Sec. 4-5: Property Transfer

SEC 4: THE TRANSFERENCE OF PROPERTY BY CONSENT

• The stability of possession has very big inconveniences, no matter how useful or necessary it is to human society.
  • The relation of suitableness should never enter the distribution of mankind’s properties.
• But we must govern ourselves by rules which are:
  • more general in their application
  • more free from doubt and uncertainty.
• Of this kind is present possession on:
  • the first establishment of society
  • the occupation, prescription, accession, and succession afterwards.

• These depend very much on chance.
  • They thus must be frequently contradictory to men’s wants and desires.
  • Persons and possessions must often be very ill adjusted.

• This is a grand inconvenience which calls for a remedy.
  • Society would be destroyed by:
    • applying one directly
    • allowing every man to seize by violence what he judges fit for him.
  • The rules of justice seek some medium between:
    • a rigid stability
    • this changeable and uncertain adjustment.
• The best medium is the obvious one: possession and property should always be stable except when the proprietor consents to bestow them on another person.
  • This rule cannot cause wars and dissentions, since the proprietor’s consent is taken.
  • It may serve many good purposes in adjusting property to persons.
• Different parts of the earth produce different commodities.
• Different men are by nature:
  • fitted for different employments
  • attain greater perfection in an employment they confine themselves to alone.
• All this requires a mutual exchange and commerce.
  • This is why:
    • the translation of property by consent is founded on a law of nature
    • the stability of property is founded 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 without any reference to morality or the mind’s sentiments, is a perfectly insensible and even inconceivable quality.
  • We cannot form any distinct notion of its stability or translation.
• This imperfection of our ideas is less sensibly felt with regard to its stability.
  • This is because it:
    • does not engage our attention
    • is easily past over by the mind without any scrupulous examination.
• But property transfer is a more remarkable event, the defect of our ideas becomes more sensible on that occasion.
  • The defect obliges us to look for some remedy.
• Nothing more enlivens any idea than a present impression and a relation between that impression and the idea.
  • It is natural for us to seek some false light from this quarter.
• To aid the imagination in conceiving the transference of property, we take the sensible object and actually transfer it to the person.
  • The supposed resemblance of the actions and the presence of this sensible delivery deceive the mind.
    • These make the mind fancy that it conceives the mysterious transition of the property.
• This explanation is just.
  • 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.
  • It resembles the Roman catholic superstitions in religion.
    • The Roman Catholics represent the inconceivable mysteries of the Christian religion and render them more present to the mind by a taper, habit, or grimace which is supposed to resemble them.
    • Lawyers and moralists have run into similar inventions for the same reason.
      • They have endeavoured to satisfy themselves on the transference of property by consent.

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SEC. 5: THE OBLIGATION OF PROMISES

• The rule of morality which enjoins the performance of promises is not natural.
  • This will appear from these two propositions:
    1. A promise would not be intelligible before human conventions had established it
    2. Even if a promise were intelligible, it would not be attended with any moral obligation.

• First, a promise is not intelligible naturally, nor antecedent to human conventions.
  • A man, unacquainted with society, could never enter into any engagements with another, even if they could perceive each other’s thoughts by intuition.
• If promises are natural and intelligible, there must be some act of the mind attending the words: “I promise”.
  • The obligation must depend on this act of the mind.
• Let us, therefore, run over all the faculties of the soul and see which of them is exerted in our promises.

• The act of the mind expressed by a promise, is not a resolution to perform anything.
  • For that alone never imposes any obligation.
  • It is not a desire of such a performance.
    • For we may bind ourselves without such a desire, or even with an aversion, declared and avowed.
• It is not the willing of that action which we promise.
  • For a promise always regards some future time.
  • The will has an influence only on present actions.
• The act of the mind which enters into a promise and produces its obligation is does not resolve, desire, nor is willing to do any particular performance.
  • It must necessarily be the willing of that obligation which arises from the promise.
• This is not only a conclusion of philosophy.
  • We commonly say that:
    • we are bound by our own consent
    • the obligation arises from our mere will and pleasure.
• Is it:
  • absurd to suppose this act of the mind?
  • an absurdity that no discerning man could fall into?

