The Law of War and Peace (1625)
by Hugo Grotius
On Derivative Acquisition of Property Which Takes Place in Accordance With Law; and Herein, Intestate Succession
I. That certain laws of states are unjust and therefore do not transfer ownership; such as those which confiscate the goods of shipwrecked persons in favor of the state treasury.
DERIVATIVE acquisition, or alienation, which takes place in accordance with law, is based either on the law of nature or on volitional universal law, or on a statute.
It is not our purpose to treat of the statutes of states, for that would be an endless task, and the particular disputes arising from wars are not decided in accordance with municipal law. However, attention should be called to the fact that certain laws of states are plainly unjust, such as those which confiscate in favor of the state treasury the goods of shipwrecked persons. It is, in fact, pure injustice to take away from any one his ownership of property when no adequate cause precedes. Euripides has well said in the Helena:
- I come a shipwrecked stranger whom ’tis impious to rob.
In the words of Constantine, ‘What right has the imperial treasury in another’s disaster, that it should try to find profit in so grievous a condition?’ Dio of Prusa in his seventh Oration says of a shipwreck: ‘Far be it from us, O Jupiter, to seek such gain from men’s misfortune?’
II. That according to the law of nature property is Justly acquired by a man who has received another’s property to satisfy a debt; when this may take place.
1. According to a law of nature, which has its origin in the very character and essence of ownership, alienation takes place in two ways, by legal compensation and by succession.
Alienation by legal compensation takes place when, from one who retains my property or is in debt to me, I receive, as of equal value, something which is not yet mine but which ought to be given to me in the place of a thing belonging to me or due to me, and I am unable to obtain the thing itself. For whenever expletive justice cannot acquire the same thing it tries to obtain something of equal value which, morally, is considered the same. Moreover, the transfer of ownership in this manner is proved by the result, which is morally the best proof. In fact I shall not be able to acquire the fulfillment of my right unless I become owner; for possession of the property will be fruitless if I cannot use it as I wish.
There is an ancient example of this matter in the History of Diodorus, when Hesioneus receives the horses of Ixion in satisfaction for the non-fulfillment of Ixion’s promises to his daughter.
2. We know that it is forbidden by the civil statutes, at any rate, to take the law into one’s own hands, so that it is called violence if any one recovers by force what is due to him; and in many places the one who has done this loses his right to the debt. Further, even if the civil law should not directly forbid such violence, the illegality of it would nevertheless be inferred from the establishment of the courts.
The right which I have mentioned will, therefore, be in force when the courts cease to act, for a continuous period. How this may take place I have explained above. When the closing of the courts is of short duration, the seizing of property will in fact bee lawful in the circumstances that you cannot otherwise recover your own, if perchance the debtor is absconding; but actual ownership will have to wait for the decree of the judge. This usually happens in the case of reprisals, a subject which will be treated later. However, if the right is certain, but at the same time it is morally certain that enforcement of the right cannot be obtained from a judge, for the reason, for instance, that proof is lacking, the truer opinion is that in these circumstances the law of the courts ceases to apply and one has recourse to primitive right.
III. How intestate succession has its origin in nature.
Aside from all positive law, intestate succession, as it is called, after ownership has been established, has its origin in natural inference as to the wishes of the deceased. Since the force of ownership was such that it could be transferred to another at the will of the owner, so also in case of retention of ownership at the time of death, as I have said above, if any one had given no indication of his wishes, nevertheless, since it was not credible that his intention was to yield his property after his death to the first who would take it over, the inference is that his property is to belong to the person to whom it is especially probable that the dead man had wished that it should belong. Pliny the Younger says: ‘To know the wishes of the dead takes the place of law.’ In case of doubt, moreover, it, is credible that each man wished what was most just and honorable. But among things of this kind the first class includes what is actually due; and the next class, that which, though not actually due, is consistent with duty.
IV. Whether any of the property of parents is due to children according to the law of nature; explanation, with a distinction.
1. The jurists discuss the question whether parents are under obligation to support their children. Some indeed think that it is sufficiently in accord with natural reason that parents should support their children, yet that there is no legal duty.
I think that we ought to distinguish accurately the meanings of the word duty. This word sometimes is taken strictly for that obligation which is imposed by expletive Justice; and sometimes, more freely, to indicate what cannot be neglected with honor, although in this case honor does not have its origin in expletive justice but in another source. We are concerned with duty in its larger sense, except when a human law intervenes.
Consequently I accept what Valerius said: ‘Parents by bringing us up have imposed upon us the duty of bringing up their grandchildren.’ Plutarch in his admirable treatise On the Love of Offspring says: ‘Children expect the inheritance as their due.’ There is a saying of Aristotle: ‘Who gives the form gives what is necessary to the form.’ Therefore the one who brings a human being into existence is under a duty to look out for it as much as he can, and as much as is necessary, in those things which are essential to human life, that is, for the natural social existence for which man was born.
2. For this reason, of course by natural instinct, the other living creatures also provide necessary nourishment for their offspring. On account of this fact the saying of Euripides,
- To all men
Children are as life itself,
was corrected by Apollonius of Tyana to read:
- To all animate beings
Offspring is as life itself;
and he adds a great number of arguments by which he proves that this affection is inborn’; these may be seen in Philostratus, VII. vii and viii. With this opinion that expressed by Oppian, On Hunting, Book III, and On Fishing, Book I, is in perfect agreement. Also in the tragedy Dictys the same Euripides says that ‘there is this one law for all, which is common to men both among themselves and along with other animals.’
