ftruck off the head of the man who brought him the first account of the approach of a formidable enemy. To punish in this manner the author of bad tidings, seems' barbarous and inhuman yet, to reward the messenger of good news, is not disagreeable to us; we think it suitable to the bounty of kings. But why do we make this difference, since, if there is no fault in the one, neither is there any merit in the other? It is because any sort of reason seems sufficient to authorise the exertion of the social and benevolent affections; but it requires the most solid and substantial to make us enter into that of the unsocial and malevolent.

But though in general we are averse to enter into the unsocial and malevolent affections, though we lay it down for a rule that we ought never to approve of their gratification unless so far as the malicious and unjust intention of the person, against whom they are directed renders him their proper object; yet, upon some occasions, we relax of this severity. When the negligence of one man has occasioned some unintended damage to another, we generally enter so far into the refentment of the sufferer, as to approve of his inflicting a punishment upon the offender much beyond what the offence will have appeared to deserve, had no such unlucky confequence followed from it.

There is a degree of negligence, which would appear to deserve some chastisement though it should occasion no damage to any body. Thus,

if a person should throw a large stone over a wall into a public street without giving warning to those who might be passing by, and without regarding where it was likely to fall, he would undoubtedly deserve some chastisement. A very accurate police would punish so absurd an action, even though it had done no mischief. The person who has been guilty of it, shows an insolent contempt of the happiness and safety of others. There is real injustice in his conduct. He wantonly exposes his neighbour to what no man in his senses would chuse to expose himself, and evidently wants that sense of what is due to his fellow-creatures which is the basis of juftice and of so iety. Gross negligence therefore is, in the law, said to be almost equal to malicious design *. When any unlucky consequences happen from such carelessness, the person who has been guilty of it is often punished as if he had really intended those consequences; and his conduct, which was only thoughtless and insolent, and what deferved some chastisement, is considered as atrocious, and as liable to the severest punishment. Thus if, by the imprudent action above-mentioned, he should accidentally kill a man, he is, by the laws of many countries, particularly by the old law of Scotland, liable to the last punishment. And though this is no doubt excessively severe, it is not altogether inconsistent with our natural sentiments.

*Lata culpa prope dolum eft.

N

3

Our

Our juft indignation against the folly and inhumanity of his conduct is exasperated by our sympathy with the unfortunate sufferer. Nothing however would appear more shocking to our natural sense of equity, than to bring a man to the scaffold merely for having thrown a stone carelesly into the treet without hurting any body. The folly and inhumanity of his conduct, however, would in this case be the same; but still our sentiments would be very different. The consideration of this difference may satisfy us how much the indignation, even of the spectator, is apt to be animated by the actual consequences of the action. In cases of this kind there will, if I am not mistaken, be found a great degree of severity in the laws of almost all nations; as I have already observed that in those of an opposite kind there was a very general relaxation of discipline.

There is another degree of negligence which does not involve in it any sort of injustice. The person who is guilty of it treats his neighbour as he treats himself, means no harm to any body, and is far from entertaining any insolent contempt for the safety and happiness of others. He is not, however, so careful and circumspect in his conduct as he ought to be, and deserves upon this account some degree of blame and censure, but no sort of punishment. Yet if by a negligence * of this kind he should occasion some damage to an

* Culpa levis.

other

other person, he is by the laws of, I believe, all countries, obliged to compensate it. And though this is no doubt a real punishment, and what no mortal would have thought of inflicting upon him, had it not been for the unlucky accident which his conduct gave occasion to; yet this decision of the law is approved of by the natural sentiments of all mankind. Nothing, we think, can be more just than that one man should not suffer by the carelessness of another; and that the damage occasioned by blameable negligence should be made up by the person who was guilty of it. There is another species of negligence *, which consists merely in a want of the most anxious timidity and circumspection, with regard to all the possible consequences of our actions. The want of this painful attention, when no bad consequences follow from it, is so far from being regarded as blameable, that the contrary quality is rather considered as such. That timid circumspection which is afraid of every thing, is never regarded as a virtue, but as a quality which more than any other incapacitates for action and business. Yet when, from a want of the excessive care, a person happens to occasion some damage to another, he is often by the law obliged to compensate it. Thus, by the Aquilian law, the man, who not being able to manage a horse that had accidentally taken fright, should happen to ride down his neighbour's slave, is

obliged to compensate the damage. When an accident of this kind happens, we are apt to think that he ought not to have rode such a horse, and to regard his attempting it as an unpardonable levity; though without this accident we should not only have made no such reflection, but should have regarded his refusing it as the effect of timid weakness, and of an anxiety about merely possible events, which it is to no purpose to be aware of. The person himself, who by an accident even of this kind has involuntarily hurt another, seems to have some sense of his own ill desert, with regard to him. He naturally runs up to the sufferer to express his concern for what has happened, and to make every acknowledgment in his power. If he has any sensibility, he neceffarily desires to compensate the damage, and to do every thing he can to appease that animal refentment, which he is sensible will be apt toarise in the breast of the sufferer. To make no apology, to offer no atonement, is regarded as the highest brutality. Yet why should he make an apology more than any other person? Why should he, since he was equally innocent with any other by-stander, be thus singled out from among all mankind, to make up for the bad fortune of another? This task would surely never be imposed upon him, did not even the impartial spectator feel some indulgence for what may be regarded as the unjust resentment of that other.

CHAP.