Principles of Equity. Henry Home, Lord Kames
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only, and not the person who has not erred. Hence, in general, reparation always follows wrong or injustice; and is not in the least affected by an erroneous opinion of a right action being wrong, or a wrong action right.
But this doctrine suffers an exception with respect to a man who, having undertaken a trust, is bound in duty to act: as where an officer of the revenue, upon a doubtful clause in a statute, makes a seizure of goods, as forfeited to the crown, which afterward in the proper court are found not to be seizable. The officer, in this case, ought not to be subjected to reparation, if he have acted to the best of his judgment. This rule, however, must be taken with a limitation: a gross error will not excuse a public officer, who ought to know better.
It is scarce necessary to observe, that a man is not accountable for any harm he does by an involuntary act. A mason, for example, tumbling from a scaffold, happens in falling to wound one below: his conscience blames him not for what he could not help; and there is nothing in his conduct to lay hold of, for subjecting him to reparation. But it is not sufficient that one of several connected actions be involuntary; for reparation may be claimed, though the immediate act be involuntary, provided it be connected with a preceding <30> 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 though 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.”5 Gaius seems to carry this rule still further, holding in general, that if a horse, by the weakness or unskilfulness of the rider, break away and do mischief, the rider is liable.* 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
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by his voluntary act, though the immediate cause of the mischief be involuntary.
CHAPTER V[I]6 The Laws of Society considered with respect to their final causes.
By our senses, external and internal, we are made acquainted with objects external and internal, and with their qualities: knowledge so acquired is termed intuitive, because we acquire more knowledge by sight or intuition than by any other of our senses. The reasoning faculty investigates truth by a regular progress from premises to consequences; and, upon that account, knowledge so acquired may be termed discursive. Thus certain properties of a triangle, and of a square, are laid open to us by reasoning; and the knowledge we thereby acquire is discursive. Of the different degrees of conviction, the very highest belongs to intuitive knowledge: and it ought to be so, because this species of knowledge is acquired by perception alone; which is not only a single mental act, but is also complete in itself, having no dependence on any thing antecedent: whereas discursive knowledge requires, not only a plurality of mental acts, but also one or more intuitive propositions to found upon. We accordingly rely more upon intuitive knowledge than upon the strictest reasoning: witness external objects, of whose existence we have a more solid conviction than of any proposition in Euclid. The application of this doctrine to morality, will be obvious at first view. <31>
By perception alone, without reasoning, we acquire the knowledge of right and of wrong, of what we may do, of what we ought to do, and of what we ought to abstain from: and considering that we have thus a greater certainty of the moral laws than of any proposition discovered by reasoning, man may well be deemed the favourite of Heaven, when such wisdom is employ’d in qualifying him to act a right part in life: the moral sense or conscience may well be held the voice of God within us,
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constantly admonishing us of our duty; and requiring on our part no exercise of our faculties but attention merely. The celebrated Locke ventured what he thought a bold conjecture, that the moral duties may be capable of demonstration:7 how great his surprise to have been told, that they are capable of much higher evidence!
It would be losing time to indicate the final cause of establishing morality upon intuitive knowledge. Let us only consider what must have been our condition, had we been left to the glimmering light of reason. This faculty is distributed among men in portions so unequal, as to bar all hopes from it of uniformity, either in opinion or in action. Reason, it is true, aided by experience, may support morality, by convincing us that we cannot be happy if we abandon our duty for any other interest: but reason, even with experience, seldom weighs much against passion; and to restrain its impetuosity, nothing less is requisite than the vigorous and commanding principle of duty, directed by the shining light of intuition.
A second final cause respecting also morality in general, results from the connection above mentioned between right and agreeable in human actions, and between wrong and disagreeable. Were our duty disagreeable, man would be an inconsistent being; for his inclination would be constantly in opposition to his duty. To mislead us from our duty, even though agreeable, there are so many temptations, that it is no easy task to keep the straight road: would we persevere in it if our duty were disagreeable?
As the moral duties above mentioned are obviously calculated for the good of society, it might be thought, that, instead of particular duties, all should be reduced to a single general rule, that of doing every thing in our power for the good of society. But I shall endeavour to evince, that this imagined system, however plausible, is neither suited to the end proposed by it, nor to the nature of man; and in the course of the argument it will be seen, with what superior wisdom the true system of morality is contrived, which will set its final cause in a conspicuous light. It has been shown how essential intuitive <32> knowledge is to the performance of our duty: and I begin with examining what place there might be for intuitive
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knowledge in the proposed system. As the general good of mankind results from many and various circumstances intricately combined, that good may be a subject for reasoning, but never can be an object of intuitive knowledge. But reason employ’d in weighing an endless number and variety of circumstances, seldom affords any solid conviction; and upon the proposed system we would be often left in the dark about our duty, however upright our intentions might be. At the same time, we would in vain expect from such faint conviction, authority sufficient to counterbalance the influence of passion: our duty would vanish from our sight in a maze of subtilties; and self-partiality would always suggest plausible reasons, for slight transgressions at first, and afterward for the very boldest. It is therefore ordered with consummate wisdom, even for the general good, that, avoiding general and complex objects, the moral sense should be directed to certain particular acts, and their effects; which, being plain and simple, can be made our duty by intuitive perception.
In the next place, to make universal benevolence our duty, without distinction of persons or circumstances, would in effect subject us to the absurd and impracticable duty, of serving at the same instant an endless number and variety of persons; which, instead of promoting the general good, would evidently be detrimental, by unqualifying us to perform any part.
The true system of morality, that which is display’d above, is better suited to the limited powers of man; and yet is contrived in the most perfect manner for promoting the general good. There is no occasion to lose time in demonstrating, that a man entirely selfish is ill fitted for society; and we have seen, that universal benevolence, considered as a duty, would contribute to the general good perhaps less than absolute selfishness. Man is much better fitted for society, by having in his constitution the principles of self-love and of benevolence duly proportioned. Benevolence, as far as a duty, takes place of self-love; which is wisely ordered, because so far it is essential to the very constitution of society. Benevolence, again, as a virtue not a duty, gives place to self-love; which is ordered with equal wisdom, because every man has more power, knowledge, and opportunity, to promote his own good, than that of others: by which means more good is actually produced, than if we were entirely surrendered to benevolence. At the same time, the principle of benevolence is as extensive as can consist
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with the limited capacity <33> of man: the chief objects of his affection are his relations, his friends, his benefactors,