« السابقةمتابعة »
jects in which they are constituted, so they differ alfo in refpect PART II. to the origin or fource from which they are derived.
Among the fources of right we fhall find, that the law of defence itself may be numbered; and, upon this account, before we proceed to confider the distinction of rights, especially in respect to their origin, it may be proper to ftate the law of defence in its most general terms, as a fource to which among others we may have occafion to recur in treating this part of our subject.
Of the Law of Defence in General.
ACCORDING to the law of defence a right may be maintained SECT. III. by any means which are effectual and necessary for this purpose.
It were irrational to employ means ineffectual, and it might be cruel in some instances to employ severities that might have been spared.
If means are fuppofed to be neceffary, it is implied that the end cannot be obtained without them; and to fuppofe that a defence is allowed, and yet that the neceffary means are prohibited would be to suppose, that the law of nature is inconsistent with itself; proposes the end, and yet forbids the pursuit.
It is true, that in fome cases the neceffary means may be fo fevere, and even fo deftructive to the party against whom they
are employed, that humanity revolts against the use of them; and PART II.
In the contest of parties even the aggreffor does not immediately forfeit every right; and there are accordingly limits to the very means of defence that may be employed against him; but the forbearance of any neceffary means of defence however fevere, is a voluntary effort of goodness in the perfon wronged, not fuch a conceffion as the aggreffor may claim as a right due to himself.
As the law of defence, therefore, permits the use of any means which are neceffary, fo it allows to the perfon against whom they are employed, an exception in the want of neceffity, when means destructive or harmful are unneceffarily employed against him.
The object of law being to maintain a right, every excess of harm beyond what is neceffary for this purpose is itself an injury, and gives to the party, fuffering under it, a right of defence. So much is implied in the terms effectual and necessary, by which the means of defence are characterized.
Under the general notion of safety are included not only the repulfion of a wrong that is offered, but likewife the prevention of a wrong that is apprehended, and the reparation of a damage that has been done; so that the law of defence confists of three clauf
If, That a wrong apprehended may be prevented.
2d, That a wrong offered may
3d, That reparation may be exacted of a damage received.
According to the first claufe, every party may provide himself with the necessary precautions against the harm to which he may think himself expofed.
According to the second, he may repel an affault, or turn away from himself an evil that is intended or dreaded.
According to the third, he may compel the injurious to make reparation: And in this last claufe particularly are found certain claims of right which we are not qualified to difcufs, except fo far as the clause itself is stated and understood.
It is to be remembered also, that in every question of right men are permitted to act as auxiliaries as well as principals, and that where a third party interposes, the law of nature, in all its limitations and clauses, and in every cafe of defence, applies equally to the one as to the other.
Of the general Titles under which the Rights of Men may be classed.
a fubject familiar and obvious to every person there is more danger that we overlook what is evident, than what may require CHAP.III. investigation and research.
After having affumed as a felf evident maxim, that a perfon may defend himfelf, it appears unneceffary to fubjoin, or it is rather a repetition of the fame thing in other words, to fay, that he may defend his person, the limbs and organs of his body, and exercise the faculties of his mind.-Yet thefe, in pursuing our fubject methodically, we fhall have occafion to cite; and much depends on their being kept in view, when we would difcufs certain questions relating to the origin as well as progrefs of justice in the affairs of men.
These are original appurtenances of human nature or infeparable from it, and the maxims of justice relating to these fub