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Part II, Section III, Chapter II, 2
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The person himself who either from passion, or from the influence of bad company, has resolved, and perhaps taken measures to perpetrate some crime, but who has fortunately been prevented by an accident which put it out of his power, is sure, if he has any remains of conscience, to regard this event all his life after as a great and signal deliverance. He can never think of it without returning thanks to Heaven for having been thus graciously pleased to save him from the guilt in which he was just ready to plunge himself, and to hinder him from rendering all the rest of his life a scene of horror, remorse, and repentance. But though his hands are innocent, he is conscious that his heart is equally guilty as if he had actually executed what he was so fully resolved upon. It gives great ease to his conscience, however, to consider that the crime was not executed, though he knows that the failure arose from no virtue in him. He still considers himself as less deserving of punishment and resentment; and this good fortune either diminishes, or takes away altogether, all sense of guilt. To remember how much he was resolved upon it, has no other effect than to make him regard his escape as the greater and more miraculous: for he still fancies that he has escaped, and he looks back upon the danger to which his peace of mind was exposed, with that terror, with which one who is in safety may sometimes remember the hazard he was in of falling over a precipice, and shudder with horror at the thought.
2 The second effect of this influence of fortune, is to increase our sense of the merit or demerit of actions beyond what is due to the motives or affection from which they proceed, when they happen to give occasion to extraordinary pleasure or pain. The agreeable or disagreeable effects of the action often throw a shadow of merit or demerit upon the agent, though in his intention there was nothing that deserved either praise or blame, or at least that deserved them in the degree in which we are apt to bestow them. Thus, even the messenger of bad news is disagreeable to us, and, on the contrary, we feel a sort of gratitude for the man who brings us good tidings. For a moment we look upon them both as the authors, the one of our good, the other of our bad fortune, and regard them in some measure as if they had really brought about the events which they only give an account of. The first author of our joy is naturally the object of a transitory gratitude: we embrace him with warmth and affection, and should be glad, during the instant of our prosperity, to reward him as for some signal service. By the custom of all courts, the officer who brings the news of a victory, is entitled to considerable preferments, and the general always chuses one of his principal favourites to go upon so agreeable an errand. The first author of our sorrow is, on the contrary, just as naturally the object of a transitory resentment. We can scarce avoid looking upon him with chagrin and uneasiness; and the rude and brutal are apt to vent upon him that spleen which his intelligence gives occasion to. Tigranes, King of Armenia, struck 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 authorize 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 resentment 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 consequence 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 justice and of society. Gross negligence therefore is, in the law, said to be almost equal to malicious design3. 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. 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.
Footnote 3:
Lata culpa prope dolum est.
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 negligence4 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.
Footnote 4:
Culpa levis.
There is another species of negligence5, 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. 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 necessarily desires to compensate the damage, and to do every thing he can to appease that animal resentment, which he is sensible will be apt to arise 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.
Footnote 5:
Culpa levissima.
Musean translation
Mouseia’s complete machine-assisted Musean translation, made directly from the complete sixth-edition English text of all parts (the appended Dissertation on the Origin of Languages is not included) for fidelity, the author’s force and cadence, and modern clarity.
A person who, through passion or the influence of bad company, resolves and perhaps takes steps to commit a crime, but is fortunately prevented by an accident beyond his control, will surely regard the event, if he retains any conscience, as a great and remarkable deliverance for the rest of his life. He can never think of it without thanking Heaven for graciously saving him from the guilt into which he was about to plunge, and preventing the rest of his life from becoming a scene of horror, remorse, and repentance. Though his hands are innocent, however, he knows his heart is as guilty as it would have been had he carried out his firm resolve. Still, it greatly eases his conscience to know that the crime was not committed, although he knows he owes this failure to no virtue of his own. He continues to see himself as less deserving of punishment and resentment; his good fortune weakens or even removes his entire sense of guilt. The memory of how firmly resolved he was only makes his escape seem greater and more miraculous. For he still imagines that he has escaped, and looks back on the danger to his peace of mind with the terror of someone who, now safe, remembers nearly falling over a precipice and shudders at the thought.
