The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

CHAP. VII. Of that Right that is acquired by Law, and of Succession from an Intestate.

• I. Of the Civil Laws some are unjust, and therefore cannot transfer a Right, as in things shipwrackt.
• II. By the Law of Nature, a Right may by gained, in things taken from another for a just debt; and when.
• III. How Succession to an Intestates estate doth naturally arise.
• IV. Whether by the Law of Nature, any part of the Parents goods be due to their Children, explained by distinction.
• V. The Children of the deceased preferred to the Estate before their Parents, and why.
• VI. The Original of Representative Succes∣sion.
• VII. Of Abdication and Exheredation.
• VIII. Of the Right of Natural Issue.
• IX. Where are no Children, nor Will, nor certain Law extant, the ancient Estate shall return from whence it descended, and to their Children.
• X. But that which was lately gained to the nearest in blood.
• XI. The Laws touching Succession are di∣verse.
• XII. How Succession takes place in Patrimoni∣al Kingdoms.
• XIII. In Kingdoms Indivisible the first-born to be preferred.
• XIV. That Kingdom, which by the peoples consent, is hereditary; if in doubt, is pre∣sumed indivisible.
• XV. The Succession not to last beyond the line of the first King.
• XVI. Natural Issue not at all concerned in it.
• XVII. The Male Issue preferr'd before the Female, within the same degree.
• XVIII. Of the Males, the eldest is to be preferred.
• XIX. Whether such a Kingdom be part of an Inheritance.
• XX. It may be presumed that the Right of Succession to a Kingdom did agree with that of Succession to other things at that time when that Kingdom began; whether Absolute:
• XXI. Or held of another in Fee.
• XXII. Of Lineal Suceession to the next in blood, whether Males or Females; and how the Right is thereby transmitted.
• XXIII. Of Lineal Succession to the Male Issue only, called Agnatical Succession.
• XXIV. Of that Succession which always re∣spects the nearest to the first King only.
• XXV. Whether a Son may be exhereda∣ted, so as to bar his Succession to the Crown.
• XXVI. Whether a King may for himself and his Children, renounce his King∣dom.
• XXVII. Concerning the Right of Succession, the Judgement, to speak properly, is neither in the King nor People.
• XXVIII. A Son born before his Father was King, shall be preferred before him that was postnate:
• XXIX. Ʋnless it be otherwise provided by some other Law.
• XXX. Whether the elder Brother deceased, his Son be to be preferred before the youn∣ger Brother, explained by distinction.
• XXXI. Also whether the younger Brother living, be to be preferred before the Kings elder Brothers Son.
• XXXII. Whether the Kings Brothers Son be to be preferred before the Kings Ʋncle.
• XXXIII. Whether the Kings Son be to be preferred before the Kings Daughter.
• XXXIV. Whether the younger Son of a Kings Son be to be preferred before the eldest Son of a Daughter.
• XXXV. Whether the Daughter of the eldest Son be to be preferred before the younger Son.
• XXXVI. Whether the Son of a Sister be to be preferred before the Daughter of a Brother.
• XXXVII. Whether the Daughter of an elder Brother be to be preferred before the younger Brother.

I. Some of the Civil Laws unjust.

HAving thus shewed what Right may be derived from another by his Act, now we are to treat of the Right that is derived from another by Law: And this is, either by the Law of Nature, or by the voluntary Law of Nations, or from the Civil Law. It were endless to treat here of the Ci∣vil Law, neither are the main Controversies concerning War thereby determined; and therefore we shall purposely omit it. Yet is it worth our Observation to know, that some of the Civil Laws are apparently unjust; as that which adjudgeth goods Shipwrackt unto the Kings Coffers. For to take away anothers Right and Propriety without any preceeding cause, that is probable, is a manifest injury. Thus pleads Helen in Eu∣ripides,

* 1.1Wreckt, and a Stranger came I in, Such to despoil, is horrid sin.

For what Right, saith Constantine, can the misfortunes of another create to a King, that he should be enriched by a calamity so much to be pitied.* 1.2 And therefore Dion Prusaeensis, in an Oration of his concerning Shipwracks, crys out, Absit, O Jupiter, ut lucrum captemus tale, ex hominum infortunio; Far be it, O Jupiter, from me to take such advantages by other mens misfortunes. And yet such a Right do the Laws of Nations very unjustly give; as amongst the English, the Sicilians: And such an ancient Law Sopater mentions to be in force in Greece. Christian King of Denmark, upon the abrogating of this Law, com∣plained, That he lost an hundred thousand Crowns yearly. Nicetas speaking of this Law, calls it a Custome so barbarous as is not to be named. What then was Bodines meaning to defend this Law? He, namely, who reprehended Papinian for chusing rather to dye, than to act against his own Conscience.

