It is no lefs evident, that the proper and formal objedl of gra- titude is a perfon who has done us a favour ^ that of refentment, a perfon who has done us an injury.
Before the ufe of reafon, the diftindlion between a favour and an agreeable office is not perceived. Every adlion of another perfon which gives prefent pleafure produces love and good will towards the agent. Every adiion that gives pain or'unea- jQnefs produces refentment. This is common to man before the ufe of reafon, and to the more fagacious brutes j and it Ihews no conception of juftice in either.
But, as we grow up to the ufe of reafon, the notion, both of a favour and of an injury, grows more diftin6t and better de- fined. It is not enough that a good office be done j it mufl be done from good will, and with a good intention, otherwife it is no favour, nor does it produce gratitude.
I have heard of a phyfician who gave fpiders in a medicine to a dropfical patient, with an intention to poifon him, and that this medicine cured the patient, contrary to the intention of the phyfician. Surely no gratitude, but refentment, was due by the patient, when he knew the real ftate of the cafe. It is evi- dent to every man, that a benefit arifiug from the action of ano- ther.
ther, either without or againil his intention, is not a motive to p^^^- v. gratitude; that is, is no favour.
Another thing implied in the nature of a favour is, that it be not due. A man may fave my credit by paying what he owes me. In this cafe, what he does tends to my benefit, and per- haps is done with that intention; but it is not a favour, it is no more than he was bound to do.
If a fervant do his work and receive his wages, there Is no favour done on either part, nor any objecfl of gratitude j be- caufe, though each party has benefited the other, yet neither has done more than he was bound to do.
What I infer from this Is, That the conception of a favour in every man come to years of underflanding, implies the concep- tion of things not due, and confequently tlie conception of things that are due.
A negative cannot be conceived by one who has no concep- tion of the correfpondent pofitlve. Not to be due is the negative of being due; and he who conceives one of them mull conceive both. The conception of things due and not due muft there- fore be found in every mind which lias any rational concep- tion of a favour, or any rational fentiment of gratitude.
If we confider, on the other hand, what an injury is which is the obje(fl of the natural paflion of refentment, every man, capable of refledion, perceives, that an injury implies more than being hurt. If I be hurt by a ftone falling out of the wall, or by a flafh of lightning, or by a convulfive and ijivo- luntary motion of another man's arm, no injury is done, no refentment railed in a man that has reafon. In this, as in all moral CHAP. V. moral actions, there mufl be the will and intention of the agent to do the hurt.
Nor is this fufBcient to conflitute an injury. The man who breaks my fences, or treads down my corn, when he cannot otherwlfe preferve himfelf from dellrudlion, who has no injuri- ous intention, and is willing to indemnify me for the hurt which neceflity, and not ill will, led him to do, is not injurious, nor is an objec5l of refentment.
The executioner who does his duty, in cutting off the head of a condemned criminal, is not an objedl of refentment. He does nothhig unjuft, and therefore nothing injurious.
From this it is evident, that an injury, the objed: of the na- tural palllon of refentment, implies in it the notion of injuftice. And it is no lefs evident, that no man can have a notion of in- juftice without having the notion of juftice.
To fum up what has been faid upon this point: A favour, an adl of jurtice and an injury, are fo related to one another that he who conceives one mufl conceive the other two. They lie, as it were, in one line, and refemble the relations of greater, lefs and equal. If one underflands what is meant by one line being greater or lefs than another, he can be at no lofs to un- derftand what is meant by its being equal to the other j for, if it be neither greater nor lefs, it mufl be equal.
In like manner, of thofe adlions by which we profit or hurt other men, a favour is more than juftice, an injury is lefs; and that which is neither a favour nor an injury is a jull adion.
As foon, therefore, as men come to have any proper notion of a favour and of an injury; as foon as they have any rational exerclfc of gratitude and of refentment j fo foon they mufl have have the conception of jufticc and of injufticc; and if ^-ati- CHAi'. v. tude and rcfcntmcnt be natural to man, which Mr Hume al- lows, the notion of juftice mufl be no lefs natural.
