Front Page Titles (by Subject) CHAPTER VII: Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER VII: Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will.
I.Some Civil Laws are unjust, and therefore do not transfer a Property; such are those that confiscate the Goods of shipwrecked People.I. Now that derivative1 Acquisition, or Alienation, which is owing to some Law, is either from the Law of Nature, or the voluntary Law of Nations, or from the Civil Law. We are not treating of Civil Law here, for that would be an endless Task, neither are the most considerable Disputes in War to be determined by it: But we shall only observe, that there are some of the Civil<221> Laws2 that are plainly unjust; as those by which3 all shipwrecked Goods are confiscated. For to take away a Man’s Property, without any apparent Cause, is manifest Injustice. Very well then has Euripides said in his Helena,
4Being Shipwrecked, and a Stranger, I am one of those who ought not to be plundered. For what Right can the Prince’s Treasury have (they are5Constantine’s own Words) in the Calamity of any Man, that it should pursue its Advantage in so unfortunate an Affair? And Dion Prusaeensis, in his seventeenth Oration, speaking of a Shipwreck, Μὴ γὰρ εἴη ποτὲ, ὠ̑ ζεν̂, &c. GOD forbid that I should gain by Mens Misfortunes.
II.By the Law of Nature a Man gains a just Right to that which he has taken from another, in Satisfaction for his own Debt; and when this holds good. Sylv. in Verb. Bellum, p. 2.II. 1. By the Law of Nature; that is, by a Law which results from the very Essence and Virtue of Property, an Alienation is made two Ways, by Compensation, or by Succession. Alienation by1 Compensation is effected, when2 for any Thing which belongs to me, or which is due to me, if I cannot get the very Thing itself,3 I take some other Thing of an equal Value from him who will not re-<222>store what is mine, or pay what he owes me. For expletive Justice, when it cannot obtain precisely what one has a Right to demand, seeks the Equivalent, which by moral Estimation is considered as the same Thing.q. 13. And that the Property then passes from the Debtor to the Creditor is proved by the necessary Connexion of this Conveyance with a lawful End; which is the best Argument in moral Things. For in the Case under Consideration, one cannot attain to the Enjoyment of his Right, unless he becomes Proprietor of what he seizes: The bare Possession of a Thing being useless, without the Power to dispose of it as one pleases.4 A very antient Example of this we find in the History of Diodorus [Lib. 4.] where Hesioneus seized Ixion’s Horses, for what, according to Promise, he ought in Justice to have performed to his Daughter.
2. We know that the5 Civil Laws do not allow any Man to do himself Justice; and he that shall take any Thing by Violence from another, altho’ it be in Reality his Due, it shall be accounted no less than a Sort of6 Robbery; nay, and in many Places7 he shall by that Means lose his Debt. And tho’ the Civil Law did not directly forbid this, yet,B. i. Ch. 3. § 2. from the very Design of erecting Courts of Justice, it may be easily presumed to be illegal.Code, l. 10. tit. 31. De Decur. &c. leg. 54. & l. 1. tit 3. de Ep. & Cler. But where there are no Courts at all to appeal to, it is there we must have Recourse to the Law of Nature, of which above; nay, tho’ the Exercise of Justice should but for the present be interrupted,leg. 12. & D. we might certainly seize on what we find, if the Debtor were running away,D. in leg. 39. § 1. in fin. Dig. ad Leg. Aquil. Bart. intr. De Repres. q. 59. and there should be no other Method of recovering our own: Yet so, that we can have no Property therein, till such Time as a formal Judgment hath passed in our Favour, as is usual in the Case of Reprisals, of which here after. But if the Right be certain, and it be also morally certain, that the Law, for want of good Proof, will not give a Man Satisfaction;8 in such a Circumstance,B. iii. Ch. 2. §4,5. the Obligation of having Recourse to the common Methods of Justice ceases, and he returns to the Right he had before the Establishment of Tribunals: And this, I think, is the best founded Opinion.
III.How the Succession to the Estate of him who dies without a Will does originally and naturally arise.III.1 Succession to the Estate of him who dies intestate, Property being once introduced, and independently of all Civil Laws, is founded on2 a natural Conjecture of the Will of the Deceased. For since the Nature and Power of Pro-<223>perty is such, that the Owner may transfer it to another Person at his Death, and yet be in Possession of the same during Life, as we said before; it is not to be supposed, that because a Man dies without a Will, he designed his Estate for any Person who should first lay Claim to it, or get Possession of it,Soto, De Just. q. 3. art. 2. and therefore it follows, that such Effects should go to him, to whom there is the greatest Probability that the Deceased, had he made a Will, would certainly have bequeathed them.3To know the Intentions of the Deceased, says the younger Pliny, stands fora Law.Cajet. d. q. 66. Ch. 6. § 14. and last. But in Cases that are doubtful, it is always presumed that a Man would do that which is the most fair and honest. And among Things fair and honest, we must rank in the first Place, that which is strictly due; and afterwards that which has acertain Suitableness to the Character or Person of one, tho’ not strictly due.
IV.Whether any of the Parents Effects are by the Right of Nature their Children’s Due. This is explained by a Distinction.IV. 1. It is a Thing disputed amongsta Civilians, whether Parents are obliged to maintain their Children? Now there are some who will by no Means allow, that there is any such direct Obligation; but yet, at the same Time, think that it is agreeable to Reason that it should be so. It is our Opinion entirely, that we ought to distinguish the Word Obligation, which is sometimes taken strictly, for that which is founded on expletive Justice; sometimes in a larger Sense, for that which cannot be omitted without offending against the Rules of Decorum, tho’ this Decorum proceeds from some other Source than rigorous Right, properly so called. Now the Obligation we are speaking of here,1 is to be taken in this larger Sense, except there should be some human Law that lays Parents under a stricter Obligation. And it is thus that I understand what Valerius Maximus has advanced, when he says, that2Our Parents, by maintaining us, have laid an Obligation upon us, that we do the same by their Grand-Children. And Plutarch, in his most elegant Treatise of the Affection to one’s Children, Οἱ παὶδες ὡς ὀϕείλημα τὴν κλη̂ρον ἐκδεχόμενοι,3Our Sons expect our Estates after us,4as a Debt that we owe<224> them. For, as Aristotle has it, whoever gives the Form, gives also what is necessary for producing that Form; and therefore, whoever is the Cause of a Man’s Being, ought, as much as in him lies, to supply him with what is necessary for human Life; that is, both natural and social, for Man is born for Society.
2. And for this Reason it is, that other Animals too do, by meer natural Instinct, supply their young Ones with such Necessaries, as are convenient for their Subsistence. Hence Apollonius Tyanaeus, what was said by Euripides,5
All Men look on their Children as their own Life. Has thus altered,
All Animals look on their Off-spring as their own Life. And this innate Affection he proves by several Arguments, which may be seen in Philostratus, B. vii. Ch. 7. and 8. To which Passage that in Oppian, in his Cynegetica, Lib. iii. (ver. 107, &c.) and Halieutica, Lib. i. (ver. 646, &c. 702.) does perfectly agree. And the same Euripides, in his Tragedy of Dictys, says, that This one Law is what all Men have in common among themselves, and with all other Animals. Hence it is, that the antient Civilians refer the Education of Children6 to the Law of Nature, whereof the very Beasts have some Sense from a natural Impression, and which is prescribed to us by Reason.7A certain natural Incentive, as Justinian expresses it; that is, the Στοργὴ, a natural Tenderness and Affection urges Parents to provide for the Maintenance and Education of their Children. And in another Place,8Nature has obliged the Father to maintain either Son or Daughter. So Diodorus Siculus, Ἀγαθὴ γὰρ ἡ ϕύσις, &c. Nature teaches all Animals to preserve themselves and their Off-spring, that by this Means their Race may be perpetuated for ever. So by Quintilian a Son is introduced delivering himself thus, I claim my Part by the Law of Nations. And Sallust called a Will by which a Son is disinherited, Impious and unjust. And because this is a natural Duty, therefore is the Mother obliged to provide for9 such Children which she has got by common Conversation with several Men.
3. And tho’ the Roman Laws ordered nothing to be left for such Children as were10 illegitimate; and that by Solon’s11 Laws it was provided, that a Man should not be obliged to leave any Thing to his natural Issue; yet the Canonsb of<225> the Christian Church have very much softened this Rigour,Decretal. Lib. IV. Tit. VII. De eo qui duxit in Matrimonium quam polluit per adulterium, Cap. V. in fin. by instructing us, that our Children, however begotten, should be a Part of our Care; and that in Cases of Necessity, we ought to leave them whatsoever is necessary for the Support of their Lives. Thus we are to understand the common Maxim, that human Laws cannot deprive Children of their Portion. For that is only true, so far as the Portion includes a Part of the Estate necessary for their Maintenance. Whatever is beyond that, may be taken from Children without Prejudice to the Law of Nature.
4. Neither are we obliged to maintain our Children of the first Degree only, but those of the second too; and even beyond this, if the Case be so: This is what Justinian12 informs us of, when he declares, that for Nature’s Sake we ought to provide not only for our Sons, but for those who come after them, and this extends to such also who are descended from us by our Daughters,13 if they have no other Subsistence.
V.In a Succession Children are preferred to the Father and Mother of the Deceased, and why?V. 1. Children too ought to support their Parents; a Duty not only prescribed by the Laws but also taught by a common Proverb,1 Ἀντιπελαργεɩ̂ν, Do as the Storks do, return the Kindness you yourselves have received; and we find that Solon2 is highly applauded for setting a Mark of Infamy upon such Persons as refused to do it. But the Practice of this Duty is not so frequently necessary as that which we have instanced concerning Children: For Children when they come into the World, bring nothing with them for their Maintenance and Support; and they have a longer Time to live than their Parents; and therefore, as Honour and Obedience are due to Parents, and not to Children; so are Education and Sustenance rather due to Children than to Parents: And in this Sense it is that I understand that of Lucian, καὶ τοί γε ἡ ϕύσις, &c.3Nature injoins Parents to love their Children, more indispensibly and more strongly, than Children to love their Parents. And that of Aristotle, Μα̂λλον συνωκείωται, &c.4That which begets is more affectionate towards that which is begotten, than that which is begotten is towards that which begets it; for we look on that as our own to which we have given Being.
2. Hence it is, that even without the Assistance of the Civil Law, the first Succession to one’s Effects devolves on the Children, because that Parents are supposed to be willing not only to supply them, as being Parts of themselves, with Necessaries, but also to make such a plentiful Provision for them, as shall enable them to live agreeably and handsomely; and especially at a Time when they can no longer enjoy their Estates themselves. Natural Reason, says Paulus5 the Civilian, is as it were a silent Law, that entitles Children to the Inheritance of their Parents, calling them to that Succession as their Right and Due. Papinian, another Civilian,6 maintains, that Parents cannot claim such a Right to their Children’s Estates, as Children can to the Estates of their Parents; for the Estates of Children come to Parents, as if it were to comfort them in their Affliction; whereas Children are called to inherit the Estates of Parents, not only by Nature, but also by the usual Desire of Parents. That is, the Estate goes to the Children, partly from an express Obligation in Nature, and partly from the natural Conjecture, that Parents would have their own<226> Children to be as handsomely provided for as possible.7He did so out of Regard to his own Blood, says Valerius Maximus, speaking of Q. Hortensius, who tho’ he was not well satisfied with his Son’s Conduct, had yet declared him his Heir. And to this Purpose is that of St. Paul the Apostle, οὐ γὰρ ὀϕείλει, &c. Children ought not to lay up for their Parents, but the Parents for the Children.2 Cor. xii. 14.
VI.The Original of that Succession called a Representation where one Person comes in the Room of another who was deceased before.VI. And now, because it is usual for the Father and Mother to take Care of their Children, therefore while they live, the Grandfather or Grandmother are thought to be under no Obligation of providing for them: Yet if they, or either of them die, it is then but reasonable, that the Grandfather or Grandmother should, in the Stead of their deceased Son or Daughter, take Care of, and provide for, their Grand-sons or Grand-daughters: And this Duty does also, by a Parity of Reason, extend to Parents that are still farther removed. And hence has that Right its Original, which entitles the1 Grandchild to succeed in the Son’s Room,2 as Ulpian expresses it. Modestinus termed it, τὴν τον̂ πατρὶς, &c.*To fill up the Place of the dead Father. And Justinian, τὴν πατρώαν ὑπεισιέναι τάξιν,**To come into the Father’s Room.***Isaeus, in his Oration, where he speaks of Philoctemon’s Estate, calls this ἐπανιέναι, To enter upon again. And Philo the Jew, Υιωνοὶ γὰρ, &c.3For the Grandchildren, their Fathers being dead, supply the Place of Sons to their Grandfather. And this Kind of Vice-Succession,4 our modern Civilians are pleased to call a Representation, where the Children represent the Persons of their Parents. And that this was in Use amongst the Hebrews, is sufficiently proved from the Division of the5 promised Land to Jacob’s Sons. As my Son and my Daughter are the nearest related to me, so next to them are those who are born of them, as6Demosthenes says, in his Oration against Macartatus.
VII.Of Abdication and Disherison.VII. What we have hitherto said of the Right of Succession, by making a Conjecture at the Will of the Intestate, holds good, unless there appear some certain and evident Signs to the contrary; amongst which Signs was that which the Greeks styl’d an1Abdication, and the Romans a Disherison;2 yet in this Case, if the Person so disinherited has not by his Crimes merited Death; he ought, for the Reasons above-mentioned, to have a sufficient Maintenance allowed him.<227>
VIII.Of the Right of natural or illegitimate Children.VIII. 1. Another Sign, which forms an Exception to the general Rule, is, when there is not a sufficient Proof, that he who passes for the Son of the Deceased is really so. Indeed, as to Facts we cannot have Demonstration; but that which is usually done in the Sight of Men, is considered as certain in its Kind, on Account of the Testimony they give of it. In this Sense it is said, that it is certain such a Woman is Mother to such a Child, because there are some Persons of both Sexes to be found, that assisted at its Birth, and were Witnesses of its Education. But it is impossible to have such an Assurance of the Father. And this1Homer intimates, when he says,
No Man is certain of whom he is descended. And2Menander after him,
No Man can tell himself how he was born. And again in another Place,*
A Mother loves her Children better than the Father, because she knows they are hers, but he only thinks they are his. And therefore Recourse was to be had to some Means whereby the Father of every Child might be probably discovered. And this Means was Marriage, taken according to the mere Law of Nature, for a Society that places the Woman under the Care and Custody of the Man. But indeed if it does in any other Manner appear, that such a Man is the Father of such a Child; or if the Father be persuaded of it himself; that Child shall then as justly inherit, according to natural Right, as any other whatever; and why not, when we see that even Strangers, who had been openly reputed as Sons, or adopted, as they are called,3 inherit by Vertue of a Presumption of the Deceased’s Will?
2. But our natural Issue too, tho’ distinguished by Law from such as are legitimate,
4They are not inferior to our legitimate Children; but the Law renders their Condition less advantageous, as said Euripides) may however be adopted, unless some particular Law do prohibit it. And this was granted formerly by the Roman Law of5Anastasius; but afterwards, in Favour of lawful Marriage, the Means of making them equal to such as were legitimate, was rendered more difficult, by obliging the Fathers either to marry the Mother, or to6 offer them to be Members<228> of Town-Councils. We have an Instance of this antient Way of adopting natural Children, in the Case of Jacob’s Sons, who by their Father were put upon an equal Foot with the Children of the free Women, and came in for an equal Share of his Estate.