In consequence the ancient jurists ascribe the bringing up of children to the law of nature, that is, to that law which reason herself enjoins upon us, while natural instinct commends it to other animals also. As Justinian says: ‘A natural impulse, that is, affection, impels parents to bring up their children’; and in another place he has this: ‘The father is obliged by nature herself to support a son or a daughter.’
Diodorus Siculus states the case thus Nature is the best teacher of all animate beings as regards the preservation not only of themselves but also of their offspring, to the end that as a result of this affection for kin the stock by uninterrupted succession may complete the circle of eternity. In Quintilian a son says: ‘I claim my part by universal law.’ Sallust said that a will was impious which disinherited a son.
Because this duty is according to nature, a mother ought to nourish her children that were begotten indiscriminately.
3. Although it was the intent of the Roman laws that nothing should be left to children born of an illegal union, just as also the law of Solon had provided that it should not be necessary to leave anything to bastards, the canons of the Christian Church have ameliorated this severe restriction. They teach that that which is necessary for support is rightly left to all children whatsoever, or rather, ought to be left in case there is need. In this way we are to understand the common saying, that the lawful portion cannot be taken away by human laws, with the restriction, to be sure, that in that lawful portion only the necessaries of life are included. For what is over and above the necessaries of life can be taken away without transgressing the law of nature.
4. Furthermore our descendants not only of the first degree, but also of the second, ought to be provided for, if there is need, and even beyond that. This Justinian shows when he declares that naturally we ought to provide not only for children but also for those who come after them; and this rule is even extended to those who are descended from us through the female line, if they cannot otherwise be supported.
V. That in a succession children are preferred to the father and mother of the deceased, and why.
1. Support is due likewise to parents. This duty has been fixed not only by laws, but also by the common proverb which bids ‘to cherish in return.’ For this reason, in fact, Solon is praised, because he branded with disgrace those who did not provide for parents.
Nevertheless this practice is not so universal as that which we have indicated with respect to children. For when children are born. they bring nothing with them upon which to live. Another consideration is that they have a longer time to live than their parents; consequently, just as honor and obedience are due to the parents, not to the children, so support is due to children rather than to parents.
With this meaning I accept the statement of Lucian, that ‘nature bids that children be loved by parents more than parents by children.’ Similar is this of Aristotle: ‘The producing cause feels more affection for that which is produced than that which is produced feels for the producing cause; for what any one has brought into being is, as it were, his own.’
2. Hence it happens that, even without the help of municipal law, the first right of succession to property falls to the children; the parents are believed to have wished to provide for them, as parts of their own body, most abundantly, not only the necessaries of life but also those resources which make it possible to spend life more pleasantly and honorably, especially after the time when the parents can no longer enjoy their property themselves. Paul the jurist says ‘Natural reason, as a sort of silent law, allots to children the inheritance from their parents by calling them to a succession that is, so to speak, their due.’
Further, Papinian says The inheritance from children is not due to the parents in the same way that the inheritance from parents is due to the children. Parents are admitted to the estates of their children out of compassion, children to the property of parents by the common will of nature and of the parents. That is, the inheritance falls to children partly in consequence of an express natural obligation and partly in accordance with a natural presumption, which warrants the belief that the parents desire to provide for their children as well as possible. ‘He left it as an honor to the ties of blood,’ says Valerius Maximus of Quintus Hortensius, who had willed his property to a daughter of whom he did not approve. And this is the force of that saying of the Apostle Paul: ‘For the children ought not to lay up for the parents, but the parents for the children.’
VI. The origin of vicarious succession, which is called representation, or succession in the place of and with the rights of another.
Because it is ordinarily the case that the father and mother provide for their children while they are alive, it is understood that grandfathers and grandmothers are not bound to furnish support. But when the parents, or either one of them, has died, it is fair that the grandfather and grandmother undertake the care of the grandsons and granddaughters, in the place of the deceased son or daughter. This, again, is extended in like manner to degrees of parentage farther removed.
From such an origin comes the law that the grandson succeeds in the place of the song as Ulpian states. Says Modestinus: ‘The son fills the place of the dead father.’ Justinian says: ‘He assumes the position of the father.’ In the speech on the inheritance of Philoctemon Isaeus calls this ‘to enter again upon.’ Philo Judaeus says: ‘When the parents are dead, grandchildren hold the place of children with their grandparents.’ This vicarious succession, which takes place per stirpes, by modern jurists is preferably called representation.
The same kind of succession was valid also among the Jews, as is quite clearly shown by the division of the promised land among the sons of Jacob. As the son and the daughter are each man’s nearest relatives, so also are the children of a son. or a daughter, as Demosthenes says in his speech Against Macartatus.
VII. On abdication and disinheritance.
What we have thus far said about the presumption of intent is valid in case there are manifest no indications to the contrary.
Among such indications the first to be mentioned is disowning, which was common among the Greeks, and disinheritance, to which the Romans frequently resorted. Yet this cutting off of a child that had not deserved death because of crimes is subject to the condition that support be provided for him, for the reason stated above.
VIII. Concerning the rights of illegitimate children.
1. To the rule just stated an exception must be admitted, ease there is not satisfactory agreement as to who the father of the child is.