II. A man may have a Right to that which he takes from another, and when.

Propriety or Dominion being introduced, it follows, by the Law of Nature, That things are alienable two ways: First, By commutation; which consists in the making up of that Right which I want, whereby the ballance of Justice may be made even: or Se∣condly, By Succession. Now Alienation by way of Commutation or Expletion is when for something that is, or ought to be mine, which I cannot receive in kind, I take from him that detains it or somewhat in lieu thereof, that is, some other thing of equal value. Thus Irenaeus excuseth the Hebrews for robbing the Aegyptians of their goods,* 1.3 Which, saith he, they might take and keep in compensation of their labour. Now that Dominion may be thus transferred, is easily proved from the end, which in moral things is the best proof. For how otherwise can I be said to receive my full Right, unless I become the right owner of it? Seeing that it is not the bare detention, but the full power to use and dispose of it at my pleasure, that makes the Scales of Justice even. An ancient exam∣ple of this we have in Diodorus, where Hesionaeus in lieu of those things which being pro∣mised to his Daughter by Ixion, but not given, took away his Horses. For Expletive Justice, when it cannot recover what is the same, endeavours to get the value of it, which in a moral estimation is the same. By the Civil Law no man, we know, can do himself Right: Nay, if any man shall with his own hands take away from another, though but what is his due, it shall be imputed unto him as Rapine, and in some Countreys, he shall lose his debt. And although the Civil Law did not diectly forbid this, yet from the very in∣stitution of publick Tribunals, it may easily be concluded to be unlawful. But where there are not publick Courts to appeal unto (as on the Seas and in Desarts) there the Law of Nature must be our guide. So it should sometimes, when the Laws cease but for the present, that is, if the debt can never be got otherwise: As, if the Debtor be ready to fly the Countrey before the Courts can be open; in which case the Creditor may lawfully have recourse to the Law of Nature: Yet so, that the Judgement of the Court must afterwards be expected, before the Right of Propriety can be assured, as in the case of Reprizals; as shall be said hereafter. But yet, if the Right be certain, and it be also morally as certain, That a man cannot by a Judge receive satisfaction for want of due proof, the best opinion is, That the Law concerning Judgements ceaseth, and that a man may have recourse to the ancient Law of Nations.

III. The Estate of an Intestate to whom it na∣turally de∣scends.

Dominion being once introduced, that which naturally guides the Succession to the estate of a person dying intestate, setting aside the Civil Law, is our conjecture at the Will of the deceased. For seeing that the force of Dominion is such, that it may be transferred at the will of the right owner, unto another: Therefore in case a man dyes possest of an estate, leaving nothing to testifie his mind after his death; because it is not credible that he would leave it to him that could next catch it, therefore shall it succeed to him to whom it is probable he would have left it, had he lived to have declared it. Defunctorum voluntatem intellexisse, pro jure est, saith Pliny Junior; To have understood the Will of the deceased, is sufficient to create a Right. Now to the dead this favour is indulged, That in cases that are doubtful, it is presumed, That every man would do that which is most just and honest; whereof in the first place is the payment of his just debts, and in the next, that which, though not due, yet is most agreeable to our duty: And there∣fore what is committed to a mans trust may be restored, saith Paulus, (the person dying Intestate that trusted it) to those that succeed him, because it may be believed, That his Will was freely to leave the lawful Inheritance unto them.

IV. Whether Pa∣rents do owe unto their Children any part of their goods.

It is much controverted by Lawyers, Whether Parents may be said to owe their chil∣dren Aliment: Some of them hold it to be agreeable to Natural Reason, but deny it to be a Debt. But we think it fit here to distinguish of the word Debt, which may be taken either strictly, for that which by Commutative Justice we are obliged to do; or largely, for that which cannot with honour or honesty be left undone, as being a duty arising

from another spring, but not from that of Justice.* 1.4 Now Aliment is due to Children (if Humane Laws do not otherwise determine of it) in this looser sense. In which, I conceive, that of Val. Maximus is to be understood, Our Parents by nourishing us, h••ve laid this obligation upon us to nourish our Children. And that also of Plutarch, in that most elegant Oration of his, concerning the Love of Parents towards their Children, Liberi haereditatem, ut sibi debitam, expectant; Our Children look for our estates, as due unto them after our death. So great was the Equity of this,* 1.5 That St. Augustine would not admit that the goods of such as had exheredated their own Children, should be received by the Church. And as Procopius in his Persian Wars observes, Though Humane Laws do in other things extreamly differ one from another, yet all Nations, as well Romans as Barbarians, in this agree, That Children should succeed to their Parents, as the right owners of what they leave. Again, Qui formam dat, dat quae ad formam sunt necessaria; He that gives the form gives things neces∣sary to that form, saith Aristotle. Therefore he that gives man his existence, ought, as much as in him lies, to provide for him all things necessary for a Natural and Social life; for hereunto he was born. There needs no Law to bind us to this duty; for all other creatures, even by Natures instinct, do feed their young: As Pliny observes of Swal∣lows, That with great equity they feed their little ones by turns; (Summa aequitate alternant cibum.) Hence it is, that the Ancient Civilians do refer the Education of Children to the Law of Nature. And Euripides comprehends all Creatures under one and the same Law, Which, saith he, is common as well to men among themselves, as to them, with all other sensible Creatures. For that which Natural Instinct commends to them, the same doth Reason prescribe unto us. Of such force is Natural affection, that it easily perswades us to nourish our Children, saith Justinian. Nature is an Indulgent Mistress to all living creatures, equally instructing them how to conserve not only themselves, but those that are born of them; that so by this successive Charity she may aspire to make her self immortal. Quintilian brings in the Son claiming a Portion of his Fathers Estate by the Law of Nations.* 1.6 And Salust con∣demns that Testament as impious and unnatural, by which the Son is excluded from his part of the Inheritance. And because this is a debt that we owe to Nature, there∣fore is the Mother bound to nourish the Child that hath no certain Father.* 1.7 And though the Roman Laws made no provision for Children ex damnato legibus Concubitu, that were illegitimate; and that by Solons Laws it was provided, That no man should leave any thing to his Natural Issue: yet do the Canons of our Religion correct the severity of these Laws, by teaching us, That our Children, however begotten by us, should be a part of our care; and that in case it be needful,* 1.8 we ought to leave them enough to preserve that life which we gave them: but beyond necessaries, is no man bound by the Law of Na∣ture to provide for them. Neither are we bound to nourish our Sons only, but those al∣so that proceed from them, yea, even to the third generation, according to Justinian, and that for humanity sake: Neither should our Charity rest here, but it should extend it self even unto those who issue out of our Loins, and are born unto us by strange women, if they cannot otherwise be maintained.

