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PART II. To crimes which originate in malice, or in any deliberate purCHAP. III, pofe of guilt, fufficiently strong to break through the reftraints of confcience or of public repute, a proportional defence and correction must be applied. Where fociety is alarmed by overt acts of malice or deliberate guilt, fufferings may be juftly inflicted that may ftrike even the obdurate with awe and terror; or, if the life or liberty of the guilty, perfon fhould be inconfiftent with the public fafety, he may no doubt, be justly removed by exile or by death.
Offences that arife from fudden gufts of paffion, may be reftrained or corrected by punishments of inferior degree.
Faults of ignorance or inattention may be corrected by better information, admonition, or even by the experience of an evil thereby incurred.
One order or defcription of men may be restrained by the fear of fhame or dishonour; to restrain another pecuniary fine or bodily fufferings may be requifite; and it is not at all neceffary, that we fhould recur to convention, in order to rest upon this bafis the obligation of the magiftrate not to confound unequal measures of guilt or public alarm in the promifcuous application of extreme punishment to offences unequally heinous, or unequally incorrigible; nor is it neceffary to recur to convention, in order to found the right of the subject to plead his exemption, in every cafe where unneceffary or difproportional degrees of feverity are employed against him.
We have ftated forfeiture among the fources of adventitious rights; and, in confidering what fpecies of right may result from thence, may proceed to obferve, that forfeiture cannot, like occu
pancy or labour, give title to a fubject, in which no one before had PART II. any right. The perfon forfeiting must forfeit only what was his CHAP. III. own, fome poffeffion or property which he may be forced to refign, or some sevice which he may be forced to perform.
It is farther evident, on the principle of the law of nature, that nothing can be lawfully feized or forced, under the title of forfeiture, except it be of a nature fit to repair or to compenfate a damage done, and that more cannot be exacted than is neceffary for this purpose. This is implied in the general claufe of the law of nature, which limits the means of defence to what is effectual and neceffary.
A lofs of property may be repaired, by an equivalent in property or fervice performed. Even injuries which cannot be repaired in kind, as the lofs of a limb or bodily organ, may receive. fome compenfation; and alarms may be quieted by fome adequate measure of punishment, having a tendency for the future to restrain fuch crimes. But it is evident, that, in the claufe now cited is implied a prohibition of cruelties or ineffectual feverities, which have not a tendency to repair or to compenfate the damage fuffered, nor to restrain the repetition of guilt.
From hence alfo we may conclude, that although a perfon may have forfeited his poffeffion, his property, or his labour, to any amount, yet no one can forfeit all his perfonal rights, or from a perfon become a thing or subject of property. Criminals, accordingly, in the policy of fome nations, are condemned to labour, or to confinement for life. In this, however, it is not pretended, that their nature is changed from a perfon to a thing, or to a fubject of property. Capricious cruelties having no tendency to
prevent or to redrefs a wrong, are unlawful even with refpect to those who have trefpaffed on the rules of justice.
Among nations of old, captives or prifoners of war were generally fent to the market, or retained as flaves; and from hence was derived the maxim of the Roman law, that a person might become a flave, upon the principle of the law of nations *.
We may admit, that thofe nations juftly confidered individuals as involved in the guilt of their country, as often as a juft reparation of wrongs was withheld. But, even upon this fuppofition, they greatly over-rated the forfeiture; or condemned their captives to a privation, which they had not incurred. They had undoubtedly a right to detain them during the continuance of a war, that they might not return to strengthen their enemy. They had a right to exact from them any useful fervice, which they were in condition to perform, towards repairing the wrongs done by their country: But as this proceeds upon a supposition, that their country had committed an injury, and refused to make reparation, the cafe of every captive was not the fame; and the injurious, who enflaved the fubjects of a nation they had injured, were doubly in the wrong.
We may admit, perhaps, that a perfon, either in the wrongs done by himself, or as involved in the wrongs done by his country, may incur a forfeiture, fuch as, that after he has bestowed the labour of a whole life in endeavours to repair it, the effect may
* Servus fit jure gentium.
still be inadequate; and we may admit as an inference from this PART II.
In the first place, it is limited to fuch useful performance, as the captive is able to render, and excludes the infliction of capricious feverities, that have no tendency to repair the damage done.
In the discharge of his obligation, the captive is stated as a perfon and as a moral agent, who, if he be not willing, may be forced to do what is neceffary to repair the wrong committed, but nothing more.
In the next place, as the law of nature fuppofes the person serving, yet poffeffed of all those rights, of which the forfeiture has no tendency to effect the reparation in queftion, it is implied in the fame law, that, as often as those rights are invaded, he is entitled to repel the aggreffion, and to defend himself.
It is still more evident, that no one can be a flave by birth; for,
rent, the child at his birth is innocent or difengaged, and born to
From the whole, then, we must conclude, that the relation of
PART II CHAP. III. SECT XIII
mafter and flave is the refult of violence, and cannot have arisen, like poffeffion, property, or lawful command, upon any just title of occupancy, labour, convention, or forfeiture.
A perfon condemned to fervice may accommodate himself to fuch fervices as he has been made to perform and to fuch treat nent as he has been used to receive: But this cannot be interpreted as the conceffion of a right to impose unlimited burdens, or a right to treat him with boundless severities.
One order of men may plead the expediency of holding another in fervitude; but men have not a right to impofe upon others whatever is expedient to themselves; and we must still conclude, that as no man is by nature the property of another, no more can he become fo in any of the ways in which the right of property is acquired.
The conditions of men may be unequal, to any extent; and it may, in various ways, become the lot of one to render service to another: But the law of nature ever prefcribes limits of justice or humanity, to the advantage which any one may take of the relation in which he stands to his fellow creature.
So far we have enumerated the rights of men, whether original or adventitious, and have enumerated alfo the fources from which adventitious rights are derived or begin to exist, and the means by which they may be conveyed from one to another. It remains that we confider the law of nature, in refpect to the fecond part of its applications, that by which it is proposed to regulate the defences of men.