It is true that absolute certainty is not to be found in an induction from facts. But whatever is wont to happen in the sight of people derives its own degree of certainty from evidence. And in this sense it is said that there is certainty in regard to the mother, because both men and women are available who were present at the birth and witnessed the bringing up. The same degree of certainty, however, cannot be had concerning the father, as Homer indicates by saying:
- No man himself is sure from whom he is descended.
This was imitated by Menander:
- No man himself knows from whom he is sprung.
Elsewhere Menander says:
- The mother loves her children more than does the sire
The mother knows that they are hers, the father thinks they are.
It was necessary, therefore, to devise some method by which, it might be established with probability who the father of each child was. That method is marriage, taken in its natural limits; that is, the union in which the woman is placed under the guardianship of the man. But if in a given case it is established in any other way who the father was, or if the father himself has considered it established, then by the law of nature the child concerned will have right of succession not less than any other child; and why not? For even a person of admitted foreign birth, if accepted as an adopted child, has right of succession from the presumption of the desire of the adoptive parent.
2. But illegitimate children also have a right even after the distinction between them and the legitimate children has been introduced by law. Euripides has said:
- In nothing is the bastard less than lawful son;
By law he is held down.
Nevertheless such children can be adopted, unless the law prevents. Formerly a Roman law of Anastasius permitted such adoption. Afterwards, in order to favor lawful marriage, a rather more difficult system of putting illegitimate on a par with legitimate children was devised, through nomination of the son to the municipal senate, or by subsequent marriage.
An example of an ancient adoption of illegitimate children is found among the sons of Jacob, who were placed on an equality with the sons of free mothers and shared the inheritance equally.
3. On the other hand it can happen, not only in accordance with law but also by agreement, that such children, just as may be the case with those born in wedlock, shall have support only, or shall be excluded, at any rate, from the principal share of the inheritance. The Jews give the name of concubinage to a marriage based on such an agreement, even if it be with a free woman. Such was the marriage of Abraham with Keturah, whose children, therefore, just as Ishmael, son of the handmaid Hagar, received gifts, that is, certain legacies, but did not share the inheritance. Such marriages now are called morganatic.
Not far different, in effect, are second marriages among the people of Brabant. For the real estate, which was held when the end of the first marriage came, passes to the first wife’s children.
IX. When there is neither a will nor a precise law covering the matter, if there are no children the ancestral property should be returned to those from whom it came, or to their children.
1. When there are no children to whom the succession would naturally come, the case is less clear, and in no other matter is there greater divergence among the laws. Nevertheless the entire range of variation can be traced to two sources. In the one case regard is had to nearness of relationship; in the other, the aim is to return the property to those from whom it came, according to the regular formula: ‘The father’s property to the relatives of the father, the mother’s property to the relatives of the mother.’
It is clear that we ought to distinguish accurately between paternal or ancestral property, such as is ordinarily expressed in the formula which cuts a spendthrift off from property, and recent acquisitions. In the case of the former this statement of Plato should be binding: ‘As lawgiver I decree that you are not your own masters, and that your patrimonies are not yours, but that all belongs to your family, not only that which was, but also that which is to come.’ On this ground Plato proposes that the ‘paternal estate’ be preserved for the family from which it came.
I should not wish to have this principle accepted with the implication that by the law of nature it would not be permissible to dispose of paternal and ancestral estates by will (often, in fact, the poverty of a friend makes such a device not only praiseworthy but even necessary); but rather as making clear, in case of doubt, the presumption of the desire of one who died intestate.
We grant, in fact, that full ownership belongs to him with whose wishes we are concerned.
2. But since he cannot retain his ownership after death, and it ought to be considered altogether certain that he would not be willing to lose an opportunity of conferring a favor, we should ascertain what above all is the natural order in the conferring of favors. Aristotle well says: ‘It is better to make return to one who has done a kindness to us than to confer a favor on a friend.’ Also Cicero says: ‘No duty is more necessary than the return of favors’; in another passage: ‘Inasmuch as there are two kinds of generosity, one of conferring favors, the other of requiting them, it lies within our power whether we shall confer favors or not; but for a good man it is not permissible not to return favors, provided only he can do this without injustice.’ Ambrose declares ‘It is noble to have a more kindly consideration of him who has conferred some favor upon you or has done you a service’; later he adds: ‘For what is so contrary to duty as not to make a return for what you have received? ‘
Now a favor is returned either to the living or the dead. As Lysias has shown in his Funeral Oration, ‘A favor is returned to the dead in the persons of their children, who are by nature a part of their parents, and upon whom the parents, if living, would especially wish favors conferred.’
3. The framers of the body of civil law, compiled under Justinian, being most zealous for absolute fairness, have followed this principle of natural equity in deciding between full brothers, brothers on the father’s side, brothers on the mother’s side, and in the cases of certain other relatives. Aristotle says: ‘Brothers mutually love each other, because they are born from the same parents. For common origin makes them as it were the same.’ Valerius Maximus says: ‘As the receiving of very many and very great favors is considered the first bond of affection, so the receiving of favors at the same time ought to be considered the second bond.’ In Justin it is said to be a principle of universal law that brother should succeed to brother.
4. Now if the one from whom the property has directly come is not to be found, nor his children, then it remains to return the property to those to whom it is due less directly, but nevertheless in the next degree after the first recipient; that is, to the parent of the degree above, and to his children, especially since in that way it remains among the nearest relatives, both of him whose inheritance is under consideration, and of him from whom the property directly came. Aristotle says the same: ‘First cousins on the father’s side and other cognates are united through their parents in so far as they have their origin from the same persons; and in such a way that some are more closely, others less closely united in respect to origin.’