V. In Succession the Children of the decea∣sed are to be preferred be∣fore their Pa∣rents, and why.

Children ought also to nourish their Parents; not only in obedience to many whol∣some Laws, but in common gratitude, like the Storks, who when their Parents are spent with age, feed them, and being faint, receive them on their backs, and carry them from place to place: And therefore in fostering those, who when we were Children fostered us, we are Proverbially said, To imitate the Stork† 1.9. Solon is highly commended for setting a brand of infamy upon those that did it not: Yet is not this so ordinary as that which we have said of Children. Because Children when they are born, bring nothing into the world with them whereby to live; and have probably a longer time to live here than their Parents have. And as honour and obedience is properly due to Pa∣rents, and not to Children: So is Sustentation due rather to Children than to Parents: And thus is Lucian to be understood, when he tells us, That it is more agreeable to the dictates of Nature, for Parents to love their Children, than for Children their Pa∣rents. And that also of Aristotle, That which begets, is always better affected to the thing begotten, than that which is begotten, can be to the begetter: For that is properly said to be our own, which derives its being from us. Whence it comes, That without the favour of the Civil Law, the first Succession to the goods of the Parents is transmitted to their Children; it being presumed, That next after themselves, they would that those born of them (as being part of their own body) should be plentifully supplied with all things, not only necessary for life, but for a more honest and comfortable livelihood. Insomuch, that were all humane Laws asleep, yet, as Paulus the Lawyer observes, would na∣tural Reason, which is as it were a silent Law, adjudge the Fathers Inheritance unto his Chil∣dren, and invest them in it, as their due, by an undoubted Succession. But yet, as Papinianus notes, cannot Parents claim the estates of their Children, by the same Right as Children do the Inheritance of their Parents: For Parents are admitted to their Childrens goods meerly out of Commiseration; but Children to the estate of their Parents by the common vote, that is, both

of Nature and of their Parents. Philo in his third Book of the life of Moses, gives this Reason why Moses made no provision for Parents out of their Childrens Estate, Because seeing that the Law of Nature did provide that Children should succeed their Parents in their Estates, and not Parents their Children; therefore did Moses pass over in silence, what was contrary to the desires of all Parents, and might prove unlucky. Hence we may observe, That the Inheritance of Parents descends upon their Children, by a two∣fold Right; partly, as a meer debt of Nature; and partly, out of a Natural Conje∣cture, That it is the Will of their Parents, that their own Children should be best pro∣vided for.* 1.10 Sanguini honorem relinquit, saith Val. Max. of Quintus Hortensius; His honour he bequeathed to his Blood. For though he detested the wicked life of his Son, yet dy∣ing, Ne ordinem naturae confunderet, non nepotes, sed filium haeredem scripsit; To preserve the order of Nature, he made his Son, and not his Nephews, heir to his Estate: Thinking it en••ugh, that he had declared his dislike of his Sons ill manners whilest he lived. And therefore dying,* 1.11 he left him the honour due to his Blood. The like he records of Fulvius, who causing his own Son to be apprehended for conspiring his death, did not only forbear to prosecute him whilest he lived, but dying, Dominum omnium esse voluit, quem genuerat haeredem i••••••ituens, non quem fuerat expertus; Made him heir of all he had, regarding his Birth and Blood, and not his Crimes. And to this purpose is that of St. Paul, Children do not lay up for their Parents,* 1.12 but Parents for their Children.

VI. Of Represen∣tative Succes∣sion.

Now because it is thus natural and ordinary for Parents to take care of their Chil∣drens Education, therefore whilest they live, there lyes no obligation upon the Grand Parents to give them maintenance: Yet in case the Father or the Mother dye, or be otherwise disabled, then it is a duty, which in all equity the Parents of the deceased Son or Daughter are obliged unto, to see their Nephews or Neeces virtuously brought up. And by the same reason, is the same duty incumbent on the Parents of more remote degrees if these fail. And from hence ariseth the Right of the Nephew to inherit the Estate, instead of a deceased Son, as Ʋlpian speaks. Which gave occasion to that He∣brew saying, Filius etiam in Sepulchro succedit; That the Son succeeds, though in his Grave. Because Filii filiorum sunt quasi filii; The Sons of that dead Son, are reputed Sons. And as Modestinus speaks, Shall fill up the vacant place of their dead Father. Justinian thought nothing more unreasonable than this, That the Nephew should succeed instead of the deceased Father, in the Estate of his Grand-father in case he dyed Intestate. And this kind of Vice-succession, our Modern Civilians do affectedly call Representative; when the Sons claim an Estate, by representing the person of their Father being dead. And that that manner of Right was approved of amongst the Hebrews, the division of the Land of Canaan amongst the Children of Israel, doth sufficiently demonstrate. As our Sons and Daugh∣ters are nearest unto us in blood, so are those who are born of either of them, as Demo∣sthenes observes in his Oration against Macartatus.