2 Fortune's second effect is to increase our sense of the merit or demerit of actions beyond what their underlying motives or feelings warrant when they happen to bring extraordinary pleasure or pain. An action's welcome or unwelcome effects often cast a shadow of merit or demerit upon its agent, even if his intention deserved neither praise nor blame, or at least not to the degree we tend to give them. Thus a bearer of bad news is disagreeable to us, whereas we feel a sort of gratitude toward someone who brings good news. For a moment we regard each as the author of our good or bad fortune, treating them in some measure as though they had brought about the events they merely report. The first occasion of our joy naturally receives a passing gratitude. We embrace the messenger warmly and affectionately, and, in our moment of prosperity, would gladly reward him for some distinguished service. By the custom of every court, an officer bringing news of victory is entitled to considerable advancement; a general always chooses a leading favorite for such a pleasant errand. The first occasion of our sorrow, by contrast, just as naturally receives a passing resentment. We can hardly keep from looking at the messenger with vexation and unease; the rude and brutal are apt to vent upon him the anger provoked by his news. Tigranes, King of Armenia, beheaded the man who first told him of a formidable enemy's approach. To punish a bearer of bad news this way seems barbarous and inhuman, yet we do not object to rewarding the bearer of good news; we think it fitting to royal generosity. Why do we distinguish them, when one is no more at fault than the other has merit? Because almost any reason seems enough to justify an expression of social and benevolent feelings, whereas only the most substantial grounds make us share in the expression of antisocial and malevolent ones.
Though we are generally reluctant to share antisocial and malevolent feelings, and hold that their satisfaction ought never to win approval unless a person's malicious and unjust intentions make him their proper object, we sometimes relax this strict rule. When one person's negligence unintentionally harms another, we usually share the victim's resentment far enough to approve a punishment of the offender much greater than the offense would have seemed to deserve if no unfortunate consequence had followed.
A certain degree of negligence deserves some chastisement even when it harms nobody. A person who threw a large stone over a wall into a public street, without warning passersby or paying attention to where it might land, would certainly deserve some chastisement. A very vigilant police force would punish so senseless an act even if it caused no harm. The person responsible shows an insolent contempt for other people's happiness and safety. His conduct is genuinely unjust. He recklessly exposes his neighbor to a danger no sensible person would choose for himself, and plainly lacks the regard due to his fellow creatures that forms the foundation of justice and society. Gross negligence, therefore, is said in law to be almost equivalent to malicious intent3. When such carelessness does have unhappy consequences, its author is often punished as if he had actually intended them: conduct that was merely thoughtless and insolent, deserving some chastisement, is treated as atrocious and liable to the severest penalty. If, for example, the reckless stone-thrower accidentally killed someone, he would face the ultimate punishment under the laws of many countries, notably the old law of Scotland. Though this is undoubtedly excessively severe, it is not entirely at odds with our natural feelings. Our just indignation at the folly and inhumanity of his conduct is sharpened by sympathy with its unfortunate victim. Yet nothing would offend our natural sense of fairness more than taking a person to the scaffold merely for carelessly throwing a stone into the street without hurting anyone. The folly and inhumanity would be the same, but our feelings would be very different. This difference shows how powerfully an action's actual consequences can stir even a spectator's indignation. Cases of this sort will, unless I am mistaken, reveal considerable severity in the laws of nearly all nations, just as I have already observed a widespread relaxation of discipline in cases of the opposite kind.
Footnote 3:
Gross negligence is nearly equivalent to fraud.
There is another degree of negligence that involves no injustice. A person guilty of it treats his neighbor as he treats himself, intends nobody harm, and is far from showing any insolent contempt for others' safety and happiness. Yet he does not behave as carefully or cautiously as he ought; for that he deserves some blame and censure, but no punishment. Still, if negligence4 of this kind harms another person, the laws of, I believe, every country require him to compensate the loss. This is certainly a real punishment, one nobody would dream of imposing but for the unfortunate accident occasioned by his conduct; nevertheless, this legal judgment has the approval of natural human feeling. Nothing seems more just to us than that no one should suffer from another's carelessness, and that anyone whose blameworthy negligence causes damage should make it good.
