Grotius here distinguishes between the murder of a free man and the murder of a slave: the life of the former cannot, he says, be reckoned in settling the damage done by his death; because no person has any claim to it besides himself: but the life of the latter is to be reckoned; because, if the slave had been alive, the master might have sold him; and consequently his life itself is of value to the master. But if we observe that the life of the slave can no otherwise be looked upon as the master's property, than as he had an interest in it, we shall find that there is no occasion for this distinction: since, as far as the relations of a free man had an interest in his life, the person who murdered him is obliged to make them reparation. So that in either case, in settling the damage, the life of the deceased is estimated according to the interest which those who survive him might have in it. for X. He who has maimed another, does not make him Reparation full reparation for the damage sustained, unless he pays maiming, woundfor the cure, and gives him, besides such payment, the ing, beating, unvalue of what he has lost by being rendered incapable just imprisonment. to earn so much by his labour, as he otherwise might have earned, if he had not been maimed. But these particulars, which are all that Grotius mentions, do not include the whole of the damage. He ought farther to pay for the loss of the person's time whom he maimed. Our author, indeed, adds, that if the person maimed is a slave, amends is to be made to the master for any scar or blemish, which will make the slave worth less when sold; but that in estimating the damage done to a free man, no regard is to be had to such blemish. Grotius should here have taken another particular into the account, which would have set him right in this respect, by showing him that satisfaction is to be made to a free man, as well as to the owner of a slave, for any scar or blemish arising from their being maimed. The person who is maimed has a right to freedom from causeless pain; and he who has hurt him has injured him in this right. He may, therefore, demand smartmoney, or some consideration in amends for the pain which he has unjustly suffered. Now, under this head, we may fairly include any blemish which remains, after the first smart or pain is over: for as far as the injured person had a right to be free from such blemishes, or from the uneasiness which any deformity will occasion to him, he has a right to be paid for having them brought upon him. If the person who has been ill treated should escape without losing his limbs, or the use of them; yet, if he has been wounded, the expense of cure, the loss of time, the pain which he has felt, are all of them damages, for which reparation is due. Or if he has been only beaten, so that there has been no expense of cure, and no loss of time, he has still a demand of smart-money, or of satisfaction for the pain that he has felt. What has been said concerning maiming, wounds, or blows, will be sufficient to show what sort of amends is due to a man who has been deprived of his liberty by unjust imprisonment. His loss of time is one article in the account, but it is not the only one; the mere uneasiness of such a situation, under which we may include the disgrace attending it, is a damage to him. * Grot. Lib. II. Cap. XVII. § XIV. man. XI. Grotius, in the case of adultery, takes notice of Reparation for adultery, or for no other reparation, except that of indemnifying the indebauching a wo- jured husband from maintaining the spurious offspring, and that of securing the legitimate children against the loss which they would sustain, if the others were to share with them in the possessions of the family. But certainly neither of these particulars can be looked upon as reparation for the damages which the adulterer has done: they are rather cautions against any future damage, which might arise in consequence. The adulterer has deprived the husband of his wife's affections, has disturbed the peace and order of his family, and has brought disgrace and infamy upon it. These are the articles to be estimated in determining what reparation is to be made for the damages that have been done already. If a woman is debauched, says our author, either by force or by fraud; he, who has so debauched her, is obliged to make amends for the advantage which she might otherwise have made by some future marriage, if he had not hurt her character. He adds, that if the man debauched her under a promise of marriage, he is obliged to make his promise good. But this obligation, one would think, arises rather from the promise itself, than from the damage done. He could not, indeed, object her want of chastity as a sufficient reason to release him from his promise: because, as her want of chastity has been owing to his own act, he cannot make use of this pretence to her disadvantage, unless he pays her, not only for having hurt her prospect of marriage in general, but likewise for her loss in not marrying him in particular. Reparation for XII. A thief or robber is obliged to restore what he has stolen, or an equivalent for it, with all its profits, and a compensation for the loss which followed, or the gain, which ceased to the owner for want of possession. In estimating the value of the thing and of the profits, Grotius lays it down for a rule, that they are to be rated neither at the highest, nor at the