A Treatise of Human Nature Part 16

No one can doubt, that the convention for the distinction of property, and for the stability of possession, is of all circ.u.mstances the most necessary to the establishment of human society, and that after the agreement for the fixing and observing of this rule, there remains little or nothing to be done towards settling a perfect harmony and concord. All the other pa.s.sions, besides this of interest, are either easily restrained, or are not of such pernicious consequence, when indulged. Vanity is rather to be esteemed a social pa.s.sion, and a bond of union among men. Pity and love are to be considered in the same light. And as to envy and revenge, though pernicious, they operate only by intervals, and are directed against particular persons, whom we consider as our superiors or enemies. This avidity alone, of acquiring goods and possessions for ourselves and our nearest friends, is insatiable, perpetual, universal, and directly destructive of society. There scarce is any one, who is not actuated by it; and there is no one, who has not reason to fear from it, when it acts without any restraint, and gives way to its first and most natural movements. So that upon the whole, we are to esteem the difficulties in the establishment of society, to be greater or less, according to those we encounter in regulating and restraining this pa.s.sion.

It is certain, that no affection of the human mind has both a sufficient force, and a proper direction to counterbalance the love of gain, and render men fit members of society, by making them abstain from the possessions of others. Benevolence to strangers is too weak for this purpose; and as to the other pa.s.sions, they rather inflame this avidity, when we observe, that the larger our possessions are, the more ability we have of gratifying all our appet.i.tes. There is no pa.s.sion, therefore, capable of controlling the interested affection, but the very affection itself, by an alteration of its direction. Now this alteration must necessarily take place upon the least reflection; since it is evident, that the pa.s.sion is much better satisfyed by its restraint, than by its liberty, and that in preserving society, we make much greater advances in the acquiring possessions, than in the solitary and forlorn condition, which must follow upon violence and an universal licence. The question, therefore, concerning the wickedness or goodness of human nature, enters not in the least into that other question concerning the origin of society; nor is there any thing to be considered but the degrees of men's sagacity or folly. For whether the pa.s.sion of self-interest be esteemed vicious or virtuous, it is all a case; since itself alone restrains it: So that if it be virtuous, men become social by their virtue; if vicious, their vice has the same effect.

Now as it is by establishing the rule for the stability of possession, that this pa.s.sion restrains itself; if that rule be very abstruse, and of difficult invention; society must be esteemed, in a manner, accidental, and the effect of many ages. But if it be found, that nothing can be more simple and obvious than that rule; that every parent, in order to preserve peace among his children, must establish it; and that these first rudiments of justice must every day be improved, as the society enlarges: If all this appear evident, as it certainly must, we may conclude, that it is utterly impossible for men to remain any considerable time in that savage condition, which precedes society; but that his very first state and situation may justly be esteemed social. This, however, hinders not, but that philosophers may, if they please, extend their reasoning to the supposed state of nature; provided they allow it to be a mere philosophical fiction, which never had, and never coued have any reality. Human nature being composed of two princ.i.p.al parts, which are requisite in all its actions, the affections and understanding; it is certain, that the blind motions of the former, without the direction of the latter, incapacitate men for society: And it may be allowed us to consider separately the effects, that result from the separate operations of these two component parts of the mind. The same liberty may be permitted to moral, which is allowed to natural philosophers; and it is very usual with the latter to consider any motion as compounded and consisting of two parts separate from each other, though at the same time they acknowledge it to be in itself uncompounded and inseparable.

