CHAP. V. Juftice requires, that a member of a state should fubmit to the laws of the state, when they require nothing unjust or impious. There may, therefore, be ftatutory rights and statutory crimes. A ftatute may create a right which did not before exift, 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 subjects to obey the ftatutes. In like manner, the command of a mafter may make that to be the fervant's duty which, before, was not his duty, and the fervant may be chargeable with injuftice if he difobeys, because he was under an antecedent obligation to obey his master in lawful things. We grant, therefore, that particular laws may direct justice and determine property, and fometimes even upon very flight reasons and analogies, or even for no other reason but that it is better that fuch a point should be determined by law than that it fhould be left a dubious fubject of contention. But this, far from presenting us with the conclufion which the author would establish, prefents us with a contrary conclufion. For all these particular laws and ftatutes derive their whole obligation and force from a general rule of juftice antecedent to them, to wit, That fubjects ought to obey the laws of their country, The author compares the rules of justice with the most frivolous fuperftitions, and can find no foundation for moral fentiment in the one more than in the other, excepting that justice is requifite to the well-being and existence of society. It is very true, that, if we examine mine and thine by the fenfes of fight, smell or touch, or scrutinize them by the sciences of medicine, chemistry or phyfics, we perceive no difference. But the reafon is, that none of these fenfes or sciences 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 understanding, and every favage, when he applies his CHAP. V. moral faculty to those objects, perceives a difference as clearly as he perceives day-light. When that sense or faculty is not confulted, in vain do we confult every other, in a question of right and wrong. To perceive that justice tends to the good of mankind, would lay no moral obligation upon us to be just, unless we be conscious 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 ftronger obligation to do injury to no man? The laft obligation is as easily conceived as the first, and there is as clear evidence of its existence in human nature. The last argument is a dilemma, and is thus expressed: "The "dilemma feems obvious. As juftice evidently tends to promote public utility, and to support civil fociety, the sentiment "of juftice is either derived from our reflecting on that tendency, or, like hunger, thirst and other appetites, resentment, "love of life, attachment to offspring, and other paffions, arifes "from a fimple original instinct in the human breast, which nature has implanted for like falutary purposes. If the latter be the case, it follows, That property, which is the object "of juftice, is alfo diftinguished by a fimple original instinct, "and is not ascertained by any argument or reflection. But "who is there that ever heard of such an instinct," &c. I doubt not but Mr HUME has heard of a principle called confcience, which nature has implanted in the human breast. Whether he will call it a fimple, original instinct, I know not, as he gives that name to all our appetites and to all our paffions. From this principle, I think, we derive the sentiment of justice. As the eye not only gives us the conception of colours, but makes us perceive one body to have one colour, and another K kk 2 body CHAP. V body another; and as our reafon not only gives us the conception of true and falfe, but makes us perceive one propofition to be true and another to be falfe; fo our confcience, or moral faculty, not only gives us the conception of honeft and dishoneft, but makes us perceive one kind of conduct to be honeft, another to be dishoneft. By this faculty we perceive a merit in honeft conduct, and a demerit in difhoneft, without regard to public utility. That these fentiments are not the effect of education or of acquired habits, we have the fame reason to conclude, as that our perception of what is true and what falfe, is not the effect of education or of acquired habits. There have been men who profeffed to believe, that there is no ground to affent to any one propofition rather than its contrary; but I never yet heard of a man who had the effrontery to profess himself to be under no obligation of honour or honefty, of truth or justice, in his dealings with men. Nor does this faculty of conscience require innate ideas of property, and of the various ways of acquiring and transferring it, or innate ideas of kings and fenators, of pretors and chancellors and juries, any more than the faculty of feeing requires innate ideas of colours, or than the faculty of reasoning requires innate ideas of cones, cylinders and spheres. CHAP. CHAP. VI. TH CHA P. VI. Of the Nature and Obligation of a Contract. HE obligation of contracts and promifes is a matter fo facred, and of fuch confequence to human fociety, that speculations which have a tendency to weaken that obligation, and to perplex men's notions on a fubject so plain and fo important, ought to meet with the disapprobation of all honest men. Some fuch speculations, I think, we have in the third volume of Mr HUME's Treatise of Human Nature, and in his Enquiry into the Principles of Morals; and my design in this chapter is, to offer fome obfervations on the nature of a contract or promife, and on two paffages of that author on this subject. I am far from faying or thinking, that Mr HUME meant to weaken men's obligations to honefty and fair dealing, or that he had not a sense of these obligations himself. It is not the man I impeach, but his writings. Let us think of the firft as charitably as we can, while we freely examine the import and tendency of the last. Although the nature of a contract and of a promise is perfectly understood by all men of common understanding; yet, by attention to the operations of mind fignified by these words, we shall be better enabled to judge of the metaphyfical fubtilties which have been raised about them. A promife and a contract differ fo little in what concerns the prefent difquifition, that the fame reasoning (as Mr HUME juftly observes) extends to both. In a promise, one party only comes under the obligation, the other acquires a right to the prestation promised. But we give the name of a contract to a tranfaction in which each party CHAP. VI. party comes under an obligation to the other, and each recipro- The Latin word pactum seems to extend to both; and the definition given of it in the Civil Law, and borrowed from ULPIAN, is, Duorum pluriumve in idem placitum confenfus. TITIUS, a modern Civilian, has endeavoured to make this definition more complete, by adding the words, Obligationis licitè conftituenda vel tollendæ caufa datus. With this addition the definition is, That a contract is the consent of two or more perfons in the same thing, given with the intention of constituting or diffolving lawfully 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 diftinct notion of a contract than he had before. If it is confidered as a ftrictly logical definition, I believe fome objections might be made to it; but I forbear to mention them, because I believe that fimilar objections might be made to any definition of a contract that can be given. Nor can it be inferred from this, that the notion of a contract is not perfectly clear in every man come to years of understanding. For this is common to many operations of the mind, that although we understand them perfectly, 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 diftinctly understood by all men, than what it is to fee, to hear, to remember, to judge? Yet it is the most difficult thing in the world to define these operations according to the rules of logical definition. But it is not more difficult than it is useless. Sometimes T |