The allowance, which these laws granted to kill a thief in the night, can scarce be reconciled with what Grotius here supposes to be the intention of the lawgivers. But in order to reconcile such an allowance with such an intention, he makes use of several arguments to show, that those laws presumed the person who killed a night thief to be in danger of losing his own life. The chief of these arguments depends upon what he observes concerning the law of Moses, that it required the thief to be found with such an instrument as is used in stabbing: and urges, that if the law allowed him to be killed, only when he was found so armed, it must in this permission proceed upon the presumption, that he attempted to make use of the weapon with which he was found. But suppose, instead of calling the instrument with which he was found, an instrument for stabbing, we were to call it an instrument for breaking through; this evidence for the presumption, which Grotius supposes the law to proceed upon, will be taken away at once: no one from finding that the thief brought him with a crow-iron, or a file, or a saw, or any other instrument of this sort, which might help him in getting into the house, would think this any evidence, that he had been making an attempt upon the life of the master of such house. And perhaps after all, the word which Grotius translates an instrument for stabbing, and which I have translated an instrument for breaking through, may be very properly rendered by our English translators, when they describe the thief as being found, not with any particular sort of weapon, but in the act of breaking through.

However, without being at the trouble of examining into this nicety, we need only read the words of the law in order to inform ourselves of the reason, upon which it proceeded, in making a distinction between the two sorts of thieves. *The law says,-"If a thief be found breaking up, and be smitten, that he die, there shall no blood be shed for him: if the sun be risen upon him, there shall be blood shed for him; for he should make full restitution." The plain reason why the law did not allow a day thief to be killed, is here given: he ought not to be killed, because he should have made full restitution. The law had an opportunity of coming in to assist a person who was robbed in the daytime, and of taking care that proper justice should be done between him and the thief. And if this was the reason why a day thief was not allowed to be killed, we may easily infer from thence what was the reason, why this was allowed in the case of a night thief: the ordinary penalty of theft could not readily be inflicted; and men might therefore be encouraged, by the hopes of impunity, to steal in the night time, if some other method was not made use of to deter them. With this view, the law, when it could not come into a person's aid, left him to his natural liberty, and gave him leave to defend himself, by whatever means he should find to be necessary.

It may here be asked, why the law of Moses, which did not punish theft with death, if the thief was taken, should indulge private persons in a license of proceeding farther than it would proceed itself. Puffendorf affirms in general, that none of those lawgivers, who permitted a night thief to be killed, decreed any capital punishment against theft, if the thief was taken. This, however, though it is true of the Mosaic

*Exod. XXII. 2.

† Book II. Cap. V. § XVII, XVIII.

law, is certainly not true of all the rest. The law of the twelve tables decreed a capital punishment against a slave for theft. And the laws of Solon made theft capital, where the value of the thing stolen exceeded fifty drachmas, or where the theft was committed in a bath, or in a place of exercise; that is, where persons laid aside their clothes or other things of value, which they usually carry about with them, and were otherwise employed, so as not to be upon their guard, it was capital to steal.

We may, from hence, make two observations in passing. First, when the law of the twelve tables, or Solon's laws, allow a person to kill a thief in the night, but forbid the killing a thief in the day; the lawgivers could not proceed in this latter prohibition upon the principle, which Grotius imagines them to have had in view, the principle of not taking away any one's life directly upon account of our goods: because the Roman law punished theft in a slave, and Solon's law punished theft of goods to a certain value, and in certain circumstances, with death. And if the lawmakers proceeded upon no such principle, it will be difficult to show, that, in the former permission of killing a night thief, they proceeded upon the presumption, that such a thief was killed, whilst the person, whose goods he was endeavouring to steal, was brought into danger of his life.

Our second observation relates to that part of Solon's law, which punishes theft in a bath with death, and to the apparent reason of this law, which has been already assigned. Where the owners of the goods stolen are not upon their guard, nor can be supposed to be so, the penalty of theft is greater, than where goods of the same value are stolen in other circumstances.

