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CHAPTER VII: Of Derived 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 VII

Of Derived Property.

I. The derived <adventitious> rights are either real or personal. The materials whence all real rights arise is our property. Personal rights are founded on our natural liberty, or right of acting as we choose, and of managing our own affairs. When any part of these original rights is transferred to another, then a personal right is constituted <to him>.

To apprehend this distinction, which has place in the law of nature, as well as in civil law, ’tis to be observed, that the common interest of all constantly requires an intercourse of offices, and the joint labours of many: and that when mankind grow numerous, all necessaries and conveniences will be much better supplied to all, when each one chooses an art to himself, by practice acquires dexterity in it, and thus provides himself great plenty of such goods as that art produces, to be exchanged in commerce for the goods produced in like manner by other artisans; than if each one by turns practised every necessary art, without ever acquiring dexterity in any of athem.1

’Tis plain too, that when men were multiplied considerably, all lands of easy culture must soon have been occupied, so that {there would none remain in common; and that} many could find none to occupy for their support, such persons therefor would have no other fund than their own bodily strength or ingenuity, that by <exchanging> their common or artificial labours <with the goods of others> they might procure necessaries for themselves: the more opulent too{, for their own ease,} would more frequently need the labours of the indigent, and could not with any conscience expect them gratuitously. There must therefor be a continual course of contracts among men, <the nature of which has to be explained afterward> both for the transferring of property or real rights; and the constituting claims to certain services, and to certain quantities or values, to be paid in consideration of these services; which are personal rights.

Now it would often happen that a proprietor without entirely transferring his property in lands or other goods, would yet consent so to subject them to certain claims of his creditor, that unless the debt be discharged at the time agreed, the creditor by the possession or sale of such lands or goods might secure himself: by a transaction of this kind a real right is constituted <to the creditor>. Sometimes the creditor would have such confidence in the wealth and integrity of his debtor, that he would demand no such real security as {a pledge or} mortgage, but accept of a personal obligation, which had no more peculiar respect to any one piece of goods or property of the debtor than another. In like manner; from any damage done there would arise only a personal right. But further, when it was found absolutely necessary to maintain the faith of <swelling> commerce, certain publick and notour2 forms have been received, to make full translation of property: which must have always been deemed so valid and sacred, that no prior latent contracts with others could defeat them. Were not such forms thus agreed upon, no man would buy any thing; since he could have no security that it would not be wrested from him by a third person upon some prior latent contract. A good man no doubt will sacredly regard all his {contracts and} obligations personal or real{; and avoid what may defeat any right of another of any kind}. But there’s such a necessity of maintaining the faith of publick commerce,{* } that all contracts entered into publickly and without fraud, in order to transfer real rights, must take place of {latent contracts and} personal rights, tho’ prior in time.

II. Derived real rights are either certain parts of the right of property, subsisting separately from the rest; or compleat property transferred. The parts which often subsist separately are four, the rights of possessing what [the goods of another that] one obtains without force or fraud; the rights of heirs in entail [hereditary rights]; the rights of the pledge or mortgage; and servitudes.

[1.] He that possesses the goods of another without fraud or violence, either knows that they are the property of others; or upon probable ground believes them to be his own. And this latter is the bonae fidei possessor, or the presumptive proprietor.3

Whosoever by fraud or violence possesses the goods he knows belong to others, has no manner of right. The proprietor, or any other honest man for the proprietor’s behoof, has a right to demand and take them from him by force, to restore them to the proprietor. But when we get possession of any goods without fraud or violence, which we know belong to others, (as when one finds goods lost at land, or wrecks at sea), these we may detain till they are claimed by the proprietor, or some person commissioned by him; and if no such person ever appears, the goods fall to the possessor. But in such cases the possessor is bound to give publick notice that he has found such goods, and is ready to restore them to the owner: to conceal them would be equal to theft. But he may justly insist to have all his prudent charges in the keeping or advertising them refunded to him.

The obligations on the presumptive proprietor are, first to restore to the owner the goods, with all their unconsumed fruits{, profits and increase}.

2. If the goods or their increase be consumed, to refund to the value of what he is inriched by the use of them, in sparing so much of his own property; or as much as it can be deemed valuable to him to have so long lived with more elegance or pleasure, considering his circumstances. For ’tis a just maxim, that “no person should derive to himself any pleasure or advantage at the expence of another without his consent.”

3. If both the goods and their increase have perished by accident, the presumptive proprietor {who holds no profit by them} is not obliged to make good the value: nor is he accountable for such profits as he neglected to take: for he used these goods {believing them to be his own, even} as he would have used his own. But one ceases to be deemed presumptive proprietor as soon as he has any probable intimation that the goods are not his own{, by any plausible claim put in by another}: and whatever is culpably lost, squandered or grosly neglected thereafter he is bound to make good.

4. When the presumptive proprietor restores to the true owner any goods he bought or obtained for valuable consideration; he may justly insist to have the price or consideration restored to him by his author, or the person from whom he obtained them.

5. Where this person is bankrupt, {or can’t be found,} the cause of the presumptive proprietor is as favourable as that of the true one. Nor does the true proprietor hold by any title more sacred than by purchase, succession, testament, or donation, which are the ordinary foundations of the true property, as well as of the presumptive. And since a certain loss must fall upon one or both parties, nor is there any reason of publick interest pleading for one more than the other; the loss should be equally divided between them, unless some reasons of humanity <and liberality> recommend a different decision; especially since it often happens, that the presumptive proprietor has done a most valuable service to the proprietor, in purchasing his goods, which otherways might have been lost to him for ever. If one pleads the general advantage of making purchasers look well to their titles, that they may not purchase goods injuriously obtained: ’tis on the other hand an equal publick advantage that the proprietors be made more vigilant about their goods, least when they are lost or stollen through their negligence, fair purchasers may be involved in losses by their means.

