A Treatise of Human Nature

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,