X. Possessions recently acquired go to the nearest relatives.
1. In the case of newly acquired possessions, which Plato called ‘that over and above the inheritance,’ the duty of requiting favors ceases; it remains, then, that succession should be conferred on the person who is believed to have been most dear to the deceased. That person, moreover, is the one who is most nearly related to the deceased.’ This Isaeus says was the rule among the Greeks: ‘The property of the deceased falls to the most nearly related member of the family’; and he adds, ‘What is more just than that the property of a relative should pass to relatives?’ The same opinion is found in Aristotle, in the Rhetoric to Alexander, chapter ii.
Cicero says: ‘The social relationship and union of men will be best preserved if each shall bestow the largest measure of kindness on those who shall be most closely related to him.’ Elsewhere likewise he places especially intimate relatives next after the children.’ So also does Tacitus: ‘Nature has willed that each man’s children and kin should be most dear to him.’ In still another passage Cicero, speaking of relatives, says: ‘To these especially the necessary support of life is due.’
This duty to relatives, however, does not have its origin in expletive justice, but in ‘natural fitness.’ Cicero, again, after treating the affection for relatives, adds: ‘From these feelings of affection arise wills as well as remembrances on the part of the dying.’ The same author declares that it is more just that our property be given and bequeathed to relatives than to strangers. Ambrose says: ‘This also is generosity worthy of approval, that you do not neglect your next of kin.’
2. Further, the intestate succession with which we are dealing is nothing else than a tacit will derived from inference as to wishes. Quintilian the father says in a declamation:
The relatives hold the next place after the legatees of the will; and the case is similar if a person has died intestate and without children. This principle holds not because it is assuredly just that the property of the deceased should fall to these, but because property abandoned and, as it were, left out of ownership, seems to fall to no one else by preference.
What we have said of property recently acquired, that it is naturally bestowed on the nearest relatives, will also take place in the case of paternal and ancestral estates if neither the persons from whom they have come, nor their children, are alive. Under such circumstances requital of gratitude finds no opportunity for expression.
XI. Diversity of laws about succession.
1. Although what I have said is particularly in accord with natural presumption, nevertheless according to the law of nature it is not of the things established by necessity. Hence in consequence of the diversity of causes influencing human choice there arises a great variation in pacts, laws, and customs. Those who admit succession through the right of another within certain degrees of relationship do not admit it in other degrees.’ Some consider the origin of the possessions, others do not take this into consideration. There are countries where the first-born receive more than the younger children, as is the case among the Jews; there are others where the children are placed on an equality.
In some countries, again, account is taken only of relatives on the father’s side, in others all blood relatives receive the same as the relatives on the father’s side. Also in some places sex has influence, in others not; and in some places consideration of blood relationship is confined to the nearer degrees, elsewhere it has a wider range. To enumerate these diversities would be tedious, and this is not a part of my plan.
2. Nevertheless this principle should be kept in mind, that whenever there are no quite definite indications of intent it is to be believed that each person in regard to his succession had in mind that which the law or custom of his people approves. Such belief is based not only on the power of government, but also on presumption regarding the wishes of the deceased, which has weight even with those who possess sovereign power. For also those who possess sovereign power are believed to have rendered a perfectly fair judgement in matters affecting themselves, which they have either themselves sanctioned by laws, or approved in custom; I mean in those matters where there is no question of any loss to themselves.
XII. What is the manner of succession in hereditary kingdoms.
In the matter of succession to kingdoms we ought to distinguish those kingdoms which are held with unrestricted right of possession, and are patrimonial, from those which derive the form of possession from the consent of the people. This is a distinction we have treated above.
Kingdoms of the first class can be divided between male and female offspring, as we see was formerly done in Egypt and Britain. Lucan says:
- Not hindered by her sex
A queen can rule o’er Pharos.
Of the Britons Tacitus writes: ‘In fact they make no distinction of sex in governing.’
Further, because of assumed intent in the matter of succession, adopted children are not at a disadvantage in comparison with true children. Thus Hyllus, son of Hercules, succeeded by adoption to the kingdom of Aepalius, king of the Locrians. Molossus, a bastard, by the will of his father Pyrrhus, who had no legitimate children, succeeded to the throne of Epirus. King Atheas considered adopting Philip to succeed him in Scythia. Jugurtha, a bastard, but adopted, succeeded to the throne in Numidia; just as also in the kingdoms which the Goths and Lombards gained by force of arms we read that adoption gave a similar right.
Furthermore, the throne will pass to those relatives of the last king who are not connected by blood with the first king, if such a method of succession has been adopted in those places. So in Justin Mithridates says that ‘Paphlagonia had come by inheritance to his father on the extinction of the line of native kings’
XIII. That if hereditary kingdoms are indivisible the eldest child is given preference.
If it is expressly stated that the kingdom shall not be divided, but no direction has been given as to the person to whom it ought to go, the child that is the oldest, whether male or female, will have the kingdom. In the chapter of the Talmud on kings we read: ‘The one who has the principal right to the inheritance has it to the possession of the kingdom.’ Thus an older son is preferred to a younger. ‘It is the custom among all peoples that the eldest should receive the throne,’ says Herodotus. Elsewhere the same author often calls this the ‘law’ or custom of kingdoms. Speaking of two brothers who were striving for the kingship of the Allobroges, Livy says that the younger was inferior in right but superior in force. In Pompeius Trogus is the statement: ‘Artabazanes the eldest claimed the kingdom by privilege of age; a right which order of birth and nature itself have granted among nations.’ Elsewhere the same author calls this a universal principle of law; and so likewise Livy, who calls it succession according to age and nature.