3. On the other Hand, it may sometimes so happen, that not only by Vertue of a Law, but by some particular Agreement, such Children as are born in lawful Wedlock, shall have no more than a Maintenance, [[7 or at least be excluded from the Bulk of the Estate. Now a Marriage that was contracted in this Manner, notwithstanding it was with a free Woman, was what the Hebrews called Concubinage; such as was that of Abraham with Keturah,Gen. xxv. 6. whose Children, as also Ishmael, the Son of Agar his Bond-maid, received some few Presents or Legacies for their Portions, but came in for no Share at all of the paternal Estate. Such a Sort of Marriage is that which is called a8Morgengabic Marriage: Not very different from which are those second Marriages in Brabant, where the Children of the first Marriage acquire the Property of the real Estate9 that was in Being at the Dissolution of the former Marriage.10]]
IX.Upon Failure of Issue, and where there is no Will, nor express Law, the antient Estate and Effects must return to them from whom they at first came, or to their Posterity.IX. 1. But where there are no Children, it is not so easy to determine on whom a Man’s Estate should naturally devolve; neither do the Laws vary in any one Point so much as they do in this particular. All which Difference may, notwithstanding, be for the most Part referred to these two Heads: The former whereof respects the nearest Degree of Blood, the latter will have the Effects return from whence they originally came, and this is usually signified, by The Father’s Effects to the Father’s Relations, the Mother’s to the Mother’s. And here, in my Opinion, we should distinguish betwixt1 a paternal Estate, that comes from Father to Son, (as was usually expressed in the Form that cut off the extravagant Son from the Administration of his Estate) and2 one that is newly acquired. In Regard to the<229> former, this Passage of Plato may take Place, Ἐγὼ ον̂̔ν νομοθέτης, &c.3I who am a Legislator, do pronounce, that neither your Persons nor your Patrimony are properly yours, but belong to all the whole Race of you, as well that which has been, as that which is still to come. And therefore Plato is for having Κλήρον πατρῷον, The paternal Estate, secured4 to that Family from whence it came; which I would by no Means have so construed, as that a Man has not a natural Right of disposing by Will, of such Things as came to him by his Ancestors. (For oftentimes one’s5 Friends are in such Necessity, that it is not only commendable, but even a Duty, to leave them an Estate.) But that it may appear what in doubtful Cases we should most naturally suppose to be the Design and Intention of the Intestate; for I grant and suppose, that he, whose Design and Intention we want to find out, was absolute Master of his Estate, so that he could have disposed of it as he thought fit.
2. But since a Man when he is once dead, can no longer retain any Right or Property in what he had, and since we take it for granted, that he would be unwilling to lose the Opportunity of doing the Favour that is in his Power, let us now see what is the most natural Order by which we could suppose such Favours might be conferred. Aristotle well observes, εὐεργέτῃ ἀνταποδοτέον, &c.6We should rather return a Kindness to our Benefactor, than oblige a Friend with a new one. And Cicero says,7No Duty is more necessary than Gratitude. And again, Whereas there are two Kinds of Liberality, the one that enclines us to do Good, and the other to require it; it is in our own Power to do a Piece of Service or not to do it; but an honest Man can never be allowed not to requite a good Turn, whenever he can, without injuring any other Person. So St. Ambrose,8The Value and Esteem which you have for your Benefactor, ought to be greater than that for any other Person. And presently after, For what is so contrary to a Man’s known Duty, as not to repay what he has received? Now one may be grateful either to the Living, or, as Lysias9 has shewn, in his Funeral Oration, to10 the Dead, when we do kind Offices to their Children, who are naturally a Part of their Parents, and to whom, were their Parents living, they would earnestly wish we did Good, preferably to any other.
3. The Roman Lawyers, whose Decisions form the Body of the Civil Law of Justinian, and who adhered closely to the Rules of Equity, have followed the Principles of natural Equity, which I have now laid down in deciding Disputes between whole and half Brothers; Brothers by the same, both Father and Mother;<230> Brothers by the same Father, but different Mothers; Brothers by the same Mother only; and also in somea other Questions. Ἀδελϕὸι ἀλλήλους ϕιλον̂σιν, &c. Brothers, says Aristotle,11as they are born of the same Parents, do by Consequence love one another, for the same Birth being common to both, makes them as it were the same Persons. So Valerius Maximus,12As the receiving of many and great Favours from him whom we love, is the first Tye of Friendship; so the receiving from one and the same Person such Favours, jointly with others, is the second. And therefore, By the common Right of Nations (as Justin13 says) one Brother should succeed another.
4. But in Case neither that Person from whom such and such Effects have been more immediately received, is to be found, nor any of his Children; our Gratitude then must extend to those who have next to him the justest Title to it; for Instance, to the Father of the Degree above, (the Grandfather) and to his Children; especially since by this Means we still keep in the same Family, not only of him whose Inheritance we are speaking of, but also of him from whom such and such Effects were more immediately derived; so the same Aristotle observes, Ἀνεψx03B9;οὶ δὲ, &c.14Cousin-Germans, and other Relations are united together, in so far as they are descended of those, who are, as it were, the same Persons. And there is between them more or less Union as they are more or less remote from the common Stock.
X.What has been newly purchased goes to the next Relations.X. 1. But as for such Effects as are newly acquired, called by Plato, Περίοντα τον̂ κλήρου,1The Surplus of a Patrimony, as they lay no Obligation of Gratitude upon us, so all we have to do in this Case, is to see that the Succession be made over to him whom the Deceased is supposed to have the greatest Affection for; and that is, as it is reasonable to imagine,2 the Person who is nearest related to him. And therefore Isaeus3 says, that it was customary with the Grecians, Τοɩ̂ς ἐγγυτάτω, &c. For the Effects of the Deceased to pass to the next of Kin; and then adds, Τί ἄν, τιδικαιότερον, &c. Why not, for what is more equitable than that the Estate of one Relation should pass to another? There is a Passage to the same Purpose in Aristotle, in his Book to Alexander, Ch. xi.4Nothing can be more, says Cicero,5for the Support and Preservation of Society, than to be the most kind to him who is the nearest related to us. And in another Place6 he ranks immediately after Children, those Relations with whom one maintains a good Understanding; and so does Tacitus,7Nature itself would have every Man’s Children and Relations the dearest to him; and Cicero in another Passage, speaking of Relations, says,8Whatever is necessary and convenient for the Support of Life, is in a more particular Manner their Due from us; their Due, not according to expletive or rigorous Justice,<231> but Κατ’ ἀξίαν, By Way of Decency and Fitness; and again,9 when he had mentioned that Love we bear to our Relations, he presently adds, From this Affection are derived the Testaments and Recommendations of dying Men; and10 that it is abundantly more reasonable, that we give and bequeath our Effects to Relations than Strangers. And St. Ambrose too,11 It is a Liberality justly commendable, not to neglect those of your own Blood and Family.
2. Now the Succession to the Estate of a Person intestate, of which we are now treating, is nothing else than a tacit Will, founded on just Presumptions of the Will of the Deceased. So Quintilian12 the Elder, in one of his Declamations, Next to such Persons as are mentioned in a Will, the nearest Relations have the justest Title; as they also have if the Deceased died intestate, or left no Issue. And this not merely because it ought in Justice to be so, but because such Effects being as it were deserted, and without an Owner, there is none nearer to take Possession of them. What we have said of later Purchases, that they should naturally go to the next Relations, will hold equally good in those also that come by Inheritance, in Case that neither the Persons from whence they came, nor any of their Children are then in Being; because then Gratitude cannot serve as a Foundation to the Succession.
XI.A Variety of Laws about Succession.XI. 1. But what we have here advanced, tho’ highly agreeable to a natural Conjecture, yet is it not of any absolute Necessity from the Law of Nature; and therefore very frequently altered, according to the various Humours of People, either by Compacts, by Laws, or by Customs. In certain Degrees they admit the Right of Representation,1 in other Degrees they do not; in some Places they consider from whence2 the Estates came, and in others they mind no such Thing; in some Countries the Eldest has a larger Share than the Younger, as among3 the antient Jews, and in others the Children have all alike; with some, Preference is shewn to the Relations on the Father’s Side; with others those of the Mother’s Side are upon a Level with them; some have a particular Regard to the Sex, and others have none at all; with some the nearest Degrees of Relation only are allowed of, with others the most remote ones are not excluded. But to enter into a Detail of all these, as it would be extreamly tedious, so would it be far from agreeable to our present Purpose.
2. It is proper, however, to observe here, that when there is not a clearer and more certain Evidence of the Intention of the Deceased, every one is supposed to have designed that the Succession to his Estate should be regulated by the Laws of the Country; and that not only because of the Power that Sovereigns have to make or authorize such Regulations, but even from a4 Conjecture of the Will of the Deceased; which Conjecture also is in Force, in Regard to those Persons in whom the supreme Power is lodged. For it is but reasonable to believe, that Sovereigns5 <232>have thought it very just to follow, in what concerns their own Affairs, the Dispositions or Laws they themselves have made, or the Customs they have approved; such Affairs I mean, in which they can be no Ways injured.
XII.What Kind of Succession there is in patrimonial Crowns. B. i. Ch. 3. § 11.XII. But as to what relates to the Succession of Crowns we must distinguish betwixt such as are possessed with a full Right of Property, and as a Patrimony; and such as are enjoyed in a certain Manner, determined by the Consent of the People; a Distinction which we have treated of before. Patrimonial Kingdoms may be1 divided even between the Males and Females,2 as we find it was usual formerly in Aegypt and Great Britain.
Says3Lucan: And4Tacitus of the Britons, Nor do they make any Difference of Sex in their Government. And adopted Sons are no less capable of succeeding than real ones are, by a Presumption that it was the Desire of the deceased Prince that it should be so; thus did Hyllus,Strabo, l. 9. the adopted Son of Hercules, succeed Aepalius the King of Locris. So Pyrrhus,5 having no lawful Issue, declared Molossus,6 his natural Son, his Successor to the Crown of Epirus; so King Atheas promised<233> to adopt Philip, in Order to succeed him in Scythia; and so Jugurtha,Sal. Bell. Jug. tho’ a Bastard, succeeded in the Kingdom of Numidia by Adoption. And we reada too, that Adoption was received in those States which were conquered by the Goths and Lombards. Nay, the Crown shall descend to the last Prince’s Relations, tho’ not at all of the Blood of the first King, if such an Order of Succession be established in those Places; thus does Mithridates, in Justin, declare, that the domestick Princes of Paphlagonia being all dead,7 the Right of Succession did belong to his Father.
XIII.If such Kingdoms are not to be divided the Eldest is to be preferred.XIII. But if it be expressly said, that a Kingdom shall not be divided, and at the same it be no ways declared to whom it shall go,1 the eldest then, whether Son or Daughter, shall undoubtedly enjoy it. We read in the Talmud Title of Kings, He that has the best Claim to a private Inheritance, has also the best Title to the Crown; and therefore, in this Case, the eldest Son is preferable to the younger. Νομιζόμενον πρὸς, &c. says Herodotus,2It is the Custom of all Nations for the eldest Son to sit upon the Throne. And in other Places he frequently terms this, Νόμον, The Law and Practice of Kingdoms. So Livy3 speaking of two Brothers, of the Country of the Allobroges, that contended for the Crown, says, that the younger had least Right but most Power. In Trogus Pompeius,4 Artabazanes, who was the eldest, laid Claim to the Crown by a Prerogative of Age; a Prerogative which Birth and Nature give amongst all Nations; and this he elsewhere5 stiles The Law of Nations: As6Livy, who terms it the Order of Age and Nature; but this is only to be understood where nothing to the contrary has been ordered by the Father, as was done byaPtolomy in the same Trogus. But whoever comes to a Crown in this Manner, is obliged, if, and as far as it can be done,7 to give those who would be his Co-heirs, if the Kingdom were divided, the Value of what their Portion would amount to.
XIV.In Case of any Dispute, the Kingdom that is no otherwise hereditary than by the People’s Consent must not be divided.XIV. But as for those Kingdoms which are no otherwise hereditary than by the free Consent of the People, the Succession is in this Case to be settled in that Manner only, as may be presumed the People shall most readily agree to; now it is supposed that the People will always consent to whatever shall appear to be for the publick Advantage. And hence our first Inference is, that a Kingdom should always remain undivided, 1 unless the Laws or Custom of the Place be against it;<234> (as at Thebes in Baeotia, the Government was divided amongst the male Heirs, as appears by the History2 of Amphion and Zethus, and also by that of the Sons of Oedipus; and the antient Attica3 was parted among the Children of Pandion; and the Country about Rhodes between the Brothers, Camirus, Jalysus, and Lindus, and the Kingdom of Argos4 among Perseus’s four Sons,) for, that it should remain entire, is certainly more expedient, not only for the Preservation and Security of the Kingdom, but also the maintaining the Concord and Unanimity of the Subjects.Cap. 1. n. 1, 2. Accordingly it is observed by Justin, B. xxi. It was their Opinion that the Government would be more secure under the Dominion of one Man, than if it were parcelled out among all the Sons into several Shares.
XV.Such Crowns continue hereditary no longer than there are Descendents of the first Prince living.XV. Another Inference is, that the Succession should be continued in the first King’s Family; for that Family is supposed to be elected on the Account of its Nobility and Figure; and therefore, whenever it becomes extinct, the Sovereignty should return to the People as before. So Curtius, B. x.1 says, That the Crown should remain in the same House and Family; that the Blood Royal should have an hereditary Right to it; that they used to respect and reverence the very Name (of Philip) and that none took the Name who was not born to Reign.
XVI.Natural Children have no Right to these Crowns.XVI. The Third, That no Persons should be admitted to the Succession, but such only as were born according to the Laws of the Country; no natural Sons, because they are not only exposed to Contempt, on Account of their Father’s not marrying their Mother, but because it is not altogether so certain whose Children they are; whereas it is of the last Importance, that Subjects have all the Assurance possible of their Prince’s Birth, to avoid all Disputes that may hereafter arise on that Subject: And for this Reason it was, that the Macedonians thought the Crown belonged more to Demetrius the younger, than to Perseus who was elder;1 because Demetrius was born in good and lawful Wedlock. And we read in Ovid,2
Nor ought adopted Sons to be admitted here, because People not only entertain higher Hopes of, but have also a greater Veneration for, a Person of Royal Extraction.
XVII.In such Kingdoms Males are preferred before Females in the same Degree of Blood.XVII. Fourthly, That even of those who have the same Pretensions, either as they are Relations of the same Degree, or by Representation,1 the male Issue must<235> certainly be preferred to the female, as2 being thought more proper for the Burthen and Fatigue of War, and better qualified for discharging all the other Offices of a Sovereign.
XVIII.Among Males the eldest to be preferred.XVIII. 1. Fifthly, That not only amongst the male Issue, but also among those of the other Sex, in Default of Males, the1 Preference must always be given to the eldest; it being presumed that the elder has, or, however, that he will sooner have, more Judgment and Conduct than the younger. So Cyrus in Xenophon, Τὸ προηγεɩ̂σθαι, &c.2I bequeath my Crown to my eldest Son, as having, it is very likely, a greater Knowledge of the World. But because this Prerogative of Age is only a3 transient Advantage, but that of the Sex perpetual; therefore is the Prerogative of Sex much more considerable than that of Years. So Herodotus, when he had related that Andromeda’s Son Perses succeeded Cepheus in the Kingdom, assigns this Reason, ἐτύγχανε, &c.4For Cepheus had no male Issue. And, Having no Sons, ἄπαις ὢν ἀῤῥένων, &c. as Diodorus informs us, Teuthras left the Crown of Mysia to his Daughter Argiope. So Trogus tells us,5 that the Empire of the Medes belonged to his Daughter, because Astyages had no male Heir. So doth Cyaxares in Xenophon declare, that the Crown of Media was his Daughter’s, οὐδὲ γὰρ ἐστὶ, &c.6For, says he, I have no Son who is legitimate.Aen. l. 7. v. 50. And Virgil, speaking of King Latinus,
Filius huic sato, &c:
So before the Reigns of the Heraclidae, Sparte, his Daughter, or her Children,Paus. l. 3. succeeded Eurotas in Laconia, as Helena’s Children did Tyndareus, because there were no Males: And his Uncle Atreus succeeded Eurystheus, in the Kingdom of Mycenae,<236> as Thucydides observes.Lib. ii. By the same Right, the Crown of Athens devolved7 on Creusa, and that of Thebes on Antigone, for Want of male Issue. And the Crown of Argos upon Argus, Phoroneus’s8 Grandson by his Daughter.
