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king up what loss is sustained by wrongs of whatever kind. With respect to the first, it is clear, that punishment in its proper fenfe cannot be inflicted for a wrong that is culpable only; and if nature did not provide fome means for repreffing fuch wrongs, fociety would scarce be a comfortable state. Laying conscience afide, pecuniary reparation is the only remedy that can be provided against culpable omiffions: and with respect to culpable commiffions, the neceffity of reparation is ftill more apparent; for confcience alone, without the fanction of reparation, would feldom have authority fufficient to restrain us from acting rafhly or uncautiously, even where the poffibility of mischief is foreseen, and far lefs where it is not foreseen.

With refpect to the fecond end of reparation, my conscience dictates to me, that if a man fuffer by my fault, whether the mifchief was forefeen or not foreseen, it is my duty to make up his lofs; and I perceive intuitively, that the lofs ought to reft ultimately upon me, and not upon the fufferer, who has not been culpable in degree.







In every cafe where the mifchief done can be estimated by a pecuniary compenfation, the two ends of reparation coincide. The fum is taken from the one as a fort of punishment for his fault, and is beftow'd on the other to make up the lofs he has fuftained. But in numberlefs cafes where mifchief done cannot be compenfàted with money, reparation is in its nature a fort of punishment. Defamation, contemptuous treatment, perfonal reftraint, 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 confidered as a punishment inflicted in order to deter him from reiterating fuch injuries the fum, it is true, is awarded to the perfon injured; but not as fufficient to make up his lofs, which money cannot do, but only as a folatium for what he has fuffered.

Hitherto it is fuppofed, that the man who intends a wrong action, is at the fame time confcious of its being fo. But a man may intend a wrong action, thinking erroneously that it is right; or a right action, thinking erroneously that it is VOL. IV. wrong;


wrong; and the queftion is, What shall be the confequence of fuch errors with refpect to reparation. The latter cafe is clear the perfon who occafionally fuffers Jofs by a right action, has not a claim for reparation, becaufe he has no juft caufe 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 judgement, will not relieve him from reparation. When he is made fenfible of his error, he feels himself bound in confcience to repair the harm he has done by a wrong action: and others, fenfible of his error from the beginning, have the fame feeling: nor will his obftinacy in refifting conviction, nor his dullness in not apprehending his error, mend the matter it is well that thefe 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 fuffers 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 fentence in every cafe that comes before him; and if he judge according to his knowledge, he is not liable for confequences. A judge cannot be fubjected to reparation, unless the judgement he gave was intentionally wrong. An of ficer of the revenue is in the fame predicament. Led by a doubtful clause in a ftatute, he makes a feizure of goods as forfeited to the crown, which afterward, in the proper court, are found not to be feizable he ought not to be subjected to reparation, if he have acted to the best of his judgement. This rule however muft be taken with a limitation: a public officer who is grofsly ignorant, will not be excused; for he ought to know better.

Reparation is due, tho' the immediate act be involuntary, provided it be connected with a preceding voluntary act. Example: "If A ride an unruly horfe in "Lincolns-inn fields, to tame him, and "the horse breaking from A, run over B " and grievously hurt him; B fhall have

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an action against A: for tho' the mif"chief was done against the will of A,

yet fince it was his fault to bring a wild "horfe into a frequented place where mif"chief might enfue, he must answer for "the confequences." Gaius feems to carry this rule ftill farther, holding in general, that if a horfe, by the weakness or unfkilfulness of the rider, break away and do mischief, the rider is liable (a). But Gaius probably had in his eye a frequented place, where the mischief might have been forefeen. Thus in general, a man is made liable for the mischief occafioned by his voluntary deed, tho' the immediate act that occafioned the mischief be involuntary.



Final Caufes of the foregoing Laws of


Several final caufes have been already

mentioned, which could not conveni(a) 1. 8. 1. ad leg. Aquil.


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