TH

SECTION

OF JUSTICE.

PART I.

III.

HAT JUSTICE is ufeful to fociety, and confequently that part of its merit, at least, must arife from that confideration, it would be a fuperfluous undertaking to prove. That public utility is the fole origin of justice, and that reflections on the beneficial confequences of this virtue are the fole foundation of its merit; this propofition, being more curious and important, will better deserve our examination and enquiry.

LET us fuppofe, that nature has bestowed on human race fuch profufe 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 of whatever his moft voracious appetites can want, or luxurious imagination wish or defire. His natural beauty, we fhall fuppofe, furpaffes all acquired ornaments : The perpetual clemency of the feafons renders ufelefs all cloaths or covering: The raw herbage affords him the moft delicious fare; the clear fountain, the richest beverage. No laborious occupation required: No tillage: No navigation. Mufic, poetry, and contemplation form his fole bufinefs: Converfation, mirth, and friendship his fole amufement.

It seems evident, that, in fuch a happy ftate, every other focial virtue would florifh, and receive a tenfold encreafe; but the cautious, jealous virtue of juftice would never once have been dreamt of. For what purpose make a partition of goods, where every one has already more than enough? Why give rife to property, where there cannot poffibly be any injury? Why call this object mine, when, upon the feizure of it by another, I need but ftretch out my hand to poffefs myself of what is equally valuable? Justice, in that cafe, being totally USELESS, would be an idle ceremonial, and could never poffibly have place among the catalogue of virtues.

WE fee even in the prefent neceffitous 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 fubdivifions of right and property. Water and air, tho' the most neceffary of all objects, are not challenged as the property of individuals; nor can any man commit injuftice by the moft lavish use and enjoyment of these bleffings. In fertile, extensive countries, with few inhabitants, land is regarded on the fame footing. And no topic is fo much infifted on by thofe, who defend the liberty of the feas, as the unexhausted use of them in navigation. Were the advantages, procured by navigation, as inexhaustible, thefe reafoners had never had any adverfaries to refute; nor had any claims been ever advanced of a separate, exclufive dominion over the ocean.

IT may happen in fome countries, at fome periods, that there be established a property in water, none in land *; if the latter be in greater abundance than can

GENESIS, chap. xiii. and xxi.

.be

be used by the inhabitants, and the former be found, with difficulty, and in very fmall quantities.

AGAIN; fuppofe, that, tho' the neceffities of human race continue the fame. as at prefent, yet the mind is fo enlarged, and fo replete with friendship and generofity, that every man has the utmost tenderness for every man, and feels no more concern for his own intereft than for that of his fellows: It feems evident, that the USE of juftice would, in this cafe, be fufpended by fuch an extenfive benevolence, nor would the divifions and barriers of property and obligation have ever been thought of. Why fhould I bind another, by a deed or promife, to do me any good-office, when I know he is already prompted, by the ftrongest inclination, to feek my happiness, and would, of himself, perform the defired service; except the hurt, he thereby receives, be greater than the benefit accruing to me? In which cafe, he knows, that from my innate humanity and friendship, I should be the first to oppofe myself to his imprudent generofity. Why raife land-marks between my neighbor's field and mine, when my heart has made no divifion between our interefts; but fhares all his joys and forrows with equal force and vivacity as if originally my own? Every man, upon this fuppofition, being a fecondfelf to another, would truft all his interefts to the difcretion of every man; without jealoufy, without partition, without diftinction. And the whole race of mankind 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 neceffities of each individual, as if our own interefts were most intimately concerned.

In the prefent difpofition of the human heart, it would, perhaps, be difficult to find compleat inftances of fuch enlarged affections; but ftill we may obferve, that the case of families approaches towards it; and the ftronger the mutual benevolence is among the individuals, the nearer it approaches; 'till all diftinction of property be, in a great meafure, loft and confounded among them. Between married perfons, the cement of friendship is by the laws fuppofed fo ftrong as to abolish all divifion of poffeffions; and has often, in reality, the force afcribed to it. And 'tis obfervable, that, during the ardor of new enthusiasms, where 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 difguifed felfishness of men, could make the imprudent fanatics adopt a-new the ideas of juftice and of feparate property. So true is it, that that virtue derives its existence entirely from its neceffary ufe to the intercourfe and social state

of mankind.