2. From whence too we are to understand, that tho’ Children do in some Degree supply the Places of their Parents before-deceased, yet this is only to be allowed of, when they are as capable to succeed as any of the Rest; and here too, where Persons are thus capable, first the Prerogative of Sex, and then that of Age, must always be regarded and maintained. For the Quality both of Sex and Age, as it is looked upon in this Case by the People, is so fixed and inherent in the Person, as not to be separated from it.
XIX.Whether such a Crown be Part of the Inheritance.XIX. Here it may be asked, Whether a Crown, thus conveyed, be a Part of the Inheritance? The more probable Opinion is, that it is1 a Kind of an Inheritance itself, but distinct from that of the other Effects. Such peculiar Inheritances there are in2 some Fiefs in a3 Copyhold Estate, in the<237>4 Rights of Patronages, and in what we call a5Preciput. Whence it follows, that the Crown may belong to him who, if he will, may be Heir too of the other Effects; yet so, that he may enjoy the Crown without the other Effects, and their Incumbrances.6 The Reason is, because it is supposed that the People would have the Crown descend in the most advantageous Manner to the Successor. Neither is it any Thing at all to them, whether the Prince accepts of the Inheritance of the private Estate or not, since it was not upon this Account that they made choice of an hereditary Order in Succession, but that his Title might be beyond Dispute, and he the more reverenced in Regard to his Royal Blood; and that from his Family and Education, something particularly great and noble might be expected in him, and that the Prince himself in Possession might be the more careful of his Kingdom, and defend it with the greater Courage and Resolution, knowing that he was to leave it to them, whom he highly esteemed, either out of7 Gratitude or Affection.
XX.It is to be presumed that the Succession to the Crown is such as was usual in Successions to other Effects, at the Time when that Kingdom first began; whether the Crown was Freehold.XX. But where the Custom of Succession is different as to1 Freeholds and Copyholds, if the Kingdom be not feudatary, (held of another in Fee) or was not so at first, tho’ Homage hath been since done for it, yet shall the Succession2 pass in<238> the same Manner as that of Freeholds did, at the first Establishment of the Kingdom.
XXI. But in those Kingdoms that were at first given to be held in Fee, by him who was full Proprietor, the Order of the Succession1 shall be the same as in Copyholds, not always indeed according to that of the Lombards, which we have in Writing, but what was received in every Nation at the first Investiture. For the Goths, Vandals, Germans, Franks, Burgundians, English, Saxons,XXI.Or held in Fee. and all the German Nations, which by War possessed themselves of the best Parts of the Roman Empire, have every one of them their own Laws and Customs concerning Things held in Fee, as well as the Lombards.
XXII.What a lineal Succession is, and how the Right is in that Case transmitted.XXII. 1. But there is another Kind of Succession much used in some Kingdoms, not hereditary, but what they call1Lineal, in which is observed,2 not that Right which is termed Representative, but a Right of transmitting the future succession, as tho’ it were already descended; and this by a Law grounded on Prospect and Expectation only, which Prospect and Expectation can naturally, and of itself, do nothing; but does, however, in this Case, occasion a Sort of real Right; such a Right as one has3 to Things due from a conditional Stipulation, so that this very Right necessarily passes to the Descendants of the first King, but in an Order that is fixed and certain; and therefore, in the first Place, the Children of the last Possessor of the first Degree, as well those who are alive, as those who are dead, are to be admitted, with Respect had, as well among the living as the dead, to the Sex first, and then to the Age. And if the Right of Succession be in the Deceased, it shall pass to such as are descended from them, observing again<239> the Prerogative of Sex, and then of Age; always transmitting the Right of the Dead to the Living, and of the Living to the Dead. Upon Failure of Children, then, it descends to those who are either nearest related, or if they had lived, would have been so, observing still the same Transmission, and among Equals of the same Line, the same Distinction of Sex and Age, but so as not to pass from one Line to another, on the Account of Sex and Age. And consequently, the Daughter of a Son should be preferred before the Son of a Daughter; and the Brother’s Daughter before the Sister’s Son; an elder Brother’s Son before a younger Brother, and so on. This was the Order of Succession to the Crown ofaCastile, and so is the Right of Majorasgo in4 that Kingdom settled too.
2. But the Proof of this lineal Succession, if there were neither Law nor Example for it, might be taken from the Order that is observed5 in publick Assemblies. For if Regard be had there to lineal Descents, it is an Evidence that Hope and Expectation only, is by Law quickened into a just Right, and that this Right does pass from the Dead to the Living. Now this lineal Succession is called likewise Cognatick, because the Females, and their Children, are not excluded, but only postponed in the same Line, so that if in Case the nearer Relations, or the Males, who are in other Respects equally related, or the Descendants of those Males should fail, then the Succession returns to them. The Foundation of this Succession, as it differs from an hereditary one, is the Hope and Expectation of the People, that those who have the justest Pretensions to the Crown, will have the best Education; such as those whose Parents would have succeeded, if they had lived.
XXIII.What the lineal Agnatic Succession is.XXIII. There is also another lineal Succession, called the Agnatic, a Succession of Males only, who are descended of Males, which from a Custom of the illustrious Kingdom of France, is therefore commonly called1 the French Succession. This differs from the Cognatic Succession, in that it was principally designed to exclude Females, to prevent the Crown’s passing into a strange Family by the Marriage of the Daughters. In both these lineal Successions, all are admitted who are related, tho’ in the most remote Degrees from the last Possessor, if they are but descended from the first King. But2 in some Places also, where the Succession in the Male Line fails, they allow that of the Female in its Room.
XXIV.A Succession that always regards the nearest in Blood to the first King.XXIV.1 Other Methods of Succession may also be introduced, either at the Pleasure of the People, or of him who holds the Kingdom by such a patrimonial Right, that he may alienate it if he will; as for Example, he may so settle it,2 that they who are nearest related to himself, at any Time whatever, may succeed<240> in the Kingdom; as it was formerly among the Numidians,Liv. Lib. 29 . where for the same Reason the Brothers of the last King were preferred before his own Children. The same was practised in Arabia Felix, as we find in3Strabo; and the Modern Writers4 tell us the same of Taurica Chersonesus; neither is it long since5 the African Kings of Fez and Morocco did so. And that this Order is what we must observe, in a Doubt, without Respect to a6 Feoffment of Trust, left to a Family, is the more likely Opinion, and agreeable to the7Roman Laws, tho’ some Interpreters wrest them otherwise. These things being well understood, it will be easy to decide all Controversies concerning the Right of Crowns, which the different Judgments of Lawyers have made so intricate and difficult.
XXV.Whether the Son may be so disinherited, as not to succeed in his Fathers Kingdom.XXV. The first Question is, whether a Father may disinherit his Son, so that he shall not succeed in his Kingdom. Here we must distinguish between Crowns which are alienable, that is, patrimonial, and such as are not alienable. For in1 alienable ones, no doubt of it, disinheriting is valid, because such Crowns do not differ2 from other Goods and Chattels; and therefore what is established by Law or Custom in Regard to Disherison, ought to be observed with Respect to a Prince disinherited by his Father; and though there were no Law or Custom to countenance it, yet it is naturally lawful for a Father to exclude a Son from all but bare Maintenance, and even that too, if he has committed any Capital Crime; or has any otherwise notoriously offended, provided he has any other Method of subsisting. Thus was<241> Reuben for his Misdemeanor3 deprived by Jacob of his Birth-Right, and Adonijah by David of the Crown.4 Nay, who ever has done any enormous Crime against his Father, unless there shall be manifest Signs that he has forgiven him,5 he shall be reputed as one tacitly disinherited. But in Crowns not Alienable, tho’ they are Hereditary, it is otherwise, because the Hereditary way is indeed of the People’s own chusing; but then it is6 so Hereditary as not to be disposed of by Will.7 Much less shall disinheriting be allowed in a Lineal Succession, because here is nothing like the Order of Successions purely Hereditary, but the Crown by the People’s Original Donation, passes from one to another, in the Order prescribed.
XXVI.Whether a Prince may for himself and his Children abdicate and renounce all Title to the Crown.XXVI. Another Question is, whether a Prince may abdicate his Kingdom, or renounce his Right of Succession? There is no doubt but a Person may renounce for<242>1 himself; but whether he can for his Children, is not so easily determined, but this too is answer’d by one and the same Distinction. For in Crowns that are Hereditary, he who gives up all his Right cannot transfer any thing to his Children. But in a Lineal Succession the Father’s Act cannot hurt his Children who are already born, because as soon as ever the Children are come into the World, they acquire a Right of their own by Law; neither can it affect those that are to be born, because the Right entailed upon them by the People’s Donation, must in its due time belong to them. Neither does what I have said already concerning Transmission contradict this: For that Transmission is, as to the Parents, of Necessity, and not left to their Will and Discretion. The Difference between the Children born before the Abdication, and those who were born after, is this, those who were born after had not then acquired their Right; and therefore it might be taken from them by the Will of2 the People, if the Parents too, whose Interest it is that that Right should pass to their Children, shall consent to part with it:Chap. vi. § 10 of this Book. To this Purpose is what I advanced above concerning Dereliction.
XXVII.Neither Prince nor People have a Right to pass an Absolute and Peremptory Judgment on the Succession to the Crown.XXVII. 1. There is also another Question, who shall judge of the Right of Succession to a Crown? Whether the Prince then reigning, or the People, either by themselves, or by Judges deputed for them? If you mean a Judgment by way of Authority and Absolute Decision, neither of them have any Right to judge? For such an Authority cannot be but in a Superior, and here Regard must be had not only to the Person, but to the Matter in hand also, which is to be consider’d with all its Circumstances.1 Now the Affair of the Succession does not depend on the present King; which appears from hence, that the King now reigning can by no Law2 oblige his Successor. For the Succession to the Crown is not under the Power of the Crown, and therefore Disputes on that Head are to be decided as in the State of Nature, in which there was no Jurisdiction.
2. Yet if the Right of Succession be disputed, those who lay a Claim to it would do prudently and well to agree upon Arbitrators, of which we shall treat in another Place; but as for the People3 who have transferred all their Right of Jurisdiction to<243> the Prince and the Royal Family, whilst that Family continues they cannot pretend to any Remains of it. I am speaking of a true King, and not of one that is only Prince or Head of the State. But if any Question rise of the primary Will of the People, it would not be amiss to take the Advice of the4 People now in Being; for they may be judged to be the same as those who lived formerly, unless it does plainly appear that the People who lived formerly, and by Vertue of whose Will this Right was obtained, were directly of another Mind. Thus did King Euphaes5 permit the Messenians to determine which of the Royal Family of the Epytidae had the best Title to the Throne; and the Dispute between Xerxes and Artabazanes was debated before, and determined6 by the People.
XXVIII.The Son born before his Father’s coming to the Crown to be preferred before one born after. Hotom. Ill. Quaest. ii. and Tiraquel. de primog. p. 31.XXVIII. To proceed to other Questions; that he who was born1 before his Father’s Accession to the Throne, ought in a Kingdom that is indivisible, in any kind of Succession whatever, to be preferr’d to him who was not born ’till his Father came to the Crown, is a substantial and certain Truth. For that he would have his Share in a divisible Kingdom there can be no doubt of it, as well as in other Goods and Effects, concerning which it signifies nothing when they were got. He then, who<244> in a divisible Kingdom would have his Share, must surely in that which is indivisible be preferred by the Prerogative of his Birth; and for this Reason it is, that a Fief goes to that Son who was born before the first Investiture. So too, in a lineal Succession, as soon as ever the Crown is obtained, the Children who were born before immediately entertain Hopes of one Day or other succeeding to it; for, suppose there were none born after, no body will say that those who were born before should be excluded. But in this kind of Succession, an Hope once entertained creates a Right; neither does it cease by any after Fact, unless in a cognatic Succession, where it may be for a time suspended by the Privilege of the Male Sex. This we are talking of was a Maxim that obtained in Persia, between Cyrus and Arsica;2 in Judea, between3Antipater the Son of Herod the Great, and his Brothers; in Hungary when Geissa4 began his Reign, and in Germany (tho’ not without War)5 between Oth I. and Henry.
XXIX.Unless it appears that the Crown was conferred on some other Condition.XXIX. But that, as we read, it was otherwise in Sparta, is owing to the peculiar Law of that People, which1 gave the Preference to the Children that were born when their Father was on the Throne, because of their more exact and nicer Education. The same also may happen in Consequence of a Clause of the first Investiture. If, for Instance, the Sovereignty be granted in Fee to a Vassal, and to the Heirs of his Body that shall hereafter be born. Upon the Strength of this Argument it was, that2Lewis Sforza did chiefly rely in the Dispute between him and his Brother Galeati about the Dutchy of Milan. For as to Persia,3 that Xerxes obtain’d the Crown to the Prejudice of Artabazanes, was, as Herodotus observes, owing<245> more to the Power of Atossa4 his Mother, than to the Justice of his Cause. For in the same Persia, when a like Dispute arose between Artaxerxes Mnemon and Cyrus, the Sons of Darius and Parisatis, Artaxerxes as the elder, tho’ born when his Father was a private Person, was yet declared King.
XXX.Whether the Grand child by the elder Son is to be preferr’d before a younger Son; this explained by a Distinction.XXX. 1. It has been no less a Dispute, both by Wars and1 single Combats,2 whether the Son of the elder Brother should be preferred before a younger Brother; but this in a lineal Succession admits of no Difficulty; for there the Dead are reputed as the Living, in that they are able to transfer a Right to their Children; and therefore in such a Succession, the Son of the Deceased shall certainly be preferred without any Objection to his Age; nay, where the Succession is cognatic, the eldest Son’s Daughter;Hot. Ill. q. 3. Tiraq. de prim. q. 40. because neither Age nor Sex can be a Plea for going out of the Line. But in hereditary Kingdoms that are divisible, each shall have a Share, unless in those Countries where the Right of Representationa is not observed,3 as formerly among most Nations in Germany; for it is but of late Days that Grandchildren have been admitted to Succession as well as Sons.Molin. de prim. l. 3. c. 6. However, in any Case of Doubt, it is to be presumed that this Vice-Succession takes Place, as being the more agreeable to Nature, as we said before, [§ 6.]
2. And where by the Civil Laws of a Country, the Representation is formally authorised, there it shall be in Force, tho’ there be a particular Mention made in any Law of the next of Kin, as called to the Succession. The Reasons produced from the Roman Law for this, are not very conclusive, as will appear to any one that looks well into them. But the best Reason is this, That in a4 favourable Subject, the Sense of Words must be extended to whatever they can signify, not only according to common Use, but also according to the Use of Arts; so that under the Name of Sons may be comprehended adopted ones; and under that of Death may be included a civil Death, (those that are dead in Law) for the Laws generally speak thus. Wherefore he may thus be justly called the next of Kin, whom the Law puts into the Degree of the next of Kin. But in hereditary Kingdoms that are indivisible, and where this Right of Representation is not excluded, neither is the Grandson always, nor always the younger Son preferred, but as amongst Equals, because5 by an Effect of the Law they are put in the same Degree, he will have the best Title who is the eldest. For as I said before, in hereditary Kingdoms the Prerogative of Age doth not pass from one Person to another. Among the Corinthians, Ὁ πρεσβύτατος ἀεὶ τω̂ν ἐκγόνων, The eldest of the deceased King’s Children succeeded in the Throne, as George the Monk has proved out of the sixth Book of Diodorus Siculus. So among the Vandals, it being ordered, that he who was next in Blood, and the eldest, should be Heir;b the<246> younger Son was, on the Account of his greater Age,6 preferred to the Eldest’s Son. So in Sicily, Robertc was preferred before his elder Brother Martel’s Son, not properly, for the Reason supposed by Bartolus, because Sicily was held in Fee, but because the Crown was hereditary.
