to those possessions by means of their deceas'd parent, we are apt to connect them still farther by the relation of property. Of this there are many parallel instances[1].
- ↑ In examining the different titles to authority in government, we shall meet with many reasons to convince us, that the right of succession depends, in a great measure, on the imagination. Mean while I shall rest contented with observing one example, which belongs to the present subject. Suppose that a person die without children, and that a dispute arises among is relations conceding his inheritance; 'tis evident, that if his riches be deriv'd partly from his father, partly from his mother, the most natural way of determining such a dispute, is, to divide his possessions, and assign each part to the family, from whence it is deriv'd. Now as the person is suppos'd to have been once the full and entire proprietor of those goods; I ask, what is it makes us find a certain equity and natural reason in this partition, except it be the imagination? His affection to these families does not depend upon his possessions; for which reason his consent can never be presum'd precisely for such a partition. And as to the public interest, it seems not to be in the least concern'd on the one side or the other.
imagin'd, there will result many cases, where the reasons on both sides
are so equally ballanc'd, that 'tis impossible for us to give any satisfactory decision. Here then is the proper business of municipal laws, to what the principles of human nature have left undetermin'd.
The superficies yields to the soil, says the civil law: The writing to
the paper: The canvas to the picture. These decisions do not well
agree together, and a proof of the contrariety of those principles, from
which they are deriv'd.
But of all the questions of this kind the most curious is that, which
for so many ages divided the disciples of Proculus and Sabinus. Suppose
a person shou'd make a cup from the metal of another, or a ship
from his wood, and suppose the proprietor of the metal or wood shou'd
demand his goods, the question is, whether he acquires a title to the cup
or ship. Sabinus maintain'd the affirmative, and asserted that the substance
or matter is the foundation of all the qualities; that it is incorruptible
and immortal, and therefore superior to the form, which is
casual and dependent. On the other hand, Proculus observ'd, that the
form is the most obvious and remarkable part, and that from it bodies
are denominated of this or that particular species. To which he might
have added, that the matter or substance is in most bodies so fluctuating
and uncertain, that 'tis utterly impossible to trace it in all its changes.
For my part, I know not from what principles such a controversy can
be certainly determin'd. I shall therefore content my self with observing,
that the decision of Trebonian seems to me pretty ingenious;
that the cup belongs to the proprietor of the metal, because it can be
brought back to its first form: But that the ship belongs to the author
of its form for a contrary reason. But however ingenious this reason
may seem, it plainly depends upon the fancy, which by the possibility of
such a reduction, finds a closer connexion and relation betwixt a cup and
the proprietor of its metal, than betwixt a ship and the proprietor of its
wood, where the substance is more fix'd and unalterable.
