CHAP.III. 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 treafon. 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 person, for instance, has one proposed 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 some difpofition to atone for the guilt of having ever entertained fo atrocious a purpose. In this account of moral obligation collected from the ordinary E e CHAP. III. SECT. X. S PART II. fenfe of mankind, we find a clear apprehenfion of right and wrong prior to convention. We find an acknowledgment, that convention itfelf 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 preserving consistency, or by proceeding to fulfil his bargain; and under such an unhappy engagement his duty manifestly 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 phyfical 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 reafon 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 hypothesis 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 re ciprocal * Vide Contrat Social of Rousseau, ciprocal ftipulations of magistrate and subject, the one is not to expect allegiance, without administring protection, nor the other to expect protection without the proper returns of allegiance and duty. Were we to enumerate all the obligations of men in fociety, we fhould find many, no doubt, which arise from convention exprefs or tacit; but, it is far from being neceffary or expedient to refer the whole to this title. The obligation to abstain from harm, and the right of every individual, to the utmost of his power, to defend himself and his fellow creatures, are prior to convention, and are indeed the foundation upon which conventional obligation itself is established. Whoever has power may employ it in defending the innocent; and fo far, the magistrate having the fword in his hand need not enquire whether the criminal that offends against the peace of his country, has agreed to abftain from crimes, or has agreed to fubmit to punishment. In repreffing the crimes, and in giving examples to deter others from the commiffion of them, the magistrate does no more than what every other perfon, prior to convention, and to the extent of his power, is entitled to do. But, when the magistrate affumes to himself alone the prerogative of employing force for the repreffion of crimes; when he tells the injured, that he must not attempt to do himself right, but must have recourse to the protection established by law; when he requires the fubject to part with his fubftance, to defray the expence of a public fervice; when he affumes the right to pofitive command, in requiring the innocent to ferve his country, as well as in requiring the injurious to abstain from harm; there, no doubt, he must be able to plead a special inftitution or convention, to which the people have agreed. PART II. PART II. Laws and inftitutions, in every community, contain articles of SECT. X. agreement entered into by the parties with whom they originated, and by their pofterity who accede to them; but such agreements are all of them pofterior to the existence of society, and not the foundations upon which fociety was originally erected. The effential obligations of men in fociety are founded in what nature has done for them, not in what they themselves have agreed to perform; and fuch obligations can receive no confirmation or fanction from the fuppofition of a contract which is merely fictitious, or which did not exist. The humane author of the treatife on crimes and punishments founding even the right to punish crimes on a fuppofed original compact, and applying a well known maxim of law, that compacts are to be strictly interpreted, denies any right in the magiftrate to inflict punishments more fevere than are neceffary to obtain the purpose for which parties contracted; that is, more fevere than is neceffary to restrain crimes, and to keep the peace of fociety. For this being the object of parties in forming their compact, fo far, he argues, every person in society may be supposed to have acceded to the contract, and no farther. This, however, is no more than a circuitous way of afferting, that the state or its magistrates have no right to punish any crime, farther than is neces fary for their own defence, or the defence of the cause entrusted to their charge; a maxim that does not require confent to make it binding, but is implied in the first principle of natural law, which limits the means of defence within the bounds of what is neceffary for the prefervation or recovery of a right. I * The Marquis Becaria. If PART II. m If we must admit the fuppofition of an original compact, like a bond of copartnery, conftituting the foundation of fociety, and SECT. X. the first charter of rights to its members; as there is no record of the articles originally framed, these must now be inferred from the principles of natural right; for we have no other fource from which to derive information of what men were likely to have ftipulated or agreed to perform in a period of which no veftige remains. In the first treaty of peace, by which men agreed to live in fo- If we are to suppose, with Mr Hobbes, or as is, in fome meafure, implied in his refting all the obligations of men in fociety upon a fuppofed original compact, that there is no right and no obligation prior to convention; it will be difficult, furely, as the example of Mr Hobbes himself will fhow, to find a foundation upon which the obligation of contract itself may reft. If contract be the fole foundation of right, all that is commonly faid of an inherent right in every perfon to defend himself, or of an obligation correfponding to this right on every perfon to abstain from harm, must be renounced. The diftinction, fuppofed between rights original and adventitious, must be dropt. All the rights of men, whether perfonal or real, are adventitious, and begin |
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