Another argument is taken fi-om public war. What is it, fays he, but a fufpenfion of juftice among the warring parties? The laws of war, which then fucceed to thofe of equity and juftice, are rules calculated for the advantage and utility of that parti- cular ftate in which men are now placed.
I anfwer, when war is undertaken for felf-defence, or for re- paration of intolerable injuries, juftice authorifes it. The laws of war, which have been defcribed by many judicious moralifts, are all drawn from the fountain of juftice and equity; and eve- ry thing contrary to juftice, is contrary to the laws of war. That juftice, which prefcribes one rule of condud: to a mafter, another OF JUSTICE.
another to a fcrvant; one to a parent, another to a child; pre- chap. v. Icribes ahb one rule of condudl towards a frienti, another to- wards an enemy. I do not underfland what Mr Hume means by the advantage and titUity of a Itate of war, for which he fays the laws of war are calculated, and fuccced to thofe'of juftice and equity. 1 know uo laws of war that are not calculated for juflice and equity.
The next argument is this, were there a fpecies of creatures intermingled with men, which, though rational, were polleired of fucii inferior flrength, both of body and mind, that they were* incapable of all refiftance, and could never, upon the higheft provocation, make us feel the effeds of their refentment; the necefTary confequence, I think, is, that we fliould be bound, by the laws of humanity, to give gentle ufage to thefe creatures, but lliould not, properly fpeaking, lie under any rellraint of ju- ftice with regard to tliem, nor could they poflefs any right or property, exclufive of fuch arbitrary lords.
If Mr Hume had not owned this fentiment as a confequence of his Tlieory of Morals, 1 fliould have thought it very unchari- table to impute it to him. However, we may judge of the Theory by its avowed confequence. For there cannot be bet- ter evidence, that a theory of morals, or of any particular vir- tue, is falfe, than when it fubverts the pradical rules of morals. This defencelefs fpecies of rational creatures, is doomed by Mr Hume to have no rights. Wliy? Becaufe they have no power to defend themfelves. Is not this to fay, That right has its ori- gin from power; which, indeed, was the doctrine of I\Ir Hobbes. And to illuftrate this doctrine, Mr Hume adds, That as no in- convenience ever refults from the cxercife of a power, fo llrmly eftablilhed in nature, the reflraints of judice and property being totally ufelefs, could never have place in fo imequal a confede- racy J and, to tlie fame purpofe, he fays, that the female part of our CHAP, v^ Qm- Q^i^ fpecies, owe the fhare they have in the rights of fociety, to the power which their addrefs and their charms give them. If this be found morals, Mr Hume's Theory of Juftice may be true.
We may here obferve, that though, in other places, Mr Hume founds the obligation of juftice upon its utility to owr/^/t;^/, or to others, it is here founded folely upon utility to our/elves. For furely to be treated with juftlce would be highly ufeful to the defencelefs fpecies he here fuppofes to exift. But as no incon- •venience to ourfelves can ever refult from our treatment of them, he concludes, that juftice would be ufelefs, and therefore can have no place. Mr Hobbes could have faid no more.
He fuppofes, in the laj} place, a Hate of human nature, where- in all fociety and intercourfe is cut off between man and man. It is evident, he fays, that fo folitary a being would be as much incapable of juflice as of focial difcourfe and converfation.
And would not fo folitary a being be as incapable of frlend- fliip, generofity and compafllon, as of juftice? If this argu- ment prove juftice to be an artificial virtue, it will, with equal force, prove every focial virtue to be artificial.
Thefe are the arguments which Mr Hume has advanced in his Enquiry, in the firft part of a long fedion upon juftice.
In the fecond part, the arguments are not fo clearly diftin- guiftied, nor can they be eafily colledled. I fliall offer fome remarks upon what feems mofl fpecious in this fecond part.
He begins with obferving, " That, if we examine the par- " ticular laws by which juftice is direded and property deter- *' mined, they prefent us with the fame conclufion. The good " of " of inankiiul is the only obj(^(S of all thofe laws and rcgula- CHAV. V.
" tions.
It is not eafy to perceive where the flrefs of this argument lies. The good of mauk'iud is the ohjeEl of all the laivs and regulations by "which jnflice is directed and property determined; therefore jiijlicc is not a natural virtue^ hut has its origin folely from public utility, and its beneficial confeqnences are the fole foundation of its inerit.
