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.
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