THAT Justice is useful to society, and consequently that PART of its merit, at least, must arise from that consideration, it would be a superfluous undertaking to prove. That public utility is the SOLE origin of justice, and that reflections on the beneficial consequences of this virtue are the SOLE foundation of its merit; this proposition, being more curious and important, will better deserve our examination and enquiry.
Let us suppose that nature has bestowed on the human race such profuse ABUNDANCE of all EXTERNAL conveniencies, that, without any uncertainty in the event, without any care or industry on our part, every individual finds himself fully provided with whatever his most voracious appetites can want, or luxurious imagination wish or desire. His natural beauty, we shall suppose, surpasses all acquired ornaments: the perpetual clemency of the seasons renders useless all clothes or covering: the raw herbage affords him the most delicious fare; the clear fountain, the richest beverage. No laborious occupation required: no tillage: no navigation. Music, poetry, and contemplation form his sole business: conversation, mirth, and friendship his sole amusement. It seems evident that, in such a happy state, every other social virtue would flourish, and receive tenfold increase; but the cautious, jealous virtue of justice would never once have been dreamed of. For what purpose make a partition of goods, where every one has already more than enough? Why give rise to property, where there cannot possibly be any injury? Why call this object MINE, when upon the seizing of it by another, I need but stretch out my hand to possess myself to what is equally valuable? Justice, in that case, being totally useless, would be an idle ceremonial, and could never possibly have place in the catalogue of virtues.
We see, even in the present necessitous condition of mankind, that, wherever any benefit is bestowed by nature in an unlimited abundance, we leave it always in common among the whole human race, and make no subdivisions of right and property. Water and air, though the most necessary of all objects, are not challenged as the property of individuals; nor can any man commit injustice by the most lavish use and enjoyment of these blessings. In fertile extensive countries, with few inhabitants, land is regarded on the same footing. And no topic is so much insisted on by those, who defend the liberty of the seas, as the unexhausted use of them in navigation. Were the advantages, procured by navigation, as inexhaustible, these reasoners had never had any adversaries to refute; nor had any claims ever been advanced of a separate, exclusive dominion over the ocean.
It may happen, in some countries, at some periods, that there be established a property in water, none in land [Footnote: Genesis, cbaps. xiii. and xxi.]; if the latter be in greater abundance than can be used by the inhabitants, and the former be found, with difficulty, and in very small quantities.
Again; suppose, that, though the necessities of human race continue the same as at present, yet the mind is so enlarged, and so replete with friendship and generosity, that every man has the utmost tenderness for every man, and feels no more concern for his own interest than for that of his fellows; it seems evident, that the use of justice would, in this case, be suspended by such an extensive benevolence, nor would the divisions and barriers of property and obligation have ever been thought of. Why should I bind another, by a deed or promise, to do me any good office, when I know that he is already prompted, by the strongest inclination, to seek my happiness, and would, of himself, perform the desired service; except the hurt, he thereby receives, be greater than the benefit accruing to me? in which case, he knows, that, from my innate humanity and friendship, I should be the first to oppose myself to his imprudent generosity. Why raise landmarks between my neighbour's field and mine, when my heart has made no division between our interests; but shares all his joys and sorrows with the same force and vivacity as if originally my own? Every man, upon this supposition, being a second self to another, would trust all his interests to the discretion of every man; without jealousy, without partition, without distinction. And the whole human race would form only one family; where all would lie in common, and be used freely, without regard to property; but cautiously too, with as entire regard to the necessities of each individual, as if our own interests were most intimately concerned.
In the present disposition of the human heart, it would, perhaps, be difficult to find complete instances of such enlarged affections; but still we may observe, that the case of families approaches towards it; and the stronger the mutual benevolence is among the individuals, the nearer it approaches; till all distinction of property be, in a great measure, lost and confounded among them. Between married persons, the cement of friendship is by the laws supposed so strong as to abolish all division of possessions; and has often, in reality, the force ascribed to it. And it is observable, that, during the ardour of new enthusiasms, when every principle is inflamed into extravagance, the community of goods has frequently been attempted; and nothing but experience of its inconveniencies, from the returning or disguised selfishness of men, could make the imprudent fanatics adopt anew the ideas of justice and of separate property. So true is it, that this virtue derives its existence entirely from its necessary USE to the intercourse and social state of mankind.
