With respect to rafh or uncautious actions, where the mischief might have been foreseen tho' 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 less than if he were naturally more fedate and attentive. Thus the circumfpection natural to mankind in general, is applied as a standard to every individual; and if a man fall fhort of that standard he is culpable and blameable, however unforeseen by him the mischief may have been.

What is faid upon culpable actions, is equally applicable to culpable omiffions; for by these also mischief may be occafioned, entitling the fufferer to reparation. If we forbear to do our duty with an intention to occafion mifchief, the forbearance is criminal. The only question is, how far forbearance without fuch intention is culpable: fuppofing the probabi

lity of mischief to have been foreseen, tho' not intended, the omiffion is highly culpable; and tho' neither intended nor foreseen, yet the omiffion is culpable in a lower degree, if there have been lefs care and attention than are proper in 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

*Culpa lata æquiparatur dolo, fays the Roman law. They are equal with respect to reparation and to every civil coniequence; but they are certainly not equal in a criminal view. The effence of a crime confifts in the intention to do mischief; upon which account no fault or culpa however grofs amounts to a crime. But may not grofs negligence be a fubject of punishment? A jailor fees a ftateprifoner taking fteps to make his efcape; and yet will not give himfelf the trouble to prevent it; and fo the prifoner escapes. Damages cannot be qualified, because no person is hurt; and if the jailor cannot be punished, he escapes free.

farther;

farther; for it loads not with reparation the man who is blamelefs and innocent: the harm is accidental; and we are fo constituted as not to be refponfible in confcience for what happens by accident. But here it is requifite, 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 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 these particulars are wifely 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 fenfe; 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 repreffing wrongs that are not criminal, and the ma

(a) Sect. 7. VOL. IV.

K

king

king up what lofs is fuftained by wrongs of whatever kind. With refpect to the first, 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 scarce be a comfortable state. Laying conscience afide, pecuniary reparation is the only remedy that can be provided against culpable omiffions: and with respect to culpable commiffions, the neceffity of repa→ ration is ftill more apparent; for confcience alone, without the fanction of reparation, would feldom have authority fufficient to reftrain us from acting rafhly or uncautiously, even where the poffibility of mifchief is foreseen, and far lefs where it is not forefeen.

With refpect to the fecond end of reparation, my confcience dictates to me, that if a man fuffer by my fault, whether the mifchief 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 mischief done can be estimated 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 beftow'd on the other to make up the lofs he has fuftained. But in numberlefs cafes where mifchief done cannot be compenfated with money, reparation is in its nature a fort of punishment. Defamation, contemptuous treatment, perfonal reftraint, 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 confidered as a punishment inflicted in order to deter him 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 Ka wrong;