Sec 3: Property Rules

SEC. 3: THE RULES WHICH DETERMINE PROPERTY

• The establishment of the rule on the stability of possession is useful and absolutely necessary to human society.
  • But it can never serve to any purpose while it remains in such general terms.
• Some method must be shown how to distinguish what goods are to be assigned to each person, while the rest of mankind are excluded from them.
  • We must then discover why this general rule is modified to the common use and practice of the world.

• Those reasons are not derived from any utility or advantage which the person or the public may reap from his enjoyment of those goods, beyond what would result from their possession by any other person.
• It would be better if everyone had what is most suitable to him and proper for his use.
  • Though this relation of fitness may be common to several at once, it is liable to so many controversies.
  • Men are so partial and passionate in judging of these controversies, that such a loose and uncertain rule would be absolutely incompatible with the peace of human society.
• The convention on the stability of possession is entered into, in order to cut off all occasions of discord and contention.
  • This end would never be attained if we were allowed to apply this rule differently in every case, according to every particular utility in such an application.
• Justice, in her decisions, never regards the fitness or unfitness of objects to particular persons.
  • She conducts herself by more extensive views.
• Whether a man is generous or a miser, he is equally well received by her.
  • He obtains with the same facility a decision in his favours, even for what is entirely useless to him.

• It follows that the general rule, that possession must be stable, is not applied by particular judgements, but by other general rules, which must:
  • extend to the whole society
  • be inflexible by spite or favour.
• To illustrate this, I consider men in their savage and solitary condition.
  • I suppose that:
    • being sensible of their misery and foreseeing the advantages of society, they seek each other’s company and offer mutual protection and assistance.
    • they have sagacity to perceive that the chief impediment to this partnership and society lies in the avidity and selfishness of their natural temper.
      • To remedy this, they enter into a convention for:
        • the stability of possession
        • mutual restraint and forbearance.
• I am sensible that this method of proceeding is unnatural.
  • I only suppose them to be formed at once.
  • In fact, they arise insensibly and by degrees.
• It is very possible that persons who are separated from their original societies, may be obliged to form a new society among themselves.
  • In such a case, they are entirely in the situation above-mentioned.

• Their first difficulty, in this situation after the establishment of society and constancy of possession, is how to:
  • separate their possessions
  • assign to each his particular portion which he must for the future inalterably enjoy.
• This difficulty will not detain them long.
  • It must immediately occur to them as the most natural expedient, that:
    • everyone continue to enjoy what he is at present master of
    • property or constant possession be conjoined to the immediate possession.
• Such is the effect of custom, that it:
  • reconciles us to anything we have long enjoyed
  • even gives us an affection for it
  • makes us prefer it to other objects more valuable but less known to us.
• We are always most unwilling to part with what has:
  • long lain under our eye
  • often been employed to our advantage.
• We can easily live without possessions which we:
  • have never enjoyed
  • are not accustomed to.
• Men would easily acquiesce in everyone continuing to enjoy what they presently have.
  • This is why they would so naturally agree in preferring it.

