The Law of War and Peace (1625)
by Hugo Grotius
On Damage Caused Through Injury, and the Obligation Arising Therefrom
I. That fault creates the obligation to make good the loss.
WE have said above that there are three sources of our legal claims, pact, wrong, and statute. Enough has been said about contracts. Let us come now to what is due by the law of nature in consequence of a wrong.
By a wrong we here mean every fault, whether of commission or of omission, which is in conflict with what men ought to do, either from their common interest or by reason of a special quality, From such a fault, if damage has been caused, by the law of nature an obligation arises, namely, that the damage should be made good.
II. That damage is understood to be that which conflicts with one’ right taken in a strict sense.
1. Damage, the Latin word for which, damnum, was perhaps derived from the word meaning to take away, demure, in Greek is ‘the being less ‘; that is, when any one has less than belongs to him, whether by a right that accrues to him from the law of nature alone, or is reinforced by the addition of a human act, as by ownership, contract, or legal enactment.
By nature a man’s life is his own, not indeed to destroy, but to safeguard; also his own are his body, limbs, reputation, honor, and the acts of his will. The previous part of our treatise has shown how each man by property right and by agreements possesses his own not only with respect to property but also with respect to the acts of others. In a similar manner every one acquires his particular rights from the law, because the law has the same power, or greater power than individuals have over themselves or their property. Thus a ward has the right to demand a certain degree of diligence and care from his guardian, and likewise the state from an official; and not the state only, but also individual citizens, as often as the law indicates such a requirement explicitly, or by a sufficiently clear implication.
2. But true ownership and the consequent necessity for restitution do not arise from aptitude alone, which is not properly called a right and which belongs to distributive justice; for one does not have ownership of that to which one has merely a moral claim. ‘The man who out of stinginess does not assist another with his money commits no crime against justice properly speaking,’ says Aristotle. Cicero in the oration For Gnaeus Plancius says: ‘This is the condition of a free people that, in the case of every person, it is able by means of votes either to give or to take away what it wishes.’ Yet presently he adds that it happens that a people may do what it wishes to do, and not what it ought to do, using the word’ ought’ in its broader sense.
III. That aptitude must be carefully distinguished from legal right in a strict sense, when they coexist.
At this point care must be taken not to confuse things which are of different kinds. For one who has been entrusted with the duty of appointing magistrates is under obligation to the state to choose a man who is worthy, and the state has a special right to demand this. If, therefore, the state has suffered damage from the choice of an unworthy person, the man having the responsibility of choice will be bound to make the loss good.
So also any citizen who is not unworthy, although he has no special right to any office, nevertheless has a true right to be a candidate for an office along with others; and if he is hindered in the exercise of this right by force or fraud he will be able to collect the estimated value, not of the entire thing sought, but of that uncertain damage. The case will be similar if a testator has been hindered by force or fraud from willing anything to a man. For the capacity to receive a legacy is a kind of right, and in consequence it is an injury to interfere with the liberty of the testator in such a matter.
IV. That damage extends also to income.
Moreover, a person will be understood to have less, and therefore to have suffered loss, not only in the property itself, but also in the products which strictly belong to it, whether these have actually been gathered or not, if he might have gathered them; but expenditures for the improvement of the property will need to be deducted, or expenditures necessary for gathering the fruits, in accordance with the rule which forbids us to become richer at the expense of another.
V. How the principle stated applies to the cessation of income.
Also the expectation of gain from our property will be estimated, not at its full amount, but in proportion to its nearness to completion, as the expectation of the harvest at the sowing.
VI. Those who by their act cause damage primarily.
Besides the one who causes damage in person and ‘directly,’ others also are liable, by reason of their act or their failure to act. By an act some are liable primarily, others secondarily. He is liable primarily who orders the act, or gives the necessary consent, or aids, or receives stolen goods, or in some other manner shares in the crime itself.
VII. Those who by their act cause damage secondarily.
Those are liable secondarily who give advice, praise,’ or approval to the act. ‘What difference is there,’ says Cicero in the second Philippic, ‘between one who advises an act and one who approves of the act
VIII. Likewise those who by not doing what they ought cause damage primarily.
Likewise an obligation is created by failure to act, either primarily or secondarily; primarily, when one, who is in strict legal duty bound to forbid the act by a command, or to render aid to one who has been injured, does not do so. Such a person by the Chaldean paraphraser, On Leviticus 20:5, is called’ a strengthener of wrong-doing.’
IX. Those who by not doing as they ought cause damage secondarily.
A person is liable secondarily who does not dissuade when he ought, or who keeps to himself a fact which he ought to make known. But in all these cases we refer the word’ ought’ to that true legal right which is the object of expletive justice, whether it arises from statute law or from a special quality. For if one is under obligation according to the rule of love, by omission he will sin indeed, but he will not be held to make reparation; for the source of the obligation to make good is the true right, properly speaking, as we have previously said.
X. What kind of effective participation in the act is requisite to create such obligation.
It should also be understood that all those whom we have mentioned are under obligation to make good if they have really been the cause of damage; that is, if they have contributed to the damage either in whole or in part. For in the case of those in the second class who act or fail to act, and sometimes even in the case of some in the first class, it often happens that the one who has caused the damage would have been sure to cause it even without the act or neglect of the others. In such cases the others, whom I have mentioned, will not be liable.
Yet this must not be understood in such a way that, if there were no lack of others to advise or aid, those who did advise and aid should not be liable in case the one who caused the damage would not have caused it without their aid or advice. For even the others would have been liable if they had advised or aided.
XI. In what order such persons are held liable.
Now those are liable in the first instance who by command or:otherwise have impelled any one to a harmful act. When such are lacking, the perpetrator of the crime is so held. After him the others, who have caused the act, are individually liable for the whole loss, if the whole act has proceeded from them, though not from them alone.’
XII. That the liability is extended even to resulting damage.
Again, the one who is liable for an act is at the same time liable for the consequences resulting from the force of the act. In one of the Controversies of Seneca a this is illustrated by the burning of a plane tree, from which a house caught fire and burned. In this connection he states an opinion thus: ‘Although there was a part of the damage which you did not wish to cause, you are liable for it all, just as if you had caused it intentionally. In fact, the person who defends himself on the ground of not intending wrong ought not to have willed any part of the wrong.’
Because Ariarathes, king of Cappadocia, had wantonly blocked the outlet of the river Melanus, when it broke through its dam the Euphrates was flooded and devastated a part of Cappadocia and did great damage to Galatia and Phrygia. The decision of the issue was left to the Romans, and the king paid damages in the sum of three hundred talents.
XIII. An example in homicide.
Let the following serve as examples.
One who unjustly takes human life is bound to pay the expenses, if any have been incurred, for doctors. He is, furthermore, bound to give to those whom the dead man was accustomed to support from a sense of duty, as parents, wife, and children, so much as that expectation of support was worth in view of the age of the person killed. Thus Hercules is reported to have paid a fine to the children of Iphitus, whom he had slain, in order that he might more easily obtain expiation for his crime. Michael of Ephesus, On Aristotle’s Nicomachean Ethics, Book V, says: ‘But also in a way the one who has been killed receives recompense. He, in fact, in a certain sense receives what his wife, children, and relatives receive.’
We are speaking of unjustifiable homicide, that is, of homicide by one who has not the right to do that from which death results; Therefore if any one has had the right, but has sinned against the law of love, as one who has been unwilling to flee from an attack he will not be liable. Moreover, in the case of a freeman no valuation is put on the life. It is otherwise in the case of a slave, who could have been sold.
XIV. An example of one who has used violence in a different way.
One who has maimed another will in like manner be liable for the expenses, and for the estimated value of the decrease in earning power of the one who has been maimed.’ But, as in the instance mentioned above, the life, so here the scars, are not susceptible of valuation in the case of a freeman. The same should be said of false imprisonment.
XV. Of the adulterer and seducer.
So also an adulterer and adulteress are bound not only to indemnify the husband for the support of the offspring, but also to repay to the legitimate children whatever loss they may suffer from the sharing of such a child in the inheritance.
He who has debauched a virgin by violence or fraud is bound to pay to her the value of her diminished expectation of marriage. Furthermore, he is bound even to marry her, if by so promising he obtained the enjoyment of her person.
XVI. Of a thief, robber, and others.
The thief and the robber are bound to restore the thing taken together with its natural increase, and make good the resulting loss or failure to secure gain. If, again, the thing has been destroyed, they should repay not the highest, nor the lowest, but a fair valuation.
In this class also those should be placed who by fraud avoid the payment of their legitimate taxes. Those are similarly liable who have caused loss by an unjust sentence, or by false accusation, or by perjured testimony.
