The word NATURAL is commonly taken in so many senses and is of so loose a signification, that it seems vain to dispute whether justice be natural or not. If self-love, if benevolence be natural to man; if reason and forethought be also natural; then may the same epithet be applied to justice, order, fidelity, property, society. Men's inclination, their necessities, lead them to combine; their understanding and experience tell them that this combination is impossible where each governs himself by no rule, and pays no regard to the possessions of others: and from these passions and reflections conjoined, as soon as we observe like passions and reflections in others, the sentiment of justice, throughout all ages, has infallibly and certainly had place to some degree or other in every individual of the human species. In so sagacious an animal, what necessarily arises from the exertion of his intellectual faculties may justly be esteemed natural.
[Footnote: Natural may be opposed, either to what is UNUSUAL, MIRACULOUS or ARTIFICIAL. In the two former senses, justice and property are undoubtedly natural. But as they suppose reason, forethought, design, and a social union and confederacy among men, perhaps that epithet cannot strictly, in the last sense, be applied to them. Had men lived without society, property had never been known, and neither justice nor injustice had ever existed. But society among human creatures had been impossible without reason and forethought. Inferior animals, that unite, are guided by instinct, which supplies the place for reason. But all these disputes are merely verbal.]
Among all civilized nations it has been the constant endeavour to remove everything arbitrary and partial from the decision of property, and to fix the sentence of judges by such general views and considerations as may be equal to every member of society. For besides, that nothing could be more dangerous than to accustom the bench, even in the smallest instance, to regard private friendship or enmity; it is certain, that men, where they imagine that there was no other reason for the preference of their adversary but personal favour, are apt to entertain the strongest ill-will against the magistrates and judges. When natural reason, therefore, points out no fixed view of public utility by which a controversy of property can be decided, positive laws are often framed to supply its place, and direct the procedure of all courts of judicature. Where these too fail, as often happens, precedents are called for; and a former decision, though given itself without any sufficient reason, justly becomes a sufficient reason for a new decision. If direct laws and precedents be wanting, imperfect and indirect ones are brought in aid; and the controverted case is ranged under them by analogical reasonings and comparisons, and similitudes, and correspondencies, which are often more fanciful than real. In general, it may safely be affirmed that jurisprudence is, in this respect, different from all the sciences; and that in many of its nicer questions, there cannot properly be said to be truth or falsehood on either side. If one pleader bring the case under any former law or precedent, by a refined analogy or comparison; the opposite pleader is not at a loss to find an opposite analogy or comparison: and the preference given by the judge is often founded more on taste and imagination than on any solid argument. Public utility is the general object of all courts of judicature; and this utility too requires a stable rule in all controversies: but where several rules, nearly equal and indifferent, present themselves, it is a very slight turn of thought which fixes the decision in favour of either party.
[Footnote: That there be a separation or distinction of possessions, and that this separation be steady and constant; this is absolutely required by the interests of society, and hence the origin of justice and property. What possessions are assigned to particular persons; this is, generally speaking, pretty indifferent; and is often determined by very frivolous views and considerations. We shall mention a few particulars.
Were a society formed among several independent members, the most obvious rule, which could be agreed on, would be to annex property to PRESENT possession, and leave every one a right to what he at present enjoys. The relation of possession, which takes place between the person and the object, naturally draws on the relation of property.
For a like reason, occupation or first possession becomes the foundation of property.
Where a man bestows labour and industry upon any object, which before belonged to no body; as in cutting down and shaping a tree, in cultivating a field, &c., the alterations, which he produces, causes a relation between him and the object, and naturally engages us to annex it to him by the new relation of property. This cause here concurs with the public utility, which consists in the encouragement given to industry and labour.
Perhaps too, private humanity towards the possessor concurs, in this instance, with the other motives, and engages us to leave with him what he has acquired by his sweat and labour; and what he has flattered himself in the constant enjoyment of. For though private humanity can, by no means, be the origin of justice; since the latter virtue so often contradicts the former; yet when the rule of separate and constant possession is once formed by the indispensable necessities of society, private humanity, and an aversion to the doing a hardship to another, may, in a particular instance, give rise to a particular rule of property.
I am much inclined to think, that the right succession or inheritance much depends on those connexions of the imagination, and that the relation to a former proprietor begetting a relation to the object, is the cause why the property is transferred to a man after the death of his kinsman. It is true; industry is more encouraged by the transference of possession to children or near relations: but this consideration will only have place in a cultivated society; whereas the right of succession is regarded even among the greatest Barbarians.
Acquisition of property by accession can be explained no way but by having recourse to the relations and connexions of the imaginations.
The property of rivers, by the laws of most nations, and by the natural turn of our thoughts, is attributed to the proprietors of their banks, excepting such vast rivers as the Rhine or the Danube, which seem too large to follow as an accession to the property of the neighbouring fields. Yet even these rivers are considered as the property of that nation, through whose dominions they run; the idea of a nation being of a suitable bulk to correspond with them, and bear them such a relation in the fancy.
The accessions, which are made to land, bordering upon rivers, follow the land, say the civilians, provided it be made by what they call alluvion, that is, insensibly and imperceptibly; which are circumstances, that assist the imagination in the conjunction.
Where there is any considerable portion torn at once from one bank and added to another, it becomes not his property, whose land it falls on, till it unite with the land, and till the trees and plants have spread their roots into both. Before that, the thought does not sufficiently join them.
In short, we must ever distinguish between the necessity of a separation and constancy in men's possession, and the rules, which assign particular objects to particular persons. The first necessity is obvious, strong, and invincible: the latter may depend on a public utility more light and frivolous, on the sentiment of private humanity and aversion to private hardship, on positive laws, on precedents, analogies, and very fine connexions and turns of the imagination.]
We may just observe, before we conclude this subject, that after the laws of justice are fixed by views of general utility, the injury, the hardship, the harm, which result to any individual from a violation of them, enter very much into consideration, and are a great source of that universal blame which attends every wrong or iniquity. By the laws of society, this coat, this horse is mine, and OUGHT to remain perpetually in my possession: I reckon on the secure enjoyment of it: by depriving me of it, you disappoint my expectations, and doubly displease me, and offend every bystander. It is a public wrong, so far as the rules of equity are violated: it is a private harm, so far as an individual is injured. And though the second consideration could have no place, were not the former previously established: for otherwise the distinction of MINE and THINE would be unknown in society: yet there is no question but the regard to general good is much enforced by the respect to particular. What injures the community, without hurting any individual, is often more lightly thought of. But where the greatest public wrong is also conjoined with a considerable private one, no wonder the highest disapprobation attends so iniquitous a behaviour.