lowest, but at the middle price. However, he gives no reason, and it will be difficult to find any reason, why such a degree of favour should be shown to a man who has been guilty of theft. theft. slander. Reparation for XIII. A man may be injured in his person, not only by death, imprisonment, maiming, wounds, or blows, but by scandal or defamation, which deprives him of his reputation, and casts a blemish upon his character. These damages are repaired by asking pardon, by a public acknowledgement of his innocence, and by such payments as will make him amends for the loss that he has sustained by any false aspersions. Reparation due, XIV. The obligation to make reparation for damages where there is no done by our means, is not confined to those actions only, which are criminal enough to subject us to punishment. Though there is no degree of malice in an action, by which another is injured, yet it may arise from some faulty neglect or imprudence in him who does it, or is the occasion of its being done; and when any person has suffered damage, for want of his taking such care as he ought to have taken; the same law which obliged him, as far as he was able, to avoid doing harm to any man, cannot but oblige him, when he malice. * Grot. Lib. II. Cap. XVII. § XV. † Grot. Ibid. § XVI. has neglected this duty, to undo, as well as he can, what harm he has been the occasion of; that is, to make amends for the damage which another has sustained through his neglect. Those faults, which consist in neglect, are sometimes divided into three degrees; a great fault, which is such a neglect, as all men may well be supposed, and ought to guard against; a small fault, which is such a neglect, as discreet and diligent men are not usually guilty of; and the smallest fault, which is such a neglect, as the most exact and most prudent take care to avoid. Indeed, in many instances of gross faults, it is so difficult to distinguish between a mere neglect and a malicious design, that, besides the demand of reparation for damages done, some punishment may reasonably be inflicted upon the person so offending. Sometimes, and especially in what may seem faults of the lower degrees, the damage, which arises from our supposed neglect, will be found, upon inquiry, to have been rather owing to the neglect of the person who suffers it; and then we are not only clear from all guilt that may subject us to punishment, but from all blame that might oblige us to make reparation. * A man professes some art or calling, in which he is not completely skilful, and through his want of skill, they, that employ him, suffer damage: or, supposing him to understand his business, they that employ him, may suffer the like damage, through some gross neglect of his: in either case he is obliged to make reparation. This is the case when a physician destroys his patient by administering improper medicines through ignorance, or suffers him to perish by neglect and desertion. Such faults as these are of the grosser sort, and approach so near to ill design, as not easily to be distinguished from it. If others suffer by us, whilst we are engaged in any sport or diversion, as if a man was to be killed or maimed by our discharging a gun; notwithstanding we had no design of doing hurt to any one, and can make this appear, yet we are bound to make reparation: because we ought to have been so careful, in following our own amusement, as to prevent any damage that might happen to others, from what is merely matter of pleasure to us. If a soldier is exercising himself in an improper place, and does any hurt with his arms, it is his fault, and he must repair the damage. It would have been otherwise, if he had been in the place appointed for this purpose; because then what hurt was done by him would have been owing to their fault, who knowingly or negligently came in his way. A feller of wood kills a man who is passing upon a road or near a town, with the limb of a tree, which he is cutting down, without giving notice that it was falling: this is his neglect, and reparation is due from him. But if he did give notice, and the person, upon whom the limb of the tree fell, neglected to get out of the way, he is not chargeable with the damage done. Nor could he have been chargeable with it, even though he had given no notice, if he had been felling wood at a distance from the road or in the middle of the field: because the other person would have been in fault for having been there. The damage which a man's servants do, is, in many instances, chargeable upon himself: because he ought to take care that they should behave better. If a traveller loses goods in an inn, where he lodges; the master of the house ought to repair the loss: because a discreet and diligent man would take care to provide himself with honest servants, and would prevent whatever was under his charge from being stolen. If the traveller had locked up his goods in his own apartment, there would not be the same reason for charging the loss of them upon the master of the house: because the traveller has then taken the care and security of them upon himself; and if they are lost, it is but reasonable to consider them as lost through his own neglect: especially, as there would otherwise be room for collusion between him and others, who might take them away with his privacy. When any thing which is thrown out from a window, does any damage to persons passing by in the street; the