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CHAPTER VI: The Methods of Acquiring Property. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

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Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER VI

The Methods of Acquiring Property.

I. Property is either original or derived. The original property arises from the first occupation <and culture> of things formerly common. The derived is that which is transferred from the first [former] Proprietors.1

Whosoever either from a desire of preserving himself, or profiting any who are dear to him, first occupies any of the spontaneous fruits of the earth, or things ready for human use on which no culture was employed, either by first discovering them with intention immediately to seize them, or by any act or labour of his catching or enclosing them so that they are more easily attainable and secured for human use, is deemed justly the proprietor for these reasons; that if any other person, capable of subsisting otherways, would wrest from him what he had thus acquired, and defeat and disappoint his labours, he would plainly act inhumanly, break off all friendly society, and occasion perpetual contention. What this person pretends to now, he may attempt anew every hour: and any other person may do the same with equal right: and thus all a mans pains in acquiring any thing may be defeated, and he be excluded from all enjoyment of any thing unless he perpetually defend his acquisitions by violence.

’Tis trifling to imagine2 that property is any physical quality or bond between a man and certain goods, and thence to dispute that there’s no such force or virtue in first espying, touching, striking, or inclosing anything, as to constitute a sacred right of property; or to debate which of all these actions has the greatest virtue or force. For in all our inquiries into the grounds or causes of property, this is the point in question, “what causes or circumstances <and what conditions of goods> shew, that it is human and equitable toward individuals, <fit> and requisite also to the maintainance of amicable society, that a certain person should be allowed the full use and disposal of certain goods; and all others excluded from it?” and when these are discovered, our road is cleared to find out the causes and rules about property.

II. Thus therefor we should judge about the different methods of occupation: that ’tis inhuman and unjust, without the most urgent necessity, to obstruct the innocent labours others have begun and persist in, or by any speedier attempt of ours to intercept their natural profits. If therefor any person in search for things requisite for himself, first discovers them with intention immediately to seize or pursue them; one who had employed no labour about them, nor was in search for them, would act injustly and inhumanly, if by his greater swiftness he first seized them for himself. If severals at once were searching for such things, and at once discover them by sight <easy to be seized>, they will be common among them, even altho’ one swifter than the rest first touched them; unless by civil laws or custom such points be otherways determined. If one first espies them, and another conscious of his design, but also in search for such things for himself, first seizes them, the things will be common to both, or in joint property: for there are no more potent reasons of humanity on one side than on the other. If one by his labour or ingenuity incloses or ensnares any wild animals, or so wearies them out in the chase that they can now easily be taken; ’tis a plain wrong for another <unless pressed by a more grievous necessity> to intercept them, tho’ the former had neither seen nor touched them <first>. If it is known to many that certain lands or goods lay common to be occupied by any one; and severals, not conscious of each others designs, at once are preparing to occupy them, and set about it: by the custom which has obtained, he that first arrives at them is the proprietor. But, abstracting from received customs {and laws}, such things should be common to all who without fraud or imprudent negligence employed their labours in occupying them, whether they came earlier or later; and should either be held in common, or divided among them in proportion to expence and pains prudently employed by each of them for this purpose. Nay tho’ each of them were aware of the designs of the rest; ’tis right that each should proceed and acquire a joint title with others. Nor should those who without any fault of their own came too late, or such whose wise and vigorous attempts have been retarded by accidents, be precluded from their share.

In such disputable cases we should first inquire what reasons of humanity give the preference to any one above the rest; and this chiefly, “that the natural fruits of no man’s honourable or innocent labours should be intercepted; or any honest industrious attempts defeated.” If this plea belongs alike to all, the goods should be deemed in joint property of all. If some accidents or circumstances make the point very doubtful; and some sorts of goods can neither be held in common, nor divided or sold without great loss; we should follow some implicite conventions of men, appearing by the laws or customs which prevail; and assign the property to him who has on his side such circumstances the regarding of which prevents many inextricable disputes and violent contentions. Hence it is that law and custom so generally favour the first seizer, the publick purchaser, and the person to whom goods have been publickly delivered. And this conduces to [requires] the common utility.

