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chapter 9: Natural Rights and Agreements 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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Natural Rights and Agreements1
[Pufendorf distinguished between absolute duties which every man owes to every man (not to harm others, to recognize others as equals, and to be useful to others, so far as it is convenient) and hypothetical duties, which presuppose particular conditions or arrangements. Carmichael comments:]
Our author’s method relies heavily on the distinction [between “absolute” and “hypothetical” duties]. But he does not explain it with sufficient clarity nor apply it at all skillfully. And since there is the same variety of obligations or duties as of rights to which they correspond, in place of this distinction one may substitute the analysis which we give in the next note [I.9.1.i] and again in the appendix annexed to this treatise.2 [I.6.1.i]
Kinds and creation of rights
To achieve a clearer conception of the nature of agreements, we must argue some central points on a broader basis. In the first place we must recognize that perfect rights which belong or may belong to individual men, are either natural or adventitious, depending on the foundations on which they rest. Nature herself has endowed each man with natural rights; adventitious rights arise from some human action or other event. Among natural rights are the right of life, the right of physical integrity, the right of chastity, and the right of simple reputation; I mean the right to have all these things. I add the liberty, or power, of ordering one’s actions as one pleases within the broad limits of the common divine laws, as well as the closely related ability to use in common things which are by nature positively common, as also of acquiring any other adventitious rights by appropriate means. All of these are sanctioned by the general precept of natural law, by which every man is forbidden from violating any of these rights in another, that is, of attacking without a special foundation of right any of the good things given above which belong to someone else.
Adventitious rights are either real or personal. Real rights are concerned with having, possessing, using, etc., some thing (rem); personal rights, with obtaining some thing or service from another person. To real rights, equally as to natural rights, there corresponds from the other side an unlimited obligation not to disturb the owners of these rights in the exercise of them. And to personal rights there correspond limited obligations to render to individuals those things or services which they have a right to require of us.
Both real and personal rights are created, transferred, and abolished in various ways. Among the many ways by which personal rights are created or abolished, and by which rights of both kinds are transferred from one man to another, one stands out as particularly prominent. This is mutual consent on the part of the person by whom a right is transferred and on the part of the person by whom it is acquired, both being signified by appropriate signs. I say is transferred, because the actual creation and abolition of a personal right lies in a kind of transfer.
For a perfect personal right (which is the only thing that we are speaking of here)3 is simply a certain particle of a man’s natural liberty which is transferred to another man by some act or event, and takes on the character in this man of a personal right valid against the other, by force of which he may require him to do or not to do anything which, in his judgment, it is in his power to do or not to do. That same right, when it returns to its natural subject and is consolidated with the rest of his natural right, loses its character as a personal right and recovers the name of natural liberty. Thus personal rights are said to be created by those actions by which men begin to be obligated in a particular way by the transfer of some particle of their natural liberty to others; and are equally correctly said to be abolished by the opposite actions, by which men cease to be obligated in that way, when the particle of liberty which they had alienated is restored to them.
We therefore had good reason to say that the creation and abolition of personal rights as such, no less than their transmission in the same kind (as also in the case of real rights), lies in a form of transfer. And, apart from some modes of transfer which are irrelevant to the present subject, every transfer is very naturally initiated, as we have said, by mutual consent, by a declaration of appropriate signs on the part of the transferor and of the recipient of the right.
This mutual act seems to take four different forms, depending on the type of right which is being transferred or its circumstances. In the case of real rights, it is always one and the same, carrying in itself from one subject to another the mere transmission of the rights which relate to its immediate object on both sides (see however what we say below at pp. 101–2).4 In the case of personal rights, it may produce three possible effects: (1) a right which was previously contained in the natural liberty of the transferor has been transferred to another man and now belongs to him as a personal right against the first party; in this case a new personal right and corresponding obligation are created for the first time. Or, (2) a personal right which previously belonged to the transferor against a third party has been transferred to someone else and now belongs to him against the same third party; here we see the transfer of a personal right of that particular kind. Or, (3) a personal right which previously belonged to the transferor against the recipient is transferred, or rather restored, to him and consolidated with his natural liberty; and in this case the personal right, as such, and the corresponding obligation are extinguished.