master of the house, from whence it is thrown, is chargeable with it: he is certainly in fault, if he threw it out himself: and he is in some fault, though some one else threw it out: because he ought to take better care of the behaviour of his family. The damage which a man's beasts do, may reasonably be looked upon as done by himself: because it is his business to take care that they shall be kept in good order. Indeed, if they were put into their proper place, and have gotten into the grounds of another man, because this other does not keep up his fences; the damage is done through the neglect of the owner of the grounds, and not through the neglect of the owner of the cattle. In like manner, if a man was passing through grounds where there was no common path or way, and where he had no business, and should be wounded or maimed by a horse or an ox which were in the pasture of their owner; the fault is in the person so hurt; because he ought not to have been there. CHAPTER XVIII. OF PUNISHMENT. I. Punishment, what.-II. Justice of punishment depends upon the ends of it.-III. What those ends are.-IV. The justice of punishment explained.-V. Extraordinary tortures in capital punishments unjust.-VI. Obligations arising from a crime, what.-VII. The justice of punishment is negative.-VIII. Who may punish in a state of natural liberty.-IX. What crimes punishable by man in the liberty of nature.-X. What guilt is.-XI. How guilt is esti mated.-XII. Measure of punishment, how adjusted.-XIII. Mercy or clemency, how exercised.-XIV. How the goods of a criminal are affected by punishment.-XV. Accessories to a crime punishable.-XVI. Those, who have no share in a crime, not punishable.XVII. Obligation to punishment does not descend from the ancestor to the heir. Punishment, what. I. A CRIME, as it does damage, obliges the criminal to make reparation; and as it shows a disposition to do harm, it makes him liable to be punished. Grotius, Lib. II. Cap. XX. § I. By punishment, we understand some evil of suffering, which is inflicted upon account of some evil of doing. It is some pain or uneasiness, some loss or harm, which he, who has designedly occasioned any pain or uneasiness, any loss or harm to others, is made to undergo. II. Grotius lays it down as a self-evident principle, Justice of punthat he, who has done evil, may justly be made to suffer ishment depends evil. If this principle was as clear and indisputable, as upon the ends of our author supposes it to be; one of the greatest diffi- it. culties relating to punishment would be removed. It would be ridiculous to inquire, why it is just to punish a criminal; if the justice of making a man suffer harm, who had done harm, was self-evident. He does not seem, however, to be quite satisfied in his own mind, that this principle will entirely justify us in punishing criminals. The most that he thinks can be proved from it, is, that no injury is done to a criminal by punishing him: but yet, he says, it does not follow from hence, that criminals are to be punished. It is not very easy here to understand his meaning. If by saying it does not follow from this principle, that criminals are to be punished, he means, it does not follow, that we are obliged, in duty, to inflict punishment upon criminals; this is very certain. But his inquiries concerning punishment, might, notwithstanding this difficulty, have stopped at this first principle, if the principle had been self-evidently true: it may not, perhaps, be sufficient to prove, that inflicting punishment is a duty: but let him carry his inquiries as far as he will into the ends of punishment, he will still find the same defect, if it is a defect, in all other principles. Neither the supposed self-evidence of its being lawful to make them suffer evil, who have done evil, nor any of the ends proposed in punishing will prove that we are naturally obliged, in duty, to punish a criminal. But if, when he says, it is no consequence of his principle that criminals are to be punished, he means, that notwithstanding there is no injury in making those suffer evil, who have done evil, it is no consequence, that they may be punished, consistently with the law of nature; he plainly contradicts himself: if there is no injury in punishing criminals, it must, undoubtedly, be consistent with the law of nature to punish them. To reconcile him with himself, we must suppose him to mean, that though the punishment of a criminal is self-evidently consistent with the law of justice, yet we ought to inquire farther, whether the law of benevolence or humanity does not forbid it: because, as some pain or loss is contained in the notion of punishment; such pain or loss would be a sufficient reason against inflicting it; if no advantage arose from it, or no beneficial purposes were answered by it. But then these beneficial purposes are as necessary to be taken into the account, in order to reconcile the notion of a right to inflict punishment with the duties of justice, as to reconcile the actual inflicting of it with the duties of humanity. All causeless harm or loss, that we bring upon another, is unjust: and if punishment is not intended in its own nature to obtain some useful end; I see not how we shall be able to show, that the loss or harm implied in it is not causeless harm. Upon the whole, then, it seems necessary for us, in vindicating the justice ⚫ Grot. Lib. II. Cap. XX. § I. † Grot. Ibid. § IV. |