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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 tacite, 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 we 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.
[FN 16. Some philosophers account for the right of
occupation, by saying, that every one has a property in his
own labour; and when he joins that labour to any thing, it
gives him the property of the whole: But, 1. There are
several kinds of occupation, where we cannot be said to join
our labour to the object we acquire: As when we possess a
meadow by grazing our cattle upon it. 2. This accounts for
the matter by means of accession; which is taking a needless
circuit. 3. We cannot be said to join our labour to any
thing but in a figurative sense. Properly speaking, we only
make an alteration on it by our labour. This forms a
relation betwixt us and the object; and thence arises the
property, according to the preceding principles.]
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, it is 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; it is 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 shew the standard, by which we may decide all disputes that may arise, and, as we find by experience, frequently do arise upon this subject.
[FN 17. If we seek a solution of these difficulties in
reason and public interest, we never shall find
satisfaction; and If we look for it in the imagination, it
is evident, that the qualities, which operate upon that
faculty, run so insensibly and gradually into each other,
that it is impossible to give them any precise bounds or
termination. The difficulties on this head must encrease,
when we consider, that our judgment 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 hunted a
hare to the last degree of weariness, would look upon it as
an injustice for another to rush in before him, and seize
his prey. But the same person advancing to pluck an apple,
that hangs within his reach, has no reason to complain, if
another, more alert, passes him, and takes possession. What
is the reason of this difference, but that immobility, not
being 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 then it appears, that a certain and infallible power of
enjoyment, without touch or some other sensible relation,
often produces not property: And I farther observe, that 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, and is only
regarded as such, when the object is hidden, or very
obscure; in which 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 both in the case of discovery
and that of 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 betwixt 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 concerning 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
examples, which are real, to such as are feigned, we may
consider the following one, which is to be met with In
almost every writer, that has treated of the laws of nature.
Two Grecian 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; who finding on their approach, that their
information was true, begun a race together with an
intention to take possession of the city, each of them 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, and was so fortunate as to fix it there
before the arrival of his companion. This produced a dispute
betwixt the two colonies, which of them was the proprietor
of the empty city and this dispute still subsists among
philosophers. For my part I find the dispute impossible to
be decided, and that because the whole question hangs upon
the fancy, which in this case is not possessed of any
precise or determinate standard, upon which it can give
sentence. To make this evident, 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 in that case their relation
to the colonies would have been but feeble and imperfect.
Add to this, that nothing determined them to run to the
gates rather than the walls, or any other part of the city,
but that the gates, being the most obvious and remarkable
part, satisfy the fancy best in taking them for the whole;
as we find by the poets, who frequently draw their images
and metaphors from them. Besides we may consider, that the
touch or contact of the one messenger is not properly
possession, no more than the piercing the gates with a
spear; but only forms a relation; and there is a relation,
in the other case, equally obvious, tho' not, perhaps, 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.]