The notion of juftice carries infeparabiy along with it, a per- ception of its moral obligation. For to fay that fuch an action is an a6l of juflice, that it is due, that it ought to be done, that we are under a moral obligation to do it, are only diffe- rent ways of exprefling the fame thing. It is true, that we per- ceive no high degree of moral worth in a merely juft adion, when it is not oppofed by intereft or paflion; but we perceive a high degree of turpitude and demerit in unjuft adions, or in the omilllon of what juftice requires.
Indeed, if there were no other argument to prove, that the obligation of juftice is not folely derived from its utility to pro- cure what is agreeable either to ourfelves or to fociety, this would be fuflicient, That the very conception of juftice implies its obligation. The morality of juftice is included in the very idea of it: Nor is it poftible that the conception of juftice can enter into the human mind, without carrying along with it the conception of duty and moral obligation. Its obligation, there- fore, is infeparable from its nature, and is not derived folely from its utility, either to ourfelves or to fociety.
We may farther obfcrve, That as in all moral eftimation, every action takes its denomination from the motive that pro- duces it j fo no ad ion can properly be denominated an ad of juftice, unlefs it be done from a regard to juftice.
If a man pays his debt, only that he may not be cafl: into prifon, he is not a juft man, becanfe prudence, and not juftice, is liis motive. And if a man, from benevolence and charity, gives to another what is really due to him, but wliat he believes not not ^^Illj "°^ *° ^^ '^^^^' ^'^'^ ^^ ^°'- ^^ ^"^ °^ juflice in him, but of chari- ty or benevolence, becaufe it is not done from a motive of ju- flice. Thefe are felf-evldent truths j nor is it lefs evident, that what a man does, merely to procure fomething- agreeable, either to himfelf or to others, is not an adl of juftice, nor has the me- rit of juftice.
Good mufic and good cookery have the merit of utility, in procuring what is agreeable both to ourfelves and to fociety, but they never obtained among mankind the denomination of mo- ral virtues. Indeed, if this author's fyflem be well founded, great injuftice has been done them on that account.
I fhall now make fome obfervations upon the reafoning of this author, in proof of his favourite principle, That juftice is not a natural but an artificial virtue; or, as it is exprefled in the Enquiry, That public utility is the fole origin of juftice, and that reflexions on the beneficial confequences of this virtue are the fole foundation of its merit.
I. It muft be acknowledged, that this principle has a necefl'a- ry connedion with his fyftem concerning the foundation of all virtue; and therefore it is no wonder that he hath taken fo much pains to fupport It j for the whole fyftem muft ftand or fall with it.
If the dulce and the utik, that is, pleafure, and what Is ufeful to procure pleafiire, be the whole merit of virtue, juftice can have no merit beyond its utility to procure pleafure. If, on the other hand, an Intrinfic worth in juftice and demerit in injuftice be dlfcerned by every man that hath a confclence; if there be a natural principle in the conftitution of man, by which juftice is. approved and injuftice difapproved and condemned, then the whole of this laboured fyftem muft fall to the ground.
OF JUSTICE.
2. Wc may obfcrve, That as jiiftice is dircclly oppofcd to in- Cinr. v. jury, and as there are various ways in which a man may be in- jured, fo there mufl be various branches of juftice oppofed to tiie diO'erent kinds of injury.
A man may be injured, Ji/;;^, in his perfon, by wounding-, maiming or killing him; fccoudly, in his family, by robbing him of his children, or any way injuring thofc he is bound to pro- tedl; thirdly, in his liberty, by confinement; fourthly, in his re- jiutation; fifthly^ in his goods or property; and, lajlly, in the vio- lation of contracts or engagements made with him. This enu- meration, whetlier complete or not, is fulHcient for the prefent pur pole.
The different branches of juflice, oppofed to thcfe different kinds of injury, are commonly expreffed by laying, that an in- nocent man has a right to the fafety of his perfon and family, a right to his liberty and reputation, a right to his goods, and to fidelity to engagements made with him. To fay that he has a right to thefe things, has precifely the fame meaning as to fiy, that juftice requires that he fliould be permitted to enjoy th*^-?!!, or chat it is unjuft to violate them. For injuftice is the viola- tion of right, and juftice is to yield to every man what is his right.
