If we examine the PARTICULAR laws, by which justice is directed, and property determined; we shall still be presented with the same conclusion. The good of mankind is the only object of all these laws and regulations. Not only is it requisite, for the peace and interest of society, that men's possessions should be separated; but the rules, which we follow, in making the separation, are such as can best be contrived to serve farther the interests of society.
We shall suppose that a creature, possessed of reason, but unacquainted with human nature, deliberates with himself what rules of justice or property would best promote public interest, and establish peace and security among mankind: His most obvious thought would be, to assign the largest possessions to the most extensive virtue, and give every one the power of doing good, proportioned to his inclination. In a perfect theocracy, where a being, infinitely intelligent, governs by particular volitions, this rule would certainly have place, and might serve to the wisest purposes: But were mankind to execute such a law; so great is the uncertainty of merit, both from its natural obscurity, and from the self-conceit of each individual, that no determinate rule of conduct would ever result from it; and the total dissolution of society must be the immediate consequence. Fanatics may suppose, THAT DOMINION IS FOUNDED ON GRACE, and THAT SAINTS ALONE INHERIT THE EARTH; but the civil magistrate very justly puts these sublime theorists on the same footing with common robbers, and teaches them by the severest discipline, that a rule, which, in speculation, may seem the most advantageous to society, may yet be found, in practice, totally pernicious and destructive.
That there were RELIGIOUS fanatics of this kind in England, during the civil wars, we learn from history; though it is probable, that the obvious TENDENCY of these principles excited such horror in mankind, as soon obliged the dangerous enthusiasts to renounce, or at least conceal their tenets. Perhaps the LEVELLERS, who claimed an equal distribution of property, were a kind of POLITICAL fanatics, which arose from the religious species, and more openly avowed their pretensions; as carrying a more plausible appearance, of being practicable in themselves, as well as useful to human society. It must, indeed, be confessed, that nature is so liberal to mankind, that, were all her presents equally divided among the species, and improved by art and industry, every individual would enjoy all the necessaries, and even most of the comforts of life; nor would ever be liable to any ills but such as might accidentally arise from the sickly frame and constitution of his body. It must also be confessed, that, wherever we depart from this equality, we rob the poor of more satisfaction than we add to the rich, and that the slight gratification of a frivolous vanity, in one individual, frequently costs more than bread to many families, and even provinces. It may appear withal, that the rule of equality, as it would be highly USEFUL, is not altogether IMPRACTICABLE; but has taken place, at least in an imperfect degree, in some republics; particularly that of Sparta; where it was attended, it is said, with the most beneficial consequences. Not to mention that the Agrarian laws, so frequently claimed in Rome, and carried into execution in many Greek cities, proceeded, all of them, from a general idea of the utility of this principle.
But historians, and even common sense, may inform us, that, however specious these ideas of PERFECT equality may seem, they are really, at bottom, IMPRACTICABLE; and were they not so, would be extremely PERNICIOUS to human society. Render possessions ever so equal, men's different degrees of art, care, and industry will immediately break that equality. Or if you check these virtues, you reduce society to the most extreme indigence; and instead of preventing want and beggary in a few, render it unavoidable to the whole community. The most rigorous inquisition too is requisite to watch every inequality on its first appearance; and the most severe jurisdiction, to punish and redress it. But besides, that so much authority must soon degenerate into tyranny, and be exerted with great partialities; who can possibly be possessed of it, in such a situation as is here supposed? Perfect equality of possessions, destroying all subordination, weakens extremely the authority of magistracy, and must reduce all power nearly to a level, as well as property.
We may conclude, therefore, that, in order to establish laws for the regulation of property, we must be acquainted with the nature and situation of man; must reject appearances, which may be false, though specious; and must search for those rules, which are, on the whole, most USEFUL and BENEFICIAL. Vulgar sense and slight experience are sufficient for this purpose; where men give not way to too selfish avidity, or too extensive enthusiasm.
Who sees not, for instance, that whatever is produced or improved by a man's art or industry ought, for ever, to be secured to him, in order to give encouragement to such USEFUL habits and accomplishments? That the property ought also to descend to children and relations, for the same USEFUL purpose? That it may be alienated by consent, in order to beget that commerce and intercourse, which is so BENEFICIAL to human society? And that all contracts and promises ought carefully to be fulfilled, in order to secure mutual trust and confidence, by which the general INTEREST of mankind is so much promoted?
Examine the writers on the laws of nature; and you will always find, that, whatever principles they set out with, they are sure to terminate here at last, and to assign, as the ultimate reason for every rule which they establish, the convenience and necessities of mankind. A concession thus extorted, in opposition to systems, has more authority than if it had been made in prosecution of them.
What other reason, indeed, could writers ever give, why this must be MINE and that YOURS; since uninstructed nature surely never made any such distinction? The objects which receive those appellations are, of themselves, foreign to us; they are totally disjoined and separated from us; and nothing but the general interests of society can form the connexion.
Sometimes the interests of society may require a rule of justice in a particular case; but may not determine any particular rule, among several, which are all equally beneficial. In that case, the slightest analogies are laid hold of, in order to prevent that indifference and ambiguity, which would be the source of perpetual dissension. Thus possession alone, and first possession, is supposed to convey property, where no body else has any preceding claim and pretension. Many of the reasonings of lawyers are of this analogical nature, and depend on very slight connexions of the imagination.
Does any one scruple, in extraordinary cases, to violate all regard to the private property of individuals, and sacrifice to public interest a distinction which had been established for the sake of that interest? The safety of the people is the supreme law: All other particular laws are subordinate to it, and dependent on it: And if, in the COMMON course of things, they be followed and regarded; it is only because the public safety and interest COMMONLY demand so equal and impartial an administration.
Sometimes both UTILITY and ANALOGY fail, and leave the laws of justice in total uncertainty. Thus, it is highly requisite, that prescription or long possession should convey property; but what number of days or months or years should be sufficient for that purpose, it is impossible for reason alone to determine. CIVIL LAWS here supply the place of the natural CODE, and assign different terms for prescription, according to the different UTILITIES, proposed by the legislator. Bills of exchange and promissory notes, by the laws of most countries, prescribe sooner than bonds, and mortgages, and contracts of a more formal nature.
In general we may observe that all questions of property are subordinate to the authority of civil laws, which extend, restrain, modify, and alter the rules of natural justice, according to the particular CONVENIENCE of each community. The laws have, or ought to have, a constant reference to the constitution of government, the manners, the climate, the religion, the commerce, the situation of each society. A late author of genius, as well as learning, has prosecuted this subject at large, and has established, from these principles, a system of political knowledge, which abounds in ingenious and brilliant thoughts, and is not wanting in solidity.
[Footnote: The author of L'ESPRIT DES LOIX, This illustrious writer, however, sets out with a different theory, and supposes all right to be founded on certain RAPPORTS or relations; which is a system, that, in my opinion, never will be reconciled with true philosophy. Father Malebranche, as far as I can learn, was the first that started this abstract theory of morals, which was afterwards adopted by Cudworth, Clarke, and others; and as it excludes all sentiment, and pretends to found everything on reason, it has not wanted followers in this philosophic age. See Section I, Appendix I. With regard to justice, the virtue here treated of, the inference against this theory seems short and conclusive. Property is allowed to be dependent on civil laws; civil laws are allowed to have no other object, but the interest of society: This therefore must be allowed to be the sole foundation of property and justice. Not to mention, that our obligation itself to obey the magistrate and his laws is founded on nothing but the interests of society.