Footnote 4:
Slight negligence.
There is a further kind of negligence5, consisting merely of a failure to show the utmost fearful caution about every possible consequence of one's actions. When nothing bad follows, far from being blameworthy, a lack of this painful vigilance is preferable to its opposite. A timid caution afraid of everything is never considered a virtue; rather, it is a quality that, more than almost any other, makes a person unfit for action and practical affairs. Yet when a failure to exercise such excessive care happens to cause another person harm, the law often requires compensation. Under the Aquilian law, for example, a man unable to control a horse that has unexpectedly taken fright must compensate his neighbor if he happens to ride down the neighbor's slave. When such an accident happens, we tend to think he should never have ridden that horse and regard the attempt as inexcusable recklessness. Without the accident, we would not only have had no such thought, but would have viewed his refusal to ride as timid weakness and a pointless anxiety about merely possible events. Even a person who accidentally harms another in this way seems to feel that he has done the victim some wrong. He naturally runs to the sufferer to express his concern and acknowledge the accident in every way he can. If he has any sensitivity, he cannot help wishing to compensate the damage and do everything possible to appease the instinctive resentment he knows is likely to arise in the sufferer's heart. To make no apology or offer no amends is seen as the height of brutality. Yet why should he apologize any more than anyone else? Since he was as innocent as any bystander, why should he alone among all humankind be made to repair another's misfortune? Surely this burden would never be placed on him if even the impartial spectator did not show some indulgence toward what might be called the sufferer's unjust resentment.
Footnote 5:
The slightest negligence.
Plain English translation
Mouseia’s complete Plain English edition, made independently and directly from the complete sixth-edition English text of all parts (the appended Dissertation on the Origin of Languages is not included).
A person who has decided to commit a crime, perhaps under the influence of passion or bad company, may even have taken steps toward it. If an accident fortunately makes the crime impossible, he will see that event for the rest of his life as a great escape, provided he has any conscience left. He cannot remember it without thanking Heaven for kindly saving him from the guilt he was about to incur, and from a life of horror, remorse, and regret. His hands are innocent, but he knows his heart is as guilty as if he had done what he fully intended. Nevertheless, it greatly eases his conscience to know the crime never happened, although he knows his own virtue had nothing to do with its failure. He still considers himself less deserving of punishment and resentment. His good fortune reduces or even removes his whole sense of guilt. Remembering how determined he was only makes his escape seem greater and more miraculous. He continues to think he escaped. He remembers the danger to his peace of mind with the same fear that someone safe on solid ground may feel on remembering how close he came to falling over a cliff. The thought makes him shudder.
2 Fortune's second effect is to increase our sense of an action's merit or demerit beyond what its motives or feelings deserve, when it happens to cause extraordinary pleasure or pain. The action's welcome or unwelcome results often make its author seem deserving of praise or blame, even when the intention deserves neither, or at least not as much as we tend to give. This is why we dislike even the messenger of bad news and feel a kind of gratitude toward the bearer of good news. For a moment, we treat them almost as the causes of our good and bad fortune, although they only report what has happened. The first person to make us joyful briefly receives our gratitude. We embrace him warmly and, in our moment of happiness, would gladly reward him as if he had performed a remarkable service. At every court it is customary to reward an officer who brings news of a victory with substantial advancement. A general always picks one of his chief favorites for this pleasant task. Conversely, the first person to make us sad briefly draws our resentment. We can hardly help looking at him with annoyance and discomfort. Rude, brutal people may even take out on him the bitterness aroused by his news. Tigranes, King of Armenia, had the man who first told him a formidable enemy was approaching beheaded. Punishing a bearer of bad news like that seems barbaric and inhuman. But we do not object to rewarding a bearer of good news; we think kings are right to be generous that way. Why the difference? If the first messenger did nothing wrong, the second did nothing meritorious. The reason is that almost any excuse seems enough for us to act on friendly and kindly feelings. To share in an expression of hostile and malicious feelings, we need a very sound and substantial reason.