This state of nature, therefore, is to be regarded as a mere fiction, not unlike that of the golden age, which poets have invented; only with this difference, that the former is described as full of war, violence and injustice; whereas the latter is pointed out to us, as the most charming and most peaceable condition, that can possibly be imagined. The seasons, in that first age of nature, were so temperate, if we may believe the poets, that there was no necessity for men to provide themselves with cloaths and houses as a security against the violence of heat and cold. The rivers flowed with wine and milk: The oaks yielded honey; and nature spontaneously produced her greatest delicacies. Nor were these the chief advantages of that happy age. The storms and tempests were not alone removed from nature; but those more furious tempests were unknown to human b.r.e.a.s.t.s, which now cause such uproar, and engender such confusion. Avarice, ambition, cruelty, selfishness, were never heard of: Cordial affection, compa.s.sion, sympathy, were the only movements, with which the human mind was yet acquainted. Even the distinction of mine and thine was banished from that happy race of mortals, and carryed with them the very notions of property and obligation, justice and injustice.

This, no doubt, is to be regarded as an idle fiction; but yet deserves our attention, because nothing can more evidently shew the origin of those virtues, which are the subjects of our present enquiry. I have already observed, that justice takes its rise from human conventions; and that these are intended as a remedy to some inconveniences, which proceed from the concurrence of certain qualities of the human mind with the situation of external objects. The qualities of the mind are selfishness and limited generosity: And the situation of external objects is their easy change, joined to their scarcity in comparison of the wants and desires of men. But however philosophers may have been bewildered in those speculations, poets have been guided more infallibly, by a certain taste or common instinct, which in most kinds of reasoning goes farther than any of that art and philosophy, with which we have been yet acquainted. They easily perceived, if every man had a tender regard for another, or if nature supplied abundantly all our wants and desires, that the jealousy of interest, which justice supposes, could no longer have place; nor would there be any occasion for those distinctions and limits of property and possession, which at present are in use among mankind. Encrease to a sufficient degree the benevolence of men, or the bounty of nature, and you render justice useless, by supplying its place with much n.o.bler virtues, and more valuable blessings. The selfishness of men is animated by the few possessions we have, in proportion to our wants; and it is to restrain this selfishness, that men have been obliged to separate themselves from the community, and to distinguish betwixt their own goods and those of others.

Nor need we have recourse to the fictions of poets to learn this; but beside the reason of the thing, may discover the same truth by common experience and observation. It is easy to remark, that a cordial affection renders all things common among friends; and that married people in particular mutually lose their property, and are unacquainted with the mine and thine, which are so necessary, and yet cause such disturbance in human society. The same effect arises from any alteration in the circ.u.mstances of mankind; as when there is such a plenty of any thing as satisfies all the desires of men: In which case the distinction of property is entirely lost, and every thing remains in common. This we may observe with regard to air and water, though the most valuable of all external objects; and may easily conclude, that if men were supplied with every thing in the same abundance, or if every one had the same affection and tender regard for every one as for himself; justice and injustice would be equally unknown among mankind.

Here then is a proposition, which, I think, may be regarded as certain, that it is only from the selfishness and confined generosity of men, along with the scanty provision nature has made for his wants, that justice derives its origin. If we look backward we shall find, that this proposition bestows an additional force on some of those observations, which we have already made on this subject.

First, we may conclude from it, that a regard to public interest, or a strong extensive benevolence, is not our first and original motive for the observation of the rules of justice; since it is allowed, that if men were endowed with such a benevolence, these rules would never have been dreamt of.

Secondly, we may conclude from the same principle, that the sense of justice is not founded on reason, or on the discovery of certain connexions and relations of ideas, which are eternal, immutable, and universally obligatory. For since it is confest, that such an alteration as that above-mentioned, in the temper and circ.u.mstances of mankind, would entirely alter our duties and obligations, it is necessary upon the common system, that the sense of virtue is derived from reason, to shew the change which this must produce in the relations and ideas. But it is evident, that the only cause, why the extensive generosity of man, and the perfect abundance of every thing, would destroy the very idea of justice, is because they render it useless; and that, on the other hand, his confined benevolence, and his necessitous condition, give rise to that virtue, only by making it requisite to the publick interest, and to that of every individual. Twas therefore a concern for our own, and the publick interest, which made us establish the laws of justice; and nothing can be more certain, than that it is not any relation of ideas, which gives us this concern, but our impressions and sentiments, without which every thing in nature is perfectly indifferent to us, and can never in the least affect us. The sense of justice, therefore, is not founded on our ideas, but on our impressions.

