ciprocal ftipulations of magistrate and subject, the one is not to PART II. expect allegiance, without adminiftring 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 arife 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. СНАР. ІІІ. 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 posterity who accede to them; but fuch agreements are all of them pofterior to the exiftence of fociety, 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 supposition 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 supposed 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 necessary to obtain the purpose for which parties contracted; that is, more severe than is neceffary to restrain crimes, and to keep the peace of fociety. For this being the object of parties in forming their compact, so far, he argues, every perfon in fociety 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 magiftrates have no right to punish any crime, farther than is neceffary 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. If we must admit the fuppofition of an original compact, like a bond of copartnery, conftituting the foundation of society, 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 fociety together, we are told, accordingly, that they must have ftipulated to abstain from harm. But whence this information, we may ask? Not from the record of any fuch ftipulation! Nay, but it may be affumed from the manifeft equity and reafon of the fuppofed article. This is, first, to alledge that a person is bound to be just, because he has bargained to be fo; and, next, to prefume that he has bargained to abstain from harm, because it is just that he do fo. If we are to fuppofe, 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 rest. 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 PART II. SECT. X. with the confent of one man not to disturb the poffeffion of another; and, in fhort, no man is obliged, even in the latest hour of fociety, to abftain from harm, except fo far as by fome fpecies of compact he has bound himself fo to do. Such confequences, however, are fufficiently abfurd to justify our rejecting the principle on which they are founded; and are probably far from the thoughts of many, who affume the focial compact, as a fiction of law, upon which to reft their decifions in particular instances. To this principle, at any rate, we cannot have recourse in fixing the grounds of conventional obligation. That a compact may be binding, we must suppose some previous foundation upon which its obligation may reft, whether the confiftency to which Mr Hobbes refers, or the original right of every perfon to defend himself, to which we have fo often referred in these difquifitions. If the rule that forbids the commiffion of harm, or the principle of nature, on which is founded a right of defence, can be applied to the cafe of parties, fo far pledging or accepting a faith which is pledged to them, as that, by the breach of this faith they may injure or be injured; it will follow, that they ought to refrain from that injury; or may repel it, by obliging the party contracting to fulfil the terms of his contract. By the law of nature, every party may defend his eftate from every invafion that is made to impair it. Of the state which may be thus defended, men derive part from the hand of their Maker, which is accordingly to them matter of original right; part from their own act and deed, as in the case of occupancy or labour, already recited; and we may now fubjoin, that they I derive derive part of their state alfo from the engagements in which others PART II. are bound to them; or from the faith that others have plighted. The fervant is fecure in the engagement of a master to pay his wages; the mafter relies for his accommodation on the engagement of the fervant to do his work. The landlord is rich in the engagement of tenants to pay his rents; the tenant bestows his labour, and scatters his feed, trusting to the leafe he has received from the landlord. Even the mifer himself, who is disposed to hoard up his wealth, may not have a single penny or article of value in his poffeffion. He is rich in the capacity merely of a creditor, and in holding others obliged to pay the principal and interest, in which they are indebted by bond to him. Such credit, in one man towards another, is a part of their focial nature; and the person who is difpofed to abuse his credit may wound or destroy, by means of that inftrument, no lefs than by the arm of violence, or the fword which he wields in his hand. If it be admitted, that men are by nature difpofed mutually to give and to receive information; that where they have no special cause of distrust, they rely on the informations, affurances, or promises which they receive from others; and that great part in the conduct of every perfon is determined by informations or affurances fo received. If the bewildered traveller, in the dark, turns confidently to the right, when he is told that there is a precipice on the left, it must evidently follow, that to mislead him, or to occafion his harm, by any misinformation, would be equally criminal, as to occafion that harm by any other means. Hence CHAP. III. |