Summary. It has been established that society is necessary for the well-being of humans, and that society can exist only on the basis of a general rule making possession of property stable. This rule is too general to determine exactly what property may be stably possessed. Ideally, property would be apportioned according to how suitable it is for every person, but such apportionment would only lead to conflict, undermining the peace of society that the rule of stability is supposed to establish. Five specific rules that govern society are laid out and justified. The first is present possession, which is inadequate by itself. The other four rules are first possession (occupation), long possession (prescription), intimate connection with present property (accession), and heredity (succession).

1. The rule of the stability of possession is not only useful for human society, but absolutely necessary for its existence. It is so general, though, that it does not determine which particular goods should be distributed to which particular persons, and excluded from the “possession and enjoyment” of the rest. “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.”

2. These “reasons,” or specific rules of distribution, cannot be based on the benefit that any particular person would gain from the possession of any particular piece of property. Nor can they be based on the benefit that society as a whole would derive from the enjoyment of a particular piece of property by a particular person. The apportionment of goods must be indifferent to everything “beyond what wou’d result from the possession of them by any other person.” The author recognizes that, “’Twere better, no doubt, that every one were possess’d of what is most suitable to him and proper for his use.” But this has two problems. First, it may be that the goods in question are equally suitable to a number of persons. Second, it would give rise to endless controversies, which would engage the bias and passions of people to the extent that they would be “absolutely incompatible with the peace of human society.” It was to preserve this peace that the agreement establishing the stability of property was made in the first place, “in order to cut off all occasions of discord and contention.” To avoid this consequence, justice (the rule of stability of property) must be indifferent to suitability and must take “more extensive views.” “Whether a man be generous, or a miser, he is equally well receiv’d by her [justice], and obtains with the same facility a decision in his favour, even for what is entirely useless to him.”

3. We need further general rules beyond the basic rule that possession must be stable, rather than particular applications of that general rule itself, on the basis of suitability. These rules “must extend to the whole society, and be inflexible either by spite or favour.” The author proposes to “illustrate this” by appeal to a thought-experiment, in which people in a pre-societal state are miserable and recognize that the formation of society would help alleviate it. They then “seek each other’s company, and make an offer of mutual protection and assistance.“ These hypothetical people are presumed to have the wisdom to recognize that the chief obstacle to the achievement of their goal is “the avidity and selfishness of their natural temper.” This is curbed by the institution of the rule of the stability of property. The author recognizes that this thought-experiment does not accurately represent the actual formation of existing societies, which grew “insensibly and by degrees.” Although such a society is not “natural” in this sense, it does reflect what people who have become cut off from existing societies would naturally do if they had to “form a new society among themselves; in which case they are entirely in the situation above mention’d.”

4. Their first problem, after the agreement is made, would be how to proportion the available goods. “This difficulty will not detain them long; but it must immediately occur, as the most natural expedient, that evey one continue to enjoy what he is at present master of, and that property and constant possession be conjoin’d to the immediate perfection.” Everyone will keep what he already has, and possession is transformed into property. The author gives a psychological justification for this “natural expedient,” in that the force of the imagination makes people attached to the things they already have, even if they are less valuable in themselves than other things that we know less well. “What has long lain under our eye, and haas often been employ’d to our advantage, that we are always the most unwilling to pwrt with; but can easily live without possessions, which we never have enjoy’d, and are not accustom’d to.” So the rule to which these hypothetical people would naturally accept is, “that every one continue to enjoy what he is at present possess’d of.”

Footnote. The author grants that people have other explanations for “most of” the rules governing the determination of property. Most prominent among them is “motives of public interest.” He acknowledges that when there are multiple explanations of the same phenomenon, the determination of the “principal and predominant” one is as difficult a problem as can face philosophy. “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 similar interests.” The author nonetheless champions his own explanations based on features of the individual imagination, over those based on public interest, even though the former are “the more frivolous properties of our thought and conception.” Still, he leaves it up to the reader to decide the matter. The rest of the footnote is devoted to the first rule, that of present possession, and the explanation the author gave to it.

The author appeals to his basic explanation of human psychology, which involves the imagination and the principles of the association of ideas. From the standpoint of the persons in the thought-experiment, property is a relation between a person and some unspecified objects, and it is a creation of the mind. In this case, “the mind is determin’d to join certain objects, but undertermin’d in its choice of the particular objects.” How is the union of the person and the objects to be “completed?” The answer is, by appeal to other relations which closely resemble it. “They are already united in the mind.” (The author notes that it is natural for the mind “to conjoin all sorts of relations,” so that it is even more natural to conjoin resembling ones.) Now we can apply this psychological mechanism to the relation of property. The relation the mind has formed is one of “constant possession, secur’d by the laws of society.“ This relation is completed (its objects fixed) by its resemblance to another relation, that of present possession. The two relations resemble each other, so we put the relation of property in order, so to speak, on the basis of its resemblance to present possession. What a person presently possesses is his property. The author notes that this process is based on a “love of order and uniformity, which arranges books in a library and chairs in a parlour.”

