aggrieved has exceeded, and therefore in return becomes himself the aggressor *. Now the excess of retaliation cannot, any more than the fear of uncertain danger, give a colour of right to the first aggression, which may be illustrated by the case of a malefactor, who can have no right to wound or kill the officers of justice in their attempts to take him, urging as a plea that he feared the punishment would exceed the offence.

The first step, which an aggressor ought

*As the operations of war can never be regulated by an exact calculation of loss or gain; if the retaliation of the aggrieved should exceed the damages he has sustained, his acts must still be considered as defensive measures, and not as aggressions, and the mischief that follows any excess must be imputed to the first aggressor alone. For as Vattel observes, "the offended party has a right to provide for future security, and to chastise the offender by inflicting upon him a punishment capable of deterring him thence forward from committing similar aggressions, and of intimidating those who might be tempted to imitate him. He may, if necessary, even disable the aggressor from doing farther injury."-Vattel, b. ii. ch. iv. sect. 52.

Ο

to take, should be an offer of indemnity to the injured party, by the arbitration of some independent and disinterested state. And if this mediation be rejected, then his war assumes the character of a just war. Thus Hezekiah when he had not stood to the engagements made by his ancestors, being threatened with an attack from the King of Assyria on that account, acknowledged his fault, and left it to the King to assign what penalty he should pay for the offence. After he had done so, finding himself again attacked, relying on the justice of his cause, he opposed the enemy, and succeeded by the favour of God . Pontius the Samnite, after restoration of the prizes had been made to the Romans, and the promoter of the war delivered up into their hands, said, "We have now averted the wrath of heaven, which our violation of treaties had provoked. But the supreme being who was pleased to reduce us to the necessity of restoration, was not equally pleased with the

2. H. xviii. 7, 14. and xix.

Liv. lib. ix. c. i.

pride of the Romans, who rejected our offer. What farther satisfaction do we owe to the Romans, or to Heaven, the arbiter of treaties? We do not shrink from submitting the measure of your resentment, or of our punishment to the judgment of any people, or any individual §." In the same manner, when the Thebans had offered the most equitable terms to the Lacedæmonians, who still rose higher in their demands, Aristides says, that the justice of the cause changed sides and passed from the Lacedæmonians to the Thebans.

§ See Orat. Leuctrican. i.-Xenop. Hist. Græc. lib. vi. cap. v. See what Philip de Commines says in the 7th b. of his Memoirs, concerning the Swiss, who offered to make Charles the Bald satisfaction for a waggon load of sheep skins, which had been taken from some merchants. Grotius.

CHAP. II.

THE

GENERAL RIGHTS OF THINGS

The general rights of things-Division of what is our own The origin and progress of property-Some thing simpossible to be made the subject of property-The Sea of this nature, in its full extent, or in its principal parts-Unoccu→ pied lands may become the property of individuals, unless they have been previously occupied by the people at large— Wild beasts, fishes, birds, may become the property of him who seizes them-In cases of necessity men have a right of using that which has already become the property of others -To sanction this indulgence, the necessity must be such that it cannot otherwise be avoided-This indulgence not allowed where the possessor is in an equal degree of necessity-The party thus supplying his wants from another's property, bound to make restitution whenever it is possible. The application of this principle to the practice of warThe right to use the property of another, provided that use be no way prejudicial to the owner-Hence the right to the use of running water-The right of passing through countries, and by rivers explained-An inquiry into the right of imposing duties on merchandise-The right of residing for a time in a foreign state-The right of exiles to reside in

the dominions of a foreign state, provided they submit to its laws-In what manner the right of occupying waste places is to be understood-The right to certain articles necessary to the support of human society, and life-The general right of purchasing those articles at a reasonable price-The right to sell, not of equal force and extent―The right to those privileges which are promiscuously granted to foreigners-Inquiry whether it be lawful to contract with any people for the purchase of their productions on condition of their not selling the same to others;

I. AMONG the causes assigned to justify war, we may reckon the commission of injury, particularly such as affects any thing which belongs to us. Now we establish this claim to any thing as our own either by a right common * to us as men, or acquired by us in our individual † capacity. But

*The earth and all things therein are the general property of all mankind, exclusive of all other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose, that all was in common among them, and that every one took from the public stock to his own use, such things as his immediate necessities required."-Blackstone's Com. b. ii. ch. i. p.

3.

+ All writers agree that "occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued