APPENDIX TO THE MONTHLY REVIEW, VOLUME the TWENTY-EIGHTH. Questions de Droit Naturel. Et Obfervations fur le Traité du Droit de la Nature de M. le Baron de Wolf. Par M. de Vattel*. Or, Obfervations on feveral Queftions in Natural Law; being Remarks on Wolfius's Treatife on the Law of Nature. 12mo. Printed at the Hague, by Gofle, 1762. Imported by Becket and De Hondt. Lallys for the wore thathe of natural law T is with pleasure we see the study of natural law gradu long fettered, by the force of prejudice, the prevalence of cuflom, and the fanétion of antiquity. It hath, indeed, been too generally conceived, even by fome of the ableft writers on this tubject, that the means of recurring to the state of nature, and thence to the rights of fuch a state, were beft afforded by hiftory and tradition. There is a wide difference, however, between matter of right and matter of fact; fo that even fuppo fing history and tradition tranfmitted to us faithful and unexcep tionable copies of the manners of primitive ages, yet we should not thence be enabled to deduce the laws of nature, as precepts immediately arifing from fuch examples. Let us trace the hiftory of mankind as far back as we will, we shall find no pictures of human life and manners, but what have been de→ lineated fince men had formed themselves into fome kind of civil fociety; and, as the cuftoms or laws of every society must greatly depend on the fituation and circumftances of thofe * The learned and ingenious Author of The Law of Nations, &c. See Review, Vol. XXIII. p 104. who invented or adopted fuch cuftoms, nothing can be concluded abfolutely from the practices of particular people, concerning the natural propenfities of man as an individual, or the rights of mankind in general. Befides, by thus deducing right from fact, civilians have been led of couife to confound matters of polity and equity together; though doubtless there is a very effential diftinction between things politically expedient and naturally juft. The authority of the antient lawyers hath alfo weighed too much with the moderns, in their manner of treating the fubject of natural rights; which, it must be allowed, are more ftrictly deducible from arguments a priori, founded on the univerfal perceptions of pain and pleafure, and their kindred fenfe of right and wrong, implanted in the breaft of every individual. At least, if any reafoning from facts or cuftoms, a pofteriori, be admitted to illuftrate or confirm.the other, thofe facts fhould be fuch only as might be very general, if not universal, and equally applicable to all nations. Hence it is plain, that the labours of the philofopher must have been of more ule to the cultivation of this fcience than those of the hiftorian or the poet and yet the writings of the two latter have been made, in a great meafure, the bafis of almost all our fyftems of natural law. Selden, Grotius, and Puffendorf afford fufficient proof of the truth of this affirmation. Many things, indeed, accur in the laws of nations, that are too intimately connected with, and dependent on, the arbitrary rules of civil fociety, to be readily determined by the principles of natural juftice; in which cafes, the established cuftoms and practices of antiquity are ufually adopted as precedents. This, however, hath been evidently owing to the imperfect state of the fcience; for, we prefume, no one will pretend, that the laws of nations are not founded on that of nature; or, that cuftom, however firmly established, ought to prevail against the dictates of natural justice. Among thofe writers who have availed themfelves more of the reasoning and penetration of philofophers, than of the authority of Hiftorians, Poets, and Lawgivers, we may rank as the principal, fome of our own countrymen, efpecially Hobbes; who, though miftaken in fome capital points, may yet claim the honour of having opened a way to the improvements that have been fince made in the ftudy of natural law. The celebrated treatife of Wolfius on this fubject, is too well known to need any encomium on its author, whether we confider him in the light of a Philofopher or Civilian. It is no wonder, However, that amidst fuch a numerous diverfity of objects, as are affembled in the compofition of fuch a work, a fucceeding fucceeding writer of M. Vattel's abilities fhould find fome errors to correct, or omiffions to fupply. Our Readers will, we doubt not, approve of our felecting a few of the questions here treated of; by which they will be enabled to form fome judgment of the manner and merit of the whole. The fift we fhall take notice of, regards the lawful means of felf-defence, and the inftitution of penal laws, for the fecurity of perfon and property. The propofition of Wolfius runs thus; In eum, qui te lafit, tantumdem tibi licet, quantum ad avertendum periculum læfionis futuræ, five ab eodem tibi atque aliis, five ab aliis ejus exemplum fecutis tibi metuendæ fufficit. It is lawful, when a perfon hath injured us, to take every measure against the of fender, that is neceffary for our own fecurity or that of others, whether by way of preventing his repetition of the offence, or by way of example, to deter others from doing the like. To this Mr. Vattel replies, "I cannot admit of this propofition, without fome qualification, and would add, that a due proportion fhould always be obferved between the punishment and the offence or injury fuffered. Would it, for instance, be lawful for me, in order to preferve the apples in my orchard, to kill the first man who fhould come, without my permiffion, and pluck them from the trees; even fuppofing, as it happens in fome places, that the people of my neighbourhood were fo addicted to this kind of theft that they were not to be deterred from it by milder punishments? Who would denounce fo cruel a fentence? It fhould rather have been laid, therefore, "it is lawful to inflict on the perfon who injures us, a punishment fufficient to correct him, and to ferve for an example to deter others; provided always, that the evil we make him fuffer, be not too difproportionate to that which we endeavour to prevent being done to ourselves or to others." This decifion Mr. Vattel endeavours to prove perfectly confiftent with the general principles of his Author. After which he