| Here then is the proper business of municipal laws, to fix what the principles of human nature have left undetermined. |
| 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 are a proof of the contrariety of those principles, from which they are derived. |
| 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 shoued make a cup from the metal of another, or a ship from his wood, and suppose the proprietor of the metal or wood shoued demand his goods, the question is, whether he acquires a title to the cup or ship. |
| Sabinus maintained 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 observed, 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 it is utterly impossible to trace it in all its changes. |
| For my part, I know not from what principles such a controversy can be certainly determined. |
| 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 fixed and unalterable.] |
| The right of succession is a very natural one, from the presumed consent of the parent or near relation, and from the general interest of mankind, which requires, that men's possessions should pass to those, who are dearest to them, in order to render them more industrious and frugal. |
| Perhaps these causes are seconded by the influence of relation, or the association of ideas, by which we are naturally directed to consider the son after the parent's decease, and ascribe to him a title to his father's possessions. |
| Those goods must become the property of some body: But of whom is the question. |
| Here it is evident the persons children naturally present themselves to the mind; and being already. |
| connected to those possessions by means of their deceased parent, we are apt to connect them still farther by the relation of property. |
| Of this there are many parallel instances. |
| [Footnote 20 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 his relations concerning his inheritance; it is 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. |