PART II. CHAP. III. 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 perfon 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 fuppofition, 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 enslaved 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 ftill * Servus fit jure gentium. ftill be inadequate; and we may admit as an inference from this fuppofition, that the claim of right acquired on the part of the injured, and the obligation incurred on the part of the injurious, may amount to fervice for life; but an obligation to fervice for life is yet far fhort of flavery. 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 perfon ferving, yet poffeffed of all those rights, of which the forfeiture has no tendency to effect the reparation in question, 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, even if he were bound to remain in the state of his parent, yet the ftate of the parent does not appear, upon any principle of the law of nature, to amount to flavery, or the privation of every perfonal right; but, even if this privation could be supposed to have been incurred by any convention or forfeiture, on the part of the parent, the child at his birth is innocent or difengaged, and born to the poffeffion of all his personal rights. From the whole, then, we must conclude, that the relation of 3 mafter PART II. CHAP. III. SECT. XIII. PART II. 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 such 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 juftice 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 exift, 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. 2 CHAP. CHA P. IV. OF JURISPRUDENCE, PART SECOND, RESPECTING THE DEFENCES OF MEN.. SECTION I Of the Means that may be oppofed to Injustice in general. SECT. I. HAVING specified a variety of rights, under the different titles PART. II. of personal and real, of original and adventitious, with the diffe- CHAP. IV. rent ways in which rights of the latter denomination may be acquired, we proceed next to confider the means by which a right may be defended or mantained. VOL. II. Kk Under PART II. Under this title, the laws of war among nations will form a principal object of consideration and difcuffion; but as every perfon having a right, is entitled to fome adequate means of defence, we shall state the law in its moft comprehenfive form, in which the rights and defences of fingle parties and of fellow citizens are included, no less than those of nations or feparate communities. We have obferved, as the firft and most general statement of the law of nature relating to this fubject; that a right may be maintained; or, in other words, that a wrong may be prevented, an affault repelled, and damage repaired, in any way, that may be effectual and neceffary against the injurious party. In the farther application of this law we are to confider the variety of perfons and circumstances to which it may relate. Varieties of perfons may be comprehended under the titles of perfons fingle, frangers to one another, and unconnected; under the title of fellow citizens, and feparate nations, or the members of which feparate nations are compofed. The circumstances under which a right is expofed or invaded, may direct us to the means of defence which may be respectively proper or fufficient on fuch occafions. In one set of circumftances, or on one occafion, perfuafion may be fufficient; in another it may be required to employ deception or ftratagem; ; and in a third it may be neceffary to employ force, at any hazard of fuffering to the injurious party. The means of defence, therefore, may be enumerated under the titles of perfuafion, deception, and force. The first may take place among friends; the two laft are |