It is the general opinion of philosophers and civilians, that the sea is incapable of becoming the property of any nation; and that because it is impossible to take possession of it, or form any such 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 firths and bays 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 having an union in the fancy, and being at the same time inferior, they are of course regarded as an accession.
The property of rivers, by the laws of most nations, and by the natural turn of our thought, is attributed to the proprietors of their banks, excepting such vast rivers as the Rhine or the Danube, which seem too large to the imagination to follow as an accession the property of the neighbouring fields. Yet even these rivers are considered as the property of that nation, through whose dominions they run; the idea of a nation being of a suitable bulk to correspond with them, and bear them such a relation in the fancy.
The accessions, which are made to lands bordering upon rivers, follow the land, say the civilians, provided it be made by what they call alluvion, that is, insensibly and imperceptibly; which are circumstances that mightily assist the imagination in the conjunction. Where there is any considerable portion torn at once from one bank, and joined to another, it becomes not his property, whose land it falls on, till it unite with the land, and till the trees or plants have spread their roots into both. Before that, the imagination does not sufficiently join them.
There are other cases, which somewhat resemble this of accession, but which, at the bottom, are considerably different, and merit our attention. Of this kind is the conjunction of the properties of different persons, after such a manner as not to admit of separation. The question is, to whom the united mass must belong.
Where this conjunction is of such a nature as to admit of division, but not of separation, the decision is natural and easy. The whole mass must be supposed to be common betwixt the proprietors of the several parts, and afterwards must be divided according to the proportions of these parts. But here I cannot forbear taking notice of a remarkable subtlety of the Roman law, in distinguishing betwixt confusion and commixtion. Confusion is an union of two bodies, such as different liquors, where the parts become entirely undistinguishable. Commixtion is the blending of two bodies, such as two bushels of corn, where the parts remain separate in an obvious and visible manner. As in the latter case the imagination discovers not so entire an union as in the former, but is able to trace and preserve a distinct idea of the property of each; this is the reason, why the civil law, though it established an entire community in the case of confusion, and after that a proportional division, yet in the case of commixtion, supposes each of the proprietors to maintain a distinct right; however necessity may at last force them to submit to the same division.
Quod si frumentum Titii frumento tuo mistum fuerit: siquidem ex voluntate vestra, commune est: quia singula corpora, id est, singula grana, quae cujusque propria fuerunt, ex consensu vestro communicata sunt. Quod si casu id mistum fuerit, vel Titius id miscuerit sine tua voluntate, non videtur id commune esse; quia singula corpora in sua substantia durant. Sed nec magis istis casibus commune sit frumentum quam grex intelligitur esse communis, si pecora Titii tuis pecoribus mista fuerint. Sed si ab alterutro vestrum totum id frumentum retineatur, in rem quidem actio pro modo frumenti cujusque competit. Arbitrio autem judicis, ut ipse aestimet quale cujusque frumentum fuerit. Inst. Lib. II Tit. 1. sect. 28. [“In the case that your grain was mixed with that of Titius, if it was done voluntarily on the part of both of you, it is common property, inasmuch as the individual items, i.e., the single grains, which were the peculiar property of either of you, were combined with your joint consent. If, however, the mixture was accidental, or if Titius mixed it without your consent, it does not appear that it is common property, inasmuch as the several components retain their original identity. Rather, in circumstances of this sort the grain does not become common property, any more than a herd of cattle is regarded as common property, if Titius beasts should have become mixed up with yours. However, if all of the aforesaid corn is kept by either of you, this gives rise to a suit to determine the ownership of property, in respect of the amount of corn belonging to each. It is in the discretion of the judge to determine which is the corn belonging to either party.”]
Where the properties of two persons are united after such a manner as neither to admit of division nor separation, as when one builds a house on another’s ground, in that case, the whole must belong to one of the proprietors: And here I assert, that it naturally is conceived to belong to the