obferves, that if it be neceflary to proportion the punishment to the evil committed, it is alfo requifite to pay a due regard to the prevention of fuch evils in futuro." Hence, fays he, in civil focieties, if any fpecies of criminality become frequent, by the propensity of individuals to indulge themfelves therein, the punishment inflicted on the offenders is rendered more fevere, than it may at first appear to deferve. But in this cafe, it is certain, that the frequency of the crime, makes the evil of it greater, and thus renders it proportional to a greater punishment. Thus, for example, if an ordinary punishment be not fufficient to prevent cur gardens from being robbed, and our trees are yearly ftripped of their fruit, the evil becomes confiderable, and a feverer punishment L12 punishment ought to be inflicted on the offenders; as fuch dif orders in fociety ought to be abfolutely fuppreffed." And yet our Commentator will not entirely admit of what his Author afferts elfewhere, Pane tante licita funt, quanta ad deterrendum, nocituros a delicto vel crimine perpetrando, quantum fieri potejl, fuf- 1 ficiunt, confequenter fi appareat, non fufficere leniores, gravioribus uti liceat. Mr. Vattel is of opinion, that before we can truly affert, that it is equitable to employ feverer punishments, when the mild are found, infufficient, it is neceflary that the evil occafioned there by fhould be of fufficient confequence. "The right, continues he, which the magistracy is invefted with, of punishing offenders, is derived from that which nature hath given to every man, to act in his own defence. Now, if a robber, in 1 ftate of nature, fhould take from me a thing of little confe quence, and which I could eafily do without, I am affuredly not permitted to kill fuch an offender, even though I have no other method of recovering what is ftolen from me.' inde Might not the ingenious cafuift, however, be afked here, what lofs of property he would adjudge to be equivalent to the life of a man? for, as it is, he hath left this matter very terminate; and, indeed, on this principle, we fhould think, that nothing less than a robbery which would reduce a man to the condition of starving, would authorife him to defend his property, by taking away the life of the robb.r. Nor, indeed, is this very confiftent with what he advances above, refpecting the aggravation of the evil by a repetition of the fact; for by this argument it fhould feem, that if a man fhould rob us of a guinea, and we were poffeffed of ten thoufand, we have no right to kill him in defence of our property; whereas if it were the only guinca we had in the world, we fhould be authorised to do it. And yet might not a man be thus robbed of one quinea after another till he had but one left? -In our opinion, however, the principles on which the civil power hath proceeded, in aggravating the punishments of offenders, in cafes of frequent delinquency, are different from thofe affigned by M. Vattel. If penal flatutes were acts of vengeance, the punithments inflicted by them would reafonably be proportioned to the evil committed; but, as the end and defign of all legal punifhments (from whatever fource the right of inflicting them be derived) are confeffedly the fecurity and tranquillity of individuals and the ftate, the punishment ought to be propor tioned *Thus Plato in that celebrated paffage, tranflated and adopted by Seneca, "Punishments ought not to be inflicted, merely on account of the tioned to the intention of the offender (which may be truly called the offence) as well as to the injury actually committed. And tho' it may feem cruel, that one man fhould fuffer the fame punishment for caufing a trivial injury, as another doth for caufing the greateft; yet if it be certain that the defign of the former was equally criminal with the latter, we do not fee that the accidental defeat of that defign renders him lefs deferving of punishment. On the other hand, if a trivial injury only be intended and committed, we do not fee why the frequent repetition of such injuries by different perfons, fhould aggravate the punishment of any one. According to our ideas of natural juftice it should not. If the punishment fhould be, as we think, proportioned to the offence as well as to the injury; we don't see how the crime of a man who robs an orchard this year, is aggravated by the fame orchard's having been robbed lift year, fuppofing the prefent criminal innocent and ignorant of the prior robbery, But granting the crime is aggravated by is frequency and for the reasons our Author alledges, yet ere a government is juftified in aggravating the punishment, it should be first proved that fuch aggravation is the only method of producing the effect intended. Now, though the prevention of crimes may not be effected by one kind of punishment, it does not thence follow that it might not be effected by one of another kind, equally mild with refpect to the perfon of the offender. It is far from being proved that capital punishments are the best fecurity of property; and, till this be done, we must cfteem it a fpecies of cruelty highly difgraceful to the laws of this and fome other countries, to doom indifcriminately to death, the poor wretch who artfully deceives or boldly compels you to relieve his neceffities, and the infolent villain who wantonly plunders thoufands and involves whole families in poverty and ruin. In treating of the validity and obligation of promifes, Wolfius hath laid down the following propofition. "Si conditio poteftiva fuerit ex parte promifforis, is eam protrahere the evil already committed, (for this being done and past, cannot be undone and recalled) but on account of the evil which might otherwife be committed hereafter. Plat. de legibus, lib. xi. Mr. Vattel indeed appears, in another part of the work, to be exactly of our opinion in this refpe&." eft important d' observer encore fur cette matiere, que la rigueur des peines n'est pas toujours les plus sûr moyen d'empêcher que le defordre et le crime ne fallent des progres. Ajoutez qu'il eft tres dangereux de rendre communes les peines capitales, qui doivent être réservées pour les grands forfaits. L'experience nous apprend que le brigandage eft devenu frequent dans bien des pay, où le vol ell puni de mort." 113 |