- Category: Court of the Ekklesia
OF STATES ELECTIVE, SUCCESSIVE OR HEREDITARY, AND OF THOSE CALLED PATRIMONIAL
§ 56 Of elective states.
We have seen in the preceding chapter, that it originally belongs to a nation to confer the supreme authority, and to choose the person by whom it is to be governed. If it confers the sovereignty on him for his own person only, reserving to itself the right of choosing a successor after the sovereign's death, the state is elective. As soon as the prince is elected according to the laws, he enters into the possession of all the prerogatives which those laws annex to his dignity.
§ 57. Whether elective kings are real sovereigns.
It has been debated, whether elective kings and princes are real sovereigns. But he who lays any stress on this circumstance must have only a very confused idea of sovereignty. The manner in which a prince obtains his dignity has nothing to do with determining its nature. We must consider, first, whether the nation itself forms an independent society (see chap 1), and secondly, what is the extent of the power it has intrusted to the prince. Whenever the chief of an independent state really represents his nation, he ought to be considered as a true sovereign (§ 40), even though his authority should be limited in several respects.
§ 58. Of successive and hereditary states. The origin of the right of succession.
When a nation would avoid the troubles which seldom fail to accompany the election of a sovereign, it makes its choice for a long succession of years, by establishing the right of succession, or by rendering the crown hereditary in a family, according to the order and rules that appear most agreeable to that nation. The name of an Hereditary State or Kingdom is given to that where the successor is appointed by the same law that regulates the successions of individuals. The Successive Kingdom is that where a person succeeds according to a particular fundamental law of the state. Thus the lineal succession, and of males alone, is established in France.
§ 59. Other origins of this right.
The right of succession is not always the primitive establishment of a nation; it may have been introduced by the concession of another sovereign, and even by usurpation. But when it is supported by long possession, the people are considered as consenting to it; and this tacit consent renders it lawful, though the source be vicious. It rests then on the foundation we have already pointed out — a foundation that alone is lawful and incapable of being shaken, and to which we must ever revert.
§ 60. Other sources which still amount to the same thing.
The same right, according to Grotius and the generality of writers, may be derived from other sources, as conquest, or the right of a proprietor, who, being master of a country, should invite inhabitants to settle there, and give them lands, on condition of their acknowledging him and his heirs for their sovereigns. But as it is absurd to suppose that a society of man can place themselves in subjection otherwise than with a view to their own safety and welfare, and still more that they can bind their posterity on any other footing, it ultimately amounts to the same thing; and it must still be said that the succession is established by the express will, or the tacit consent of the nation, for the welfare and safety of the state.
§ 61. A nation may change the order of the succession.
It thus remains an undeniable truth, that in all cases the succession is established or received only with a view to the public welfare and the general safety. If it happened then that the order established in this respect became destructive to the state, the nation would certainly have a right to change it by a new law. Salus populi supreme lex, the safety of the people is the supreme law; and this law is agreeable to the strictest justice, the people having united in society only with a view to their safety and greater advantage.1
This pretended proprietary right attributed to princes is a 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.2 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.
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.
§ 62. Of renunciations.
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 the beginning of the reign of Elizabeth, most wisely excludes from the possession of the crown every heir possessed of another monarchy; and thus the law of Portugal disqualifies every foreigner who lays claim to the crown by right of blood."3
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.4
§ 63. The order of succession ought commonly to be kept.
In ordinary cases, when the state may follow the established 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 may appear his incapacity to rule by himself. This is a consequence 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."5 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)
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)
§ 65. Indivisibility of sovereignties.
The principles we have just established respecting the successive or hereditary right, manifestly show that a prince 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.6
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.
§ 66. Who are to decide disputes respecting the succession to a sovereignty.
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 two or three competitors lay claim to the crown, it is asked, "Who shall be the judge of their pretensions?" Some 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 cither 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 philosophers,7 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 people — in 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. For 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, cither by itself or by its 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 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 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."8
Buicciardini, 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.9
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.10
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.
§ 67. That the right to the succession ought not to depend on the judgment of a foreign power.
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 that is conformable to the laws of the country. As the nation has established the succession, to the nation alone belongs the 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,
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 by so much his own master as to contract a marriage 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 notwithstanding the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry's sister, and wife to Ferdinand, heir of Arragon. The grandees of Jane's party had provided her a powerful resource, by negotiating a marriage between her and Alphonsus, king of Portugal: but as that prince was Jane's uncle, it was necessary to obtain a dispensation from the pope; and Pius II., who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardour of the Portuguese monarch, and abated the zeal of the faithful Castilians. Everything succeeded with Isabella, and the unfortunate Jane took the veil in order to secure, by this heroic sacrifice, the peace of Castile.11
If the prince proceeds and marries, notwithstanding the pope's refusal, he exposes his dominions to the most fatal troubles. What would have become of England, if the Reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown?
A great emperor, Lewis of Bavaria, boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find12 two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his lifetime, nor imitated by his successors.
§ 68. Of states called patrimonial.
Finally, there are states whose sovereign may choose his successor, and even transfer the crown to another during his life: these are commonly called patrimonial kingdoms or states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shown (§ 61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I., emperor of Russia nominated his wife to succeed him, though he had children.
§ 69. Every true sovereignty is unalienable.
But when a prince chooses his successor, or when he cedes the crown to another, — properly speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, intrusted — he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labour for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shown (§ 60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: but the moment he places it in a civil state, his rights are proportioned by the principles of that state.