This principle of succession is to be understood as applicable unless the father has otherwise ordered, as Ptolemy did, according to the same Trogus. But the one who has succeeded to a kingdom under such conditions will be bound to pay to the coheirs according to the valuation of their shares, if that is within the bounds of possibility.
XIV. That in case of doubt a kingdom which is hereditary only with the consent of the people is indivisible.
But those kingdoms which have been made hereditary by the voluntary consent of the people are handed down in succession according to the presumed will of the people. But it is presumed that the people desired what is most to its advantage. From this is derived the first principle, that the kingdom is indivisible; for that is of the utmost importance for protecting the kingdom and maintaining the harmony of the people.
An exception is made, however, if there is law or custom to the contrary. Thus it is apparent from the story of Zethus and Amphion, and from that about the sons of Oedipus, that the royal power of Thebes in Boeotia was divisible between the sons. Similarly, ancient Attica was divided among the sons of Pandion; the district of Rhodes, among the brothers Camirus, Ialysus, and Lindus; and the Argive kingdom among the four sons of Perseus.
Justin in Book XXI says: ‘They thought that the kingdom would be stronger if it should remain under the power of one, than if it should be divided into parts among the sons.’
XV. That the right to such kingdoms does not continue beyond the last descendants of the first king.
A second principle is that the succession is limited to those who are descended from the first king. That family, in fact, seems to have been chosen on account of its nobility; and so, when it has become extinct, the royal power reverts to the people. Curtius in Book X said that ‘the strength of sovereign power would remain in the same house and family; that the royal line would defend its hereditary sovereign authority; and that the subjects were accustomed to respect and honor the very name of Philip; and no one else assumed that name, unless born to rule.’
XVI. That in such kingdoms illegitimate children have no right of succession.
The third principle is that only children who are legitimate according to the laws of the country shall be entitled to the succession. Not only are illegitimate children excluded because they are subject to scorn, since their father did not deem the mother worthy of a true marriage, and moreover because their paternity is considered less certain, whereas in kingdoms it is to the advantage of the people to have the greatest certainty possible, in order to avoid contests. And this is the reason why the Macedonians thought that the kingdom belonged to Demetrius, the younger son, rather than to Perseus, the older; for Demetrius was born in lawful wedlock. In Ovid we read:
- But she was neither bride nor with the marriage torches wed;
And why, except that you, a bastard, should not have your father’s realms?
But adopted children also are excluded from succession, because the nobility of a truly royal family causes the kings to be more reverenced and greater expectations to be entertained concerning them.
- There is in cattle, and in horses too,
The merit of their sires.
XVII. That in such a kingdom male descendants are preferred to female descendants of the same degree of relationship.
The fourth principle is that among those who are admitted equally to the succession, either because they are of the same degree of relationship, or because they succeed to the degree of their parents, males are given preference over females. The reason is that males are thought to be better suited than females, not only for war, but also for the other functions of government.
XVIII. That among the male descendants the eldest is given preference.
1. The fifth principle is that of the male descendants the eldest is given preference, or of the female descendants in case male descendants are lacking. It is, in fact, believed that the oldest is already, or sooner will be, of more mature judgement. In Xenophon Cyrus says: ‘I leave my kingdom to the older son as naturally having had the larger experience.’
Further, because this preference of age is purely temporary, while that of sex is permanent, the prerogative of sex takes precedence over that of age. So when Herodotus had said that Perses, son of Andromeda, succeeded to the kingdom of Cepheus, he adds the reason: ‘For Cepheus had no male children.’ According to the version of Diodorus, Teuthras left the kingdom of Mysia to his daughter Argiope, ‘for the reason that he had no male children.’ Trogus said that the empire of the Medes belonged to the daughter, because Astyages had no male descendant. Similarly in Xenophon Cyaxares declared that Media belonged to his daughter, adding, ‘For I have no legitimate son.’ Of King Latinus Virgil says:
- By the gods’ destiny no son nor offspring male
Had he; a son was born, but died in early youth.
The line and so great power an only daughter kept.
In like manner before the rule of the descendants of Hercules over the Spartans, Eurotas was succeeded by Sparte, his daughter, or by her children, as the children of Helen also succeeded Tyndarus, because there were no male descendants living. Eurystheus, again, was succeeded in the rule of Mycenae by his uncle Atreus, as Thucydides states. In accordance with the same law it is noted that the royal power of Athens fell to Creusa, and of Thebes to Antigone, because there were no sons. Also the Argive kingdom came to Argus, the son of Phoroneus’s daughter.
2. From this it is to be understood that, although children in some degree take the place of the parents who die before them, yet it is to be understood also that they are capable of succession only along with the others; and that among those who are capable of succession the prerogative first of sex, and then of age, is maintained. For the quality of sex, and that of age, in so far as they are considered in this matter by the people, are so united with the person that no separation is possible.
XIX. Whether such a kingdom is a part of an inheritance.
The question is raised whether a kingdom subject to such rules of succession is a part of an inheritance.
It is nearer the truth to say that it is a kind of inheritance, but separated from the inheritance to the other possessions in the same manner as the special form of inheritance seen in certain fiefs, in subinfeudations, in rights of patronage, and in rights of special legacies requiring predelivery before the general distribution of thee estate. In consequence the kingdom may belong to the person who can be also an heir to property, if he wishes, but in such a way that the kingdom can be inherited without the estates and their burden.
