« السابقةمتابعة »
PART II. than the tracklefs ocean, can become a fubject of property to the CHAP. III. perfon by whom it is merely traversed.
It is nevertheless a cuftom of some standing, among the nations of Europe, to claim the dominion of newly difcovered lands or islands, as founded in prior difcovery, and confirmed alone by fymbolical forms or acts of poffeffion; fuch as the erecting of columns, with dates and inscriptions recording the claim of the fovereign, in whofe behalf it is made.
So far as any number of nations have been in practice of claiming and acknowledging rights, founded in fuch forms as thefe, they must be understood to have entered into a fair convention refpecting fuch fubjects. A mere fymbolical occupancy is valid against those who have repeatedly availed themselves of the fame plea, and who are therefore come under an obligation to give way to it in their turn. It is a plea fufficient to exclude those who have agreed to be excluded by it, but not to exclude any ftranger who is not a party to any convention in the cafe, whether exprefs or tacit; much lefs a plea fufficient to deprive the native, however rude or barbarous, of the inheritance or poffeffion to which he is born.
The right of the claimant, therefore, among the nations of Europe, upon the ground of discovery or fymbolical poffeffion, is matter of convention merely among fuch nations; and cannot be derived, either from the principle of occupancy, or the principle of labour, at least, until the fubject is actually occupied, or, from the labour bestowed upon it, has received fome actual change or improvement.
Such are the ways in which a fubject, the right of no one, may become the right of some one; either while he occupies it, or in confequence of the effect he has produced in it by his labour.
It remains, that we confider by what means the right of one perfon may be transferred to another, as in convention or forfeiture.
Of Contract, or the Principle of conventional Obligation.
PART II. A CONVENTION, or contract, is the mutual confent 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 support all the claims of justice 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. Mr Hobbes denies the existence of any right prior to 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 t." 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," continues he," 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 fuppofed to establish it in any particular inftance.
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 be done to the perfon of a man; it may be difficult to fhow how injury commences in this form, and no other. If he deny that, prior to
* De Corpore Politico, Part 1f, Chap. iii. Sect. 1.
Ibid. Sect. 2.
Ibid. Chap. iii. Sect. 1.
PART II convention, there is any obligation to abftain 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 himself, betray the confi dence he has been able to obtain.
To folve this problem, he has recourse 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 affertion by him before maintained, is said to be reduced to an absurdity, so 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 distinctly 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 self-contradiction. It were irrational to say and unfay the fame thing; therefore, rational beings are bound in their actions to be confiftent 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 faid, in terms of a bargain, or in expreffions of confent.
Ibid. Sect. 2.