man have two wives, one beloved and the other hated, &c. and the practice of the patriarchs. He fuppofes that the children to which this law alludes, were the children of two wives, one of which fucceeded at the death of the other; and that those who practifed polygamy, tranfgreffed the law as it was afterwards forbidden by the gospel. Then he expatiates on the nature of divorce, which is forbidden by the law of na→ ture. Yet marriage is diffolved by adultery, though not by ill ufage. A fecond marriage is null, while the firft fubfifts. Impotency on the part of the man, and the woman's incapacity for the rites of confummation, will set the contract aside, provided thefe defects will admit of no remedy. By proper affiftance, however, the man's generative faculties may be reftored and improved, and the woman rendered capable of confummation. The Doctor next confiders the validity or in-validity of marriages between persons nearly related to one another. He observes that a marriage between the father and daughter, or between a mother and a fon, would fuperfedé the duty of children to their parents; as the neceffary famili arities which marriage fupposes, are wholly inconsistent with that reverence which is implied in the notion of a child's ho nouring it's parents. This is the only natural reason that can be advanced against such alliances: for the notion of instinct is abfurd: but, as this reafon does not operate against marriages between brothers and fifters, there is nothing unnatural in that conjunction; and he judiciously fuppofes, that the legiflator, in prohibiting fuch marriages, intended to have mankind as free as poffible to chufe for themselves. A father or mother might confult fome particular conveniences of the family, rather than the inclination of their children; and whatever intereft or caprice determined them to bring about • a marriage between two of their children, they would easily be able to accomplish fuch marriage, if the brother and fifter could make a valid marriage: because both the parties are under their authority and direction, and might not only ⚫ be unduly influenced by such authority, when they were arrived at maturity, but might, even during their minority, ⚫ be contracted to one another by the act of their parents.' A A marriage may be annulled by force, or an error in the contract, when a man ftipulates for one woman and another is impofed upon him. Yet if a man ftipulates to marry a woman, with the provifo that she is a virgin, and afterwards discovers that she is not a virgin, the Doctor feems to think the contract would hold, because he must give her poffeffion of his perfon, by taking poffeffion of hers, before he can make this discovery; and by fo doing he gives up his conditions, and binds himself abfolutely.-But, no offence to the learned doctor, we apprehend a man may make this discovery, without giving her poffeffion of his body. Perhaps it would be more for the peace of families, that proper inquiries were made into those affairs before confummation; and yet fuch inquiry would be attended with great danger and uncertainty. He takes notice, that the want of the parent's confent is not always fufficient to make a marriage void: he derives the husband's authority over the wife, from the presumption of his superior skill and experience; though the subjection of a wife was appointed by positive inftitutión, as a punishment for that crime, into which the firft husband was feduced by the first wife; that it might be a standing leffon of humility to all future wives, reminding them, that through the weakness of their fex, a curfe has been entailed upon the whole fpecies.-Hear this, O ye wives, and be meek, humble and obedient! He concludes this chapter with an account of antient concubinage, which he supposes to have been a kind of marriage which a woman contracted under fome difadvantageous conditions, in refpect of herfelf and her children. The subject of the 16th chapter is the right of defence; in which are confidered the foundation of that right, which is indefinite in its extent, and not confined to injuries, but extending to all cafes where we are likely to fuffer any causeless harm, even though there is no criminal defign on the part of the affailant, or of him, who, unless we were to prevent it, would be the immediate, though perhaps the innocent, caufe of our fuffering fuch harm. He fhews how the right of defence is affected by benevolence; that if a man is attacked, he has a right against the aggreffor, to do whatever is neceffary for preferving himself from the hurt intended him; that VOL. II. N if, if, in his own defence, he should deftroy an innocent perfon, who might stand in the way, fo as to hinder his flight or interfere with his defence, there would be no injuftice on his part, and the death of that perfon must be looked upon as a natural misfortune: a man has a natural right to repel a blow or a box on the ear, by any means which the aggreffor makes neceffary. Then the Doctor proceeds to investigate the nature of what is called honour; which he defines, a fense of the eftcem or regard of mankind, a defire of raising and preferving in them an opinion of our worth and excellence." He explains the foundation of thofe abfurd mistakes which arife in matters of honour ; and, among the reft, mentions that of confounding courage with honour, in thofe men who are prodigal of their lives, to gratify their revenge.It were to be wished that Dr. Rutherforth would teach the world to think rationally on this fubject; for nothing can be more abfurd than to fuppofe, that a man's virtue or worth ought to be measured by the extent of his courage; and yet a man's honour and fame are generally judged from this nonfenfical cri terion. * Our author makes a tranfition from honour to the defence of our goods, and defcants upon the diftinction