OF THE TRANSFERENCE OF PROPERTY BY CONSENT.
However useful, or even necessary, the stability of possession may be
to human society, 'tis 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 dissensions, 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 'tis
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; 'tis
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 manor.
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.