6. Where the presumptive property has been obtained [bestowed to another] gratuitously, and the goods are claimed by the true owner, they must be restored. Nor has the person who got them gratuitously in this case any recourse for their value.

III. Concerning the right of heirs in entail,4 these points seem clear; that one who has full property may transfer his goods to any person upon any contingency, or under any lawful conditions. The right therefor of persons in remainder is as sacred as any right founded in donation: nor is it less inhuman to hinder the proprietor to convey his property to a person dear to him, upon any contingency, than to hinder a friendly immediate donation, or conveyance to his first heir upon the event of his death. It is no less inhuman to defeat the hopes of the second or third in remainder, without any demerit of theirs, than to intercept other donations to friends. And yet there may be prudent reasons why civil laws should prevent making such perpetual entails as may be very inconvenient to the several successors in their turns, or pernicious to the community; even as courts of equity often make void prodigal and inconsiderate donations.

IV. For further security to creditors pledges {and mortgages} were introduced, or goods so subjected to the power of the creditor{* } that, if the debt is not discharged at the time prefixed, the goods should become the property of the creditor. In this there would be no iniquity, if the creditor in such cases were also obliged to restore to the debtor whatever surplus of value there was, upon a just estimation of the goods, beyond the sum of the debt.{† } <Yet often the goods are not transferred to the creditor, but by some public forms a real right is conferred on him, called hypotheca or mortgage>. Where such real security is given, it takes place of all prior debts, which have not been publickly intimated before the mortgage. Nor can prior creditors justly complain <that their personal rights yield to the following real right>: let them blame themselves that they insisted not on higher security, and thus are postponed to creditors who using more caution insisted on higher, <without which they would have not trusted the debtor,> and who had no notice of their prior claims.

V. The last class of real rights are servitudes that is “rights to some small use of the property of others”; which generally arise from contracts; or from this that in the transferring of property they have been reserved by the granter; or sometimes from civil laws. All servitudes are real rights, terminating upon some definite tenement. And yet with regard to the subject they belong to, and not the object they terminate upon, they are divided into real and personal. The personal are constituted in favour of some person, and expire along with him: the real are constituted for the advantage of some <near> tenement, and belong to whatever person possesses it.{‡ } An instance of the former is tenantry for life impeachable for waste <usufructus, usus, habitatio and similar others>.5 The real servitudes are either upon town-tenements, or farms in the country. Instances of the former are the rights of putting beams or rafters into a neighbouring gable or wall; a right that our windows shall not be obstructed by any building in the adjacent tenement; and such like.6 The rural servitudes, are chiefly that of roads for passage or carriages, or of little channels for rivulets, brought through a neighbouring farm [The rural servitudes consider founds, as iter, actus, via and others more copiously treated by jurists].7

[1. ]This first section has its parallel in System 2.8.1, vol. I, pp. 340–43. However in the System there is no reference to the advantages of the division of labour, nor to the scarcity of unoccupied lands and the need of the “labours of the indigent” by the proprietors.

[2. ]Scot. for “notorious.”

[* ]{Whatever may be determined by human laws or courts, there is no natural foundation in justice for preferring the pledge or mortgage as to any loans made after he knew the debts due to others, and suspected that they were in danger of losing them.} [This note added by the translator is grounded on what Hutcheson says in the parallel passage of System 2.8.1, vol. I, p. 343.]

[3. ]See System 2.8.3, vol. I, pp. 344–49, and Pufendorf, De officio 1.13, for similar lists of duties incumbent upon presumptive proprietors. In De iure nat. 4.13.7 Pufendorf says that he draws his catalogue from Grotius (De iure belli 2.10, 3–13)

[4. ]More literally: “hereditary right,” but the context makes clear that Hutcheson is referring here, as well as in System 2.8.4, vol. I, pp. 349–50, to the special institution of leaving an estate to a line of heirs in such a way that none of them can sell or mortgage it.

[* ]{This clause is called lex commissoria, or the clause of entire forfeiture.}

[† ]{Here no mention is made of the difference between the pignus, and hypotheca as in the original. Our words pledge and mortgage don’t fully express it. Pignus is like a mortgage with possession, and hypotheca, one without possession, whether of lands or moveables.}

[‡ ]{The several servitudes mentioned in the original could not have been explained to an English reader without a very tedious and useless discussion, as the Roman servitudes differed much from ours. They are found in every compend of the civil law.} [However this section is more or less parallel to Pufendorf, De officio 1.12.8.]

[5. ]The translator has described only usufructus. “Use” is “when a Man receives from a Thing belonging to another, only the daily and necessary Service, the Substance remaining as before.” “Habitatio” or Dwelling “is a Right by which a Man receives all the Advantages commonly proceeding from the letting out the Houses of others.” Pufendorf, De iure nat. 4.8.12, English translation, London 1703, pp. 359–60.

[6. ]The translator has described roughly only some of the servitudes or services. “Altius tollendi or not tollendi” is the service of raising or not raising a building higher than the nearby houses; “prospectus” is the service “by which my Neighbour is bound to let me freely look into his Estate, [... or] of not hindring Prospect; by which a man is tied up from doing any Thing in his Estate, which might interrupt a free Prospect on any side, especially towards any delightful place.” Pufendorf, De iure nat. 4.8.12, English translation, London, 1703, p. 361.

[7. ]Respectively: “Passage; the Right of a Path for Men, to walk through my Neighbour’s Ground into mine for the benefit of the latter. Carriage; the Right of driving Beasts or Wains. Road, or Way; the Right of going, walking, driving; as likewise of carrying, leading bearing and drawing any Thing which makes for the advantage of my estate.” Pufendorf, ibidem.