To make this truth more evident, let us reverse the foregoing suppositions; and carrying everything to the opposite extreme, consider what would be the effect of these new situations. Suppose a society to fall into such want of all common necessaries, that the utmost frugality and industry cannot preserve the greater number from perishing, and the whole from extreme misery; it will readily, I believe, be admitted, that the strict laws of justice are suspended, in such a pressing emergence, and give place to the stronger motives of necessity and self-preservation. Is it any crime, after a shipwreck, to seize whatever means or instrument of safety one can lay hold of, without regard to former limitations of property? Or if a city besieged were perishing with hunger; can we imagine, that men will see any means of preservation before them, and lose their lives, from a scrupulous regard to what, in other situations, would be the rules of equity and justice? The use and tendency of that virtue is to procure happiness and security, by preserving order in society: but where the society is ready to perish from extreme necessity, no greater evil can be dreaded from violence and injustice; and every man may now provide for himself by all the means, which prudence can dictate, or humanity permit. The public, even in less urgent necessities, opens granaries, without the consent of proprietors; as justly supposing, that the authority of magistracy may, consistent with equity, extend so far: but were any number of men to assemble, without the tie of laws or civil jurisdiction; would an equal partition of bread in a famine, though effected by power and even violence, be regarded as criminal or injurious?
Suppose likewise, that it should be a virtuous man's fate to fall into the society of ruffians, remote from the protection of laws and government; what conduct must he embrace in that melancholy situation? He sees such a desperate rapaciousness prevail; such a disregard to equity, such contempt of order, such stupid blindness to future consequences, as must immediately have the most tragical conclusion, and must terminate in destruction to the greater number, and in a total dissolution of society to the rest. He, meanwhile, can have no other expedient than to arm himself, to whomever the sword he seizes, or the buckler, may belong: To make provision of all means of defence and security: And his particular regard to justice being no longer of use to his own safety or that of others, he must consult the dictates of self-preservation alone, without concern for those who no longer merit his care and attention.
When any man, even in political society, renders himself by his crimes, obnoxious to the public, he is punished by the laws in his goods and person; that is, the ordinary rules of justice are, with regard to him, suspended for a moment, and it becomes equitable to inflict on him, for the BENEFIT of society, what otherwise he could not suffer without wrong or injury.
The rage and violence of public war; what is it but a suspension of justice among the warring parties, who perceive, that this virtue is now no longer of any USE or advantage to them? The laws of war, which then succeed to those of equity and justice, are rules calculated for the ADVANTAGE and UTILTIY of that particular state, in which men are now placed. And were a civilized nation engaged with barbarians, who observed no rules even of war, the former must also suspend their observance of them, where they no longer serve to any purpose; and must render every action or recounter as bloody and pernicious as possible to the first aggressors.
Thus, the rules of equity or justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility, which results to the public from their strict and regular observance. Reverse, in any considerable circumstance, the condition of men: Produce extreme abundance or extreme necessity: Implant in the human breast perfect moderation and humanity, or perfect rapaciousness and malice: By rendering justice totally USELESS, you thereby totally destroy its essence, and suspend its obligation upon mankind. The common situation of society is a medium amidst all these extremes. We are naturally partial to ourselves, and to our friends; but are capable of learning the advantage resulting from a more equitable conduct. Few enjoyments are given us from the open and liberal hand of nature; but by art, labour, and industry, we can extract them in great abundance. Hence the ideas of property become necessary in all civil society: Hence justice derives its usefulness to the public: And hence alone arises its merit and moral obligation.
These conclusions are so natural and obvious, that they have not escaped even the poets, in their descriptions of the felicity attending the golden age or the reign of Saturn. The seasons, in that first period of nature, were so temperate, if we credit these agreeable fictions, that there was no necessity for men to provide themselves with clothes and houses, as a security against the violence of heat and cold: The rivers flowed with wine and milk: The oaks yielded honey; and nature spontaneously produced her greatest delicacies. Nor were these the chief advantages of that happy age. Tempests were not alone removed from nature; but those more furious tempests were unknown to human breasts, which now cause such uproar, and engender such confusion. Avarice, ambition, cruelty, selfishness, were never heard of: Cordial affection, compassion, sympathy, were the only movements with which the mind was yet acquainted. Even the punctilious distinction of MINE and THINE was banished from among the happy race of mortals, and carried with it the very notion of property and obligation, justice and injustice.