Thirdly, we may farther confirm the foregoing proposition, THAT THOSE IMPRESSIONS, WHICH GIVE RISE TO THIS SENSE OF JUSTICE, ARE NOT NATURAL TO THE MIND OF MAN, BUT ARISE FROM ARTIFICE AND HUMAN CONVENTIONS. For since any considerable alteration of temper and circ.u.mstances destroys equally justice and injustice; and since such an alteration has an effect only by changing our own and the publick interest; it follows, that the first establishment of the rules of justice depends on these different interests. But if men pursued the publick interest naturally, and with a hearty affection, they would never have dreamed of restraining each other by these rules; and if they pursued their own interest, without any precaution, they would run head-long into every kind of injustice and violence. These rules, therefore, are artificial, and seek their end in an oblique and indirect manner; nor is the interest, which gives rise to them, of a kind that coued be pursued by the natural and inartificial pa.s.sions of men.

To make this more evident, consider, that though the rules of justice are established merely by interest, their connexion with interest is somewhat singular, and is different from what may be observed on other occasions. A single act of justice is frequently contrary to public interest; and were it to stand alone, without being followed by other acts, may, in itself, be very prejudicial to society. When a man of merit, of a beneficent disposition, restores a great fortune to a miser, or a seditious bigot, he has acted justly and laudably, but the public is a real sufferer. Nor is every single act of justice, considered apart, more conducive to private interest, than to public; and it is easily conceived how a man may impoverish himself by a signal instance of integrity, and have reason to wish, that with regard to that single act, the laws of justice were for a moment suspended in the universe. But however single acts of justice may be contrary, either to public or private interest, it is certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. It is impossible to separate the good from the ill. Property must be stable, and must be fixed by general rules. Though in one instance the public be a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule, and by the peace and order, which it establishes in society. And even every individual person must find himself a gainer, on ballancing the account; since, without justice society must immediately dissolve, and every one must fall into that savage and solitary condition, which is infinitely worse than the worst situation that can possibly be supposed in society. When therefore men have had experience enough to observe, that whatever may be the consequence of any single act of justice, performed by a single person, yet the whole system of actions, concurred in by the whole society, is infinitely advantageous to the whole, and to every part; it is not long before justice and property take place. Every member of society is sen sible of this interest: Every one expresses this sense to his fellows, along with the resolution he has taken of squaring his actions by it, on condition that others will do the same. No more is requisite to induce any one of them to perform an act of justice, who has the first opportunity. This becomes an example to others. And thus justice establishes itself by a kind of convention or agreement; that is, by a sense of interest, supposed to be common to all, and where every single act is performed in expectation that others are to perform the like. Without such a convention, no one would ever have dreamed, that there was such a virtue as justice, or have been induced to conform his actions to it. Taking any single act, my justice may be pernicious in every respect; and it is only upon the supposition that others are to imitate my example, that I can be induced to embrace that virtue; since nothing but this combination can render justice advantageous, or afford me any motives to conform my self to its rules.

