The Influence Of Time On Possession

The title of first possession often becomes obscure through time.
    It is impossible to determine many controversies arising from it.
    In this case, long possession or prescription naturally takes place.
        It gives a person a sufficient property in anything he enjoys.
The nature of human society does not admit of any great accuracy.
    We can not always remount to the first origin of things to determine their present condition.
Any considerable span of time sets objects at such a distance, that they:
    lose their reality, and
    have as little influence on the mind, as if they never had existed.
        A man's title, that is clear and certain at present, will seem obscure and doubtful after 50 years, even if the facts it is founded on can be proven.
The same facts do not have the same influence after such a long interval of time.
    This may be a convincing argument for our preceding doctrine on property and justice.
Possession during a long tract of time conveys a title to any object.
But as everything is produced in time, there is nothing real produced by time.
    It follows that property, being produced by time, is not a real object.
    It is the offspring of the sentiments, on which time alone has any influence.18

We acquire the property of objects by accession when they are connected intimately with objects that are:
    already our property, and
    inferior to them.
Thus, our garden's fruits, our cattle's offspring, and our slaves' work, are all esteemed our property even before possession.
When objects are connected together in the imagination, they are:
    put on the same footing, and
    commonly supposed to have the same qualities.
We readily pass from one object to the other.
    We make no difference in our judgments on them, especially if the latter are inferior to the former.19

Footnote 18:

Present possession is plainly a relation between a person and an object.
    But it is not enough to counter-balance the relation of first possession, unless the present possession is long and uninterrupted.
    In this case, the relation is:
        increased on the side of the present possession, by the amount of time, and
        reduced on that of first possession, by the distance of time.
    This change in the relation produces a consequent change in the property.

Footnote 19:

This source of property can only be explained from the imagination.
    The causes are unmixed in the imagination.
The mind has a natural propensity to join relations, especially resembling ones.
    It finds a kind of fitness and uniformity in such a union.
    These laws of nature are derived from this propensity.
        Property always follows the present possession on the first formation of society.
        It afterwards arises from the first or long possession.
Relation is not confined merely to one degree.
    It is confined from an object that is related to us.
    We acquire a relation to every other object related to it, and so on, until the thought loses the chain by too long a progress.
No matter how the chain is weakened by a removed relation, it is not immediately destroyed.
    It frequently connects two objects through an intermediate object related to both.
This principle has such force that it:
    gives rise to the right of accession, and
    causes us to acquire the property of the objects:
        that we have, and
        that are closely connected with them.
Suppose a German, a French, and a Spaniard come into a room with a bottle of Rhenish, Burgundy and Port on a table.
    If they quarrel on their division, an umpire would naturally give each the product of his own country to show his impartiality.
    This is from a principle that ascribes property to occupation, prescription and accession.

In all these cases, particularly that of accession, there is first a natural union between:
    the idea of the person, and
    the idea of the object.
Afterwards, there is a new and moral union produced by that right or property, which we ascribe to the person.
But a difficulty occurs here which:
    merits our attention, and
    may give us an opportunity to test this reasoning.
The imagination passes with greater facility from little to great, than from great to little.
    The transition of ideas is always easier and smoother in the former than in the latter.
The right of accession arises from the easy transition of ideas which connects related objects.
    Thus, the right of accession increases in strength as the transition of ideas is performed with greater facility.
When we have acquired the property of any small object, we readily consider any great object related to it as
    an accession, and
    as belonging to the proprietor of the small one.
Since in that case, the transition from the small to the great object:
    is very easy, and
    should connect them together in the closest way.
But in fact, the case is always found to be otherwise.
    The empire of Great Britain seems to draw the Orkneys, Hebrides, Isle of Man, and Isle of Wight in its dominion.
    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 supposed to belong to the proprietor of a small one related to it, merely because of that property and relation.
        In this 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 object,
        than in the former case:
            from the proprietor to the great object, and
            from the great object to the small object.
These phenomena are objections to the foregoing hypothesis: that the ascribing of property to accession is nothing but an affect of:
    the relations of ideas, and
    the smooth transition of the imagination.

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."

Where the properties of two persons are united and cannot be separated, as when one builds a house on another's ground, the whole must belong to one of the proprietors.
    It naturally is conceived to belong to the proprietor of the most considerable part.
The compound object may:
    have a relation to two 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 of greater extent, 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.