CHAP. III. ferve or to recover his ftate. He has a right to the ufe of means PART If. which are effectual, but not to the ufe of means which exceed what is neceffary, in one cafe, to repel the attack, that is made upon him, or, in another cafe, to repair the damage he has fuftained. Thefe limitations, in the right of defence, are evidently founded in the law of nature; although it may be difficult, in particular inftances, to fix or to afcertain their application by any precife rule. A perfon, whose right is invaded, may think it necessary to employ all his powers in their utmost extent, to repel the invasion; and he may have incurred an injury in his perfon, in his honour, or in his reputation, of which it may be difficult to estimate the measure, or to adjust the reparation. Even in the case of trespass, on fubjects of real right, as in matters of poffeffion or property, the alarm may not be proportioned to the value of the fubject invaded, nor can the measure of injury be always afcertained by the quantity of loss sustained. The intention or mind with which an attack is made, is often more alarming than the material lofs to be apprehended; and insult, in the manner of invasion, may be more injurious than the physical harm it occafions. With refpect to the variety of cafes that may thus occur, we must be contented to obferve, in general, that a person may be bound, to replace, from his own property, the lofs he may have occafioned in the property of another, and that, in cafe of any material damage, he may be bound to render personal services, where he has not effects to answer his forfeiture. If the injury he has committed affect the good name or reputa- VOL. II. tion PART II. tion of another, he is bound to retract his calumnies, in the man- If he have not only impaired the state of the perfon wronged, but given juft ground of alarm, alfo, on the fubject of his future behaviour, he is bound to admit of fuch precaution, as may be fufficient to guard against the danger of which he has given a just apprehenfion. And the injurious, in particular instances, is justly expofed to fuch punishment or fuffering, as may be neceffary to deter himself or others from repeating the offence. Nature has happily infpired the mind of man with indignation or refentment of wrongs; and this fentiment may quicken the arm of public juftice: But to render the exercise of public vengeance, and the infliction of punishment agreeable to the principle of natural law, it ought not to exceed the allowable means of defence; or be any other than a reasonable expedient for the fuppreffion of crimes ; and this principle contains in itself the rule upon which a juft gradation of punishment fhould be accommodated to the variety and gradations of guilt. In the first place, as the terms right and wrong are correlative, it may be observed, that where a perfon has not done a wrong, he cannot be faid to have forfeited a right; or in other words, as wrong implies fome culpable action, no forfeiture can enfue where there is no culpability or blame. Agreeably to this maxim, involuntary or cafual incident, of any fort, although it may be the cause of harm to any one who is placed within reach of its effects, yet is it to be considered, not as a wrong, but as a misfortune, equally an object of regret to the doer, as to the fufferer; and to both equally an object of fu ture CHAP. III. ture precaution. If a perfon, for inftance, fhould, by falling PART II. from a height, hurt or damage the perfon or property of another, in the way, it is evident, that by fuch misfortune he might become an object of pity, but not of refentment, that the damage fuftained could not be imputed to him, nor the reparation of it in justice be exacted from him. So that, although there may be damage, if there be not a crime, there is no juft occafion for the infliction of punishment. In the Roman law, a perfon was refponfible for the trefpafs committed by his beaft, as well as for a trespass committed by himfelf; but this is just so far only as the damage sustained from a beast, otherwise lawfully kept and useful, could be imputed to neglect or culpable inattention, on the part of the owner. It was admitted, that the owner ought to guard against fuch trefpaffes as it was the nature of his beaft ufually to commit. These he might forefee, and was bound to prevent: But, if an animal fhould depart from the ufual track of his nature, and trefpass in a manner that was not to be expected from him; if a cow, instead of a trefpafs on the pafture or ftanding corn of a neighbour, fhould, contrary to the natural instinct of fuch animals, become carnivorous, and devour the young of a neighbouring herd: Here the damage could not be imputed to the owner, as the prevention of it could not fall within the province of any ordinary or reasonable degree of care or attention. The decifion of law, in this cafe, evidently proceeds upon a principle, that forfeiture is proportioned to the degrees of demerit, and we may add, that measures of punishment, authorised by the law of nature, ought to be regulated upon the fame principle. CHAP. III PART II. To crimes which originate in malice, or in any deliberate purpofe of guilt, fufficiently strong to break through the restraints of confcience or of public repute, a proportional defence and correction must be applied. Where fociety is alarmed by overt acts of malice or deliberate guilt, fufferings may be juftly inAlicted that may ftrike even the obdurate with awe and terror; or, if the life or liberty of the guilty, perfon fhould be inconfiftent with the public safety, he may no doubt, be justly removed by exile or by death. Offences that arife from fudden gufts of paffion, may be reftrained or corrected by punishments of inferior degree. Faults of ignorance or inattention may be corrected by better information, admonition, or even by the experience of an evil thereby incurred. One order or defcription of men may be restrained by the fear of fhame or dishonour; to restrain another pecuniary fine or bodily fufferings may be requisite; and it is not at all neceffary, that we fhould recur to convention, in order to rest upon this bafis the obligation of the magiftrate not to confound unequal measures of guilt or public alarm in the promifcuous application of extreme punishment to offences unequally heinous, or unequally incorrigible; nor is it neceffary to recur to convention, in order to found the right of the fubject to plead his exemption, in every cafe where unneceffary or difproportional degrees of severity are employed against him. We have ftated forfeiture among the fources of adventitious rights; and, in confidering what species of right may refult from thence, may proceed to obferve, that forfeiture cannot, like occu pancy SECT XIII. pancy or labour, give title to a fubject, in which no one before had PART II. any right. The perfon forfeiting muft forfeit only what was his CHAP. III, own, fome poffeffion or property which he may be forced to refign, or fome sevice which he may be forced to perform. It is farther evident, on the principle of the law of nature, that nothing can be lawfully feized or forced, under the title of forfeiture, except it be of a nature fit to repair or to compenfate a damage done, and that more cannot be exacted than is neceffary for this purpose. This is implied in the general clause of the law of nature, which limits the means of defence to what is effectual and necessary. A lofs of property may be repaired, by an equivalent in property or fervice performed. Even injuries which cannot be repaired in kind, as the lofs of a limb or bodily organ, may receive. fome compenfation; and alarms may be quieted by fome adequate measure of punishment, having a tendency for the future. to restrain fuch crimes. But it is evident, that, in the clause. now cited is implied a prohibition of cruelties or ineffectual feverities, which have not a tendency to repair or to compenfate the damage fuffered, nor to restrain the repetition of guilt. From hence alfo we may conclude, that although a perfon may have forfeited his poffeffion, his property, or his labour, to any amount, yet no one can forfeit all his perfonal rights, or from a perfon become a thing or fubject of property. Criminals, accordingly, in the policy of fome nations, are condemned to labour, or to confinement for life. In this, however, it is not pretended, that their nature is changed from a person to a thing, or to a subject of property. Capricious cruelties having no tendency to prevent |