5. The rule of present possession is by itself useful only for the initial determination of property. Beyond that, if it were the only such rule, the results would be unacceptable. If someone took your property, he would then possess it presently, and it would be his, and there would be no basis for restitution. “Every injustice wou’d be authoriz’d and rewarded.” Thus, once society is in place, more general rules are needed. The author discovers “four most considerable, viz. OCCUPATION, PRESCRIPTION, SUCCESSION and SUCCESSION.“ Each will be examined briefly, beginning with occupation.

6. The source of our making first possession (occupation) a basis of property lies in the conditions which give rise to society in the first place: the instability of possessions and the misery it causes. To keep possessions stable, we must always attach them to someone as owner and never leave them ownerless. This need for continuity helps explain why we think that property belongs to the person who possessed it first. A second reason is that “the first possession always engages the attention most; and did we neglect it, there wou'd be no colour of reason for assigning property to any succeeding possession.”

Footnote. The author argues against an opposing explanation, according to which first possession bestows property rights because one is entitled to the fruit of one”s own labor, which one has “joined” to the product. [This is due to Locke, in his Two Treatises of Government.] If you made an object, you possessed it first, and it is yours to keep. The author levels three objections to this claim. 1) Sometimes we have first possession by virtue of an action that is not a production by labor, as when we gain possession of a meadow by letting our cows graze on it. 2) The proper use of this explanation is for the rule of accession, to be described below. So we would be explaining the rule of occupation by the rule of accession rather than directly, “which is taking a needless circuit.” 3) Strictly speaking, we do not “join” our labor to anything, but only alter the object through it. “This forms a relation betwixt us and the object; and thence arises the property, according to the preceding principles” [of association in the imagination, described in the footnote to paragraph 4].

7. Now the author raises the question of the meaning of “possession,“ which turns out not to be easy to determine. The most basic way in which we possess something is when we are touching it, but this is extended to “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.” So the relation of possession is a causal one, in which case property, which is derivative from possession, is a causal relation as well. This will be the cause of disputes, because power is a matter of probability (as all causal relations are). Whether we have power over something or not depends on the probability of interruption of the action we undertake with respect to the object. The author gives the example of a wild boar caught in a trap. We would be said to possess it because of the apparent impossibility of its escape. But, he notes, it is rather only improbable that it cannot escape, and where do we draw the line at how improbable its escape has to be in order for the boar to be in our possession? “Mark the precise limits of the one [impossibility] and the other [improbability], and show the standard by which we may decide all disputes that may arise, and as we find by experience, frequently do arise upon this subject.”

Footnote. It might appear that there are solutions to these difficulties in marking out the boundaries of possession. Reason and public interest are dismissed without comment. Imagination cannot solve the problem because the differences run into each other insensibly, so that “’tis impossible to give them any precise bounds or termination.” Add to this the problem that we treat cases differently depending on the circumstances. For example, I may be about to take possession of an object that is within my reach, but someone else beats me to it. If it is a rabbit that I have hunted to the point of exhaustion, it would be deemed an injustice for that person to take it, but if it is an apple that I am about to pick, it would not. The reason for the difference is that immobility is natural to the apple but not the rabbit. It is immobile because I have made it so by chasing it, which forms “a strong relation with the hunter,” which does not exist in the case of the apple.

This case apparently supports the claim that “a certain and infallible power of enjoyment, without touch or some other sensible relation” often fails to produce a relation of property. The power is not sufficient for property, nor is it necessary. Merely finding something for the first time is enough in some cases, as in the discovery of new lands. The author notes that something further is required both in cases of possession and in cases of discovery: an intention to become the proprietor. “And that because the connexion in our fancy betwixt the property and the relation is not so great, as that it requires to be help’d by such an intention.“

So occupation as a criterion of ownership leads to many difficulties in application. This can be seen as well in a real case, which is cited by almost all writers on the topic.

Two groups of Greek colonizers are informed of an abandoned city nearby. Each sent a messenger to find out whether it was true, and when they confirmed it, each raced to take possession of the city on behalf of his fellow colonists. One of them could not outrace the other, so he threw his spear, which was stuck in the city gates when the faster runner arrived. So who owned the city? They disputed the issue, and philosophers still do. “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 possess’d of any precise or determinate standard, upon which it can give sentence.”

