to cut them off from it causelessly, and to put them under the jurisdiction of any other society: because, if the society has this right, the corresponding obligation of the parts must be, not only an obligation to be directed by the will of the society in return for protection, but even to obey the society, where their obedience would put them out of its protection. He determines, in like manner, that a part cannot transfer its allegiance to another society, without the consent of the society, of which it is a part. Necessity, however, would justify the part in thus transferring its allegiance: because the social compact, like all other compacts, admits of the equitable exception of necessity.

But here Grotius adds, that the part has, in this respect, a fuller right than the whole. Necessity, by superseding the obligation of the social compact, supersedes all civil jurisdiction. The part, therefore, in these circumstances, is under no other obligation towards the whole, than it would have been in a state of nature; where there is no such relation of part and whole, of subject and society, and, consequently, no obligation of one towards the other. But if this is the effect of neces sity, if it reduces things to the state of nature, and so leaves no civil jurisdiction; the society can have no extraordinary authority over any part of it, grounded upon the plea of necessity, to cut such part off from the general body, and to place it under a new and foreign juris diction. Necessity, instead of giving the society such an extraordinary authority, puts an end even to its ordinary jurisdiction.

I agree with our author, that necessity does not give the society such an extraordinary authority. But he seems to be mistaken in supposing, that necessity gives the part a fuller or more extensive right in respect of the society, than it gives the society in respect of the part. For when a part of any society transfers its allegiance, this act, as far as it relates to this particular society, is only the withdrawing of allegiance. What follows this act, or what attends upon it, when the part, which so withdraws allegiance from one society, puts itself under the jurisdiction of another, has no relation to the former society. We do, indeed, call the whole act a transfer of allegiance: but what is done in such a transfer, relates to this society no otherwise, than as allegiance is withdrawn from it. Whether the part puts itself under another jurisdiction, by joining itself to some other nation, or whether it forms itself into a nation, and sets up a jurisdiction of its own; or whether the several individuals, that compose it, live independently afterwards in a state of nature; the society, to which the part belonged, is not concerned in any of these acts. If the part could, of right, withdraw its allegiance, any of these acts will be equally lawful. The question, therefore, about the right of any part of a society to transfer its allegiance to another society, when it cannot otherwise be preserved, amounts only to this, whether it has a right, in such circumstances, to withdraw its allegiance. And if necessity, by superseding the juris diction of the society, will give it this right; the part and the whole are in the same condition, or have an equal right, in respect of one another. For as necessity supersedes the obligation of the part to pay allegiance, so a like necessity will supersede the obligation of the whole to give protection. Grotius, therefore, is mistaken in his conclusion, for want of stating the question properly. He compares what the part does in transferring its allegiance, with what the whole does when it alienates

the part. Whereas, when the part transfers its allegiance, this, in respect of the society, is only the withdrawing of allegiance, and ought, therefore, to be compared with what the whole does, when it withdraws protection. In this comparison, there is no difference between their respective rights: if necessity, by taking away the obligation of the social compact, allows the part to withdraw allegiance; a like necessity will, upon the same principle, allow the whole to withdraw protection. This reasoning may, with very little alteration, be applied to a single member of a civil society, who, though he has committed no crime, is demanded by an enemy. Though no person has a right to leave the society, to which he belongs, unless the public either expressly or tacitly consents, that he should leave it; yet where the society is in such circumstances, that protection, which is the end of social union, cannot be had, this necessity will supersede the obligation of the social compact, and will allow him to provide for himself, by quitting the society. A like necessity, on the part of the society, where it cannot defend itself, if it undertakes the defence of some particular person, who is a member of it, will justify the withdrawing of protection. This conduct of the society will appear the more reasonable, if we observe, that it does no damage to the individual: for if the society could not defend itself, without deserting him, it certainly could not defend him, if it would.