Some ftep feems to be wanting to connedl the antecedent propofition with the conclufion, which, I think, mufl: be one or other of thefe two propofitions; firft, ylll the rules of juflice tend to public utility; or, fccondly, Public utility is the only flandard of juJ}ice,from which alone all its rules mufl be deduced.
If the argument be, That juftice mufl have Its origin folely from public utility, bccaufe all Its rules tend to public utility, I cannot admit the confequence; nor can Mr Hume admit it without overturning his own fyflem. For the rules of benevo- lence and humanity do all tend to the public utility, and yet in his fyflem, they have another foundation In human nature; fo likewifc may the rules of juftice.
I am apt to think, therefore, that the argument Is to be taken in the lafl fcnfe, That public utility Is the only ftandard of juftice, from which all Its rules mufl be deduced; and there- fore juflice has Its origin folely from public utility.
This feems to be Mr Hume's meaning, bccaufe, In what follows, he obferves, That, In order to ellablini laws for the regulation of property, we mufl be acquainted with the na- ture and fituation of man; mufl rejedl appearances which may be falfc, though fpecious; and mufl fearch for thofe rules which are, on the whole, mofl ufeful and beneficial; and endeavours to Ihew, that the cftabllflied rules which regard property are more for the public good, than the iyflcm, either of thofe reli- gious CHAP. V, glous fanatics of the lafl age, who held, that faints only fhould inherit the earth 5 or of thofe political fanatics, who claimed an equal divilion of property.
We fee here, as before, that though Mr Hume's conclufion refpedls juflice in general, his argument Is confined to one branch of juflice, to wit, the right of property; and it is well known, that, to conclude from a part to the whole, is not good reafoning.
Befides, the propofition from which his conclufion is drawn, cannot be granted, either with regard to property, or with re- gard to the other branches of juflice.
We endeavoured before to fhow, that property, though not a,n innate but an acquired right, may be acquired in the flate of nature, and agreeably to the laws of nature ', and that this right has not its origin from human laws, made for the public good, though, when men enter into political fociety. It may and ought to be regulated by thofe laws.
If there were but two men upon the face of the earth, of ripe faculties, each might have his own property, and might know his right to defend It, and his obligation not to invade the property of the other. He would have no need to have re- courfe to reafoning from public good, in order to know when he was injured, either in his property, or In any of his natural rights, or to know what rules of juflice he ought to obferve to- wards his neighbour.
The fimple rule, of not doing to his neighbour what he would think wrong to be done to himfelf, would lead him to the knowledge of every branch of juflice, without the confidera- tion of public good, or of laws and flatutes made to promote it.
It It is not tme, therefore, That public utility is the only flan- chap, v.^ darcl of juUicc, and that the rules of juftice cai\ be deduced only from their public utility.
Aristides, and the people of Athens, had kirely another notion of juftice, when he pronounced the counfel of Themis- TOCLES, which was communicated to him only, to be highly ufeful, but unjuft; and the aflembly, upon this authority, re- jeded the propofitl unheard. Thefe honefl; citizens, though fub- je(ft to no laws but of their own making, far from making utility the flandard of judice, made juftice to be the ftandard of utility.
" What is a man^s property? Any thing which it is lawful for *' him, and for him alone, to ufe. But ivbat rule have we by " which we can di/iinguiP} thefe objeBs? Here we muft have re- " courfe to ftatutes, cuftoms, precedents, analogies, ^t."
Does not this imply, that, in the ftate of nature, there can be no diftindion of property? If fo, Mr Hume's ftate of nature is the fame with that of Mr Hobbes.
It is true, that, when men become members of a political fo- ciety, they fubjecfl their property, as well as themfelves, to the laws, and muft either acquiefce in what the laws determine, or leave thefociety. But juftice, and even that particular branch of it which our author always fuppofes to be the whole, is antecedent to political focieties and to their laws; and the intention of thefe laws is, to be the guardians of juftice, and to redrefs in- juries.
As all the works of men are imperfecft, human laws may be unjuft; which could never be, if juftice had its origin from law, as the author feems here to iniinuate.