Thefe things being underflood as the fimpleft and mofl com- mon ways of expreffing the various branches of juUice, we are to confider how far Mr Hume's reafoning proves any or all of them to be artificial, or grounded folely upon jniblic utility. The lad of them, fidelity to engagements, is to be the fubject of the next chapter, and therefore I fhall lay nothing of it in this.
The four firft named, to wit, the right of an innocent man to the fafety of his perfon and family, to his liberty and reputa- H h h tion, tlon are, by the writers on jnrifprudence, called natural rights of man, becaufe they are grounded in the nature of man as a rational and moral agent, and are by his Creator committed to his care and keeping. By being called natural or innate, they are diftlnguifhed from acquired rights, which fuppofe fome pre- vious ad or deed of man by which they are acquired, whereas natural rights fuppofe nothing of this kind.
When a man's natural rights are violated, he perceives in- tuitively, and he feels that he is injured. The feeling of his heart arifes from the judgment of his underftanding; for if he did not believe that the hurt was intended, and unjuflly intend- ed, he would not have that feeling. He perceives that injury is done to himfelf, and that he has a right to redrefs. The na- tural principle of refentment is roufed by the view of its pro- per objedt, and excites him to defend his right. Even the in- jurious perfon is confclous of his doing Injury; he dreads a jufi: retaliation J and if it be in the power of the injured perfon, he expeds it as due and deferved^ That thefe fentiments fpring up in the mind of man as natu- rally as his body grows to its proper llature; that they are not the birth of Inftrudtion, either of parents, priefts, philofophers or politicians, but the pure growth of nature, cannot, I think, without effrontery, be denied. We find them equally flrong in the mort favage and in the mofl civilized tribes of mankind; and nothing can weaken them but an inveterate habit of rapine and bloodfhed, which benumbs the confcience, and turns men into wild beafls.
The public good is very properly confidered by the judge who puniflies a private injury, but feldom enters into the thought of the Injured perfon. In all criminal law, the redrefs due to the private fufferer is diftinguiflied from that vv'hich is due to the public j a diftlndion which could have no foundation, if OF JUSTICE.
if the demerit of injufUcc arofe folcly from its hurting the pu- blic. And every man is confcious of a l'j)ecific dilTcrencc be- tween the refcntment he feels for an injury done to himtelf, and his indignation againfl a wrong done to the public.
I think, therefore, it is evident, that, of the fix branches of jultice we mentioned, four are natural, in the i^riclell fenfe, being founded upon the conltitution of man, and antecedent to all deeds and conventions of fociety; fo that, if there were but two men upon the earth, one might be unjufl and injurious, and the other injured.
But does Mr Hume maintain the contrary r To this queflion I anfwer. That his dodrine feems to imply it, but I hope he meant it not.
He affirms in general that juftice is not a natural virtue; that it derives its origin folely from public utility, and that re- fleclions on the beneficial confequences of this virtue are the fole foundation of its merit. He mentions no particular branch of jullice as an exception to this general rule; yet ju- ftice, in common language, and in all the writers on jurifpru- dcnce 1 am acquainted with, comprehends the four branches above mentioned. His doctrine, therefore, according to the common conftruction of words, extends to thefe four, as well as to the two other branches of juft:ice.
On the other hand, if we attend to his long and laboured proof of this doclrine, it appears evident, that he had in his eye only two particular branches of juftice. No part of his reafoning applies to the other four. He feems, 1 know not why, to have taken up a confined notion of juftice, and to have re- ftricled it to a regard to property and fidelity in con^rads. As to other branches he is filent. He no where lays, that it is not H h h 2 naturally H h h 2 naturally CHAP, v.^ naturally criminal to rob an innocent man of his life, of his children, of his liberty, or of his reputation; and I am apt to think he never meant it.
The only Philofopher I know who has had the afTurance to maintain this, is Mr Hobbes, who makes the ftate of nature to be a ftate of war, of every man againfl every man; and of fuch u war in which every man has a right to do and to acquire whatever his power can, by any means, accomplifti; that is, a ftate wherein neither right nor injury, juftice nor injulHce, can poffibly exill.
Mr Hume mentions this fyflem of Hobbes, but without adopting it, though he allows it the authority of Cicero in its favour.
