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By Root 1347 0

that sense of what is due to his fellow-creatures which is the basis of justice and of society. Gross negligence therefore is, in the law, said to be almost equal to malicious design.d7 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 deserved 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.8 And though this is no doubt excessively severe, it is not altogether inconsistent with our natural sentiments. Our just 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 carelessly into the street 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 negligencee of this kind he should occasion some damage to another 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 blamable negligence, should be made up by the person who was guilty of it.

There is another species of negligence,f 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 blamable, 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 this 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.9 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