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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. If the ideas of justice, sometimes, do not follow
the dispositions of civil law; we shall find, that these
cases, instead of objections, are confirmations of the
theory delivered above. Where a civil law is so perverse as
to cross all the interests of society, it loses all its
authority, and men judge by the ideas of natural justice,
which are conformable to those interests. Sometimes also
civil laws, for useful purposes, require a ceremony or form
to any deed; and where that is wanting, their decrees run
contrary to the usual tenour of justice; but one who takes
advantage of such chicanes, is not commonly regarded as an
honest man. Thus, the interests of society require, that
contracts be fulfilled; and there is not a more material
article either of natural or civil justice: But the omission
of a trifling circumstance will often, by law, invalidate a
contract, in foro humano, but not in foro conscientiae, as
divines express themselves. In these cases, the magistrate
is supposed only to withdraw his power of enforcing the
right, not to have altered the right. Where his intention
extends to the right, and is conformable to the interests of
society; it never fails to alter the right; a clear proof of
the origin of justice and of property, as assigned above.]
WHAT IS A MAN'S PROPERTY? Anything 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, and a hundred other circumstances; some of which are constant and inflexible, some variable and arbitrary. But the ultimate point, in which they all professedly terminate, is the interest and happiness of human society. Where this enters not into consideration, nothing can appear more whimsical, unnatural, and even superstitious, than all or most of the laws of justice and of property.