The reason is that the people is believed to have wished the succession to the kingdom to take place on the best terms possible. In fact it makes no difference to the people whether estates are inherited by the king or not, since it did not choose the order of hereditary succession with that in view; the desire of the people was that there might be something certain about the succession, that respect might be gained by prestige of family, that at the same time there might be expectation of noble qualities from birth and nurture, and that the possessor of the kingdom might care for it more deeply, and defend it more bravely, if he should expect to leave it to those whom he held in the highest regard, either on account of favors received or from affection.
XX. That the presumption is that such a form of succession was established in the kingship as was customary in other things at the time of the founding of the kingdom. First, if the royal power is free from rights of tenure.
When, however, the custom of succession was different in fiefs and in land held allodially, if the kingdom is not a fief, or certainly was not originally a fief, even if afterward homage was done on behalf of it, then the succession takes place according to the law which was applicable in allodial estates at the time of its foundation.
XXI. Secondly, if the royal power is held as a fief.
In the case of those kingdoms which were originally given as fiefs by one who had absolute authority, the feudal law of succession will need to be followed. This will not always be the Lombard law, which we have in the form of a code, but the law which was received by each people at the time of the first investiture. For the Goths, Vandals, Alemans, Franks, Burgundians, Angles, and Saxons, all the Germanic tribes which by right of war seized upon the best parts of the Roman Empire, had their particular laws and customs in regard to fiefs no less than the Lombards.
XXII. What cognate lineal succession is; and of what character the transmission of right in it is.
1. Again, frequently in kingdoms there is a different kind of succession, which is not hereditary but is called lineal. In this kind it is not the custom to observe the right of substitution in the place of another which is called representation, but, instead, to hold the right of transmitting the future succession as if already conferred, since the law founds a sort of true right upon the expectation, which, of course, of itself produces nothing. Of such a kind, in fact, is the right to property which is due under a conditional agreement.
Now this succession is of such a sort that the unimpaired right necessarily passes to the descendants of the first king and in a fixed order, so that the last possessor’s descendants of the first degree are first called, both those living and those dead; and the distinction first of sex, and then of age, is made in the case of both the living and the dead. If the right of those who are dead proves to be the stronger, it passes to their descendants, again with like preference in respect to sex and age among those of equal degree; and the right of the dead is always transmitted unimpaired to the living, and that of the living to the dead. If the last possessor has no children, the succession passes to the others who are most nearly related, or would be if they were alive, while the same rule of transmission, and distinction of sex and age among equals of the same line, is preserved, so that they never pass from one line to another on account of sex or age.
The consequence of this is that a son’s daughter is preferred to a daughter’s son, and a brother’s daughter to a sister’s son, and in like manner the son of an older brother to the son of a younger brother, and so on among the rest. This is the order of succession in the kingdom of Castile, and in that kingdom the same rule holds in regard to the rights of primogeniture.
2. If law and precedents are lacking, an evidence of lineal succession can be drawn from the order which is observed in public assemblies. For if in that case consideration is had of lineal descent it will be a sign that expectation has by law been strengthened into a right, so that it can pass from the dead to the living. This, moreover, is cognate succession, in which females and their children arc not excluded, but receive a secondary place in the same line, so that the succession returns to them if males have been lacking, or descendants of males of a nearer or equal degree.
The foundation of this type of succession, in so far as it differs from hereditary succession, is the hope, on the part of peoples, that the best training will be had by those who have the best-founded expectation of possessing royal power. Such are those whose parents would have had succession if they had lived.
XXIII. What agnate lineal succession is.
There is also another kind of lineal succession called agnate, which passes from male to male; this is commonly called the succession according to Frankish law, from the example of a very famous kingdom. In so far as agnate differs from cognate succession, it was introduced especially with the aim in view that sovereignty might not pass to foreign blood through the marriages of daughters.
In both kinds of lineal succession, however, those who are related in even the most remote degree to the last possessor arc admitted, provided that they are descended from the first king. There are also cases where the cognate succession is substituted in case the agnate succession fails.’
XXIV. The succession in which nearness of relationship to the first king is always considered.
Other types of succession also can be introduced, either by the will of the people or by that of a ruler who holds his kingdom is a patrimonial estate, in such a way that he can alienate it. He may, for example, determine that in every case those who shall be in the nearest degree related to himself shall succeed to the throne; just as formerly among the Numidians, from some such cause, I suppose, the brothers of the last possessor were given precedence over the children. The same custom was formerly in vogue in Arabia Felix, as I infer from Strabo. Modern writers have reported a similar arrangement in the Crimea. It is not so long a time since in Africa a the kings of Morocco and Fez followed the same practice.
The truer opinion is that in case of doubt this rule is to be followed also in the disposition of a property left to a family in trust, The rule is in fact in agreement with the Roman law, though some scholars have a different interpretation.
If the systems discussed are thoroughly understood, it will be easy to settle disputes concerning the right to kingdoms which, on account of the conflicting opinions of jurists, are considered most difficult.
XXV. Whether a son can be disinherited in respect to succession to the throne.
The first question is, whether a son can be so disinherited by his father that he shall not succeed to the throne.
