We acquire the property of objects by accession, when they are connected in an intimate manner with objects that are already our property, and at the same time are inferior to them. Thus the fruits of our garden, the offspring of our cattle, and the work of our slaves, are all of them esteemed our property, even before possession. Where objects are connected together in the imagination, they are apt to be put on the same footing, and are commonly supposed to be endowed with the same qualities. We readily pass from one to the other, and make no difference in our judgments concerning them; especially if the latter be inferior to the former.[[5]]
[5] This source of property can never be explained but from the imaginations; and one may affirm, that the causes are here unmixed. We shall proceed to explain them more particularly, and illustrate them by examples from common life and experience.
It has been observed above, that the mind has a natural propensity to join relations, especially resembling ones, and finds a hind of fitness and uniformity in such an union. From this propensity are derived these laws of nature, that upon the first formation of society, property always follows the present possession; and afterwards, that it arises from first or from long possession. Now we may easily observe, that relation is not confined merely to one degree; but that from an object, that is related to us, we acquire a relation to every other object, which is related to it, and so on, till the thought loses the chain by too long a progress, However the relation may weaken by each remove, it is not immediately destroyed; but frequently connects two objects by means of an intermediate one, which is related to both. And this principle is of such force as to give rise to the right of accession, and causes us to acquire the property not only of such objects as we are immediately possessed of; but also of such as are closely connected with them.
Suppose a German, a Frenchman, and a Spaniard to come into a room, where there are placed upon the table three bottles of wine, Rhenish, Burgundy and Port; and suppose they shoued fall a quarrelling about the division of them; a person, who was chosen for umpire would naturally, to shew his impartiality, give every one the product of his own country: And this from a principle, which, in some measure, is the source of those laws of nature, that ascribe property to occupation, prescription and accession.
In all these Cases, and particularly that of accession, there is first a natural union betwixt the idea of the person and that of the object, and afterwards a new and moral union produced by that right or property, which we ascribe to the person. But here there occurs a difficulty, which merits our attention, and may afford us an opportunity of putting to tryal that singular method of reasoning, which has been employed on the present subject. I have already observed that the imagination passes with greater facility from little to great, than from great to littie, and that the transition of ideas is always easier and smoother in the former case than in the latter. Now as the right of accession arises from the easy transition of ideas, by which related objects are connected together, it shoued naturally be imagined, that the right of accession must encrease in strength, in proportion as the transition of ideas is performed with greater facility. It may, therefore, be thought, that when we have acquired the property of any small object, we shall readily consider any great object related to it as an accession, and as belonging to the proprietor of the small one; since the transition is in that case very easy from the small object to the great one, and shoued connect them together in the closest manner. But In fact the case is always found to be otherwise, The empire of Great Britain seems to draw along with it the dominion of the Orkneys, the Hebrides, the isle of Man, and the Isle of Wight; but the authority over those lesser islands does not naturally imply any title to Great Britain. In short, a small object naturally follows a great one as its accession; but a great one Is never supposed to belong to the proprietor of a small one related to it, merely on account of that property and relation. Yet in this latter case the transition of ideas is smoother from the proprietor to the small object, which is his property, and from the small object to the great one, than in the former case from the proprietor to the great object, and from the great one to the small. It may therefore be thought, that these phaenomena are objections to the foregoing hypothesis, THAT THE ASCRIBING OF PROPERTY TO ACCESSION IS NOTHING BUT AN AFFECT OF THE RELATIONS OF IDEAS, AND OF THE SMOOTH TRANSITION OF THE IMAGINATION.
It will be easy to solve this objection, if we consider the agility and unsteadiness of the imagination, with the different views, in which it is continually placing its objects. When we attribute to a person a property in two objects, we do not always pass from the person to one object, and from that to the other related to it. The objects being here to be considered as the property of the person, we are apt to join them together, and place them in the same light. Suppose, therefore, a great and a small object to be related together; if a person be strongly related to the great object, he will likewise be strongly related to both the objects, considered together, because he Is related to the most considerable part. On the contrary, if he be only related to the small object, he will not be strongly related to both, considered together, since his relation lies only with the most trivial part, which is not apt to strike us in any great degree, when we consider the whole. And this Is the reason, why small objects become accessions to great ones, and not great to small.
