BOOK I. This pretended proprietary right attributed to princes is a CHAP. V chimera, produced by an abuse which its supporters would fain make of the laws respecting private inheritances. The state neither is nor can be a patrimony, since the end of patrimony is the advantage of the possessor, whereas the prince is established only for the advantage of the state.* The consequence is evident: if a nation plainly perceives that the heir of her prince would be a pernicious sovereign, she has a right to exclude him. 262. Of re nunciations. The authors, whom we oppose, grant this right to a despotic prince, while they refuse it to nations. This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the care of their own safety, and the right to govern themselves, still essentially belong to the society, although they have intrusted them, even without any express reserve, to a monarch and his heirs. In their opinion, the kingdom is the inheritance of the prince, in the same manner as his field and his flocks-a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age, if it had not the support of an authority which too often proves stronger than reason and justice. A nation may, for the same reason, oblige one branch who removes to another country, to renounce all claim to the crown, as a daughter who marries a foreign prince. These renunciations, required or approved by the state, are perfectly valid, since they are equivalent to a law that such persons and their posterity should be excluded from the throne. Thus the laws of England have for ever rejected every Roman Catholic. "Thus a law of Russia, made at [26] the beginning of the reign of Elizabeth, most wisely excludes from the possession of the crown every heir possessed of When Philip II. resigned the Netherlands to his daughter Isabella Clara Eugenia, it was said (according to the testimony of Grotius) that it was setting a dangerous precedent, for a prince to treat free citizens as his property, and barter them away like domestic slaves; that, among barbarians, indeed, the extraordinary practice sometimes obtained of transferring governiments by will or donation, because those people were incapable of discerning the difference between a prince and a master; but that those, whom superior knowledge enabled to distinguish between what is lawful and what is not, could plainly perceive that the administration of a state is the property of the people (thence usually denominated res-publica); and that, as in every period of the world there have been nations who governed themselves by popular assemblies, or by a senate; there have been others who intrusted the general management of their concerns to princes. For it is not to be imagined, it was added, that legitimate sovereignties have originated from any other source than the consent of the people, who gave themselves all up to a single person, or, for the sake of avoiding the tumults and discord of elections, to a whole family; and those to whom they thus committed themselves were induced, by the prospect of honourable pre-eminence alone, to accept a dignity by which they were bound to promote the general welfare of their fellow-citizens in preference to their own private advantage. GROTIUS. Hist. of the Disturbances in the Netherlands, book ii.-Edit. A. D. 1797. BOOK I. У. another monarchy; and thus the law of Portugal disqualifies every foreigner who lays claim to the crown by right of blood."* CHAP. V. Some celebrated authors, in other respects very learned and judicious, have then deviated from the true principles in treating of renunciations. They have largely expatiated on the rights of children born or to be born, of the transmission of those rights, &c. But they ought to have considered the succession less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle, we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred: they are fundamental laws: those not authorized by the state can only be obligatory on the prince who made them. They cannot injure his posterity, and he himself may recede from them in case the state stands in need of him and gives him an invitation: for he owes his services to a people who had committed their safety to his care. For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care.† order of succession ought com In ordinary cases, when the state may follow the established 2 63. The rule without being exposed to very great and manifest danger, it is certain that every descendant ought to succeed when the order of succession calls him to the throne, however great monly to be may appear his incapacity to rule by himself. This is a con- kept. (23) sequence of the spirit of the law that established the succession: for the people had recourse to it only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. "What a door would this open for usurpers or malcontents! It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done, since by this means no more is required than his being the king's son, and his being actually alive, which can admit of no dispute: but, on the other hand, there is no rule fixed to judge of the capacity or incapacity to reign." Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir-apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it. (23) Spirit of Laws, book xxvi. chap. xxiii., where may be seen very good political reasons for these regulations. † See further on. Memorial in behalf of Madame de Longueville, concerning the principality of Neufchatel, in 1672. (23) See this doctrine illustrated in 1 Bla. Com. 247-8.-C. BOOK I. CHAP. V. 864. Of regents. 2 65. Indi These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practised in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king's name. (24) The principles we have just established specting the sucvisibility of cessive or hereditary right, manifestly show that a prince sovereign has no right to divide his state among his children. Every sovereignty, properly so called, is, in its own nature, one and indivisible, since those who have united in society cannot be separated in spite of themselves. Those partitions, so contrary to the nature of sovereignty and the preservation of states, have been much in use; but an end has been put to them, wherever the people, and princes themselves, have had a clear view of their greatest interest, and the foundation of their safety. ties. 2 66. Who are to decide dis putes re succession to a sove reignty. But when a prince has united several different nations under his authority, his empire is then properly an assemblage of several societies subject to the same head; and there exists no natural objection to his dividing them among his children: he may distribute them, if there be neither law nor compact to the contrary, and if each of those nations consents to receive the sovereign he appoints for it. For this reason, France was divisible under the first two races.