3. There is an old Instance of such a Succession in the Kingdom of France, in the Person ofdGuntran; but that happened rather from the Choice of the People, which at that Time was not entirely left off. But since that Kingdom ceased to be elective, and a lineal agnatic Succession has been established, the Matter is past dispute; as formerly among theeLacedemonians, when the Crown descending on the Heraclidae,Paus. l. 3. they made the Succession like this, agnatic. And therefore Areus, the Son of the elder Brother Cleonymus, was preferred before his Uncle7Cleonymus. And so in the lineal cognatic Succession the Grandson shall be preferred. As in England,8John, King Edward’s Grandchild by his eldest Son, was preferred before Hemon and Thomas, the other Sons of that Edward. And this was also settled by Law in the Kingdom of Castile.
XXXI.So likewise whether the King’s surviving younger Brother is to be preferr’d before his elder Brother’s Son.XXXI. By the same Distinction we may answer another Question, between the last King’s younger Brother, and the elder Brother’s Son; only we must observe, that in many Places, where among Children the Living are in the Right Line allowed to succeed the Dead, they are not allowed it in the collateral one. But where the Right does not plainly and directly appear, we ought to incline rather to that Side which substitutes the Child in his Father’s Room; because natural Equity1 leads us to this, I mean as to Estates that come by Ancestors. Neither is it any Objection, that Justinian calls this Right of Brother’s Children, Προνόμιον,2A Privilege: For this he does, not in Respect to natural Equity, but to3 the antient<247> Roman Law. Let us now run over the other Questions proposed by Emanuel Costa.
XXXII.Whether the King’s Brother’s Son is to be preferr’d before the King’s Uncle.XXXII. He says, that the Son, or even the Daughter, of the deceased Brother, is to be preferred before the King’s Uncle; which is true,1 not only in a lineal Succession, but even in ana hereditary one in such Kingdoms, where the Right of Representation is admitted; but not in Kingdoms, which in express Words have Respect to the natural Degree; for in those the Person who has the Advantage of Sex and Age is to be preferred.
XXXIII.Whether the Grandson by the Son is to be preferr’d before a Daughter.XXXIII. He adds, that a Grandson by the Son, is to be preferred before a Daughter. It is true, upon the Account of his Sex; but with this Exception, unless it be in a Country which regards among Children only the Degree.
XXXIV. He also adds, that the younger Grandchild by a Son, is to be preferred before the elder by a Daughter,1 which is true in the lineal cognatic Succession,XXXIV.Whether the younger Grandson by the Son is to be preferr’d before the elder by the Daughter. but not in the hereditary, unless authorized by some special Law. Neither is the Reason alledged for this sufficient, Because the Father of the one would have excluded the Mother of the other; for this Exclusion would have been on the Account of a Prerogative merely personal, which passes no farther.
XXXV.Whether the Grand-daughter by the elder Son is to be preferr’d before the younger Son.XXXV. As for what he subjoins, as appearing to him the more likely Opinion, that the Grand-daughter by the elder Son sets aside a younger Son, is not allowable in hereditary Kingdoms, tho’ the representative Succession be admitted there; for this only puts her into a Capacity of succeeding; but among those who are capable of succeeding, the Prerogative of the Sex must carry it.
XXXVII. And after the same Manner, in hereditary Kingdoms, the Daughter of the eldest Brother must yield to the King’s younger Brother.XXXVII.Whether the elder Brother’s Daughter is to be preferred before the younger Brother.
[1 ]See Chap. II. of this Book, § 1.
[2. ]I have produced several Examples of this Kind in my Discourse On the Permission of the Laws, &c. printed in 1715.
[3. ]As formerly in England, Britany, and Sicily. A Constitution of the Emperor Frederick supposes this practised in several Countries; for it orders, that Both the Ships driven on any Coast, and the Goods found in them, should be kept entire for the Proprietors, &c. notwithstanding the Custom of some Places to the contrary. Except they be Pirates, Enemies to the Empire or Christianity. Code, Lib. VI. Tit. II. De Furtis, Authent. post. Leg. XVIII. Sopater and Syrianus, in Hermogen. (Ἐις στάσεις, p. 107. Edit. Venet. 1509.) mention such a Law as established among the antient Grecians. Christian, King of Denmark, said, that by the Abolition of the Law for confiscating the Goods taken up after a Wreck, he lost an hundred thousand Crowns a Year. Notice is taken of this bad Custom, in the Revelations of Bridget Queen of Sweden, Lib. VIII. Cap. VI. and in the Speculum Saxonicum, II. 29. where the Author treats of Denmark. See also the Decretals, Lib. V. Tit. XVII. De Raptorib. &c. Cap. III. Crantzius, Vandalic. XIII. 40. XIV. 1. Cromer, Polonic. Lib. XXII. (p. 509. Edit. Basil. 1555.) Grotius.
[4. ]Ver. 456.
[5. ]Code, Lib. XI. Tit. V. De Naufrag. Leg. I. See also Digest. Lib. XLVII. Tit. IX. De incendio, ruinâ, naufragio &c. Leg. VII. Nicetas Choniates, in his History of the Emperor Andronicus, calls this a most unreasonable Custom, ἔθος ἀλογώτατον. (Lib. II. Cap. III.) See likewise Cassiodore, Var. IV. 7. I cannot imagine how it came into Bodin’s Head to defend such a Practice. But the same Author blames Papinian for chusing to die rather than injure his Conscience. Grotius.
[1 ]Expletione juris. I could not find a Term more proper for expressing our Author’s Thought, than that of Compensation. I am sensible that in the Law stile it is taken in a Sense somewhat different. See Pufendorf, B. V. Chap. XI. § 5, 6. But it is still allowable to fix a more general Idea to the Word, when the Necessity of making one’s Self understood requires it. Our Author himself, in his third Note expresses himself thus, In compensationem operae, viz.
[2. ]The Definition in the Original runs thus, Quoties id quod meum nondum est, sed mihi dari debet, aut loco rei meae aut mihi debitae, &c. Mr. Barbeyrac, in his Latin Edition of this Work, published in 1720, omits the Words here expressed in Roman Characters. In a Note on the Place, which he has enlarged in his French Translation, he very judiciously observes, that these Words are a manifest Redundancy, and no better than an Explication or anticipated Repetition of mihi debitae. As the Author was far from being fond of Superfluities, the Commentator supposes he at first wrote Quoties loco illius quod meum est, vel quod meum nondum est, sed mihi dari debet, &c. but finding the same might be said thus in fewer Words, Quoties loco rei meae, aut mihi debitae, &c. changed the Expression, but forgot to efface something of what he had before written. Those who are acquainted with his Stile, says Mr. Barbeyrac, and understand what Criticism is, will easily perceive the Truth of what I advance.
[3. ]See B. III. Chap. VII. § 6. Thus St. Irenaeus justifies the Conduct of the Israelites, who took the Gold and Silver Vessels of the Aegyptians, in Compensation for what was due to them for their Work. For, says he, the Aegyptians were indebted to the Israelites, not only for their Goods but also for their Lives.Tertullian, Adv. Marcion. Lib. II. (Chap. XX.) has the same Thought. The Aegyptians, says that Father, redemand their Gold and Silver Vessels. The Hebrews, on the other Hand, urge their Demand, alledging their Right to Wages for their Service and Work, &c. He afterwards shews, that what the Israelites took was very much short of their Due. Grotius.
[4. ]See Pufendorf, B. V. Chap. XIII. § 10 and last.
[5. ]If by Vertue of a Bargain I owe you any Thing, and do not deliver it to you, but you take Possession of it, you are a Thief. In like Manner, if I sell you Goods, but do not deliver them, and you take Possession of them without my Consent, you do not possess them as a Buyer, but are a Thief. Digest Lib. XLI. Tit. II. De adquir. vel amittendâ possessione, Leg. V.
[6. ]WhenMarciansaid, I have committed no Violence, Caesar (Divus Marcus) replied, Do you imagine Violence is employed only when Men are wounded! He also is guilty of using Violence, who demands what he thinks his Due by any but legal Means. Digest. Lib. XLVIII. Tit. VII. Ad Leg. Jul. de vi privatâ, Leg. VII. See also Lib. XLVII. Tit. VIII. De vi bonor. rapt. Leg. II. § 18.
[7. ]If it shall be proved to me, that a Man rashly takes or possesses any Thing belonging to his Debtor, or Money due from him, which is not willingly delivered, and claims it as his own, he shall have no Right to the Debt. Digest. Lib. IV. Tit. II. Quod metus causa, &c. Leg. XIII.
[8. ]The Author supposes, without Doubt, that the Person on whom the Demand is made, is, or ought to be convinced, that he owes what is demanded. For if he might be ignorant of the Debt, as if he was Heir to a Person who had borrowed something, the Creditor ought to blame himself only, for not taking a Note of Hand, or his Misfortune in losing it. We must here likewise suppose a Case, where the Creditor, without wronging any one, finds Means of getting what is due to him; so that, if he cannot prove the Debt, neither can the Debtor prove what he has done towards paying himself; for otherwise it would be entirely useless to take this Expedient, since the Judge would oblige the Restitution of what was taken. What I have here said is sufficient for answering the Criticism of the Commentators on this Place, and particularly the pretended Contradiction which one of them finds between what our Author says here, and what he lays down, Chap. XXIII. of this Book, § 11.
[1 ]See Pufendorf, B. IV. Chap. XI.
[2. ]Paul, the Lawyer, says, that A Feoffment of Trust may be granted (by a Codicil) to the Successors of Persons dying intestate; because the Master of the Family is supposed willing that they should succeed to the Inheritance which falls to them by Law. Digest. Lib. XXIX. Tit. VII. De jure Codicill. Leg. VIII. § 1. Grotius.
[3. ]Epist. Lib. IV. Ep. X. See also Lib. II. Ep. XVI. Grotius.
[a ]Franc. Piscin. De Stat. exc. Fem. n. 133. Mench. in Auth. Novissima, Cod. de inoff. Test. n. 296. Tell. Fernand. in l. 10. Taurin. Q. 4.
[1 ]In my Opinion, we are here to distinguish between the Time, during which Children are not in a Condition of providing for their own Subsistence, and that, in which they are able to make such Provision. In Regard to the former, Fathers and Mothers are strictly obliged to allow or leave their Children what is necessary for their Support; this is a necessary Consequence of the Obligation, under which they lie of doing all in their Power for preserving the Life which they have given their Children. But as soon as the Children are able to provide themselves with Necessaries, and much more when they already have acquired them, the Law of Nature alone does not impose an indispensible Obligation on Parents to leave them their Estates, either in the whole or in part. They cannot indeed find nearer Relations to make their Heirs; and therefore, when they have no considerable Reason for thinking it would be better to leave them to others, they would do ill to prefer any one to their own Blood. But even in this Case, Children would have no Cause to complain of any Wrong, properly so called; and still less, when the Father or Mother had good Reasons for disposing of some Part of their Estate in Favour of Persons more worthy, or such as had more Need of it.
[2. ]These Words are taken from a Discourse, which he supposes the Censors might make to such as they sentenced to pay a Fine for having lived to old Age unmarried. The Words immediately preceding those here quoted, are, Nature has prescribed you a Law for getting Children, as well as for being born yourselves, Lib. II. Chap. IX. Num. 1. so that the Sentence taken together, speaks directly of marrying, of which the Obligation of maintaining Children is a Consequence.
[3. ]Tom. II. p. 497. Edit. Wech. where he observes, that this is the Reason why Children have so little Gratitude to their Parents for what they leave them, and shew so little Concern for honouring and serving them.
[4. ]The Emperor Julian says, It is just [or rather a received Custom, νόμιμον] that Children should inherit their Father’s Estates. In Caesarib. (p. 334. Edit. Spanheim.) Nor are Daughters to be excluded; and it appears from the Book of Job, that according to the Custom of the most remote Antiquity, they had a Share in the Inheritance of their Parents, after the Sons. On this Principle of Equity St. Augustin would not have the Church receive the Goods of such as disinherited their Children. His Words on that Subject may be seen in the Canon Law, Caus. XIII. Quaest. II. (Can. VIII.) and Caus. XVII, Quest. IV. (Can. XLIII.) The first Passage is taken from B. II. De Vita Clericorum; and the second from his fifty-second Discourse, Ad Fratres in Eremo, if the Piece last mentioned is really St. Augustin’s. Procopius observes, that The Laws, tho’ in other Respects different in different Nations, agree in this, both among the Romans and Barbarians, that Children are the proper Masters of what is left by a Father. Persic. Lib. I. Cap. XI. Grotius.
[5. ]Androm. ver. 418.
[6. ]Institut. Lib. I. Tit. II. De Jure Naturae, &c. See also Digest. Lib. I. Tit. I. De Just. & Jure, Leg. I. § 3.
[7. ]Code, Lib. V. Tit. XIII. De rei uxoriae actione, &c. Leg. unic. § 5.
[8. ]Code, Lib. VI. Tit. XLI. De bonis, quae liberis. &c. Leg. VIII. § 5. Diodorus Siculus, (Lib. II. Cap. L. p. 94. Edit. H. Steph.)Quintilian, (Instit. Orat. Lib. VII. Cap. I. p. 591. Edit Burm.)Grotius.
[9. ]Digest. Lib. XXV. Tit. III. De agnoscend. & alend. liberis, Leg. V. § 4.
[10. ]Children born of an adulterous or incestuous Commerce; for such were not called natural Children. See Novel. LXXXIX. Quibus modis naturales, &c. Cap. XV.
[11. ]Our Author, deceived without Doubt by his Memory, makes a wrong Application of this Law of Solon, concerning natural Children. That celebrated Legislator, according to Heraclides of Pontus, as quoted by Plutarch, ordered, not that a Father should not be obliged to support such Children; but that they should not be obliged to support their Fathers. The Reason given for this Law is, because those Fathers had no other View than that of gratifying their own Passion, and instead of expecting any grateful Return from their Children, they gave them a Sort of Right to resent the Ignominy of their Birth. Vit. Solon. Tom. I. p. 90. Edit Wech. As to the Business of Fathers in Regard to their natural Children, tho’ the latter were not Heirs to the Goods of their Fathers, unless they had been legitimated, yet they received a certain Portion of the Inheritance, which was termed the Bastard’s Part, Νοθεɩ̂α, and which was fixed at a thousand Drachms, or ten Minae, that is about a hundred Crowns, a pretty considerable Sum for those Times. See Aristophanes, in his Birds, ver. 1655, &c.Harpocration, on the Word Νοθεɩ̂α: And Meursius, in his Themis Attica, Lib. II. Cap. XII.
[b ]Decretal. Lib. 4. Tit. 7. De eo qui duxit in Matrimonium quam polluit per Adulterium. Cap. 5. in fin.
[12. ]See the Law quoted in Note 8. on this Paragraph; and Law V. § 1, 5. of the Title of the Digest. cited in the Note immediately following this.
[13. ]It is evident, that a Daughter’s Children are not a Burthen to their Grandfather, but to their own Father, unless the Father is either dead or in Want. Digest. Lib. XXV. Tit. III. De agnoscend. & alendis liberis, &c. Leg. VIII.
[1 ]Ἀντιπελαργεɩ̂ν. See [a Passage of Philo, quoted in the Preliminary Discourse, § 7. Note I. and] what Leo Africanus observes on a Bird of Africa, called Nestus, Lib. IX. (toward the End). Grotius.
[2. ]Diogenes Laertius quotes and commends this Law, Lib. I. § 55. See also the Fragments of Menander, collected by Mr. Le Clerc, p. 278.
[3. ]In Abdicat. Tom. I. p. 721. Edit. Amst.
[4. ]Ethic. Nicom. Lib. VIII. Cap. XIV. p. 112. Edit. Paris.
[5. ]Digest. Lib. XLVIII. Tit. XX. De bonis damnatorum, Leg. VII.
