PART II.

CHAP. III.

In this manner conventions are tacitly formed, and the laws SECT. XI. 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 justice, that every party observing a custom, in thofe refpects in which it is burdenfome to himself, is entitled in his turn to expect the obfervance of it alfo in those respects in which it is beneficial. A perfon bearing the public burdens of the state, 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. Thefe 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 inftances, 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 firft impofition perhaps to violence. In fuch cafes, 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 fuch 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 cuf tom, where it is favourable to themselves; and are therefore fairly understood to adopt the conditions of it, where thefe conditions are reciprocally favourable to others.

Succeeding generations of men are fuppofed to be comprehended under certain legal establishments, by the deed and institution of their ancestors. This is not strictly true. Every citizen, as he comes of age, enters upon a fcene 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 sufficient ratification of the fame terms on his own part. So that citizens, in every regular community, are bound, not by the institution 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 anfwer in the negative: But fucceeding ages, nevertheless, become bound in acceding to the terms on which they live with their fellow citizens.

VOL. II.

G S

In

PART II.
CHAP. III.

In judging of an institution, we may repeat, that we are not fo SECT. XI. much to look to its origin as its actual nature. Compliance extorted by force does not amount to convention; but justice itself fometimes needs to be enforced, and the wifeft institutions, at the time of their first admiffion, may have been the fruits of compulfion: But, if in the sequel, an establishment be found acceptable, and favourable to the interests of mankind, they do well to abide by it, and, while they do so, no individual can remain in his country, and take the benefit of its laws, without being bound to obey them in his turn.

Thus, it becomes evident, that as it were abfurd in science, like Mr Hobbes, to overlook the original rights of men; fo it were no lefs abfurd, like vifionary theorists, in any queftion of law or state, to refer to mere original rights, as the fole ground of decifion. It were abfurd, after a perfon had bought an estate, to reject the conveyance that was made to him, in order to judge of his title, on fuch principle of right merely as may be fuppofed to precede the institution of property.

But, if want of confent, in one age, will not preclude the obligation of compact on fucceeding ages, or on those who in the fequel voluntarily accede to a practice, no more will the confent of ancestors, with whom a practice originated, bind their posterity, or those who in the fequel refuse their affent; and, if an institution, however willingly adopted by a former age, prove in the fequel a mere abuse; if it be a continued exercise of injustice and wrong, fupported by force on the one part, and a continued series of suffering and reluctant compliance on the other; fuch practices, however long continued, as they are never ratified by confent, they are never established on the foot of customary

I

practice,

CHAP. III.
SECT. XI.

practice, nor do they obtain the force of convention. The op- PART II.
preffed, even after any indefinite period of oppreffion are free to
procure relief by fuch means as they are enabled to employ for
that purpose.

PART II.
SECT. XII.

CHAP.III.

SECTION XII.

Of the Specific Obligations and Rights that refult from Contract.

MEN may bind themselves by contract to do, or to omit to do, whatever is within the compass of their will, and not contrary to the right of any other perfon; but in matters, concerning one perfon, which no way depend on the confent of another, compact were mifplaced, and cannot have any effect.

In feizing upon things which are open to the first occupier, the confent of others is not required; or, in other words, the right of poffeffion refults from occupancy alone, apart from any confent.

Poffeffion is fhort of property; becaufe, if the poffeffor fhould cease to occupy a subject, he has not any right to exclude another from its ufe. When relinquifhed, it is open again to the first occupier, whether the perfon who formerly poffeffed it, or any one

elfe.