It is the general opinion of philosophers and civilians, that the sea is incapable of becoming the property of any nation; and that because it is impossible to take possession of it, or form any such distinct relation with it, as may be the foundation of property. Where this reason ceases, property immediately takes place. Thus the most strenuous advocates for the liberty of the seas universally allow, that friths and hays naturally belong as an accession to the proprietors of the surrounding continent. These have properly no more bond or union with the land, than the pacific ocean would have; but having an union in the fancy, and being at the same time inferior, they are of course regarded as an accession.
The property of rivers, by the laws of most nations, and by the natural turn of our thought, Is attributed to the proprietors of their banks, excepting such vast rivers as the Rhine or the Danube, which seem too large to the imagination to follow as an accession the property of the neighbouring fields. Yet even these rivers are considered as the property of that nation, thro' whose dominions they run; the idea of a nation being of a suitable bulk to correspond with them, and bear them such a relation in the fancy.
The accessions, which are made to lands bordering upon rivers, follow the land, say the civilians, provided it be made by what they call alluvion, that is, Insensibly and Imperceptibly; which are circumstances that mightily assist the imagination in the conjunction. Where there Is any considerable portion torn at once from one bank, and joined to another, it becomes not his property, whose land it falls on, till it unite with the land, and till the trees or plants have spread their roots into both. Before that, the imagination does not sufficiently join them.
There are other cases, which somewhat resemble this of accession, but which, at the bottom, are considerably different, and merit our attention. Of this kind Is the conjunction of the properties of different persons, after such a manner as not to admit of separation. The question is, to whom the united mass must belong.
Where this conjunction is of such a nature as to admit of division, but not of separation, the decision is natural and easy. The whole mass must be supposed to be common betwixt the proprietors of the several parts, and afterwards must be divided according to the proportions of these parts. But here I cannot forbear taking notice of a remarkable subtilty of the Roman law, in distinguishing betwixt confusion and commixtion. Confusion is an union of two bodies, such as different liquors, where the parts become entirely undistinguishable. Commixtion is the blending of two bodies, such as two bushels of corn, where the parts remain separate in an obvious and visible manner. As in the latter case the imagination discovers not so entire an union as in the former, but is able to trace and preserve a distinct idea of the property of each; this is the reason, why the civil law, tho' it established an entire community in the case of confusion, and after that a proportional division, yet in the case of commixtion, supposes each of the proprietors to maintain a distinct right; however necessity may at last force them to submit to the same division.
QUOD SI FRUMENTUM TITII FRUMENTO TUO MISTUM FUERIT: SIQUIDEM EX VOLUNTATE VESTRA, COMMUNE EST: QUIA SINGULA CORPORA, ID EST, SINGULA GRANA, QUAE CUJUSQUE PRO PRIA FUERUNT, EX CONSENSU VESTRO COMMUNICATA SUNT. QUOD SI CASU ID MISTUM FUERIT, VEL TITIUS ID MISCUERIT SINE TUA VOLUNT ATE, NON VIDETUR ID COMMUNE ESSE; QUIA SINGULA CORPORA IN SUA SUBSTANTIA DURANT. SED NEC MAGIS ISTIS CASIBUS COMMUNE SIT FRUMENTUM QUAM GREX INTELLIGITUR ESSE CORN MUNIS, SI PECORA TITII TUIS PECORIBUS MISTA FUERINT. SED SI AB ALTERUTRO VESTRUM TOTUM ID FRUMENTUM RETINEATUR, IN REM QUIDEM ACTIO PRO MODO FRUMENTI CUJUSQUE CORN PETIT. ARBITRIO AUTEM JUDICIS, UT IPSE AESTIMET QUALE CUJUSQUE FRUMENTUM FUERIT. Inst. Lib. IL Tit. i. Sect 28.
(In the case that your grain was mixed with that of Titius, if it was done voluntarily on the part of both of you, it is common property, inasmuch as the individual items, i.e., the single grains, which were the peculiar property of either of you, were combined with your joint consent. If, however, the mixture was accidental, or if Titius mixed it without your consent, it does not appear that it is common property, Inasmuch as the several components retain their original identity. Rather, in circumstances of this sort the grain does not become common property, any more than a herd of cattle is regarded as common property, If Titius beasts should have become mixed up with yours.