• All morality depends on our sentiments.
  • Any action or mental quality is virtuous when it pleases us in a certain manner.
  • We are obliged to perform it if its neglect or nonperformance displeases us.
• A change of the obligation supposes a change of the sentiment.
  • A creation of a new obligation supposes some new sentiment.
• We cannot naturally change our own sentiments, more than we can change the motions of the heavens.
  • We cannot render any action agreeable or disagreeable, moral or immoral, by a single act of our will, that is by a promise.
  • Without that act, the promise would:
    • have produced contrary impressions, or
    • have been endowed with different qualities.
• Therefore, it would be absurd to will any new obligation or any new sentiment of pain or pleasure.
  • It is impossible that men could naturally fall into so gross an absurdity.
• Therefore, a promise is naturally something altogether unintelligible.
  • There is no act of the mind belonging to it.

Footnote 21.

• If morality were discoverable by reason and not by sentiment, promises could not change morality.
• Morality is supposed to consist in relation.
  • Every new imposition of morality, therefore, must arise from some new relation of objects.
  • Consequently, the will could not immediately produce any change in morals.
  • The will could only have that effect by producing a change on the objects.
• But the moral obligation of a promise is the pure effect of the will, without a change in the universe.
  • It follows that promises have no natural obligation.
• If this act of the will is in effect a new object, producing new relations and new duties, I answer that this is a pure sophism.
  • This can be detected by accuracy and exactness.
  • To will a new obligation, is to will a new relation of objects.
  • If this new relation of objects were formed by the volition itself, we should in effect will the volition.
  • This is plainly absurd and impossible.
• Here, the will has no object to which it could tend.
  • It must return on itself infinitely.
• The new obligation depends on new relations.
  • The new relations depend on a new volition.
  • The new volition has a new obligation, and consequently new relations, and consequently a new volition.
  • This volition again has in view a new obligation, relation and volition, without any termination.
  • Therefore, it is impossible we could ever will a new obligation.
  • Consequently, it is impossible the will could ever accompany a promise, or produce a new obligation of morality.

• Secondly, if there was any act of the mind belonging to a promise, it could not naturally produce any obligation.
  • This appears evidently from the foregoing reasoning.
• A promise creates a new obligation.
  • A new obligation supposes new sentiments to arise.
• The will never creates new sentiments.
  • Therefore, no obligation could naturally arise from a promise, even if the mind could will that obligation, which is absurd.

• The same truth may be proved more by the reasoning that justice is generally an artificial virtue.
  • No action can be required to be our duty, unless human nature had some implanted actuating passion or motive, capable of producing the action.
  • This motive cannot be the sense of duty.
  • A sense of duty supposes an antecedent obligation.
  • When an action is not required by any natural passion, it cannot be required by any natural obligation.
    • Since it may be omitted without proving any defect in the mind or any vice.
• We have no motive leading us to the performance of promises, distinct from a sense of duty.
  • If we thought that promises had no moral obligation, we should never feel any inclination to observe them.
  • This is not the case with the natural virtues.
• Even if there was no obligation to relieve the miserable, our humanity would lead us to it.
  • If we omit that duty, the immorality of the omission arises from its being a proof, that we lack the natural sentiments of humanity.
• A father knows it to be his duty to take care of his children.
  • But he has also a natural inclination to it.
• If no human had that indination, no one could have any such obligation.
  • But there is naturally no inclination to observe promises, distinct from a sense of their obligation.
  • It follows that:
    • fidelity is not a natural virtue
    • promises have no force, antecedent to human conventions.

• If anyone dissents from this, he must give a regular proof of these two propositions, that:
  • there is a peculiar act of the mind, annexed to promises
  • consequent to this act of the mind, there arises an inclination to perform, distinct from a sense of duty.
• It is impossible to prove either of these two points.
  • I conclude that promises are human inventions.
  • They are founded on the necessities and interests of society.

Hume’s ‘Self-Interest’

