Page 138 of 169
But such disputes may not only 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 it often happens, that the title of first possession becomes obscure through time; and that it is 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 it is 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 off-spring of the sentiments, on which alone time is found to have any influence.
[FN 18. Present possession is plainly a relation
betwixt a person and an object; but is not sufficient to
counter-ballance the relation of first possession, unless
the former be long and uninterrupted: In which case the
relation is encreased on the side of the present possession,
by the extent of time, and dlminished 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.
[FN 19. 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.]