Footnote 15

• [No questions in philosophy are more difficult, than when a number of causes present themselves for the same phenomenon to determine which is the principal and predominant.
• There seldom is any very precise argument to fix our choice.
• Men must be contented to be guided by a kind of taste or fancy arising from analogy, and a comparison of familiar instances.
• Thus, there are motives of public interest for most of the rules which determine property.
• But still I suspect, that these rules are principally fixed by the imagination or the more frivolous properties of our thought and conception.
• I shall continue to explain these causes, leaving it to the reader to prefer those derived from public utility or those derived from the imagination.
• We shall begin with the right of the present possessor.
• When two objects appear in a close relation to each other, the mind is apt to ascribe to them any additional relation to complete the union.
• This inclination is so strong, as often to make us run into errors (such as that of the conjunction of thought and matter) if we find that they can serve to that purpose.
• Many of our impressions are incapable of place or local position.
• Yet those very impressions we suppose to have a local conjunction with the impressions of sight and touch, merely because they are:
  • conjoined by causation
  • already united in the imagination.
• We can feign a new relation, even an absurd one, to complete any union.
  • Any relations which depend on the mind, will be readily conjoined to any preceding relation and be united, by a new bond, such objects that already have a union in the fancy.
• We never fail in our arrangement of bodies, to place those which are resembling in contiguity:
  • to each other, or
  • at least in correspondent points of view.
• Because we feel a satisfaction in joining the relation of contiguity to that of resemblance, or the resemblance of situation to that of qualities.
  • This is easily accounted for from the known properties of human nature.
• When the mind is determined to join certain objects, but undetermined in its choice of the particular objects, it naturally turns its eye to such as are related together.
  • They are already united in the mind:
  • They present themselves at the same time to the conception.
• Instead of requiring any new reason for their conjunction, it would require a very powerful reason to make us overlook this natural affinity.
  • We can explain this more when we come to treat of beauty.
• We observe that the same love of order and uniformity which arranges library books and parlour chairs contribute to:
  • the formation of society
  • the well-being of mankind.
    • They modify the general rule on the stability of possession.
• Property forms a relation between a person and an object.
  • It is natural to found it on some preceding relation.
• Property is nothing but a constant possession secured by the laws of society.
  • It is natural to add it to the present possession, which is a relation that resembles it.
  • For this also has its influence.
• If it is natural to conjoin all sorts of relations, it is more natural to conjoin such relations that are resembling and related together.]

• The rule of the assignment of property to the present possessor is natural and useful.
  • But its utility does not extend beyond the first formation of society.
• Nothing would be more pernicious than its constant observance, by which:
  • restitution would be excluded
  • 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.
  • Four circumstances are most considerable:
    • Occupation
    • Prescription
    • Accession
    • Succession.
• We shall briefly examine each of these, beginning with Occupation.

• The possession of all external goods is changeable and uncertain.
  • This is one of the most considerable impediments to the establishment of society.
  • It is why people restrain themselves by the rules of justice and equity by universal agreement, express or tacite.
• The misery of the condition preceding this restraint, is why we submit to that remedy as quickly as possible.
  • This easily explains why we annex the idea of property to the first possession or occupation.
• Men are unwilling to
  • leave property in suspense even for the shortest time, or
  • open the smallest door to violence and disorder.
• The first possession always engages the attention most.
  • If we neglected it, there would be no colour of reason for assigning property to any succeeding possession.

Footnote 16:

• Some philosophers account for the right of occupation, by saying, that:
  • everyone has a property in his own labour
  • when he joins that labour to anything, it gives him the property of the whole.
• But:
  1. There are several kinds of occupation where we cannot join our labour to the object we acquire
     • As in a meadow where we graze our cattle on.
  2. This accounts for the matter by means of accession, which is taking a needless circuit.
  3. We can only join our labour to anything in a figurative sense.
     • We only alter it by our labour.
     • This forms a relation between us and the object.
     • Thence arises the property according to the preceding principles.]

• We must exactly determine what possession means.
  • This is not easy as first imagined.
• We in possess anything when we:
  • immediately touch it
  • are so situated with respect to it, as to have it in our power to:
    • use it
    • move, alter, or destroy it according to our present pleasure or advantage.
• This relation is a species of cause and effect.
• Property is nothing but a stable possession derived from the rules of justice or the conventions of men.
  • It is the same species of relation.
• But the power of using any object becomes more or less certain according to the probability of the interruptions we meet with
  • As this probability may increase by insensible degrees, it is in many cases impossible to determine when possession begins or ends
  • There is no 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 is impossible for him to escape.
  • But what do we mean by impossible?
  • How do we separate this impossibility from an improbability?
  • How do we distinguish that exactly from a probability?
• Mark the precise limits of the one and the other and show the standard by which we decide all disputes that may arise on this subject.

