Principles of Equity. Henry Home, Lord Kames
Чтение книги онлайн.
Читать онлайн книгу Principles of Equity - Henry Home, Lord Kames страница 17
![Principles of Equity - Henry Home, Lord Kames Principles of Equity - Henry Home, Lord Kames Natural Law and Enlightenment Classics](/cover_pre945618.jpg)
If the law of restraint be essential to the existence of society, several other duties are not less so. Mutual trust and confidence, without <34> which there can be no society, enter into the character of the human species; corresponding to which are the duties of veracity and fidelity: the latter would be of no significancy without the former; and the former without the latter would be hurtful, by laying men open to fraud and deceit.
With respect to veracity, in particular, such is our situation in this world, as to be indebted to the information of others for almost every thing that can benefit or hurt us; and if we could not depend upon information, society would be very little beneficial. Further, it is wisely ordered, that we should adhere strictly to truth, even where we perceive no harm in transgressing that duty; for it is sufficient that harm may possibly ensue, though not foreseen. At the same time, falsehood always does mischief; for if it happen not to injure us externally in our reputation, or in our goods, it never fails to injure us internally; which will thus appear. Men were made for society; and one great blessing of that state is a candid intercourse of hearts in conversation, in communication of sentiments, of opinions, of desires, and of wishes; and to admit any falsehood or deceit into such intercourse, would poison the most refined pleasures of life.
Because man, is the weakest of all animals separately, and the very strongest in society, mutual assistance is one great end in the social state; to which end it is necessary that covenants and promises be binding, and that favours received be thankfully repaid.
The final cause of the law of propriety, which enforces the duty we owe to ourselves, comes next in order. In a discourse upon those laws of nature which concern society, we have no occasion to mention any self-duty but what is connected with society; such as prudence, temperance, industry, firmness of mind, &c. And that these should be made our duty, is wisely ordered in a double respect; first as qualifying us to act our part in society; and next as intitling us to the good-will of others. It is the interest, no doubt, of every man to suit his behaviour to the dignity of his nature, and to the station allotted him by Providence; for such rational conduct contributes to happiness, by preserving health, by procuring plenty, by
[print edition page lxxii]
gaining the esteem of others, and, which of all is the greatest blessing, by gaining a justly founded self-esteem. But here even self-interest is not relied on: the powerful authority of duty is superadded to the motive of interest, that in a matter of the utmost importance both to ourselves and to the society we live in, our conduct may be steady and regular. These duties tend not only to make a man happy in <35> himself, but also, by gaining the good-will and esteem of others, to command their help and assistance in time of need.
I proceed to the final causes of natural rewards and punishments. And what at first will occur to every one is, that right and wrong ought to be the rule for distributing rewards and punishments, as well as for determining civil claims; for does it not seem rational that a right action should be rewarded, and a wrong action punished? But, upon more mature reflection, we are forced to abandon that opinion. All civil claims, and all controversies about things, must be adjusted by the standard of right and wrong; for where parties differ about meum et tuum,8 the plaintiff’s opinion cannot be the rule, and as little the defendant’s: there must be an appeal to a judge; and what rule has a judge for determining the controversy, other than the common sense of mankind about right and wrong? But to bring rewards and punishments under the same standard, without regarding private conscience, would be a system unworthy of our maker; it being extremely clear, that to reward one who is not conscious of merit, or to punish one who is not conscious of guilt, can never answer any good end; and, in particular, cannot tend either to improvement, or reformation of manners. How much more like the Deity is the plan of nature; which rewards no man who is not conscious that he ought to be rewarded, and punishes no man who is not conscious that he ought to be punished! By these means, and by these only, rewards and punishments attain every good end that can be proposed by them. Here is a final cause most illustrious!
The rewards and punishments that attend the primary and secondary virtues, are finely adjusted for supporting the distinction between them set forth above. Punishment must be confined to the transgression of primary
[print edition page lxxiii]
virtues, it being the intention of nature that the secondary virtues should be entirely voluntary. On the other hand, the secondary virtues are more highly rewarded than the primary: generosity, for example, makes a greater figure than justice; and undaunted courage, magnanimity, heroism, rise still higher in our esteem. One would imagine at first view, that the primary virtues, being more essential, should be intitled to the first place in our esteem, and be more amply rewarded than the secondary; and yet nature, in elevating the latter above the former, hath taken her measures with peculiar wisdom and foresight. Punishment is reserved to inforce the primary virtues; and if these virtues were also accompanied with the higher rewards, the secondary virtues, brought down <36> to a lower rank, would lose entirely that warm enthusiastic admiration which is their chief support: self-interest would universally prevail over benevolence, and sap the very foundation of those numberless favours we receive from each other in society; favours, not only beneficial in point of interest, but a solid foundation for affection and friendship.
In our progress through final causes, we come at last to reparation, one of the principles destined by Providence, for redressing wrongs committed, and for preventing the reiteration of them. The final cause of the principle of reparation, when the mischief arises from intention, is self-evident: for, to afford security to individuals in society, it is not sufficient that the man who does intentional mischief be punished; it is necessary that he also be bound to repair the mischief. Secondly, Where the act is wrong or unjust, though not understood by the author to be so, it is wisely ordered that reparation should follow; and, in general, that no error, whether in law or in fact, should avail against this claim; which will thus appear. Considering the fallibility of man, it would be too severe to permit advantage to be taken of error in every case. On the other hand, to make it a law in our nature, never to take advantage of error in any case, would be giving too much indulgence to indolence and remission of mind, tending to make us neglect the improvement of our rational faculties. Our nature is so happily framed as to avoid these extremes, by distinguishing between gain and loss. No man is conscious of wrong, when he takes advantage of an error committed by another to save himself from loss: if there must be a loss, common sense dictates, that it ought to rest upon the person
[print edition page lxxiv]
who has erred, however innocently, rather than upon him who has not erred. Thus, in a competition among creditors about the estate of their bankrupt debtor, every one is at liberty to avail himself of even the slightest defects in the titles of his competitors, in order to save himself from loss. But, in lucro captando,9 the moral sense teacheth a different lesson; which is, that no man ought to take advantage of another’s error to make gain by it. Thus, an heir finding a brute diamond in the repositories of his ancestor, sells the same for a trifle, mistaking it for a common pebble: the purchaser is, in conscience and in equity, bound to restore the same, or to pay a just price. Thirdly, The following considerations tend to unfold a final cause, not less beautiful than the foregoing, of what the moral sense dictates with respect to mischief done without intention. Society could not subsist in any tolerable manner, were full scope given to rashness and negligence, <37> and to every action that is not strictly criminal: whence it is a maxim, founded not less upon utility than upon justice, That men living in society ought to be extremely circumspect as to every action that may possibly do harm. On the other hand, it is also a maxim, That as the prosperity and happiness of man depend on action, activity ought to be encouraged, instead of being discouraged by the dread of consequences. These maxims, seemingly in opposition, have natural limits that prevent their incroaching upon each other; which limits, at the same time, produce the most good to society of all that can be contrived by the most consummate lawgiver. There is a certain degree of attention