CHAP. VI.: That the Order of Succession or Inheritance depends on the Principles of Political or Civil Law, and not on those of the Law of Nature.

THE Voconian law ordained, that no woman should be left heiress to an estate, not even if she was an only child. Never was there a law, says St. Augustine De civitate Dei, lib. 4. ^†428, more unjust. A formula of Marculfus Lib. ii. cap. 12. ^†429 treats that custom as impious, which deprives daughters of the right of succeeding to the estate of their fathers. Justinian Novell. 21. ^†430 gives the appellation of barbarous, to the right which the males had formerly of succeeding in prejudice to the daughters. These notions proceed from their having considered the right of children to succeed to their fathers possessions, as a consequence of the law of nature; which it is not.

The law of nature ordains, that fathers shall provide for their children; but it does not oblige them to make them their heirs. The division of property, the laws of this division, and the succession after the death of the person who has had this division, can be regulated only by the community, and consequently by political or civil laws.

True it is, that a political or civil order frequently demands that children should succeed to their father’s estate; but it does not always make this necessary.

There may be some reasons given why the laws of our fiefs appoint that the eldest of the males, or the nearest relations of the male side, should have all, and the females nothing: and why by the laws of the

Lombards Lib. ii. tit. 14. sect. 6, 7, & 8. ^†431 the sisters, the natural children, the other relations; and, in their default, the treasury, might share the inheritance with the daughters.

It was regulated in some of the Dynasties of China, that the brothers of the emperor should succeed to the throne, and that the children should not. If they were willing that the prince should have a certain degree of experience, if they feared his being too young, and if it was become necessary to prevent eunuchs from placing children successively on the throne, they might very justly establish a like order of succession; and when some Du Halde on the second Dynasty. ^†432 writers have treated these brothers as usurpers, they have judged only by ideas received from the laws of their own countries.

According to the custom of Numidia Livy, decad. 3. lib. 9. ^†433, Desalces, brother of Gala, succeeded to the kingdom; not Massinissa, his son. And even to this day Shaw’s Travels, vol. 1. page 402. ^†434, among the Arabs in Barbary, where each village has its chief, they adhere to this ancient custom, by chusing the uncle, or some other relation, to succeed.

There are monarchies merely elective; and since it is evident, that the order of succession ought to be derived from the political or civil laws, it is for these to decide in what cases it is agreeable to reason, that the succession be granted to children, and in what cases it ought to be given to others.

In countries where polygamy is established, the prince has many children; and the number of them is much greater in some of these countries than in others. There are See the collection of voyages that contributed to the establishment of an East India company, vol. iv. part 1. page 114. And Mr. Smith’s voyage to Guinea, part 2. page 150. concerning the kingdom of Judia. ^†435 states, where it is impossible for the people to maintain the children of the king:

they might therefore make it a law, that the crown shall devolve, not on the king’s children, but on those of his sister.

A prodigious number of children would expose the state to the most dreadful civil wars. The order of succession which gives the crown to the children of the sister, the number of whom is not larger than those of a prince who has only one wife, must prevent these inconveniencies.

There are people, amongst whom reasons of state, or some maxims of religion, have made it necessary that the crown should be always fixed in a certain family: from hence, in India, proceeds the jealousy of their See Edifying Letters, let. 14. and the voyages that contributed to the establishment of the East-India company, vol. iii. part 2. page 644. ^†436 tribes, and the fear of losing the descent: they have there conceived, that never to want princes of the blood royal, they ought to take the children of the eldest sister of the king.

A general maxim: It is an obligation of the law of nature, to provide for our children; but to make them our successors, is an obligation of the civil or political law. From hence are derived the different regulations, with respect to bastards, in the different countries of the world; these are according to the civil or political laws of each country.