Benjamin Franklin Papers
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From the Casuist: The Case of the Trespassing Horse, 16 December 1729

From the Casuist: The Case of the Trespassing Horse6

Printed in The Pennsylvania Gazette, December 16, 1729.

To the Printers of the Pennsylvania Gazette.

I send you here an Answer to a Query in your last Paper.7 It is there said A Man by Night shot a trespassing Horse in his Corn-field, taking the Horse for a Deer. Then it is queried Whether he ought to pay for the same, since it was by Mistake, and the Horse a Trespasser.

I Answer, the Man who kill’d the Horse ought to pay for the same, for two Reasons; First, because the Mistake was not barely accidental, but had more of Rashness in it; And secondly, Because the Law has provided Redress for such as have Damage by trespassing Cattle.

It may be added that the Death of the Horse was a greater Loss to the Owner, than the Damage done in the Corn-field could amount to; and if it were not, the Law (regarding every Man’s Property impartially) does not privilege any Man, so injured, to take his own Satisfaction. Besides the ill Practice of Night-watching to shoot Venison is unwarrantable, in as much as a Man by so doing undertakes to perform what he knows he cannot see to do without great Danger of committing worse Mistakes than shooting of Horses, as have heretofore happen’d when Men have been shot for Deer. Yours,

The Casuist

[Note numbering follows the Franklin Papers source.]

6The Gazette of Jan. 18, 1732, printed another query to the Casuist about rights, liabilities, and a horse. It referred to the discussion here reprinted and the Casuist answered it on Jan. 25 (see below, pp. 221–6). Since BF was demonstrably writing as “the Casuist” in 1732 he was probably that character in 1729.

7The query appeared at the end of a news note from Burlington, N. J., dated Nov. 30, in the Gazette, Dec. 9: “On the 15th Instant, at Night, one John Antrum was watching for Venison in his Cornfield, and a Horse happening to come into the Field, he took him for a Deer, and shot him dead; it is said he must pay for the same. Query, Whether he ought to pay for the same, since it was by Mistake, and the Horse a Trespasser.”

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