We may apply this to the cause of a night thief. Men are less upon their guard, and are less able to take care of their goods in the night, than in the day. It was necessary, therefore, for the law to give them a better security against being robbed in the night, by making the consequence of such theft more dangerous than the consequence of stealing in the day. And this seems in general to be a prudent rule in making laws to guard against such crimes as are most easily committed, by the highest penalties; and to take care, that the security, which is wanting in the nature of the thing, may be supplied by the severity of what the law threatens.

This leads us to the true answer to that inquiry from whence we have digressed. The law of Moses, though it does not punish theft with death, where the circumstances are such as to give the injured person what the law calls full restitution; yet in other circumstances it grants the best security, that it could, by allowing the injured person to defend his goods as he can. What the Mosaic law says concerning a night thief, cannot properly be called the establishment of a penalty: it only leaves a man in this instance to his natural liberty. In the case of a day thief the law appoints a certain penalty, forbids the person, upon whose goods the attempt is made, to kill the thief, and declares him to be guilty of murder, if he kills him. But in the case of a night thief, it does not command that he should be killed, but only says, that, if he should be killed, no notice shall be taken of it. In respect, then, of a day thief, the natural right of defence is abridged by the law; but in respect of a night thief, the words of the law are

merely permissive, and may be looked upon as a declaration, that every man was at liberty to defend his goods against such a thief, in any manner that he pleased.

If we consider the law as it relates to a night thief, in this view, that is, as a simple permission, it will lead us to conclude, that the author of the law of Moses looked upon the defence of our goods, even at the expense of the life of the thief, as consistent with the law of nature. The law gives a man no authority to kill a night thief, which he would not have had, if no law had been made about a thief of either sort: it only supposes, that such a thief may happen to be killed, and then declares, that the man who kills him, shall not be punished for it. As this is a simple permission, it leaves men to the liberty of nature: and as the law exempts the person who thus defends his goods, from any punishment; it plainly shows what sort of defence was looked upon by the lawmaker to be justifiable, where men were left to that liberty. Since, then, such a defence of our goods, as may end in the death of him who endeavours to take them from us, has been shown to be consistent with natural justice; the only remaining inquiry is, whether it is consistent with benevolence, or whether, for the sake of preserving the life of the robber, we ought not, in tenderness to his welfare, though not in strict justice, to part with the goods which he endeavours to deprive us of. But the question, when it is thus stated, does not take the matter far enough back. The first inquiry ought to be, whether benevolence, or a tender regard to the welfare of the robber, obliges us rather to part with our goods than to defend them at all: because all the consequences of such defence are to be charged to his account, and not to ours: it arises wholly from himself and not from us, that the loss of his life should come in competition with the loss of our goods. If the preservation of our goods was, in the first instance, consistent with benevolence, and we take no other measures to preserve them, than what his violence, or the manner of his attack upon them makes necessary; whatever event may happen to follow from our defence of them, it must be considered as his act, who pushes us to extremities, and not as ours, who had no design of doing more than benevolence would have warranted. Supposing, therefore, the matter in question to be of no great importance to our happiness, but to be such as we can well spare, without any considerable damage either to ourselves or to those, whom we are bound in duty to take care of, and to provide for; benevolence would persuade us to sacrifice it to mutual peace, to part with it rather than to engage in any contention about it. But if we are in danger of being plundered of all that we are worth, or of losing what is necessary to our own happiness, and to the proper discharge of that duty, which we owe to our relations and dependents; benevolence, which not only teaches us to show our first kindnesses to them, who have deserved the best of us, but which requires no more of us towards any one than to love him as well as we love ourselves, would not oblige us to part with it.

We find, that even the gospel, when it commands us not to resist injuries, has explained this precept in such a manner as to show, that we are to understand it of lesser injuries only. "If any man will sue

Matt. V. 40.

thee at the law, and take thy coat from thee, let him have thy cloak also." Though the precept, not to resist injuries, is delivered in general words, the instance made use of to explain it is an evidence, that he, who gave it, did not design to extend it to all instances of property. If he had illustrated his meaning by instances of the highest injuries, we might have been sure, that the precept included all lesser injuries: but as he chose to illustrate it by an example of a slight loss, there is by no means the same ground for concluding, that he designed to include all greater losses.