VII. Abdication or exheredati∣on.

What we have hitherto said concerning the Right of Succession, arising from our Con∣jectures at the Will of the Intestate, is of force, if there appear no certain sign, that he was otherwise minded. Such in the first place was among the Grecians an Abdication, or a manifest renouncing, or casting off of the person claiming: And among the Ro∣mans an open disinheriting of him; yet so, that if that person did not by his crime deserve to be put to death, he was to be allowed sufficient to sustain Nature, for the Reasons aforesaid.

VIII. The Right of Bastards.

And here we may add another exception to this general Rule, that is, If it do not sufficiently appear that such a Son or Daughter was begotten by him: But yet we know that of such matters of fact there can be no certain knowledge: But of such acts as are publickly done before men, there may be some certainty upon the Testimony of such as beheld them. In which sense the Mother may be certain that the Child is hers, by those who were present at its Birth and Education; but thus certain cannot a Father be. Which Homer first, and after him Menander thus intimates:

Know directly no man can From what stock himself first sprang.

And so in another place he thus distinguisheth between the Parents,

Fathers do love their Children, Mothers dote: She knows them hers; but this he takes by rote.

Therefore some way was thought fit to be found, whereby it might probably appear, who the Father of every Child was: And this was Marriage taken in its Natural terms, that is, for such a cohabitation, as placeth the woman under the custody or safeguard of the man. But whether by this, or some other way, the true Father of the Child be

known, or that any man doth own the Child as his; by the Law of Nature, that Child, as well as that born in Marriage shall inherit. Neither is this strange, seeing that we see meer strangers (being adopted for Sons) to succeed in the Jnheritance, only by conjecture at the owners will. And the Nephew instead of the Father; as old Jacob adopted Ephraim and Manasses into the number of his Sons, in the stead of their Father Joseph. But our Natural Issue is differenced from our Legitimate by Law only. So Euripides,

Bastards, no less than those in Wedlock born, Are ours, although by Laws they're left forlorn.

And yet may those also be adopted Sons, if the Laws forbid not, as it was anciently permitted among the Romans, by the Laws of Anastasius: But afterwards in favour to lawful Marriage, there was a more difficult way found, to make Bastards equal to such as were Legitimate, namely, by the free offer of the Court (when they say cause) or by the subsequent Marriage of the Mother of the Child. Thus did old Jacob adopt his Natural Son s, making them equal to his Legitimate, and gi∣ving them equal shares in his Inheritance. But the contrary may sometimes hap∣pen, not only by the prohibition of the Law, but even by agreement, when it is agreed on by both parties before, That they that are to be born by that Wedlock shall receive only Aliment, but no part of the Ancient Inheritance. And such a Marri∣age the Hebrews call Concubinary, although made with a Free-woman: Such was that of Abraham with Keturah, called therefore his Concubine, Gen. 25.6. whose Children, to∣gether with Ishmael the Son of Agar his Bond-maid, are said to have received gifts, that is, Legacies; but no part of the Ancient Inheritance. So it was anciently among the Mexicans, who gave all to the eldest son, but nothing to the rest but sustenance only: And not much better are second Marriages in Brabant, where the Children by the se∣cond Venter, have no Propriety in the Estate which the Father held at the death of his former Wife. The like Law we find among the ancient Burgundians.

IX. If a man dye Childless and Intestate, to whom shall the Estate de∣scend.

* 1.13If a man dye Childless, and withal Intestate, on whom the Succession should de∣scend, is not easily to be determined. There being no one thing wherein the Laws do more differ. All which differences may notwithstanding be reduced under two Heads, whereof the one hath respect to the nearest of kin, the other to the several Spring-heads from whence it descended: That which came by the Father, to his Relations; and that which came by the Mother, to hers. But here we must distinguish between the ancient Inheritance, and that lately purchased: That of Plato must be understood of the former, Ego Legum conditor, &c. I being a Law giver, saith he, do ordain, That neither your Per∣sons nor Patrimonial Estates are in your own power fully, but your stock and lineage have a Right thereunto; as well they that now are, as they that are to come. Whereby it seems that Plato would have 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the Ancient Inheritance preserved intire for that Tribe or Kindred by which it came: Which I would not have so to be understood, as though it were not naturally lawful to dispose of any goods that descend unto us, from either Parents or Ancestors otherwise. (For sometimes to relieve the wants of a Friend, who hath well deserved of us, is not only commendable, but necessary.) But (that in a case ambiguous) it may appear what we ought to believe the will of the Intestate was. For we take it as granted, That he that dies hath at his death a full Right to dispose of his Estate. But since it is impossible for him to retain this Right being dead, and that it may be presu∣med, That he would not altogether lose that Right, whereby he might gratifie his Friends: It concerns us to enquire in what order this benefit should naturally descend. Wherein that of Aristotle is most rational, Potius est gratiam referri ei qui benefecit quam amico con∣ferre beneficium; That it is better to return thanks to our Benefactor, than to oblige new Friends. For as Cicero saith truly, There is no duty so necessary as that of Gratitude:* 1.14 For since Libera∣lity hath but two Branches, whereof one is to do good, the other to repay good; the former we may do if we will, but the latter we must do if we would be honest, and can do it without inju∣ring any. So St. Ambrose, It becomes every man to have a greater respect unto him from whom we have received a Courtesie, than unto others. And presently after, What can be more against our duty, than not to return what we have received? Now our Gratitude is exprest either to the living or 〈◊〉〈◊〉 the dead, as Lisias observes in his Funeral Oration, It is shewed in doing good to their Children, being naturally the surviving parts of them, and unto whom their parents, if living, would have been most beneficent. In me conferes quicquid in li∣beros meos contuleris, saith the Fisher-man, in Procopius,* 1.15 who was about to adventure his life against a Dog-fish, to gain a very great Pearl for the Emperour Cosroe, That is the best Gratitude that is shewed to the dead: For what, O Emperour, thou shalt confer on my Chil∣dren, if I perish, thou bestowest upon me. And according to this rule did they walk who framed the Justinian Laws, in that question concerning whole and half Brothers, and in that concerning Cousins in Blood, and in some others. Brothers, saith Aristotle, do love

