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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 fense 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 rastily or uncautioufly, 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 fort 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 fort 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 fame 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
Vol. IV. K wrong;
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, becatise 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 er-* ror 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 fame 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 h|s 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 fame 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 mail have K ,a "an "an action against A: for tho' the mis"chief was done against the will of A, "yet since it was his fault to bring a wild "horse into a frequented place where mis"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 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 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.