If the two had been mere members, rather than representatives of the colonies, the feebleness of their relation to the larger group would give neither title of possession. Moreover, the gates have only symbolic significance, relative to the walls of the city, which might as well have been the basis of the claims. The significance of the gates is that “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.” Further, touch or contact, by hand or by spear, is not itself possession, but only establishes some relation to the object. There is a relation in both cases, though one might be more obvious than the other. At any rate, the author leaves it to wiser heads to decide the issue.

8. Similar disputes arise over the extent of property, and these too often cannot be decided, or can be decided only by the imagination. If someone discovers a small island by himself, it is his. But if the island were as big as Great Britain, it would not be. On the other hand, if a large group of people discovered the big island, it would be theirs.

9. Now the third rule is introduced, that of long possession (or prescription). This rule is required because first possession is often an obscure matter that is impossible to establish in many cases. “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.” Distances of space or time make objects “seem, in a manner, to lose their reality, and have as little influence on the mind, as if they never had been in being.” Even if the facts establishing someone”s entitlement established fifty years ago are known “with the greatest evidence and certainty now,” they do not have the same influence as they did before. This corroborates the claim made earlier, that property is not something real but an invention of the human mind. Time influences the sentiments in cases of long possession in a way that it does not influence real things.

Footnote. There can be conflicts between claims made on the basis of present possession and those made on the basis of first possession. Ordinarily, first possession wins out. But if the present possession is the continuation of a long line of possession, it becomes stronger, while the influence of first possession becomes proportionately weaker. “This change in the relation produces a consequent change in property.”

10. The fourth rule is that of accession, where (as mentioned in a footnote above), objects “are connected in an intimate manner in which objects that are already our property, and at the same time are inferior to them.” [The issue of the inferiority of the object owned by accession is discussed in the footnotes.] An apple that is produced by my apple tree is my property, even before it is possessed. This is again due to the work of the imagination, which puts objects connected in it on the same footing, and supposes them to have the same qualities. The apple is connected with the tree, the tree is my property, so the apple is my property. “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.”

Footnote. The imagination is the only possible way to explain this source of property. So there is not a case of “mixed” causes as were previously discussed. These causes will now be discussed and illustrated from ordinary life.

The first three laws, of present possession (on the original formation of society), first possession, and long possession, are explained by the psychology of the imagination. When we consider an object, our fancy is moved toward other, related objects, until the chain becomes too long for the imagination to pursue. The relation is weakened when we move further out, but not destroyed. Frequently a link is made by an intermediate object. This explains the right of accession.

The author illustrates this with an example of a German, a Frenchman, and a Spaniard, who enter a room with three bottles of wine, a Rhine wine, a Burgundy, and a Port. If they disputed over them, and umpire would give them the wine of their own country on the basis of the association of ideas, which is the basis of the laws of determination of property so far discussed.

In the cases of all of these laws, particularly accession, the natural union is followed by a moral (or human-centered) union. Now a difficulty arises, which can be used as a test of the explanation the author has been advancing. It has been observed above (Book II, Part 2, Section 2, Paragraph 15) that the imagination moves more readily from the lesser to the greater, than vice-versa. If the transition of ideas is what explains the right of accession, we should conclude that when someone owns a small object, he thereby owns a greater object related to it. But the contrary is the case. Consideration of idea of Great Britain suggests its ownership of the smaller nearby islands, but consideration of the ownership of one of the islands does not suggest that one of them owns Great Britain. “In short, a small object naturally follows a great one as its accession; but a great one is never suppos’d to belong to the proprietor of a small one related to it, merely on account of that property and relation.” This is in opposition to the direction of smooth flow in the understanding. “It may therefore be thought, that these phænomena are objections to the foregoing hypothesis, that the ascribing of property to accession is nothing but an effect of the relations of ideas, and of the smooth transition of the imagination.”

The objection is easily solved, however, by noting that one of the elements of the relation has been left out: the person who owns the object. When the imagination takes this view of things (which it may do, due to its “agility and unsteadiness”), the objects are both though of in relation to the person, in which case “we are apt to hoin them together, and place them in the same light.” If a person is related to a great object, the relation is a relatively strong one, and the strength of this relation passes over to the smaller object. But the relation to a smaller object is a weak one (“since his relation lies only with the most trivial part”), which is not apt to pass over to another object when the whole (the two objects and the person) are considered. “And this is the reason, why small objects become accessions to great ones, and not great to small.”

The law of the sea is another example. Philosophers and ordinary people agree that it belongs to no nation, on the grounds that it cannot be taken possession of. But where it can be taken over, as with inlets, “the most strenuous advocates for the liberty of the seas universally allow” that they are the property of the nation along whose coast they lie. The only real union these inlets have to the continent is in the imagination, and there is accession because they are inferior.

