Front Page Titles (by Subject) SECTION VI: Laws respecting Reparation. - Sketches of the History of Man, vol. 3
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SECTION VI: Laws respecting Reparation. - Henry Home, Lord Kames, Sketches of the History of Man, vol. 3 
Sketches of the History of Man Considerably enlarged by the last additions and corrections of the author, edited and with an Introduction by James A. Harris (Indianapolis: Liberty Fund, 2007). 3 Vols. Vol. 3.
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Laws respecting Reparation.
The principle of reparation is made a branch of the moral system for accomplishing two ends: which are, to repress wrongs 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 necessary. First, actions that we are bound to perform. Second, actions that we perform in prosecution of a right or privilege. Third, indifferent actions, described above. Actions of the first kind subject not a man to reparation, whatever damage ensues; because it is his duty to perform them, and it would be inconsist-ent 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 social 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 subservient to mine: on the other hand, if such foresight restrain me from exercising my right, my interest is made subservient 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 salutary; 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 me to hurt an innocent person. The other branch is supported by expediency: for if the bare possibility of hurting others were sufficient 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.7
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-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 sometimes 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 ensue, 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 consequently 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 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 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 sedate 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 may have been.
What is said upon culpable actions, is equally applicable to culpable omissions; for by these also mischief may be occasioned, 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 such intention is culpable: supposing the probabi-lity 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 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 versans in illicito8 is liable to repair every consequent damage. That these particulars are wisely ordered by the Author of our nature for the good of society, 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-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 seldom have authority sufficient to restrain us from acting rashly 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 loss; and I perceive intuitively, that the loss ought to rest ultimately upon me, and not upon the sufferer, who has not been culpable in any degree.
In every case where the mischief done can be estimated by a pecuniary compensation, the two ends of reparation coincide. The sum is taken from the one as a sort 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 solatium 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 action, thinking erroneously that it is right; or a right action, thinking erroneously that it is wrong; and the question is, What shall be the consequence of such errors with respect to reparation. The latter case is clear: the person who occasionally suffers loss by a right action, has not a claim for reparation, because he has no just 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 sensible of his error, he feels himself bound in conscience to repair the harm he has done by a wrong action: and others, sensible 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 him; 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’ the 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 grievously 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 mischief 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 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 foreseen. Thus in general, a man is made liable for the mischief occasioned by his voluntary deed, tho’ the immediate act that occasioned the mischief be involuntary.
[7. ]“But this proposition . . . aloud to beware”: added in 2nd edition.
[* ]Innocent here is opposed to culpable: in a broader sense it is opposed to criminal. With respect to punishment, an action tho’ culpable is innocent, if it be not criminal: with respect to reparation, it is not innocent if it be culpable.
[* ]Culpa lata aequiparatur dolo [[gross negligence is equivalent to fraud, 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 essence of a crime consists in the intention to do mischief; upon which account no fault or culpa however gross amounts to a crime. But may not gross negligence be a subject of punishment? A jailor sees a state-prisoner taking steps to make his escape; and yet 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 punished, he escapes free. Note added in 2nd edition.]]
[8. ]I.e., a trespasser.
[(a) ]Sect. 7.
[(a) ]1. 8. §. 1. ad leg. Aquil.