A

*

happen to would one paffing accidentally, without calling aloud to keep out of the way, the action is in fome degree culpable, because the mischief might have been foreseen. But though mifchief enfue, an action is not culpable or faulty if all reasonable precaution have been adhihited: the moral fenfe declares the author to be innocent and blameless: the mifchief is accidental, and the action may be termed unlucky but comes not under the denomination of either right or wrong. In general when we act merely for amufement, our nature makes us answerable for the harm that ensues, if it was either forefeen or might with due attention have been foreseen. But our rights and privileges would profit us little, if their exercise were put under the fame reftraint: it is more wifely ordered, that the probability of mifchief, even foreseen, fhould not restrain a man from profecuting his concerns which may often be of confequence to him. He proceeds accordingly with a fafe confcience, and is not afraid of being blamed either by God or

man.

With respect to rash or uncautious actions, where the mifchief might have been forefeen though not actually foreseen, it is not fufficient to escape blame, that a man, naturally rafh or inattentive, acts according to his character: a degree of precaution is required, both by himself and by others, fuch as is natural to the generality of men: he perceives that he might and ought to have acted more cautioufly; and his confcience reproaches him for his inattention, no lefs than if he were naturally more feda e and attentive. Thus the circumfpection natural to mankind in general, is applied as a standard to every individual; and if they fall short of that standard, they are culpab'e and blameable, however unforeseen by them the mifchief may have been.

What is faid upon culpable actions is equally applica ble to culpable omiffions; for by thefe alfo mifchief may be occafioned, entitling the fufferer to reparation. If we forbear to do our duty with an intention to occafion

*Innocent here is oppofed to culpable; in a broader fenfe it is oppofed to criminal. With refpect to punishment, an action though culpable is innocent, if it be not criminal: with retpect to reparation, it is not innocent if it be culpable.

Book III. fion mifchief, the forbearance is criminal. The only queftion is, how far forbearance without fuch intention is culpable. Suppofing the probability of mifchief to have been forefeen, though not intended, the omission is highly culpable; and though neither intended nor foreseen, yet the omiffion is culpable in a lower degree, if there have been lefs care and attention than are proper for performing the duty required. But fuppofing all due care, the omiffion of extreme care and diligence is not culpable.

By afcertaining what acts and omiffions are culpable or faulty, the doctrine of reparation is rendered extremely fimple; for it may be laid down as a rule without a fingle exception, That every culpable act, and every culpable omiffion, binds us in confcience to repair the mifchief occafioned by it. The moral fenfe binds us no farther; for it loads not with reparation the man who is blameless and innocent: the harm is accidental; and we are fo conftituted as not to be responsible in confcience for what happens by accident. But here it is requifite, that the man be in every refpect innocent: for if he intend harm, though not what he has done, he will find himself bound in confcience to repair the accidental harm he has done; as, for example, when aiming a blow unjustly at one in the dark, he happens to wound another whom he did not fufpect to be there. And hence it is a rule in all municipal laws, That one verfans in illicito is liable to repair every confequent damage. That thefe particulars are wifely ordered by the Author of our nature for the good of fociety, will appear afterwards (a). In general, the rules above mentioned are dictated by the moral fenfe; and we are compelled to obey them by the principle of reparation.

We are now prepared for a more particular infpection of the two ends of reparation above mentioned, viz. the repreffing wrongs that are not criminal, and the making up what lofs is fuftained by wrongs of whatever kind. With refpect to the firft, it is clear, that punishment, in its proper fenfe, cannot be inflicted for a wrong that is culpable only; and if nature did not provide fome means for repreffing fuch wrongs, fociety would

(a) Sect. 7.

would scarce be a comfortable state. Laying confcience afide, pecuniary reparation is the only remedy that can be provided againft culpable omiffions: and with refpect to culpable commiffions, the neceffity of reparation is ftill more apparent; for confcience alone, without the fanction of reparation, would feldom have authority fufficient to refrain us from acting rafhly or uncautiously, even where the poffibility of mischief is foreseen, and far lefs where it is not foreseen.

With respect to the fecond end of reparation, my confcience dictates to me, that if a man fuffer by my fault, whether the mischief was foreseen or not foreseen, it is my duty to make up his lofs; and I perceive intuitively, that the lofs ought to reft ultimately upon me, and not upon the fufferer, who has not been culpable in any degree.