In this inquiry we must distinguish alienable kingdoms, that is, kingdoms which are patrimonial from those that are inalienable. For there is no doubt that disinheritance can take place in alienable kingdoms, since they differ in no respect from other possessions. Consequently, whatever laws or customs in respect to disinheritance are binding will be operative in this matter also. If, on the other hand, there should be no laws or customs in effect, nevertheless by the law of nature disinheritance will be permitted, except for bare support, or even without this exception, if the son has committed a crime deserving of death, or has otherwise grievously sinned, and, besides, has means of support. Thus because of an offence Reuben was deprived of the right of primogeniture by Jacob, and Adonijah was deprived of the throne by David. Even more, the son will be considered as tacitly disinherited who has committed a serious crime against his father, if there are no indications that the offence has been pardoned.
In inalienable kingdoms, however, even though they are hereditary, the same rule will not hold; for while the people has indeed chosen the hereditary method of succession, it is hereditary in the sense that it is not subject to a will. Still less will disinheritance hold good in lineal succession, where the throne passes on to individuals in prescribed order from the gift of the people, and without any semblance of ordinary inheritance.
XXVI. Whether any one can abdicate the throne for himself and his children.
A similar question is, whether the throne, or the right of succession to the throne, can be abdicated.
There is no doubt that a ruler can abdicate for himself; whether he can abdicate for his children is a subject of controversy. However, the matter ought to be settled by the extension of the distinction just made. For he who abdicates his right to inheritances can transfer nothing to his children. On the other hand, in lineal succession the act of the father cannot harm children already born, because they have by law gained their own right as soon as they have begun to exist; and it cannot work harm to those yet to be born, because it cannot hinder the right from falling to them also at the proper time, as the gift of the people.
This point of view, moreover, is not inconsistent with what I have said about transmission. The power of transmission which the parents possess is, in fact, of necessity, not voluntary. Between existing children and those who are yet to come there is this difference: those who are to come do not yet have any right, and so a right can be taken away from them by the will of the people, if it has also been yielded by the parents, whose interest it is to transmit it to their children. Here also is applicable that which we said above about abandonment of ownership.
XXVII. Absolute decision regarding the succession belongs neither to the king nor the people.
1. This question, furthermore, is often raised, whether the king who is now ruling, or the people by themselves or through appointed judges, can decide concerning the succession to the throne.
Both alternatives must be rejected so far as the decision is concerned, on grounds of jurisdiction. For jurisdiction belongs only to a superior, since it includes not merely the bare consideration of the person but also of the cause, and this must be examined with its attendant circumstances. But a cause of succession is not subject to the reigning king; this is apparent from the fact that the king who is now reigning cannot bind his successor by any law. Succession to sovereign power is not, in fact, included in sovereign power, and in consequence has remained in the state of nature, in which there was no jurisdiction.
2. Nevertheless, if the right of succession is disputed, those who claim the right will act in a correct and high-minded way if they will agree upon arbitrators, a subject which will be treated later. The people, in truth, has transferred all its right of jurisdiction to the king and royal family, and it has no remnants of that power so long as the former are in existence; I am speaking of a true kingdom and not of the mere possession of supreme authority.
Nevertheless, if question should arise concerning the original intention of the people, it will not be out of place for the people which now exists, and is considered identical with that which formerly existed, to express its opinion on the matter. In that case the judgement of the people will have to be followed, unless it is quite certainly established that formerly the desire of the people was different, and that the right in question was derived from that desire. Thus King Euphaes allowed the Messenians to decide which one of the royal family of the Aepitidae ought to rule; and the people decided in the contest between Xerxes and Artabazanes.
XXVIII. That a son born before the father came to the throne should have preference over one born afterward.
To proceed now to other questions, it holds true of every kind of succession that in an indivisible kingdom a son who was born before his father’s accession to the throne should have the preference over a son born in the royal state. For in a divisible kingdom such a son will undoubtedly receive a part, as in the case of other possessions in regard to which no distinction is ever made on account of the time in which they were acquired. The son, then, who in a divisible kingdom would receive a share in an indivisible kingdom, received the preference by reason of age. For this reason the fief goes to the son who was born before the first investiture.
Also, again, in lineal succession, as soon as a throne has been acquired, some expectation has been acquired by the children already born. If, in fact, it is assumed that other children are not born later, no one will say that those born previously ought to be excluded. In this kind of succession, a hope once established gives a right, and this right does not cease in consequence of a later act, except that in cognate succession it is suspended in consequence of the privilege of sex.
The opinion which I have stated was held valid in Persia in the contest between Cyrus and Arsica; in Judaea, between Antipater, son of Herod the Great, and his brothers; in Hungary when Geissa obtained the throne; and in Germany in the contest between Otto the First and Henry, though not without resort to arms.
XXIX. The rule stated holds unless it appears that the kingship was conferred under a different condition.
We read that a rule contrary to that just stated was followed in Sparta, in accordance with a special law of that state which gave the preference to children born during the reign because greater pains were taken with their education. It will be possible for the same thing to occur in accordance with a special law of the original investiture, if the power of governing is given in fief to a vassal and to his descendants.
Ludovico seems to have relied on this argument as against his brother Galeazzo, in the contest for the duchy of Milan. However, in Persia Xerxes, who obtained the throne in opposition to his brother Artabazanes, as Herodotus states, prevailed rather by the influence of his mother Atossa than by right. In the same Persia again, when afterward a dispute of the same kind arose, as we have already noted, between Artaxerxes Mnemon and Cyrus, the sons of Darius and Parisardis, Artaxerxes as the elder, though born in private station, was declared king.