I know that many authors, and particularly Grotius,13 give long enumerations of the alienations of sovereignties. But the examples often prove only the abuse of power, not the right. And besides, the people consented to the alienation, either willingly or by force. What could the inhabitants of Pergamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the Roman people? Nothing remained for them, but to submit with a good grace to so powerful a legatee. To furnish an example capable of serving as an authority, they should have produced an instance of a people resisting a similar bequest of their sovereign, and whose resistance had been generally condemned as unjust and rebellious. Had Peter I., who nominated his wife to succeed him, attempted to subject his empire to the grand seignior, or to some other neighbouring power, can we imagine that the Russians would have suffered it, or that their resistance would have passed for a revolt? We do not find in Europe any great state that is reputed alienable. If some petty principalities have been considered as such, it is because they were not true sovereignties. They were fiefs of the empire, enjoying a greater or less degree of liberty: their masters made a traffic of the rights they possessed over those territories: but they could not withdraw them from a dependence on the empire.
Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, the right of really alienating the state can never belong to the sovereign, unless it be expressly given him by the entire body of the people.14 Neither are we to presume that he possesses a right to nominate his successor or surrender the sceptre to other hands, — a right which must be founded on an express consent, on a law of the state, or on long custom, justified by the tacit consent of the people.
§ 70. Duty of a prince who is empowered to nominate his successor.
If the power of nominating his successor is intrusted to the sovereign, he ought to have no other view in his choice but the advantage and safety of the state. He himself was established only for this end (§ 39); the liberty of transferring his power to another could then be granted to him only with the same view. It would be absurd to consider it as a prerogative useful to the prince, and which he may turn to his own private advantage. Peter the Great proposed only the welfare of the empire when he left the crown to his wife. He knew that heroine to be the most capable person to follow his views, and perfect the great things he had begun, and therefore preferred her to his son, who was still too young. If we often found on the throne such elevated minds as Peter's, a nation could not adopt a wiser plan, in order to ensure to itself a good government, than to instruct the prince, by a fundamental law, with the power of appointing his successor. This would be a much more certain method than the order of birth. The Roman emperors, who had no male children, appointed a successor by adoption. To this custom Rome was indebted for a series of sovereigns unequalled in history, — Nerva, Trajan, Adrian, Antoninus, Marcus Aurelius. What princes! Does the right of birth often place such on the throne?
§ 71. He must have at least a tacit ratification.
We may go still farther, and boldly assert, that, as the safety of the whole nation is deeply interested in so important a transaction, the consent and ratification of the people or state is necessary to give it full and entire effect, — at least their tacit consent and ratification. If an emperor of Russia thought proper to nominate for his successor a person notoriously unworthy of the crown, it is not at all probable that vast empire would blindly submit to so pernicious an appointment. And who shall presume to blame a nation for refusing to run headlong to ruin out of respect to the last orders of its prince? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince; and the new monarch enters into all the rights of his predecessor.
1. Nimirum, quod publicae salutis causa et communi consensu statatum est, eadem multitudinis voluntate, repus exigentibus, immutari quid obstat? MARIANA, ibid, c. iv.
2. 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 governments 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.
3. Spirit of Laws, book xxvi. chap. xxiii., where may be seen very good political reasons for these regulations.
4. See further on.
5. 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
(24) Ante, p. 26, n. — C.
6. But it is to be observed that those partitions were not made without the approbation and consent of the respective states.
7. Nesico quomodo nihil tam absurde did potest, quod non dicatur ab aliquo philosophorum. Cicero, de Divinat lib. ii.
8. Answer in behalf of Madame de Longueville to a memorial in behalf of Madame de Nemours.
10. See the same memorial, which quotes P. Labbe's Royal Abridgment, page 501, &c.
11. I take this historical passage from M. Du Port de Tertre's Conspiracies. To him I refer; for I have not the original historians by me. However, I do not enter into the question relating to the birth of Jane: this would here be of no use, The princess had not been declared a bastard according to the laws; the king acknowledged her for his daughter; and besides, whether she was or was not legitimate, the inconveniences resulting from the pope's refusal still remained the same with respect to her and the king of Portugal. — Note. edit. 1797.
12. P. 154. Forma divortii matrimonialis inter Johannem filium regis Bohemiae et Margaretham ducissam Karinthiae. This divorce is given by the emperor on account of the impotency of the husband, per auctoritatem, says he, nobis rite debitam et concessam.
P. 156. Forma dispensationis super affinitate consanguinitatis inter Ludovicum marchionem Brandenburg et Margaretham ducissam Karinthiae, nec non legitimatio liberorum procreandorum, faciae per dom. Ludovic IV. Rom. imper.
It is only human law, says the emperor, that hinders these marriages intra gradus affinitatis sanguinis, praesertim intra fratres et sorores. De cujus legis praeceptis dispensare solummodo pertinet ad auctoritatem imperatoris seu principis Romanorum. He then opposes and condemns the opinion of those who dare to say that these dispensations: depend on ecclesiastics. Both this act and the former are dated in the year 1341. — Note, edit A.D. 1797.
13. Grotius De Jure Belli et Pacis lib. i. cap. iii § 12.
14. The pope, opposing the attempt made upon England by Louis, the son of Philip Augustus, and alleging, as his pretext. that John had rendered himself a vassal of the holy see, received for answer, among other arguments, "that a sovereign had no right to dispose of his states without the consent of his barons, who were bound to defend them." On which occasion the French nobles unanimously exclaimed, that they would, to their last breath, maintain this truth, "that no prince can, of his own private will, give away his kingdom, or render it tributary, and thus enslave the nobility." Velly's Hist. of France, vol. iii. p. 491.