wrong to be done to himself, would lead him to the knowledge of every branch of justice, without the consideration of public good, or of laws and statutes made to promote it.

It is not true, therefore, that public utility is the only standard of justice, and that the rules of justice can be deduced only from their public utility.

Aristides, and the people of Athens, had surely another notion of justice, when he pronounced the counsel of Themistocles, which was communicated to him only, to be highly useful, but unjust; and the assembly, upon this authority, rejected the proposal unheard. These honest citizens, though subject to no laws but of their own making, far from making utility the standard of justice, made justice to be the standard of utility.

"What is a man's property? Any thing which it is lawful for him, and for him alone, to use. But what rule have we by which we can distinguish these objects? Here we must have recourse to statutes, customs, precedents, analogies, &c."

Does not this imply, that, in the state of nature, there can be no distinction of property? If so, Mr. Hume's state of nature is the same with that of Mr. Hobbes.

It is true, that, when men become members of a political society, they subject their property, as well as themselves, to the laws, and must either acquiesce in what the laws determine, or leave the society. But justice, and even that particular branch of it which our author always supposes to be the whole, is antecedent to political societies and to their laws; and the intention of these laws is, to be the guardians of justice, and to redress injuries.

As all the works of men are imperfect, human laws may be unjust; which could never be, if justice had its origin from law, as the author seems here to insinuate.

Justice requires, that a member of a state should submit to the laws of the state, when they require nothing unjust or impious. There may, therefore, be statutory rights and statutory crimes. A statute may create a right which did not before exist, or make that to be criminal which was not so before. But this could never be if there were not an antecedent obligation upon the subjects to obey the statutes. In like manner, the command of a master may make that to be the servant's duty, which, before, was not his duty; and the servant may be chargeable with injustice if he disobeys, 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 sometimes even upon very slight reasons and analogies, or even for no other reason but that it is better that such a point should be determined by law than that it should be left a dubious subject of contention. But this, far from presenting us with the conclusion which the author would establish, presents us with a contrary conclusion. For all these particular laws and statutes derive their whole obligation and force from a general rule of justice antecedent to them, to wit, That subjects ought to obey the laws of their country.

The author compares the rules of justice with the most frivolous superstitions, and can find no foundation for moral sentiment in the one more than in the other, excepting that justice is requisite to the well being and existence of society.

It is very true, that, if we examine mine and thine by the senses of sight, smell or touch, or scrutinize them by the sciences of medicine, chemistry or physics, we perceive no difference. But the reason is, that none of these

senses 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 sound. Every man of common understanding, and every savage, when he applies his moral faculty to those objects, perceives a difference as clearly as he perceives daylight. When that sense or faculty is not consulted, in vain do we consult 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 such a moral obligation be admitted, why may we not admit a stronger obligation to do injury to no man?

The last 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 seems obvious. As justice evidently tends to promote public utility, and to support civil society, the sentiment of justice 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 passions, arises from a simple original instinct in the human breast, which nature has implanted for like salutary purposes. If the latter be the case, it follows, That property, which is the object of justice, is also distinguished by a simple 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 conscience, which nature has implanted in the human breast. Whether he will call it a simple original instinct, I know not, as he gives that name to all our appetites and to all our passions. 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 body another; and as our reason not only gives us the conception of true and false, but makes us perceive one proposition to be true and another to be false; so our conscience or moral faculty, not only gives us the conception of honest and dishonest, but makes us perceive one kind of conduct to be honest, another to be dishonest. By this faculty we perceive a merit in honest conduct, and a demerit in dishonest, without regard to public utility.

That these sentiments are not the effect of education or of acquired habits, | we have the same reason to conclude, as that our perception of what is true and what false is not the effect of education or of acquired habits. There have been men who professed to believe, that there is no ground to assent to any one proposition 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 honesty, 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 senators, of pretors and chancellors and juries, any more than the faculty of seeing requires innate ideas of colours, or that the faculty of rea soning requires innate ideas of cones, cylinders and spheres.

CHAPTER VI.

OF THE NATURE AND OBLIGATION OF A CONTRACT.

THE obligation of contracts and promises is a matter so sacred, and of such consequence to human society, that speculations, which have a tendency to weaken that obligation and to perplex men's notions on subjects so plain and so important, ought to meet with the disapprobation of all honest men.

Some such 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 some observations on the nature of a contract or promise, and on two passages of that author on this subject.

I am far from saying or thinking that Mr. Hume meant to weaken men's obligations to honesty 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 first 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 signified by the words, we shall be better enabled to judge of these metaphysical subtilties which have been raised about them. A promise and a contract differ so little in what concerns the present disquisition that the same reasoning (as Mr. Hume justly 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 transaction in which each party comes under an obligation to the other, and each reciprocally acquires a right to what is promised by the other.

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 consensus. Titius, a modern civilian, has endeavoured to make this definition more complete, by adding the words, Obligationis licite constituendæ vel tollendæ causa datus. With this addition, the definition is, That a contract is the consent of two or more persons in the same thing, given with the intention of constituting or dissolving lawfully some 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 distinct notion of a contract than he had before. If it is considered as a strictly logical definition, I believe some objections might be made to it; but I forbear to mention them, because I believe that similar 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 else; yet we cannot define them according to the rules of logic, by a genus and a specific difference. And when we attempt it, we rather darken than give light to them.