But the notion of deserting a subject, differs from the notion of delivering him into the enemies' hands. A right only to desert him, leaves him at liberty to provide for his own safety as well as he can. Whereas, a right to deliver him up, implies an obligation on his part to submit to be delivered up, though he might be able to make his escape, and to secure himself; and a right in the society to seize him by force, and prevent him from escaping, till it has put him into the enemies' power. The principle upon which Grotius sets out in examining this question, is, that the subject, whom the enemy has demanded, is obliged to deliver up himself: and from hence he deduces a right in the society to compel him, by force, to discharge this duty, if he refuses to discharge it of his own accord. It would, in effect, be to take the point in dispute for granted, if Grotius, when he argues from the obligation of the subject, to deliver up himself to establish the societies' right of delivering him up, by force, had considered this obligation as a matter of strict justice, which is due from the subject to the society. For, undoubtedly, the society has a right to compel the subject, by force, to do whatever, in strict justice, it can demand of him. So that, to lay it down as a first principle, that the subject is under a strict, or perfect obligation, to deliver up himself, is the same as if it had been taken for granted, or laid down as a first principle, that the society has a strict and perfect right to deliver the subject by force. But Grotius only supposes, that it is an obligation of the imperfect sort; a duty of humanity or benevolence on the part of the subject, to prefer the preservation of a multitude to his own safety. But if this is only an imperfect obligation, we might question, whether the subject can be compelled to discharge it: for, in general, where a duty is in its own nature of imperfect obligation, and there is no positive law which has so far changed the nature of it, as to make it a duty of strict justice, the law of nature gives no right to compel the performance of such a duty. To this our author replies, that,

amongst equals, there is, indeed, no right to compel any person to discharge a duty of imperfect obligation; but a superior can, of right, compel an inferior to the practice of any virtue whatsoever; and this right is necessarily included in the notion of superiority. The state, therefore, may lawfully deliver up the subject, by force, if he refuses to discharge the imperfect duty of delivering up himself. I shall not insist upon its being uncertain, whether, in such a distressed condition of a nation, as is here supposed, a powerful enemy, who makes this unrea sonable demand, would be satisfied if it was complied with: for, though this uncertainty might be urged as a reason why the subject is not obliged, even imperfectly, to deliver up himself, because by such an act he might sacrifice his own safety without preserving the society, yet the terms of the question exclude the supposition of such an uncertainty; since the question is not what the society has a right to do, in order to try whether it cannot preserve itself, but what it has a right to do, when a compliance with the enemies' demand is the way, and the only way, to preserve itself. Nor shall I inquire how far the general law of benevolence would bind a man to give up his own life, for the sake of preserving a multitude; because this is an inquiry which is likely to introduce much declamation on both sides, and little precision on either. And it is the less necessary to enter into this inquiry, because if we suppose this first principle of our author to be true, it will not support his conclusion. Civil superiority is a right of prescribing to the members of a society such a conduct as is conducive to the general good, and of enforcing what is so prescribed. We must, therefore, allow, that where any duty, which is naturally of imperfect obligation, appears to the public wisdom to be conducive to this end, a civil society has an authority, derived from the social compact, to prescribe this duty by positive law: and when it is thus prescribed, it becomes a duty of strict justice, and the subjects may be compelled, by force, to discharge it. But though we are ready to allow this, I do not see how Grotius can contend for it, or argue from it, consistently with himself: because his general opinion is, that no civil authority can make use of force to compel the practice of any duties that are of the imperfect sort, and particularly to compel the practice of benevolence. His consistency, however, is not the matter now in hand. If the principle itself is true, he may argue from it in this question, notwithstanding he elsewhere contradicts it, provided he argues from it rightly. But this is the point in which he fails. A civil society has authority to prescribe duties of imperfect obligation, and then to compel the subjects to observe them. But they must be first prescribed by positive laws, before such compulsion can, of right, be made use of: for, till positive laws have made them duties of perfect obligation, they continue to be, what they were naturally, duties of imperfect obligation, and cannot be exacted by force. If, therefore, our author's reason, upon which he endeavours to establish the right of a civil society to deliver up one of its innocent members to an enemy, that demands him, will establish this right at all, it can only be in those societies, if there are any such, which have prescribed, by positive laws, that any subject, who is thus demanded by an enemy, shall deliver himself up. You may say, that a command of the public,

Grot. Lib. II. Cap. XX. § XX.