Footnote 17:

• If we seek a solution of these difficulties in reason and public interest, we never shall find satisfaction;
• If we look for it in the imagination, the qualities which operate on that faculty, run so insensibly and gradually into each other.
  • It is impossible to give them any precise bounds or termination.
• The difficulties on this head must increase when we consider, that our judgement alters very sensibly, according to the subject,
  • and that the same power and proximity will be deemed possession in one case, which is not esteemed such in another.
• A person who has exhausted himself in hunting a hare, would see it as an injustice for another person to rush in and seize his prey.
  • But the same person who advances to pluck an apple hanging within his reach, has no reason to complain if another person more alert, passes him and takes possession.
• The difference is that immobility not natural to the hare, but the effect of industry, forms in that case a strong relation with the hunter, which is wanting in the other?
• Here a certain and infallible power of enjoyment, without touch or some other sensible relation, often produces not property.
  • A sensible relation, without any present power, is sometimes sufficient to give a title to any object.
• The sight of a thing is seldom a considerable relation.
  • It is only regarded as such, when the object is hidden, or very obscure.
  • In such a case, we find that the view alone conveys a property according to that maxim, that even a whole continent belongs to the nation, which first discovered it.
• It is however remarkable that in the case of discovery and possession, the first discoverer and possessor must join to the relation an intention of rendering himself proprietor.
  • Otherwise the relation will not have its effect;
  • and that because the connexion in our fancy between the property and the relation is not so great, but that it requires to be helped by such an intention.
• From all these circumstances, it is easy to see how perplexed many questions may become on the acquisition of property by occupation;
• and the least effort of thought may present us with instances, which are not susceptible of any reasonable decision.
• If we prefer real examples, we may consider the following one met by almost every writer on the laws of nature.
  • Two Greek colonies, leaving their native country, in search of new feats, were informed that a city near them was deserted by its inhabitants.
  • To know the truth of this report, they dispatched at once two messengers, one from each colony.
  • They find that their information was true.
  • They begin a race to take possession of the city for his countrymen.
  • One of these messengers, finding that he was not an equal match for the other, launched his spear at the gates of the city.
  • He was so fortunate enough to fix it there before the arrival of his companion.
  • This produced a dispute between the two colonies: Which of them was the proprietor of the empty city?
  • This dispute still subsists among philosophers.
• I find the dispute impossible to be decided because the whole question hangs on the fancy which, in this case, does not have any precise or determinate standard on which it can give sentence.
  • Let us consider, that if these two persons had been simply members of the colonies and not messengers or deputies.
  • Their actions would not have been of any consequence, since their relation to the colonies would have been feeble and imperfect.
  • Nothing determined them to run to the gates instead of the walls the city except that the gates are the most obvious and remarkable part.
    • It satisfies the fancy best in taking them for the whole.
    • We find this from poets who frequently draw the images and metaphors of cities from their gates.
  • We may also consider that the touch or contact of the one messenger is not possession, no more than the piercing the gates with a spear.
    • Those only form a relation.
    • There is a relation equally obvious in the other case, though not of equal force.
• Which of these relations, then, conveys a right and property, or whether any of them be sufficient for that effect, I leave to the decision of such as are wiser than myself.]

• But such disputes may arise concerning:
  • the real existence of property and possession
  • their extent
• These disputes are often susceptible of no decision, or can be decided by no other faculty than the imagination.
• A person who lands on a small deserted island is deemed its possessor from the very first moment.
  • He acquires the property of the whole because the object is:
    • bounded and circumscribed in the fancy
    • proportioned to the new possessor.
• The same person landing on a deserted 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.

• The title of first possession often becomes obscure through time.
  • It is impossible to determine many controversies from it.
  • In that case. long possession or prescription naturally takes place.
    • It gives a person a sufficient property in anything he enjoys.
• The nature of human society does not admit of any great accuracy.
  • We can not always remount to the first origin of things to determine their present condition.
• Any considerable span of time sets objects at such a distance, that they:
  • lose their reality
  • have as little influence on the mind, as if they never had existed.
• A man’s title, that is clear and certain at present, will seem obscure and doubtful 50 years hence.
  • Even though the facts, on which it is founded, can be proved with the greatest evidence and certainty.
• The same facts do not have the same influence after so long an interval of time.
  • 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 everything is produced in time, there is nothing real produced by time.
  • It follows, that property being produced by time, is not anything real in the objects.
  • It is the offspring of the sentiments, on which time alone has any influence.

Footnote 18:

• [Present possession is plainly a relation between a person and an object.
• But it is not sufficient to counter-balance the relation of first possession, unless the former is long and uninterrupted.
• In which case the relation is increased on the side of the present possession, by the extent of time, and reduced on that of first possession, by the distance.
• This change in the relation produces a consequent change in the property.]

• 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.