XXX. The question whether the son of an older son is to be given preference to a younger son; explanation, with a distinction.
1. No less bitter is the contest, even with wars and single combats, over the question whether the son of an older son should be given the preference over a younger son.
In lineal succession this question presents no difficulty. For in lineal succession the dead are considered as if living in this respect, that they may transmit their right to their children. In such a succession, therefore, the son of the first-born son will have preference without any regard to age; and in kingdoms having succession not restricted to male issue even the daughter of the first-born will have preference, for in such, kingdoms neither age nor sex will furnish a reason for departing from the line.
In divisible hereditary kingdoms, however, such grandchildren will share in the division except in those regions where substitution in the place of another is not allowed, as was formerly the case among many peoples in Germany; s for grandchildren were admitted late to share the inheritance with the children. In case of doubt we ought rather to believe that the succession by substitution may take place, because it is favored by nature, as we have stated above.
2. If substitution in the place of the deceased parent has been openly introduced by the civil law of the country, it will take place even if mention is made of the nearest relative in some statute. The reasons, which are adduced from the Roman laws for this procedure, are not strong; this will become apparent to the person who examines the laws themselves. But this is the best reason that, when the subject-matter admits of it, the signification of words ought to be extended to the fullest possible meaning, to include not only the general but also the figurative use, in such a way that under the term children adopted children should be comprised, and, under that of death, civil death, for the reason that the law is accustomed to use terms in this fashion. Therefore that one will rightly be included under the term next of kin whom the law advances to the nearest degree of relationship.
In indivisible hereditary kingdoms, where substitution in the place of another has not been excluded, neither always the grandson nor always the second son will be given the preference; but the elder son will be given preference as among equals, at any rate, by the effect of the law as to the equalizing of the degrees of relationship; for we have shown above that in hereditary kingdoms preference due to age is not transferred by inheritance.
Among the Corinthians the eldest of the children of the deceased king always obtained the succession, as George the Monk has shown from the sixth book of Diodorus Siculus. So also among the Vandals, by the provision that the heir should be next of kin and eldest, an older second son was given preference over the first son’s son. Thus in Sicily Robert was given preference over the son of his older brother Martel, not specially for the reason which Bartolus accepted, because Sicily was a fief, but because the kingdom was hereditary.
3. There is an example of a similar succession in the kingdom of the Franks, in the person of Guntram; but this came rather through election by the people, which at that time had not completely ceased. But after agnate succession has been introduced the matter is free from contest; this was the case at Sparta, where, after the throne was given to the descendants of Hercules, a similar male lineal succession existed. Thus it happened that Areus, the son of an older brother, was given preference over his uncle Cleonymus.
But also in the cognate succession a grandson will be given preference, as in England Richard II, the grandson of Edward by his first-born son, was preferred to Hermon and Thomas, sons of the same Edward. This provision is also established by law in the kingdom of Castile.
XXXI. Likewise, whether a surviving younger brother of the king ought to be given preference over the son of an older brother.
It is with the help of the same distinction that answer should be made to the question of succession between the surviving brother of the last king and the son of an older brother; excepting that in many countries succession to the place of the deceased is admitted among the children when it is not allowed in the collateral line.
But in cases in which the right is not clear we ought rather to incline to the view which puts the children in the place of their father, because natural justice points to this point of view, that is, in respect to ancestral possessions. And no obstacle is presented by the fact that Justinian calls this right among the sons of brothers a privilege; for he does this out of regard not for natural justice, but for the ancient law of the Romans.
Let us now briefly mention the other questions which Manuel de Costa proposes.
XXXII. Whether the son of a brother should be preferred to an uncle of the king.
Costa rightly says that the son, or even the daughter, of a deceased brother is given preference over the uncle of a king, not in lineal succession only, but also in hereditary succession, in realms where substitution in the place of the deceased is observed. This is not the case in kingdoms which in explicit words follow the natural order of relationship; for in these the person will have the preference who shall have the advantage in the matter of sex or age.
XXXIII. Whether the son of a son should have preference over the daughter of a king.
He adds that a grandson, born of a son, takes precedence of a daughter. This is correct, and by reason of sex; but exception must be made if the question arises in a country which among the children takes account of nearness of relationship alone.
XXXIV. Whether a younger grandson, born of a son, has preference over an older grandson, born of a daughter.
He adds that a younger grandson, issue of a son, is given preference over an older grandson who is born of a daughter. This is true in cognate succession, but not equally so in hereditary succession, unless supported by a special law. Moreover the reason alleged, that the father of the one would have excluded the mother of the other from succession, is not sufficient; for the result would have come about from purely personal superiority, which is not capable of transmission.
XXXV. Whether a granddaughter born of an older son should be preferred to a younger son.
He adds that it seems to him probable that a granddaughter, born of the eldest son, would exclude a younger son from succession.
This cannot be accepted for hereditary kingdoms, even if succession by substitution in the place of the deceased is admitted; that, in fact, merely makes one eligible to the succession, but among those who are eligible the prerogative of sex ought to have weight.
XXXVI. Whether the son of a sister ought to be preferred to the daughter of a brother.
In accordance with this rule, in the kingdom of Aragon the son of a sister has been given preference over the daughter of a brother.
XXXVII. Whether the daughter of an older brother takes precedence over a younger brother.
In like manner in hereditary kingdoms the daughter of the eldest brother should be placed in the succession after the king’s younger brother.