K k k Juftice i^'!^^^' Juftice requires, that a member of a flate fliould fubmit to the laws of the (late, when they require nothing unjufl or im- pious. There may, therefore, be ilatutory rights and flatutory crimes. A ftatute may create a right which did not before ex- ift, or make that to be criminal which was not fo before. But this could never be, if there were not an antecedent obligation upon the fubjedts to obey the flatutes. In like manner, the command of a mailer may make that to be the fervant's duty which, before, was not his duty, and the fervant may be charge- able with injuflice if he dlfobeys, becaufe he was under an antecedent obligation to obey his mafter in lawful things.
We grant, therefore, that particular laws may diredl juftice and determine property, and fometimes even upon very flight reafons and analogies, or even for no other reafon but that it i-s better that fuch a point Ihould be determined by law than that it fliould be left a dubious fubjed: of contention. But this, far from prefenting us with the conclufion which the author •would eftabliHi, prelents us with a contrary conclufion^ For all thefe particular laws and flatutes derive their whole obliga- tion and force from a general rule of juftice antecedent to them, to v/it, That fubjeds ought to obey the laws of their country.
The author compares the rules of juftice with the moft frivo- lous fuperftitions, and can find no foundation for moral fenti- ment in the one more than In the other, excepting that jufllce is requifite to the well-being and exiflence of fociety* It is very true, that, if we examine mhte and thine by the fcnfes of fight, fmell or touch, or fcrutinize them by the fc'tences of medi- cine, chemijiry or phyfics, we perceive no difierence. But the rea- fon is, that none of thefe fenfes or fciences are the judges of right or wrong, or can give any conception of them, any more than the ear of colour, or the eye of found. Every man of common common common underftandlng, and every favage, when he applies his piAP. v. moral faculty to thofe objcds, perceives a difference as clearly as he perceives day-light. When that fcnfe or faculty is not confulted, in vain do we confult every other, in a queflion of right and wrong.
To perceive that juftlcc tends to the good of mankind, would lay no moral obligation upon us to be juft, unlefs we be con- fcious of a moral obligation to do what tends to the good of mankind. If fuch a moral obligation be admitted, why may We not admit a flronger obligation to do injury to no man? The laft obligation is as eafily conceived as the firft, and there is as clear evidence of its exiftence in human nature.
The lafl argument is a dilemma, and is thus expreflcd: " The " dilemma feems obvious. As juftice evidently tends to pro- " mote public utility, and to fupport civil fociety, the fentimeni " of juflice is either derived from our reflcding on that ten- " dency, or, like hunger, thirfl and other appetites, refentment, " love of life, attachment to offspring, and other pafljons, arifes " from a fimple original inftind in the human breart, which *' nature has implanted for like falutary purpofes. If the lat- *• ter be the cafe, it follows, That property, which is the objed: " of juftice, is alfo diftinguifhed by a fimple original inftind, " and is not afcertained by any argument or refledion. But '* who is there that ever heard of fuch an iuflind," <Sc.
1 doubt not but Mr Hume has heard of a principle called confciettce, which nature has implanted in the human breaft. Whether he will call it a fimple original inflind, I know not, as he gives that name to all our appetites and to all our pafTions. From this principle, I think, we derive the fentiment of juftice.
As the eye not only gives us the conception of colours, but makes us perceive one body to have one colour, and another K k k 2 bodv y^^^' ^ ' ^°^y another; and as our reafon not only gives us the concep- tion of true and falfe, but makes us perceive one propofition to be true and another to be falfe; fo our confcience, or moral fa- culty, not only gives us the conception of honefl and dilhoneft, but makes us perceive one kind of condud to be honeft, ano- ther to be difhoneft. By this faculty we perceive a merit in honeft condudl, and a demerit in difhoneft, without regard to public utility.
That thefe fentiments are not the effedl of education or of acquired habits, we have the fame reafon to conclude, as that our perception of what is true and what falfe, is not the effed: of education or of acquired habits. There have been men who- profeffed to believe, that there is no ground to aflent to any one propofition rather than its contrary; but I never yet heard of a man who had the effrontery to profefs himfelf to be under no obligation of honour or honefty, of truth or juftice, in his dealings with men.
Nor does this faculty of confcience require innate Ideas of pro- perty, and of the various ways of acquiring and transferring it, or in- nate ideas of kings and fenators, of pretors and chancellors and juries, any more than the faculty of feeing x-equires innate ideas of colours, or than the faculty of reafoning requires innate ideas • of cones, cylinders and fpheres.
