صور الصفحة
PDF
النشر الإلكتروني

CHAP. III.
SECT. III.

are employed, that humanity revolts against the use of them; and PART II. persons of a certain mild disposition may submit to harm, rather than employ, for defence, measures of any cruel effect to which the aggreffor may have exposed himself.

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 person wronged, not such 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, so 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 fafety are included not only the repulsion of a wrong that is offered, but likewise the prevention of a wrong that is apprehended, and the reparation of a damage that has been done; fo that the law of defence confifts of three clauf

es.

ift, That a wrong apprehended may be prevented.

PART II.

CHAP. III.
SECT. III.

2d, That a wrong offered may be repelled.

3d, That reparation may be exacted of a damage received.

According to the first clause, 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 ftated and understood.

It is to be remembered also, that in every queftion 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 claufes, and in every cafe of defence, applies equally to the one as to the other.

SECTION

SECTION IV.

Of the general Titles under which the Rights of Men may

be claffed.

IN a fubject familiar and obvious to every person there is more PART II. danger that we overlook what is evident, than what may require CHAP.III. investigation and research.

he

After having affumed as a felf evident maxim, that a perfon may defend himself, it appears unneceffary to fubjoin, or it is rather a repetition of the fame thing in other words, to say, that may defend his perfon, the limbs and organs of his body, and exercife 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 progress 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 sub

[ocr errors][merged small]

SECT. IV.

PART II. jects must have been coeval with the fubjects, and infeparable from human nature alfo.

CHAP. III, SECT. IV.

There cannot therefore have been a time in which man had yet to acquire his right of defence in respect to the particulars mentioned, nor a time in which it was not just to respect the person of a man, as much or more than to refpect his poffeffion or his eftate.

In this view of the matter, juftice cannot be faid to be an artificial virtue, any more than the person of a man to which it refers is artifical. And no time can be affigned for the commencement of a perfon's right to defend himself different from the time at which he began to exift. In every state of his existence, by whatever name we call it, whether the state of nature, the state of fociety or convention, as every one had a right to defend himself, fo in every one it would have been wrong to invade that right.

It is abfurd therefore to allege, that in any state of mankind all men had equal rights to all things, or that the right of any one to defend his own person took its rife from convention. It is indeed probable, that such a doctrine never would have been advanced, nor would justice in the most general and comprehensive terms have been supposed to be an artificial or adventitious virtue; if reafoners had not overlooked the self-evident rights of the perfon, and carried their view at once to matters of property in which the right is confeffedly artificial or adventitious.

With refpect to fubjects of poffeffion or property, it is admitted, that until they were poffeffed by fome one, they were open

to

to any one, and became matter of juft poffeffion to the firft oc- PART II. cupier.

To these only Mr Hobbes feems to have adverted, when he fays, that in the state of nature" all men had equal. rights to all things;" and the meaning muft be, that no one had any right to any thing until he had occupied it: That occupancy was equally open to all men ; but he ought to have fubjoined, that after a fubject was fairly poffeffed, no one had a right to disturb the firft occupier in his use of the subject.

The undeniable evidence of obvious and uncontrovertable truths makes it abfurd or impertinent to state them for information, or in the form of discovery; but to affume principles, or to adopt conclufions in direct contradiction to fuch obvious truths may indeed have the merit of novelty, or feem to proceed from profound obfervation, but is certainly in a much higher degree abfurd than the repetition of any truth, however obvious and previously known.

To guard against the first of thefe errors we may be obliged to incur the second, and attempt the enumeration of rights even under titles to which the attention of all mankind might be taken for granted, without any mention of them.

On this account, then, we begin with observing, that the rights of men may be confidered, either in refpect to their fubject, or in refpect to their origin.

Confidered in respect to their subject, they are by lawyers fometimes termed perfonal and real *.

VOL. II.

Bb

Confidered

* See Blackstone's Commentaries on the Laws of England.

CHAP. III.
SECT. IV.

« السابقةمتابعة »