rity because a right of refifting lawless power can never ⚫ be a foundation in confcience for ufing force against just au- › thority. In fhort, upon whatever principles paffive obędi-. ⚫ence and abfolute fubjection might be obtained, if the people. had no right of refiftance; upon the fame principles focial. • obedience and civil fubjecton may be obtained, though they, have fuch a right. We cannot fuppofe fupreme, governors to have strength enough in their hands to enforce abfolute. fubjection, and to fecure them in the exercife of arbitrary power; without fuppofing them to have strength enough to enforce civil fubjection and to fecure them in the exercise of social power.. And if a fenfe of duty would operate effectually to prevent the people from refifting their governors at all; it will certainly operate as effectually to prevent them from refifting without a juft cause.'

The law of nations is the fubject of the Doctor's tenth chapter, and is difcuffed with great freedom, candour and ftrength of argument.

The law of nations is founded upon a general act of confent, as far as this law differs from the law of nature. The matter of both, is the fame: both command whatever is beneficial, and forbid whatever is hurtful to mankind, in general. Yet the objects are different. The law of nature considers, mankind as individuals, the law of nations confiders them as formed into collective perfons. That which is called the, law of nature when applied to feparate and unconnected individuals, is called the law of nations, when applied to the collective bodies of civil focieties confidered as moral agents, or to the feveral members of civil focieties confidered, not as diftinct agents, but as parts of thefe collective bodies.-The, general confent which establishes the right of prefcription is fo far from being a pofitive law of nations, that it is no law at all. It is a pofitive act of all mankind;, but this pofitive act, is a compact, and not a law. All are bound by it; not because it is done by any legislative authority, but because all and each have either exprefly, or tacitly made themselves parties to it, by their own immediate and direct concurrence: there is no pofitive law of nations, becaufe fuch a law is no where to be found; for a law that does not appear, is in effect a law that does not exist. It cannot, as Grotius fays, be found

in ufage or custom, that is in immemorial and uninterrupted practice; because the practice of nations has been variable and contradictory.

The law of nations may be found by reafon or by teftimony. It is the law of nature applied by positive consent to the artificial perfons of civil focieties. It is dictated by right reason, and may be collected by arguing from the nature of things, and from the condition and circumstances of mankind, when they are confidered as formed into fuch focieties.

In confidering the subject of territory, he proves that no nation has á jurisdiction over any part of the ocean that is not included within the land: nevertheless, he agrees with Grotius," that, if one nation has obliged itself to another, by particular compact, not to go into some particular part of the ocean with an armed ship, or not to come thither either for "the purpose of fishing, or for fuch other purposes, as are fpe"cified in the compact, the latter of these nations will have a ⚫ right to hinder the former from doing what it has thus obliged ⚫ itself not to do. But this right does not arife from any pro

perty in this particular part of the ocean, or from any juris'diction over it, but from the good faith of compact. The ' effect of this compact may eafily be diftinguished from property or jurisdiction. Property or jurifdiction is a right of excluding all nations from the ufe of a thing: whereas this compact produces fuch a right only against the fingle nation, ' which has made itself a party to it: this nation is not at liberty to go into that part of the ocean, into which it has bound itself not to come; but all other nations, that are not parties to the compact, are as much at liberty to go thither, as if no fuch compact had been made. It is poffible, that a nation may, in much the fame manner, acquire a fort of "exclufive right of fishing in such parts of the ocean, as are 'near to its own coafts. For as one nation might bind itself by compact not to come thither for this purpose; fo all na- ́ tions, that are likely to come thither, might bind themselves in the fame manner. A tacit compact might likewife pro"duce a right of the fame fort: thofe maritime nations, that are in the neighbourhood, may tacitly have confented to "establish this right by submitting from time to time to be ex"cluded from fishing near to the coasts of the nation, which acquires

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acquires the right. But this confent does not give the nation "whofe coafts they are, either property or jurifdiction in those parts of the ocean, which are near to its coafts. This usage binds only thofe, who have made themfelves parties to it by • such submission or acquiefcence: it does not bind remote nations; nor does it bind even neighbouring nations, that are lately become maritime ones: because as neither of them have ever acquiefced in the ufage, or fubmitted to be excluded from fifhing in thefe particular places, they have never made themfelves parties to the compact of exclu'fion.' We wish Dr. Rutherforth had decided how far a people, preffed by neceffity, and deftitute of habitation, has a right to demand a fettlement among another nation which hath more land than it can poffibly cultivate. This was the cafe of the Indians in North America. They claimed an exclufive property in vast tracts of land, which lay altogether neglected. This claim was founded upon a fort of occupancy, as they fometimes made excurfions in quest of game, through the whole extent of the country, which indeed had no other inhabitants: but was this occupancy a reasonble bar to exclude the colonies of other nations overstocked with people?