He fays in a note, " This fidllon of a flate of nature as a *' ftate of war was not firfl flarted by Mr Hobbes, as is com- " monly imagined. Plato endeavours to refute an hypothelis " very like it, in the 2d, 3d and 4th books, De Republka. Ci- " CERO, on the contrary, fuppofes it certain and univerfally ac- " knowledged, in the following paflage, &c. Pro Sextio^ I. 42."
The pafTage, which he quotes at large, from one of Cicero's Orations, feems to me to require fome flraining to make it tally with the fyllem of Mr Hobbes. Be this as it may, Mr Hume might have added, That Cicero, in his Orations, like many other pleaders, fometimes fays not what he believed, but what was fit to fupport the caufe of his client. That Cicero's opi- nion, with regard to the natural obligation of juftice, was very different from that of Mr Hobbes, and even from Mr Hume's, is very well known.
3. As Mr Hume, therefore, has faid nothing to prove the four branches of juftice which relate to the innate rights of men, men, to be artificial, or to derive their origin folely from public CIIAP. v. utility, 1 proceed to the fifth branch, which requires us not to invade another man's property.
The right of proj^erty is not innate, but acquired. It is not grounded upon the conflitutiou of man, but upon his adions. Writers on jurifprudence have explained its origin in a manner that may fatisfy every man of common underi\anding.
The earth is given to men in common for the purpofes of life, by the bounty of Heaven. But, to divide it, and appropriate one part of its produce to one, another part to another, muft be the work of men who have power and underftanding given them, by which every man may accommodate himfelf without hurt to any other.
This common right of every man to what the earth produces, before it be occupied and appropriated by others, was, by an- cient moralifts, very properly compared to the right which eve- ry citizen had to the public theatre, where every man that came might occupy an empty feat, and thereby acquire a right to it while the entertainment lafled j but no man had a right to difpof- fefs another.
The earth is a great theatre, furniflied by the Almighty, with perfed wifdom and goodnefs, for the entertainment and employ- ment of all mankind. Here every man has a right to accom- modate himfelf as a fpedator, and to perform his part as an ac- tor, but without hurt to others.
He who does fo is a jufl man, and thereby entitled to fome degree of moral approbation; and he who not only does no hurt, but employs his j)ower to do good, is a good man, and is thereby entitled to a higher degree of moral approbation. But he who juflles and molefts his neighbour, who deprives him of any CHAP.v. any accommodation which his indurtry has provided without hurt to others, is unjuft, and a proper objedt of refentment.
It Is true, therefore, that property has a beginning from the xiftions of men, occupying, and perhaps improving, by their in- duftry, what was common by nature. It Is true aUo, that before property exifts, that branch of jullice and injuftice which re- gards property cannot exift. But it Is alfo true, that where there are men, there will very foon be property of one kind or ^ another, and confequently there will be that branch of juftice which attends property as its guardian.
There are two kinds of property which we may diftingulflx.
The Jirjl is what mufl prefently be confumed to fuftain life; xhtfecond, which is more permanent, is what may be laid up and iftored for the fupply of future wants.
Some of the gifts of nature muft be ufed and confumed by Individuals for the daily fupport of life; but they cannot be ufed till they be occupied and appropriated. If another perfon may, without injuftice, rob me of what I have Innocently occu- pied for prefent fubfiftence, the neceflary confequence muft be, that he may, without injuftice, take away my life.
A right to life implies a right to the neceflary means of life. And that juftice which forbids the taking away the life of an innocent man, forbids no lefs the taking from him the neceflary means of life. He has the fame right to defend the one as the other; and nature Infpires him with the fame juft refentment of the one injury as of the other.
The natural right of liberty implies a right to fuch innocent labour as a man chufes, and to the fruit of that labour. To hinder liIndcT anotlicr man's innocent labour, or to deprive him of the CUA?. v. fruit of it, is an injultice of the fame kind, and has the fame cBld as to put him in fetters or in prifon, and is equally a juft object of refentment.
Thus it appears, that fome kind, or fome degree, of property muft cxift wherever men exift, and that the right to fuch pro- perty is the neceffary confequence of the natural right of men to life and liberty.
It has been further obferved, that God has made man a faga- cious and provident animal, led by his conftitution not only to occupy and ufe what nature has provided for the fupply of his prefent wants and neceflities, but to forefee future wants, and to provide for them ^ and that not only for liimfelf, but for his family, his friends and connexions..
