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Of Contract, or the Principle of conventional Obligation.
PART II. A CONVENTION, or contract, is the mutual consent of parties to CHAP. III. conftitute, transfer, or reduce a right.
Where two or more perfons, therefore, are confenting to the fame or to mutual articles of agreement, they come respectively or mutually under the obligation of contract.
This obligation, in the cafe of mutual confent, is univerfally acknowledged, or univerfally pleaded by those who exact the performance of a bargain: Infomuch, that even they who overlook other foundation of right, acknowledge compact as fuffievery cient to fupport all the claims of juftice in civil or political fociety.
The obligation of compact, therefore, muft either be felf-evident, or must be derived from fome very obvious and felf-evident principle.
principle. Mr Hobbes denies the existence of any right prior to PART II. convention; but, it most be owned, that if in this, his opinion bears hard upon human nature, in denying the original rights of men, he is exceedingly prompt to fuftain the effect of convention in creating every right which men have occafion to plead in fociety; and his proceeding is to the following purpose.
The first requifite, according to him, in establishing any principle of law with which men are bound to comply, is: " That every man divest himself of the right he hath to all things by nature *; or, as he himself interprets, the fuppofed right of all men to "all things, it being in effect, as he acknowledges, no better than if no man had a right to any thing †." The first requifite, in establishing a law of nature, is, that all men confent mutually, that for the future there fhall be fuch a thing as right; " but," continueshe," as this confent were utterly vain and of none effect, if this "alfo were not a law of the fame nature, that every man is obliged to ftand to and perform these covenants he maketh ‡;" it appears neceffary to establish this obligation in general, before the confent of parties can be supposed to establish it in any particular instance.
The breach or violation of covenants, according to this celebrated writer, is the first Species of injury; but, to a person who denies the previous existence of injury, in the harm that may done to the person of a man; it may be difficult to fhow how injury commences in this form, and no other. If he deny that, prior to convention,
De Corpore Politico, Part 1, Chap. iii. Sect. 1.
+ Ibid. Sect. 2.
Ibid. Chap. iii. Sect. 1.
PART II convention, there is any obligation to abstain from harm; if he admits that the violent may wound with his fword; that the infidious may enfnare with his cunning; why not that the faithlefs may, to procure an advantage to himfelf, betray the confidence he has been able to obtain.
To folve this problem, he has recourfe to the following process of reafoning: Not to perform what is contracted for, being what all men call an injury, he proves performance to be binding, because non-performance is an abfurdity in action, as felf-contradiction is an abfurdity in argument: "For, as he which is driven to contradict an assertion by him before maintained, is said to be reduced to an abfurdity, fo he that through paffion doth or omitteth that "which before he promised to do, or not to omit, is faid to com"mit injustice, and there is in every breach of covenant a con"tradiction so called. He that violateth a covenant, willeth the doing and not doing of the fame thing at the fame time, which " is a plain contradiction *.”
Here, it must be confeffed, the argument is diftinctly stated; the obligation of contract, and with it, according to this author, all the positive rights of men, are made to rest on the merit of confistency, in preference to inconsistency or felf-contradiction. It were irrational to fay and unfay the fame thing; therefore, rational beings are bound in their actions to be consistent with their fayings; that is to fay, they are bound to obferve their contracts. To do otherwise, would be to unfay in their actions, or in neglect of performance what they had previously said, in terms of a bargain, or in expreffions of confent.
Ibid. Sect. 2.
Such reafoning but ill accounts for the indignation with PART II. which a breach of faith is univerfally confidered by mankind. He SECT. X. who breaks faith may incur the charge of inconfiftency it is true; but how different from the charge of perfidy or treason. The traitor next to the murderer is reckoned the moft odious among criminals, and the argument now stated from Mr Hobbes is the lefs fit to fupport the obligation of contract, or to account for the fentiments with which breach of faith is reprobated, that it would equally apply to evince an obligation where none is admitted, and to fix a criminal imputation where the paffions relent; and where a perfon once inclined to the commiffion of a crime fhrinks from guilt and returns to innocence.
Thus, upon the principle of confiftency, as stated by this author, a perfon having once expreffed an intention respecting a matter in which he himself alone is concerned, would be bound to fulfil his intention, whatever reafon or confideration may have occurred to the contrary. If a perfon, for inftance, has one propofed in his own mind, or mentioned in his talk an intention to carry his goods to market, he is no longer at liberty to withhold them. If he has threatened to kill his neighbour, his benefactor, or his parent, he is not at liberty to retract or to change his mind. In any fuppofed cafe of this fort, however, mankind would confider the threat as a crime, and the failure of performance, not as a breach of faith, but as the relenting of a mind which had yet fome remains of ingenuity, a fenfe of innocence, and fome difpofition to atone for the guilt of having ever entertained fo atrocious a purpose.
In this account of moral obligation collected from the ordinary VOL. II. fenfe
PART II. fenfe of mankind, we find a clear apprehension of right and wrong prior to convention. We find an acknowledgment, that convention itself may be wrong; the completion of it worse; and the breach of it right. As he who has engaged or bargained to commit a murder incurs a certain measure of guilt in the bargain he has made; this measure of guilt he would greatly augment by preferving confiftency, or by proceeding to fulfil his bargain; and under fuch an unhappy engagement his duty manifeftly is to become inconfiftent, and to decline the performance.
Some writers who have employed their ingenuity to a better purpose, and who think more favourably of man's physical state than the last we have mentioned, feem willing, nevertheless, to reft the obligations of men in fociety more upon convention than is neceffary; and to reason from this topic of contract, in cafes to which the great injunction of natural law to abstain from harm is at least equally obvious and equally applicable.
Society itself is by fuch writers confidered as the result of a bargain, and the relative duties of men in fociety are traced up to a fuppofed original compact, on the articles of which volumes have been written*. The intention of writers, in this form of their argument, is no doubt favourable to mankind, and the hypothefis of a conditional obligation is by them recurred to, merely in order that none of the parties in civil fociety may pretend a right to enjoy his peculiar advantage, without fulfilling alfo the condition to which he is peculiarly bound, or without contributing what is due from himself, in return for what he expects to receive from another. Thus, allegiance and protection being stated, as the reciprocal
* Vide Contrat Social of Rouffeau.