Chapter XXVI: Part II: Of Justice and Injustice (2)

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 passionate in judging of these controversies, that such a loose and uncertain rule would be absolutely incompatible with the peace of human society. The convention 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 illustrate 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 assistance. 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 assign 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.[1]

[1] No questions in philosophy are more difficult, than when a
number of causes present themselves for the same phænomenon, to
determine which is the principal 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
analogy, 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 principally fixed by the imagination, or the
more frivolous properties of our thought and conception. I shall
continue to explain these causes, leaving it to the reader'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 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.[2]

[2] 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.[3]

[3] 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.

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.[4]

[4] 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 diminished 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.[5]

[5] 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 little, 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.)

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 assert, 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 principally 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 circumstances, 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 circumstances 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 municipal 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 title to the cup or ship. Sabinus maintained the
affirmative, and asserted 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 pass 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 association of ideas, by which we are naturally directed to consider the son after the parent's decease, and ascribe to him a title to his father's possessions. Those goods must become the property of 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.[6]

[6] In examining the different titles 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 assign 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 partition, 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 partition. 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 circumstance 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 manor. This is a kind of superstitious practice in civil laws, and in the laws of nature, resembling the Roman catholic superstitions 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.

I say, first, that a promise is not intelligible naturally, nor antecedent to human conventions; and that a man, unacquainted with society, could never enter into any engagements with another, even though they could perceive each other's thoughts by intuition. If promises be natural and intelligible, there must be some act of the mind attending these words, I promise; and on this act of the mind must the obligation depend. 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, exprest by a promise, is not a resolution to perform any thing: For that alone never imposes any obligation. Nor is it a desire of such a performance: For we may bind ourselves without such a desire, or even with an aversion, declared and avowed. Neither is it the willing of that action, which we promise to perform: For a promise always regards some future time, and the will has an influence only on present actions. It follows, therefore, that since the act of the mind, which enters into a promise, and produces its obligation, is neither the resolving, desiring, nor willing any particular performance, it must necessarily be the willing of that obligation, which arises from the promise. Nor is this only a conclusion of philosophy; but is entirely conformable to our common ways of thinking and of expressing ourselves, when we say that we are bound by our own consent, and that the obligation arises from our mere will and pleasure. The only question then is, whether there be not a manifest absurdity in supposing this act of the mind, and such an absurdity as no man could fall into, whose ideas are not confounded with prejudice and the fallacious use of language.

All morality depends upon our sentiments; and when any action, or quality of the mind, pleases us after a certain manner, we say it is virtuous; and when the neglect, or nonperformance of it, displeases us after a like manner, we say that we lie under an obligation to perform it. A change of the obligation supposes a change of the sentiment; and a creation of a new obligation supposes some new sentiment to arise. But it is certain we can naturally no more change our own sentiments, than the motions of the heavens; nor by a single act of our will, that is, by a promise, render any action agreeable or disagreeable, moral or immoral; which, without that act, would have produced contrary impressions, or have been endowed with different qualities. It would be absurd, therefore, to will any new obligation, that is, any new sentiment of pain or pleasure; nor is it possible, that men could naturally fall into so gross an absurdity. A promise, therefore, is naturally something altogether unintelligible, nor is there any act of the mind belonging to it.[7]

[7] Were morality discoverable by reason, and not by sentiment, it
would be still more evident, that promises cou'd make no alteration
upon it. Morality is suppos'd to consist in relation. Every new
imposition of morality, therefore, must arise from some new
relation of objects; and consequently the will could not produce
immediately any change in morals, but cou'd have that effect only
by producing a change upon the objects. But as the moral obligation
of a promise is the pure effect of the will, without the least
change in any part of the universe; it follows, that promises have
no natural obligation.

Shou'd it be said, that this act of the will being in effect a new
object, produces new relations and new duties; I wou'd answer, that
this is a pure sophism, which may be detected by a very moderate
share of accuracy and exactness. To will a new obligation, is to
will a new relation of objects; and therefore, if this new relation
of objects were form'd by the volition itself, we should in effect
will the volition; which is plainly absurd and impossible. The will
has here no object to which it cou'd tend; but must return upon
itself in infinitum. The new obligation depends upon new relations.
The new relations depend upon a new volition. The new volition has
for object a new obligation, and consequently new relations, and
consequently a new volition; which volition again has in view a new
obligation, relation and volition, without any termination. It is
impossible, therefore, we cou'd ever will a new obligation; and
consequently it is impossible the will cou'd ever accompany a
promise, or produce a new obligation of morality.

