PART II. In the mean time, the references which we have repeatedly CHAP. III. SECT. XII. made to the prerogatives of government, and the allegiance of fubjects, may feem fit rather to start queftions, and form difficulties, than to folve them: And we ought not perhaps to dismiss this question, relating to the specific obligations and rights that refult from compact, without endeavouring to bring into fome clear point of view the feveral queftions that may arise, respecting the rights and obligations of men, under any form of subordination or political inftitution.

In the first place, we may venture to reject the idea of an origiginal compact, as it is assumed, either in the formation of society itself, or in the establishment of any actual government: For men must have been already together in fociety, in order to form any compact, and must have been in the practice to move in a body, before they can have concerted together for any purpose whatever. And we are justified, by the hiftory of mankind, in affuming, That, some fpecies of government being neceffary to the peace of fociety, Providence has kindly ordained, that wherever there is a fociety, there fhould be government also, subject to such correction as the grievances, men experience under it, may lead them to apply *.

It is nevertheless a manifeft principle in the law of nature, that a right to command, or an obligation to obey, beyond what is required to the mere prevention of harm, can be founded in confent alone. The powerful have a right to command any perfon. to abstain from harm; but not to do any pofitive fervice. There may be a power, therefore, without any right of command to this extent; and, where any fuch is exercifed it may, in the power language

*See Hiftory of Political Arts, vol. 1ft.

language of English law, be termed a government de facto, PART II. though not a government de jure.

There is indeed, by institution of Providence, and by an original diftinction of dependance and power, in every fociety, a government de facto. And the fame may become a government de jure, alfo, if the parties concerned, upon trial of the fituation in which they find themselves placed, agree to the conditions which are required in the exercife of government. If the subject, for instance, agree to accept of protection, in return for the pofitive contributions and fervices required to public fafety; in order to make fuch agreement binding on every individual, it is true that each, on his own part, must have actually given his confent: For, by the law of nature, no one is engaged by compact, without a confent given by himself in perfon, or by his agent commiffioned for this purpose.

We may be asked, then, under what government did the people affemble in a body, to give the confent neceffary to found fuch a plea of right to command them? We may anfwer: No where. And yet this is the only plea upon which the right to command can be fupported. We are therefore bound to verify the plea, before we can urge it in behalf of any government whatever.

The confent, upon which the right to command is founded

may

not be prior to the establishment of government; but may be ob

tained under the reasonable exercife of an actual power, to which every perfon within the community, by accepting of a customary protection, becomes bound to pay the customary allegiance and fubmiffion. Here is a compact ratified by the leaft ambiguous of all figns, the whole practice, or continued obfervance of an ordinary

2

CHAP. III.
SECT. XII.

CHAP. III.
SECT XII.

PART II. dinary life. The conditions here are ratified, in every age, and by individual for himfelf; not merely ftipulated, in any remote every age, and for a pofterity over which the contracting party had not any controul.

It may ftill, however, be asked, to what length the acquiefcence of parties will carry the rights and obligations, whether of the governing or governed. May the fubject be fuppofed to acquiefce in difcretionary power, or the magiftrate entitled to claim unlimited fubmiffion? The answer here is the fame as was given to the queftion of property in a master over his flave. Agreements made known by customary practice can extend only to fuch practice, and will not juftify any violent acts of difcretion of either fide. And even with refpect to practice, if any act of injuftice were ever fo often repeated, it is not in the nature of things, that the injured fhould confent to be wronged, or agree to place himself at difcretion in the power of the injurious. And, if injurics are committed, the continuance of injustice is a mere accumulation of wrongs, not a form of procedure, upon which any right can be founded.

No confent can be pleaded for the exercise of discretionary power in the magiftrate over the fubject, any more than for the existence of property in the master over the slave; because neither can befuppofed to know the condition to which he confents; and the compact, in either cafe, would imply an act of infanity, or a refignation of every thing in exchange for nothing. As acts of diforder and licence, on the part of the fubject, cannot be justified on the precedent of any actual diforder, no more can acts of tyrrany and oppreffion, on the part of government, receive any fanction from any previous practice or abufe of the fame kind.

Here

CHAP. III.

SECT. XII.

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 wisdom 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 discretion in either cafe, would be applauded and loved; but, in acts of diforder and outrage, becomes the claim of a right to do wrong, which is a folecifm in terms, and abfurd.

SECTION

SECTION XIII.

Of Forfeiture, and the Species of Right which refults from it.

PART. II. BY the law of nature; when a wrong is apprehended, it may
CHAP. III.
SECT. XIII. 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 con-
fent or compact to do; or to omit to do whatever is specified in
terms of agreement, so a perfon, having done an injury, may
become bound, in terms of the law of defence, to do, or to fup-
ply to the injured party, whatever may be neceffary to repair the
damage he has done.

This obligation, on the part of the person 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 pursuing the object of defence, the party attacked or aggrieved is entitled, by any means effectual and neceffary, to pre