• To discover these necessities and interests, we must consider the same qualities of human nature, which give rise to the laws of society.
• Men are naturally selfish or only have a confined generosity.
  • They are not easily induced to perform any action for the interest of strangers, except with a view to some reciprocal advantage.
    • They hope to obtain this advantage only by such a performance.
• These mutual performances cannot be finished at the same instant.
  • One party must be contented to:
    • remain in uncertainty
    • depend on the gratitude of the other for a return of kindness.
• But there is so much corruption among men that this becomes but a slender security.
  • The benefactor here is supposed to bestow his favours with a view to self-interest.
  • This takes off from the obligation and sets an example to selfishness, which is the true mother of ingratitude.
• If we follow the natural course of our passions and inclinations, we should perform but few actions for the advantage of others, from disinterested views.
  • Because we are naturally very limited in our kindness and affection.
  • We should perform as few of that kind, out of a regard to interest.
    • Because we cannot depend on their gratitude.
• The mutual commerce of good offices is lost among mankind.
  • Every one is reduced to his own skill and industry for his well-being and subsistence.
• The invention of the law of nature, concerning the stability of possession, has already rendered men tolerable to each other.
  • The transference of property by consent has begun to render them mutually advantageous.
  • But still these laws of nature are not sufficient to render them so serviceable to each other, as nature has fitted them to become.
• Though possession is stable, men may often reap but small advantage from it, while they:
  • have a greater quantity of goods than they need
  • and suffer by the want for others at the same time.
• The transference of property is the proper remedy for this inconvenience.
  • But it cannot remedy this entirely.
  • Because it can only take place with regard to objects that are present and individual, not to objects that are absent or general.
• One cannot transfer the property of a particular house, 20 leagues distant.
  • Because the consent cannot be attended with delivery.
• One cannot transfer the property of 10 bushels of corn, or five hogsheads of wine, by the mere expression and consent.
  • Because these:
    • are only general terms
    • have no direct relation to any particular heap of corn, or barrels of wine.
• Besides, the commerce of mankind is not confined to the barter of commodities.
  • It may extend to services and actions, which we may exchange to our mutual interest and advantage.
• Your corn is ripe today.
  • Mine will be ripe tomorrow.
• It is profitable for us both, that:
  • I should labour with you today
  • you should aid me tomorrow.
    • I have no kindness for you and know you have as little kindness for me.
    • Therefore, I will not take any pains on your account.
    • Should I labour with you on my own account expecting a return, I know that I should:
      • be disappointed
      • in vain depend on your gratitude.
    • Here then I leave you to labour alone.
    • You treat me in the same manner.
    • The seasons change.
    • Both of us lose our harvests for lack of mutual confidence and security.

• All this is the effect of the natural and inherent principles and passions of human nature.
• These passions and principles are inalterable.
  • Our conduct, which depends on them, must be so too.
  • It would be in vain for moralists or politicians to:
    • tamper with us, or
    • attempt to change our usual actions, with a view to public interest.
• If the success of their designs depend on their success in correcting the selfishness and ingratitude of men, they would never make any progress unless aided by omnipotence.
  • Omnipotence would alone be able to:
    • re-mould the human mind
    • change its character in such fundamental articles.
• All they can pretend to, is to:
  • give a new direction to those natural passions
  • teach us that we can better satisfy our appetites in an oblique and artificial manner, than by their headlong and impetuous motion.
• Hence I learn to do a service to another, without bearing him any real kindness.
  • Because I forsee that he will return my service:
    • in expectation of another of the same kind.
    • to maintain the same correspondence of good offices with me or with others.
  • After I have served him and he has gained the advantage from it, he is induced to perform his part, as foreseeing the consequences of his refusal.

• This self-interested commerce begins to take place and predominates in society.
  • It does not entirely abolish the more generous and noble intercourse of friendship and good offices.
• I may still do services to such persons as I love and know, without any prospect of advantage.
  • They may make me a return in the same way, with just the view of recompensing my past services.
• To distinguish the interested commerce from the disinterested one, the interested commerce is called a promise.
  • This is the sanction of the interested commerce of mankind.
  • When a man promises anything, he in effect expresses a resolution of performing it.
  • By using the word ‘promise’, he subjects himself to the penalty of never being trusted again in case of failure.
• Promises express a resolution, which is the natural act of the mind.
  • But if there were no more than a resolution, promises would:
    • only declare our former motives
    • not create any new motive or obligation.
• They are the conventions of men, which create a new motive.
  • Experience teaches us that human affairs would be more mutual advantageous if there were certain symbols instituted.
  • These symbols might give each other the security of our conduct in any particular incident.
  • After these signs are instituted, whoever uses them is immediately bound by his interest to execute his engagements.
    • He must never expect to be trusted anymore, if he refuses to perform what he promised.

• The knowledge, needed to make mankind sensible of this interest in the observance of promises, is not esteemed superior to the capacity of human nature, however savage and uncultivated.
  • Only a very little practice of the world is needed to make us perceive all these consequences and advantages.
• Every mortal discovers them from the shortest experience of society.
  • When each individual perceives the same sense of interest in all his fellows, he immediately performs his part of any contract to be assured that they will not be lacking in theirs.
• By concert, all of them:
  • enter into a scheme of actions, calculated for common benefit.
  • agree to be true to their word.
• Nothing is needed to form this concert or convention, but that everyone:
  • have a sense of interest in the faithful fulfilling of engagements
  • express that sense to other members of the society.
• This immediately causes that interest to operate on them.
  • Interest is the first obligation to the performance of promises.