But, secondly, if there was any act of the mind belonging to it, 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. There could not naturally, therefore, arise any obligation from a promise, even supposing the mind could fall into the absurdity of willing that obligation.

The same truth may be proved still more evidently by that reasoning, which proved justice in general to be an artificial virtue. No action can be required of us as our duty, unless there be implanted in human nature some 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: And where 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 or imperfection in the mind and temper, and consequently without any vice. Now it is evident 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 never should feel any inclination to observe them. This is not the case with the natural virtues. Though there was no obligation to relieve the miserable, our humanity would lead us to it; and when we omit that duty, the immorality of the omission arises from its being a proof, that we want 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. And if no human creature had that inclination, no one could lie under any such obligation. But as there is naturally no inclination to observe promises, distinct from a sense of their obligation; it follows, that fidelity is no natural virtue, and that promises have no force, antecedent to human conventions.

If any one dissent from this, he must give a regular proof of these two propositions, viz. THAT THERE IS A PECULIAR ACT OF THE MIND, ANNEXT TO PROMISES; AND THAT CONSEQUENT TO THIS ACT OF THE MIND, THERE ARISES AN INCLINATION TO PERFORM, DISTINCT FROM A SENSE OF DUTY. I presume, that it is impossible to prove either of these two points; and therefore I venture to conclude that promises are human inventions, founded on the necessities and interests of society.

In order to discover these necessities and interests, we must consider the same qualities of human nature, which we have already found to give rise to the preceding laws of society. Men being naturally selfish, or endowed only with 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, which they had no hope of obtaining but by such a performance. Now as it frequently happens, that these mutual performances cannot be finished at the same instant, it is necessary, that one party be contented to remain in uncertainty, and depend upon the gratitude of the other for a return of kindness. But so much corruption is there among men, that, generally speaking, this becomes but a slender security; and as the benefactor is here supposed to bestow his favours with a view to self-interest, this both takes off from the obligation, and sets an example to selfishness, which is the true mother of ingratitude. Were we, therefore, to follow the natural course of our passions and inclinations, we should perform but few actions for the advantage of others, from distinterested views; because we are naturally very limited in our kindness and affection: And we should perform as few of that kind, out of a regard to interest; because we cannot depend upon their gratitude. Here then is the mutual commerce of good offices in a manner lost among mankind, and every one 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; that of the transference of property and possession by consent has begun to render them mutually advantageous: But still these laws of nature, however strictly observed, are not sufficient to render them so serviceable to each other, as by nature they are fitted to become. Though possession be stable, men may often reap but small advantage from it, while they are possessed of a greater quantity of any species of goods than they have occasion for, and at the same time suffer by the want of others. The transference of property, which is the proper remedy for this inconvenience, cannot remedy it entirely; because it can only take place with regard to such objects as are present and individual, but not to such as are absent or general. One cannot transfer the property of a particular house, twenty leagues distant; because the consent cannot be attended with delivery, which is a requisite circumstance. Neither can one transfer the property of ten bushels of corn, or five hogsheads of wine, by the mere expression and consent; because these are only general terms, and 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, but may extend to services and actions, which we may exchange to our mutual interest and advantage. Your corn is ripe to-day; mine will be so tomorrow. It is profitable for us both, that I should labour with you to-day, and that you should aid me to-morrow. I have no kindness for you, and know you have as little for me. I will not, therefore, take any pains upon your account; and should I labour with you upon my own account, in expectation of a return, I know I should be disappointed, and that I should in vain depend upon your gratitude. Here then I leave you to labour alone: You treat me in the same manner. The seasons change; and both of us lose our harvests for want of mutual confidence and security.

All this is the effect of the natural and inherent principles and passions of human nature; and as these passions and principles are inalterable, it may be thought, that our conduct, which depends on them, must be so too, and that it would be in vain, either for moralists or politicians, to tamper with us, or attempt to change the usual course of our actions, with a view to public interest. And indeed, did the success of their designs depend upon their success in correcting the selfishness and ingratitude of men, they would never make any progress, unless aided by omnipotence, which is alone able to new-mould the human mind, and change its character in such fundamental articles. All they can pretend to, is, to give a new direction to those natural passions, and 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, and in order to maintain the same correspondence of good offices with me or with others. And accordingly, after I have served him, and he is in possession of the advantage arising from my action, he is induced to perform his part, as foreseeing the consequences of his refusal.