Yet although we are generally reluctant to share hostile and malicious feelings, and although we adopt a rule against approving their expression unless the target's malicious and unjust intention makes him a proper target, we sometimes relax that rule. If one person's negligence causes unintended harm to another, we often sympathize enough with the injured person's resentment to approve a punishment far more severe than we would think the negligent act deserved if no harm had followed.
Some negligence deserves a penalty even when nobody is hurt. Consider someone who throws a large stone over a wall into a public street. He gives no warning to passersby and pays no attention to where it may land. He certainly deserves some penalty. A very careful police force would punish such an absurd act even if it harmed no one. He shows arrogant disregard for other people's happiness and safety. His conduct is genuinely unjust. He needlessly exposes a neighbor to a danger that no sensible person would willingly face. He plainly lacks the regard for other people on which justice and society depend. Thus the law treats gross negligence as nearly equal to intentional harm3. If his carelessness does have tragic results, he is often punished as though he had meant to cause them. Conduct that was thoughtless and arrogant, and deserved some penalty, is treated as terrible enough for the severest punishment. If the stone in this example accidentally kills someone, many countries' laws, especially the old law of Scotland, make the thrower liable to the death penalty. This is certainly far too severe, yet it is not wholly contrary to our natural feelings. Our justified anger at his foolish and inhuman conduct grows when we sympathize with the victim. But nothing would offend our natural sense of fairness more than executing him simply for throwing a stone carelessly into the street without hurting anyone. His folly and lack of humanity would be the same in both cases, but our feelings would differ greatly. That difference shows how strongly the actual outcome can increase even a spectator's anger. If I am right, the laws of almost every nation are very severe in such cases, just as I noted that they are generally less strict in the opposite kind of case.
Footnote 3:
Gross negligence is nearly deliberate wrongdoing.
Another degree of negligence involves no injustice. The negligent person treats his neighbor as he treats himself. He means no harm and does not arrogantly disregard anyone else's safety or happiness. He is still less careful and watchful than he ought to be. He deserves some blame for that, but no punishment. Yet if this kind of negligence4 harms someone, the laws of every country, I believe, require him to pay for the damage. This is certainly a real penalty, one nobody would think of imposing if his behavior had not led to an unfortunate accident. Still, everyone's natural sense of fairness approves the legal decision. We think it entirely right that one person should not suffer for another's carelessness, and that the person responsible for blameworthy negligence should make up the damage it caused.
Footnote 4:
Slight negligence.
A third kind of negligence5 is simply the failure to take the most fearful and painstaking care against every possible result of our actions. If nothing bad comes of that failure, we do not blame it. Indeed, we are more likely to blame the opposite quality. Fearful caution about everything is never considered a virtue. More than almost anything else, it makes a person unable to act or conduct business. Still, if someone's failure to take this excessive care happens to harm another person, the law often makes him pay for the damage. For example, under the Aquilian law, a rider who could not control a horse that had unexpectedly become frightened had to pay if he rode over a neighbor's slave. When this happens, we are likely to say he should never have ridden that horse and to treat his decision to ride as inexcusable carelessness. Without the accident, we would not say that. We would even see a refusal to ride as fearful weakness and pointless worry about things that might possibly happen. The person who accidentally hurts someone in this way also seems to feel that he has done wrong to that person. He naturally hurries over to express concern and acknowledge what has happened as fully as he can. If he has any sensitivity, he wants to pay for the damage and do everything possible to calm the instinctive resentment he knows the victim may feel. To offer no apology or compensation seems utterly brutal. But why should he apologize rather than anyone else? Since he was as innocent as any bystander, why should he of all people be made to bear the cost of someone else's bad luck? Surely this burden would never be placed on him unless even the impartial spectator felt some sympathy for what could be called the victim's unjust resentment.
Footnote 5:
Very slight negligence.