Is there any thing more distinctly understood by all men, than what it is to see, 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 philosophers attempt to define them; but, if we examine their definitions, we shall find, that they amount to no more than giving one synonymous word for another, and commonly a worse for a better. So when we define a contract, by calling it a consent, a convention, an agreement, what is this but giving a synonymous word for it, and a word that is neither more expressive nor better understood?

One boy has a top, another a scourge; says the first to the other, If you will lend me your scourge as long as I can keep up my top with it, you shall next have the top as long as you can keep it up. Agreed, says the other. This is a contract perfectly understood by both parties, though they never heard of the definition given by Ulpian, or by Titius. And each of them knows, that he is injured if the other breaks the bargain, and that he does wrong if he breaks it himself.

The operations of the human mind may be divided into two classes, the solitary and the social. As promises and contracts belong to the last class, it may be proper to explain this division.

I call those operations solitary, which may be performed by a man in solitude, without intercourse with any other intelligent being.

I call those operations social, which necessarily imply social intercourse with some other intelligent being who bears a part in them.

A man may see, and hear, and remember, and judge, and reason; he may deliberate and form purposes, and execute them, without the intervention of any other intelligent being. They are solitary acts. But when he asks a question for information, when he testifies a fact, when he give a command to his servant, when he makes a promise, or enters into a contract, these are social acts of mind, and can have no existence without the intervention of some other intelligent being, who acts a part in them. Between the operations of the mind, which, for want of a more proper name, I have called solitary, and those I have called social, there is this very remarkable distinction, that, in the solitary, the expression of them by words, or any other sensible sign, is accidental. They may exist, and be complete, without being expressed, without being known to any other person. But, in the social operations, the expression is essential. They cannot exist without being expressed by words or signs, and known to the other party.

If nature had not made man capable of such social operations of mind, and furnished him with a language to express them, he might think, and reason, and deliberate, and will; he might have desires and aversions, joy and sorrow; in a word, he might exert all those operations of mind, which the writers in logic and pneumatology have so copiously described; but, at the same time, he would still be a solitary being, even when in a crowd; it would be impossible for him to put a question, or give a command, to ask a favour, or testify a fact, to make a promise or a bargain.

I take it to be the common opinion of philosophers, that the social opera tions of the human mind are not specifically different from the solitary, and that they are only various modifications or compositions of our solitary operations, and may be resolved into them.

It is for this reason probably, that, in enumerating the operations of the mind, the solitary only are mentioned, and no notice at all taken of the social, though they are familiar to every man, and have names in all languages.

I apprehend, however, it will be found extremely difficult, if not impossible, to resolve our social operations into any modification or composition of the solitary and that an attempt to do this would prove as ineffectual, as the attempts that have been made to resolve all our social affections into the selfish. The social operations appear to be as simple in their nature as the solitary. They are found in every individual of the species, even before the use of reason.

The power which man has of holding social intercourse with his kind, by asking and refusing, threatening and supplicating, commanding and obeying, testifying and promising, must either be a distinct faculty given by our Maker, and a part of our constitution, like the powers of seeing and hearing, or it must be a human invention. If men have invented this art of social intercourse, it must follow that every individual of the species must have invented it for himself. It cannot be taught, for though, when once carried to a certain pitch, it may be improved by teaching; yet it is impossible it can begin in that way, because all teaching supposes a social intercourse and language already established between the teacher and the learner. This intercourse must, from the very first, be carried on by sensible signs; for the thoughts of other men can be discovered in no other way. I think it is likewise evident, that this intercourse, in its beginning at least, must be carried on by natural signs, whose meaning is understood by both parties, previous to all compact or agreement. For there can be no compact without signs, nor without social intercourse.

I apprehend, therefore, that the social intercourse of mankind, consisting of those social operations which I have mentioned, is the exercise of a faculty appropriated to that purpose, which is the gift of God, no less than the powers of seeing and hearing. And that, in order to carry on this intercourse, God has given to man a natural language, by which his social operations are expressed, and without which, the artificial languages of articulate sounds, and of writing, could never have been invented by human

art.

The signs in this natural language are looks, changes of the features, modulations of the voice, and gestures of the body. All men understand this language without instruction, and all men can use it in some degree. But they are most expert in it who use it most. It makes a great part of the language of savages, and therefore they are more expert in the use of natural signs than the civilized.

The language of dumb persons is mostly formed of natural signs; and they are all great adepts in this language of nature. All that we call action and pronunciation, in the most perfect orator, and the most admired actor, is nothing else but superadding the language of nature to the language of articulate sounds. The pantomimes among the Romans carried it to the highest pitch of perfection. For they could act part of comedies and tragedies in dumb show, so as to be understood, not only by those who were accustomed to this entertainment, but by all the strangers that came to Rome from all the corners of the earth.

For it may be observed of this natural language (and nothing more clearly demonstrates it to be a part of the human constitution), that although it require practice and study to enable a man to express his sentiments by it in the most perfect manner, yet it requires neither study nor practice in the spectator to understand it. The knowledge of it was before latent in the mind, and we no sooner see it, than we immediately recognise it, as we do an acquaintance whom we had long forgot, and could not have described; but no sooner do we see him, than we know for certain that he is the very man.