XVII. Of one, who has procured a promise through deceit or an unjust fear.
Furthermore, one who has caused a contract or promise to be made by means of deceit or violence, or an unjust fear, is bound to free absolutely the person thus dealt with. The reason is that such persons had the right not to be deceived, not to be constrained; this right in the former case arose from the nature of the contract, in the latter case from natural liberty also.
In the class with those mentioned ought to be included those who have not been willing, except for pay, to do what they were bound to do from duty.
XVIII. What if the promise has been motived by a just fear according to the law of nature?
But one who has given cause why he ought to suffer violence, or ought to be constrained by fear, has himself to blame for it. For an involuntary act, which has its origin in a voluntary act, is morally considered a voluntary act.
XIX. What of the fear, which is considered just by the law of nations?
But by the consent of nations the rule has been introduced that all wars declared and waged by the authority of the sovereigns on both sides should be considered lawful as regards their external effects, of which we shall speak below; and so also it follows that the fear of such a war is considered as just up to the point that what has been obtained by it cannot be demanded hack. In this sense the distinction of Cicero can be admitted, between public enemies, on the one side, with whom by the agreement of nations we have, as he says, many rights in common, and on the other side pirates and robbers. For if pirates and robbers have extorted anything by fear its return can be demanded, unless an oath prevents; but such a demand cannot be made on public enemies.
The opinion of Polybius, therefore, that the Carthaginians had a just cause for the Second Punic War, because the Romans by threatening war had forced from them the island of Sardinia, and also money, when they were occupied with the revolt of their mercenaries, has a certain appearance of natural justice; it is, however, at variance with the law of nations, as will be explained elsewhere.
XX. To what extent civil authorities are liable for loss caused by their subjects; wherein is the question of captures made at sea from allies contrary to public command.
1. Kings and public officials are liable for neglect if they do not employ the remedies which they can and ought to employ for the prevention of robbery and piracy. On this account the inhabitants of Scyros were in ancient times condemned by the Amphictyonic League.
At a time when the rulers of our country had given to very many persons letters of marque and reprisal as against the enemy at sea, and some of these had seized the property of friends, had abandoned their native land and were wandering about at sea without returning even when recalled, I remember that I was asked whether the authorities were liable on that account, either because they had utilized the services of wicked men, or because they had not required a bond. I replied that they were under no obligation except to punish the offenders as guilty, in case they could be found, or surrender them; that in addition they should see to it that the property of the freebooters should be rendered liable. For I maintained that they themselves had not been the cause of the wrongful freebootery, and that they had not had any share in it; that they had also forbidden by laws that friends should be harmed; that they had not been bound by any law to require a bond, since even without a letter of marque they could give to all their subjects the right of plundering the enemy, as had formerly been done; that such a permission was not the cause of loss inflicted on allies, since even without such a permission private persons could fit out vessels and go to sea; I said that in truth it could not have been foreseen, whether the men were going to be wicked men; and that in truth we could not avoid utilizing the services of wicked men, that otherwise an army cannot be collected.
2. Kings, again, are not liable if their soldiers or sailors have injured friends contrary to orders; and this rule has been approved by witness of France and England. The liability of one for the acts of his servants without fault of his own does not belong to the law of nations, according to which this question has to be settled, but to municipal law; and that not a universal rule, but one introduced as against sailors and some other persons for particular reasons. A decision was rendered to that effect by the judges of the supreme court against certain Pomeranians; and this decision was in accordance with a precedent established two centuries earlier in a similar case.
XXI. That according to the law of nature no one is liable for damage done by his animal or his vessel without his fault.
This also is to be noted, that it is likewise a principle of municipal law that a slave or animal, which has caused damage or loss, is to be delivered up for punishment. For by the law of nature the owner who is not in fault is not in any degree liable.
Furthermore, he is not liable whose ship without fault on his part has caused damage to the ship of another. Yet by the laws of many peoples, as also by our laws, it is customary that such a loss be divided, on account of the difficulty of fixing the blame.
XXII. That damage may be caused to reputation and honor, and how it may be repaired.
But, as we have said, damage is also done to honor and reputation, as by blows, insults, abuse, calumny, derision, and other similar means. In these acts, no less than in theft and other crimes, the criminality of the act must be distinguished from its effects. For to the former punishment corresponds, and reparation for the loss to the latter; and reparation is made by confession of the fault, by manifestation of honor, by witness of innocence, and through the other means which are similar to these. Nevertheless, such a damage may be made good with money, if the injured party so desires, because money is the common measure of useful things.