which is given at the very time, will stand in the place of a law, and that, if the society has a right to establish a positive law for this purpose, it has an equal right to give an occasional command for the same purpose. But this is a mistake: for, what is enjoined by law, relates equally to all the members of a civil society, so as to lay the same burden upon all in general: and it is merely accidental, if the law, when it comes to be put into execution, should affect only one member in particular: it had no view to him in particular, but was designed to affect all alike, whenever they shall happen to be in the same circumstances that he is. But the burden, that arises from an occasional command, is originally designed to be laid upon one only: and, without a fresh command, the like burden will not fall upon any others, even though their circumstances should happen to be the same with his. Now, each member is obliged, by the social compact, to join with the rest in supporting the state, and in advancing its welfare. But this compact does not bind any one member to pursue these ends alone; and, consequently, does not give the state any authority to prescribe, that any one member shall pursue these ends by such occasional commands as oblige him in particular, and produce no obligation upon the other members, even though they should come into the same circumstances. In military service, a soldier may, indeed, be ordered by his commanding officer to a post which he cannot defend, without the hazard, or rather without the probable loss of his life. This appears, at first sight, to be an occasional command of much the same sort with the command that we have been speaking of. But a little attention will show us the difference between them. All the members of a civil society, who have voluntarily engaged to perform military service, are subject to the military laws of it; which, however they may be distinguished by name, are part of the civil law. These members, therefore, are all of them obliged, as occasion requires, to hazard their lives in the same manner, by maintaining such posts as they are ordered to. And what the commanding officer does, by ordering any particular person to a post of certain danger, is only a particular application of this general law. Thus the occasional command, which is given to an innocent member of a civil society, to deliver himself up to an enemy, is not founded in any previous law, which would extend, in like circumstances, to all the other members, but is in the original design of it confined to him in particular. Whereas, what may be called occasional commands of superior military officers, are, in effect, only the occasional applications of such a general law, to one particular person, as, in its original design, extends to all who shall ever be in the same circumstances that he is in.

The topics that are commonly made use of in this question, are, on one side, that every person consents to become a member of a civil society, with a view to his own benefit; and, on the other side, that every member of a civil society is obliged to promote the benefit of the whole. But whilst I think, that a nation has no right to deliver up an innocent member to an enemy, and that the member demanded by the enemy is not obliged to deliver up himself, I do not think that the first of these topies will establish the truth of this opinion. For the private view, which a man has to his own interest, when he enters into a civil society, is not the proper measure of the societies' right over him, or of his duty towards it, after he is become a member. The social compact is a bar

gain between him and the society: and in this bargain, as in all others, the mutual rights and obligations, which are produced by it, are not determined by the particular view or purpose which led one of the parties to agree to it. These rights and obligations depend upon the mutual agreement of both the parties; and, consequently, cannot be settled, without considering the views of both. A member of any state might design to advance his own particular benefit by becoming a mem ber: but the society no otherwise consents to this design, and no otherwise establishes it into a right on his part, or obliges itself to concur with him in it, than upon condition of his consenting to secure and advance the general good. Whatever extensive views, therefore, he might have of obtaining his own benefit, the extent of his right to pursue it, as he is a member of the society, and under the obligation of the social compact, will depend upon the limitation which arises from this compact, and respects the security and good of the whole. The other topic, however, which is commonly made use of, on the contrary side of this question, will not prove, that the state has a right to deliver up an innocent member to an enemy who demands him. He is obliged, as he is a member of the society, to promote the benefit of the whole. But this obligation is not absolute or unconditional. The benefit which he is obliged to promote, is a benefit in which he is to have a share in common with all the other members, and which they, according to the respective duties of their several stations, are obliged to assist in promoting, in common with him. And such an obligation, on his part, cannot give the society, which consists of all the other members, a right to compel him to advance or secure a benefit, in which he cannot possibly have any share, and towards the advancing and securing of which no member, besides himself, contributes any thing. But it is time to leave this digression, and return to the law of nations.

na

Members of a na- XIII. The several members of a civil society are tion, are account parties, by the law of nations, in any injury that the soable for injuries ciety does: for this law considers such a society as one done by it. collective person: and, consequently, an injury, which is the act of this collective person, must, in the view of this law, be the concurrent act of its several parts or members.

But in a perfect democracy, the act of the nation is the immediate and direct act only of the majority; whilst the minority of the members, who are overruled by the majority, dissent from it. And, in like manner, the act of a nation, under other forms of government, is the immediate and direct act of the supreme governors; whilst the subjects either know nothing of what is done, or contribute nothing towards it by their consent, or, perhaps, disapprove of it. How, therefore, can the law of nations be the same, as to the matter of it, with the law of nature: since the former law makes those parties in an injury, who have never immediately or directly consented to it, or whose consent was of no moment in producing it? What we have elsewhere said about the obligation of civil laws, will help to explain this matter. No person is naturally obliged to do any thing, beyond what the law of nature prescribes, without his own consent. But, in a civil society, the several members are obliged by the civil laws of it; though these laws differ in the mat

Grot. Lib. II. Cap. XXI. § VII.

†See Book II. Chap. VI. § I.