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fide, that every perfon confents to become a member of civil fociety, with a view to his own benefit; and, on the other fide, that every member of a civil fociety is obliged to promote the benefit of the whole. But whilft I think, that 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 himfelf, 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 fociety's right over him, or of his duty towards it, after he hath become a member. The focial compact is a bargain between him and the fociety; and in this bargain, as in all others, the mutual rights and obligations, produced by it, are not determined by the particular view or purpose of one of the parties. For thefe rights and obligations depend upon the mutual agreement of both parties; and confequently cannot be fettled without confidering the views of both. A member of any ftate might defign to advance his own particular benefit by becoming a member; but the fociety no otherwife confents to this defign, and no otherwife eftablishes it into a right on his part, or obliges itself to concur with him in it, than upon a condition of his confenting to fecure and advance the general good. Whatever extenfive views, therefore, he might have of obtaining his own benefit, the extent of his right to purfue it, as he is a member of the fociety, and under the obligation of the focial compact, will be circumfcribed and regulated by the limitation arifing from this compact, and respecting the fecurity and good of the whole. The other topic, however, which is commonly made ufe of on the contrary fide of this question, will not prove, that the ftate has a right to deliver up an innocent member to an enemy who demands him. For tho' every member of fociety is obliged to promote" the benefit of the whole, yet this obligation is not abfolute or unconditional. The benefit which he is obliged to promote, is only fuch wherein he himself may have a share in common with the other members; and which they, according to their feveral ftations, are obliged to affift in promoting, as well as he. But an obligation of this kind cannot give the fociety, which confifts of all the other members, a right to compel any one man to advance or fecure a benefit, in which he cannot poffibly have any share, and towards the advancing and fecuring of which no member, befides himfelf, contributes any thing. Thus far the Doctor. What we beg leave to adi, in oppofition 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 Generofity, as any particular member whatsoever belonging to the State or Community is. We allow with Grotius, who had one of the beft hearts in the world, and who faithfully ferved his country, tho' he fuffered 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 fervice 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 fave and guard his country from the enemy; it muft reciprocally be the duty of that country, to protect and shield him at all hazards, from his and their enemies. If treachery and cowardice is bafe 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 fenfe. Sir Walter Raleigh was a friend to his country, but unluckily happening to difoblige 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 preferving the public tranquillity, did not, indeed, deliver up Sir Walter to the enemy, but became the executioner of the enemy upon his own good fubject. And what was the confequence? Sir Walter lives in the affections of his countrymen, and the Monarch becomes infamous to all pofterity. Need we to this fubjoin the cafe of the brave and difinterested Wentworth, Earl of Strafford, whom the King, who loved him, and whofe interefts he fupported against an antimonarchical. party, delivered up, at the Earl's own defire, as a victim to that very party, in order to prevent a civil war? Had not this King felt remorfe, and to his dying day bewailed the action, we should have hated him, notwithstanding all his accomplishments and fufferings; at beft, we cannot, even at this distance of time, reflect on this part of his conduct, without mingling contempt with our pity. Such are the fentiments that naturally arife when a State, or public, acts with pufillanimity, ingratitude, or meannefs; for Kings are public perfons, and, in tranfactions of this fort, reprefent the State. And if neither a regard to the public tranquillity, nor a defire.
to prevent rebellion, can justify fuch 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 laft chapter, concerning the changes to which States and Civil Conftitutions are liable.
By the changes to which States and Civil Conftitutions are Jiable, the Doctor does not mean fuch as are the effect of fecret ftratagem or open force; tho', indeed, he accidentally touches upon one or other of these, but such only as are the effect of law, or mutual confent. He confiders the changes befalling States and Civil Conftitutions, not as they may be introduced any how, or by any means, but as they take place in right, and may be juftified at the bar of Reason. This kind of change may be affected, he thinks, in thefe three ways only. Ift, By mutual confent between the governing part of the State, and the body of the people. 2dly, By the governing part, fuch as the family of an hereditary Prince be-. coming extinct. And 3dly, By a wilful and notorious violation of compact on the part of the Governors.
