paration. As this is a cardinal point in the doctrine of reparation, 1 fhall endeavour to explain it more fully. Without intending any harm, a man may foresee, that what he is about to do will probably or poffibly produce mifchief; and fometimes mifchief 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 mifchief 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 ftone 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 perfon. As to the latter cafe, tho' mischief was neither intended nor forefeen, yet if it might have been forefeen, the action is rafh or uncautious, and confequently culpable or faulty in fome degree. Thus, if a man, fhooting at a mark for recreation near a high road, happen to wound one paffing accidentally, without calling aloud to keep out of the way, the action is in fome degree culpable,, because

I 2

*

because the mifchief might have been foreseen. But tho' mifchief enfue, an action is not culpable or faulty if all reasonable precaution have been adhibited; the moral fenfe declares the author to be innocent and blamelefs: the mifchief 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 enfues, if it was either forefeen or might with due attention have been foreseen. 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 mischief, even forefeen, fhould not reftrain a man from profecuting his concerns, which may often be of confequence to him; provided that he act with due precaution. He proceeds accordingly with a fafe confcience, and is not afraid of being blamed either by God or man.

: in a

* Innocent here is oppofed to culpable 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.

With respect to rash or uncautious actions, where the mischief might have been foreseen tho' not actually forefeen; 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, fuch 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, 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 a man fall short of that standard he is culpable and blameable, however unforeseen by him the mischief may have been.

What is faid upon culpable actions, is equally applicable to culpable omiffions; for by these alfo mifchief 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 question is, how far forbearance without fuch intention is culpable; fuppofing the probabi

lity 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 in performing the duty required. But fupposing all due care, the omiffion of extreme care and diligence is not culpable *.

By afcertaining 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 mischief occafioned by it. The moral fenfe binds us no

*Culpa lata equiparatur dolo, fays the Roman law. They are equal with refpect to reparation and to every civil confequence; 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 grofs amounts to a crime. But may not grofs negligence be a fubject of punishment? A jailor fees a ftateprifoner taking fteps to make his efcape; and yet will not give himself the trouble to prevent it; and fo the prifoner efcapes. Damages cannot be qualified, becaufe no perfon is hurt; and if the jailor cannot be punished, he escapes free.

farther;

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 refponfible in conscience for what happens by accident. But here it is requifite, 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 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 confequent damage. That these particulars are wifely ordered by the Author of our natúre 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, The repreffing wrongs that are not criminal, and the ma(a) Sect. 7.