each other, being born of the same Parents: Ortus communis ipsos quasi eosdem facit; One common blood whereof they are made, makes them almost one and the same. Whence frater is quasi fere alter, A Brother is but almost another, or as one cast in the same mould. For as the highest bond of Love is deservedly that which Children owe their Parents,* 1.16 from whom they receive the most and the greatest benefits, as their lives and livelihoods: So the next is that of Brethren to each other, as having received the same benefits together from the same Parents. And therefore for Brethren dying Childless and Intestate, to succeed one another, is (according to Justin) the Common Right of Nations. But in case he, from whom the goods last descended, be not to be found, nor any of his Children; it remains that the thanks be paid to them, to whom, though not so much, yet next after him they are notwithstanding due; namely, to the Parents of the next degree above him, and to his Children: Especially, seeing by this means it may be continued between the Kinsmen, both of him whose inheritance it was, and of him from whom the said goods first descended. So the same Aristotle, Cousin Germans, and the rest of our Kinsfolks, are linked together by their Pa∣rents, as being born of one common stock; yet so, as some are more nearly allyed than others, according to their respective birth. Thus by the Law of Moses, the Unkle succeeded after the Brothers, as being nearer unto the first Owner, than the Brothers Children, Numb. 27.10, 11.

X. An estate lately gained to the next of kin.

But as to that part of the estate that is but lately acquired; because there lyes no ob∣ligation of thankfulness to our Ancestors for them, it remains that the succession should pass to him, that was dearest to the person deceased, which is presumed to be his nearest Kinsman, who is as it were his own Flesh, Prov. 11.17. or his Brother, Deut. 15.11. For our love to our kindred should be proportionable to the nearness they are unto us in blood, so that after our Parents, they are best to be provided for, who are by nature in the nearest relation unto them. And therefore among the Grecians, as Isaeus tells us, The Goods of the deceased, did alwayes descend unto the next of kin. Whereunto he adds, What can be more just, than that the estate that was a kinsmans, should descend unto a kinsman? How well would this con∣serve Humane Society, saith Cicero, and promote the honour of private Families, if the nearer any man were allyed unto us, so much the more benign and bountiful we would be unto him? Next unto our children, the same Cicero placeth our loving kindred, who as they are nearest, so ought they to be dearest unto us; and to provide for these especially, is a debt that we owe them, not by Commutative Justice, but by Distributive, as being most worthy, for the honour that is due unto our own blood. And therefore the same Cicero, speaking elsewhere of that natural affection which every man bears to his own Relati∣ons, tells us, That from thence ariseth the Testaments and Legacies of dying men: It being much more equitable, to leave our estates to our own kindred, than unto strangers. This is the Charity that is most acceptable to God,* 1.17 as Esay tells us, To feed the hungry, to clothe the naked, and that we hide not our selves from our own flesh. And St. Ambrose highly commends that liberality that is shewn to our brethren and kinsfolks, as being next in blood to us. Now that succession that thus descends from a person dying Intestate, is but as it were a silent Testament, which the Laws of Nature and Nations make Authentick, by guessing at the will of the deceased. Thus Quintilian also, Next unto them who claim a Right by the Testators Testament, are his kindred in case he dye Intestate and Childless: not because the Goods of the deceased are in Justice due unto them, but because being deserted, and as it were left without any certain Owner, none can pretend so much right to them as they, being the next of kin. And what hath been said of Goods newly purchased by the person dy∣ing Intestate, That they naturally descend to his nearest Relation; may as truly be said of such Goods as descend unto him from his Father or Grand-father, in case neither they, from whom they descended, nor any of their children do survive, to whom in point of Gratitude they should return.

