On The Duty of Man and Citizen
According to the Natural Law (1673)
Samuel von Pufendorf
On the Methods of Acquiring Authority, Especially Monarchical
1. Although consent of the subjects is required for the establishment of any kind of legitimate authority, this is not everywhere obtained in the same way. For sometimes a people is compelled by the violence of war to consent to the authority of the victor; and again the citizens voluntarily give their consent to the appointment of a prince.
2. The violent method of acquiring authority is usually called seizure, that is, when one, sustained by a just cause for the war, and by the favor of strength in arms, and of fortune, so far reduces a nation that they are compelled henceforth to submit to his authority. And the legitimate title to his authority is derived not only from the fact that the victor, had he wished to take advantage of the rigors of war, could have deprived the vanquished of life altogether, and so gains additional credit for clemency, in permitting them to take the lesser evil; but also from the fact that the adversary, in going to war with one whom he had himself previously injured, and to whom he had refused to give fair satisfaction, exposes all his fortunes to the hazard of war, so that already he tacitly agreed in advance to any condition which the issue of the war is to assign to him.
3. But a kingdom is acquired by the voluntary consent of a people through the medium of an election, by which the nation to be established, or already established, voluntarily designates a certain man, as being, in its judgment, capable of authority. And when he has been notified of the decree of the people, and has accepted, and the people have promised their obedience, authority is conferred upon him.
4. Election in an already constituted state, if it follows the death of a former king, is usually preceded by an interregnum. Although in this the state falls back into the imperfect form, when the citizens are bound together merely by their first compact, still the latter gains much strength from the name of the country and the common feeling for it, and the fact that the property of most of the citizens is attached to that place. And these facts constrain the good citizens to keep the peace with one another voluntarily for a time, and to endeavor all the more promptly to restore the full authority. But it is of great assistance, in avoiding the disadvantages apt to arise from an interregnum, if men are named in advance, in whose hands shall rest the administration of the state during a vacancy of the throne.
5. But in some countries, on the death of each monarch, a new election is held. In others the kingdom is conferred upon another man, with the understanding that it is to pass by succession to others without the intervention of a new election. Such right of succession is established either by the will of the king himself, or by that of the people.
6. Kings who hold their kingdom as a patrimony, can dispose as they please in regard to the succession; and their disposition will be respected, just as is the last will of private individuals, especially in the case of one who founded or acquired the kingdom. In so doing it will be permitted, if one so choose, to divide the kingdom among several children, daughters even being not excluded; or even to name as heir an adopted son, or a natural son, or one who is connected with the king by no tie of blood at all.
7. When, however, a king of this sort has made no special disposition in regard to the succession, it is presumed in the first place, that he did not by any means wish his kingdom to expire with himself, but that, on account of the ordinary human affection, it should devolve in any case upon his children. It is further assumed that he wished the monarchical form to be maintained after his death, as the form he had himself approved by his example; also that the kingdom should remain undivided, since division involves the sundering both of the kingdom and of the royal family; further, that, among those of the same degree, the male should be preferred to the female, the first-born to those born later; and finally that, if children are lacking, the kingdom should devolve upon the nearest blood relation.
8 But in such kingdoms as were in the beginning established by the free will of the people, the order of succession depends originally upon the will of that same people. And if they, in conferring upon the king his authority, have also given him the right to appoint his successor, the man of his choice will succeed him. Where this has not been done, the people are understood to have reserved that right to themselves. And if the people have been pleased to confer a kingdom with hereditary rights upon an elected king, they have either made the order of succession like that of ordinary inheritances, so far as the welfare of the kingdom permits, or have modified it in some particular way.
9. When the people have simply bidden the king to hold the kingdom with hereditary rights, and have added no particulars, it was indeed their will that the kingdom should devolve after the manner of private inheritances, but not without some modification. For the welfare of states requires that succession to a throne should differ from private inheritances substantially in these respects: (1) the kingdom must be indivisible; (2) the succession should be confined to those who are descended from the first king; (3) only those born in accordance with the laws of the country shall succeed, excluding not only bastards, but also adoptive heirs; (4) in the same degree, males shall be preferred to females, though older; (5) the successor should recognize the fact that the kingdom is a gift of the people, not of his predecessor.
10. But as inextricable controversies could easily arise, as to which of two members of the reigning family was most nearly related to the late king, when they were far removed from the founder of the house, for this reason many nations have introduced the lineal succession. It consists in this, that each draw, as it were, a perpendicular line, following his descent from the founder of the reigning family; and that members of the family be called to the throne, according as their line takes precedence over the others. And there is no passing from one line to another, so long as anyone of the former line survives, in spite of the fact that there may be someone who is very closely related, and in a nearer degree, to the deceased king.
11. The commonest forms of lineal succession are the cognate and the agnate. In the former women are not excluded, but postponed to men in the same line, with a return to them, however, if there is a failure of males of a preferred or equal degree. The latter form, on the other hand, forever excludes women and their children, even males.
12. In case a controversy should arise in regard to the succession in a patrimonial kingdom, it will be best to take the matter before arbitrators among the royal family. If the succession has been determined by will of the people, a declaration of the people will remove the uncertainty.