CHAP. III. prescribed, might be misled to fuftain an obligation where it is not PART II. properly constituted. But, in difcuffions of the law of nature, where a contract is fuppofed to confift, not in any prefcribed form or mode of expreffion, but in the mutual affent of parties, acting freely and in the exercise of their reason, the exceptions of force and fraud are precluded in the definition itself; and, where the fact does not correspond to the definition, what we contend for is not an exception, by which to fet afide a contract supposed to fubfift, but is a negative plea, by which we deny that tract ever did exift. any con The infane or incapable can raife no expectation. A perfon forced or deceived into a bargain, cannot be expected to fulfil that bargain, when he is at liberty, or has detected the fraud that was employed to mislead him. He may confider the person who employed fuch means to circumvent him, as guilty of an injury; and may think himself entitled to reparation, instead of being bound to perform the articles of a bargain fo obtained. There may, however, be a real affent of parties to an article of compact which may afterwards appear to be either injurious to the right of fome third party, or in the nature of things impoffible; and in every fuch cafe, there is a real ground of exception, even upon the general affumptions of the law of nature. The exception of injuftice may be pleaded to ftop execution of an article injurious to a third party, and that of impoffibility to fave the party contracting from fruitless attempts to perform what cannot be done. Under these titles of injuftice and impossibility, confidered as exceptions to a contract, a variety of cafes may be supposed. PART II. CHAP. III. 1, That neither party, at the time of ftipulating, was aware SECT. XI. of the injuftice or impoffibility. In this cafe the decifion is, that both parties are bound to drop their petenfions as foon as the exception is known. A fecond cafe may be fuppofed, where only one of the parties, at the time of ftipulating, knew of the exception. If the contracting party alone knew that he was engaging himself to commit an act of injuftice, he is injurious to the party against whom the wrong is directed. If he alone knew that the performance was impoffible, he is unjust to the party accepting, in whom he has endeavoured to raise a vain expectation. If the party accepting alone, knew that the performance would be unjust, he is, in accepting the offer, injurious to the party likely to fuffer. If he alone knew that the performance to which he engaged another, was in the nature of things impoffible, his acceptance of fuch engagement was an injury to the person whom he induced ignorantly fo to engage himself in fruitlefs attempts. A third cafe may be fuppofed in which both parties knew of the exception at the time of making their agreement. If the article ftipulated was by both parties known to be injurious to a third party, the agreement amounted to a confpiracy against the perfon concerned. If the article was known by both parties to be impoffible at the time of stipulating, there may have been a purpose, by fuch fham transaction, to impofe upon fome third party, or elfe the proceeding must be judged altogether irrational and abfurd. In every contract must be supposed a fufficient mode of communication CHAP. III. SECT. XI. munication between the parties. Language, whether in fpeech PART II. or writing is the most common, but any other means of expreffion, fuppofed to be mutually understood, will be equally fufficient upon the principles of the law of nature, to establish a conventional, obligation, or right; gestures of any fort understood as figns of declaration or affent; a continued courfe of action; even single actions may, upon this principle, not only be conceived to express a meaning, but are actually fuftained as fufficient expreffions of affent before the courts of law in every civilized nation. Hence the effect of custom every where admitted as part of the common or the municipal law. Hence the obligation contracted by a fhopkeeper, to fell the goods in his fhop to those who will pay his price, and the obligation of a person who takes the goods, to pay that price. Hence the obligation of an inn-keeper to accommodate paffengers; and the obligation on paffengers to pay their bill; although neither one nor the other made any verbal declaration to that effect. In the ordinary courfe of things, we look to the future as a continuation of the past, and confider the custom of the country in which we refide, as an affurance of the terms on which we live with the people of that country. It is evident in particular, that custom may be pleaded against those who take the benefit of it, where it is favourable to themfelves; and who, therefore, may be reasonably fuppofed willing, in their turn, to comply with it, where it is favourable or beneficial to others. PART II. In this manner conventions are tacitly formed, and the laws of every country confifts more of customary practice, established by repeated decifions, than of ftatute or exprefs conftitution of any fort. It is a maxim of natural juftice, that every party obferving a custom, in those respects in which it is burdensome to himself, is entitled in his turn to expect the obfervance of it also in those respects in which it is beneficial. A perfon bearing the public burdens of the ftate, is entitled to its protection; and a fovereign, granting protection, is entitled to allegiance and support. Convention, though not the foundation or cause of society, as implied in the term of original compact, may be supposed almost coeval with the intercourfe of mankind. Men do not move in the fame company together, without communications of mind or intention. These communications become objects of mutual reliance, and even that party may be charged with breach of faith who has belied the expectations he gave by his amicable looks or pacific behaviour. From the first steps, therefore, that are made in fociety, conventions may be fuppofed to go on accumulating in the form of practice, if not in the form of statute or exprefs inftitution. Political establishments, in many instances, originate in force, and prerogatves are affumed which in the first exercise of them were manifest violations of right. Men nevertheless in process of time, or at least in the fucceffion of a few ages, acquire the habits of their fituation; and fucceeding generations may be reconciled to forms that were forced on their ancestors. They adopt as a custom, and willingly submit to conditions which ow ed CHAP. III. ed their first impofition perhaps to violence. In fuch cases, we PART II. are not always to look back to the origin of a custom or prac- SECT. XI. tice, in order to judge of its validity. If it be such as the mind of man may by habit be reconciled to, and willing to adopt, it becomes binding on those who have availed themselves of the cuftom, where it is favourable to themselves; and are therefore fairly understood to adopt the conditions of it, where these conditions are reciprocally favourable to others. Succeeding generations of men are fuppofed to be comprehended under certain legal establishments, by the deed and inftitution of their ancestors. This is not ftrictly true. Every citizen, as he comes of age, enters upon a scene which his ancestors had prepared for him, but of which the conditions as binding on him cannot be ratified by any one befides himself. He mixes in fociety, where thefe conditions are already ratified by others; and he himself in complying with them, and in reaping the benefit of them, gives fuch affurance of his willingness to accede to the terms already prescribed in his country, as amounts to a fufficient ratification of the fame terms on his own part. So that citizens, in every regular community, are bound, not by the inftitution of their ancestors on which they were not confulted, but by the confent which they themselves have given, by availing themselves of the benefits which refult from fuch inftitutions. To the question, therefore, whether perfons of one age can bind. their posterity in ages that follow? we may answer in the negative: But fucceeding ages, nevertheless, become bound in acceding to the terms on which they live with their fellow citizens. VOL. II. Gg In |