XI. Diversity of Laws as touching suc∣cession.

Now though what we have here said, be most agreeable to Natural Conjectures, yet are they not by the Law of Nature necessary: wherefore, from divers causes moving mens wills, successions do usually vary, according to the diversity of Agreements, Laws or Customs rationally grounded; some whereof will admit of substitution in some degrees; others not. The Ancient Germans were altogether ignorant of that kind of succession which we call Representative, even among their children; as that the Eldest Brothers Son should succeed in the room of his deceased Father: which Right first took place in France by an Edict of Childebert; and was first introduced into those parts beyond the Rhine by Otho. So the Ancient Scottish Right of succession went according to the sole proximity in blood,* 1.18 and not by substitution, it being so decreed by the King of England, who was chosen as Arbiter, to decide that difference. In some places regard is had to the first Purchaser; in others, this is neglected. There are some Countreys, where the first-born carries away the greatest part of the estate, as among the Hebrews; but in some others, all the Children share alike. In some the kindred by the Fathers side, only succeed; in others, those by the Mothers, have an equal portion. In some, regard is had

to the Sex; in others, none at all. In some, the kinsfolks in the next degree only are ad∣mitted; in others, they admit those in degrees more remote. To trace all, would be tedious; neither is it my purpose so to do. But this we must grant, That where the deceased hath declared nothing of his Will, it must be presumed, that the Estate should pass, as the Law or Custome of the place doth order it; but not so much by the power of the Empire, as by the force of this Conjecture, which also takes place against those in whom the Supream Power resides. For it is very probable, that what they by their Laws command, or by their Customs approve of in their Subjects, the same in their own affairs, they hold to be most Equitable, so as no great damage ariseth to them by it.

XII. How succes∣sion to King∣doms patri∣monial ought to be guided. Daughters capable to succeed in Egypt and Britain.

As concerning the Succession to Kingdoms, we must distinguish between those that are Patrimonial, and in a full and absolute manner possest, and those that are held in such a manner as pleaseth the People. The former sort may be divided even between the Sons and Daughters; as in the Kingdoms of Egypt, as Lucan testifies,

—Nullo discrimine Sexus Reginam scit ferre Pharos.

—In Aegypts Throne Difference of Sexes there is none.

The like doth Tacitus record of the Brittish Empire. In Asia after Semiramis,* 1.19 many Wo∣men were permitted to Reign, saith Arrianus; as Nitocris in Babylon, Artimissa in Hali∣carnassus, and Tomyris amongst the Scythians: yea, and such Kingdoms may be divided, as in Asia, all the Brothers Reign together, though one only hath a principal Right to the Crown; which Custome the Empress Irene would without any precedent have introdu∣ced into the Constantinopolitan Empire in the Reign of Andronicus Palaeologus, as Gregoras notes, That, saith he, which is most strange and to be admired, was, That she was not willing,* 1.20 that any one should obtain the whole, according to the Ancient Custome of that Empire, but ac∣cording to the Examples of the Western Princes, the Cities and Regions should be divided amongst her Sons, that so each of them might hold his Kingdom as his Patrimony, just as the estates of private men are divided among their children; so that each part of the Empire should descend perpetually to each of her Sons, and to their Heirs after them. For being her self of a Western Extraction, she indeavoured to introduce their Custom without example. Neither are adopted Sons less capable of Succession, by guessing as the Will of the Intestate, than true Sons: Thus did Hyllus the Son of Hercules succeed to Aepalius King of the Locrians by Adoption;* 1.21 as also did Molossus the Bastard in the Kingdom of Epirus, by the Judgement of his Father Pyrrhus, having no lawful Issue.* 1.22 The Tartars make no difference between Bastards and them that are Legitimate. So Herodotus of the Persians, Mos est illis ut Nothus regnet dum legitimus aliquis reperitur; Who admit of Bastards, till one that is legitimate may be found. And we read in Justine of a Treaty between King Atheas and Philip concerning the Ado∣pting of Philip to succeed him in the Kingdom of Scythia. Jugurtha, though a Bastard,* 1.23 yet succeeded in the Kingdom of Numidia by Adoption. The like we read of those King∣doms which the Goths and Lombards conquered, that the succession often passed by Ado∣ption. Nay,* 1.24 the succession to the Kingdom shall pass to the nearest of kin to him that last possest it, though he were nothing of kin to the first King. If any such succession be in force in those places: Thus did Mithridates in Justine plead, That Paphlagonia be∣came his Fathers Inheritance, by the death of all its domestick Kings.

XIII. In Kingdoms that are In∣divisible, the eldest suc∣ceeds.

But in case express caution be given, that the Kingdom shall not be divided, and yet it be not exprest who shall succeed, then the Eldest, whether Son or Daughter, shall enjoy the Kingdom. So saith Nicetas Coniates, Nature indeed observing her own order, gives the greatest honour to the first-born; But God hath a Prerogative above Nature, and acts not al∣wayes by her order. And speaking of Isaacius, he saith, That by his birth-right, the succes∣sion to the Kingdom was his. The like is said of Hircanus in Josephus. In the Talmud, under the Title of Kings, we read, That he that hath the best title to an estate of inheritance, hath also the best title to the possession of a Kingdom; and therefore the eldest Son is alwayes preferred before the younger. Herodotus makes it the custome of all Nations for the eldest Son to succeed in his Fathers Throne. And in another place, he terms it, the Law of Kingdoms. Livy makes mention of two Brethren, Allobrogi, contending for a Kingdom, whereof the younger had the worst Title, but the greatest Power. Of all Darius his Sons, Artabazanes being the first-born claimed the Kingdom as his birth-right: Quod Jus & ordo nascendi & Natura ipsa gentibus dedit; Which Right, saith Justine, both the order of birth,* 1.25 and Nature it self hath given to Nations: which in another place he calls, the Law of Nations.* 1.26 As Livy also saith, It is a priviledge due by the order both of Age and Nature; yet must this be understood with this restriction, unless the Father by his Testament do otherwise

dispose of the succession, as Ptolomy in Justin, did his Kingdom to his youngest Son. But yet he that shall thus succeed, is bound to gratifie his Brethren for their shares with all respect and honour, if (and as far forth as) he shall be able to do it.