If different persons intending to occupy agree that the whole should fall to him who first occupies; they ought also to specify the manner of occupation; otherways different methods may be deemed equally valid, and constitute a joint property. These rules seem the most conducive to peace.

No doubt inextricable questions may arise about what the several parties insisting on their utmost rights may do, without being chargeable with injustice. But such as sincerely aim at acting the virtuous part, will always easily discern what equity and humanity require, <what is worthy of a good man,> unless they are too much influenced by selfishness. Nor have we reason to complain, that, in these and such like cases, nature has not precisely enough fixed the boundaries, to let us see how very near we may approach to fraud or injury, without actually incurring the charge of it; when we are so loudly exhorted to every thing honourable, liberal and beneficent.3

III. But as man is naturally endued with provident forethought, we may not only justly occupy what’s requisite for present use, but may justly store up for the future; unless others be in some extraordinary distress. There are also many things requiring a very long course of labour to cultivate them, which after they are cultivated yield almost a perpetual and copious use to mankind. Now that men may be invited to such a long course of labour, ’tis absolutely requisite that a continual property be allowed them as the natural result and reward of such laborious cultivation. This is the case {in clearing woody grounds} for tillage or pasture; {preparing} vineyards, oliveyards, gardens, orchards{; in rearing or breaking} of beasts for labour (and many others similar).4

Property is deemed to begin as soon as one begins the culture of what before was unoccupied; and it is compleated when the cultivator has marked out such a portion as he both can and intends to cultivate, by himself or such as he can procure to assist him. As ’tis plainly injust to obstruct any innocent labours intended, or to intercept their fruits.

But the abilities of the occupier with his assistants must set bounds to his right of occupation. One head of a family, by his first arriving with his domesticks upon a vast island capable of supporting a thousand [many] families, must not pretend to property in the whole. He may acquire as much as there’s any probability he can cultivate, but what is beyond this remains common. Nor can any state, on account of its fleets first arriving on a vast continent, capable of holding several empires [states], and which its colonies can never sufficiently occupy, claim to itself the dominion of the whole continent.5 This state may justly claim as much as it can reasonably hope to cultivate by its colonies in any reasonable time: and may no doubt extend its bounds beyond what it can cultivate the first ten or twelve [fifteen] years; but not beyond all probable hopes of its ever being able to cultivate. The just reasonable time to be allowed to the first occupiers, must be determined by prudent arbiters, who must regard, not only the circumstances of this state, but of all others who may be concerned, according as they are more or less populous, and either need new seats for their colonies, or have already sufficient lands for their people. If many neighbouring states are too populous, they may justly occupy the uncultivated parts of such a new discovered continent, leaving sufficient room for the first occupiers; and that without the leave of the first discoverers. Nor can the first discoverers justly demand that these colonies sent by other states should be subjected to their empire. ’Tis enough if they agree to live amicably beside them as confederated states [under a few common laws]. Nay as in a free democracy [nation], ’tis often just <by agrarian laws> to prevent such immoderate acquisitions of wealth by a few, as may be dangerous to the publick{, even tho’ these acquisitions are a making without any private injuries}: so neighbouring states may justly take early precautions, even by violence if necessary, against such acquisitions of any one, as may be dangerous to the liberty and independency of all around them; when sufficient security cannot be obtained in a gentler way.6 Nothing can be more opposite to the general good of mankind than that the rights, independency, and liberty of many {neighbouring] nations should be exposed to be trampled upon by the pride, luxury, ambition, or avarice of any [only one] nation.

’Tis plain however, that both individuals and societies should be allowed to acquire stores of certain goods far beyond all their own consumption; since these stores may serve as matter of commerce and barter to obtain goods of other kinds they may need.