[6. ]Ibid. Lib. XXXVIII. Tit. VI. Si Tabulae Testamenti, &c. Leg. VII. § 1. Philo the Jew says, that Since it is a Law of Nature that Children should succeed to the Inheritance of their Parents, and not Parents to that of their Children,Moseshas said nothing of this latter Case, as being ominous, and against the Wishes of Parents. De Vit. Mosis. Lib. III. (p. 689.) Socrates observes, that A Man (when he marries) thinks of providing what will be necessary for the Subsistence of his future Children, and that as plentifully as is in his Power.Xenophon, Memorabil. Lib. II. (Cap. II. § 5.) Grotius.
[7. ]Lib. V. Cap. IX. Num. 2.
[1 ]Justinian pronounces this, just and equitable, aequum. Institut. Lib. III. Tit. I. De haereditatibus, quae ab intestato deferuntur, § 6. It is a Maxim among the Jewish Doctors, that Children succeed, even in the Grave; and, that Our Children’s Children are as our own Children. Rabbi Joseph, the Son of Jacchi, mentions this Right as natural, in his Comment on Daniel, Chap. V. ver. 2. Eginhart speaking of Charlemagne, who observed it religiously, in Regard of his Grand-Children, considers his Conduct as the Effect of his paternal Tenderness. De Vita Caroli Magni. (Cap. XIX Edit. Schminck.) And Michael Attaliata says, that Each of the Descendents takes the Place of his Father.Grotius.
[2. ]Digest. Lib. I. Tit. VI. De his qui sui, vel alieni juris sunt. Leg. VII.
[* ]Lib. XXVII. Tit. I. De excusationibus tutorum, Leg. II. § 7.
[** ]Novell. CXXVII. Princip.Grotius.
[*** ]Isaeus. Our Author had read the Words of the Greek Orator too hastily, and without due Attention to the Sequel of the Discourse. The Passage occurs, p. 467. Edit. Wech. 1619. Ὁ γὰρ νόμος οὐκ ἐᾳ̑ ἐπανιέαι, ἐὰν μὴ ὑιὸν καταλίπῃ γνήσιον. He is there speaking of an Article of one of Solon’s Laws, by which an adopted Child could not return to his own Family, and become Heir to his natural Father, except he himself had left a legitimate Child, who might remain in the Family of his adopted Father. This Law may be seen at Length in Demosthenes, in the Close of his Oration against Leochares. The same Expression occurs in the same Oration, p. 673. Edit. Basil. 1572. where it is explained by ἐπανιέναι ἐπὶ τὴν πατρῴαν οὐσίαν. Return to inherit his Father’s Substance. And Isaeus himself elsewhere terms this, ἐπανελθεɩ̂ν εἰς τὸν πατρῴον οἴκον. Returning to his Father’s Family. Orat. IX. De haereditate Aristarchi, p. 553. See also Harpocration, under the Words ὅτι οἱ πα̂ιδες ποιητοὶ, &c. The Passage therefore is intirely foreign to the Purpose.
[3. ]Philo, Ad Cajum. p. 996. Edit. Paris.
[4. ]Thus in the Division of Peloponnesus among the Heraclidae, Procles, and Eurysthenes, as representing their Father Aristodemus, drew Lots for one Portion only, against Temenes and Ctesiphon, who each drew one; as we learn from Apollodore, Biblioth. Lib. II. (Cap. VIII. § 4. Edit. Th. Gal.) Pausanias, Messeniac. (Chap. III. p. 113. Edit. Wech.) Strabo, Lib. VIII. (p. 560. Edit. Amst. 364 Paris.)Grotius.
[5. ]The Descendents of Ephraim and Manasseh, Joseph’s Sons, did not succeed only by Right of Representation; for on that Foot they ought to have had among them but one Portion, equal to that of each of their Uncles. But Jacob had adopted them, as our Author himself observes, Note 3. on § 8. See Numbers xxvi. and Joshua xvii.
[6. ]Orat. adversus Macartatum. p. 661.
[1 ]Ἀποκήρυξις. Aristotle calls this ἀπείπασθαι, and ἀποστη̂ναι. Ethic. Nicom. Lib. VIII. Cap. XVI. and ult. where he says, It perhaps never happens that a Father renounces his Son, unless the Son be extremely wicked.
[2. ]See a Treatise intitled Baba Kama, Cap. IX. § 10. and § 25. of this Chapter. Grotius.
[1 ]Odyss. Lib. I. ver. 215, 216.
[2. ]Eustathius on Homer, p. 1412. Edit. Rom.
No Man knows of what Father he is born, but we all suppose, or believe, in this Case. The first Verse, as here produced by our Author, speaks a different Sense, No Man knows how he was begotten, or born. But he translates it according to the true Reading, both here and in his Excerpta è vet. Trag. & Com. where he quotes it right. He there observes, that the Passage is quoted in the other Manner by Clement of Alexandria; but with this Difference, that that Father reads ἐγένετο, and not ἐγείνατο.
[* ]In StobaeiFlorilegio. Tit. LXXVI.
[3. ]Or a Grandson adopted, as was done by the Patriarch Jacob, in Relation to his Grandsons Ephraim and Manasseh.Grotius.
[4. ]Ex Andromed. Fragm. Barnes. v. 12, &c.
[5. ]Code, Lib. V. Tit. XXVII. De naturalib. liberis. Leg. VI.
[6. ]Per Curiae oblationem. By the Word Curia was understood the Court or Council of municipal Towns; that is, such as had received the Privilege of Roman Citizenship. The Members of that Body were termed Curiales or Decuriones. But tho’ the Employment was very honourable, most Men avoided it, because it was become very burthensome. The Curiales, or Decuriones, were charged with all the publick Affairs, and that frequently at their own Peril, and the Hazard of their Fortunes, while they were forbidden to meddle with several Things which would have brought them some Profit. For this Reason the Christians, among other Persecutions, were sometimes sentenced by cruel Emperors, to enter into these Bodies, as appears from Cassiodore’s Tripart. Hist. Lib. I. Cap. IX. Lib. VI. Cap. VII. and Lib. VII. Cap ult. as then in Process of Time almost every one strove to be excused from that Office, or quit it at any Rate, there was a Necessity of granting such Privileges as in some Manner should counter balance the Burthen annexed to it. For this Reason therefore Theodosius the Great allowed a Father to legitimate his natural Sons, by offering them to be Curiales; and even a natural Daughter, by marrying her to one of that Council. Code, Lib. VII. Tit. XXVII. De naturalibus Liberis, &c. Leg. III. See also the Institutes, Lib. I. Tit. X. De Nuptiis. § 13. and Brisson’s Selectae Antiq. Lib. III. Cap. XIII. as likewise Godefroy, on the Theodosian Code, XII. 1.
[7. ][[Footnote number missing in text, replaced from Latin edition. This was formerly the Case of all the Children but the eldest, in the Country of Mexico.Grotius.
[8. ]Matrimonium ad Morgangabicam; or, as the Writers on Fiefs call it, ad Morgenaticam, Lib. II. Tit. XXIX. This Word comes from the German Morgen-Gab, which signifies a Morning Present. The Person who marries a Woman in the Manner here specified; or, as the Germans express it, with the left Hand, the Day after his Wedding makes her a Present, which consists in the Assignment of a certain moderate Portion of his Goods, to her and her future Children after his Death, on which Condition they have no further Pretensions. Gregory of Tours calls this Matutinale Donum, Lib. IX. 19. as Gronovius observes, who likewise refers us to Lindenbrog’s Glossary on the Codex Legum Antiquarum. See Cujas, Lib. IV. De Feud. Tit. XXXII. (Edit. vulg. II. 29.) and Mr. Hertius’s Dissertation, De specialib. Rom. Germ. Rebus pub. &c. Sect. II. § 5. p. 104, &c. Tom. II. Comment. & Opuscul. &c. The Reader may likewise consult a Dissertation written by the late Mr. Coccejus, De Lege Morganaticâ, printed at Francfort on the Oder, in 1695, where he pretends that it is the same as the Salic Law; and as that Law allowed of the Marriages here mentioned, they were therefore termed Matrimonia ad morganaticam; or ex Lege morganaticâ.
[9. ]Both that of the Father and Mother: For on the Death of either of them, the Children inherit his or her real Estate, as if they died intestate; and the same Sort of Estate in Possession of the Surviver belongs to them, so that he or she cannot alienate them, but is obliged to preserve them entire, in Order to leave them to those Children of the first Marriage, who are from that Time reckoned Proprietors of them. We have a Treatise on this Subject, intitled Tractatus de Jure Devolutionis, written by Peter Stockman, Counsellor in the Court of Brabant, and Master of Requests to the King of Spain, in whose Favour he published it in 1667.
[10. ]The antient Burgundians had a Law like this, by which it was ordered, that If a Father has divided his Estate with his Children, and marries again, the Children of the second Venter shall partake only of the Portion which the Father reserved for himself. Lib. I. Tit. I. Num. 2. Grotius.
[1 ]This Form may be seen in the Lawyer Paul’s Collection of Receptae Sententiae. It runs thus, Seeing that you squander away your Father’s patrimonial Estate, and are bringing your Children to Poverty, I (the Praetor) therefore deprive you of the Administration of such Estate, Lib. III. Tit. IV. De Testamentis, § 7. See Mr. Schulting’s excellent Notes on the Place.
[2. ]The Hebrews distinguish those two Sorts of Estates: They called that which descended from Father to Son מורשה and that which was lately acquired נהלה. See a like Distinction in the Burgundian Laws. Lib. I. Tit. I. Num. I. Grotius.
[3. ]De Legib. Lib. XI. Tom. II. p. 923. Edit. Steph.
[5. ]Seneca speaks thus on the Subject, When we are at the Close of Life, when we make our Wills, do we not then distribute those Benefits which will be of no further Use to us? What Time do we not employ in considering with ourselves how much, and to whom, we are to give? What signifies it to whom we give, since we can receive no Return? However, we never give with more Deliberation and Precaution; we never rack our Thoughts more, than when, laying aside all Considerations of our own Interest, we have nothing in View but how to do what is honest and decent. De Benef. Lib. IV. Cap. XI.
[6. ]These Words are not a Decision but a Question. The Philosopher places it in the Rank of problematical Questions, Ἀπορίαν δ’ ἔχει καὶτοιάδε, &c. And if he doth afterwards decide it, it is with some Restriction, adding, that this most commonly takes Place, ἐπιπολὺ; in short, caeteris paribus, all Things else being equal. Ethic. Nicom. Lib. IX. Cap. II.
[7. ]De Offic. Lib. I. Cap. XV.
[8. ]Offic. Lib. I. Cap. XXXI.
[9. ]In his funeral Oration on those who had been killed in a War, where the Athenians had sent Succours to the Corinthians against the Lacedemonians. Cap. XX.
[10. ]Thus in Procopius, a Man in his last Moments says to another, The Good you do to my Children is done to me. Persic. Lib. I. (Cap. IV.) See an Example of this Kind in what the Emperor Theodosius did in Favour of Valentinian the Younger, acknowledging, in his Person, the Obligations he had to his Father; as we learn from Zosimus, Lib. IV. By the Laws of Moses, the Uncle inherited after the Brothers, as being a nearer Relation to the first Possessor of the Estate than the Nephews. Numb. xxvii. 10. Grotius.
[a ]Novel. 84. De cons. & uter. frat. Code, Lib. 6. Tit. 57. De Legit. hered. Leg. 13. § 1. and Tit. 59. Comm. de Success. Leg. 11. Tit. 61. De bonis quae liberis &c. Leg. 3.
[11. ]Ethic. Nicom. Lib. VIII. Cap. XIV. p. 112.
[12. ]Lib. V. Cap. V. princip.
[13. ]There is a Mistake in this Quotation; but it doth not lie where the learned Gronovius supposes, who observes, that the Passage of Justin, which he imagines our Author had in View, (Lib. XXXIV. Cap. III.) speaks of the Prerogative of an elder Brother. Our Author has quoted one Writer for another. He puts Lib. X. in his Margin; and the Reflection in Question is in Quintus Curtius, Lib. X. where he makes a Person of the lowest Rank say, that those who would not acknowledge Arideus, Brother to Alexander the Great, for his Successor, unjustly deprived him of a Crown which was his Due by the common Law of Nations. Cap. VII. Num. 2.
[14. ]Ethic. Nicom. Lib. VIII. Cap. XIV. p. 112.
[1 ]De Legibus, Lib. XI. p. 923. Tom. II. Edit. Steph.
[2. ]See Deuter. xv. 11. xxiii. 7. Prov. xi. 17. Servius treats of this upon that Passage of the sixth Aeneid.
Hierocles, Ἡ δε τω̂ν άγχιστέων, &c. The Respect that is due to Relations, must be in Proportion to the Proximity of Blood and Nature, that so, after our Parents, each of our Kindred may receive so much Regard from us, as their Nearness to them gives them a Title to. [In Aurea Carmina, ver. 4. p. 46, 48. Edit. Needham.] And Possidius of St. Austin, He saw it was just and reasonable that the Children, or Parents, or Relations of the Deceased, should rather possess them. He means the Estates he is discoursing of there. (Cap. XXIV.) Grotius.
[3. ]Orat. III. Seu de Nicostrati haeredit. p. 413. in fin. Edit. Wech. Τὶ ἀν, &c. Ibid. p. 417. init.
[4. ]Page 611.
[5. ]De Offic. Lib. I. Cap. XVI.
[6. ]Ibid. Cap. XVII.
[7. ]Vit. Agricol. Cap. XXXI. Num. 1.
[8. ]De Offic. Lib. I. Cap. XVII.
[9. ]De finib. bonor. & mal. Lib. III. Cap. XX.
[10. ]De Offic. Lib. I. Cap. XIV.
[11. ]De Offic. Lib. I. Cap. XXX. This is taken from Isa. lviii. 7. You have some other such Expressions in St. Chrysostom, upon 1 Cor. iv. 7. and St. Augustin, De Doctrina Christ. B. II. 12. Grotius.
[12. ]Declam. CCCVIII. init.
[1 ]The antient Germans knew nothing of any such Representation, not even among their Children. Childebert was the first who introduced this Right into France by a particular Edict; and Otho, Son of Henry, brought it up in the Parts on the other Side the Rhine, as is attested by Withekind, B. II. See the Lombard Law, B. II. Tit. XIV. 18. And the old Scots Right of Succession regarded only the Nearness of the Degree. See Pontan, Danic. VII. where he relates, that it was so declared by the King of England, who was made Umpire in this Affair. Grotius.
[2. ]Formerly this Rule took Place in some of these Provinces, according to the Law of Zeland, otherwise called Jus Scabinicum; and on the contrary, in others, the old Law of the Frieslanders was followed, (Jus Aesdomicum, or Asingicum) which required a Regard only to the Nearness of Blood. See Vinnius on the Institutes, Lib. III. Tit. V.
[3. ]See Deut. xxi. 17. Gen. xlix. 3. and Mr. Le Clerc on the Text.
[4. ]We have Reason to believe, that the Deceased designed the Succession to his Estate should be regulated by the Laws of the Country, as what commonly seem to every one most reasonable; and if he had an Intention of disposing of it otherwise, he might have done it by Will.
[5. ]The late Mr. Hertius, in his Dissertation, De collisione Legum, Sect. IV. § 33. p. 196, 197. Tom. I. of his Comment. & Opuscul. undertakes to confute our Author’s Opinion by two Reasons. First, Because the Manner of possessing or acquiring the Sovereignty does not depend on the sovereign Power, in non-patrimonial Kingdoms, as our Author himself maintains, § 28. Num. 1. Secondly, Because the Case is not the same in Regard to the Sovereignty; as to other Things regulated by Laws or Customs, it is of a much superior Order, according to our Author himself, Chap. IV. of this Book, § 12. The first of these Reasons is inconclusive; for our Author certainly here speaks of patrimonial Kingdoms, in which he supposes the King has a Power of alienating the Crown, and consequently, disposing of the Succession as he pleases; whereas in § 28. he treats of Kingdoms originally established by the free Consent of the People. But the second Reason is good; and there is still less Reason to suppose that Sovereigns had an Intention to regulate the Succession by the Civil Laws, or Customs of the Country, when those Laws and Customs are very extraordinary, and very different from the common Manner of succeeding in most States. For there is much more Room for presuming they designed to follow such Customs as are most generally received, in Regard to the Succession to the Crown. See Introductio ad Jus Publicum universale, by Mr. Bohmer, Part. Spec. Lib. III. Cap. IV. § 19. with the Note. Concerning the Matter of Succession to the Crown in general, consult Pufendorf, B. VII. Chap. VII. § 11, &c.
