Damages Occasioned by Injury and the Obligation to Repair Them

Part 1

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.

Part 2

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,196 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 which is the right of a legatee, when a testator has been197 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 particular season.

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 redress198 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.

199 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 to200 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 Amphictyonic council.

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.201 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.