Chapter XLI: Section IV

OF THE TRANSFERENCE OF PROPERTY BY CONSENT.

However useful, or even necessary, the stability of possession may be to human society, 'tis 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 dissensions, 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 'tis 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; 'tis 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.