С НА Р. III.

OF JURISPRUDENCE OR COMPULSORY LAW.

PART FIRST.

SECTION I

Of the Principle of Compulsory Law.

IT is a well known fact, that mankind sometimes employ force to obtain the obfervance of moral laws, and that the right to compel the performance of a duty, though not universal in every case, is, at least, in some instances fully acknowledged.

We are now to investigate and to state the principle from which this right in any cafe can be derived.

PART II.

CHAP. III.
SECT. I.

It may be obferved, that in all the inftances in which the right of one man to compel another is acknowledged, compulsion, either in its immediate operation, or in its final effect, is an act of defence.

The fovereign employs force to defend his country against foreign enemies, or to make reprifals for a wrong that is done to his fubjects. The magiftrate employs force to reprefs crimes; the citizen to defend his dwelling or his perfon. And even in exacting the payment of a debt; or in requiring the performance of a contract, there is no more than an exaction of what is justly due; or, as we fhall have occafion to evince, no more than an act of defence on the part of the exactor, maintaining a right of which he is already in poffeffion.

The great principle of morality extends to beneficence, as well as innocence; but from this account of the circumstances in which compulfion is applicable, the principle of compulsory law is limited to the repulfion of wrongs, and to that part in the object of the moral precept above cited, which forbids one perfon to be the author of harm to another *.

In fearch of this or any other principle in nature, by whatever fteps we proceed, we must arrive at last at fomething that is selfevident. And fuch we may fay is the maxim, That every innocent perfon may defend himself; to which we may join what is equally evident, that every one having power, may employ it in defence of any other innocent perfon.

To the purpose of defence a fufficient meafure of force is re

quired

* Alterum non lædere.

SECT. I.

quired, and in many inftances is the only means that can be PART II. fuccessfully employed. A perfon difpofed to commit an injury CHAP. III. may not be perfuaded to defift from his purpose; nor can he be eluded perhaps by any artifice or stratagem; it remains therefore that a force fuperior to his may be the only means fufficient to reftrain him.

In every cafe of defence, force is employed to fecure the innocent, rather than to obtain, from those who would injure him, the discharge of a duty. And the fpecific end of compulfory law being to repel a wrong, the means are adequate and just.

But if any one, instead of difputing the legality of force in a cafe of defence, fhould contend, that it is not peculiar merely to fuch cafes, but may be employed, not only in defending a right, but in obtaining any other end beneficial to mankind; that as religion and virtue are confessedly of the highest value, every effectual means, and force no less than any other, may be employed to obtain them, whether by propagating faith towards God or charity towards men.

These no doubt are bleffings, in obtaining of which no effectual means are to be spared; but if we wish to promote the cause of religion and virtue, means are to be employed which inform the mind, conciliate the affections, and gain the will. To these purposes force is inadequate. Its effects, on the contrary, are to render the understanding lefs docile, and to alienate the mind. And it must be rejected as an instrument of inftruction or moral improvement; because it would be irrational to employ means which have a tendency adverfe to the purpose for which they are employed.

Nay, but force is competent to obtain, even from those against

whom.

PART II.
CHAP. III.
SECT. I.

whom it is employed, the external fruits of faith and charity! To this it may be answered, That if these fruits be required as a moral good in those who are made to yield them, the reality of any fuch good may be queftioned; or rather it is evident, that a forced performance of fuppofed good works does not constitute any good in him who is compelled to perform them. Virtue cannot be forced. It is voluntary, or it does not exist. Faith is fincere ; or its profeffion is a mere hypocrify.

If the fruit of good works be required in one man for the benefit of another; it is evident that force cannot be justly employed for this purpose. Benefits extorted by force are robberies, not acts of beneficence.

We may conclude, therefore, that the ufe of force, which is admiffible in the cafe of defence, whether immediate or remote, is alfo limited to fuch cases; and that although men are bound, under every other fanction of duty, to avoid being authors of harm, yet, that they are, in this duty of abstaining from harm, peculiarly repreffible by force also: And from this we may safely affume, that the right of defence is the specific principle of compulsory law.

In treating of this fubject, accordingly, we are not so much to confider the obligation under which every person lies to be innocent, as to confider the right which every perfon has to defend himself, and his fellow creature, by every effectual means in his

power.

This right amounts to a permiffion of whatever may be necessary to safety, but does not contain any positive injunction to do all that may be wanted for this purpose. A perfon attacked

in

in his perfon may kill the aggreffor; but is not required to do PART II. fo much.

In the application of our principle, therefore, we endeavour to point out how far the right of defence extends, but do not, in any case whatever, pretend to lay the person who defends himfelf or his neighbour, under any tie of neceffity to go to the utmost extent. The citizen, it is admitted, may kill the housebreaker who alarms his dwelling in the night, but is not required to proceed fo far: Nay, on the fuppofition that he may defend himself and his dwelling, without having recourfe to this extremity, he is by the law of nature actually restrained from it.

In conceiving a just and compleat act of defence, we must suppose fome thing that is to be defended or maintained; and specify the means that may be lawfully employed for this purpose.

That which a perfon may lawfully defend or maintain is termed his right. The circumftances under which a right is expofed or invaded may point out the means which are adequate and necessary to its preservation; and the fubject of jurisprudence or compulsory law, fo conceived, admits of being divided into two principal parts, of which one relates to the rights of men, the other to the means of defence.

CHAP. III.
SECT. I.

SECTION