« AnteriorContinuar »
fide, that every person consents to become a member of civil society, with a view to his own benefit; and, on the other fide, that every member of a civil society is obliged to promote the benefit of the whole. But whilft I think, that a nation has no right to deliver up an innocent member to an enemy, and that the member demanded by the enemy, is not obliged to deliver up himself, I do not think, that the first of thefe topics will establish the truth of this opinion. For the private view which a man has to his own interest, when he enters into a civil fociety, is not the proper measure of the society's right over him, or of his duty towards it, after he hath become a member. The social compact is a bargain between him and the fociety; and in this bargain, as in all others, the mutual rights, and obligations, prodúced by it, are not determined by the particular view or purpose of one of the parties. For these rights and obligations dépend upon the mutual agreement of both parties, and consequently cannot be fettled without confidering the views of both. A member of any ftate might design to advance his own particular benefit by be coming a member; but the society no otherwise consents to this design, and no otherwise establishes it into a right on his part, or obliges itself to concur with him in it, than upon a condition of his consenting to secure and advance the general good. Whatever extensive views, therefore, he might have of obtaining his own benefit, the extent of "his right to pursue it, as he is a member of the society, and under the obligation of the social compact, will be circumscribed and
regulated by the limitation arising from this coinpact, and respecting the security and good of the whole. The other topic, however, which is commonly made use of on the contrary side of this question, will not prove, that the state has a right to deliver
an innocent member to an enemy who demands him. For tho' every member of society is obliged to promote the benefit of the whole, yet this obligation is not absolute or unconditional. The benefit which he is obliged to promote, is only such wherein he himself may have a share in common with the other members; and which they, according to their several stations, are obliged to affist in promoting, as well as he. But an obligation of this kind cannot give the society, which confifts of all the other members, a right to compel any one man to advance or fecure a benefit, in which he cannot pohibly have any share, and towards the advancing and securing of which no member, befides himself, contributes any thing! Thus far the Doctor. What we beg leave to adit , in opposition to Grotius, and in corroboration of what
the Doctor hath advanced; is this. That States and public Communities are as much obliged to conform themselves, in every part of their conduct, to the principles of Virtue; Honour, and Generosity, as any particular member whatsoever belonging to the State or Community is. We allow with Grotius, who had one of the best hearts in the world, and who faithfully served his country, tho' he suffered by it, that it is a becoming part in every man, that it is his duty, and no more than what Nature, his own moral Nature, demands of him, to dedicate himself, his life, and his all, to the service of his country. But when a man acts this part, and by that means makes himself obnoxious to the enemies of his country, we cannot look on that country, but as under the highest obligations to this man, or, at least, as under equal obligations to him as he is to it: And if it is his duty, as far as he can, and at all hazards, to save and guard his country from the enemy; it must reciprocally be the duty of that country, to pro-, tect and shield him at all hazards, from his and their enemies. If treachery and cowardice is base in a particular man, how much baser must it appear, when become characteristical of a whole community? A fact or two will establish this, in the view of
common sense. Sir Walter Raleigh was a friend to his country, but unluckily happening to diłoblige the Spaniard, who, at that time, was the natural enemy of his country, the Spaniard threatened war; and the wife King of that country, the very Solomon of his age, under the pretext of preserving the public tranquillity, did not, indeed, deliver up Sir Walter to the enemy, but became the executioner of the enemy upon his own good subject. And what was the confequence? Sir Walter lives in the affections of his countrymen, and the Monarch becomes infamous to all posterity. Need we to this subjoin the case of the brave and disinterested Wentworth, Earl of Strafford, whom the King, who loved him, and whose interests he supported against an antimonarchical party, delivered up, at the Earl's own desire, as a victim to that very party, in order to prevent a civil war? Had not this King felt remorse, and to his dying day bewailed the action, we should have hated him, notwithstanding all his accomplishments and sufferings; at best, we cannot, even at this distance of time, reflect on this part of his conduct, with-out mingling contempt with our pity. Such are the senti-. ments that naturally arise when a State, or public, acts with pufillanimity, ingratitude, or meanness; for Kings are public persons, and, in transactions of this fort, represent the State. And if neither a regard to the public tranquillity, nor a desire.
to prevent rebellion, can justify such bafe measures; no more would the daftardly pretence of patching up a peace. But leaving this, we pass on to our Doctor's tenth and last chapter, concerning the changes to which States and Civil Constitutions are liable.
By the changes to which States and Civil Constitutions are Jiable, the Doctor does not mean fuch as are the effect of fee: cret stratagem or open force; tho', indeed, he accidentally touches upon one or other of these; but fuch only as are the effect of law, or mutual consentHe considers the changes befalling States and Civil Constitutions, not as they may
be introduced any how, or by any means, but as they take place in right, and may be justified at the bar of Reason. This kind of change may be affected, he thinks, in these three ways only. Ift, By mutual consent between the governing part of the State, and the body of the people. 2dly, By the governing part, such as the family of an hereditary Prince becoming extinct. And 3dly, By a wilful and notorious violation of compact on the part of the Governors.
