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midst of the storm. He need not recur to any maxim of law for this purpose: The power of neceffity is fuperior to law; and the instinct of nature drives to its end, with a force which speculative maxims can neither withstand nor direct.
Attempts to find any regular counterpoife to the weight of defpotifm, when every ordinary form is warped to the purpose of injustice, have perplexed the most ingenious minds, or sometimes fuggested a doctrine which can scarcely be applied beyond the form of words in which it is ftated. That, as power originates with the multitude, that is, with the individuals of whom the multitude is compofed, they have a right to reclaim it, wherever it is abufed; or, if they are bound by the terms of a political contract, to submit to government; these terms are reciprocal, and the contract may be broken of either fide: If on that of the fovereign, the power is again that of the multitude, and may be
Such maxims in fpeculation coft nothing but the words in which to exprefs them; but, in practice, we must remember, that, as the multitude never can be affembled, this maxim in effect puts the fword in the hands of every individual, to employ it for himself. And the fate of mankind, in such instances, must depend on what we term accident, or the character of those who gain the ascendant, or are able to prescribe new forms of proceeding, after numbers are tired of the disorders which have attended the suspension of the old.
Of the Cafe of Nations.
THE human fpecies, though difpofed to affociate, is difpofed to PART II. feparation alfo. It is ever found in divifions and compartments, SECT. IV. under the denomination of families, tribes, nations, or hordes. And of these the very leaft are rarely, without compulfion, or fome urgent confiderations of safety or expedience, made to coalefce in greater numbers, or, beyond the ties of acquaintance or confanguinity, fubmit to act under any common direction.
There is, however, in the nature of things, fufficient provision made to assemble the fpecies, or to form the combination of indefinite numbers.
Men are, by their difpofitions and their faculties, qualified to make the neceffary arrangements for the conduct of society however enlarged. And, however reluctant in every fucceffive ftep, they actually pafs over the bounds of perfonal acquaintance or
PART II. perfonal relation and numbers, however unknown to one another,
But, with respect to the objects of our present diffcuffion, any Jeparate company or fociety of men acting under a common direction, may be termed a nation: For any plurality of men fo united, in the language of lawyers, is an artificial perfon, having power to act, and rights to defend.
In the intercourse of separate nations there being no government or common magistrate to whom they are subject, their cafe is, or may be nearly the fame with that which was supposed in a preceding fection under the relation of parties ftrangers and unconnected. They are subject to the law of nature alone, however it may be modified by special conventions, and the law of nature for this reafon is also termed the law of nations. In their differences or disagreements they may appeal to the judgement of neutral powers; but if a difference is not otherwise removed, they may have recourfe to war and the decifion of arms.
The law of nations, which proceeds upon the fuppofition of peace when their is no existing offence, proceeds upon the fuppofition of war when differences arise that cannot be otherwise reconciled; and is therefore, relatively to fuch occafions, termed alfo the law of peace and of war.
The last of these titles is that under which the learned Grotius has treated of the law of nature; and perfons who have recourfe to this author will have occafion to felect from his redundancy what is neceffary rather than to feek for additional information on the fubject. Poffeffed of the juft principle of compulfory law,
he has applied it in a most ample detail, but fo intermixed with PART II. quotations from the custom and practice of different ages, with CHAP. IV. confiderations of duty, as well as right; that his work becomes a fystem of ethics, and the history of opinions and customs, rather than a fimple deduction and application of the principles of compulfory law. His quotations, indeed, are interefting, fo far as we are concerned to know what men and nations have thought and practifed, on the fubject of their mutual obligations and rights; although their opinions are not of fufficient authority in establishing the principles, or in directing the applications of juf tice.
The most admired nations of antiquity were erroneous in their doctrines, and unfortunate in their practices relating to this important fubject. In war, the hoftilities they practised were often unneceffarily deftructive; and the fervitude to which they deftined their captives was altogether unfounded on any principle of justice. So that, what we have to learn from the example they have fet in these particulars, is rather what we ought to avoid, than what we may imitate or quote as authority in decifions of natural law.
We are, in this refpect, certainly more happy in modern times. War is made with little national animofity, and battles are fought without any perfonal exafperation of those who are engaged: So that parties' are, almost in the very heat of a contest, ready to listen to the dictates of humanity or reason; and there is no branch of practical justice, which we may recommend with more hopes of fuccefs, than that which reftrains nations at war, from unneceffary feverities against one another.
The artificial perfons, of whom we are now to treat, confidered internally, or in refpect to their constituent members, confist of fellow citizens, magistrates, and fubjects: Confidered externally, or in refpect of one nation to another, they have their separate rights, whether original or acquired; may avail them felves of fuch rights; and guard them, by fuch means as are in their power, against any species of infringement or wrong.
Among the rights of nations, acquired or adventitious, may be reckoned the ftipulations of treaty, or the conditions of acknowledged cuftom. These several articles of right, every nation lies under an obligation to obferve, refpecting its neighbour, and is entitled to maintain respecting itself. In their disputes, they may have recourfe to perfuafion or reafon; but, if reafon fhould fail, their final refort is to stratagem or force.
Such is the state of war between nations; a state in which it is allowed, that former conventions ceafe to be binding, and that a nation aggrieved may avail itself of every means in its power to obtain redrefs; but, if the grounds of war be lawful, on the fide of the one party, they must be unlawful on the part of the other; and all that we say, concerning the rights of war, in the application of force, is true only upon the supposition that the grounds of the war itself are juft: Infomuch that, in stating the maxims of law, on this fubject, we endeavour to express only the rights of those who are entitled to plead the justice of their caufe.
Wars may originate in rapacity, emulation, or malice, in error or mifapprehenfion of right; they may be of indefinite continuance, or even form the ordinary state of contiguous nations. The fact