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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
proprietor of the most considerable part. For however the
compound object may have a relation to two different
persons, and carry our view at once to both of them, yet as
the most considerable part principally engages our
attention, and by the strict union draws the inferior along
it; for this reason, the whole bears a relation to the
proprietor of that part, and is regarded as his property.
The only difficulty is, what we shall be pleased to call the
most considerable part, and most attractive to the
imagination.
This quality depends on several different circumstances,
which have little connexion with each other. One part of a
compound object may become more considerable than another,
either because it is more constant and durable; because it
is of greater value; because it is more obvious and
remarkable; because it is of greater extent; or because its
existence is more separate and independent. It will be easy
to conceive, that, as these circumstances may be conjoined
and opposed in all the different ways, and according to all
the different degrees, which can be imagined, there will
result many cases, where the reasons on both sides are so
equally balanced, that it is impossible for us to give any
satisfactory decision. 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.
[FN 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. And as to the
public interest, it seems not to be in the least concern'd
on the one side or the other.]
However useful, or even necessary, the stability of possession may be to human society, it is attended with very considerable inconveniences. The relation of fitness or suitableness ought never to enter into consideration, in distributing the properties of mankind; but we must govern ourselves by rules, which are more general in their application, and more free from doubt and uncertainty. Of this kind is present possession upon the first establishment of society; and afterwards occupation, prescription, accession, and succession. As these depend very much on chance, they must frequently prove contradictory both to men's wants and desires; and persons and possessions must often be very ill adjusted. This is a grand inconvenience, which calls for a remedy. To apply one directly, and allow every man to seize by violence what he judges to be fit for him, would destroy society; and therefore the rules of justice seek some medium betwixt a rigid stability, and this changeable and uncertain adjustment. But there is no medium better than that obvious one, that possession and property should always be stable, except when the proprietor consents to bestow them on some other person. This rule can have no ill consequence, in occasioning wars and dissentions; since the proprietor's consent, who alone is concerned, is taken along in the alienation: And it may serve to many good purposes in adjusting property to persons. Different parts of the earth produce different commodities; and not only so, but different men both are by nature fitted for different employments, and attain to greater perfection in any one, when they confine themselves to it alone. All this requires a mutual exchange and commerce; for which reason the translation of property by consent is founded on a law of nature, as well as its stability without such a consent.
