OF CONTRACTS.

The peculiarity of a contract is, that it is a mutual promise: that is, we promise to do one thing, on the condition that another person does another.

The rule of interpretation, the reasons for its obligatoriness, and the cases of exception to the obligatoriness, are the same as in the preceding cases, except that it has a specific condition annexed, by which the obligation is limited.

Hence, after a contract is made, while the other party performs his part, we are under obligation to perform our part; but, if either party fail, the other is, by the failure of the condition essential to the contract, liberated.

But this is not all. Not only is the one party liberated, by the failure of the other party to perform his part of the contract; the first has, moreover, upon the second, a claim for damages to the amount of what he may have suffered by such failure.

Here, however, it is to be observed, that a distinction is to be made between a simple contract, that is, a contract to do a particular act, and a contract by which we enter upon a relation established by our Creator. Of the first kind, are ordinary mercantile contracts to sell or deliver merchandise at a particular place, for a specified sum, to be paid at a particular time. Here, if the price be not paid, we are under no obligation to deliver the goods; and, if the goods be not delivered, we are under no obligation to pay the price. Of the second kind, are the contract of civil society, and the marriage contract. These, being appointed by the constitution under which God has placed us, may be dissolved only for such reasons as he has appointed. Thus, society and the individual enter mutually into certain obligations with respect to each other; but does not follow, that either party is liberated by every failure of the other. The case is the sanie with the marriage contract. In these instances, each party is bound to fulfi its part of the contract, notwithstanding the failure of the other.

It is here proper to remark, that the obligation to veracity is precisely the same, under what relations soever it may be

formed. It is as binding between individuals and society, on both parts, and upon societies and societies, as it is between individuals. There is no more excuse for a society, when it violates its obligation to an individual, or for an individual when he violates his obligations to a society, than in any other case of deliberate falsehood. By how much more are societies or communities bound to fidelity, m their engagements with each other, since the faith of treaties is the only barrier which interposes to shield nations from the appeal to bloodshed in every case of collision of interests! And the obligation is the same, under what circumstances soever nations may treat with each other. A civilized people has no right to violate its solemn obligations, because the other party is uncivilized. A strong nation has no right to lie to a weak nation. The simple fact, that two communities of moral agents have entered into engagements, binds both of them equally in the sight of their common Creator. And He, who is the Judge of all, in His holy habitation, will assuredly avenge, with most solemn retributions, that violation of faith, in which the peculiar blessings bestowed upon one party are made a reason for inflicting misery upon the other party, with whom he has dealt less bountifully. Shortly before the death of the Duke of Burgundy, the pupil of Fenelon, a cabinet council was held, at which he was present, to take into consideration the expediency of violating a treaty; which it was supposed could be done with manifest advantage to France. The treaty was read; and the ministers explained in what respects it operated unfavorably, and how great an accession of territory might be made to France, by acting in defiance of its solemn obligations. Reasons of state were, of course, offered in abundance, to justify the deed of perfidy. The Duke of Burgundy heard them all in silence. When they had finished, he closed the conference by laying his hand upon the instrument, and saving, with emphasis, "Gentlemen, there is a treaty." This single sentiment is a more glorious monument to his fame, than a column inscribed with the record of an hundred victories.

It is frequently said, partly by way of explanation, and

partly by way of excuse, for the violation of contracts by communities, that corporate bodies have no conscience. In what sense this is true, it is not necessary here to inquire It is sufficient to know that every one of the corporators has a conscience, and is responsible to God for obedience to its dictates. Men may mystify before each other, and they may stupify the monitor in their own bosoms, by throwing the blame of perfidy upon each other; but it is yet worthy to be remembered that they act in the presence of a Being with whom the night shineth as the day, and that they must appear before a tribunal where there will be " no shuffling." For beings acting under these conditions, there surely can be no wiser or better course, than that of simple, unsophisticated verity, under what relations soever they mar be called upon to act.

CHAPTER THIRD.

I. The theory of oaths.

OF OATHS.

It is frequently of the highest importance to society, that the facts relating to a particular transaction should be distinctly and accurately ascertained. Unless this could be done, neither the innocent could be protected, nor the guilty punished; that is, justice could not be administered, and society could not exist.

To almost every fact, or to the circumstances which determine it to be fact, there must, from the laws of cause and effect, and from the social nature of man, be many witnesses. The fact can, therefore, be generally known, if the witnesses can be induced to testify, and to testify the truth.

To place men under such circumstances, that, upon the ordinary principles of the human mind, they shall be most likely to testify truly, is the design of administering an oath.

In taking an oath, besides incurring the ordinary civil penalties incident to perjury, he who swears, calls upon God to witness the truth of his assertions; and, also, either expressly or by implication, invokes upon himself the judgments of God, if he speak falsely. The ordinary form of swearing in this country, and in Great Britain, is to close the promise of veracity with the words, "So help me God;" that is, may God only help me so as I tell the truth. Inasmuch as, without the help of God, we must be miserable for time and for eternity; to relinquish his help, if we violate the truth, is, on this condition, to imprecate upon ourselves the absence of the favor of God, and, of course, all possible misery for ever.

The theory of oaths, then, I suppose to be as follows: 1. Men naturally speak the truth, when there is no

counteracting motive to prevent it and, unless some such motive be supposed to supervene, they expect the truth to be spoken.

2. When, however, by speaking falsely, some immediate advantage can be gained, or some immediate evil avoided, they will frequently speak falsely.

3. But, when a greater good can be gained, or a greater evil avoided, by speaking the truth, than could possibly be either gained or avoided by speaking falsely, they will, on the ordinary principles of the human mind, speak the truth. To place them under such circumstances, is the design of An oath.

4. Now, as the favor of God is the source of every blessing which man can possibly enjoy, and as his displeasure must involve misery utterly beyond the grasp of our limited conceptions, if we can place men under such circumstances that, by speaking falsely, they relinquish all claim to the one, and incur all that is awful in the other, we manifestly place a stronger motive before them for speaking the truth, than can possibly be conceived for speaking falsehood. Hence, it is supposed, on the ordinary principles of the human mind, that men, under such circumstances, will speak the truth.

Such I suppose to be the theory of oaths. There can be no doubt that, if men acted upon this conviction, the truth would be, by means of oaths, universally elicited.

But, inasmuch as men may be required to testify, whose practical conviction of these great moral truths is at best but weak, and who are liable to be more strongly influenced by immediate than by ulterior motives, human punishments have always been affixed to the crime of perjury. These, of course, vary in different ages, and in different periods of society. The most equitable provision seems to be that of the Jewish law, by which the perjurer was made to suffer precisely the same injury which he had designed to inflict upon the innocent party. The Mosaic enactment seems intended to have been, in regard to this crime, unusually rigorous. The judges are specially commanded not to spare, but to exact an eye for an eye, a tooth for a tooth. It certainly deserves serious consideration, whether modern