the relation of servant is extended, by the language and by many of the rules of the law, to others in a superior ministerial capacity-to bailiffs, to stewards, to agents, to factors, to attorneys, and to the masters of vessels considered in their relation to the owners of them.1

Of many acts of the servant, the master is entitled to receive the advantage: of many others, he is obliged to suffer or to compensate for the injury. In each series of cases-it would be, here, improper to attempt an enumeration of particulars-In each series of cases, the principle is the same. Whatever is done by the servant, in the usual course of his business, is presumed, and fairly presumed, to be done by the command, or the authority, tacit or express, of the master; whatever is done by the master's command, is considered, and justly considered, as done by the master in person: "Qui facit per alium, facit per se."

Thus much concerning the relation between master and servant and thus much concerning the component parts of that important and respectable, though small and sometimes neglected establishment, which is denominated a family. "Id autem est"-says Cicero,2 in the fine and just passage already cited oftener than once-" id autem est principium urbis, et quasi seminarium reipublicæ." It is the principle of the community; it is that seminary, on which the commonwealth, for its manners as well as for its numbers, must ultimately depend. As its establishment is the source, so its happiness is the end, of every institution of government, which is wise and good.

In the introduction to my lectures 3 I told my hearers, that "public law and public government were not made for themselves;" but that "they were made for something better;" that "I meant society;" that "I meant particularly domestic society." Perhaps, it was then

13 Bac. 544.

2 De Off. 1. 1, c. 17.

3 Vol 1, p. 30.

thought, by some, that all this was introduced merely for the sake of an encomium-but, by the way, an encomium severely just-with which it was accompanied. In the regular course of my system, the sentiment has now undergone a scrutinizing analysis in the most minute detail. I can appeal to such, if any such, who thought otherwise then I can appeal to all, who have formed their opinion now, whether the sentiment, in all its parts, and in all its objects too, is not founded in sound politics and genuine philosophy.

In digesting a system of English law a little more than a century ago, it would have been necessary to notice and explain another domestic relation-not, indeed, founded in nature that of lord and villain. Of the feudal city, however, we can still recollect the exterior battlements and towers, cumbrous, but disproportioned and insecure, and the interior buildings and halls, spacious, but comfortless and inconvenient. In ruins it now lies. With sentiments very different from those of regret, we can exclaim over it—fuit servitus.1

I have now done with considering the peculiar relations of man in a state of society, independent of civil government. But in that state, as he bears peculiar relations to some, so he bears a general relation to all. From that general relation, rights and duties result. His rights are, to receive the fulfilment of the engagements which are made to him, and to be free from injury to his peculiar relations, to his property, to his character, to his liberty, to his person. His duties are, to fulfil the engagements, which he has made; and to do no injury, in the same extensive meaning, in which he would wish and has a right to suffer none.

In a former lecture,2 when I delineated at large the principles and the character of the social man, these rights 2 Vol. 1, p. 261, 268.

1 Fuit Ilium.

and duties received their illustration, and were shown to be laid deeply in the human frame. To your recollection of what was then said, I beg leave to refer you. These rights and duties are indeed, as has been observed, great pillars on which chiefly rest the criminal and the civil codes of the municipal law. It would surely be preposterous to undermine their foundation, with a view to give strength or stability to what they support-to unfix what rests on the immovable basis of nature, and to place it on the tottering institutions of man.

I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.

The defence of one's self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation-of his wife, of his parent, of

1 Est igitur, judices, hæc non scripta, sed nata lex; quam non dedicimus, accepimus, legimus ; verum ex natura ipsa arripuimus, hausimus, expressimus; ad quam non docti, sed facti, non instituti, sed imbuti sumus; ut si vita nostra in aliquas insidias, si in vim, si in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendæ salutis: silent enim leges inter arma; nec se expectari jubent, cum ei qui expectare velit, ante injusta poena luenda sit, quam justa repetenda. Civ. pro Mil.

23 Bl. Com. 4.

his child, of his master, of his servant: 1 nay, it extends to the person of every one, who is in danger;2 perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice.

The particular occasions on which the defensive principle may be exercised, and the degrees to which the exercise of it may be carried, will appear in subsequent parts of my lectures for instead of being disavowed, it is expressly recognized by our municipal institutions.

As a man is justified in defending, so he is justified in retaking, his property, or his peculiar relations, when from him they are unjustly taken and detained. When and how this recaption may be made, will also appear in the proper places. For this redress, dictated by nature, is also recognized by municipal law.

Under the same description, the right of abating or removing nuisances may, in many instances, be classed.

This long investigation concerning natural rights and natural remedies, I conclude by answering the question, with which I introduced it: man does not exist for the sake of government, but government is instituted for the sake of man. The course of it has naturally led me to consider a number of interesting subjects, in a view somewhat different, perhaps, from that, in which we see them considered in some of our law books; but in a view perfectly consonant to the soundest rules and principles of our law.

PART III.

CHAPTER I.

OF THE NATURE OF CRIMES; AND THE NECESSITY AND PROPORTION OF PUNISHMENTS.

HITHERTO, we have considered the rights of men, of citizens, of public officers, and of public bodies: we must now turn our eyes to objects less pleasing-the violations of those rights must be brought under our view. Man is sometimes unjust sometimes he is even criminal: injuries and crimes must, therefore, find their place in every legal system, calculated for man. One consolatory reflection, however, will greatly support us in our progress through this uninviting part of our journey: we shall be richly compensated when we reach its conclusion. The end of criminal jurisprudence is the prevention of crimes.

What is an injury? What is a crime ?—What is reparation? What is punishment?—These are questions, which ought to be considered in a separate, and also in a connected, point of view. At some times, they have been too much blended. In some instances, the injury and the reparation have been lost in the crime and the punishment. In other instances, the crime and the punishment have, with equal impropriety, been sunk in the reparation and injury. At other times, they have been kept too much apart. The