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But farther, though it seems a very simple proposition to say, that nature, by an instinctive sentiment, distinguishes property, yet in reality we shall find, that there are required for that purpose ten thousand different instincts, and these employed about objects of the greatest intricacy and nicest discernment. For when a definition of PROPERTY is required, that relation is found to resolve itself into any possession acquired by occupation, by industry, by prescription, by inheritance, by contract, &c. Can we think that nature, by an original instinct, instructs us in all these methods of acquisition?
These words too, inheritance and contract, stand for ideas infinitely complicated; and to define them exactly, a hundred volumes of laws, and a thousand volumes of commentators, have not been found sufficient. Does nature, whose instincts in men are all simple, embrace such complicated and artificial objects, and create a rational creature, without trusting anything to the operation of his reason?
But even though all this were admitted, it would not be satisfactory. Positive laws can certainly transfer property. It is by another original instinct, that we recognize the authority of kings and senates, and mark all the boundaries of their jurisdiction? Judges too, even though their sentence be erroneous and illegal, must be allowed, for the sake of peace and order, to have decisive authority, and ultimately to determine property. Have we original innate ideas of praetors and chancellors and juries? Who sees not, that all these institutions arise merely from the necessities of human society?
All birds of the same species in every age and country, built their nests alike: In this we see the force of instinct. Men, in different times and places, frame their houses differently: Here we perceive the influence of reason and custom. A like inference may be drawn from comparing the instinct of generation and the institution of property.
How great soever the variety of municipal laws, it must be confessed, that their chief outlines pretty regularly concur; because the purposes, to which they tend, are everywhere exactly similar. In like manner, all houses have a roof and walls, windows and chimneys; though diversified in their shape, figure, and materials. The purposes of the latter, directed to the conveniencies of human life, discover not more plainly their origin from reason and reflection, than do those of the former, which point all to a like end.
I need not mention the variations, which all the rules of property receive from the finer turns and connexions of the imagination, and from the subtilties and abstractions of law-topics and reasonings. There is no possibility of reconciling this observation to the notion of original instincts.
What alone will beget a doubt concerning the theory, on which I insist, is the influence of education and acquired habits, by which we are so accustomed to blame injustice, that we are not, in every instance, conscious of any immediate reflection on the pernicious consequences of it. The views the most familiar to us are apt, for that very reason, to escape us; and what we have very frequently performed from certain motives, we are apt likewise to continue mechanically, without recalling, on every occasion, the reflections, which first determined us. The convenience, or rather necessity, which leads to justice is so universal, and everywhere points so much to the same rules, that the habit takes place in all societies; and it is not without some scrutiny, that we are able to ascertain its true origin. The matter, however, is not so obscure, but that even in common life we have every moment recourse to the principle of public utility, and ask, WHAT MUST BECOME OF THE WORLD, IF SUCH PRACTICES PREVAIL? HOW COULD SOCIETY SUBSIST UNDER SUCH DISORDERS? Were the distinction or separation of possessions entirely useless, can any one conceive, that it ever should have obtained in society?
Thus we seem, upon the whole, to have attained a knowledge of the force of that principle here insisted on, and can determine what degree of esteem or moral approbation may result from reflections on public interest and utility. The necessity of justice to the support of society is the sole foundation of that virtue; and since no moral excellence is more highly esteemed, we may conclude that this circumstance of usefulness has, in general, the strongest energy, and most entire command over our sentiments. It must, therefore, be the source of a considerable part of the merit ascribed to humanity, benevolence, friendship, public spirit, and other social virtues of that stamp; as it is the sole source of the moral approbation paid to fidelity, justice, veracity, integrity, and those other estimable and useful qualities and principles. It is entirely agreeable to the rules of philosophy, and even of common reason; where any principle has been found to have a great force and energy in one instance, to ascribe to it a like energy in all similar instances. This indeed is Newton's chief rule of philosophizing [Footnote: Principia. Lib. iii.].
Had every man sufficient SAGACITY to perceive, at all times, the strong interest which binds him to the observance of justice and equity, and STRENGTH OF MIND sufficient to persevere in a steady adherence to a general and a distant interest, in opposition to the allurements of present pleasure and advantage; there had never, in that case, been any such thing as government or political society, but each man, following his natural liberty, had lived in entire peace and harmony with all others. What need of positive law where natural justice is, of itself, a sufficient restraint? Why create magistrates, where there never arises any disorder or iniquity? Why abridge our native freedom, when, in every instance, the utmost exertion of it is found innocent and beneficial? It is evident, that, if government were totally useless, it never could have place, and that the sole foundation of the duty of allegiance is the ADVANTAGE, which it procures to society, by preserving peace and order among mankind.
When a number of political societies are erected, and maintain a great intercourse together, a new set of rules are immediately discovered to be USEFUL in that particular situation; and accordingly take place under the title of Laws of Nations. Of this kind are, the sacredness of the person of ambassadors, abstaining from poisoned arms, quarter in war, with others of that kind, which are plainly calculated for the ADVANTAGE of states and kingdoms in their intercourse with each other.
The rules of justice, such as prevail among individuals, are not entirely suspended among political societies. All princes pretend a regard to the rights of other princes; and some, no doubt, without hypocrisy. Alliances and treaties are every day made between independent states, which would only be so much waste of parchment, if they were not found by experience to have SOME influence and authority. But here is the difference between kingdoms and individuals. Human nature cannot by any means subsist, without the association of individuals; and that association never could have place, were no regard paid to the laws of equity and justice. Disorder, confusion, the war of all against all, are the necessary consequences of such a licentious conduct. But nations can subsist without intercourse. They may even subsist, in some degree, under a general war. The observance of justice, though useful among them, is not guarded by so strong a necessity as among individuals; and the moral obligation holds proportion with the USEFULNESS. All politicians will allow, and most philosophers, that reasons of state may, in particular emergencies, dispense with the rules of justice, and invalidate any treaty or alliance, where the strict observance of it would be prejudicial, in a considerable degree, to either of the contracting parties. But nothing less than the most extreme necessity, it is confessed, can justify individuals in a breach of promise, or an invasion of the properties of others.