Each of these acts can be performed either unilaterally, with the effect that a right is transferred from one party and merely acquired by the other, or reciprocally, with the effect that a right is transferred by both parties and received by both of them against each other, and the transfer would not be understood to be fully and validly effected without the other. Thus from these various combinations of acts of the same or of different kinds, arise several kinds of reciprocal acts; some of these have specific names given them in law and popular usage, while others have not.
As for the term pactum, or “agreement,” this stands for a variety of ideas which do not all have the same extension. The definition of pactum given by Ulpian, Digest, II.14.1.25 is the concurrence of two or more persons in the same intent; Ulpian also appends to the same law (sec. 3) that the explanation of the term conventio is that men from different motions of the mind consent to one thing, i.e., arrive at one opinion. If we look at the proper meanings of the words, both these definitions seem to apply to all the types of mutual acts we have just enumerated. But we admit that the commonest usage is to apply the term pactum, or “agreement,” almost exclusively to acts which are obligatory on at least one side, i.e., acts by which a new personal right is given, as we explained above; and that is how our author seems to understand it.
Titius defines pactum, or “agreement,” as something done by the consent of two or more, given for the purpose of licitly creating or abolishing an obligation; and therefore includes under the term “agreement” not only acts consisting in the mutual consent by which personal rights are created, but also those by which they are abolished.6 But I do not think that we apply the word “agreements” to acts by which personal rights and corresponding obligations are abolished, more than to acts by which rights, whether real or personal, are transmitted from one person to another. It is irrelevant to our purpose as being a matter merely of arbitrary law, that the Roman jurisconsults and their interpreters used this term almost exclusively of acts which create by themselves only a natural and not also a civil obligation unless confirmed by a civil law, and on this ground distinguished them from contracts. [I.9.1.i]
Promises and agreements; two senses of agreement
We have just said that in his first paragraph7 our author understands by the term pactum, or “agreement,” an act consisting in mutual consent which is obligatory on at least one side. Now in this paragraph8 he restricts the word to one species within that genus, namely, that which is obligatory on both sides. However it should be noted, that if by the division here proposed a distinction is made in the case of an act obligatory by mutual consent, between one which creates obligation on one side only and one which creates obligation on both sides, the former is not well named a gratuitous promise. For there are acts which are obligatory on one party only, and which nevertheless, can by no means be called gratuitous promises, since they include from the other party, either some transmission of right, as in loan for consumption (mutuum) (where the term implies that the receiving party in this transaction is obligating himself to the giver, because the latter is at the same time transferring to him the ownership of the money given by mutuum), or the cession or remission of a right which was previously valid against the party creating the obligation, as is often the case in transactions.9 However if you are willing to understand by the term pactum, or “agreement,” in its narrower sense, a mutual act by which an obligation is contracted by at least one party (or, which is the same thing, by which a man transfers a personal right to be valid against himself), and in return a right of some kind is transferred by the other party, then pactum, or “agreement,” in its broader sense is rightly divided into gratuitous promise and pactum in the special sense. [I.9.5.i]
[Grotius distinguished agreements based upon mere declarations of intent and the necessity of keeping faith from perfect agreements, where there is a clear sign that a right is to be conferred (Grotius, Rights of War and Peace, II.XI, p. 281 ff). Pufendorf applied this distinction specifically to promising (Pufendorf, Of the Law of Nature and Nations, III.V.6, p. 269; Pufendorf, On the Duty of Man and Citizen, I.9.6, pp. 69–70). Carmichael comments:]
The authors apply this distinction of perfect and imperfect to promises rather than to agreements in general, perhaps because every reciprocal agreement is perfect in the state of nature. I say, in the state of nature; for in civil society, only those agreements and promises which may be enforced in the courts by an action taken under civil law are considered perfect. And just as a perfect promise confers a perfect right, I do not see why an imperfect right should not follow from an imperfect obligation. [I.9.6.i and ii]
