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.
[Footnote 20 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 mannor. 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 coued 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 coued
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.
[Footnote 21 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 coud 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 indination,
no one coued 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 aid