[1 ]In Asia the Brothers reigned jointly, only one had the Prerogative of wearing the Crown. Polybius, Exc. legation. XCIII. And in Livy, and the same Polybius, you will find that Egypt was divided between the two Brothers the Ptolomies. Attilas’s Sons desired that the Nations might be parted among them in just and equal Shares. Jornandes, De Rebus Gotthic.Gregor. B. VII. speaking of Irene the Wife of Andronicus Palaeologus Τὸ δε καίνοτορον, &c. What is still more strange, is, that she would not that one only should reign, according to the antient Custom of the Eastern Roman Emperors; but as it was the Western Practice, would have their Cities and Countries shared amongst her Sons, that each of them might have a separate and independent Government to himself, as if they had been so many distinct Crowns derived to them as their proper and paternal Inheritance, in the same Manner as ordinary Persons come to their private Estates and Possessions, and so to descend to their Children and Successors after them. For she herself being of Western Extraction, had a Mind to bring up here that new and unprecedented Custom she had received from thence.Grotius.
[2. ]Of Alexander and Laodice, see Polybius, Exc. legat. CXL. Of Auletas’s Daughter. Strabo, XVII. Arrian (ἀναβάσει) relates, that several Women reigned in Asia after Semiramis. So Nitocris in Babylon, Artemisia at Halicarnassus, Tomyris among the Scythians. And Servius upon the first Aeneid. (ad ver. 654) says, Because Women governed before. And upon the ninth Aeneid, ad v. 596, he says, that this was a Custom among the Rutuli.Grotius.
[3. ]Pharsal. Lib. X. ver. 91, 92.
[4. ]Vit. Agricol. Cap. XVI. Num. 1.
[5. ]Our Author, in his Margin, quotes Pausanias, Lib. I. but gives a wrong Account of the Fact. Molossus was not Pyrrhus’s Bastard; but the eldest of three Sons which Pyrrhus had by Andromache, Hector’s Widow. The two others were Pielus and Pergamus.Servius tells us, that Pyrrhus considered Andromache, tho’ his Captive, as a lawful Wife, so that his Children by her had a Right of succeeding to the Crown. On Aeneid. Lib. III. v. 297. Pausanias doth not say, that Pyrrhus appointed Molossus to succeed him, on Default of legitimate Children; but that Helenus, the Son of Priam, who married Andromache after the Death of Pyrrhus, succeeded him, and left the Crown to Molossus. Cap. XI. p. 10. Edit. Wech.Servius indeed doth, in the Place above cited, make Helenus reign either after Molossus, or in his Name, as his Guardian; for the Terms are not very clear, Inde factum est ut teneret Helenus regnum privigni, qui successerat patri; à quo Molossia dicta est pars Epiri, &c.
[6. ]Among the Tartars natural and legitimate Sons are upon an equal Foot. But Herodotus (Lib. III. Cap. II.) says of the Persians, Νόθον οὒ σϕι νόμος ἐστι βασιλεν̂σαι γνησίου παρέοντος, They never let a natural Son have the Crown, if there is a legitimate one in the Way. Two Vandals reigned in Spain, Gontharis, who was legitimate, and Zigerich, the base-born Son of Godigisclus, as Procopius reports; according to the old Custom of the Northern Nations, testified by Adam Bremen. Hist. Eccles. Cap. CVI. Helmold, Slavic. Lib. I. Cap. LI. and LII. And Michael, a natural Son, the lawful Issue failing, succeeded Michael, Prince of Thessaly,Gregory, B. II. And he also was succeeded in part by his natural Son, Gregory, B. IV. See Servius upon the third Aeneid, about Molossus, Pyrrhus’s bastard Son. Grotius.
[a ]Cassiod. In Chron. Paul. Diac. De gest Langobard. Lib. VI.
[7. ]Which (Paphlagonia) came into his Father’s Hands, not by Force or Conquest, but by Adoption, and on the Demise of Domestick Princes.Justin, Lib. XXXVIII. Cap. V. Num. 4.
[1 ]Concerning the Swedes, see Brigitt, IV. 3. the Danes,Saxo, XII. and XIII. Appian, Mithridatic. Δικαιον̂ντα τὴν πρεσβύτερον ἄρχειν, Thinking it just that the Elder should enjoy the Crown.Nicetas Choniates, in his Life of John Comnenus, Ἡ ϕύσις τοɩ̂ς πρωτοτόκοις, &c. Nature, following her own Order, uses to give the chiefest Honour in Favour of the First-born. But GOD does not think fit, in the greatest Prerogatives, always to observe this Rule. And in his Life of Manuel, speaking of Isaacius, ἀπὸ γενέσεως ἐις τὴν διαδοχὴν τη̂ς βασιλέιας καλούμενος, Called by Birth-Right to the Succession of the Crown. And Antipater, in Josephus, said, that The Kingdom was Hyrcanus ’s, as being eldest. See Leunclavius, Turcic. XVI. Grotius.
[2. ]Lib. VII. Cap. II.
[3. ]Lib. XXI. Cap. XXXI. Num. 6.
[4. ]Justin, Lib. II. Cap. X. Num. 2.
[5. ]Lib. XXXIV. Cap. III. Num. 7.
[6. ]Lib. XL. Cap. XI. Num. 7.
[a ]Justin, Lib. XVI. Cap. II. Num. 7.
[7. ]See Pufendorf, B. VII. Chap. VII. § 11.
[1 ]Dardanus and Jasius sat jointly on the Throne of Troy.Servius upon this Passage of the third Aeneid: Sociique Penates. In Crete, Minos, and Rhadamanthus;Julian against the Christians. At Alba, Numitor, and Amulius, as says the Writer Of the Lives of illustrious Men. For others relate, that Numitor had the Money, and Amulius the Crown: Of this Number is Plutarch: In the same Manner as some have reported, that the Kingdom of Thebes fell to Eteocles’s Share; and to Polynices, in the Lieu of that, Hermione’s Necklace. Thus in Norway, one has the Crown and another the Shipping, and the Advantage arising from Sea Expeditions. Grotius.
[2. ]Euripides, Hercul. furen. (ver. 29, 30.)
See also Apollodorus, Biblioth. Lib. III. Cap. V. § 5.
[3. ]The Division of the antient Kingdom of Athens regarded only the Lands, and not the Jurisdiction, which remained entire in the Hands of one, as our Author himself has already said, Chap. III. of this Book, § 4. Note 5. where I have quoted the very Words of Apollodorus, from whence he takes this Fact. As to the Division between Camirus, Jalysus, and Lindus, he undoubtedly alledges that Example from Pindar, Olymp. VII. v. 135, &c.
[4. ]The antient Authors are not agreed in this: Most of them make the Sons of Perseus reign successively, not at Argos but at Mycenae. Nothing is more uncertain or confused in general, than the Succession and Chronology of the Kings of that Time, the History of which is very much mixed with Fables.
[1 ]Cap. VII. Num. 15.
[1 ]Livy, Lib. XXXIX. Cap. LIII. Num. 3.
[2. ]Ep. Phaedrae ad Hippolyt. v. 121, 122.
[a ]Hor. Lib. IV. Od. IV. ver. 40, &c.
[1 ]See Nicetas Choniates, in his Life of Manuel, B. IV. Grotius.
[2. ]Mr. Thomasius, in his Notes on Huber, De Jure Civitatis, Lib. I. Sect. VII. Cap. VII. § 10. p. 281. maintains, that this Reason proves Women ought to be entirely excluded the Succession to the Crown; unless they are admitted to it by Custom, or an express Clause in the Act which regulates the Succession.
[1 ]Homer, speaking of the Crown of Crete, Iliad XIII. ver. 354, 355.
Where Homer very likely, as indeed he usually does, assigns the Reason why the elder are preferred to the Throne, a Reason that generally holds good, and that is sufficient in such Cases as these, Τον̂ νόμου τῷ πρεσβυτέρω τω̂ν βασιλέως παίδων διδόντος τὴν τω̂ν ὅλων ἡγεμονίαν, The Law giving the entire Sovereignty to the elder of the King’s Sons, says Zosimus, B. II. talking of a Law of the Persians. Periander succeeded his Father in the Kingdom of Corinth, Κατὰ πρεσβεɩ̂ον, by the Right of Eldership. So Nicolaus Damascenus informs us, in the Collections we have by the Favour of that excellent Man Nicolaus Peiresius. Grotius.
[2. ]Cyropaed. Lib. VIII. Cap. VII. § 3. p. 543. Edit. Oxon.
[3. ]For the younger will, some Years hence, be as old as the eldest is at present; and consequently, may then have as much Understanding and Conduct.
[4. ]Lib. VII. Cap. LXI.
[5. ]Justin, Lib. I. Cap. IV. Num. 7. Lib. iv.
[6. ]Cyropaed. Lib. VIII. Cap. V. § 9.
[7. ]See Euripides, in his Ione, (v. 72, 73, 578). Grotius.
[8. ]And had Orestes died without Issue, Electra had succeeded him in the same Kingdom of Argos, as we learn from Euripides’s Taurica Iphigenia, (v. 681,682,695.) So the Crown of Calydon came to Andraemon, Oeneus’s Son-in-Law, Asterius’s Crown to his Son-in-Law Minos, as Apollodorus tells us, and subjoins this Reason for it, because there was no male Issue. Grotius.
[1 ]Innocent the Third was of Opinion, that the Succession to such a Crown might be lost by him who did not take Care to execute the last Will of the Deceased. C. licet. de voto.Grotius.
[2. ]Most Fiefs pass only to the Males, the Females have no Share in them, though they may be equally Heirs to all the other Goods of their common Father. When the Vassal dies without Issue, or leaves only Daughters, the Fief passes to the collateral paternal Relations; tho’ they have no Right of inheriting the other Goods; provided they be in the Line of Descendants from him who had the first Investiture. And according to the Feodal Law, a Son indeed ought necessarily either to refuse or accept of both the Inheritances; but the collateral Relation, (adgnatus) who succeeds on the Default of Issue, may retain the Fief, and refuse the Inheritance of the other Goods, Lib. II. Tit. XLV. An adgnatus, vel Filius possit retinere Feudum, repudiata hereditate. (IV. 54. Edit. Cujac.) See Cujas on that Title; as also Giphanius, Antinom. Jur. Feud. Disp. V. Num. 46, &c.Treutler, Vol. II. Disp. XII. Thes. IV. Anthony Contius, Method. de Feudis, Cap. VIII. § 7, &c.Covarruvias, Var. Resol. Lib. II. Cap. XVIII. Num. 4, &c.
[3. ]Concerning the Nature and Origin of the Right to a Lease, see Pufendorf, B. IV. Chap. IX. § 3. As this Right is founded on a private Agreement made between the Proprietor of the Lands and the Lessee; when the Lessee has taken them, for himself and his Children, they succeed by Vertue of the Agreement, not as Heirs to their Father. So that they may keep the Succession, even tho’ they decline the Inheritance of the other Goods. This is the Case in Question, and the Foundation of the Decision of those whose Opinion our Author follows, as Gaillus, Observ. Lib. II. Cap. XXVIII. Num. 17. But the contrary Opinion seems better grounded, according to the Principles of the Civil Law, as Anthony Faure proves, De Error. Pragmaticorum. Decad. XXIII. Err. 10. In which he is followed even by Bachovius, (Not. & Animadv. inTreutler, Vol. II. Disp. XII. Thes. IV.) who on all other Occasions inveighs against him with the utmost Fury; but he takes Care not to quote him here. Were we to judge of the Matter by the Law of Nature alone, it is certain, that the Proprietor treated only with the first Purchaser of the Lease, and that he had no Thoughts of granting the Lessee’s Children a Right independent of that of the Deceased. The Clause, For him and his Children, is inserted in the Contract in Favour of the Proprietor, that, the Children dying, the Estate may return to him; whereas otherwise it would pass to the collateral Relations, and even to other Heirs, according to the Practice and Custom of granting Leases. But, as such Persons would have no Right but as Heirs, so the Children can only in that Quality pretend to any Thing by Vertue of the said Clause, which makes no Alteration in the Essence of the Contract. And this is likewise conformable to the Proprietor’s Intention, who designed that the Estate should return to him as soon as possible. But if the Lessee had intended to get the Lease for his Children, whether his Heirs or not, he ought to have seen the Clause so worded; otherwise there is Room to believe that he submitted to the Sense required by the Nature of the Thing.
[4. ]The Patron, or former Master of a freed Man, might give one of his Children in particular the Right of Patronage, which otherwise was divided among them all. This was called Adsignatio Liberti. But he, who thus became sole Heir of the Right of Patronage, could not confer it on another; and if he died without Children, this Right reverted to the Patron’s other Children. Tho’ a Son was disinherited by his Father, this did not hinder the Father from assigning him the Right of Patronage, and even, tho’ this was done after such Assignation, the Donation was not always thereby annulled. Digest. Lib. XXXVIII. Tit. IV. De adsignandis libertis, Leg. VIII. and Leg. I. § 6, 7. See the Interpreters on the Institutes, Lib. III. Tit. IX. whence it appears, that the Right of Patronage was considered as distinct from the Inheritance of the other Goods. The same may be said of Ecclesiastical Patronages, which resemble those of the Roman Law only in Name.
[5. ]Jus praecipui, as it is termed by the Lawyers, and antient Latin Authors. See Brisson’s Law Dictionary. It is when one of the Coheirs has a Legacy, which he may take before the Division of the Estate. According to the Roman Law, such a Coheir may renounce his Share in the Inheritance, without quitting his Preciput. Digest. Lib. XXX. De Legatis & Fidei commissis. I. Leg. XVII. § 2. and Leg. LXXXVII. See Cujas on this Law, in Papinian. p. 481, &c. Tom. IV. Opp. Edit. Fabrott. and a Dissertation by the late Mr. Hertius, De Praelegatis, § 15. p. 321, &c. Tom. II. of his Comment. & Opusc.
[6. ]See my fourth Note on Pufendorf, B. VII. Chap. VII. § 12.
[7. ]Our Author cannot here speak of the Ascendants of the Deceased, as may at first Sight be imagined; for the Succession to a Kingdom doth not ascend, like private Inheritances. But he is talking of Brothers, in whose Person the Deceased is supposed to testify his Gratitude to their common Father, as has been said, § 9. Num. 3. It must be acknowledged, however, not only that the Expression is obscure, but that even the natural Order of the Words is reversed in the Original, where ob acceptum beneficium are placed before ob caritatem; for the Succession founded on a Duty of Gratitude usually takes Place only on Default of Children, who are the first Object of natural Affection.
[1 ]Allodium. This Word signifies an Estate possessed without acknowledging any Lord, to whom the Proprietor owes any Service, Rent, &c. or to whom the Estate ought to revert in certain Cases. In a Word, Allodium is opposed to Feudum. See Mr. Thomasius’s Selecta capita Historiae Juris Feudalis, §4, &c.
[2. ]An Infeoffment doth not in itself imply a Change in the Order of Succession. It is sufficient that the succeeding Kings pay Homage to the Prince to whom the Kingdom is become feudatary; and that the Crown falls to him in Case of Felony, or on Default of Heirs. Persons who enter into burthensome Engagements, like this, are, and ought to be, supposed to subject themselves as little as is possible; and it is incumbent on the other Party to see every Thing clearly expressed, which doth not necessarily follow from the Nature of the Thing itself; of which Sort is the Order of Succession, which may, and really doth, vary, according to the Difference of Places, or the Contracts between the Lord and the Vassal who received the first Investiture.