“Error” in promises and agreements
[In Roman law promises and agreements are frustrated by various forms of error, fraud, or force which occur in the making of them. In all these categories Carmichael allows fewer circumstances to void an agreement than Pufendorf. Pufendorf’s first category is: “When in promising I have assumed something as a condition, without regard to which I would not have made the promise, there will naturally be no force in the promising.” Carmichael comments as follows:]
This is to be allowed only in the following sense: If I have either expressly declared this assumption on my part as a condition of the promise, or if I thought in good faith that it was understood by the promisee from the nature of the transaction. For my own silent thoughts which I cannot reasonably believe will be understood by the party I am addressing, do not alter the sense of what I say, nor consequently its moral effect. [I.9.12.i]
[Secondly, Pufendorf says: “If I have been impelled by error to make an agreement or a contract and I discover it when the matter is whole and nothing has yet been performed, it would be perfectly fair that the privilege of changing my mind be allowed to me.” Carmichael comments:]
Yet this privilege cannot be claimed by perfect right, unless the error concerns something which the person who was in error at least thought was assumed as a condition on both sides. And in reciprocal agreements, an event which is not explicitly put as a condition is not easily understood to be such, unless it is either affirmed in the article itself actually to exist by the other party to the transaction, or it is such that without the condition which it is agreed the promisor cannot perform, it would be manifestly impossible or absurd to fulfill the promise, or finally unless it concerns the actual object or matter which is the subject of the agreement, its valuable qualities or lack of them.
But if he who has made an error in an agreement says that he tacitly assumed that the event about which he was mistaken was understood on both sides to be a condition of the agreement, despite the fact that the other party did not and reasonably could not understand that the agreement was limited by that condition, the claim of error is still not completely excluded even in this case, provided that the claimant proves by proper evidence that he really understood the situation the way he says he did (for even in natural liberty the same judgment holds about what does not appear and what does not exist, as far as the external forum is concerned), and provided that he is prepared to reimburse any loss the other party may have incurred, in accordance with what we shall argue below at pp. 84–85. [I.9.12.ii]
[Pufendorf gives as his third form of “error”: “When a mistake has occurred concerning the actual object of the agreement, the agreement is defective, not so much because of the mistake, but because it has failed to satisfy the conditions of an agreement.” Carmichael has two notes on this:]
That is, as may be understood from what has been said before, that one of the parties to the agreement not only supposed that the object was of a different kind, or of different valuable qualities, than is in fact the case, but thought in good faith that this supposition of his and the will to make a contract on such an object was understood on both sides. [I.9.12.iii]
The celebrated Titius correctly observes here that the author was not right to make the distinction he does make, since the reason why this kind of agreement does not satisfy the terms of an agreement is that it is not being made about the proposed object as it really is.10 [I.9.12.iv]
The nature of the object of the agreement and its valuable qualities or lack of them, which may be thought to have had some weight in determining either of the contracting parties to make a contract which he would not otherwise have made, are naturally understood to belong to the essence of the actual contract. Hence an error committed in any of these matters, by natural law, vitiates the contract as long as no performance has been made by either party; if discovered after the contract has been wholly or in part fulfilled, it gives a right to the injured party to withdraw from it, and to require that any performance be restored on both sides. But if the error in question concerns only the external value of the object or other qualities without regard for which the party in error would clearly have made the contract though with different conditions, it is at the discretion of the other party, provided he is clear of fraud, either to release him from the contract or to make up the value to him.
