an exception to a positive precept, nor any preponderance in favour of an opposite determination. Consequently, as the writer to Herennius says, what is positively prescribed is more powerful than a bare permission.

In the next place what is required to be one at a FIXED time should have the preference to what may be done at ANY time. From whence it follows that the PROHIBITIONS of a treaty are generally of more weight than its INJUNCTIONS: because the prohibitory power operates at ALL times. But it is not so with injunctions, unless an express time for their fulfilment is named, or they contain a tacit prohibition.

Among those treaties, which, in the above named respects, are equal, the preference is given to such as are more particular, and approach nearer to the point in question. For where particulars are stated, the case is clearer, and requires fewer exceptions than general rules do.*

Those prohibitions which have a penalty annexed to them, are of greater weight than those, which have not; and those with a greater penalty are enforced in preference to those that have a less. Those engagements also which are founded upon causes of less magnitude and importance ought to give way to those which have more laudable and useful objects in view.

Lastly it is to be observed that a subsequent law or treaty always repeals a former.

From what has been said an inference may be drawn in favour of sworn treaties or agreements that they ought to be taken in the most usual acception of the words, rejecting all implied limitations and exceptions, and such as are not immediately necessary to the subject. Consequently in a case, where a sworn treaty or engagement may happen to clash with another not enforced by the obligation of an oath, the preference ought to be given to the former.

XXX. It is often asked whether in doubtful points, a contract should be deemed perfect, before the writings

*To illustrate the nature of GENERAL AND PARTICULAR cases, the following example is taken from the Puffendorf:-"One law forbids us to appear in public with arms on holidays: another law commands us to turn out under arms and repair to our posts, as soon as we hear the sound of the alarm bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former."-Jur. Gent, lib. v. c. xii. sect. 23.

are made and delivered. We find in Appian's history of the Mithridatic war, that it was upon this very ground Murena objected to the convention between Sylla and Mithridates. However it appears plain, unless it has been settled to the contrary, that writing ought to be considered admissible as evidence of a contract, though not as part of the substance, otherwise it is usually expressed, as in the truce with Nabis, which was to be ratified from the day the terms were wRITTEN and DELIVERED to him.

XXXI. We can by no means admit the rule laid down by some writers, who maintain, that all engagements of kings, and states, ought to be explained, as far as it is possible, upon the principles of the Roman law: unless indeed it can be made to appear that among some states, in their intercourse with each other, the CIVIL LAW is received as the LAW OF NATIONS; a presumption which ought not to be hastily granted.

XXXII. As to the doubt, which Plutarch advances in his Symposiacs, whether the words of the party offering, or those of the one accepting a condition ought to be most attended to, it appears that where the party accepting the terms is the promiser, the nature and substance of the transaction will depend upon his words, if they are absolute and unqualified. For if the offer is regarded as a positive engagement to do certain acts, then the full extent of it will be seen by the necessary repetition of the same words in the promise. But before a condition is accepted, it is evident, as was seen in the chapter on promises, that the promiser is not bound to its fulfilment; for no right has been conferred by the one party, or acquired by the other. Therefore the offer of a condition of this kind does not amount to a perfect promise.

CHAPTER XVII.

ON DAMAGES OCCASIONED BY INJURY AND THE OBLIGATION TO REPAIR THEM.

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On Damages occasioned by injury, and the obligation to repair them - Every misdemeanor obliges the aggressor to repair the loss - By loss is meant any thing repugnant to right strictly so called — Distinction between fitness and strict right-Loss or diminution of possession includes every injury done to the produce as well as the property itself - Loss estimated from the time that gain ceases — Injuries done by principals—By accessories — Injuries done by the neglect of principal or of secondary agents- What persons are implicated in those charges, and in what degrees-The parties engaged answerable for all consequences-The case where homicide or any other act of violence ensues - Case of robbery-Or theft — Promises obtained through fraud or unjust fear — In what cases the consequences are imputable to the suffering party-How far the law of nations authorises states to take advantage of an enemy's fear-How far sovereigns are answerable for any acts of violence committed by their subjects-The case where subjects in violation of their sovereign's permission and orders commit acts of piracy upon allied or neutral states-No one answerable by the law of nature for the mischief done by his cattle, his slaves, or his ship - Damages allowed for injuries done to reputation or honour What kind of reparation allowed.

I. IT HAS been said above that 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.

II. 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,

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 to which is the right of a legatee, when a testator has been

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 redress