In every cafe where the mifchief done can be eftimated by a pecuniary_compenfation, the two ends of reparation coincide. The fum is taken from the one as a fort of punishment for his fault, and is bestowed on the other to make up the lofs he has fuftained. But in numberless cafes where mifchief done cannot be compensated with money, reparation is in its nature a fort of punishment. Defamation, contemptuous treatment, perfonal restraint, the breaking one's peace of mind, are injuries that cannot be repaired by money; and the pecuniary reparation decreed against the wrong-doer, can only be a fort of punishment, in order to deter hin from reiterating fuch injuries: the fum, it is true, is awarded to the perfon injured; but not as fufficient to make up his lofs, which money cannot do, but only as a folatium for what he has fuffered.

Hitherto it is fuppofed, that the man who intends a wrong action, is, at the fame time, confcious of its being fo. But a man may intend a wrong action, thinking erroneously that it is right; or a right action, thinking erroneously that it is wrong; and the question is, What shall be the confequence of fuch errors with respect to reparation. The latter cafe is clear: the perfon who occafionally fuffers lofs by a right action, has not a claim for reparation, because he has no juft cause of complaint. On the other hand, if the action be

wrong,

wrong, the innocence of the author, for which he is indebted to an error in judgment, will not relieve him from reparation. When he is made fenfible of his error, he feels himself bound in confcience to repair the harm he has done by a wrong action: and others, fenfible of his error from the beginning, have the fame feeling nor will his obftinacy in refifting conviction, or his dullness in not apprehending his error, mend the matter! it is well that these defects relieve him from punishment, without wronging others by denying a claim for reparation. A man's errors ought to affect himself only, and not those who have not erred. Hence in general, reparation always follows wrong; and is not affected by any erroneous opinion of a wrong action being right, more than of a right action being wrong. But this doctrine fuffers an exception with refpect to a man, who having undertaken a trust, is bound in duty to act. A judge is in that fituation: it is his duty to pronounce fentence in every cafe that comes before him; and if he judge according to the beft of his knowledge, he is not liable for confequences. A judge cannot be fubjected 10 reparation, unless it can be verified, that the judgment he gave was intentionally wrong. An officer of the revenue is in the fame predicament. Led by a doubtful clause in a ftatute, he makes a feizure of goods as forfeited to the crown, which afterwards, in the proper court, are found not to be feizable, The officer ought not to be fubjected to reparation, if he have acted to the beft of his judgment. This rule however must be taken with a limitation: a public officer who is grofsly erroneous, will not be excufed; for he ought to know better.

Reparation is due, though the immediate act be involuntary, provided it be connnected with a preceding voluntary act. Example: "If A ride an unruly

"horfe in Lincolns-inn fields, to tame him, and the "horfe breaking from A, run over B and grievously "hurt him; B hall have an action against A: for

66

though the mifchief was done against the will of A, "yet fince it was his fault to bring a wild horfe into a "frequented place, where mifchief might enfue, he "muft answer for the confequences." Gaius seems

39 to carry this rule ftill farther, holding in general, that if a horfe, by the weakness or unfkilfulness of the rider, break away and do mifchief, the rider is liable (a). But Gaius probably had in his eye a frequented place, where the mifchief might have been foreseen. Thus in general a man is made liable for the mifchief occafioned by his voluntary deed, though the immediate act that occafioned the mischief be involuntary.

SECT.

VII.

FINAL CAUSES of the foregoing Laws of Nature.

SEV

EVERAL final caufes have been occafionally mentioned in preceding parts of this effay, which could not conveniently be referved for the prefent fection, being neceffary for explaining the fubjects to which they relate, the final caufe for inftance of erecting a standard of morals upon the common fenfe of mankind. I proceed now to what have not been mentioned, or but flightly mentioned.

The final caufe that prefents itself first to view, refpects man confidered as an accountable being. The fenfe of being accountable, is one of our moft vigilant guards against the filent attacks of vice. When a temptation moves me, it immediately occurs, What will the world fay imagine my friends expoftulating, my enemies reviling - I dare not diffemble my fpirits fink -the temptation vanishes. 2dly, Praife and blame, efpecially from thofe we regard, are ftrong incentives to virtue but if we were not accountable for our conduct, praife and blame would be seldom well directed; for how fhould a man's intentions be known, without calling him to account? And praise or blame, frequently ill-directed, would lose their influence. 3dly, This branch of our nature, is the corner-ftone of the criminal law. Did not a man think himfelf accountable to all the the world, and to his judge in a peculiar manner, it would be natural for him to think, that the jufteft fentence pronounced against him, is oppreffion, not juftice. 4thly, This branch is a strong cement to fociety. If we were not accountable beings, thofe connected by blood

(a) 1. 8. § 1. ad leg. Aquil.