We come now to the second question we proposed, viz. Why we annex the idea of virtue to justice, and of vice to injustice. This question will not detain us long after the principles, which we have already established, All we can say of it at present will be dispatched in a few words: And for farther satisfaction, the reader must wait till we come to the third part of this book. The natural obligation to justice, viz, interest, has been fully explained; but as to the moral obligation, or the sentiment of right and wrong, it will first be requisite to examine the natural virtues, before we can give a full and satisfactory account of it. After men have found by experience, that their selfishness and confined generosity, acting at their liberty, totally incapacitate them for society; and at the same time have observed, that society is necessary to the satisfaction of those very pa.s.sions, they are naturally induced to lay themselves under the restraint of such rules, as may render their commerce more safe and commodious. To the imposition then, and observance of these rules, both in general, and in every particular instance, they are at first induced only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible. But when society has become numerous, and has encreased to a tribe or nation, this interest is more remote; nor do men so readily perceive, that disorder and confusion follow upon every breach of these rules, as in a more narrow and contracted society. But though in our own actions we may frequently lose sight of that interest, which we have in maintaining order, and may follow a lesser and more present interest, we never fail to observe the prejudice we receive, either mediately or immediately, from the injustice of others; as not being in that case either blinded by pa.s.sion, or bya.s.sed by any contrary temptation. Nay when the injustice is so distant from us, as no way to affect our interest, it still displeases us; because we consider it as prejudicial to human society, and pernicious to every one that approaches the person guilty of it. We partake of their uneasiness by sympathy; and as every thing, which gives uneasiness in human actions, upon the general survey, is called Vice, and whatever produces satisfaction, in the same manner, is denominated Virtue; this is the reason why the sense of moral good and evil follows upon justice and injustice. And though this sense, in the present case, be derived only from contemplating the actions of others, yet we fail not to extend it even to our own actions. The general rule reaches beyond those instances, from which it arose; while at the same time we naturally sympathize with others in the sentiments they entertain of us. Thus self-interest is the original motive to the establishment of justice: but a sympathy with public interest is the source of the moral approbation, which attends that virtue.

Though this progress of the sentiments be natural, and even necessary, it is certain, that it is here forwarded by the artifice of politicians, who, in order to govern men more easily, and preserve peace in human society, have endeavoured to produce an esteem for justice, and an abhorrence of injustice. This, no doubt, must have its effect; but nothing can be more evident, than that the matter has been carryed too far by certain writers on morals, who seem to have employed their utmost efforts to extirpate all sense of virtue from among mankind. Any artifice of politicians may a.s.sist nature in the producing of those sentiments, which she suggests to us, and may even on some occasions, produce alone an approbation or esteem for any particular action; but it is impossible it should be the sole cause of the distinction we make betwixt vice and virtue. For if nature did not aid us in this particular, it would be in vain for politicians to talk of honourable or dishonourable, praiseworthy or blameable. These words would be perfectly unintelligible, and would no more have any idea annexed to them, than if they were of a tongue perfectly unknown to us. The utmost politicians can perform, is, to extend the natural sentiments beyond their original bounds; but still nature must furnish the materials, and give us some notion of moral distinctions.

As publick praise and blame encrease our esteem for justice; so private education and instruction contribute to the same effect. For as parents easily observe, that a man is the more useful, both to himself and others, the greater degree of probity and honour he is endowed with; and that those principles have greater force, when custom and education a.s.sist interest and reflection: For these reasons they are induced to inculcate on their children, from their earliest infancy, the principles of probity, and teach them to regard the observance of those rules, by which society is maintained, as worthy and honourable, and their violation as base and infamous. By this means the sentiments of honour may take root in their tender minds, and acquire such firmness and solidity, that they may fall little short of those principles, which are the most essential to our natures, and the most deeply radicated in our internal const.i.tution.

What farther contributes to encrease their solidity, is the interest of our reputation, after the opinion, that a merit or demerit attends justice or injustice, is once firmly established among mankind. There is nothing, which touches us more nearly than our reputation, and nothing on which our reputation more depends than our conduct, with relation to the property of others. For this reason, every one, who has any regard to his character, or who intends to live on good terms with mankind, must fix an inviolable law to himself, never, by any temptation, to be induced to violate those principles, which are essential to a man of probity and honour.

I shall make only one observation before I leave this subject, viz, that though I a.s.sert, that in the state of nature, or that imaginary state, which preceded society, there be neither justice nor injustice, yet I a.s.sert not, that it was allowable, in such a state, to violate the property of others. I only maintain, that there was no such thing as property; and consequently coued be no such thing as justice or injustice. I shall have occasion to make a similar reflection with regard to promises, when I come to treat of them; and I hope this reflection, when duly weighed, will suffice to remove all odium from the foregoing opinions, with regard to justice and injustice.