which the laws of Mofes, of Solon, of Plato, and of the twelve Tables, have made between a thief who robs in the day, and a thief who robs in the night. In the next chapter he treats of reparation for damage done, or the right, in those who have fuffered an injury, to demand reparation; he explains the nature of eftimating damages; proves that acceffarics to an injury are obliged to make reparation; instructs us how to demand damages from a number of principals; and demonftrates that reparation is due for the confequences of an unlawful act. He who has maimed another, does not make him full reparation, unless he pays for the cure, gives him the value of what he has loft, by being rendered incapable to earn fo much by his labour, as he might have earned if he had not been maimed, and further pays for the lofs of his time. If a man has debauched his neighbour's wife, befides indemnifying the injur'd husband from maintaining the fpurious offspring, he ought to pay for depriving the husband of his wife's affections, for difturbing the the peace of his family, and bringing difgrace and infamy upon it.---He describes the proper réparation for debauchiug an unmarried woman; for theft, flander, neglect or damage arising from unskilfulness and imprudence. In the next chapter he enlarges upon punishment, the primary end of which is, to prevent the criminal from offending again; and the two fecondary ends are, to amend the criminal, and deter others from following his example. He affirms that extraordinary tortures, in capital punishments, are unjustifiable.--We are of a different opinion.--That the only actions which we have a right to punish, in the liberty of nature, are those which are naturally unjuft; we cannot punish ingratitude, irreligion, and intemperance, when they hurt none but those by whom they are practifed. Nor are criminal intentions punishable, even after they are confeffed. He defines guilt, that qua lity in a criminal, which deferves punishment, or which gives ⚫ mankind a right to punish him.' But, as far as men are concerned in punishing, we may define guilt to be a difpofition to do harm, which has fhewn itself by fome actual harm already done; and according as his difpofition to do harm is stronger or weaker, the guilt of a man is greater or lefs in the fame proportion. Then he lays down a proper dif tinction between the guilt of the crime and the guilt of the criminal, The guilt of a crime is greater or lefs, according as the crime, in its own nature, does greater or less harm. There are fome circumstances attending the criminal act itself, which will aggravate the guilt of it; fuch as impiety towards a parent, inhumanity towards a friend, or ingratitude towards a benefactor. In confidering the nature of punishment, he obferves that retaliation, though it may be proper in fome instances, cannot be the universal standard of punishment, because in certain cafes it is impracticable, and in others it would be indecent and criminal. An incendiary, for example, who has no house nor effects of his own, cannot suffer the fame evil which he has brought upon others, by burning their houses and goods. Forgery of a will, or treason, cannot be punished by retaliation. An adulterer, who has no wife of his own, cannot be punished in this manner; or if he had one, the law of retaliation, instead of correcting one crime, would engage others in the fame guilt. Where we have fufficient N 2 evidence evidence that a man is disposed to injure us, the law of nature allows us to provide for our fecurity, by enforcing the criminal's duty upon him, or by fo reftraining him, as to leave him either no opportunity or no power to tranfgrefs. This is the end proposed in punishment, which juftifies us in inflicting it and certainly the meafure and degree, in which we may punish, can only be determined by that end which juftifies us in punishing in any degree. On the article mercy, he fays, that though the facility of a crime, when confidered in itself, may rather feem to leflen than increase the guilt, because he who can take the pains to offend where great difficulties are in his way, fhews a ftronger difpofition to offend, than he who meets with few or no difficulties to oppofe him; nevertheless the facility of the crime is a reason, why we fhould carry our punishment of it as high as justice will alhow of: for where a crime is easy and open, it is more likely to be committed, than where it is difficult; and if we punish in order to fecure ourselves, there is more reafon for punishing with all just severity, where we are guarded by nothing but the fear of punishment, than when we are guarded by the very difficulties which any perfon would meet with, who fhould attempt to injure us. When a criminal is punished with lofs of goods, fuch goods have no particular owner; but, after reftitution has been made to the perfon robbed, the remainder everts to the public or collective body. Among acceffaries, he enumerates thofe who command a crime, who confent to it, who affift the immediate actor, who protect the criminal, who being, in ftrict juftice, obliged to forbid the crime, do not forbid it; who being obliged to affist the sufferer, wilfully neglect to affist him; who advife, encourage, or countenance what is done; thofe who being in duty bound to diffuade the crime, do not difluade it: and thofe, who being bound to make it known, nevertheless conceal it. After having canvaffed the question, whether a criminal's deprivation of goods, is not an injuftice to his children who had no fhare in his guilt and explained how far a bondiman can be liable for a criminal; he concludes the chapter, by proving that obligation to punishment does not defcend to the heir from the ancestor. What follows is a fhort differtation upon war, including a defcription of private war; and proving that war is naturally |