He therefore acts in perfect conformity to his nature, when he Itores, of the fruit of his labour, what may afterwards be ufeful to himfelf or to others; when he invents and fabricates utenfils or machines by which his labour may be facilitated, and its produce increafed; and when, by exchanging with his fellow-men commodities or labour, he accommodates both him- felf and them. Thefe are the natural and innocent exertions of that underftanding wherewith his Maker has endowed him. He has therefore a right to exercife them, and to enjoy the fruit of them. Every man who impedes him in making fjch exer- tions, or deprives him of the fruit of them, is injurious and un- juft, and an objedt of juil refentment.
Many brute-animals are led by inftinct to provide for futu- rity, and to defend their ftore, and their itore-houfc, againlt all invaders. There feems to be in man, before the ufe of reafon, an inllind of the fame kind. When reafon and confcience grow CHAP, v.^ gj-Q^y up^ ^l■^gy approve and juftify this provident care, and con- demn, as unjuft, every invafion of others, that may fruftrate it.
Two inftances of this provident fagacity feem to be peculiar to man. I mean the invention of utenfils and machines for fa- cilitating labour, and the making exchanges with his fellow- men for mutual benefit. No tribe of men has been found fo rude as not to pradife thefe things in fome degree. And I know no tribe of brutes that was ever obferved to pradife them. They neither invent nor ufe utenfils or machines, nor do they traffic by exchanges.
From thefe obfervations, I think it evident, that man, even In the ftate of nature, by his powers of body and mind, may ac- quire permanent property, or what we call riches, by which his own and his family's wants are more liberally fupplied, and his power enlarged to requite his benefadors, to I'elieve objeds of companion, to make friends, and to defend his property againft unjuft invaders. And we know from hiftory, that men, who had no fuperior on earth, no connedion with any public beyond their own family, have acquired property, and had difl:ind no- tions of that jufi:ice and injuftice, of which it is the objed.
Every man, as a reafonable creature, has a right to gratify his natural and innocent defires, without hurt to.others. No defire is more natural, or more reafonable, than that of fupplying his wants. When this is done without hurt to any man, to hin- der or frufl:rate his innocent labour, is an unjuft violation of his natural liberty. Private utility leads a man to defire property, and to labour for it; and his right to it is only a right to la- bour for his own benefit.
That public utility is the fole origin, even of that branch of juftice which regards property, is fo far from being true, that when men confederate and conftitute a public, under laws and government, government, the right of each indivuUial to his property Is, by chap, v. that confederation, abridged and liniited. In the Ihite of na- ture every man's property was folely at his own difpofal, becaufe he had no fuperior. In civil fociety it nuifl: be fubjecl to the laws of the fociety. He gives up to the public part of that right which he had in the ftate of nature, as the price of that protection and fecurity which he I'eceives from civil fociety. In the Uate of na- ture, he was fole judge in his own caufe, and had right to de- fend his property, his liberty, and life, as far as his power reach- ed. In the ftate of civil fociety, he nnift fubmit to the judg- ment of the fociety, and acquiefce in its fentence, though he iliould conceive it to be unjuft.
What was faid above, of the natural right every man has to acquire permanent property, and to difpofe of it, mull be under- ftood with this condition, That no other man be thereby depriv- ed of the neceflary means of life. The right of an innocent man to the neceffaries of life, is, in its nature, fuperior to tbat which the rich man has to his riches, even though they be ho- neftly acquired. The ufe of riches, or permanent property, is to fupply future and cafual wants, which ought to yield to pre- fent and certain neceflity.
As, in a family, juftice requires that the children who are unable to labour, and thofe who, by ficknefs, are di fabled, fliould have their neeelTities fupplicd out of the common ftock, fo, in the great family of God, of which all mankind are the children, juftice, I think, as well as charity, requires, that the necellities of thofe who, by the providence of God, are dif- abled from fupplying themfelves, Ihould be fupplicd from what might otherwife be ftored for future wants.
From this it appears, That the right of acquiring and that of difpofing of property, may be fubjeCt to limitations and re- ftriclions, even in the llate of nature, ami much more in the I i i Mate in flate of civil fociety, in which the public has what writers jurifprudence call an eminent dominion over the property, as well as over the lives of the fubjeds, as far as the public good re- quires.
