Page 31 of 34

     [Footnote: This theory concerning the origin of property, and
consequently of justice, is, in the main, the same with that hinted at
and adopted by Grotius, 'Hinc discimus, quae fuerit causa, ob quam a
primaeva communione rerum primo mobilium, deinde et immobilinm discessum
est: nimirum quod cum non contenti homines vesci sponte natis, antra
habitare, corpore aut nudo agere, aut corticibus arborum ferarumve
pellibus vestito, vitae genus exquisitius delegissent, industria opus
fuit, quam singuli rebus singulls adhiberent. Quo minus autem fructus
in commune conferrentur, primum obstitit locorum, in quae homines
discesserunt, distantia, deinde justitiae et amoris defectus, per quem
fiebat, ut nee in labore, nee in consumtione fructuum, quae debebat,
aequalitas servaretur. Simul discimus, quomodo res in proprietatem
iverint; non animi actu solo, neque enim scire alii poterant, quid alil
suum esse vellent, ut eo abstinerent, et idem velle plures poterant;
sed pacto quodam aut expresso, ut per divisionem, aut tacito, ut per
occupationem.' De jure belli et pacis. Lib. ii. cap. 2. sec. 2. art. 4
and 5.]

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.]