« AnteriorContinuar »
B. III. king 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 comfortable state. Laying conscience aside, pecuniary reparation is the only remedy that can be provided against culpable omissions : and with respect to culpable commissions, the necessity of reparation is still more apparent ; for conscience alone, without the sanction of reparation, would feldom have authority fufficient to restrain us from acting rafhly 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 lofs; and I perceive intuitively, that the loss ought to rest ultimately upon me, and not upon the fufferer, who has not been culpable in any degree.
In every case where the mischief done can be estimated by a pecuniary compenfation, the two ends of reparation coincide. The sum is taken from the one as a rt of punishment for his fault, and is bestow'd 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 folatium 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 aclion, thinking erroneously that it is right; or a right action, thinking erroneoully that it is VOL. IV.
wrong; and the question is, What shall be the consequence of such errors with refpect to reparation. The latter case is clear : the perfon who occafionally fuffers Jofs by a right action, has not a claim for reparation, because he has no juft 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 judgement, will not relieve him from reparation. When he is made fenfible of his error, he feels himself bound in conscience to repair the harm he has done by a wrong action : and others, senfible of his error from the beginning, have the same feeling: nor will his obstinacy in resisting conviction, nor his dullness 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 hiin; and if he judge according to his knowledge, he is not liable for consequences. A judge cannot be subjected to reparation, unless the judgement 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 judgement. 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, tho' che immediate act be involuntary, provided it be connected with a preceding voluntary act. Example: “ If A ride an unruly horse in " Lincolns-inn fields, to tame him, and " the horse breaking from A, run over B and grievoudly hurt him; B shall have
an action against A: for tho' 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 mif“ chief might ensue, he must answer for the consequences.”
Gaius seems to carry this rule still farther, holding'in general, that if a horse, by the weakness or unskilfulness of the rider, break
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 occasioned by his voluntary deed, tho' the immediate act that occafioned the mischief be involuntary.
Final Causes of the foregoing Laws of
SEveral final causes have been already
mentioned, which could not conveni(a) 1. 8. 1. ad leg. Aquil,