To make this truth more evident, let us reverfe the foregoing fuppofitions; and carrying every thing to the oppofite extreme, confider what would be the effect of thofe new fituations. Suppofe a fociety to fall into fuch want of all common neceffaries, that the utmost frugality and induftry cannot preferve the greatest. number from perifhing, and the whole from extreme fufferance: It will readily, I believe, be admitted, that the ftrict laws of juftice are fufpended, in fuch a preffing emergence, and give place to the stronger motives of neceffity and felf-prefervation. Is it any crime, after a fhipwreck, to feize whatever means or inftrument, of fafety one can lay hold of, without regard to former limitations of property? Or if a city befieged were perishing with hunger; can we imagine, that men will

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fee any means of prefervation before them, and lofe their lives, from a fcrupulous regard to what, in other fituations, would be the rules of equity and juftice? The USE and TENDENCY of that virtue is to procure happiness and fecurity, by preferving order in fociety: But where the fociety is ready to perifh from extreme neceffity, no greater evil can be dreaded from violence and injuftice; and every man may now provide for himself, by all the means, which prudence can dictate, or humanity permit. The public, even in lefs urgent neceffities, opens granaries, without the confent of proprietors; as juftly fuppofing, that the authority of mag ftracy may, confiftent with equity, extend fo far: But were any number of men to affemble, without the tye of laws or civil jurifdiction; would an equal partition of bread in a famine, even without the proprietor's confent, be regarded as criminal or injurious?

SUPPOSE likewife, that it fhould be a virtuous man's fate to fall into the fociety of ruffians, remote from the protection of laws and government; what conduct muft he embrace in that melancholy fituation? He fees fuch a defperate rapaciousness prevail; fuch a difregard to equity, fuch contempt of order, fuch stupid blindness to future confequences, as muft immediately have the most tragical conclufion, and muft terminate in deftruction to the greater number, and in a total diffolution of fociety to the reft, He, mean while, can have no other expedient, than to arm himself, to whomever the fword he feizes, or the buckler may belong: Make provision of all means of defence and fecurity: And his particular regard to justice being no longer of USE to his own fafety or that of others, he must confult alone the dictates of felf-prefervation, without concern for those who no longer merit his care and attention.

WHEN any man, even in political fociety, renders himself, by his crimes, obnoxious to the public, he is punished by the laws in his goods and perfon; that is, the ordinary rules of juftice are, with regard to him, fufpended for a moment, and it becomes equitable to inflict on him, for the benefit of fociety, what, otherwife, he could not fuffer without wrong or injury.

THE rage and violence of public war; what is it but a fufpenfion of juftice among. the warring parties, who perceive, that that virtue is now no longer of any use or advantage to them? The laws of war, which then fucceed to thofe of equity and juftice, are rules calculated for the advantage and utility of that particular ftate, in which men are now placed. And were a civilized nation engaged with barbarians, who obferved no rules even of war; the former muft alfo fufpend their obfervance of them, where they no longer ferve to any purpofe; and muft render every action or rencounter as bloody and pernicious as poffible to the first aggreffors.

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 exiftence to that UTILITY, which refults to the public from their ftrict and regular obfervance. Reverse, in any confiderable circumftance, the condition of men: Produce extreme abundance or extreme neceffity: Implant in the human breaft perfect moderation and humanity, or perfect rapacioufness and malice: By rendering justice totally ufelefs, you thereby totally deftroy its effence, and fufpend its obligation, upon, mankind.

THE

We

THE Common fituation of fociety is a medium amidst all thefe extremes. are naturally partial to ourselves, and to our friends; but are capable of learning the advantage refulting from a more equitable conduct. Few enjoyments are given us from the open and liberal hand of nature, but by art, labor, and industry, we can extract them in great abundance. Hence the ideas of property become neceffary in all civil fociety: Hence juftice derives its usefulness to the public: And hence alone arifes its merit and moral obligation.

THESE Conclufions are fo natural and obvious, that they have not efcaped even the poets, in their defcriptions of the felicity, attending the golden age or the reign of SATURN. The feafons, in that firft period of nature, were fo temperate, if we credit these agreeable fictions, that there was no neceffity for men to provide them-. felves with cloaths and houfes, as a fecurity against the violence of heat and cold: The rivers flowed with wine and milk: The oaks yielded honey; and nature fpontaneously produced her greatest delicacies. Nor were thefe the chief advantages of that happy age. Tempefts were not alone removed from nature; but those more furious tempefts were unknown to human breasts, which now caufe fuch uproar, and engender fuch confufion. Avarice, ambition, cruelty, selfishness, were never heard of: Cordial affection, compaffion, fympathy, were the only movements, with which the mind was yet acquainted. Even the punctilious diftinction of mine and thine was banished from among that happy race of mortals, and carried with it the very notion of property and obligation, juftice and injustice.

