26.16. 16. That we ought not to decide by the Rules of the civil Law when
it is proper to decide by those of the political Law.
Most difficulties
on this subject may be easily solved by not confounding the rules
derived from property with those which spring from liberty.
Is the demesne of a state or government alienable, or is it not?
This question ought to be decided by the political law, and not by the
civil. It ought not to be decided by the civil law, because it is as
necessary that there should be demesnes for the subsistence of a state,
as that the state should have civil laws to regulate the disposal of
property.
If then they alienate the demesne, the state will be forced to make
a new fund for another. But this expedient overturns the political
government, because, by the nature of the thing, for every demesne that
shall be established, the subject will always be obliged to pay more,
and the sovereign to receive less; in a word, the demesne is necessary,
and the alienation is not.
The order of succession is, in monarchies, founded on the welfare of
the state; this makes it necessary that such an order should be fixed to
avoid the misfortunes, which I have said must arise in a despotic
kingdom, where all is uncertain, because all is arbitrary.
The order of succession is not fixed for the sake of the reigning
family; but because it is the interest of the state that it should have
a reigning family. The law which regulates the succession of individuals
is a civil law, whose view is the interest of individuals; that which
regulates the succession to monarchy is a political law, which has in
view the welfare and preservation of the kingdom.
It follows hence, that when the political law has established an
order of succession in government, and this order is at an end, it is
absurd to reclaim the succession in virtue of the civil law of any
nation whatsoever. One particular society does not make laws for another
society. The civil laws of the Romans are no more applicable than any
other civil laws. They themselves did not make use of them when they
proceeded against kings; and the maxims by which they judged kings are
so abominable that they ought never to be revived.
It follows also hence, that when the political law has obliged a
family to renounce the succession, it is absurd to insist upon the
restitutions drawn from the civil law. Restitutions are in the law, and
may be good against those who live in the law: but they are not proper
for such as have been raised up for the law, and who live for the law.
It is ridiculous to pretend to decide the rights of kingdoms, of
nations, and of the whole globe by the same maxims on which (to make use
of an expression of Cicero)
[43]
we should determine the right of a
gutter between individuals.
Footnotes
