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A crime againft any primary virtue is attended with severe and never-failing punishment, more efficacious than any that
harm that ensues, however accidentally; and from the resemblance of pecuniary punilhment to reparation, the rule was childishly extended to punishment. But this rule, so little consistent with moral principles, could not long fubfift after pecuniary compositions gave place to corporal punishment ; and accordingly, among civilized nations, the law of nature is restored, which prohibits punishment for any mischief that is not intentional. The English must be excepted, who, remarkably tenacious of their original laws and customs, preserve in force, even as to capital punishment, the above-mentioned rule that obtained among barbarians, when pecuniary compositions were in vigour. The following paffage is from Hales (Pleas of the Crown, chap. 39.).
Regularly he that voluntarily and knowingly in" tends hurt to the person of a man, as for example rs to beat him, tho'he intend not death, yet if “ death ensues, it excuseth not from the guilt of “ murder, or manslaughter at least, as the circum“ stances of the case happen." And Foster, in his Crown-law, teaches the fame doctrine, never once fufpecting in it the least deviation from moral principles.“ A fhooteth at the poultry of B, and by 66 accident killeth a man: if his intention was to “ steal the poultry, which must be collected from « circumstances, it will be murder by reason of 66 that felonious intent; but if it was done wanton. “ ly, and without that intention, it will be barely " mansaughter.” (p. 259.)
have been invented to enforcé municipal laws : on the other hand, the preserving primary virtues inviolate, is attended with little merit. The secondary virtues are directly opposite: the neglecting them is not attended with any punishment; but the practice of them is attended with illustrious rewards. Offices of undeferved kindness, returns, of good for ill, generous toils and sufferings for our friends or for our country, are attended with consciousness of self-merit, and with universal praise and admiration; the highest rewards a generous mind is susceptible of.
From what is said, the following observation will occur : The pain of transgressing justice, fidelity, or any duty, is much greater than the pleasure of performing ; but the pain of neglecting a generous action, or any secondary virtue, is as nothing compared with the pleasure of performing. Among the vices opposite to the primary virtues, the most striking moral deformity is found ; among the secondary virtues, the most striking moral beauty.
THE principle of reparation is made a
branch of the moral system for accomplishing two ends : which are, to repress wrong's that are not criminal, and to make up the loss sustained by wrongs of whatever kind. With respect to the former, reparation is a species 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 necesfary. First, actions that we are bound to perform. Second, actions that we perform in prosecution of a right or privilege. Third, indifferent actions, defcribed above. Actions of the first kind subject not a man to reparation, whatever damage ensues ;
ensues ; because it is his duty to perform them, and ii 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 focial state, highly beneficial by affording opportunity for mutual good offices, is attended with some inconveniencies; 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 fubfervient to mine: on the other hand, if such foresight restrain me from exercising my right, my interest is made fubfervient 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 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 possibly happen. The first branch of the rule resolves into a proposition established above, That no interest of mine, not even life itself, will authorise VOL.IV.
me to hurt an innocent person. The other branch is supported by expediency: for if the bare possibility of hurting others were fufficient 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 beware.
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 re