* But being entirely consolidated under the third, it has since been considered as a single kingdom; it has become indivisible, and a fundamental law has declared it so. That law, wisely providing for the preservation and splendour of the kingdom, irrevocably unites to the crown all the acquisitions of its kings. The same principles will also furnish us with the solution. of a celebrated question. When the right of succession becomes uncertain in a successive or hereditary state, and specting the two or three competitors lay claim to the crown, it is asked, Some "Who shall be the judge of their pretensions?" learned men, resting on the opinion that sovereigns are subject to no other judge but God, have maintained that the competitors for the crown, while their right remains uncertain, ought either to come to an amicable compromise, enter into articles among themselves, choose arbitrators, have recourse even to the drawing of lots, or, finally, determine the dispute by arms; and that the subjects cannot in any manner decide the question. One might be astonished that celebrated authors should have maintained such a doctrine. But since, even in speculative philosophy, there is nothing so absurd as not to have been advanced by one or other of the philoso (24) Ante, p. 26, n.-C. approbation and consent of the respect But it is to be observed that those ive states. partitions were not made without the * phers, what can be expected from the human mind, when seduced by interest or fear? What! in a question that concerns none so much as the nation-that relates to a power established only with a view to the happiness of the peoplein a quarrel that is to decide for ever their dearest interests, and their very safety-are they to stand by as unconcerned spectators? Are they to allow strangers, or the blind decision. of arms, to appoint them a master, as a flock of sheep are to wait till it be determined whether they are to be delivered. up to the butcher, or restored to the care of their shepherd? But, say they, the nation has divested itself of all jurisdiction, by giving itself up to a sovereign; it has submitted to the reigning family; it has given to those who are descended from that family a right which nobody can take from them; it has established them its superiors, and can no longer judge them. Very well! But does it not belong to that same nation to acknowledge the person to whom its duty binds it, and prevent its being delivered up to another? And since it has established the law of succession, who is more capable or has a better right to identify the individual whom the fundamental law had in view, and has pointed out as the successor? We may affirm, then, without hesitation, that the decision of this grand controversy belongs to the nation, and to the nation alone. Even if the competitors have agreed among themselves, or have chosen arbitrators, the nation is not obliged to submit to their regulations, unless it has consented to the transaction or compromise-princes not acknowledged, and whose right is uncertain, not being in any manner able to dispose of its obedience. The nation acknowledges no superior judge in an affair that relates to its most sacred duties and most precious rights. Grotius and Puffendorf differ in reality but little from our opinion; but would not have the decision of the people or state called a juridical sentence (judicium jurisdictionis). Well! be it so we shall not dispute about words. However, there is something more in the case than a mere examination of the competitors' rights, in order to submit to him who has the best. All the disputes that arise in society are to be judged and decided by the public authority. As soon as the right of succession is found uncertain, the sovereign authority returns for a time to the body of the state, which is to exercise it, either by itself or by it representatives, till the true sovereign be known. "The contest on this right suspending the functions in the person of the sovereign, the authority naturally returns to the subjects, not for them to retain it, but to prove on which of the competitors it lawfully devolves, and then to commit it to his hands. It would not be difficult to Nesico quomodo nihil tam absurde philosophorum. Cicero, de Divinat. dici potest, quod non dicatur ab aliquo lib. ii. BOOK I. CHAP. V. BOOK I. CHAP. V. support, by an infinite number of examples, a truth so evident by the light of reason: it is sufficient to remember that the states of France, after the death of Charles the Fair, terminated the famous dispute between Philip de Valois and [29] the king of England (Edward III.), and that those states, though subject to him in whose favour they granted the decision, were nevertheless the judges of the dispute.' 267. That the right to the succes sion ought not to de Guicciardini, book xii., also shows that it was the states of Arragon that decided the succession to that kingdom, in favour of Ferdinand, grandfather of Ferdinand the husband of Isabella, queen of Castile, in preference to the other relations of Martin, king of Arragon, who asserted that the kingdom belonged to them.t In the kingdom of Jerusalem also, it was the states that decided the disputes of those who made pretensions to it; as is proved by several examples in the foreign political history.‡ The states of the principality of Neufchatel have often, in the form of a juridical sentence, pronounced on the succession to the sovereignty. In the year 1707, they decided between a great number of competitors, and their decision in favour of the king of Prussia was acknowledged by all Europe in the treaty of Utrecht. The better to secure the succession in a certain and invariable order, it is at present an established rule in all Christian states (Portugal excepted), that no descendant of the sovereign can succeed to the crown, unless he be the issue of a marriage pend on the that is conformable to the laws of the country. As the nation judgment has established the succession, to the nation alone belongs the of a foreign power of acknowledging those who are capable of succeeding; and consequently, on its judgment and laws alone must depend the validity of the marriage of its sovereigns, and the legitimacy of their birth. power. If education had not the power of familiarizing the human mind to the greatest absurdities, is there any man of sense who would not be struck with astonishment to see so many nations suffer the legitimacy and right of their princes to depend on a foreign power? The court of Rome has invented an infinite number of obstructions and cases of invalidity in marriages, and at the same time arrogates to itself the right of judging of their validity, and of removing the obstructions; so that a prince of its communion cannot in certain cases be so much his own master as to contract a riage necessary to the safety of the state. Jane, the only daughter of Henry IV., king of Castile, found this true by cruel experience. Some rebels published abroad that she owed her birth to Bertrand de la Cueva, the king's favourite; and notwith Answer in behalf of Madame de See the same memorial, which quotes P. Labbe's Royal Abridgment, page 501, &c. |