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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, though 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 versañe 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 society, will appear afterward *. In general, the rules above mentioned are dictated by the moral 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 making 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, society would scarce be a confortable state. Laying conscience aside, pecuniary reparation is the only remedy that can be provided against culpable omissions; and with re


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Sect. 7.

spect to culpable commissions, the necessity of reparation is still more apparent; for conscience alone, without the sanction of reparation, would seldom have authority'sufficient to restrain us from acting rashly or uncautiously, even where the possibility 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 sufferer, who has not been culpable in any degree.

In every case 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 sort of punishment for his fault, and is bestowed on the other to make up the loss he has sustained. But in numberless cases 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

up his loss, which money cannot do, but only as a solatium 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 so. 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 consequence of such errors with respect to reparation. The latter case is clear: the person who occasionally suffers loss by a right action, has not a claim for reparation, because he has no just cause 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 judgment, will not relieve him from reparation. When he is made sensible of his error, he feels himself bound in conscience to repair the harm he has done by a wrong action: and others, sensible of his error from the beginning, have the same feeling: nor will his obstinacy in resisting conviction, nor his dulness 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 suffers an exception with respect to one who, having undertaken a trust, is bound in duty to act. A judge is in that state: it is his duty to pronounce sentence in every case that comes before him; and if he judge according to his knowledge, he is not liable for consequences. A judge cannot be subjected to reparation, unless the judgment he gave was intentionally wrong. An officer of the revenue is in the same predicament. Led by a doubtful clause in a statute, he makes a seizure of goods as forfeited to the crown, which afterward, in the proper court, are found not to be seizable: he ought not to be subjected to reparation, if he have acted to the best of his judgment. This rule, however, must be taken with a limitation: a public officer who is grossly ignorant, will not be excused; for he ought to know better.

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

unruly horse in Lincoln's-Inn Fields, to tame him, "and the horse breaking from A, run over B and "grievously hurt him; B shall have an action "against A: for though the mischief was done against the will of A, yet since it was his fault "to bring a wild horse into a frequented place "where mischief might ensue, he must answer for "the consequences." Gaius seems to carry this rule still farther, holding in general, that if a horse,


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by the weakness or unskilfulness of the rider, break away and do mischief, the rider is liable *. But Gaius probably had in his eye a frequented place, where the mischief might have been foreseen. Thus in general, a man is made liable for the mischief occasioned by his voluntary deed, though the immediate act that occasioned the mischief be involuntary.


Final Causes of the foregoing Laws of Nature.


EVERAL final causes have been already mentioned, which could not conveniently be reserved for the present section, being necessary for explaining the subjects to which they relate; the final cause for instance of erecting a standard of morals upon the common sense of mankind. I proceed now to what have not been mentioned, or but slightly mentioned.

The final cause that presents itself first to view, respects man considered as an accountable being. The sense of being accountable, is one of our most vigilant guards against the silent attacks of vice. When a temptation moves me it immediately occurs, What will the world say? I imagine my friends expostulating, my enemies reviling-it



*L. 8. § 1. ad leg. Aquil.

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