In difcuffing the first of thefe heads, he obferves, that tho' Civil Conftitutions are ultimately founded in a law, which proceeded from the collective body of the State, before the legiflative was vefted 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 fociety, and the people, is the immediate caufe, which eftablifhes this law. fo as to make it binding upon both. He afterwards adds, that as this law and compact are commonly unwritten, ufage, or continued practice, is the only evidence of the tenor of either of them. Whatever conftitution, therefore, might, appear, from former ufage, to have been established in any: civil fociety; a different, or a contrary ufage, after it obtains, will afford, to every reasonable mind, the fame force of evidence that the Governors and people have, by admitting a different, or contrary ufage, to take place, mutually agreed to change the conftitution, by releafing one another from the terms or conditions to which they had obliged themselves by a former contract. If this reafoning of the Doctor's be juft, as, indeed, it very much appears fo to us; how cautious ought a people to be of admitting any cuftoms, or ufages, that may countenance any encroachment upon their privileges: and how affiduous to retrench all fuch as do fo!
The Doctor farther obferves, under this particular head, that if the conftitutional Governors, and the people, release one another, by exprefs confent, from the obligation of the
old compact, or without any fuch antecedent release, agree to establish a new form of government: this agreement will be a tacit and effectual, as the former was an open and no lefs effectual, release of both parties, from their respective obligatian of adhering to the old. But the Doctor adds, with great 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, confequently, that the acts of this body, tho' they bind the whole Society in other things, will not be fufficient to change the conftitution, without the immediate and direct confent of the people; because these repre sentatives are only a part of the legislative body, the whole of which is only one party included in the compact, the people being the other. And he well obferves, that in limited monarchies, where the people act in the legislative by their re prefentatives, that if we do not attend to this, we may be apt to imagine what is entirely falfe in this particular case, that the confent of the reprefentatives is the confent of the people.
Under the fecond head, befides the extinction, our Author makes mention of the abdication, of families; and obferves, that conftitutions which are monarchical, either in the whole or in part, will, upon the abdication of any present poffeffor of a kingdom, ceafe, notwithstanding the law has established hereditary fucceffion: because the whole effect of a civil law, which eftablishes inheritance, confifts in tranfmitting to the children, or other heirs, what the ancestor poffeffes 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 will be nothing left for them to claim under the law, nothing left for the law to tranfmit to them. To this he adds,
That when a kingdom is refigned with the confent of the people, the heir may, whatever be the order of fuccethion, enter upon it immediately. But he remarks withal, that this effect is brought about, not by the operation of any former law, that may have made the kingdom hereditary, but by the Society's pofitive confent, obtained upon this occafion.
The third and laft rightful occafion of change in Governments, as these occafions are enumerated by the Doctor, is, violation of contract. A compact, fays he, when violated by one of the parties, is ufually faid to be void: but, if we speak accurately, we fhould rather fay, that it may be made void at the discretion of the other party. For certainly it would, in general, be a hardfhip upon one or other of the parties in a compact, were the obligation of it neceffarily void, whenever
one of the parties broke the conditions of it; fince, by this means, one who did not chufe to comply with the claims which another had upon him by compact,, would have nothing else to do, in order to extinguish these claims, but to break the compact: This would be a manner of proceeding not only inconfiftent with equity,, but with reafon; for thus the party who broke a compact, would not only,, in many inftances, merely by the breach of compact, gain a benefit to himself, but have it in his power alfo, by his fole will, to deftroy the obligation of that compact, which arose only from, and could in reafon be diffolved only by, the confent of both parties. However, adds the Doctor, it is fufficient for our prefent purpose, to obferve, that when the compact, by which the people gave their Civil Governor a part of the fovereign power, is broken on his fide, the obligation of it is voidable, or may be fet afide, at the difcretion of the people. To all this the Doctor adds a remark, deferving of the utmost attention. There is a fignal 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 fovereignty reverts to the people; because it belonged to them originally, and was holden on his part only by compact; and, confequently, it is at their difcretion, upon fuch an event, to reinstate him, or not. But when the people violate the compact on their fide, tho' it is voidable at the difcretion of the King, or other Civil Governor appointed by them; yet if he chufes. to abide by it, he has no right to any power but what he derives from it: and if he chufes to make it void, instead of augmenting his fovereign power, he will lose what he had; and the fovereignty, as in the other cafe, will revert to the people. Thus the people may claim to change the conftitution, when a King, &c. invades their part of the fovereign power; whereas he, tho' the people fhould caufelefsly and wrongfully invade his part, can only claim to continue the conftitution.
Thus have we given what, in fome refpects, may be called an analyfis of the fecond volume of Dr. Rutherforth's Inftitutes of Natural Law. We have found in it fome peculiarities as to orthography, fome of which we have made no fcruple to comply with, in copying from the Doctor, fince they seem to point out more fully the etymology of the respective words, than is done by the common way of writing them, Such are plane, planeft, and planely, from planus; proclame, from proclamo; repare, from reparo. But others of