[1 ]That is, even when the Kingdom ceases to be a Fief. For here again no Necessity appears of altering the Succession. This would only serve to create Confusion, and occasion Quarrels. Besides, we ought here to suppose, that when the Kingdom was delivered from the Infeoffment, the People made no Regulation concerning the Order of the future Succession; for in that Case they must abide by the new Regulation, and the Question is superfluous. Now by leaving the Kingdom hereditary, and making no Regulation concerning the Order of the Succession, they have tacitly approved of that which took Place before; because some one is necessary. In a Word, the Order once established ought to subsist, except it be manifestly changed by those whose Business it is to do it; and consequently, in Case of a Doubt, the Presumption is in favour of the old Manner of succeeding, whatever it be.
[1 ]See Cardinal Tuschus, Pract. Concl. LXXXVIII. Verb. Regni Successio. William de Montferrat, De Succession. Reg. His Book is in the Ocean. Juris.Peregrinus, De Jure Fisci, Lib. I. Tit. XI. Num. 44. and Lib. V. Tit. I. Num. 109. See Instances of such a Succession in the Kingdom of Norway, in that learned and most exact Author John Pontan, Hist. Danic. IX. Consuet. Norman de Propinquior. Haered.John Serran. in Lodov. Gross. super, contr. Bonon. Argentraeus, Hist. Brit. Lib. VI. Cap. IV. “In Successions, the Children of the eldest Son, whether Males or Females; and in Case these eldest die without Issue of their own Bodies begotten, then the Issue of the next elder do in a Succession to Fees, by Right of Primogeniture, represent the Persons of their Fathers, and come to such Rights of Succession and Primogeniture, in the same Manner as their Fathers would do, were they living, by excluding their Uncles both by the Father and Mother’s Side, according to a general and known Custom observed, as well in Successions by the Right Line, as by the Collateral: And from the aforesaid Use and Custom, a Daughter succeeds in Fees, whether Dutchies, Earldoms, Peerages, or Baronies, how great and noble soever; and this is what was practised too in Artois, Champagne, Thoulouse, and Bretagne.” Such an Order of Succession was prescribed the Marquisate of Mantua, by the Emperor Sigismund, Anno 1432, and by the Emperor Charles V. and Philip II. in their respective Kingdoms and Principalities, Anno 1554 and 1594. Grotius.
[2. ]For the Right of Representation, properly so called, can only make the Grandson, for Example, be considered as being in the same Degree with the Uncle, so that then the Age gives the Preference. Whereas in the lineal Succession under Consideration, the Deceased is supposed to have already excluded his Brother by Right of Eldership, and thus to have transferred the Crown to his Descendants. See § 30.
[3. ]As it is in Legacies, Quorum dies cessit, non venit.Grotius.
[a ]Covar. T. 2. Pract. Qu. Cap. 38. Num. 5. Molin. De primogen. Hisp. Cap. 8.
[4. ]See Chap. IV. of this Book, § 10. Note 8.
[5. ]That is, in the publick Bodies or Councils, where the Places are hereditary; as in England, where the Peers, who compose the upper House of Parliament, transmit their Right of Sitting there, with their Dignity, to their male Children.
[1 ]An antient Testimony of the French Custom you have in Agathias, B. XI. And after Solomon, the Succession of David’s Family was the same. See 2 Chron. xxiii. 3. Grotius.
[2. ]As in the Province of Narbonne. See Serranus in his Life of Charles VI. ’Twas by such a Law I presume that The uderick dying without Issue, his Sister’s Son Athalarick succeeded him. And I am apt to think, that this did formerly obtain in Arragon.Grotius.
[1 ]In Aethiopia formerly Sisters Sons succeeded their Princes, as Nicolaus Damascenus reports. Beda observes, that the same was customary with the Picts, and that the Relations by the Woman’s Side did always succeed. And Tacitus speaking of the Germans, Sisters Sons had the same Regard from their Uncle, as they had from their own Father. And some look upon this to be a more sacred and stricter Tye of Blood.Osorius and several others inform us that ’tis so among some of the Indian People. Grotius.
[2. ]This by Gizerich’s Will prevail’d in Africa.Procopius, Vandal I. Χρόνον δε ὀλίγον Γιζερίχος, &c. A little while after, Gizerich, pretty much advanced in Years, died leaving a Will behind him, in which among other things, he charged the Vandals to take Care that the Crown of the Vandals should always go to him, who being in the Male Line nearest related to him the said Gizerich, was also the eldest of all the rest in the same Degree.Jornandes: Gizerich reigning a long time, just before his Death, called his Sons about him and enjoined them not to quarrel about the Crown, but that each should in his Turn and Degree succeed the other, that is, the eldest Son should be succeeded by him who is the next elder, and then he who is next to him should be his Successor.Victor Uticens. Lib. XI. To whom of all the Grand-sons, as being the eldest of them, the Crown, according to King Gizerich’s Constitution, did principally belong. Here, it is he, who first obtain’d the Kingdom, and not he who last filled the Throne, that is all along regarded. Now it is a Question whether Gizerich took this way of Succession from Africa itself; where we told you in the Text, that it was in force, or whether from some of our Northern People. For among the Lombards, though King Vaaces had left Sons behind him, yet none of them was to succeed him, but Risiulphus his Nephew; as is testify’d by Procopius, Goth. III. And Nicetas Choniatesde Reb.Manuel, Lib. IV. says that when Jatra was dead, not his Children but his Brother, had a Right to the Crown of Hungary. I do not know whether the Method of Succession used by the Patzinacitae, and obscurely proposed by Constantine Porphyrogen. de Administrat. Imperii, Cap. XXXVII. may be referred hither too. Crantzius, Danic. IV. and Suedic. V. reports, that the same was observed in Denmark. So Iulus, immediately descended of Ascanius, Aeneas’s eldest Son, did not succeed Aeneas in Alba, but Sylvius another of Aeneas’s Sons. Grotius.
[3. ]That Author says, That in Arabia Felix, Brothers are preferred to Children on account of their Age; and that those of the (Royal) Race reign and are invested with the other publick Offices. Geograph. Lib. XVI. p. 1129. Edit. Amst. (783. Paris.)
[4. ]See M. De Thou, Lib. LXVII. Tom. II. p. 199. Edit. Francof. It is the Country of Prekop or Krim, in the lesser Tartary.
[5. ]Livius, of Masinissa: Whilst he was engaged in War for the Carthaginians in Spain, his Father dies. (his Name was Gala ) The Crown went to Oesalces, the King’s Brother, ’tis the Custom in Numidia. See Mariana, Lib. XXIX. who says the same of Mauritania. From hence among the Saracens, who were come from Africa into Spain, Brothers were preferred to Sons till Abderamen’s Time, Rodericus Tolet. Hist. Arab. Cap. VI. Thuanus, Hist. Lib. LXV. in Ann. 1578. speaking of Hamet. He was by his Father’s Will called in his Turn after his Brothers to the Crown, their Children being quite excluded. And I observe from the Histories of those Places, that this kind of Succession prevailed in the Kingdoms of Mexico and Peru.Grotius.
[6. ]That is, if the Deceased leaves several Children, or several Relations in the same Degree, the Feoffment of Trust ought to pass from one to the other, and not to the Children of him who had it first.
[7. ]According to the Law, quoted by our Author in the Margin, in the Affair of a Feoffment of Trust, left to a Family, those who are named (by the Testator) may be admitted to demand it: Or after the Death of all such Persons, those who bore the Name of the Testator at the Time of his Decease; allowing always the Preference to the nearest Relations, unless the Testator has expressly extended his Will to those in a more remote Degree. Digest. De Legatis & Fidei, Com. II. Lib. XXXI. Leg. XXXII. § 6. See Cujas on this Law, Recit. in Digest. Tom. VIII. Opp. Edit. Fabrott. p. 1206, 1207, and Anthony Faure, De Errorib. Pragmatic, Decad. LVI. Err. VII.
[1 ]It is of such a Kingdom we are to understand what Baldus says, Procem. Decretal. Gregor. That a King may chuse which of his Children he pleases for a Successor. We have also an Instance of this Kind in the History of Mexico.Grotius.
[2. ]That is, in Regard to the Power of alienating, for in other Respects there is a wide Difference. A Kingdom, how Patrimonial soever, is still a State, that is a Society of Men subject to one and the same Government, for their own Advantage: The King therefore cannot absolutely dispose of the Kingdom, at Pleasure, so as to ruin the People, or make them fall into the Hands of one, from whom they may have Reason to fear ill Treatment; which is not even allowable, according to the Law of Nature, to a Master in Regard to his Slave.
[3. ]He had defiled Bilhah, his Father’s Concubine. See Gen. xxxv. 22. xlix. 4.
[4. ]This was not the Cause of Adonijah’s Exclusion from the Crown. Before he attempted to ascend the Throne, David had promised Bathsheba on Oath, to chuse her Son Solomon for his Successor; as it appears from 1 Kings i. 17. and GOD himself had already declared his Will in that Particular, 2 Chron. xxii. 9, 10, 11. Besides, we find in the whole Sacred History that the Kings named their Successors during their own Life, or even invested them with the Royal Dignity, with very little Regard to the Order of their Birth. And our Author, in a Note on this Place, observes that the Kingdom of David was as it were Patrimonial, not by Right of War, but by Virtue of a Donation from GOD himself.
[5. ]The Commentators have Reason to disapprove of this Opinion. However the Son may have behaved himself, it would be hard to look on him as deprived of his Right to the Crown, when his Father has not expressly disinherited him. Eventhough it does not appear that his Father has pardon’d him, that alone does not ground a sufficient Presumption of disinheriting him. It was in the Father’s Power to punish his Son in another Manner; and, while the thing remains doubtful, paternal Tenderness ought always to incline Conjecture toward the more favourable Side. Our Author, in the Margin, quotes two Laws of the Digest, which speaks of Cases very different from this. The first supposes a Man, Who, two Years before his Death, dismisses two of his Freed-Men, discontinues their usual Maintenance, and afterwards makes a Will, in which he orders his Heir to allow all his freed Men, both those whom he before had, and those whom he from that Time gives their Liberty, a certain monthly Alowance. Whereupon it is enquired, whether a Feoffment in Trust is due to the two Persons before specified. To which it is answer’d, that they have no Claim unless they can plainly prove the Patron had changed his Mind in their Favour, at the Time of making the said Will. Lib. XXXI. De Legat. & Fidei Com. II. Leg. LXXXVIII. § 11. In the other Law, we have this Case and Question proposed. A Woman left her Son in Law a certain Sum by Will. After which the Son in Law accuses the Testatrix of engaging Men to kill her Husband, the Legatee’s Father. She died before the Judges gave their Opinion, who pronounced her innocent. But while the Cause was depending, she made a Codicil, in which she did not revoke the Legacy left to her Son in Law. It is enquired, if her Heirs are obliged to pay that Legacy?Scaevola, the Lawyer, answers in the Negative. Lib. XXXIV. Tit. IV. De adimendis vel transferendis legatis. Leg. XXXI. § 2. Here Obrecht says, that the Consequence drawn from this tacit Revocation of the Legacy, in the Cases last mentioned, to the tacit disinheriting, supposed in that of a Son, whom it doth not appear that the King, his Father, has pardoned the Crime committed against him, is not just; because the Legacy is a mere Gift. Whereas, by the Civil Law, Children have some Right to the Goods of their Fathers, even during the Life of their Fathers. But something more precise must be added, for shewing the Difference of the Cases in Question. I say therefore, that the Patron, by dismissing the two freed Men, and discontinuing their Maintenance, plainly expressed his Disposition of leaving them nothing for their Maintenance, and excluding them from the Number of those, whom he design’d an Allowance. See Cujas, Recit. in Digest. Tom. VII. p. 1366. and in Resp. Scaevolae, Tom. V. Part II. p. 150, 151. So that, while no Proof of the Change of his Mind appears, what he has done in their Regard is in its self sufficient for founding a Presumption, that, how general soever the Expressions of his Will are, they are by no Means included in it. Whereas the King, as our Author supposes, has done nothing of this Nature; he has only testified his being angry with his Son: And it does not follow from that alone, that he had an Intention to disinherit him, especially in Regard to his Succession to the Crown. As to the Mother-in-Law, the Legacy she had left to her Son-in-Law, became null of its self, from the Moment such a heinous Accusation was brought; and that by Vertue of a Presumption, authorised by the Laws; which suppose a Testator must necessarily change his Mind in Regard to the Legatee, when some Cause of great Enmity arises, after the Will is made. Digest. Lib. XXXIV. Tit. IV. De adim. vel transfer. legatis, &c. Leg. III. §. 11. This Presumption is grounded on what usually happens; for there are few, who in such a Case, would not revoke a Legacy bequeathed to one, who shews himself so unworthy of their Liberality. So that, though no express Revocation appears, there is Reason to believe that the Testator either had not an Opportunity of making it, that he did not think of it, or thought it would be understood of Course. But the Case is not the same with a Father in Regard to disinheriting. How much soever he may be incensed against his Son, he does not commonly proceed to that Extremity without great Difficulty. Thus the bare Want of an evident Reconciliation, or Pardon, does not imply a tacit disinheriting. Here an express Declaration is necessary. On this Principle, the Roman Laws require that a Father, who designs to disinherit his Son, should expresly declare such his Intention. Institut. Lib. II. Tit. XII. De exhaeredatione liberorum.
[6. ]So that, he can neither dispose of by Will, nor leave the Crown to an adopted Child. See Mariana. Hist. Lib. XI. (Cap. XX.) concerning the Kingdom of Naples.Grotius.
[7. ]Mr. Vitriarius, Inst. Jur. Nat. & Gent. Lib. II. Cap. VII. Num. 58. makes a Restriction in this Case, after other Authors, viz. When the Publick good requires it; as when the King’s Son is engaged in a Conspiracy to the Prejudice of the State; in which Case it is easily presumed that the People consent to his being excluded from the Succession.
[1 ]On Condition he does not take this Step at an unseasonable Time, as when the Kingdom would fall into the Hands of a Minor, especially if it is threatened with a War, &c. This is the judicious Remark of Mr. Vitriarius, ibid. Num. 59. which likewise he makes after others.
[2. ]The Right comes originally from the Will of the People; and the present People are, and ought to be reckon’d the same as those, who formerly regulated the Order of the Succession. The publick Interest requires that such Renunciations should be valid; and that the Persons interested should not attempt to annul them. For at some Times, and in some Circumstances they are necessary for the Good of the State; so that if those with whom one has to do, are of Opinion that the Renunciation will be afterwards disregarded, they will not sit down contented with that alone.
[1 ]In Regard to the Kingdom of France, see M. De Thou, Hist. Lib. CV. at the Year 1593. See also Guicciardini. Grotius.
[2. ]That is, he cannot impose a Necessity on his Successor to follow his Orders, and confirm what he has done, in Regard to Things in which no Man has acquired a real and perpetual Right. For the learned Gronovius trifles here, when he pretends that our Author allows the Successor a Power of maintaining no Alliance, no Treaty, no Contract, in which his Predecessor engaged. The contrary evidently appears from what he says, Chap. XIV. of this Book, § 12, 13.