However, if all of the aforesaid corn is kept by either of you, this gives rise to a suit to determine the ownership of property, in respect of the amount of corn belonging to each. It is in the discretion of the judge to determine which is the corn belonging to either party.)
Where the properties of two persons are united after such a manner as neither to admit of division nor separation, as when one builds a house on another's ground, in that case, the whole must belong to one of the proprietors: And here I assert, that it naturally is conceived to belong to the proprietor of the most considerable part. For however the compound object may have a relation to two different persons, and carry our view at once to both of them, yet as the most considerable part principally engages our attention, and by the strict union draws the inferior along it; for this reason, the whole bears a relation to the proprietor of that part, and is regarded as his property. The only difficulty is, what we shall be pleased to call the most considerable part, and most attractive to the imagination.
This quality depends on several different circumstances, which have little connexion with each other. One part of a compound object may become more considerable than another, either because it is more constant and durable; because it is of greater value; because it is more obvious and remarkable; because it is of greater extent; or because its existence is more separate and independent. It will be easy to conceive, that, as these circumstances may be conjoined and opposed in all the different ways, and according to all the different degrees, which can be imagined, there will result many cases, where the reasons on both sides are so equally balanced, that it is impossible for us to give any satisfactory decision. Here then is the proper business of municipal laws, to fix what the principles of human nature have left undetermined.
The superficies yields to the soil, says the civil law: The writing to the paper: The canvas to the picture. These decisions do not well agree together, and are a proof of the contrariety of those principles, from which they are derived.
But of all the questions of this kind the most curious is that, which for so many ages divided the disciples of Proculus and Sabinus. Suppose a person shoued make a cup from the metal of another, or a ship from his wood, and suppose the proprietor of the metal or wood shoued demand his goods, the question is, whether he acquires a title to the cup or ship. Sabinus maintained the affirmative, and asserted that the substance or matter is the foundation of all the qualities; that it is incorruptible and immortal, and therefore superior to the form, which is casual and dependent. On the other hand, Proculus observed, that the form is the most obvious and remarkable part, and that from it bodies are denominated of this or that particular species. To which he might have added, that the matter or substance is in most bodies so fluctuating and uncertain, that it is utterly impossible to trace it in all its changes. For my part, I know not from what principles such a controversy can be certainly determined. I shall therefore content my self with observing, that the decision of Trebonian seems to me pretty ingenious; that the cup belongs to the proprietor of the metal, because it can be brought back to its first form: But that the ship belongs to the author of its form for a contrary reason. But however ingenious this reason may seem, it plainly depends upon the fancy, which by the possibility of such a reduction, finds a closer connexion and relation betwixt a cup and the proprietor of its metal, than betwixt a ship and the proprietor of its wood, where the substance is more fixed and unalterable.
The right of succession is a very natural one, from the presumed consent of the parent or near relation, and from the general interest of mankind, which requires, that men's possessions should pass to those, who are dearest to them, in order to render them more industrious and frugal. Perhaps these causes are seconded by the influence of relation, or the association of ideas, by which we are naturally directed to consider the son after the parent's decease, and ascribe to him a title to his father's possessions. Those goods must become the property of some body: But of whom is the question. Here it is evident the persons children naturally present themselves to the mind; and being already. connected to those possessions by means of their deceased parent, we are apt to connect them still farther by the relation of property. Of this there are many parallel instances.[[6]]
[6] In examining the different titles to authority in government, we shall meet with many reasons to convince us, that the right of succession depends, in a great measure on the imagination. Mean while I shall rest contented with observing one example, which belongs to the present subject. Suppose that a person die without children, and that a dispute arises among his relations concerning his inheritance; it is evident, that if his riches be deriv'd partly from his father, partly from his mother, the most natural way of determining such a dispute, is, to divide his possessions, and assign each part to the family, from whence it is deriv'd. Now as the person is suppos'd to have been once the full and entire proprietor of those goods; I ask, what is it makes us find a certain equity and natural reason in this partition, except it be the imagination? His affection to these families does not depend upon his possessions; for which reason his consent can never be presum'd precisely for such a partition. And as to the public interest, it seems not to be in the least concern'd on the one side or the other.