• Afterwards a sentiment of morals concurs with interest, and becomes a new obligation on mankind.
  • This sentiment of morality in the performance of promises, arises from the same principles as the sentiment in the abstinence from the property of others.
• Public interest, education, and the artifices of politicians, have the same effect in both cases.
  • We surmount or elude the difficulties in supposing a moral obligation to attend promises.
• For instance; the expression of a resolution is not commonly supposed to be obligatory.
  • We cannot readily conceive how the use of certain words should be able to cause any material difference.
• Here, we feign a new act of the mind, which we call the willing an obligation.
  • We suppose the morality to depend on this.
• But there is no such act of the mind.
  • Consequently, promises impose no natural obligation.

• To confirm this, we may subjoin some other reflections on that will which:
  • enters into a promise
  • causes its obligation.
• The will alone is never supposed to cause the obligation.
  • It must be expressed by words or signs to impose a tie on any man.
• The expression being once brought in as subservient to the will, soon becomes the principal part of the promise.
• A man will not be less bound by his word even if he:
  • secretly gives a different direction to his intention
  • withholds himself from:
    • a resolution
    • willing an obligation.
• On most occasions, the expression makes the whole of the promise.
  • Yet it does not always do so.
  • One uses any expression which he:
    • does not know the meaning of
    • uses without any intention of binding himself, would not certainly be bound by it.
• He would not lie under any obligation of performance even if he:
  • knows its meaning
  • uses it in jest only with signs showing he has no serious intention of binding himself.
• But it is necessary that the words be a perfect expression of the will, without any contrary signs.
  • But a man is not bound by his expression or verbal promise if we accept of it, knowing, by our quickness of understanding, that he intends to deceive us from certain signs.
  • We must limit this conclusion to cases where the signs are different from those of deceit.
• All these contradictions are easily accounted for, if the obligation of promises is merely a human invention for the convenience of society.
  • It will never be explained if it were something real and natural, arising from any action of the mind or body.

• A promise is one of the most mysterious and incomprehensible operations imagined.
  • It may even be compared to transubstantiation, or holy orders because every new promise imposes a new obligation of morality on the person who promises
    • This new obligation arises from his will.
    • (Holy orders are supposed to produce the indelible character.
    • In other respects they are only a legal qualification.)
  • In holy orders, certain words, with a certain intention, entirely changes the  nature of an external object and even of a human nature.
• These mysteries are so far alike.
  • But they differ widely in other particulars.
  • This difference is a strong proof of the difference of their origins.
• The obligation of promises is an invention for the interest of society.
  • It is warped into as many different forms as that interest requires.
  • It even runs into direct contradictions, rather than lose sight of its object.
• Those other monstrous doctrines are mere priestly inventions.
  • They have no public interest in view.
  • They are less disturbed in their progress by new obstacles.
  • After the initial absurdity, they follow more directly the current of reason and good sense.
• Theologians clearly perceived that the external form of words, being mere sounds, require an intention to make them effective.
  • This intention is then considered as a requisite circumstance.
  • Its absence must equally prevent the effect, whether:
    • avowed or concealed
    • sincere or deceitful.
• Accordingly, they have commonly determined that the priest’s intention makes the sacrament.
  • When he secretly withdraws his intention, he is highly criminal in himself.
  • But he still destroys the baptism, communion, or holy orders.
• The terrible consequences of this doctrine did not hinder its establishment.
  • Unlike the inconvenience of a similar doctrine on promises, which have prevented that doctrine from establishing itself.
• People are always more concerned about the present life than the future.
  • People are apt to think the smallest evil in the present life more important than the greatest evil in the future life.

• We may draw the same conclusion on the origin of promises, from the force which:
  • invalidates all contracts
  • frees us from their obligation.
• Such a principle is a proof that promises have no natural obligation.
  • Promises are mere artificial contrivances for the convenience and advantage of society.
• Force is not essentially different from any other motive of hope or fear, which may induce us to:
  • engage our word
  • lay ourselves under any obligation.
• A dangerously wounded man who promises a competent sum to a surgeon to cure him, would certainly be bound to pay.
  • The case is not much different from one who promises a sum to a robber.
  • These cases produce a great difference in our moral sentiments, if these sentiments were not built entirely on public interest and convenience.

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