SECT. III OF THE RULES WHICH DETERMINE PROPERTY

Though the establishment of the rule, concerning the stability of possession, be not only useful, but even absolutely necessary to human society, it can never serve to any purpose, while it remains in such general terms. Some method must be shewn, by which we may distinguish what particular goods are to be a.s.signed to each particular person, while the rest of mankind are excluded from their possession and enjoyment. Our next business, then, must be to discover the reasons which modify this general rule, and fit it to the common use and practice of the world.

It is obvious, that those reasons are not derived from any utility or advantage, which either the particular person or the public may reap from his enjoyment of any particular goods, beyond what would result from the possession of them by any other person. Twere better, no doubt, that every one were possessed of what is most suitable to him, and proper for his use: But besides, that this relation of fitness may be common to several at once, it is liable to so many controversies, and men are so partial and pa.s.sionate in judging of these controversies, that such a loose and uncertain rule would be absolutely incompatible with the peace of human society. The convention concerning the stability of possession is entered into, in order to cut off all occasions of discord and contention; and this end would never be attained, were we allowed to apply this rule differently in every particular case, according to every particular utility, which might be discovered in such an application. Justice, in her decisions, never regards the fitness or unfitness of objects to particular persons, but conducts herself by more extensive views. Whether a man be generous, or a miser, he is equally well received by her, and obtains with the same facility a decision in his favours, even for what is entirely useless to him.

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 ill.u.s.trate 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 a.s.sistance. 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 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, it is 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.

It is 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 a.s.sign to each his particular portion, which he must for the future inalterably 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. It is 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.

[FN 15. No questions in philosophy are more difficult, than when a number of causes present themselves for the same phaenomenon, to determine which is the princ.i.p.al and predominant. There seldom is any very precise argument to fix our choice, and men must be contented to be guided by a kind of taste or fancy, arising from a.n.a.logy, and a comparison of familiar instances. Thus, in the present case, there are, no doubt, motives of public interest for most of the rules, which determine property; but still I suspect, that these rules are princ.i.p.ally 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's choice, whether he will prefer those derived from publick utility, or those derived from the imagination. We shall begin with the right of the present possessor.

It is a quality, which I have already observed in human nature, that when two objects appear in a close relation to each other, the mind is apt to ascribe to them any additional relation, in order to compleat the union; and 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; and 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, and are already united in the imagination. Since, therefore, we can feign a new relation, and even an absurd one, in order to compleat any union, it will easily be imagined, that if there be any relations, which depend on the mind, it will readily conjoin them to any preceding relation, and unite, by a new bond, such objects as have already an union in the fancy. Thus for instance, 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. And 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; and instead of requiring any new reason for their conjunction, it would require a very powerful reason to make us over-look this natural affinity. This we shall have occasion to explain more fully afterwards, when we come to treat of beauty. In the mean time, we may content ourselves with observing, that the same love of order and uniformity, which arranges the books in a library, and the chairs in a parlour, contribute to the formation of society, and to the well-being of mankind, by modifying the general rule concerning the stability of possession. And as property forms a relation betwixt a person and an object, it is natural to found it on some preceding relation; and as 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 be natural to conjoin all sorts of relations, it is more so, to conjoin such relations as are resembling, and are related together.]

But we may observe, that though the rule of the a.s.signment 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 rest.i.tution would be excluded, and every injustice would be authorized and rewarded. We must, therefore, seek for some other circ.u.mstance, 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 a.s.signing 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, pa.s.ses 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 t.i.tle 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 circ.u.mstances, 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.]