[3. ]But as Pufendorf observes, B. VII. Chap. VII. § 15. The Business of a Dispute concerning the Succession to the Kingdom does not belong to those Things which depend on this Jurisdiction, which the People has transferred on the King. I heartily agree with Mr. Bohmer (Introduct. ad jus Public. Univers. Part. Spec. Lib. III. Cap. IV. § 20.) who maintains that the People have a Right to pronounce absolutely in such Contests. It is supposed, says he, that neither of the Pretenders is in actual Possession of the Crown. Now on that Foot, neither of them is yet Sovereign: They only both aspire at becoming such. So that the People actually depend on neither of them; but then return by Accident and Interim to an Independence, till the Affairis decided; and consequently may, during that Time, judge definitively. Besides, this Dispute is to be decided on the Presumptions that may be form’d concerning the Will of the People, who originally established the Order of the Succession. But who can judge better of that than the People themselves? For, as our Author acknowledges, the People who now live are reckon’d the same as those who lived formerly. But if we will not stand by the Decision of the People, or of those who represent them, as the States or Grandees of the Kingdom; the Difference can be ended only by Force and Arms; which is very contrary to the Good of Civil Society. As for the rest, the People, when they pronounce on such Disputes, do not arrogate to themselves the Right of Election, which they have renounced by establishing an Order of Succession: They only determine which of the two Pretenders of the Royal Family has the better Right. Sometimes the People have even expresly reserved to themselves a Right of judging in such Cases, by a fundamental Law, which then removes all Doubt on the Subject. This is the Sentiment of the Author just quoted. He adds, however, that, if either of the Pretenders has seized on the Crown, and forced them to take the Oath of Allegiance; the People have no longer a Right of judging, because they then depend on the Possessor of the Crown. But I can never come into this Way of thinking; for if the People have a Right of judging, nothing but their Judgment can authorize the Possession of either Pretender: Otherwise that Right would be very useless. And a forced Consent cannot be consider’d as the Judgment of the People. Besides, in Order to make the bare taking Possession an apparent Title in this Case, there ought at least to be very specious and almost equal Reasons on both Sides; which does not often happen. The Right of one of the Pretenders may easily be pretty clear; if therefore the other, whose Pretensions are grounded only on frivolous Reasons, finds Means to form a Party in his Favour, and seize on the Crown; why should it not be in the People’s Power, if they have an Opportunity, to dispossess the Usurper, after they have deliberately examined and discovered the Right of the other Pretender? In fine, as to the Substance of the Question, I think the Author ought to have decided it as we do, for the same Reason which he elsewhere gives why the People should have the Regency of the Kingdom in the Interim, while their King is detain’d a Prisoner. See B. III. Chap. XX. § 3. Num. 2.
[4. ]Either in a General Assembly of the States of a Kingdom, as is practised in England and Scotland. See Camden on the Years 1571, 1572. or by Deputies, as was done in the Kingdom of Arragon, according to Mariana, Hist. Lib. XX. Grotius.
[5. ]The Latin Translator hath Regnum populi arbitrio permisit. And I find that the learned Mr. Bovin, in a Dissertation written professedly for examining what pass’d on Occasion of that Election, has not even suspected any Fault in the common Version; for thus he expresses the Sense of the Greek Historian in French. Comme Euphaes ne laissoit point d’enfans, il choisit pour son Successeur celui qui seroit elû par le Peuple Messenin. [As Euphaes left no Children, he appointed the Person, whom the Messenians should chuse, for his Successor.] Dissert. sur un Fragment de Diodorede Sicile, p. 138. Tom. III. of the Memoires de Literature de l’Academie Royale des Belles Lettres, Edit. Amst. But I am much mistaken if the Greek does not give us a very different Idea. The Words are these: Ἐυϕαε͡ι δὲ οὐκ ὄντων παιδίων, τὸν αἱρεθέντα ὑπὸ τον̂ Δήμου κατελέιπετο ἔχειν τὴν ἀρχήν. That is: As Euphaes had not Children, it was the People’s Business to chuse him a Successor. Lib. IV. Cap. X. It is evident from the Sequel of the Discourse, that the Historian speaks of what pass’d after the Demise of Euphaes. Besides, the very Construction of the Words will not allow of our Author’s Translation. The Mistake arises from not observing this Way of speaking: κατελείπετο τὸν αἱρεθέντα, &c. ἔχειν τὴν ἀρχὴν: Reliquum erat, ut electus à Populo haberet Imperium. [It remain’d that the Person chosen by the People should have the Crown.] Cicero and Caesar have said Relinquitur, ut, &c. in the same Sense, as might be shewn, if we were disposed to criticize, and the Fault was not plain enough. It must be said then that King Euphaes did not leave the Choice of a Successor to the Messenians; but that the People made use of their Right in this Case. Thus the Example is nothing to the Purpose.
[6. ]Our Author here follows Plutarch, whom he quotes in the Margin, De Amore fraterno, p. 488. Tom. II. Edit. Wech. But Justin, whom he likewise quotes, says that Xerxes and Artimenes (for so Artabazanes is called by others) referred the Decision of the Matter to their Uncle Artaphernes. Lib. II. Cap. II. Num. 9. And, as the learned Gronovius observes, according to Herodotus, Lib. VII. Cap. II. Darius himself determined the Dispute between his Children: So that here are several Variations, which will not allow us to lay any Stress on this Example.
[1 ]The Question may be understood of the Children of a King, who was the first of his Family that was chosen to reign in a State, where the Crown is successive; or of the Children of a Prince of the Royal Family, born before he actually ascended the Throne in the Order of Succession. Our Author certainly speaks of both Cases; at least his Decision is just in both; and the former admits of less Difficulty, than the latter. For when the People give the Crown to a Prince, and his Descendants, if at that Time he has Children, they without doubt are consider’d as his first Successors, and not those who may be born after, but whose Birth is uncertain. So that, unless there is an express Clause in the fundamental Law of the Succession, importing that it belongs to the future Children of the Prince elected; they can have no Right to the Crown, but after the others. See Huber, De jure Civit. Lib. I. Sect. VII. Chap. VII. § 24. &c.
[2. ]Who was afterwards called Artaxerxes Mnemon. See Plutarch, Vit. Artax. (p. 1012. Tom. I.) Grotius.
[3. ]Herod the Great, their Father, having obtain’d the Emperor Augustus’s Permission for naming which of his Sons he pleased, for Successor, or even for dividing the Kingdom of Judea among them; declared that, after his Demise, the Crown should devolve first to Antipater, his eldest Son, who was born when he was a private Man: Then to Alexander and Aristobulus, his Sons by Mariamne, born after his Accession to the Throne. This is the Account given by Josephus, Antiq. Jud. Lib. XVII. Cap. VI. and VII.
[4. ]See Flavius Blondus, Hist. Decad. II. Lib. VI. and Michael Ritius, de reb. [[sic: reg. Hungar. Lib. II. as quoted by Hotman, Geissa, or Geicza, of whom I have already spoken, Note 2. on § 24. was the second of that Name. He acceded to the Throne in 1141. on the Demise of Bela II. his Father, surnamed the Blind.]]
[5. ]See Sigebert (in Chron.) and the Notes of Henry Meibomius on the third Book of Wittikind’s Annals. In the Turkish Empire, Bajazet and Gémes disputed the Succession, the former was the Elder; but Gémes was born in his Father’s Reign. Bajazet carried his Point. Mariana, Hist. Lib. XXIV. Constantine Ducas left the Empire to his three Sons, two of whom, Michaël and Andronicus, were born of Eudosia before he was Emperor; and Constantine, the third, was born in the Purple, πορϕυρογέννητος. [For which Reason he invested him with the most splendid Marks of the Imperial Dignity.] Zonaras (Tom. III. in Vit. Constant. Duc.) See Corset, De Prole Regal. Part III. Quaest. XXVI. Grotius.
[1 ]This Example was employ’d by Demaratus, when banished the Kingdom of Sparta, as a Hint for Darius in the Dispute with Artabazanes about the Succession to the Crown of Persia. Lib. VII. Cap. III. See Note (7) on the following Paragraph. But I am surprized that this considerable Circumstance of the Order of Succession to the Throne of Lacedemonia is entirely omitted by Nicolas Cragius, De Republ. Laced. Lib. II. Cap. II. And by Ubbo Emmius, who has treated on that Subject after him. Vet. Graec. Tom. III. p. 118. &c.
[2. ]John Galeati had been in Possession of the Dutchy of Milan; but Lewis Sforza pretended that his Brother had not thereby any Right to it to his Prejudice; and therefore seiz’d on the Government, tho’ his Brother had left a Son. But he alledged other Pretexts for the Support of his Claim. See Guicciardini, Lib. I. Fol. 17. Ver. Tom. I. of the old French Translation, by Jerom Chomedey, printed at Geneva in 1593. And Paulus Jovius, Lib. II. Fol. 37. Ver. Tom. I. Strasbourg Edit. 1556.
[3. ]Xerxes himself associated Artaxerxes Longimanus to the Kingdom, not Darius or Hystaspes, who were both elder than the other, but born before their Father’s Accession to the Throne. [See Petau, De Doctrinâ temp. Lib. X. Cap. XXV. And Rationar. Part II. Lib. III. Cap. X.] But perhaps the Succession to the Crown of Persia really depended on the Suffrages of the People, yet so that they were obliged to bestow it on one of the Royal Family. For Amm. Marcellin. says this Regulation took Place in Regard to the Arsacides, a Parthian Family, the Persians being for sometime subject to that People. Lib. XXIII. (Cap. VI. p. 397. Edit. Vales. Gron.) Zonaras in Justin says the same of the Persian Kings, who succeeded the Parthians.Grotius.
[4. ]Herodotus gives it as his Opinion, that Tho ’ Darius had not declared for Xerxes, he would have reigned; because Atossa was in Condition of doing what she pleased. Lib. VII. Cap. III.
[1 ]About the Year 942, a great Dispute arose on this Question in Germany. The Emperor Otho I assembled the States of the Empire, in Order to decide it. As they could come to no Agreement, the Decision was put on the Issue of a Duel. The Conqueror was he who maintained that the Right of Representation took Place, and therefore the Nephews ought to divide the Succession equally with their Uncle. Wittikind, Hist. Lib. II. Sigebert, Chronic. Otho I. at the Year 942, as quoted by Hotoman, in the Place specified in the Margin.
[2. ]See Regin. Choppin, De Dominio, Lib. II. Thomas Grammaticus, Decis. Neapol. I. Joannes le Cirier, De Primogenit. in Ocean. Juris. (Tom. X.) Mariana, Hist. Lib. XX. XXVI. Cromer, Hist. Polon. Lib. XXX. Grotius.
[a ]Wittik. Sax. Hist. 2. Molin. de prim. Lib. 3. Cap. 8.
[3. ]See § 11. Note 1. For which Reason formerly in the Palatinate, Rupert the younger Brother was preferred to another of the same Name, descended of an elder Brother. See Reinking, Lib. I. Class IV. Cap. XVII. Num. 35. Grotius.
[4. ]See Chap. XVI. of this Book, § 10, 12. But this Distinction is of no Use here; and our Author’s Explanation is very well grounded, independently of any Support from the Right of Representation, considered in itself. For wherever that Right is established by the Laws of the Country, the Person who represents his Father is the nearest Relation; because, by Vertue of the Law, he is reckoned the same Person as his Father, so that as his Father, if alive, would have been the nearest Relation, he is so too.
[5. ]I own, they are not in the same Degree, if we consider natural Proximity; for the Grandson is one Degree farther removed from the deceased King than the younger Son. But by Vertue of the Right of Representation, authorised by the Laws, the Grandson, who represents his Father, is thereby reckoned the same Person, as is before observed; and thus he is in the same Degree with his Uncle.
[b ]Procop. Bell. Va. Lib. 1. Cap. 7, 8.
[6. ]It was Honoric, (or Heuneric) Son of Genzon, who was preferred to Gondamond. See the Notes on § 24. on Occasion of such an Order of Succession. Grotius.
[c ]Con. Vicerius, Vit. Hen. VII.
[d ]Aym. Lib. 3. Cap. 62.
[e ]Plut. Lyc. Just. Lib. 3. Cap. 2.
[7. ]The learned Gronovius says, that this Preference was not made in Consequence of any fundamental Law relating to the Succession, but because the Lacedemonians finding Cleonymus a Man of too violent a Temper, and inclined to Tyranny, would not allow him to reign; by Way of Revenge, he engaged Pyrrhus to declare War with them. Plutarch indeed seems to insinuate this, in the Life of Pyrrhus, p. 400. Tom. I. Edit. Wech. But Pausanias, in the Place mentioned by our Author in the Margin, tells us in plain Terms, that, on the contrary, Cleonymus was excluded, and Areus promoted to the Throne, because it was his Right in the Order of Succession. And that, according to the Laws, the Son of an elder Brother deceased succeeded, preferably to his Uncle, appears from what Plutarch himself says, in the Passage quoted by our Author, viz. that Lycurgus, who had it in his Power to appropriate the Crown to himself, declared it belonged to his Nephew Charilas.Gronovius farther accuses our Author of contradicting what he himself had said in the preceding Paragraph, concerning the Preference made by the Lacedemonians, according to their Laws, in Favour of a younger Brother, born after his Father’s Accession to the Throne; which does not agree with a lineal agnatic Succession, such as Grotius supposes was established in Lacedemonia. But this only proves, that our Author designs to speak here of an irregular lineal Succession; as he insinuates both in this and the foregoing Paragraph.
[8. ]See De Serres, Invent. de l’Hist. de France, in the History of Charles V. surnamed The Wise. And Mariana, Hist. Lib. XVIII. where he says that Edward’s Sons did not dispute the Crown with their Nephews. The same Writer having in B. XIV. treated of the Contest between Sanchez, Son of Alphonso, King of Castile and Leon, and his Grandson, tells us, that the States decided in Favour of the former; we do not know, says he, whether this was done unjustly or not. Grotius.
[1 ]See De Serres, Invent. de l’ Hist. de France, in the Life of Philip Augustus, where he speaks of the Dispute between John and Artus, concerning the Succession to the Crown of England, (p. 118.) The same Historian gives an Account of a like Decision in Favour of the lineal Succession, in Regard to the Dutchy of Bretagne. Vies de Philippe de Valois, & de Charles VIII. (p. 165, 166, 422.) Grotius.
[2. ]Novel. CXVIII. Cap. III.
[3. ]According to the old Roman Law, Nephews succeeded only when there was no Brother nor Sister of the Deceased remaining. See Code, De legitim. haeredib. Leg. III. and Leg. XIV. § 1.
[1 ]For the Uncle of the Deceased was already excluded by the Proximity of the Line of the Deceased, in which the Deceased’s Nephew is, in Case of a lineal Succession. And he is excluded by the Proximity of the Degree, if the Succession is hereditary, and the Right of Representation takes Place: For then the Nephew is reckoned in the same Degree with the Deceased.
[a ]Dig. Lib. 26. Tit. 3. De legit. Tutor. Leg. 3. § 5.
[1 ]Mariana, Hist. Hisp. Lib. XXVI. decides, that this ought to take Place in Portugal. He tells us however, that contrary to this Maxim, Emanuel was preferred to the Emperor Maximilian, by the People’s Favour. The same Historian says, Lib. XII. that if, in the Kingdom of Castile, Ferdinand, the Son of Berengere, younger Sister to King Henry deceased, was preferred to Blanche, the said King’s elder Sister; it was done out of Hatred to France, because Blanche was married to a French Prince.
[1 ]Illescas, Hist. Pontif. Lib. VI. Cap. XIX. Afflict. Cap. I. Col. V. De Natura succed. Aguirr. Apolog. Num. 82.
[2. ]In that Country, according to Mariana, it was formerly thought that a Brother ought to succeed, to the Exclusion of the Daughter of the deceased King. They afterwards stuck so close to the lineal Succession, that a Sister’s Son was preferred to those who descended from the Brother, but in a more remote Degree. Hist. Lib. XV. 13. XIX. 21. XX. 2, 8. The same Historian, speaking of Alphonso, says, He ordered that his Grandsons should succeed to the Kingdom of Arragon, preferably to the Sons of Ferdinand; and that even his Grandsons by his Daughter should be preferred to the Daughters of Ferdinand in Case of a Failure of male Heirs. Lib. XXIV. Thus, he adds, the Right of the Crown is frequently altered, according to the Fancy of Kings. See the same Writer, XXVII. 3. Grotius.