In difcuffing the article of war, he observes that nothing is called a folemn or juft war, but that which hath been publicly proclaimed between two nations: though just in this fenfe, does not refer to the equity of the motives, but to the meer definition in point of comparison, as we fay a juft volume, in contradiftinction to a pamphlet. In fpeaking of those who carry arms, he fays, in page 545, The members of a civil fociety are obliged in general, and thofe members, that have engaged themselves in the military fervice of it, are obliged in particular, to take up arms and to fight for it at the command of the conftitutional governors, in the defence and fupport of its rights against its enemies from without. There is no crime in entering into the focial compact, from whence the general obligation to bear arms for these purposes is derived. This compact, as it only binds the feveral members of the focizty to purfue the ends of civil union, is innocent refpect of the rest of mankind.

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And if there is no crime

in this compact, which would bind all the members alike to discharge the duties of war, there can be no crime in a particular compact, by which fome of the members undertake to discharge the fame duties, inftead of the reft. The 'confent, by which the subjects in general, or the foldiery in ← particular, lay themselves under thefe obligations, is the only act, that can by the law of nations be looked upon as a perfonal act of the individuals, who bear arms. In confequence of the general confent of mankind to confider nations as collective perfons, whatsoever is done by the members of a nation at the command of the public or of the constitu⚫tional governors, who fpeak the fenfe of the public, is the ' act of the nation: and if the act is unjuft, the guilt in the 'view of the law of nations is chargeable upon the nation, ' and not upon the individual members. I am now speaking "not of what will justify a man, who bears arms in war, to > his own confcience, but of what will justify him to the na

on against which he fights, at the command of the nation to which he belongs. If the war is plainly and notoriously unjuft, the obligation of the focial compact, or of any other ?compact, will not justify him to his own confcience: becaufe no compact whatsoever can bind him to do, or excufe him in doing, what the law of nature forbids. And if he was to fight as an independent individual, at his own choice and upon his own motion; thofe, against whom he fights, might look upon the act of bearing arms against them in fuch a war, as a perfonal crime. But when they, with all mankind, have agreed to confider the feveral members of a civil fociety only as parts of a collective perfon, that act under the direction of the common will of fuch collective perfon; however inexcufable a man, who fights against them, might be, in the view of his own confcience, or of the law of nature, which confiders him as an individual, they cannot confiftently with this agreement, that is, they cannot confiftently with the law of nations, charge him with having been guilty of a perfonal crime merely upon account of his having fought against them.' We recommend the perufal of this paragraph to thofe gentlemen who engage as voluntwers in foreign fervice, in order to diflinguish their gallantry,

by cutting the throats of their fellow-creatures, from whom they have received no injury, and with whom indeed they have no quarrel. We would advise those princes to confult their own confciences, who let out their fubjects for hire to depopulate the earth, and shed torrents of human blood, without the least provocation. We would inculcate fome fuch internal examination upon those generals who cause their prifoners to be butchered in cool blood, and extend the cruelties of military execution to innocent babes and helpless women. The use of any violence in an unjuft war, and the use of outrageous and unneceffary force in any war, is criminal by the law of nature.

It may not be amifs for thofe perfons who embark as adventurers in privateers to confider the following paragraph, There is a general reafon, why all goods, which are taken in war, should accrue to the ftate, and not to the private captors; whethers the captors act under à particular commiffion, or only under a general commiffion, from the public; and whether the goods are moveable, or immoveable, The goods fo taken are not strictly appropriated either to the ftate or to the private captors, whilst the war continues; the property in fuch goods is precarious, till a treaty of peace • has established it. In the mean time, as the flate is answer*able for them to the enemy, it is natural, that this precarious property fhould be vested in the ftate, that is, that the flate 'fhould have the cuftody of the goods. And as the effect of a treaty of peace is only to give the full property of the goods to thofe, who had the cuftody of them before; the full property will by this means accrue in the end to the ftate itself.

It may be a seasonable hint to inform the reader, that though the neutrality of a state abridges its liberty of trading with two nations at war, it does not wholly destroy it. The neutral power may fupply either with all forts of merchandize but fuch as will enable the party fo fupplied to carry on the war more effectually. All warlike ftores are undoubtedly contraband. So is money, fhipping; and fo are the materials for building and repairing fhips. Even provifions for the fupport of life, will come under the notion of warlike ftores, when they are going to a place befieged or blockaded.

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