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 sh.o.r.e 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 circ.u.mscribed 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 t.i.tle 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 s.p.a.ce 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 t.i.tle, 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 t.i.tle 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 pa.s.s 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 ill.u.s.trate 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 pa.s.ses 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 t.i.tle 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 pa.s.s 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 circ.u.mstances that mightily a.s.sist 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 ma.s.s 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 ma.s.s 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 t.i.tII 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 t.i.tIUS 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 t.i.tII TUIS PECORIBUS MISTA FUERINT. SED SI AB ALTERUTRO VESTRUM TOTUM ID FRUMENTUM RETINEATUR, IN REM QUIDEM ACTIO PRO MODO FRUMENTI CUJUSQUE CORN PEt.i.t. ARBITRIO AUTEM JUDICIS, UT IPSE AESTIMET QUALE CUJUSQUE FRUMENTUM FUERIT.

Inst. Lib. IL t.i.t. i. Sect 28.

(In the case that your grain was mixed with that of t.i.tius, 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 t.i.tius mixed it without your consent, it does not appear that it is common property, Inasmuch as the several components retain their original ident.i.ty. Rather, in circ.u.mstances of this sort the grain does not become common property, any more than a herd of cattle is regarded as common property, If t.i.tius 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.]

Where the properties of two persons are united after such a manner as neither to admit of division nor separation, as when one builds a house on another's ground, in that case, the whole must belong to one of the proprietors: And here I a.s.sert, that it naturally is conceived to belong to the proprietor of the most considerable part. For however the compound object may have a relation to two different persons, and carry our view at once to both of them, yet as the most considerable part princ.i.p.ally engages our attention, and by the strict union draws the inferior along it; for this reason, the whole bears a relation to the proprietor of that part, and is regarded as his property.

The only difficulty is, what we shall be pleased to call the most considerable part, and most attractive to the imagination.

This quality depends on several different circ.u.mstances, which have little connexion with each other. One part of a compound object may become more considerable than another, either because it is more constant and durable; because it is of greater value; because it is more obvious and remarkable; because it is of greater extent; or because its existence is more separate and independent. It will be easy to conceive, that, as these circ.u.mstances may be conjoined and opposed in all the different ways, and according to all the different degrees, which can be imagined, there will result many cases, where the reasons on both sides are so equally balanced, that it is impossible for us to give any satisfactory decision. Here then is the proper business of munic.i.p.al laws, to fix what the principles of human nature have left undetermined.

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

But of all the questions of this kind the most curious is that, which for so many ages divided the disciples of Proculus and Sabinus. Suppose a person shoued make a cup from the metal of another, or a ship from his wood, and suppose the proprietor of the metal or wood shoued demand his goods, the question is, whether he acquires a t.i.tle to the cup or ship. Sabinus maintained the affirmative, and a.s.serted that the substance or matter is the foundation of all the qualities; that it is incorruptible and immortal, and therefore superior to the form, which is casual and dependent. On the other hand, Proculus observed, that the form is the most obvious and remarkable part, and that from it bodies are denominated of this or that particular species. To which he might have added, that the matter or substance is in most bodies so fluctuating and uncertain, that it is utterly impossible to trace it in all its changes. For my part, I know not from what principles such a controversy can be certainly determined. I shall therefore content my self with observing, that the decision of Trebonian seems to me pretty ingenious; that the cup belongs to the proprietor of the metal, because it can be brought back to its first form: But that the ship belongs to the author of its form for a contrary reason. But however ingenious this reason may seem, it plainly depends upon the fancy, which by the possibility of such a reduction, finds a closer connexion and relation betwixt a cup and the proprietor of its metal, than betwixt 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 the general interest of mankind, which requires, that men's possessions should pa.s.s to those, who are dearest to them, in order to render them more industrious and frugal. Perhaps these causes are seconded by the influence of relation, or the a.s.sociation of ideas, by which we are naturally directed to consider the son after the parent's decease, and ascribe to him a t.i.tle to his father's possessions. Those goods must become the property of some body: But of whom is the question. Here it is evident the persons 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.

