PART II nour, by rashness in giving provocation, might be restrained by the prospect of an opposite effect. It might be difficult, indeed, in many cafes, to fix the charge of aggreffor upon either of the parties in a quarrel: But the best effect of law is not merely to give the decifion where an occafion of trial has arisen, but to prevent fuch occafions, from an apprehenfion of a decifion that may be given. All that the law, indeed, can do, is to lay down a rule, and leave juries to apply it to the best of their judgement, on the circumstances of every particular cafe. The rule, even before it is applied, would have its effect on the minds of those who are exposed to get into quarrels, and who, by avoiding the imputation of being the first aggreffor, might prevent the first steps towards an offenfive difpute. Juries, too, in fome inftances, might be able to fix the charge of aggressor, so as to increase the effect of the law by real examples of ignominy and difgrace. We pity the perfon who is forced into a quarrel, to vindicate his honour; but we deteft the bully who is ever forward in giving rife to fuch quarrels; and any difgrace which the law might award for fuch characters would be fupported by the general opinion and confent of all reafonable men. Thefe are questions of political wisdom, rather than of strict law; but are stated with advantage, when the laws to which they refer are under confideration. Such, then, we may conceive to be the prerogative of a magiftrate, in reftraining crimes and offences. It is in part prior to convention, and a concomitant merely of his power. It is limit CHAP. IV. SECT. III. ed to him alone, by the convention of fellow citizens, in which PART II. they have agreed to wave their right of perfonal redrefs, and recur to established tribunals for judgement in their differences, and to the power of the magiftrate for his protection, in maintaining or in recovering a right; a convention, the articles of which, in whatever form they be ftipulated, whether of statute or customary practice, are effential to the relation of fellow citizens in every cafe whatever; cafe whatever; ftill admitting, indeed, the exceptions we have mentioned in cafes to which the interpofition of the magiftrate cannot be effectual, or cannot extend. Members of the fame community are thus understood to have their conventional obligations, relating not only to matters of right and wrong that may come into question between them, but alfo in relation to certain pofitive duties which they owe to the community, and of which the magistrate is appointed to inspect the performance. Political establishments cannot fubfift without the fupport of their members, contributing either by their means or by their perfonal fervices to the public defence, or to the arrangements which may be neceffary for public profperity. In the very nature of political society, therefore, convention to this amount is implied. Under this general title of political convention, may be included every law and established custom relating to the prerogative of the magistrate, whether fupreme or fubordinate, or relating to the privilege of the fubject, of whatever rank or condition. There PART II. There are, in most communities that have made any progress in political arts, certain primary articles, which may be termed fundamental laws of the conftitution. In thefe articles the defcription of the fovereign power, whether a King, Nobles, or majority of the people, is either given or affumed. The powers to be exercised, and forms of proceeding are afcertained. The immunities, as well as the duties of the fubject, are specified. Such fundamental laws, or conventions, are neither the foundations upon which fociety was originally formed, nor do they always follow foon after its first institution. They come in the fequel of circumftances into which men have paffed, without any view to political establishments, as in the sequel of casual subordination of ranks, arifing from perfonal qualities, birth, education, or fortune: They are fometimes the result of amicable deliberations, and fometimes fuch as prevaling parties may have obtained by force. Mankind are known to live for many ages in fociety together, before they are sensible of the inconveniences, whether arifing from the abuse of prerogative or the abuse of privilege, for which political law is intended as a remedy. The evils have fometimes taken a deep root, before the attempt is made to remove them; and civil war is frequently the prelude to the establishment of order upon any permanent footing. Thus the great charter in England; many of the political capitulations in Germany, the pacification of parties at Rome, and what may be termed the fundamental political law in the inftance of many other states, was the refult of war or contention that arofe after many ages of fociety had elapfed. Political establishments in fome inftances appear to have no other foundation than cuftom, or a fucceffion of acts which imply, CHAP. IV. that parties acquiefce, in the ftate of their country, or in the PART II. forms according to which its affairs proceed; and in juftifying Sc.. the exertions of government in such instances for promoting the public welfare, we feldom look farther than to the actual tendency of administration to the public advantage. It is a part in the focial nature of man, to hold the action of a fellow creature, as juftified on the principle of benevolence, made known in acts of public utility; but any claim of right to extort benefits, cannot, prior to convention, be admitted, without leading to confequences extremely dangerous and hurtful to the cause of fociety. If benefits were to be enforced, beneficence would ceafe to be known as a virtue, and what ought to be a voluntary act of good will would become the effect of mere compulsion. The ufe of compulfion, upon the principle of mere utility, would become a very dangerous precedent. The powerful could eafily obtrude this plea, wherever they thought proper to exert their violence, and under pretence of extorting public benefits, the greatest of public evils might arife in a want of fecurity to thofe very rights which government itfelf is established to maintain. The people is not fafe, if the magiftrate may not only, reftrain crimes and diforders, but alfo exact contribution and actual fervice, beyond what he is authorised to demand by fpecial contract, ftatute, or custom. Any right in the magiftrate or fovereign to exact contribution, or pofitive fervice of any fort, from the fubject, being founded in convention alone; we may confider the different conftitutions of government as fo many compacts diverfified in the terms; orasfomany bargains in which the parties are variously bound, or in which, CHAP. IV. PART II. in return for what they are engaged to perform, they accept of unSECT. III. equal conditions. The terms may be unequally expedient; unequally favourable to any of the parties, or to human nature in general. They may have been fuggested by the relation in which parties were occafionally placed, as when the prerogatives of monarchy or aristocracy arofe by degrees from the continued diftinction of families, and the advantage of hereditary poffeffion. The terms to which some of the parties fubmit may have even been impofed by actual force; but in all communities, fo far as a right to enforce the performance of public service is fuppofed, we must be able to derive this right, either from the original principle of self defence, or from the principle of contract, on which alone one human creature is bound or may be forced to ferve another. It may asked, then, on what principle of justice are we to rest the exercise of compulsory law, in the case of governments which are known to have originated, and which continue to subsist, in force or violence alone? On this foundation it is admitted, that no conventional right can arise. But it is well known in the history of nations, that at one time the leader has forced his followers to fubmiffion; that at another time the follower has extorted privilege from his leader; that conditions so obtained have been expressed in statute, or gone into customary practice; and that the effects of compulfion have thus become articles of a legal conftitution, of which the validity is never questioned by any of the parties concerned. The poffibility of such a cafe has been already stated, in confidering custom as one of the forms in which conventional obliga |