XIV. A Kingdom by the peo∣ples consent hereditary, if in doubt, is presumed to be indivisible.

But those Kingdoms that by the Peoples free consent are made hereditary, may by gues∣sing at the will of the people be transferred. Now, because it may easily be presumed, that the people will give their consent to that which is most expedient; therefore in the first place it will follow, That unless some Law or Custome do otherwise determine, (as in many it hath and may do) the Kingdom should stand entire and undivided; be∣cause whilest so, it will be the better able, both to defend it self, and to conserve the people in peace and unity.* 1.27 Of this opinion was Justin, Firmius futurum esse regnum, si penes unum remansisset, quam si portionibus inter filios divideretur, arbitrabantur; They judged that the Empire would be more firm, being intirely possest by one, than it could possibly be, if di∣vided amongst many Sons.

XV. The successi∣on not to last beyond the line of the first King.

Again, It being granted, that the peoples consent is easily gained to what shall be most expedient, it will in the next place follow, That the succession should descend from the first King in a right line: Because that Family was then electeed, as being thought the most Noble; which Family being extinct, the Kingdom doth return back to the people. Thus Curtius adviseth* 1.28, That the Soveraign Power be strongly fixt to one Royal Family, which ought to claim by an hereditary Right. For the people being so accustomed, will not only reverence his person, but will have the very name of their King in great esteem: And therefore no man ought to usurp that dignity, but he that was born unto it.

XVI. Natural Issue not concern∣ed in it.

Thirdly, It will thence likewise follow, That none should be admitted to succeed in the Royal Throne, but he that is born Legitimate: Not the Natural Sons, because they are subject to be reproacht, to whose Mother the Father did never vouchsafe the honour of marriage. And therefore of such, there can be no certainty, who was the Father. But in the succession to Crowns, the people ought to have the greatest assurance that in such a case can be given to avoid Controversies. For which cause it was, that the Ma∣cedonians preferred Demetrius the younger Son to the Throne, rather than Perseus the elder, because he was born in lawful Wedlock. Not Sons by Adoption, because the people are apt to conceive greater hopes, and to have their Kings in greater esteem and veneration, when they know them to be descended from a Royal Stock.

Est in Juvencis, est in equis patrum Virtus.

In Horse and Oxe we may descry The Syre's Generosity.

XVII. Males prefer∣red before Females in the same de∣gree.

Fourthly, That of those that have equal Title to the Inheritance, either as being in the same degree, or as succeeding to their Parents who were in the same degree, the Male Issue be preferred before the Female; because Men are fitter for War, and to ad∣minister other Regal duties, than Women can be.

XVIII. The elder be∣fore the younger.

Fifthly, That of Sons, or of Daughters, if there be no Sons, the elder be preferred before the younger; because it may easily be believed, that as he is of more years, so he either then is, or may sooner arrive to be of sounder Judgement than the younger. So Cyrus in Xenophon, Imperium relinquo majori Natu; I bequeath my Kingdom to my Eldest Son, as being of most experience, and consequently best knowing how to govern. And because our green years will sooner ripen, than our Sex change; therefore the preroga∣tive of our Sex is much to be preferred, before the priviledge of our Age. Where∣fore Herodotus where he tells us,* 1.29 that Persis the Son of Andromede the Sister of Cepheus did succeed Cepheus in his Kingdom, gives this as the reason, Because Cepheus had no Male Children.* 1.30 And Diodorus assigns the same reason, why Teuthras left the Kingdom of Misia unto his Daughter Argiope, Because as to Male Issue he was childless. And Justin tells us, That the Empire of the Medes did of right belong to the Daughter of Astyages, because Astyages had no Son. So doth Cyaxares in Xenophon, declare his Daughter Heiress to the Median Empire: For, saith he, I have no Son that is legitimate. So Virgil concern∣ing King Latinus,

He had no Son, no Issue Male was left, In prime of youth, Both being of Life bereft; And by one Daughter this vast State possest.

Homer discoursing of the Kingdom of Crete,* 1.31 doth very wisely assign the reason why in successions the Elder is commonly preferred before the younger, namely, first for their priority of Age;* 1.32 and secondly, for their greater knowledge and experience. Zozimus also

mentions a Persian Law, which gave their Empire to their Kings eldest Son. Thus did Pe∣riander succeed his Father in the Kingdom of Corinth by order of Birth, as Damascene te∣stifies. Whence we are given to understand, that although the Children of deceased Pa∣rents in some degrees from them, may succeed in the room of their Parents; yet is it to be understood with this Proviso, That they are as capable as the rest, which Bastards are not. Provided also, That of such as are capable, regard be had first to their Sex, and then to their Age; for the qualities of Sex and Age (as they are in this case by the people considered) are so adherent to their persons, that they cannot be pluckt asunder.