In discussing the first of these heads, he observes, that tho' Civil Constitutions are ultimately founded in a law, which proceeded from the collective body of the State, before the legislative was vested in any particular part of it; yet we may argue about them, as if wholly founded in compact, because the compact between the governing part of the society, and the people, is the immediate cause, which establishes this law so as to make it binding upon both. He afterwards adds, that as this law and compact are commonly unwritten, usage, or continued practice, is the only evidence of the tenor of eịther of them. Whatever conftitution, therefore, might appear, from former usage, to have been established in any: civil society; a different, or a contrary usage, after it obtains, will afford, to every reasonable mind, the same force of evidence that the Governors and people have, by admitting a different, or contrary usage, to take place, mutually agreed to change the constitution, by releasing one another from the terms or conditions to which they had obliged themselves by a former contract. If this reasoning of the Doctor's be just, as, indeed, it very much appears fo to us; how cautious ought a people to be of admitting any customs, or usages, that may countenance any encroachment upon their privileges: and how affiduous to retrench all such as do fo!
The Doctor farther observes, under this particular head, that if the constitutional Governors, and the people, release one another, by express confent, from the obligation of the
old compact, or without any such antecedent release, agree to establish a
a new form of government: this agreement will be a tacit and effectual, as the former was an open and no less effectual, release of both parties, from their respective obligation of adhering to the old. But the Doctor adds, with geat judgment, that the legislative body of a State is only one of the parties in the compact, by which the conftitution of the State is established; and, consequently, that the acts of this body, tho' they bind the whole Society in other things, will not be sufficient to change the constitution, without the immediate and direct consent of the people; because these representatives are only a part of the legislative body, the whole of which is only one party included in the compact, the peorple being the other. And he well. obferves, that in limited: imonarchies, where the people act in the legislative by their representatives, that if we do not attend to this, we may be apt to imagine what is entirely false in this particular case, that the consent of the representatives is the consent
of the people. Under the second head, besides the extinction, our Author makes mention of the abdication, of families i and obseryes, that conftitutions which are monarchical, either in the whole or in part, will; upon the abdication of any present poffeffor of a kingdom, cease, notwithstanding the law has established hereditary succession: because the whole effect of a civil law, which establishes inheritance, consists in transmitting to the children, or other heirs, what the ancestor possesies at the time of his death. Should he therefore, in his life-time, abdicate, or relinquish his right, the law will produce no effect at his death : for there wil be nothing left for them to claim under the law, nothing left for the law to transmit to them. To this he adds,
That when a kingdom is resigned with the consent of the people, the heir may, whatever be the order of fucceffion, enter upon it immediately. But he remarks withal, that this erfect is brought about, not by the operation of any
former law, that may have made the kingdom hereditary, but by the Stociety's positive consent, obtained upon this occasion.
The third and Haft rightful occasion of change in Governments, as thele occasions are enumerated by the Doctor, is, violation of contract. Acompact, says he, when violated by one of the parties, is usually faid to be void: but, if we speak accurately, we should rather say, that it may be made void at the discretion of the other party. For certainly it would, in general, be a bardfhip upon one or other of the parties ist a compact, were the obligation of it neceffarily void, whenever
one of the parties broke the conditions of it; since, by this means, one who did not chuse to comply with the claims which another had upon him by compact, would have nothing else to do, in order to exţitguilh these claims, but to break the compact: This would be a manner of proceeding not only inconsistent with equity, but with reason for thus the party who: brake a compact,, would not only, in many
in, stances, merely by the breach of compact, gain a benefit to himself, but have it in his power also, by his role will, to dem stroy the obligation of that compact, which arose only from, and could in reason be dissolved only by, the consent of both parties. However, adds the Doctor, it is fufficient for our present purpose, to observe, that when the compact, by which the people gave their Civil Governor a part of the sovereign power, is broken on his fide, the obligation of it is voidable, or may be set aside, at the discretion of the people. To all this the Doctor adds a remark, deserving of the utmost atten. tion. There is a signal difference, fays he, between the effect of the fame wrong when done by a Monarch, and when done by a people. Upon a Monarch's failure to perform what he was obliged to by the original compact, his sovereignty rer verts to the people; because it belonged to them originally, and was hoiden on his part only by compact; and, confequently, it is at their difcretion, upon such an event, to rein.. ftate him, or not. But when the people violate the compact. on their fide, tho” it is voidable at the discretion of the King, or other Civil Governor appointed by them.; yet if he chulés, to abide by it, he has no right to any power but what he der rives from it: and if he chuses to make it void, instead of augmenting his sovereign power, he will lose what he had; and the sovereignty, as in the other case, will revert to the people. Thus the people may claim to change the constitue. tion, when a King, &c. invades their part of the sovereiga. power; whereas he, tho? the people should causelessly and wrongfully invade his part, can only claim to continue tho conftitution.
Thus have we given wbat, in fame respects, may be called an analysis of the fecond volume of Dr. Rutherforth’s Institutes of Natural Law. We have found in it fome peculiarities as to orthography, some of which we have made no scruple to comply with, in copying from the Doctor, fince they seem to point out more fully the etymology of the respece. tive words, than is done by the common way of writing them. Such are plane, planeft, and planely, from planus; progame, from proclamo; repare, from reparo. But others of