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seems to have been fomewhat of an irregular duel; but the circumftances are not clearly afcertained, as the affair happened in the nighttime, and in the dark: fo that the Evidences could not well fee what was going forward. The Major's defence is well drawn up; altho' it was not fo thoroughly fatisfactory to the Court, as to fave him from a fentence, by which he was cafhiered, and rendered incapable of serving his Majesty.

:

Art. 31. A genuine Narrative of the Life and Actions of John Rice, Broker; interfperfed with fome curious Anecdotes, particularly of the Lord Mayor and Bishop of Cambray. 8vo. Is. A. Henderfon.

Relates fome particulars concerning Mr. Rice, from his birth to his being capitally convicted of the forgery for which he was hanged. There are fome other accounts of him published, in which the Ordinary of Newgate is more compleatly anticipa el: the ingenious Authors having thought fit to accompany their Hero to the gallows.

1.

SERMONS on the General Thanksgiving, May 5, 1763. on Account of the Peace.

AT

T the parish church of Brafted in Kent. By George Davis, M. A. Mafter of Queen Elizabeth's Free Grammar-fchool at Sevenoaks in Kent. Dódfley, &c.

시

1

2. The Blefings of Peace, and the Mears of preferving it,—before the University of Oxford, at St. Mary's. By Jacob Jefferfon, M. A. Fellow of Queen's college. Rivington.

3. At Reigate in Surry. By W. Stead, M. A. Vicar of Reigate, and Chaplain to the Dutchefs Dowager of Somerfet. Burd.

4. At the meeting-place in Artillery-lane, Spittlefields. By John Richardfon.

Buckland.

J.

5. The Bleings of Peace Secured by Piety, Gratitude, and Unanimity, at St. Andrew Underfhaft, London. By Thomas Bonney, A. M. Rector of the faid parish. Caflon.

6. National Peace a choice Bleffing of the Lord,at the meeting-houfe in Redcross-treet. By Thomas Craner. Johnson.

7. Serving the Lord, the only true Thanksgiving-at Wylye near Sarum. By George Eyre, M. A. Curate of the fame place. Withers.

8. At the Hague, in the chapel of Sir Jofeph Yorke, his Majesty's Ambaffador to the States General. By kobert Richardfon, M. A. Prehendary of Lincoln, Rector of Wallington, Herts, Chaplain to the Earl of Gainsborough, and to his Excellency. Becket."

9. The prefent Peace confidered, and thankfully acknowleged to be a feafonable and special Bleffing-preached to a congrégation of Proteffant Diffenters at the meeting-house in Redcross-treet. By John Stephens. Keith.

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10. The Bleffings of Peace,-at Newcastle. By S. Lowthion. Ri chardfon.

11. At Abingdon, Berks. By Andrew Portal, A. B. Vicar. Withers. ... The Miscellaneous Sermons in our next.

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 Questions in Natural Law; being Remarks on Wolfius's Treatife on the Law of Nature. 12mo. Printed at the Hague, by Goffe, 1762. Imported by Becket and De Hondt.

This with pleasure we fee the ftudy of natural law gradually fet free from thofe fhackles in which it hath been fo long fettered, by the force of prejudice, the prevalence of cuftom, and the fanction of antiquity. It hath, indeed, been too generally conceived, even by fome of the ableft writers on this fubject, that the means of recurring to the state of nature, and thence to the rights of fuch a ftate, were beft afforded by hiftory and tradition. There is a wide difference, however, between matter of right and matter of fact; fo that even suppofing history and tradition tranfmitted to us faithful and unexceptionable 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 delineated fince men had formed themfelves into fome kind of civil fociety; and, as the customs or laws of every fociety muft greatly depend on the fituation and circumstances of thofe

* The learned and ingenious Author of The Larv of Nations, &c. See Review, Vol. XXIII. p.104.

VOL. XXVIII.

LI

who

who invented or adopted fuch cufloms, 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 courfe 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 strictly deducible from arguments a priori, founded on the univerfal perceptions of pain and pleasure, and their kindred fenfe of right and wrong, implanted in the breaft of every individual. At least, if any reafoning from facts or customs, a posteriori, be admitted to illuftrate or confirm the other, thofe facts fhould be fuch only as might be very general, if not univerfal, and equally applicable to all nations. Hence it is plain, that the labours of the philofopher must have been of more ufe to the cultivation of this fcience than thofe of the hiftorian or the poet and yet the writings of the two latter have been made, in a great measure, the bafis of almost all our systems of natural law. Selden, Grotius, and Puffendorf afford fufficient proof of the truth of this affirmation. Many things, indeed, occur 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 justice; in which cafes, the established cuftoms and practices of antiquity are usually adopted as precedents. This, however, hath been evidently owing to the imperfect ftate 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 juftice.

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, especially 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 amidft 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 queftions 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 læfit, 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 offender, 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.

66

To this Mr. Vattel replies, "I cannot admit of this propofi tion, 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 should rather have been faid, therefore, it is Jawful 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 propenfity 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 exa ample, if an ordinary punishment be not fufficient to prevent our 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 elsewhere, Pane tantæ licita funt, quante ad deterrendum nocituros a deliéto vel crimine perpetrando, quantum fieri poteft, fufficiunt, 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 neceffary that the evil occafioned thereby fhould be of fufficient confequence. The right, continues he, which the magiftracy is invefted with, of punithing offenders, is derived from that which nature hath given to every man, to act in his own defence. Now, if a robber, in a ftate of nature, fhould take from me a thing of little confequence, and which I could cafily 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."

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 indeterminate; 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 robber. 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 should 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 should be authorised to do it. And yet might not a man be thus robbed of one guinea 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 thefe affigned by M. Vattel. If penal ftatutes 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 confelledly the fecurity and tranquillity of individuals and the ftate, the punifhment ought to be propor

tioned

Thus Flato in that celebrated paffage, tranflated and adopted by Seneca, "Punishments ought not to be inflifted, merely on account of

the