SECT. IV OF THE TRANSFERENCE OF PROPERTY BY CONSENT
However useful, or even necessary, the stability of possession may be to human society, it is attended with very considerable inconveniences. The relation of fitness or suitableness ought never to enter into consideration, in distributing the properties of mankind; but we must govern ourselves by rules, which are more general in their application, and more free from doubt and uncertainty. Of this kind is present possession upon the first establishment of society; and afterwards occupation, prescription, accession, and succession. As these depend very much on chance, they must frequently prove contradictory both to men's wants and desires; and persons and possessions must often be very ill adjusted. This is a grand inconvenience, which calls for a remedy. To apply one directly, and allow every man to seize by violence what he judges to be fit for him, would destroy society; and therefore the rules of justice seek some medium betwixt a rigid stability, and this changeable and uncertain adjustment. But there is no medium better than that obvious one, that possession and property should always be stable, except when the proprietor consents to bestow them on some other person. This rule can have no ill consequence, in occasioning wars and dissentions; since the proprietor's consent, who alone is concerned, is taken along in the alienation: And it may serve to many good purposes in adjusting property to persons. Different parts of the earth produce different commodities; and not only so, but different men both are by nature fitted for different employments, and attain to greater perfection in any one, when they confine themselves to it alone. All this requires a mutual exchange and commerce; for which reason the translation of property by consent is founded on a law of nature, as well as its stability without such a consent.
So far is determined by a plain utility and interest. But perhaps it is from more trivial reasons, that delivery, or a sensible transference of the object is commonly required by civil laws, and also by the laws of nature, according to most authors, as a requisite circumstance in the translation of property. The property of an object, when taken for something real, without any reference to morality, or the sentiments of the mind, is a quality perfectly insensible, and even inconceivable; nor can we form any distinct notion, either of its stability or translation. This imperfection of our ideas is less sensibly felt with regard to its stability, as it engages less our attention, and is easily past over by the mind, without any scrupulous examination. But as the translation of property from one person to another is a more remarkable event, the defect of our ideas becomes more sensible on that occasion, and obliges us to turn ourselves on every side in search of some remedy. Now as nothing more enlivens any idea than a present impression, and a relation betwixt that impression and the idea; it is natural for us to seek some false light from this quarter. In order to aid the imagination in conceiving the transference of property, we take the sensible object, and actually transfer its possession to the person, on whom we would bestow the property. The supposed resemblance of the actions, and the presence of this sensible delivery, deceive the mind, and make it fancy, that it conceives the mysterious transition of the property. And that this explication of the matter is just, appears hence, that men have invented a symbolical delivery, to satisfy the fancy, where the real one is impracticable. Thus the giving the keys of a granary is understood to be the delivery of the corn contained in it: The giving of stone and earth represents the delivery of a manor. This is a kind of superstitious practice in civil laws, and in the laws of nature, resembling the Roman catholic superstitions in religion. As the Roman catholics represent the inconceivable mysteries of the Christian religion, and render them more present to the mind, by a taper, or habit, or grimace, which is supposed to resemble them; so lawyers and moralists have run into like inventions for the same reason, and have endeavoured by those means to satisfy themselves concerning the transference of property by consent.
SECT. V OF THE OBLIGATION OF PROMISES
That the rule of morality, which enjoins the performance of promises, is not natural, will sufficiently appear from these two propositions, which I proceed to prove, viz, that a promise would not be intelligible, before human conventions had established it; and that even if it were intelligible, it would not be attended with any moral obligation.
I say, first, that a promise is not intelligible naturally, nor antecedent to human conventions; and that a man, unacquainted with society, could never enter into any engagements with another, even though they could perceive each other's thoughts by intuition. If promises be natural and intelligible, there must be some act of the mind attending these words, I promise; and on this act of the mind must the obligation depend. Let us, therefore, run over all the faculties of the soul, and see which of them is exerted in our promises.