CHAP.
OF THE NATURE OF A COXTRACT. 445 CHAP. \ I.
Of the Nature and Obligation of a ContraH.
TH E obligation of contradls and promifes is a matter fo fa- cred, and of fuch confcqiience to human focicty, that fpe- culations which have a tendency to weaken that obligation, and to perplex men's notions on a fubjecft fo plain and fo important, ought to meet with the difapprobation of all honeft men.
Some fuch fpcculations, I think, we have in the third volume of Mr Hume's Trcatife of Human Nature, and in his Enquiry hito the Principles of Morals; and my defign in this chapter is, to offer fome obfervations on the nature of a contrad or pro- mife, and on two paffages of that author on this fubjed.
I am far from faying or thinking, that Mr HtJME meant to weaken men's obligations to honcfty and fair dealing, or that he had not a fenfe of thefe obligations himfelf. It is nut the man I impeach, but his writings. Let us think of the lirft as charitably as we can, while we freely examine the import and tendency of the laft.
Although the nature of a contrad and of a promifc is per- fecTlly underflood by all men of common underftanding; yet, by attention to the operations of mind fignified by thefe words, we fliall be better enabled to judge of the metaphyfical fubtil- ties which have been raifed about them. A promife and a con- trail differ fo little in what concerns the prefent difquiiition, that the fame reafoning (as Mr Hume jullly obferves) extends to both. In a promife, one party only comes under the obliga- tion, the other acquires a right to the prclhition promifed. But we give the name of a contract to a tranfadion in which each party 44^ E S S A Y V.
CHAP. VI. party comes under an obligation to the other, and each recipro- cally acquires a right to what is promifed by the other.
The Latin word paBum feems to extend to both \ and the de- finition given of it in the Civil Law, and borrowed from Ul- PIAN, is, Duorum pluriumve in idem placitum covfenfus. Titius, a modern Civilian, has endeavoured to make this definition more complete, by adding the words, Obligationis licite conftituenda vel tolknda caufa datus. With this addition the definition is. That a contract is the confent of two or more perfons in the fame thing, given with the intention of conftituting or diiTolving law- fully fome obligation.
This definition is perhaps as good as any other that can be given; yet, I believe, every man will acknowledge, that it gives him no clearer or more diflin6l notion of a contradl than he had before. If it is confidered as a ftridly logical definition, I believe fome objections might be made to it; but I forbear to mention them, becaufe I believe that fimilar objedlions might be made to any definition of a contrail that can be given.
Nor can it be inferred from this, that the notion of a contrail is not perfedlly clear in every man come to years of underfland- ing. For this is common to many operations of the mind, that although we underfi:and them perfedlly, and are in no danger of confounding them with any thing elfe; yet we cannot define them according to the rules of logic, by a genus and a fpecific difference. And when we attempt it, we rather darken than give light to them.
Is there any thing more difi:In£lly underilood by all men, than what it is to fee, to hear, to remember, to judge? Yet it is the mofl; difficult thing in the world to define thefe operations according to the rules of logical definition. But it is not more difficult than it is ufelefs.
Sometimes OF THE NATURE OF A CONTRACT. 447 Sometimes Pliilofophcrs attempt to define them; but, if we chap, vl examine their definitions, we fliall find, that they amount to no more than giving one fynonymous word for another, and com- conly a worle for a better. So when we define a contrad, by calling it a confent, a convention, an agreement, what is this but giving a fynonymous word for it, and a word that is neither more expreflivc nor better underftood?
One boy has a top, another a fcourge; fays tlie firfi to the other, If you will lend me your fcourge as long as I can keep up my top with it, you fliall next have the top as long as you can keep it up. Agreed, fays the other. This is a contrad: perfecfl- ly undcrftood by both parties, though they never heard of the definition given by Ulpian or by Tixius. And each of them knows, that he is injured if the other breaks the bargain, cmd that he does wrong if he breaks it himfelf.
The operations of the human mind may be divided into two clafles, the folitary and the focial. As promifes and contradls belong to the lafl clafs, it may be proper to explain this divi- fion..
I call thofe operations yoAVi/rj, which may be performed by a man in folitude, without iutercourfe with any other intelligent being.
