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Here, then, we reft the fpeculative doctrine, which is no more PART II. than this, that every party in fociety may, by mutual practice, acquire a right to whatever is practicable, and a matter of fair agreement; but not to what is wrong, or inconfiftent with the fafety of mankind. And it is the wifdom of nations, fo far to define every right by actual statute, as in every particular question to exclude as much as poffible, the influence of paffion or partial interest, whether of the governing or governed.
The claim of a right to govern at difcretion, or of a priviledge to obey at difcretion, before either have any effect, is a mere form of words. And, if exercised only in acts of beneficence and duty, the difcretion in either cafe, would be applauded and loved; but, in acts of disorder and outrage, becomes the claim of a right to do wrong, which is a folecifm in terms, and abfurd.
Of Forfeiture, and the Species of Right which results from it.
PART. II. BY the law of nature; when a wrong is apprehended, it may be prevented; when an injury is offered, it may be repelled; and, when a damage is incurred, reparation may be exacted from the injurious party: So that; as a perfon may bind himself by confent or compact to do; or to omit to do whatever is specified in terms of agreement, fo a perfon, having done an injury, may become bound, in terms of the law of defence, to do, or to fupply to the injured party, whatever may be neceffary to repair the damage he has done.
This obligation, on the part of the perfon who has done a wrong, may be termed forfeiture; and the party having incurred. this obligation may become bound to furrender to the injured party, under the title of reparation, what was before his own right.
In purfuing the object of defence, the party attacked or aggrieved is entitled, by any means effectual and neceffary, to pre
ferve or to recover his state. He has a right to the ufe of means PART IÍ.
These limitations, in the right of defence, are evidently founded in the law of nature; although it may be difficult, in particular instances, to fix or to ascertain their application by any precise rule.
A person, whose right is invaded, may think it necessary to employ all his powers in their utmost extent, to repel the invafion; and he may have incurred an injury in his perfon, in his honour, or in his reputation, of which it may be difficult to estimate the measure, or to adjust the reparation. Even in the cafe of trefpafs, on fubjects of real right, as in matters of poffeffion or property, the alarm may not be proportioned to the value of the fubject invaded, nor can the measure of injury be always ascertained by the quantity of loss sustained. The intention or mind with which an attack is made, is often more alarming than the material lofs to be apprehended ; and infult, in the manner of invasion, may be more injurious than the phyfical harm it occafions.
With respect to the variety of cases that may thus occur, we must be contented to obferve, in general, that a perfon may be bound, to replace, from his own property, the loss he may have occafioned in the property of another, and that, in case of any material damage, he may be bound to render personal services, where he has not effects to answer his forfeiture.
If the injury he has committed affect the good name or reputa
tion of another, he is bound to retract his calumnies, in the manner most effectual to repair the wrong he has done.
If he have not only impaired the state of the person wronged, but given juft ground of alarm, alfo, on the fubject of his future behaviour, he is bound to admit of fuch precaution, as may be fufficient to guard against the danger of which he has given a just apprehenfion. And the injurious, in particular instances, is justly expofed to fuch punishment or fuffering, as may be neceffary to deter himself or others from repeating the offence.
Nature has happily infpired the mind of man with indignation or refentment of wrongs; and this fentiment may quicken the arm of public juftice: But to render the exercise of public vengeance, and the infliction of punishment agreeable to the principle of natural law, it ought not to exceed the allowable means of defence; or be any other than a reasonable expedient for the fuppreffion of crimes; and this principle contains in itself the rule upon which a juft gradation of punishment fhould be accommodated to the variety and gradations of guilt.
In the first place, as the terms right and wrong are correlative, it may be obferved, that where a perfon has not done a wrong, he cannot be faid to have forfeited a right; or in other words, as wrong implies fome culpable action, no forfeiture can enfue where there is no culpability or blame.
Agreeably to this maxim, involuntary or cafual incident, of any fort, although it may be the cause of harm to any one who is placed within reach of its effects, yet is it to be confidered, not as a wrong, but as a misfortune, equally an object of regret to the doer, as to the fufferer; and to both equally an object of fu
ture precaution. If a perfon, for instance, should, by falling PART II.
In the Roman law, a perfon was responsible for the trespass committed by his beaft, as well as for a trefpafs committed by himfelf; but this is just fo far only as the damage sustained from a beast, otherwise lawfully kept and useful, could be imputed to neglect or culpable inattention, on the part of the owner.
It was admitted, that the owner ought to guard against fuch trefpaffes as it was the nature of his beaft ufually to commit. These he might forefee, and was bound to prevent: But, if an animal fhould depart from the ufual track of his nature, and trefpass in a manner that was not to be expected from him; if a cow, instead of a trefpafs on the pafture or standing corn of a neighbour, fhould, contrary to the natural instinct of fuch animals, become carnivorous, and devour the young of a neighbouring herd: Here the damage could not be imputed to the owner, as the prevention of it could not fall within the province of any ordinary or reasonable degree of care or attention.
The decision of law, in this cafe, evidently proceeds upon a principle, that forfeiture is proportioned to the degrees of demerit, and we may add, that measures of punishment, authorised by the law of nature, ought to be regulated upon the fame principle.