If thefe principles be well founded, Mr Hume's arguments to prove that juftice is an artificial virtue, or th it its public utility is the fole foundation of its merit, may be eafily anfwered.
He fuppofes,^/;^, a ftate in which nature has beftowed on the human race, fuch abundance of external goods, that every man, without cafe or induftry, finds himfelf provided of whatever he can wifli or defire. It is evident, fays he, that in fuch a ftate, the cautious jealous virtue of juftice would never once have been dreamed of.
It may be obferved,^r/?, That this argument applies only to one of the fix branches of juftice before mentioned. The other five are not in the leaft afiecfted by it j and the Reader will eafily perceive that this obfervation applies to almofl all his arguments, fo that it needs not be repeated.
Secondly, All that this argument proves is, That a ftate of the human race may be conceived wherein no property exifts, and where, of confequence, there can be no exercife of that branch of juftice which refpecfts property. But does it follow from this, that where property exifts, and muft exift, that no regard ought to be had to it?
He next fuppofes that the necefllties of the human race con- tinuing the fame as at prefent, the mind is fo enlarged with friendftiip and generofity, that every man feels as much tender- nefs and concern for the intereft of every man, as for his own. It feems evident, he fays, that the ufe of juftice would be fu- fpended by fuch an extenfive benevolence, nor would the divifions lions and barriers of property and obligation have ever been chap. v. thought of.
I anfwcr, The condncH: whicl) this extenfivc benevolence leads to, is either perfecftly confiftent with juftice, or it is not. FtrJ}, If there be any cafe where this benevolence would lead us to do injuiUce, the ufe of juftice is not fufpended. Its obligation is fuperior to that of benevolence; and, to fliew benevolence to one, at the expcnce of injuftice to another, is immoral. Second- ly^ Suppofing no fuch cafe could happen, the ufe of juftice would "not be fufpended, becaufe by it we muft diftinguifli good offices to which we had a right, from thole to which we had no rigiit, and which therefore require a return of gratitude. Thirdly, Suppofing the ufe of juftice to be fufpended, as it muft be in every cafe where it cannot be exercifed, Will it follow, that its obligation is fufpended, where there is accefs to exercife it?
A third fuppofition is, the reverfe of the firft, That a fociety falls into extreme want of the neceflaries of life: Tiie queftion is put, Whether in fuch a cafe, an equal partition of bread, with- out regard to private property, though effedted by power, and even by violence, would be regarded as criminal and injurious? And. the Author conceives, that this would be a fufpenfion of the ftricl laws of juftice.
I anfwer. That fuch an equal partition as Mr Hume mentions, is fo fir from being criminal or injurious, that jullice recjuires it; and furely that cannot be a fufpenfion of the laws of juftice, which is an act of juftice. All that the ftricleft juftice requires in fuch a cafe, is, That the man whofe life is preferved at the expence of another, and without his confent, lliould indemnify him when he is able. His cafe is fimilar to that of a debtor who is infol- vent, without any fault on his part. Juftice requires that he ftiould be forboru till he is able to pay. It is ftrange that Mr 1 i i 2 Hume 436, E S S A Y V.
CHAP. V. Hume flioukl think that an adion, neither criminal nor in- jurious, flaould be a fufpenfion of the U\ws of juftice. This feems to me a contradiction j for jujiice and injury are contradidlory terms.
The next argument is thus exprelled: " When any man, even " in political fociety, renders himfelf, by crimes, obnoxious " to the public, he is punifhed in his goods and perfon \ that is, " the ordinary rules of juflice are, with regard to him, fufpend- " ed for a moment, and it becomes equitable to inflid on him, " what otherwife he could not fuffer without wrong or injury."
This argument, like the former, refutes itfelf. For that an a(5tion fhould be a fufpenfion of the rules of juftice, and at the fame time equitable, feems to me a contradiction. It is pofli- ble that equity may interfere with the letter of human laws, be- caufe all the cafes that may fall under them, cannot be forefeen > but that equity fliould interfere with juftice is impoftible. It is ftrange that Mr Hume fhould think, that juft;ice requires that a criminal fhould bC' treated in the fame way as an innocent man.