CHAP. IV.

OF JURISPRUDENCE,

PART SECOND, RESPECTING THE DEFENCES OF MEN.

SECTION I

Of the Means that may be oppofed to Injustice in general.

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

SECT. I.

may

be defended or mantained.

VOL. II.

Kk

Under

PART II.
CHAP.IV.
SECT. I.

Under this title, the laws of war among nations will form a principal object of confideration 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 refpectively proper or fufficient on fuch occafions. In one fet of circumftances, or on one occafion, perfufion 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

are lawful only upon the fuppofition of enmity, and are termed PART I
boftilities.

CHAP. IV.
SECT. 1.

Perfuafion confifts in the ufe of argument, reprefentation or rational inducement of any fort, to obtain the confent of the party with whom it is employed. To diftinguish perfuafion from deception, it is neceffary that it fhould be limited to the use of coufiderations founded in truth, or believed by the perfon who ufes them to be of real moment in deliberating on the fubject refpecting which they are offered. To difguife or conceal the truth, to mifrepresent any important circumstance relating to it, or to impofe with fallacious argument, is rather to deceive than to perfuade.

Under this limitation, perfuafion may be employed to obtain a favour no less than to defend or maintain a right; and as they who may be perfuaded to do right are not to be considered as injurious or malicioufly inclined, they are not objects of punishment, whether punishment be confidered as an example to deter the injurious, or as a precaution to guard against any future criminal attempts.

Perfuafion is amicable; but where amicable means are not fufficient to preferve a right, hoftilities no doubt are lawful; and among thefe artifice or deception where fufficient, may be chofen. as the leaft hurtful to the perfon against whom it is employed.

Deception or misinformation, in the nature of things, even apart from diftant confequences, is pernicious; and to employ it without neceffity is an injury. The perfon against whom it is fo employed has fubject of well-founded complaint; or may demand Kk 2 information

PART II.
CHAP. IV
SECT. I.

information of the truth as his right. Even a person who is put upon his defence, may reject the ufe of difguife or deception, as difhonourable means of safety to himself: But we are not enquiring, in this place, what is the most honourable part for the injured to act, but what the supposed injurious perfon may claim as a right, respecting the use of means to be employed against himself.

It is admittted, among the modern nations of Europe, that requifition of right, manifefto, and folemn declarations of war, fhould precede hoftilities, or the actual ufe of force. Difguifes and artifices, nevertheless, in certain negociations or tranfactions of state, are employed to gain an advantage, perhaps, without any fuppofed infringement of this rule.

There is, indeed, a general difpofition to reprobate artifice or deceit, even when employed to repel an injury, or to frustrate a malicious intention. This proceeds upon an affociation of basenefs or cowardice with every act of diffimulation or falsehood, which we accordingly reprobate under the denomination of treachery But this appellation no more applies to the use of ftratagem in repelling an injury, than the term murder applies to the ufe of a fword or deadly weapon in repelling an affault on the perfon or property of an innocent man. If a perfon, acting in his own defence, may receive an affaffin on the point of his sword, how can it be supposed, that he may not withhold information from him, or even by misinformation mislead him from the execution of his malicious purpose.

The affaffin who purfues an innocent perfon, in order to murder him, may no doubt be lawfully told, that the perfon he feeks

is gone to the right, when he is actually gone to the left. In this PART II. CHAP. IV. manner, deception or ftratagem is univerfally admitted as just on SECT. I. the principles of the law of nature; and, although perfons who m confult the reputation of bravery may think that open force is preferable to deception or disguise of any fort; yet, upon the general principle, that rights are to be defended by means the least hurtful to the perfons against whom they are employed, deception and artifice is in general to be preferred to the use of actual force.

The use of force, it is true, may not always be more fevere or destructive in its effects than the use of deception; but, as force repelled by force is likely to proceed to the highest extremities, it is justly placed as the laft refort of the injured in defending their rights, and not to be employed where it is safe to rely on perfuafion or ftratagem.

Under this title of force may be included not only the use of arms and actual violence, forcible restraint, and the infliction of punishment, but even threats, or the denunciation of violence, which may operate on the fears of those against whom they are employed.

Such being the gradation of means, that may be employed in defence of a right, the law of nature is modified, in particular circumstances, by a regard to the choice which is to be made of fuch means, according to the degree in which they are severally effectual or necessary.

In the applications of this law, alfo, regard must be had to the defcription and relation of perfons, whether ftrangers and uncon

nected,