One thing, however, benevolence seems strongly to recommend to us, which is, to give the robber as good notice as we can, and as the disturbance into which he throws us, will permit us to give him, that we are determined to defend our property, by all such means as he shall make necessary: and when we have done this, if he persists in his design, the fault will be entirely his own, and no want of kindness to him can reasonably be charged upon us, whatever may be the consequence of his violence.

The liberty of defence, which we have now been explaining, is greatly abridged, where the parties concerned are members of the same civil society. But I shall defer considering in what manner it is abridged, till I come to speak about the nature of civil society, and of the effects which are produced in our natural rights, by the institution of it.

CHAPTER XVII.

OF REPARATION FOR DAMAGE DONE.

I. Damage and fault, what they mean.-II. Right to reparation, whence it arises. III. Imperfect right, no foundation for demanding reparation.-IV. Perfect and imperfect rights are sometimes confounded.-V. Some rules to be observed in estimating damages.-VI. Accessaries to an injury obliged to make reparation.-VII. Damages, how to be demanded from a number of principles.-VIII. Reparation due for the consequences of an unlawful act.-IX. Reparations for unjust death.-X. For maiming, wounding, beating, unjust imprisonment.-XI. For adultery, or for debauching a woman.-XII. For theft.-XIII. For slander.-XIV. Reparation due, where there is no malice.

I. AN *injury, after it is committed, produces a right in them who have suffered any damage by it, to demand reparation of such damage, from the authors of the injury; and it produces, likewise, a right of inflicting punishment.

By damage we understand every loss or diminution of what is a man's own, occasioned by the fault of another. And by a fault we understand every lawful action or omission.

* Grotius, ut sup. § II.

† Grot. Lib. II. Cap. XVII. § II.

It is proper to observe here, that though every unlawful act or neglect is a fault, yet every such act or neglect does not lay the person, who is in fault, under an obligation to make reparation: no such obligation is produced, unless the fault occasions some damage, that is, unless it occasions some loss or diminution of what some other person has a strict right to. A man is chargeable with a fault, that is, he is chargeable with behaving unlawfully, whenever he does not comply with the law. But in many instances he may behave unlawfully, and yet be under no obligation to make reparation to any one. All actions or omissions, which are contrary to the several duties included in the general virtue of benevolence, are faults; but such faults as these give no person any right to demand reparation. The notion of reparation is unintelligible, where no damage has been done: and whatever want of benevolence there may be in not giving to a man what he had reason to expect, or what he had an imperfect right to, there can be no damage in it: because damage is some loss or diminution of what is strictly and properly his own.

It is to be observed farther, that the definition of damage extends the notion of it beyond a man's goods. His life, his limbs, his liberty, an exemption from pain, his character or reputation, are all of them his own, in a strict and proper sense: so that the loss or diminution of any of them gives him a right to demand reparation from those, by whose fault they have been lost or diminished. Nor is the notion of damage confined to the loss or diminution of such things, as are a man's own by the immediate gift of nature, or by such a general compact of all mankind, as that is, which introduced property. It is a damage to him, if he suffers any loss or diminution of such things, whether corporeal or incorporeal, as any particular compact, or any positive laws may have made his own. Thus a servant, by withholding the service, which his bargain has given his master a right to, does damage to his master. And a guardian by neglecting to take such care of the affairs of his ward, as either the nature of the trust which he has undertaken, or the positive laws of his country oblige him to, does damage to such ward.

II. As the law of nature forbids us to hurt any man, Right to reparait cannot allow any act of ours, whereby another is tion, whence it hurt, to stand good, or to obtain any effect. But the arises.

law, if it does not allow such act to stand good, or to obtain any effect, must, after we have done it, require us to undo it again. The only way of undoing it again, or of preventing the effect of it, that is, the only way of satisfying the law, is to make amends for what any person has suffered who was hurt by it, or to make reparation for the damages, which such person has sustained. The same law, therefore, which guards a man from being hurt, by requiring others not to hurt him, gives him a demand upon them, when they have done him any hurt, to undo it again, or gives him a right to demand reparation of damages. If such reparation is refused, the law, which gives him a right to it, allows him to support this right by all such means as are necessary for purpose: because a right which he is not at liberty to enforce and bring into execution, is, in effect, no right at all. He, therefore, who has suffered any damage by the fault of another, may, consistently with the law of nature, by the use of his strength, that is, by force, endea

that