IV. From these principles about property it appears, that such things as are inexhaustible by any use, are not matters of occupation or property, so that others could be excluded from them: for this further reason too, that such things can scarce be improved by any human labour. If indeed for the more safe use of any of them labour or expences are requisite; those who wisely employ labour or expence for this purpose, may justly require that all others who use them should in a just proportion contribute to make compensation. The air, the light, running water, and the ocean are thus common to all, {and cannot be appropriated:} the same is the case of straits or gulphs. And yet if any state is at the expence to build fortified harbours or to clear certain seas from Pyrates for the behoof of all traders, they may justly insist on such taxes upon all traders who share the benefit as may proportionally defray the said expences, as far as they really are for the benefit of all traders, but no further.7 Now no man should be excluded from any use of things thus destined for perpetual community, unless this use requires also some use of lands which are in property.

These reasonings also shew that all things were left by God to men in that community called negative, not positive. Negative community is “the state of things exposed to be appropriated by occupation.” Positive community is “the state of things in the joint property of many”: which therefor no person can occupy or acquire without the consent of the joint proprietors. At first any one might justly have occupied what he wanted, without consulting the rest of mankind; nor need we have recourse to any old conventions of all men, to explain the introduction of property.8

V.9 The goods called by the Civilians res nullius, which, as they say, are not in property, and yet not exposed to occupation;{* } such as temples, the fortifications of cities, and burial-places [sacred, holy or religious buildings or places], are truly the property either of larger societies, or of families; altho’ this property is often so restricted by superstitious laws, that it can be turned to no other use.10 ’Tis vain to imagine that any such things afford use to the Deity, or that his supreme right over all can be enlarged or diminished by any human deed.

The goods belonging to states{* } are not in the property or patrimony of any individuals, nor come into their commerce. But they are the property of the community, which may transfer them as it pleases. Such are publick theatres, high-ways, porticos, {aqueducts,} bagnios.

Things formerly occupied may return into the old state of community if the proprietor throw them away, or abandon his property; and this intention of abandoning may sometimes sufficiently appear by a long neglect of claiming it, when there’s nothing to obstruct his recovery. A long possession in this case will give another a just title. Goods unwillingly lost fall also to the fair possessor, when the proprietor cannot be found. There are also other reasons why civil laws have introduced other sorts of prescription{† } for the common utility, and to prevent inextricable controversies.

In the occupying of lands, a property is also constituted in such things as cannot be used without some use of the ground; such as lakes, <pools,> and rivers as far as they flow within the lands in property; nay such parts also of things otherwise fit for perpetual community, as cannot be left open to promiscuous use without indangering our property; such as bays of the sea running far into our lands, and parts of the ocean contiguous to the coast, from whence our possessions might be annoyed. But by occupying lands we acquire no property in such wild creatures as can easily withdraw themselves beyond our bounds, and are no way inclosed or secured by our labour. And yet the proprietor may justly hinder others from trespassing upon his ground for fouling, hunting, or fishing.

All {natural, accidental, or artificial} improvements, {or adventitious increase}, are called accessions, such as fruits of trees, the young of cattle, growth of timber, and artificial forms [such as fruits, increases, floods, mixtures, fusions, specifications].{‡ } About which these general [very easy] rules hold, 1. “All accessions of our goods which are not owing to any goods or labours of others, are also our property; unless some other person has acquired some right which limits our property.”

2. When without the fraud or fault of any of the parties, the goods or labours of different persons have concurred to make any compound, or have improved any goods, “these goods are in joint property of all those whose goods and labours have thus concurred; and that in proportion to what each one has contributed.” Such goods therefor are to be used by them in common, or by turns for times in the said proportion, or to be thus divided among them, if they will admit division without loss.

3. But if they admit no such common or alternate use, or division, they to whom they are least necessary should quit their shares to the person who needs them most, for a reasonable compensation, to be estimated by a person of judgment and integrity.

