It follows, therefore, that the general rule, that possession must be stable, is not applied by particular judgments, but by other general rules, which must extend to the whole society, and be inflexible either by spite or favour. To illustrate this, I propose the following instance. I first consider men in their savage and solitary condition; and suppose that, being sensible of the misery of that state, and foreseeing the advantages that would result from society, they seek each other's company, and make an offer of mutual protection and assistance. I also suppose that they are endowed with such sagacity as immediately to perceive that the chief impediment to this project of society and partnership lies in the avidity and selfishness of their natural temper; to remedy which, they enter into a convention which for the stability of possession, and for mutual restraint and forbearance. I am sensible that this method of proceeding is not altogether natural; but, besides that, I here only suppose those reflections to be formed at once, which, in fact, arise insensibly and by degrees; besides this, I say, 'tis very possible that several persons, being by different accidents separated from the societies to which they formerly belonged, may be obliged to form a new society among themselves; in which case they are entirely in the situation above-mentioned.
'Tis evident, then, that their first difficulty in this situation, after the general convention for the establishment of society, and for the constancy of possession, is, how to separate their possessions, and assign to each his particular portion, which he must for the future unalterably enjoy. This difficulty will not detain them long; but it must immediately occur to them, as the most natural expedient, that every one continue to enjoy what he is at present master of, and that property or constant possession be conjoined to the immediate possession. Such is the effect of custom, that it not only reconciles us to any thing we have long enjoyed, but even gives us an affection for it, and makes us prefer it to other objects, which may be more valuable, but are less known to us. What has long lain under our eye, and has often been employed to our advantage, that we are always the most unwilling to part with; but can easily live without possessions which we never have enjoyed, and are not accustomed to. 'Tis evident, therefore, that men would easily acquiesce in this expedient, that every one continue to enjoy what he is at present possessed of; and this is the reason why they would so naturally agree in preferring it.[1]
But we may observe, that, though the rule of the assignment of property to the present possessor be natural, and by that means useful, yet its utility extends not beyond the first formation of society; nor would any thing be more pernicious than the constant observance of it; by which restitution would be excluded, and every injustice would be authorized and rewarded. We must, therefore, seek for some other circumstance, that may give rise to property after society is once established; and of this kind I find four most considerable, viz. Occupation, Prescription, Accession, and Succession. We shall briefly examine each of these, beginning with occupation.
The possession of all external goods is changeable and uncertain; which is one of the most considerable impediments to the establishment of society, and is the reason why, by universal agreement, express or tacit, men restrain themselves by what we now call the rules of justice and equity. The misery of the condition which precedes this restraint, is the cause why we submit to that remedy as quickly as possible; and this affords us an easy reason why why annex the idea of property to the first possession, or to occupation. Men are unwilling to leave property in suspense, even for the shortest time, or open the least door to violence and disorder. To which we may add, that the first possession always engages the attention most; and did we neglect it, there would be no colour of reason for assigning property to any succeeding possession.[2]
There remains nothing but to determine exactly what is meant by possession; and this is not so easy as may at first sight be imagined. We are said to be in possession of any thing, not only when we immediately touch it, but also when we are so situated with respect to it, as to have it in our power to use it; and may move, alter, or destroy it, according to our present pleasure or advantage. This relation, then, is a species of cause and effect; and as property is nothing but a stable possession, derived from the rules of justice, or the conventions of men, 'tis to be considered as the same species of relation. But here we may observe, that, as the power of using any object becomes more or less certain, according as the interruptions we may meet with are more or less probable; and as this probability may increase by insensible degrees, 'tis in many cases impossible to determine when possession begins or ends; nor is there any certain standard by which we can decide such controversies. A wild boar that falls into our snares, is deemed to be in our possession if it be impossible for him to escape. But what do we mean by impossible? How do we separate this impossibility from an improbability? And how distinguish that exactly from a probability? Mark the precise limits of the one and the other, and show the standard, by which we may decide all disputes that may arise, and, as we find, by experience, frequently do arise upon this subject.[3]
But such disputes may not arise concerning the real existence of property and possession, but also concerning their extent; and these disputes are often susceptible of no decision, or can be decided by no other faculty than the imagination. A person who lands on the shore of a small island that is desart and uncultivated is deemed its possessor from the very first moment, and acquires the property of the whole; because the object is there bounded and circumscribed in the fancy, and at the same time is proportioned to the new possessor. The same person landing on a desart island as large as Great Britain, extends his property no farther than his immediate possession; though a numerous colony are esteemed the proprietors of the whole from the instant of their debarkment.
But if it often happens that the title of first possession becomes obscure through time, and that 'tis impossible to determine many controversies which may arise concerning it; in that case, long possession or prescription naturally takes place, and gives a person a sufficient property in any thing he enjoys. The nature of human society admits not of any great accuracy; nor can we always remount to the first origin of things, in order to determine their present condition. Any considerable space of time sets objects at such a distance that they seem in a manner to lose their reality, and have as little influence on the mind as if they never had been in being. A man's title that is clear and certain at present, will seem obscure and doubtful fifty years hence, even though the facts on which it is founded should be proved with the greatest evidence and certainty. The same facts have not the same influence after so long an interval of time. And this may be received as a convincing argument for our preceding doctrine with regard to property and justice. Possession during a long tract of time conveys a title to any object. But as 'tis certain that, however every thing be produced in time, there is nothing real that is produced by time, it follows, that property being produced by time, is not any thing real in the objects, but is the offspring of the sentiments, on which alone time is found to have any influence.[4]
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]