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cution of a right or privilege. Third, indifferent actions, described above. Actions of the first kind subject not a man to reparation, whatever damage ensues; because it is his duty to perform them, and it would be inconsistent with morality that a man should be subjected to reparation for doing his duty. The laws of reparation that concern actions of the second kind, are more complex. The social state, highly beneficial by affording opportunity for mutual good offices, is attended with some inconveniences; as where a person happens to be in a situation of necessarily harming others by exercising a right or privilege. If the foresight of harming another restrain me not from exercising my right, the interest of that other is made subservient to mine: on the other hand, if such foresight restrain me from exercising my right, my interest is made subservient to his. What doth the moral sense provide in that case? To preserve as far as possible an equality among persons born free and by nature equal in rank, the moral sense dictates a rule, no less beautiful than sahtary; which is, That the exercising a right will not justify me for doing direct mischief; but will justify me, though I foresee that mischief may possibly happen. The first branch of the rule resolves into a proposition established above, That no insterest of mine, not even life itself, will authorise me to hurt an innocent person. The other branch is supported by expediency: for if
the bare possibility of hurting others were sufficient to restrain a man from prosecuting his rights and privileges; men would be too much cramped in action, or rather would be reduced to a state of absolute inactivity. With respect to the first branch, I am criminal, and liable even to punishment: with respect to the other, I am not even culpable, nor bound to repair the mischief that happens to ensue. But this proposition admits a temperament, which is, that if any danger be foreseen, I am in some degree culpable, if I be not at due pains to prevent it. For example, where in pulling down an old house I happen to wound one passing accidentally, without calling aloud to be
With respect to indifferent actions, the moral
sense dictates, that we ought carefully to avoid
doing mischief, either direct or consequential. As we suffer no loss by forbearing actions that are done for pastime merely, such an action is culpable or faulty, if the consequent mischief was foreseen
or might have been foreseen; and the actor of course is subjected 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 foresee, that what he is about to do will probably or possibly produce mischief; and sometimes mischief follows that was neither intended nor foreseen. The action in the former case is not criminal; because
ill intention is essential to a crime; but it is culpable or faulty; and if mischief ensue, 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 mischief will probably ensue, though he has no intention to hurt any person. As to the latter case, though mischief was neither intended nor foreseen, yet if it might have been foreseen, the action is rash or uncautious, and consequently culpable or faulty in some degree. Thus, if a man shooting at a mark for recreation near a high road, happen to wound one passing accidentally, without calling aloud to keep out of the way, the 'action is in some degree culpable, because the mischief might have been foreseen. But though mischief ensue, an action is not culpable or faulty if all reasonable precaution have been adhibited: the moral sense 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 answerable for the harm that ensues, if it was either foreseen or
* Innocent here is opposed to culpable: in a broader sense it is opposed to criminal. With respect to punishment, an action though culpable is innocent, if it be not criminal: with respect to reparation, it is not innocent if it be culpable.
might with due attention have been foreseen. But our rights and privileges would profit us little, if their exercise were put under the same restraint: it is more wisely ordered, that the probability of mischief, even foreseen, should not restrain a man from prosecuting his concerns, which may often be of consequence to him; provided that he act with due precaution. He proceeds accordingly with a safe conscience, and is not afraid of being blamed either by God or man.
With respect to rash or uncautious actions, where the mischief might have been foreseen though not actually foreseen; it is not sufficient to escape blame, that a man, naturally rash 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 conscience reproaches him for his inattention, no less than if he were naturally more sedate and attentive. Thus the circumspection natural to mankind in general, is applied as a standard to every individual; and if a man fall short of that standard, he is culpable and blameable, however unforeseen by him the mischief may have been.
What is said upon culpable actions, is equally applicable to culpable omissions; for by these also mischief may be occasioned, entitling the sufferer to reparation. If we forbear to do our duty with
an intention to occasion mischief, the forbearance is criminal. The only question is, how far forbearance without such intention is culpable: supposing the probability of mischief to have been foreseen, though not intended, the omission is highly culpable; and though neither intended nor foreseen, yet the omission is culpable in a lower degree, if there have been less 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 omissions 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 farther; for it loads not with reparation the man who is blame·less and innocent: the harm is accidental; and we
*Culpa lata æquiparatur dolo, says the Roman law. They are equal with respect to reparation and to every civil consequence; 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, amounts to a crime. But may not gross negligence be a subject of pu nishment? A jailor sees a state-prisoner taking steps to make his escape; 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.