4. When by the fraud or gross fault of another, his goods or labours are intermixed with my goods, so that they are less fitted for my purpose; the persons by whose gross fault this has happened is bound to compensate my loss{* } or make good to me the value of my goods, nay{‡ } all the profit I could have made had they been left to me entire as they were; and let him keep to himself the goods he has made unfit for my purpose. But if by the intermedling of others my goods are made more convenient for me, my right remains; and I can be obliged to compensate to them no further than the value of the improvement to my purposes, or as far as I am enriched.

Full property originally contains these several rights: first, that of retaining possession, 2. and next, that of taking all manner of use. 3. that also of excluding others from any use; 4. and lastly, that of transferring to others as the proprietor pleases, either in whole or in part, absolutely, or under any lawful condition, or upon any event or contingency, and of granting any particular lawful use to others. But property is frequently limited by civil laws, and frequently by the deeds <or contracts> of some former proprietors.11

[1. ]See System 2.7.1, vol. I, pp. 324.

[2. ]Literally: “Those are trifling who imagine that property ... and thence dispute ... or debate....” Pufendorf criticizes the same idea in De iure nat. 4.4.1–2. Cf. Hume, who connected the idea of property to some rules of association of ideas “fix’d by the imagination” (see the long notes to A Treatise of Human nature 3.2.3). In his letter to Hutcheson of Jan. 10th, 1743 (Letters of David Hume, pp. 47–48), Hume criticizes Hutcheson for ascribing “the Original of Property & Justice” “sometimes to private Benevolence,” and “sometimes to public Benevolence” and for “condemn[ing] Reasonings, of which I [that is Hume] imagine I see so strongly the Evidence.” Hutcheson here follows Locke and connects property right with labour, while Hume, as well as Pufendorf, though in different ways, cannot understand the origin of property without a convention (Hume, Treatise 3.2.2, p. 489 ss., and Pufendorf, De iure nat. 4.4.4)

[3. ]This paragraph is much longer than the parallel one in System 2.7.2, vol. I, p. 325–26. This is an exception and perhaps also a clue that Hutcheson did not like Hume’s long notes on the association of ideas just mentioned.

[4. ]See System 2.7.1, vol. I, pp. 324–25.

[5. ]See System 2.7.3, vol. I, pp. 326–27.

[6. ]See System 2.7.3, vol. I, p. 327.

[7. ]See System 2.7.5, vol. I, pp. 329.

[8. ]See System 2.7.5, vol. I, pp. 330–31. Also, Pufendorf emphasizes this distinction between negative and positive community, to reach the opposite conclusion, that the origin of property is by convention (De iure nat. 4.4.2 and 4)

[9. ]The fifth section in the Institutio does not begin here, with the treatment of res nullius, but afterward, with the treatment of the accessions.

[* ]{Of these there are 3 classes, sacrae, sanctae, religiosae, Of which follow three examples in order.} [The three examples picked up by the translator are drawn from System 2.7.6, vol. I, p. 331].

[10. ]The “superstitious laws” Hutcheson is referring to are clearer in System 2.7.6, pp. 332–335, where he enlarges on “some wild notion of consecration or sanctity infused into stones, timber, metals, lands” and against “the Popish religion.”

[* ]{Res publicae, or res populi.}

[† ]{Usucapio} [on Prescription see System 2.7.7, vol. I, pp. 335–36; Pufendorf, De officio I.12.15.]

[‡ ]{Fructus, incrementa, alluviones, commixtiones, confusiones, specificationes. The explication of all these may be found in any compend of civil law, or law dictionary.} [On the accessions see System 2.7.8, vol. I, pp. 337–38.]

[* ]{This pensatio damni, which is often due when there was no fraud in the case.}

[‡ ]{Pensare quod interest, which always includes the former, and often extends much further.}

[11. ]See System 2.7.9, vol. I, pp. 338–39.