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paration. 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 fometimes 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 enfue, tho' he has no intention to hurt any person. As to the latter case, 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 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 * Innocent here is opposed to culpable : in a broader sense it is opposed to criminal. With respect to punishment, an action tho'culpable is in. nocent, if it be not criminal : with respect to repa. sation, it is not innocent if it be culpable.
because the mischief might have been foreseen. But tho' 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
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 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 tho' 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 fedate 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
have been What is said upon culpable actions, is equally applicable to culpable omissions ; for by these also mischief may be occafioned, 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 - fuch intention is culpable; fupposing the probability of mischief to have been foreseen, tho' not intended, the omission is highly culpable; and tho' 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
* Culpa lata equiparatur 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 effence of a crime confifts in the intention to do mischief; upon which account no fault or culpa however gross a. mounts to a crime. But may not gross negligence be a subject of punishment ? A jailor fees a state. prisoner taking steps to make his escape ; and yec 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 punilhed, he escapes free.
farther; for it loads not with reparation the man who is blameless and innocent: the harm is accidental; and we 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, tho' 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 verfans 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 fociety, will appear afterward (a). In general, the rules above mentioned are dictated by the moral sense; 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 ma(a) Sect. 7.