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lity of mischief to have been foreseen, tho' not intended, the omission is highly culpable; and tho' neither intended nor foreseen, yet the omission is culpable in a lower degree, if there have been lefs care and attention than are proper in performing the duty required. But supposing all due care, the omission of extreme care and diligence is not culpable *.
By ascertaining what acts and omiffions are culpable or faulty,' the doctrine of reparation is rendered extremely simple; for it may
be laid down as a rule without a single exception, That every culpable act, and every culpable omission, binds us in conscience to repair the mischief occasioned by it. The moral sense binds us no
* Culpa lata equiparatur dolo, says the Roman law. They are equal with respect to reparation and to every civil confequence; but they are certainly not equal in a criminal view. The essence of a crime consists in the intention to do mischief; upon which account no fault or culpa however gross a. mounts to a crime. But may not gross negligence be a subject of punishment ? A jailor fees a stateprisoner taking steps to make his efcape ; and yet will not give himself the trouble to prevent it; and so the prisoner escapes. Damages cannot be qualified, because no person is hurt; and if the jailor cannot be punished, he escapes free.
farther; for it loads not with reparation the man who is blameless and innocent : the harm is accidental; and we are so constituted as not to be responsible in conscience for what happens by accident. But here it is requisite, that the man be in every respect innocent: for if he intend harm, tho' not what he has done, he will find himself bound in conscience 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 suspect to be there. And hence it is a rule in all municipal laws, That one verfans in illicito is liable to repair every consequent damage. That these particulars are wisely ordered by the Author of our nature for the good of fociety, will appear afterward (a). In general, the rules above mentioned are dictated by the moral sense; and we are compelled to obey them by the principle of reparation.
We are now prepared for a more particular inspection of the two ends of
reparation above mentioned, The repressing wrongs that are not criminal, and the ma(a) Sect. 7.
king up what loss is sustained by wrongs of whatever kind. With respect to the first, it is clear, that punishment in its proper sense cannot be inflicted for a wrong that is culpable only; and if nature did not provide some means for repressing such wrongs, fociety would scarce be a comfortable state. Laying conscience aside, pecuniary reparation is the only remedy that can be provided against culpable omissions : and with respect to culpable commissions, the necessity of reparation is still more apparent ; for conscience alone, without the sanction of reparation, would feldom have authority sufficient to restrain us from acting rashly or uncautiously, even where the poflibility of mischief is foreseen, and far less where it is not foreseen. With respect to the second end of
reparation, my conscience dictates to me, that if a man suffer by my fault, whether the mischief was foreseen or not foreseen, it is my duty to make up his loss; and I
perceive intuitively, that the loss ought to rest ultimately upon me, and not upon the fufferer, who has not been culpable in any degree.
In every cafe where the mischief done can be estimated by a pecuniary compensation, the two ends of reparation coincide. The sum is taken from the one as a fort of punishment for his fault, and is bestow'd on the other to make up the loss he has fustained. But in numberless cafes where mischief done cannot be compensated with money, reparation is in its nature a sort of punishment. Defamation, contemptuous treatment, personal restraint, the breaking one's peace of mind, are injuries that cannot be repaired with money; and the pecuniary reparation decreed against the wrong-doer, can only be considered as a punishment inflicted in order to deter him from reiterating such injuries : the sum, it is true, is awarded to the person injured; but not as sufficient to make
his loss, which money cannot dọ, but only as a folatium for what he has suffered.
Hitherto it is supposed, that the man who intends a wrong action, is at the same time conscious of its being fo. But a man may intend a wrong action, thinking erroneously that it is right; or a right action, thinking erroneoully that it is VOL. IV.
wrong; and the question is, What shall be the consequence of such errors with refpect to reparation. The latter case is clear: the perfon who occafionally fuffers Joss by a right action, has not a claim for reparation, because he has no juft caufe of complaint. On the other hand, if the action be wrong, the innocence of the author, for which he is indebted to an error in judgement, will not relieve him from reparation. When he is made fenfible of his error, he feels himself bound in conscience to repair the harm he has done by a wrong action : and others, fenfible of his error from the beginning, have the same feeling : nor will his obstinacy in resisting conviction, nor 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 folJows wrong; and is not affected by any erroneous opinion of a wrong action being right, more than of a right action being wrong