[FN 20 In examining the different t.i.tles to authority in government, we shall meet with many reasons to convince us, that the right of succession depends, in a great measure on the imagination. Mean while I shall rest contented with observing one example, which belongs to the present subject.

Suppose that a person die without children, and that a dispute arises among his relations concerning his inheritance; it is evident, that if his riches be deriv'd partly from his father, partly from his mother, the most natural way of determining such a dispute, is, to divide his possessions, and a.s.sign each part to the family, from whence it is deriv'd. Now as the person is suppos'd to have been once the full and entire proprietor of those goods; I ask, what is it makes us find a certain equity and natural reason in this part.i.tion, except it be the imagination? His affection to these families does not depend upon his possessions; for which reason his consent can never be presum'd precisely for such a part.i.tion. And as to the public interest, it seems not to be in the least concern'd on the one side or the other.]

SECT. IV OF THE TRANSFERENCE OF PROPERTY BY CONSENT

However useful, or even necessary, the stability of possession may be to human society, it is attended with very considerable inconveniences. The relation of fitness or suitableness ought never to enter into consideration, in distributing the properties of mankind; but we must govern ourselves by rules, which are more general in their application, and more free from doubt and uncertainty. Of this kind is present possession upon the first establishment of society; and afterwards occupation, prescription, accession, and succession. As these depend very much on chance, they must frequently prove contradictory both to men's wants and desires; and persons and possessions must often be very ill adjusted. This is a grand inconvenience, which calls for a remedy. To apply one directly, and allow every man to seize by violence what he judges to be fit for him, would destroy society; and therefore the rules of justice seek some medium betwixt a rigid stability, and this changeable and uncertain adjustment. But there is no medium better than that obvious one, that possession and property should always be stable, except when the proprietor consents to bestow them on some other person. This rule can have no ill consequence, in occasioning wars and dissentions; since the proprietor's consent, who alone is concerned, is taken along in the alienation: And it may serve to many good purposes in adjusting property to persons. Different parts of the earth produce different commodities; and not only so, but different men both are by nature fitted for different employments, and attain to greater perfection in any one, when they confine themselves to it alone. All this requires a mutual exchange and commerce; for which reason the translation of property by consent is founded on a law of nature, as well as its stability 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 circ.u.mstance in the translation of property. The property of an object, when taken for something real, without any reference to morality, or the sentiments of the mind, is a quality perfectly insensible, and even inconceivable; nor can we form any distinct notion, either of its stability or translation. This imperfection of our ideas is less sensibly felt with regard to its stability, as it engages less our attention, and is easily past over by the mind, without any scrupulous examination. But as the translation of property from one person to another is a more remarkable event, the defect of our ideas becomes more sensible on that occasion, and obliges us to turn ourselves on every side in search of some remedy. Now as nothing more enlivens any idea than a present impression, and a relation betwixt that impression and the idea; it is natural for us to seek some false light from this quarter. In order to aid the imagination in conceiving the transference of property, we take the sensible object, and actually transfer its possession to the person, on whom we would bestow the property. The supposed resemblance of the actions, and the presence of this sensible delivery, deceive the mind, and make it fancy, that it conceives the mysterious transition of the property. And that this explication of the matter is just, appears hence, that 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 mannor. This is a kind of superst.i.tious practice in civil laws, and in the laws of nature, resembling the Roman catholic superst.i.tions in religion. As the Roman catholics represent the inconceivable mysteries of the Christian religion, and render them more present to the mind, by a taper, or habit, or grimace, which is supposed to resemble them; so lawyers and moralists have run into like inventions for the same reason, and have endeavoured by those means to satisfy themselves concerning the transference of property by consent.

SECT. V OF THE OBLIGATION OF PROMISES

That the rule of morality, which enjoins the performance of promises, is not natural, will sufficiently appear from these two propositions, which I proceed to prove, viz, that a promise would not be intelligible, before human conventions had established it; and that even if it were intelligible, it would not be attended with any moral obligation.