HKB
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.