of the Law of Nations, by which this controversy must be decided, but a part of the Civil Law; nor of that in general, but introduced against sailors, and certain others, for peculiar reasons. And sentence was given to that effect by the Judges of the Supreme Court, against certain Pomeranians; and that, according to the precedent of a similar cause, adjudged two centuries ago.

XXI. It is to be noted also that the Rule, that if a slave, or any animal, cause any damage or loss, it creates a liability in the master, is also a creation of Civil Law. For the master, who is not in fault, is not liable by Natural Law; as also he is not whose ship, without any fault of his, damages another’s ship: although by the laws of many nations, and by ours, the damage in such case is commonly divided, on account of the difficulty of proving where the fault lay.

XXII. Damages also, as we have said, may be inflicted on a man’s honour or reputation; as with blows, insults, abusive language, calumny, ridicule, and the like. In which cases, no less than in theft, and other offenses, the badness or malice of the act must be distinguished from the damage. For the badness of the act is a ground for punishment, the loss, for reparation: which, in this case, is made by confession of the fault, manifestation of respect, testimony of the innocency of the calumniated person, and the like: though such damage may also be recompensed by money, if the injured person choose; because money is the common measure of valuable things.