26.6. 6. That the Order of succession or Inheritance depends on the
Principles of political or civil Law, and not on those of the Law of
Nature.
The Voconian law ordained that no woman should be left heiress
to an estate, not even if she had an only child. Never was there a law,
says St. Augustine, more unjust.
[8]
A formula of Marculfus treats that
custom as impious which deprives daughters of the right of succeeding to
the estate of their fathers.
[9]
Justinian gives the appellation of
barbarous to the right which the males had formerly of succeeding in
prejudice to the daughters.
[10]
These notions proceeded from their
having considered the right of children to succeed to their father's
possessions as a consequence of the law of nature; which it is not.
The law of nature ordains that fathers shall provide for their
children; but it does not oblige them to make them their heirs. The
division of property, the laws of this division, and the succession
after the death of the person who has had this division can be regulated
only by the community, and consequently by political or civil laws.
True it is that a political or civil order frequently demands that
children should succeed to their father's estate; but it does not always
make this necessary.
There may be some reasons given why the laws of our fiefs appoint
that the eldest of the males, or the nearest relatives of the male side,
should have all, and the females nothing, and why, by the laws of the
Lombards,
[11]
the sisters, the natural children, the other relatives;
and, in their default, the treasury might share the inheritance with the
daughters.
It was regulated in some of the dynasties of China that the brothers
of the emperor should succeed to the throne, and that the children
should not. If they were willing that the prince should have a certain
degree of experience, if they feared his being too young, and if it had
become necessary to prevent eunuchs from placing children successively
on the throne, they might very justly establish a like order of
succession, and when some writers have treated these brothers as
usurpers, they have judged only by ideas received from the laws of their
own countries.
[12]
According to the custom of Numidia,
[13]
Desalces, brother of Gala,
succeeded to the kingdom; not Massinissa, his son. And even to this day,
among the Arabs in Barbary, where each village has its chief, they
adhere to this ancient custom, by choosing the uncle, or some other
relative to succeed.
[14]
There are monarchies merely elective; and since it is evident that
the order of succession ought to be derived from the political or civil
laws, it is for these to decide in what cases it is agreeable to reason
that the succession be granted to children, and in what cases it ought
to be given to others.
In countries where polygamy is established, the prince has many
children; and the number of them is much greater in some of these
countries than in others. There are states
[15]
where it is impossible
for the people to maintain the children of the king; they might
therefore make it a law that the crown shall devolve, not on the king's
children, but on those of his sister.
A prodigious number of children would expose the state to the most
dreadful civil wars. The order of succession which gives the crown to
the children of the sister, the number of whom is not larger than those
of a prince who has only one wife, must prevent these inconveniences.
There are people among whom reasons of state, or some maxims of
religion, have made it necessary that the crown should be always fixed
in a certain family: hence, in India, proceeds the jealousy of their
tribes,
[16]
and the fear of losing the descent; they have there
conceived that never to want princes of the blood royal, they ought to
take the children of the eldest sister of the king.
A general maxim: it is an obligation of the law of nature to provide
for our children; but to make them our successors is an obligation of
the civil or political law. Hence are derived the different regulations
with respect to bastards in the different countries of the world; these
are according to the civil or political laws of each country.
Footnotes
[8]
"City of God," lib. iv, 21.
[11]
Book ii, tit. 14, sections 6, 7, and 8.
[12]
Father Du Halde on the Second Dynasty.
[14]
Shaw, "Travels," vol. i, p. 402.
[15]
See the "Collection of Voyages that Contributed to the
Establishment of the East India Company," vol. iv, part I, p. 114. And Mr.
Smith, "Voyage to Guinea," part II, p. 150, concerning the kingdom of
Judia.
[16]
See "Edifying Letters," coll. xiv, and the "Voyages that
Contributed to the Establishment of the East India Company," vol. iii, part
II, p. 644.