Here we must note that in every case in which a contract is voided for error, if fault on the part of one party to the agreement (whether the party making the claim for error or the other party) has given cause for error concerning either the object itself or the circumstance on which the claim is based or concerning the deception of one party by the other, and if the other party will suffer loss as a result of the voiding of the contract, then the former is obliged to compensate the latter for his loss; he must ensure that he is in no worse situation than if he had not entered into the agreement. And if one of the parties to the agreement recognizes the other’s error with regard to the object or its qualities, and fraudulently claims that the other had accepted it, he ought also to pay what the other lost thereby, i.e., the benefit which the deceived party would have got if the agreement had been fulfilled, in accordance with his expectation and intention; for this is what he seems to have committed himself to by his consent. These positions are not far from what is laid down in Roman law on these cases, provided we remember that the distinction between things which void an action in their own right and those which give rise to a claim or an action by which it may be quashed, are a subtlety of the courts which has no place in the simplicity of natural law. [I.9.12.v]
Force and agreements
[Pufendorf argues that in general agreements made under compulsion are invalid. Once again, as in the case of promises or agreements made in error, Carmichael takes a more restrictive line.]
Our opinion on this much discussed point will be clear from the three following propositions.
1. Agreements extorted by unjustified force give no right to the extortionist which he may legitimately use against anyone; nor by mere natural law do they bind the conscience of those who succeed to the position of the person who was subjected to force, to justify them in refusing performance, or if it has already been made, in demanding compensation for damage inflicted by unjust force. These points we grant to the considerations adduced by the author.
2. Nevertheless, the promisor is bound in conscience, on the ground of truthfulness and good faith, if he has promised anything that may be lawfully offered and therefore lawfully promised, in order to preserve life or avert serious loss (even though the most unjustified force by the other party imposed on him the need to make the promise). For he seems to have promised that he will not make use of the counterclaim of force and fear, even though it is quite evident, I suppose, in the very nature of the action.
3. Grotius aptly observes (II.XVII.19) that it seems to have been accepted by the consent of nations that the claim of force and fear cannot be brought against agreements extorted by the success of declared wars or by fear of them, whether by the parties to a treaty or by their successors, lest public disputes should never have an end. To declared wars however I think that one should add (for this purpose alone) all other actions done publicly, deliberately, and as it were, in the eyes of the world, and which are ended by agreements which have not been suddenly or secretly extorted. The purpose is that the conditions of peace established by these agreements, whether between princes and subjects or between different factions of citizens after a civil war, should be held sacred and inviolable. If the thing were otherwise, it is not clear that there would be any use in treaties restoring peace, or that old disputes, about which wars had been fought in the past, would not always be open to further conflict. For individuals enter into agreements to end disputes on the basis which the fortune of war has given to their side.11 [I.9.15.ii]
[Carmichael later adds that, while such a promise is valid in itself, the addition of an oath to it provides a further ground for respecting it.]12
We said in the previous note that the extortion of a promise by unjustified force does not prevent the promisor from being bound in conscience to perform it, if the thing promised may be legitimately performed. If it were not so, it is not at all clear how in good faith one could buy off with an onerous promise a threat of greater evil leveled unjustly at oneself by another person. What is certain is that it would be horribly impious to try to give such a promise the sanction of an oath, believing that it would still be invalid even with this sanction. Grotius indeed contends that a promise extorted by unjust fear is invalid by itself, but acquires force from the addition of an oath, and adds an inappropriate argument which our author refutes at Of the Law of Nature and Nations, IV.II.8. [I.11.6.3]
[Consideration of error, fraud, and force in the formation of agreements leads to a discussion of truthfulness and falsehood in the use of language in general.]