Footnote 19:

• This source of property can only be explained from the imagination.
  • The causes are unmixed in the imagination.
• The mind has a natural propensity to join relations, especially resembling ones.
  • It finds a kind of fitness and uniformity in such an union.
  • These laws of nature are derived from this propensity.
    • Property always follows the present possession on the first formation of society.
    • It afterwards arises from the first or long possession.
• Relation is not confined merely to one degree.
  • It is confined from an object that is related to us.
  • We acquire a relation to every other object related to it, and so on, until the thought loses the chain by too long a progress.
• No matter how the relation may weaken by each remove, it is not immediately destroyed.
  • It frequently connects two objects by means of an intermediate one related to both.
• This principle has such force that it:
  • gives rise to the right of accession
  • causes us to acquire the property of the objects:
    • that we have, and
    • that are closely connected with them.
• Suppose a German, a French, and a Spaniard come into a room with a bottle of Rhenish, Burgundy and Port on a table.
  • Suppose they should quarrel on their division, an umpire would naturally give each the product of his own country to show his impartiality.
  • This is from a principle which is the source of those laws of nature that ascribe property to occupation, prescription and accession.
• In all these cases, particularly that of accession, there is first a natural union between the idea of the person and that of the object.
  • 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 testing the method of reasoning used on the present subject.
• The imagination passes with greater facility from little to great, than from great to little.
  • The transition of ideas is always easier and smoother in the former than in the latter.
• The right of accession arises from the easy transition of ideas which connects related objects.
  • Thus the right of accession must increase in strength, in proportion as the transition of ideas is performed with greater facility.
• When we have acquired the property of any small object, we readily consider any great object related to it as
  • an accession.
  • as belonging to the proprietor of the small one
• Since in that case, the transition:
  • is very easy from the small object to the great one, and
  • should 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, Hebrides, Isle of Man, and  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.
    • In this 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 object,
    • than in the former case
      • from the proprietor to the great object, and
      • from the great one to the small.
• These phenomena are objections to the foregoing hypothesis: that the ascribing of property to accession is nothing but an affect of

• the relations of ideas, and

• 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 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 object to the other object related to it.
• The objects are here to be considered as the person’s property.
  • We are apt to join them together and place them in the same light.
• Suppose a great and a small object are related together.
  • If a person is strongly relate 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 is only related to the small object, he will not be strongly related to both.
    • Since his relation lies only with the most trivial part, which does not strike us as much.
• This is why small objects become accessions to great ones instead of the othwer way around.

• Philosophers and civilians think that the sea is incapable of becoming the property of any nation because it is impossible to:
  • take possession of it, or
  • form any 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 a union in the fancy and being at the same time inferior, they are of course regarded as an accession.
• By the laws of most nations and by the natural turn of our thought, the property of rivers is attributed to the proprietors of their banks, except for vast rivers as the Rhine or the Danube.
  • These are too large to the imagination to follow the property of the neighbouring fields as an accession.
  • Yet even these rivers are considered as the property of the nation through which they run.
• The idea of a nation is of a suitable bulk to correspond with them, and bear them such a relation in the fancy.

• Civilians say that the accessions made to lands bordering on rivers, follow the land if it is made by alluvion, that is, insensibly and imperceptibly.
  • These mightily assist the imagination in the conjunction.
• When any considerable portion is torn from one bank and joined to another, it does not become the property of that land:
  • until it unites with the land, and
  • until the trees or plants have spread their roots into both.
• Before that, the imagination does not sufficiently join them.

• There are other cases which resemble this of accession, but are different in the end.
  • An example is the conjunction of the properties of persons that cannot be separated.
• The question is, to whom the united mass must belong.

• When this conjunction allows division but not separation, the decision is natural and easy.
• The whole mass must be supposed to be common between the proprietors of the several parts.
  • It afterwards must be divided according to the proportions of these parts.
• But I cannot refrain from noticing a remarkable subtlety of the Roman law in distinguishing between confusion and mixture.
  • Confusion is a union of two bodies, such as different liquors, where the parts become entirely undistinguishable.
  • Mixture is the blending of two bodies, such as two bushels of corn, where the parts remain separate in an obvious and visible manner.
• In mixture, the imagination does not discover an entire a union as in confusion.
  • But it is able to trace and preserve a distinct idea of the property of each.
• Civil law established an entire community in the case of confusion and a proportional division
  • This is why in the case of mixture, civil law supposes each of the proprietors to maintain a distinct right, no matter how necessity may force them to submit to the same division.

