PART II.
CHAP. IV.
SECT. III.

It is our object, at prefent, therefore, to state the relative conditions of magiftrate and fubject, and the relative condition of fellow fubjects in the most general terms, fo as to comprehend the obligations and rights which enter into the nature of political fociety itself confidered as fuch, without attempting to specify the peculiarities, by which the relations of men, in different instances, may be diverfified.

It is the condition of the magistrate, in his most abstract point of view, to govern and to protect the fubject: It is the condition of the fubject to be governed and protected.

It is the mutual condition of fellow citizens, in the fame abstract point of view, to be vested with rights, in regard to which they are to one another reciprocal objects of confideration or refpect: It is implied, in the character which is common to them all as fellow citizens, that, if any difference arife between them, they recur to the judgement of the magistrate, and that. whereever his interpofition can be obtained, and may be effectual for the prevention or redrefs of wrongs, they are to refrain from any application of force on their own part, and to acquiefce in fuch means of defence, as the magistrate is duly bound to employ for their protection.

The citizen, therefore, in preferving his rights amidst the collifions of different claims and pretenfions, refigns into the hands or the magistrate the weapons of defence, which, upon the fuppofition of parties firangers and unconnected, we found the individual entitled to ufe for himself. And the magiftrate may not only employ the authority with which he is vefted, fo as to defend the inno

3

cent,

SECT. III.

cent, but lies under an exprefs obligation, fo to employ it: whilft PART II. every other citizen, whatever be the means of defence with which CHAP. IV. he is cafually furnished, is restrained from the use of them, provided the interpofition of the magistrate can be obtained for his fafety.

These are conditions implied in every political establishment, and without which fociety either cannot be preferved, or cannot be faid to have received any political form.

In these conditions, however, the obligations and rights of the parties. fo general and fo neceffary, are derived from convention alone. The magiftrate has agreed to protect the fubject, otherwife is not bound to this any more than to any other act of beneficence which he may perform at difcretion. The citizen has agreed to abide by the judgement of the magistrate, and to refrain from any attempt to do himself right, where the interpofition of the magiftrate can be obtained for that purpose; and, although the form, in which fuch agreements are entered into in different communities, may vary indefinitely, yet the compact, in refpect to its general refult, is the fame in every inftance; and the parties may equally plead their conventional rights and reciprocal obligations in every community.

We have already had occafion to observe, that the right of the magistrate to interpofe in the defence of the innocent, or in the repreffion of crimes, does not need the fanction of compact, in order to establish it; for this right is common to him, with every other perfon having power, in whatever manner that power may be conftituted, whether in the strength of his arm, or in the cooperation of numbers that obey his commands.

VOL. II.

Mm

In

PART II.
CHAP. IV.
SECT. III.

In what, then, we may be asked, is the right of the magiftrate conventional and peculiar to himself? It is conventional and peculiar, in fo far as he alone is entitled to employ his power to this effect, and fo far as every other perfon is reftrained from like application of power, wherever recourfe can be had to that of the magiftrate. In the abfence of the magistrate, or where his aid cannot be obtained, the subject may defend himself and his fellow citizens; and every individual man, to the utmost of his power, may interpose in the prevention of crimes.

The right of the magistrate, therefore, to repress crimes, and to protect the innocent is prior to convention. His obligation, at the fame time, not to employ means unneceffarily destructive or fevere, even against the person who has incurred his oppofition or his cenfure, is alfo prior to convention; and there is, as we obferved upon the foundations of the law of nature, prior to any concert or agreement of parties, a rule for the application of various restraints, and the gradation of punishments.

Crimes, we have obferved, are unequally pernicious and dangerous, and unequally alarm the community. The more forcible efforts of defence are juftified by the higher degree of alarm which the crime is naturally fitted to give. Some diforders are more easily restrained than others; and to these an inferior meafure of punishment being fufficient, the magistrate is not entitled, by the law of nature, to employ punishments of fuperior degree.

Different defcriptions of men, we have obferved, are governed by different motives. The law of nature will not authorife, with respect to any one clafs or order of men, an higher measure of pu

2

nishment,

nishment, than is fufficient to reftrain them. The fear of torture PART II. CHAP. IV. or death may be neceffary to restrain those who are infenfible to SECT. III. any other confiderations; while fhame, or the fear of disgrace alone, may be fufficient to restrain, or to reclaim another order or clafs of the people.

As nations, by ftatute or custom, are found to depart from the conditions which the law of nature, prior to convention, has impofed; fo they have feldom been found to obferve any regular gradation of punishments, or at least to remain within the bounds which fimple justice, in every particular cafe, would prefcribe. They have departed from the law of nature, in the terms of their convention or practice; and, in the refult, fometimes find themfelves engaged in forms of administration no less inexpedient than cruel and unjust.

If, to the maxims of ftrict law we may be allowed to fubjoin confiderations of expedience, it is evident that, by withholding diftinctions in the measure of punishment, we inure the minds of men to confound the higher and lower measures of guilt. And, if a criminal be to incur the higher measure of punishment, even for crimes of a lefs heinous nature, his cafe, in proceeding to infringe the law, is the fame as if no punishments were to be inflicted for the higher crime; and he will therefore prefer it to the lower, if his temptations incline him fo to do.

By the law of nature, a magistrate, in restraining a crime, may proceed to the use of means that may be necessary for that purpofe; but this law, instead of being strained to the utmost pitch of feverity, ought rather to give way to confiderations, which huM m 2

manity

PART II. manity no lefs than expedience, in many inftances, will fug

CHAP. IV.
SECT. III.

geft.

The conceptions of men, on the gradations of demerit and criminality, may be greatly affected by the promifcuous application of punishments. And, although the principle of defence, strictly applied, would juftify that measure of punishment, whatever it may be, which is neceffary to reprefs the crime, yet prudence, as well as humanity, would in some instances reject this authority, and reprobate the application of a punishment, against which human nature would revolt more than even against the crime itself.

A licentious intercourfe of the fexes is highly pernicious, and the highest measure of punishment might perhaps be necessary, and still ineffectual to reprefs it entirely; but it is evident that, if the punishment of murder were to be applied in this case, the remedy or the antidote might be more shocking to human nature, and even more pernicious to mankind, than the evil itself.

It may be more difficult to reftrain a theft committed under the preffure of famine or want, than one committed for gain. It may be more difficult ftill to reftrain a theft committed for the relief of a perishing family, than one committed for the fupply of perfonal want; yet human nature must revolt at the fuppofed application of strict law in fuch cafes; and indeed it is admitted, in the ordinary jurisprudence of all nations, that the extreme neceffity of one perfon may fo far fuperfede the right of another, as to difarm the power that is provided in civil fociety to enforce this right.

To fucceed in establishing a juft gradation of punishments, we

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