THIS poetical fiction of the golden age is, in fome refpects, of a piece with the philofophical fiction of the state of nature; only that the former is reprefented as the moft charming and moft peaceable condition, which can poffibly be imagined; whereas the latter is painted out as a ftate of mutual war and violence, attended with the most extreme neceffity. On the firft origin of mankind, as we are told, their ignorance and favage nature were fo prevalent, that they could give no mutual trust, but muft each depend upon himself, and his own force or cunning for protection and fecurity. No law was heard of: No rule of juftice known: No diftinction of property regarded: Power was the only measure of right; and a perpetual war of all against all was the refult of men's untamed felfishness and barbarity".

h This fiction of a state of nature, as a state of war, was not firft ftarted by Mr. HOBBES, as is commonly imagined. PLATO endeavors to refute an hypothefis very like it in the 2d, 3d and 4th books de republica. CICERO, on the contrary, fuppofes it certain and universally acknowleged in the following paffage, which is the only authority I fhall cite for thefe reasonings: Not imitating in this the example of PUFFENDORF, nor even that of GROTIUS, who think a verse from OVID OF PLAUTUS or PETRONIUS a neceffary warrant for every moral truth; or the example of Mr. WOOL ASTON, who has conftant recourfe to HEBREW and ARABIC authors for the fame purpole. Quis enim veftrum, judices, ignorat,

་་

WHETHER

❝ita naturam rerum tuliffe, ut quodám tempore "homines, nondum neque naturali, neque civili "jure defcripto, fufi per agros, ac difperfi va

garentur, tantumque haberent quantum manu

ac viribus, per cædem ac vulnera, aut eripere, "aut retinere potuiffent? Qui igitur primi virtute " & confilio præftanti extiterunt, i perspecto ge"nere humanæ docilitatis atque ingenii, diffipa

tos, unum in locum congregarunt, eofque ex fe"ritate illa að justitiam ac manfuetudinem tranf"duxerunt. Tum res ad communem utilitatem, " quas publicas appellamus, tum conventicula "hominum, quæ poftea civitates nominatæ funt, tum domicilia conjuncta, quas urbes dicamus, "invento & divino & humano jure, mænibus fepGgg 2

"ferunt.

WHETHER fuch a condition of human nature could ever exift, or if it did, could continue fo long as to merit the appellation of a ftate, may juftly be. doubted. Men are neceffarily born in a family-fociety, at leaft; and are trained up by their parents to fome rule of conduct and behavior. But this must be admitted, that if fuch a ftate of mutual war and violence was ever real, the fufpenfion of all laws of juftice from their abfolute inutility, is a neceffary and infallible confequence.

THE more we vary our views of human life, and the newer and more unusual the lights are, in which we furvey it, the more fhall we be convinced, that the origin here affigned for the virtue of juftice is real and fatisfactory.

WERE there a fpecies of creatures, intermingled with men, which, tho' rational, were poffeft of fuch inferior ftrength, both of body and mind, that they were incapable of all refiftance, and could never, upon the highest provocation, make us feel the effects of their refentment; the neceffary confequence, I think, is, that we should be bound, by the laws of humanity, to give gentle ufage to these creatures, but should not, properly fpeaking, lie under any reftraint of justice with regard to them, nor could they poffefs any right or property, exclufive of fuch arbitrary lords. Our intercourfe with them could not be called fociety, which fuppofes a degree of equality; but abfolute command on the one fide, and fervile obedience on the other. Whatever we covet, they muft inftantly refign: Our permiffion is the only tenure, by which they hold their poffeffions: Our compaffion and kindness the only check, by which they curb our lawless will: And as no inconvenience ever refults from the exercife of a power, fo firmly established in nature, the restraints of juftice and property, being totally useless, would never have place in fo unequal a confederacy.

THIS is plainly the fituation of men, with regard to animals; and how far these may be faid to poffefs reafon, I leave it to others to determine. The great fupe. riority of civilized EUROPEANS above barbarous INDIANS, tempted us to imagine ourselves on the fame footing with regard to them, and made us throw off all reftraints of juftice, and even of humanity, in our treatment of them. In many nations, the female fex are reduced to like flavery, and are rendered incapable of all property, in oppofition to their lordly mafters. But tho' the males, when united, have, in all countries, bodily force fufficient to maintain this fevere tyranny; yet fuch are the infinuation, address, and charms of their fair companions, that they are commonly able to break the confederacy, and share with the other sex in all the rights and privileges of fociety.

WERE the human fpecies fo framed by nature as that each individual poffeft within himself every faculty, requifite both for his own prefervation and for the propagation of his kind: Were all fociety and intercourfe cut off between man and man, by the primary intention of the fupreme Creator: It feems evident, that fo folitary a being would be as much incapable of juftice, as of focial difcourfe and converfation. Where mutual regards and forbearance ferve no manner of purpofe, they would never direct the conduct of any reafonable man. The headlong