I call thofe operations foc/a/, which necefTlirily Imply focial iutercourfe with fome other intelligent being who bears a part in them.
A man may fee, and hear, and remember, and judge, and rea- fon; he may deliberate and form purpofcs, and execute them, without the intervention of any other intelligent being. They are folitary aifls. But when he afks a queftion for information, when he tefiifics a fadl, when he gives a command to his ler- vant, when he makes a promife, or enters into a contract, thefe arc focial CHAP. VI. focial ads of mind, and can have no exiftence without the inter- vention of fome other intelligent being, who a-^s a part in them. Between the operations of the mind, which, for want of a more proper name, I have called folitary, and thofe I have calledyoria/, there is this very remarkable diftindion, that, in the folitary, the exprellion of them by words, or any other fenfible fign, is accidental. They may exift, and be complete, without being exprefled, without being Known to any other perfon. But, in the focial operations, the expreflion is effential. They can- not exift without being exprefTed by words or figns, and known to the other party.
If nature had not made man capable of fuch focial operations of mind, and furnlflied him with a language to exprefs them, "he might think, and reafon, and deliberate, and will; he might have defires and averfions, joy and forrow; in a word, he might exert all thofe operations of mind, which the writers in logic and pneumatology have fo copioufly defcrlbed; but, at the fame time, he would ftill be a folitary being, even when in a crowd ', it would be impolTible for him to put a queftion, or give a com- mand, to alk a favour, or teftify a fad, to make a promife or a bargain.
I take it to be the common opinion of Philofophers, That the focial operations of the human mind are not fpecifically differ- ent from the folitary, and that they are only various modifica- tions or compofitions of our folitary operations, and may be re- folved into them.
It is, for this reafon probably, that, in enumerating the opera- tions of the mind, the folitary only are mentioned, and no no- tice at all taken of the focial, though they are familiar to every man, and have names in all languages.
I apprehend, however, it will be found extremely difficult, if not impoffible, to refolve our focial operations into any modifi- cation OF THE NATURE OF A CONTRACT.
cation or compofition of the folitary: And that an attempt to ^HAP. vi.
tlo this, would prove as ineffediial as the attempts that have been made to refolve all our focial aO'edions into the felfifli.
The focial operations appear to be as fimple in their nature as the folitary. They are found in every individual of the fpecies, even before the ufc of reafon.
The power which man has of holding focial intercourfe with his kind, by aflcing and refufing, threatening and fupplica- ting, commanding and obeying, tertifying and promifing, mull either be a dilUnifl faculty given by our Maker, and a part of our conftitution, like the powers of feeing, and hearing, or it muft be a human invention. If men have invented this art of focial intercourfe, it muft follow, that every individual of the fpecies muft have invented it for himfelf. It cannot be taught; for though, when once carried to a certain pitch, it may be im- proved by teaching; yet it is impollible it can begin in that way, becaufe all teaching fuppofes a focial intercourfe and language already eftabliflied between the teacher and the learner. This intercourfe muft, from the very firft, be carried on by fenfible figns; for the thoughts of other men can be difcovered in no other way. I think it is likewife evident, that this intercourfe, in its beginning at leaft, muft be carried on by natural figns, whofe meaning is underftood by both parties, previous to all compad or agreement. For there can be no compact without figns, nor without focial intercourfe.
I apprehend therefore, that the focial intercourfe of mankind, confifting of thofc focial operations which 1 have mentioned, is the excrcife of a faculty appropriated to that purpofe, wliich is the gift of God, no lefs than the powers of feeing and hear- ing. And that, in order to carry on this intercourfe, God has given to man a natural language, by which his focial operations are exprefied, and, without which, the artificial languages of ar- ticulate founds, and of writing, could never have been invented by human art.
L I I The CHAP. VI. The figns in this natural language are looks, changes of the ' ' features, modulations of the voice, and geftures of the body.
All men underftand this language without inftrudion, and all men can ule it in fome degree. But they are moft expert in it who ufe it moft. It makes a great part of the language of fa- vages, and therefore they are more expert in the ufe of natural figns than the civilized.