• Inst. Lib. IL Tit. i. Sect 28:
• “In case your grain was mixed with Titius’ grain, if it was done voluntarily by both of you, it is common property, as if your single grains were combined with your joint consent.
• If the mixture was accidental, or if Titius mixed it without your consent, it is not common property, as the grains retain their original identity.
  • In this case, 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 corn is kept by either, this gives rise to a suit to determine the ownership of property, with respect to the amount of corn belonging to each.
• It is in the judge’s discretion to determine which is the corn belonging to either party.”

• Where the properties of two persons are united and cannot be separated, as when one builds a house on another’s ground, the whole must belong to one of the proprietors.
  • It naturally is conceived to belong to the proprietor of the most considerable part.
• The compound object may:
  • have a relation to two different persons
  • carry our view to both of them at once
• But the most considerable part principally engages our attention.
  • By the strict union, it draws the inferior part with it.
• This is why the whole:
  • bears a relation to the proprietor of that part, and
  • is regarded as his property.
• The only difficulty is what we shall call:
  • the most considerable part
  • the most attractive to the imagination.

• This quality depends on several different circumstances which have little connection with each other.
• One part of a compound object may become more considerable than another because:
  • it is more constant and durable
  • it is of greater value
  • it is more obvious and remarkable
  • it is of greater extent, or
  • its existence is more separate and independent.
• These circumstances may be conjoined and opposed:
  • in all the different ways .
  • according to all the different degrees imaginable
• There will result many cases, where the reasons on both sides are so equally balanced.
  • It would be impossible for us to give any satisfactory decision.
• This is the proper business of municipal laws: to fix what the principles of human nature have left undetermined.

• The civil law says:
  • the superficies yields to the soil
  • the writing yields to the paper
  • the canvas yields to the picture.
• These decisions:
  • do not agree well together
  • are a proof of the contrariety of those principles they are derived from.

Judgement on the End Result

• The most curious of all these kinds of questions is that which divided the disciples of Proculus and Sabinus for so many ages.
  • Suppose:
    • a person makes a cup from another person’s metal, or a ship from his wood.
    • the proprietor of the metal or wood demands his goods.
      • Does he acquire a title to the cup or ship?
• Sabinus said yes.
  • He asserted that the matter or substance is:
    • the foundation of all the qualities.
    • incorruptible and immortal.
    • therefore, superior to the form.
      • Form is casual and dependent.
• Proculus observed that the form is the most obvious and remarkable part.
  • From the form, bodies are denominated to be of this or that kind.
  • He could have added that the matter or substance is so fluctuating and uncertain in most bodies, that it is impossible to trace it in all its changes.
• I do not know from what principles such a controversy can be certainly determined.
  • I shall therefore be content with observing that the decision of Trebonian seems ingenious:
    • the cup belongs to the proprietor of the metal, because it can be brought back to its first form.
    • but the ship belongs to the shipbuilder or author of its form for a contrary reason.
  • No matter how ingenious this reason may seem, it plainly depends on the fancy.
    • Through the possibility of such a reduction, it finds a closer connection and relation:
      • between a cup and the proprietor of its metal, than
      • between 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 mankind’s general interest  which requires, that men’s possessions should pass to those dearest to them to render them more industrious and frugal.
• Perhaps these causes are seconded by the influence of relation or the association of ideas.
  • Relation naturally directs us 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 somebody.
  • But of whom is the question.
• The person’s 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.

Footnote 20:

• There are many reasons to convince us that the right of succession of government authority depends on the imagination.
• Suppose that a person dies without children.
  • A dispute arises among his relations concerning his inheritance.
  • If his riches are derived partly from his father, partly from his mother, the most natural way of determining such a dispute is to:
    • divide his possessions
    • assign each part to the family from whence it is derived.
• Now as the person is supposed to have been once the full and entire proprietor of those goods.
  • What 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 on his possessions; for which reason his consent can never be presumed precisely for such a partition.
  • Public interest is not concerned on the one side or the other.

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