Addressing the Objection

It will be easy to solve this objection if we consider the imagination’s agility and unsteadiness, with the different views it is continually placing its objects in.

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 object to the other object related to it.

The objects are here to be considered as the person’s property.

We are apt to join them together and place them in the same light.

Suppose a great and a small object are related together.

If a person is 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 is only related to the small object, he will not be strongly related to both.

Since his relation lies only with the most trivial part, which does not strike us as much.

This is why small objects become accessions to great ones instead of the other way around.

Philosophers and civilians think that the sea is incapable of becoming the property of any nation because it is impossible to:

• take possession of it, or
• form any 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 they are regarded as an accession because they:

• are united in the fancy, and
• are inferior at the same time.

By the laws of most nations and by the natural turn of our thought, the property of rivers is attributed to the proprietors of their banks, except for vast rivers as the Rhine or the Danube.

These are too large for the imagination to follow the property of the neighbouring fields as an accession.

Yet even these rivers are considered as the property of the nation through which they run through.

The idea of a nation has a suitable size to:

• correspond with them, and
• bear them such a relation in the fancy.

Civilians say that the accessions made to lands bordering on rivers, follow the land if it is made by alluvion or by a gradual increase by the slow addition of land.

These mightily assist the imagination in the conjunction.

When any considerable portion is torn from one bank and joined to another, it does not become the property of that land:

• until it unites with the land, and
• until the trees or plants have spread their roots into both.

Before that, the imagination does not sufficiently join them.

There are other cases which resemble this case of accession, but are different in the end.

An example is the conjunction of the properties of persons that cannot be separated.

The question is, to whom the united mass must belong.

When this conjunction allows division but not separation, the decision is natural and easy.

The whole mass is supposed to be common between the proprietors.

It afterwards must be divided according to the proportions of these parts.

But I cannot refrain from noticing a remarkable subtlety of the Roman law in distinguishing between confusion and mixture.

Confusion is a union of two bodies, such as different liquors, where the parts become entirely undistinguishable.

Mixture is the blending of two bodies, such as two bushels of corn, where the parts remain separate in an obvious manner.

In mixture, the imagination does not discover an entire a union as in confusion.

But it is able to trace and preserve a distinct idea of the property of each.

Civil law established an entire community in the case of confusion and a proportional division.

This is why in the case of mixture, civil law supposes each of the proprietors to maintain a distinct right, no matter how necessity may force them to submit to the same division.

Inst. Lib. IL Tit. i. Sect 28:

“In case your grain was mixed with Titius’ grain, if it was done voluntarily by both of you, it is common property, as if your single grains were combined with your joint consent. If the mixture was accidental, or if Titius mixed it without your consent, it is not common property, as the grains retain their original identity. In this case, the grain does not become common property, any more than a herd of cattle is regarded as common property, if Titius’ cattle should have become mixed up with yours. However, if all of the corn is kept by either, this creates a suit to determine the ownership with respect to the amount of corn belonging to each. It is in the judge’s discretion to determine which is the corn belonging to either party.”

The properties of two persons might become united and cannot be separated.

• An example is when one builds a house on another’s land.

In such a case, the whole must belong to one of the proprietors.

I assert that it naturally is conceived to belong to the proprietor of the most considerable part.

The compound object may:

• have a relation to 2 different persons, and
• carry our view to both of them at once

But the most considerable part principally engages our attention.

By the strict union, it draws the inferior part with it.

This is why the whole:

• bears a relation to the proprietor of that part, and
• is regarded as his property.

The only difficulty is what we shall call:

• the most considerable part, and
• the most attractive to the imagination.

This quality depends on several circumstances which have little connection with each other.

One part of a compound object may become more considerable than another because:

• it is more constant and durable,
• it is of greater value,
• it is more obvious and remarkable,
• it is larger, or
• its existence is more separate and independent.

These circumstances may be conjoined and opposed:

• in all the different ways, and
• according to all the different degrees imaginable.

There will be many cases where the reasons on both sides are so equally balanced.

It would be impossible for us to give any satisfactory decision.

This is the proper business of municipal laws: to fix what the principles of human nature have left undetermined.

The civil law says:

• the superficies yields to the soil,
• the writing yields to the paper, and
• the canvas yields to the picture.

These decisions:

• do not agree well together, and
• are a proof of the contrariety of the principles they are derived from.