Language as signs
To understand this whole matter clearly one must recollect from logic that two kinds of signs need to be distinguished. One kind, by reason of nature or convention, signifies something without any regard to the supposed intention of the sign-user as to what is to be signified. The other kind of sign signifies precisely because it is assumed to be employed by a rational agent of his own accord to signify his thoughts to another person. And this is achieved either by some prior explicit convention about their significance, or (in the absence of an explicit convention about their use) because of some accompanying tacit convention about using the signs employed in the sense which either their nature or accepted usage indicates. This distinction by no means coincides with the commonly accepted distinction between natural and arbitrary signs. For natural and arbitrary signs are found equally in both of the categories we propose. It is however in fact the same as Grotius gives at Rights of War and Peace, III.I.8, n. 2, and following him our author at Of the Law of Nature and Nations, IV.I.12, and the use of this distinction in this matter is obvious. For the rule [of nondeception] should be understood of signs not of the former kind but of the latter (among which are words and other signs which perform the same function). Truthfulness consists in making these true as falsehood consists in making them false. [I.10.1.i]
[Pufendorf says that the use of language requires that “users of any given language must employ the same words for the same objects following the usage of that language.” Carmichael comments:]
Truthfulness lies in the fulfilment of this obligation and falsehood in its violation, provided that in the phrase employing words in a certain sense you also include, to make true speech according to that sense of the words, where true means conforming to the view of the speaker. In eliminating the obligation contained in this paragraph, the distinguished Titius seems to be making a highly unfortunate attempt to remove all distinction between truth-speaking and falsehood and to expel truthfulness from the catalogue of the virtues. But one may still ask, whence arises this virtue? And if it derives from convention, when and how do men enter into that convention? It would not be absurd to say that this obligation quite evidently arises from the very nature of the thing and from the obvious indispensability of the duty here prescribed for effecting the use of speech, and consequently for cultivating social life among men. I fully agree that a convention is not to be denied in this question: the only difficulty about it is, when and by what means the convention was entered into. For it can scarcely be maintained that the convention is entered into by individuals by some one single act, which establishes the norm for all future acts of speaking by everybody. One must rather say that each man, in addressing another person, particularly when he attempts to narrate something to him, makes a tacit agreement with him to use words in the sense which he thinks will be understood by him with the help of reason. He has to accept that the sense which normally goes with such words in similar cases will be the one understood (if it has not been otherwise defined by any special convention). The same is to be said of any other signs which perform the same function. The only exception is signs which are suited by their nature to signify some particular thing, where no other intervening use or express agreement has determined their signification otherwise; in their case, the sense to be reasonably understood, and for the preservation of which a tacit convention is made, is the sense which the nature of each sign suggests. It is agreed therefore that this obligation of which we are speaking is inviolable, and cannot be destroyed by any case or event, since a man would have to make a new contract every time he opened his mouth to speak. If this obligation were not assumed, the use of speech, particularly descriptive speech, would be eliminated from human life. It would be useless to tell anybody anything, and equally absurd to listen to anyone telling you anything. [I.10.2.i]
The limits of prevarication
[Pufendorf says that “I may shape what I say to express something other than what I have in mind” under certain conditions. Carmichael comments:]
Here the author begins to desert the sound principles which he had established earlier.13 One must be very careful about exceptions of this kind. For although people do not in general have the right to learn our thoughts on any matter whatever, yet a person does have the right not to be deceived by speech or by other signs which he may justifiably believe are being used to express those thoughts. That is, we should not use signs which we judge that the other person will justifiably interpret as intended to signify something to him which is not true, or at least which we do not think to be true. As was said above, we have bound ourselves by a tacit convention to make the signs which we use, on any reasonable interpretation, consonant with our thoughts.14 [I.10.5.i]
