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This source of property can never be explain'd but from the imaginations; and one may affirm, that the causes are here unmix'd. We shall proceed to explain them more particularly, and illustrate them by examples from common life and experience. It has been observ'd above, that the mind has a natural propensity to join relations, especially resembling ones, and finds a kind of fitness and uniformity in such an union. From this propensity are deriv'd 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 confin'd 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, 'tis not immediately destroy'd; 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 possess'd 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 plac'd upon the table three bottles of wine, |Rhenish, Burgundy and Port; and suppose they shou'd fall a quarrelling about the division of them; a person, who was chosen for umpire, wou'd 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 produc'd 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 employ'd on the present subject. I have already observ'd, 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 shou'd naturally be imagin'd, that the right of accession must encrease in strength, in proportion as the transition of ideas is perform'd with greater facility. It may, therefore, be thought, that when we have acquir'd 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 shou'd 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 suppos'd 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 phænomena are objections to the foregoing hypothesis, that the ascribing of property to accession is nothing but an affecteffect of the relations of ideas, and of the smooth transition of the imagination. 'Twill 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 consider'd 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, consider'd together, because be 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, consider'd 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. 'Tis the general opinion of philosophers and civilians, that the sea is incapable of becoming the property of any nation; and that because 'tis 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 bays 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 wou'd 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 consider'd 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 itthey 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 join'd 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 suppos'd 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 establish'd 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, quæ cujusque propria fuerunt, ex consensu vestro communicata sunt. Quod si casu id mistum fuerit, vel Titius id miscuerit sine tua voluntate, non videtur id commune esse; quia singula corpora in sua substantia durant. Sed nec magis istis casibus commune sit frumentum quam grex intelligitur esse communis, si pecora Titii tuis pecoribus mista fuerint. Sed si ab alterutro vestrûm totum id frumentum retineatur, in rem quidem actio pro modo frumenti cujusque competit. Arbitrio autem judicis, ut ipse æstimet quale cujusque frumentum fuerit. Inst. Lib. II. Tit. 1. §. 28. 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 conceiv'd 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 pleas'd 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. 'Twill be easy to conceive, that, as these circumstances may be conjoin'd and oppos'd in all the different ways, and according to all the different degrees, which can be |imagin'd, there will result many cases, where the reasons on both sides are so equally ballanc'd, 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. 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 deriv'd. 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 shou'd make a cup from the metal of another, or a ship from his wood, and suppose the proprietor of the metal or wood shou'd demand his goods, the question is, whether he acquires a title to the cup or ship. Sabinus maintain'd 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 observ'd, 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 'tis utterly impossible to trace it in all its changes. For my part, I know not from what principles such a controversy can be certainly determin'd. 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 fix'd and unalterable.