SECT. VI.

Laws refpecting REPARATION.

THE principle of reparation is made a branch of the moral syftem for accomplishing two ends: which are, to reprefs wrongs that are not criminal, and to make up the loss sustained by wrongs of whatever kind. With respect to the former, reparation is a fpecies of punishment: with respect to the latter, it is an act of justice. These ends will be better understood, after ascertaining the nature and foundation of reparation; to which the following division of actions is neceffary. First, actions that we are bound to perform. Second, actions that we perform in profecution of a right or privilege. Third, indifferent actions, defcribed above. Actions of the first kind fubject not a man to reparation, whatever damage enfues; because it is his duty to perform them, and it would be inconfiftent with morality that a man fhould be fubjected to reparation for doing his duty. The laws of reparation that concern actions of the fecond kind, are more complex. The focial ftate, highly beneficial by affording opportunity for mutual good offices, is attended with fome inconveniencies; as where a perfon happens to be in a fituation of neceffarily harming others by exercising a right or privilege. If the forefight of harming another, restrain me not from exercifing my right, the interest of that other is made fubfervient to mine: on the other hand, if fuch forefight reftrain me from exercising my right, my intereft is made fubfervient to his. What doth the moral fenfe provide in

that

uality among per

that cafe? To preferve as far as poffible an fons born free, and by nature equal in rank, the moral fenfe lays down a rule, no lefs beautiful than falutary; which is, That the exercising a right will not justify me for doing direct mischief; but will justify me, tho' I foresee that mischief may poffibly happen. The first branch of the rule refolves into a propofition established above, viz. That no interest of mine, not even life itself, will authorise me to hurt an innocent perfon. The other branch is fupported by expediency: for if the bare poffibility of hurting others were fufficient to restrain a man from profecuting his rights and privileges, men would be too much cramped in action; or rather would be reduced to a state of abfolute inactivity. With respect to the first branch, I am criminal, and liable even to punifhment: with refpect to the other, I am not even culpable, nor bound to repair the mischief that happens to ensue.

With respect to the third kind, viz. indifferent actions, the moral sense dictates, that we ought carefully to avoid doing mischief, either direct or confequential. As we fuffer no lofs by forbearing actions that are done for pastime merely, fuch an action is culpable or faulty, if the consequent mischief was foreseen or might have been forefeen; and the actor of courfe is fubjected to reparation. As this is a cardinal point in the doctrine of reparation, I shall endeavour to explain it more fully. Without intending any harm, a man may forefee, that what he is about to do will probably or poffibly produce mischief; and fometimes mischief follows that was neither intended nor forefeen. The action in the former cafe is not criminal; because ill intention is effential to a crime but it is culpable or faulty; and if mischief enfue, the actor blames himself, and is blamed by others, for having done what he ought not to have done. Thus, a man who throws a large stone among a crowd of people, is highly culpable; because he must foresee that mifchief will probably enfue, tho' he has no

intention

intention to hurt any perfon. As to the latter cafe, tho' mischief was neither intended nor foreseen, yet if it might have been foreseen, the action is rash or uncautious, and confequently culpable or faulty in fome degree. Thus, if a man in pulling down an old house, happen to wound 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 tho' mischief enfue, an action is not culpable or faulty if all reafonable precaution have been adhibited: the moral fenfe declares the author to be innocent * and blameless: the mischief 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 amusement, our nature makes us anfwerable for the harm that enfues, if it was either foreseen or might with due attention have been forefeen. But our rights and privileges would profit us little, if their exercise were put under the fame restraint it is more wifely ordered, that the probability of mifchief, even foreseen, should 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 refpect to rash or uncautious actions, where the mifchief 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, such as is natural to the generality of men he perceives that he might and ought to have acted more cautiously; and his confcience reproaches him for his inattention,

• Innocent here is oppofed to culpable: in a broader fenfe it is oppofed to criminal. With refpect to punishment, an action tho' culpable is innocent, if it be not criminal: with refpect to reparation, it is not innocent if it be culpable.

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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 they fall fhort of that standard, they are culpable and blameable, however unforeseen by them the mischief may have been.

What is faid upon culpable actions is equally applicable to culpable omiffions; for by these alfo 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 queftion is, how far forbearance without such intention is culpable. Suppofing the probability 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 for performing the duty required. But fuppofing all due care, the omiffion 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 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 constituted 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, 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 con

fequent

fequent damage. That thefe 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, viz. the repreffing wrongs that are not criminal, and the making up what lofs is fuftained by wrongs of whatever kind. With respect 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 confcience afide, pecuniary reparation is the only remedy that can be provided against culpable omiffions: and with refpect to culpable commiflions, the neceffity of reparation is still more apparent; for confcience alone, without the fanction of reparation, would seldom have authority fufficient to restrain us from acting rafhly or uncautiously, even where the poffibility of mischief 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 suffer 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,

(a) Se&. 7. VOL. II.

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