[Pufendorf says: “In these cases, therefore, we may make use of a dissembling and specious language. …” Carmichael comments on this principle and some of its applications:]
I am tempted to say that the author uses such language here. In any case if he means speech which by the most reasonable interpretation signifies something different from the sentiment of the speaker, we must apply the well-known and correct rule, Do not do evil that good may result, especially since the universal loss which arises from the weakening of good faith among men, that is, from the relaxation of the common bond of human society, cannot be made up for by any private gain. [I.10.6.i]
In educating children one must often use very crude metaphors. But the effect of speaking untruths is nowhere more pernicious than here. The result often is that children not only learn to disbelieve true lessons, but also acquire a wicked habit of lying. In this matter, they think themselves justified by the authority and example of their teachers. [I.10.9.i]
Nor should we allow that we may tell lies to an enemy. The author himself acknowledges at On the Duty of Man and Citizen, II.16.5, that an enemy is not to be deceived by fraudulent promises or agreements. And we showed above (pp. 87–88) that a sort of tacit convention about using signs properly, appropriate to the occasion and the subject matter, accompanies every use of speech. He therefore who purports to say something to an enemy in all seriousness, while the enemy in his turn listens to him in the belief that he is telling him something in all seriousness, by that very fact contracts as it were the same obligation anew, despite the situation of enmity. It is quite wrong to class false stories with stratagems, since our author himself, following Grotius, specifically recognizes that in the former case a convention takes place, in the latter not. On both, see the references given above on p. 87. [I.10.9.ii]
[1.] From the notes to bk. I, ch. 9, “On the Duty of Parties to Agreements in General”; bk. I, ch. 10, “On the Duty of Men in the Use of Language”; and bk. I, ch. 11, “On the Duties Involved in Taking an Oath.”
[2.] See ch. 23, below.
[3.] It will be argued in the following chapter that real rights (rights to property) are perfect rights which are not created by agreement or individual consent: see below, ch. 10, pp. 92–96.
[4.] In his discussion of “rights over the property of another.”
[5.] Justinian, Digest, II.14.1.2 (an opinion of the jurist Ulpian).
[6.] Titius, Observationes, no. 198.
[7.] Pufendorf, On the Duty of Man and Citizen, I.9.1, p. 68.
[8.] Ibid., I.9.5, p. 69.
[9.] Barbeyrac objected that in such transactions there is a mixture of gratuitous promise and agreement, and so the term free or gratuitous promise should be retained: Pufendorf, Of the Law of Nature and Nations, III.V.i, n. 1, p. 267. His difference with Carmichael on the subject is linked to their disagreement concerning the relevance of the moral content of promises and agreements. Carmichael thought that agreements, including “gratuitous promises,” continue to oblige if the content of such agreements was morally desirable (consistent with the laws of nature). Barbeyrac considered the content of agreements of no relevance to jurists, natural or civil.
[10.] Titius, Observationes, no. 220.
[11.] Carmichael’s argument that promises made under duress may oblige in conscience, even though such promises have no power to oblige under natural law, may be compared with the position taken by Hutcheson, who thought that while public peace might require honoring a treaty made under compulsion, forced promises should never oblige private individuals (Short Introduction, II.IX.9, pp. 189–91). Adam Smith, on the other hand, distinguished, as Carmichael did, between the requirements of natural jurisprudence and the demands of conscience or casuistry. He held that conscience may require one to keep promises which are forced upon one, even though such promises should be considered void in natural jurisprudence (Theory of Moral Sentiments, VII.IV.8–14, pp. 330–33).
[12.] From bk. I, ch. 11, “On the Duties Involved in Taking an Oath.”
[13.] Carmichael is referring here to Pufendorf, On the Duty of Man and Citizen, I.10.1–2, pp. 77–78.
[14.] It is reported by one of Carmichael’s students that he was particularly adamant in his insistence that one never deceive others by words or signs; that “he often differs from Puffendorf. Particularly when he makes the end of the Law of Nature to be confined to this Life … and where he allows persons to express themselves contrary to what they think, when they may profit themselves and wrong none, to which Mr. C. answers, if we are not obliged to tell the truth, we should hold our peace, or give a generall answer, never forgetting the universall and unexceptionable Law of nature. That none deceive others, either by words or signs, which in Philosophy may be justly taken for expressions of our conceptions” (letter of Jonathan Woodsworth to the Rev. Peter Walkden, 1 July 1715).