The language of dumb perfons is moftly formed of natural figns; and they are all great adepts in this language of nature. All that we call adion and pronunciation, in the moft perfedl orator, and the moft admired adlor, is nothing elfe but fuperad- ding the language of nature to the language of articulate founds. The pantomimes among the Romans carried it to the higheft: pitch of perfedion. For they could a6l parts of comedies and tragedies in dumb-fliew, fo as to be underftood, not only by thofe who were accuftomed to this entertainment, but by all the ftrangers that came to Rome, from all the corners of the earth.
For it may be obferved of this natural language, (and no- thing more clearly demonftrates it to be a part of the human conftitution,) that although it require pradlice and ftudy to en- able a man to exprefs his fentiments by it in the moft perfedl manner j yet it requires neither ftudy nor pradice in the fpec- tator to underftand it. The knowledge of it was before latent in the mind, and we no fooner fee it, than we immediately re- coonife it, as we do an acquaintance whom we had long forgot, and could not have defcribed j but no fooner do we fee him, than we know for certain that he is the very man.
This knowledge, in all mankind, of the natural figns of men's thoughts and fentiments, is indeed fo like to reminifcence, that it feems OF JUSTICE.
ieems to have led Plato to conceive all human knowledge to be chap. vi. of that kind.
It is not by reafoning, that all mankind know, that an open countenance, and a placid eye, is a fign of amity; that a con- tracted brow, and a fierce look, is the ligii of anger. It is not from reafon that we learn to know the natural figns of confent- ing and refufing, of affirming and denying, of threatening and fupplicating.
No man can perceive any neceflary connecflion between the figns of fuch operations, and the things fignified by them. But we are fo formed by tlie Author of our nature, that the opera- tions themfelves become vilible, as it were, by their natural figns. This knowledge refembles reminifcence, in this refpcifl, that it is immediate. We form the conclufion with great aflu- rance, without knowing any premifes from which it may be drawn by reafoning.
It would lead us too far from the intention of the prefent en- quiry, to confider more particularly, in what degree the focial intercourfe is natural, and a part of our conftitution; how far it is of human invention.
It is fufficient to obferve, that this intercourfe of human minds, by which their thoughts and fentiments are exchanged, and their fouls mingle together as it were, is common to the whole fpecies from infancy.
Like our other powers, its firfl beginnings are weak, and fcarccly perceptible. But, it is a certain fad, that we can perceive fome communication of fentiments between the nurfe and her nurfling, before it is a month old. And I doubt not, but that, if both had grown out of the earth, and had never feen another human face, they would be able in a few years to converfe together.
CHAP. VI. There appears indeed to be fome degree of fecial intercourfe among brute-animals, and between fome of them and man. A dog exults in the careifes of his mafter, and is humbled at his difpleafure. But there are two operations of the focial kind, of which the brute-animals feem to be altogether incapable. They can neither plight their veracity by teftimony, nor their fidelity by any engagement or promife. If nature had made them ca- pable of thefe operations, they would have had a language to ex- prefs them by, as man has: But of this we fee no appearance.
A fox is faid to ufe ftratagems, but he cannot lie; becaufe he cannot give his teftimony, or plight his veracity. A dog is faid to be faithful to his mafter; but no more is meant but that he is affedionate, for he never came under any engagement. I fee no evidence, that any brute-animal is capable of either giving teftimony, or making a promife.
A dumb man cannot fpeak any more than a fox or a dog; but he can give his teftimony by figns as early in life as other men can do by words. He knows what a lie is as early as other men, and hates it as much. He can plight his faith, and is fenfible of the obligation of a promife or contradl^ It is therefore a prerogative of man, that he can communicate his knowledge of fads by teftimony, and enter into engagements by promife or contrad. God has given him thefe powers by a part of his conftitution, which diftinguiflies him from all brute- animals. And whether they are original powers, or refolvable into other original powers, it is evident that they fpring up in the human mind at an early period of life, and are found in eve- ry individual of the fpecies, whether lavage or civilized.
Thefe prerogative powers of man, like all his other powers, muft be given for fome end, and for a good end. And if we confuler a little farther the oeconomy of nature, in relation to this part of the human conftitution, we ftiall perceive the wifdom OF THE NATURE OF A CONTRACT. 453 (lorn of Nature in the ftru(5liire of it, and difcover clearly our chap. vi. duty in confequcnce of it.
■ It is evident, in xht fir/} place, that if no credit was given to tefliinony, if there was no reliance upon proinifes, they would anfwer no end at all, not even that of deceiving.