The example of the ownership of rivers is then discussed. In most cases, they belong to the owners of their banks. But if they are very large, like the Rhine or Danube, then they are not owned by those who own the banks. On the other hand, they do belong to the nations through which 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.”

Imagination also accounts for the way common people treat changes in the course of rivers. If land builds up on the riverbank gradually (through “alluvation”), the passage of ideas in the imagination is smooth, and the property goes to the owners of the original banks. But if it happens swiftly, it does not become such property until the vegetation has grown in, which assists the imagination in joining the new land with the old. “Before that, the imagination does not sufficiently join them.”

A different kind of difficulty arises in cases where the property of two people is joined in a way that they cannot be separated. “The question is, to whom the united mass must belong?”

We must distinguish between two kinds of union. One is where the two things, while they cannot be separated, can still be divided. In this case, the whole must be divided in proportion to the contribution of parts made by each party. [To take a simple case, if you and I mixed together the same amount of two different drinks, which cost the same, we would each be entitled to half the mixture.] The Romans distinguished between “confusion,” as with the mixing of liquids, and “commixtion,” as with the mixing of heaps of grains. In the former case, the author’s rule is adhered to. In the latter case, people still maintain ownership rights of the separable parts they contributed, even though “necessity may at last force them to submit to the same division” as would be made when there is confusion. This is explained by the fact that in the case of commixtion, the imagination does not unite the objects so strongly as it does in the case of confusion.

A long quotation from Justinian’s Institutes illustrates this process. The reason for the division might be that one of them has taken possession of the whole, and the other is entitled to his share.

If the properties are inseparable and not divisible either (a house built on someone else’s land), the whole must belong to one of the proprietors, the one who owns the most considerable part of the whole. This is understood again in terms of the force that the most considerable part has on the imagination. “The only difficulty is, what we shall be pleas’d to call the most considerable part, and most attractive to the imagination.”

The author now tries to explain how this might work, though he admits that there is no unified explanation. The superiority may be by virtue of constancy, durability, value, obviousness and remarkableness, extent, or more separate and independent existence. There are so many combinations and degrees, that many times there will be such an equal balance “that ’tis 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 undetermin’d.”

Proof of the contrariety of these principles are these conflicting deliverances of the civil law: the soil is more considerable than its surface, yet the writing is more considerable to the paper. And though the writing is more considerable than the paper, the canvas is more considreable than the picture on it.

The most curious of all these questions concerns a dispute between Proculus and Sabinus, which has divided scholars ever since. A person makes a cup from someone else’s metal or a ship from someone else’s wood. The person who supplied the materials wants them back. “The question is, whether he acquires a title to the cup or ship?” The view of Sabinus is that he does get these artifacts, because “the substance or matter is the foundation of all the qualities.” “It is incorruptable and immortal, and therefore superior to the form, which is causal and dependent.” Proculus maintained the contrary, that the form is most obvious and remarkable. This is what makes a thing the kind of thing it is. The author adds to his argument the fact that matter is not so substantial after all, but “so fluctuating and uncertain, that ’tis utterly impossible to trace it in all its changes.” The author does not know how to resolve the dispute. He does observe, though, that Tribonian had an ingenious solution. The cup belongs to the owner of the metal because it can be returned to its original form, while the ship belongs to the maker, because it cannot. At any rate, the reasons are traced to the imagination, since it is easy to imagine melting down the cup and difficult to imagine deforming the wood, since its “substance is more fix’d and inalterable.”

11. The fifth and final rule is that of succession, where property is passed on from parents to children or other near relations. There are two bases for this rule. The first is the presumed consent of the bequeather, the second is “the general interest of mankind, which requires, that men’s possessions shou’d pass to those, who are dearest to them, in order to render them more industrious and frugal.” The association of ideas may play a secondary role here, in that the idea of the deceased father passes easily to that of his son, and so the idea of the relation he has to his property passes over to his son as well. They have to go to somebody, so it is most natural to assign them to the person most readily associated with the deceased. There are “many parallel instances” of this.

Footnote. The author notes a particular parallel, the right to succession to a head of government, which can be explained in numerous ways. Here, he only illustrates the role of the imagination with an example of a person who dies childless. Who gets the property? Claims may be made by many of the relations. If he got his property from others in the family (say his surviving father and mother), it should be divided among them. Only the imagination can explain the “equity and natural reason” of this solution. We cannot explain it by presuming his consent, since his affection for his parents is not based on his possessions. [He might not have had his possessions in mind at all when considering them, and hence never gave his consent for them to have his property.]. And public interest does not seem to be involved at all.

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