XIX. Whether such a Kingdom be part of an Inheritance.

But here it may be demanded, Whether a Kingdom thus conveyed, be a part of an Inheritance: whereunto the most probable Answer is, That it is a kind of an Inheri∣tance, yet separate from that of other Goods. And therefore Innocent the Third thought that the succession to such a Kingdom might be lost, if he who was to succeed, did not fulfill the last Will of the deceased. Such peculiar and separate Inheritances, we may see in some Fee-Farms and Copyholds,* 1.33 (which were originally given for the meliorating of Lands barren and desart, under some small Rent, which were not to return back to the Donor.) The like may be seen in the Rights of Patronages and Royalties. Whence it follows, That a Kingdom may belong to him, who if he will, may be heir to the Goods; yet so, that if he will, he may also enjoy the Kingdom, and not inherit the Goods, nor subject himself to the charge that attends them. Now the reason hereof is, because it is probable, that the Kingdom by the peoples consent, should be setled on the King,* 1.34 in the best manner of Right that could be: Neither did they much regard, whether he would accept of the Inheritance or not, since it was not for this, that they made choice of an hereditary order, but that the Title to the Kingdom might be clear; and that their Kings being extracted from a Royal Stem, might attract the more reverence from the people, who were apt from their High Birth and Princely Education, to conceive the grea∣ter hopes of their Heroick Vertues; and that the Prince in possession, might receive the greater encouragement to be careful of the Kingdom, and with the greater Courage and Magnanimity to defend it; as knowing that he was to leave it to such, as were either in gratitude or love most endeared unto him.

XX. The succes∣sion to King∣doms is the same as that to other estates. Whether ab∣solute.

But where the custome of succession to Lands absolutely free, and to Lands held from another is diverse, if the Kingdom be not held of another, or was not at first certainly held, (although it do appear, that homage hath been since done for it) yet shall the succession, by the Law go in such manner, as the succession of Free-hold Lands went, at such time when that Kingdom was at the first Instituted.

XXI. Or held from another.

But in such Kingdoms as were at first given to be held from another, as being the chief Lord of it, the manner of succession shall by the Law be such as the succession to Lands held in Fee-Farm within that Kingdom was at such time as the Investiture into that Kingdom was at first given; and that not alwayes according to that Law of the Lumbards which we have prescribed. For the Goths, Vandals, Almains, French, Burgundians, En∣glish, Saxons and all the German Nations, which have by War possest themselves of the best parts of the Roman Empire, have every one of them their own Laws and Customs, concerning things held in Fee, as well as the Lumbards.

XXII. Of a Lineal Cognatical succession, and what manner of transmission of right is therein.

But there is another kind of succession much used in some Kingdoms, not hereditary, but as they call it, lineal; wherein is observed not that Right which is called Representa∣tive, but a Right to transmit the future succession, as though it were already conveyed; the Law, namely, out of an hope, (which naturally and of it self worketh nothing) raising a certain true Right, namely, such a Right as ariseth from a Conditional Stipulation, which at present gives only an hope, that it will be due; which very hope they trans∣mit unto the Children springing from the Loins of the first King, but in an order that is certain: so that in the first place, the Children of the last possessor of the first degree, as well of those that live, as of those that are dead are to be admitted, with regard had as well among the living as the dead, to the Sex first, and then to the Age. But if this Right descend on the deceased, then this Right shall pass to such as are descended from them: amongst equals alwayes observing the like prerogative of Sex, and then of Age, and the transmitting of the Right of the dead upon the living, and of the living upon the dead. And in case their children fail, it descends unto those who are,* 1.35 or if they lived should have been, by the like transmission next unto him; the same distinction of Sex and Age among equalls, being alwayes observed in the first Line; so that no tran∣sition by reason of Sex or Age should be made from one Line to another, so long as any remain of the first Line, of what Sex or Age soever. And consequently the Daughter of a Son, shall be preferred before the Son of a Daughter, and the Daughter of a Brother,* 1.36 before the Son of a Sister; so the Son of an elder Brother, before the younger Brother. This is the order of succession in the Kingdom of Castile, and of Norway (as Pontanus testifies in his Danish History): and such is the succession in many Dutchies, Counties

and Baronies that are held by Homage or Fealty to the chief Lord.* 1.37 As in the Counties of Artoise, Champane, Tolouse and Brittany: This was the order of succession prescribed unto the Dutchy of Mantua by the Emperour Sigismund, Anno 1432. and by Charles the Fifth Emperour and King of Spain, to Philip the Second in his Kingdoms and Principa∣lities. But the proof of this Lineal Succession, though there were no Law or Example to guide us, may be taken from the order that is observed in Publick Assemblies. For if in that order, regard be had to lineal descents, it will be a sign that the hopes con∣ceived of the children of the deceased, was by Law quickened into a Just Right, so that it may well pass from the dead to the living. This is that Lineal Cognatical succession, wherein women, and those that are born of them, are not excluded, but only post-pon'd in the same line. So that recourse is had unto them, in case the Males that are nearer, or that those born from Males in an equal line should fail. The ground whereof, as it dif∣fers from an hereditary succession, is the hopes which the people conceive of them who are nearest related to the Prince in possession, and who have the justest hopes to succeed him, that they have Educations answerable to their high birth and hopes; such are the Children of those Parents, who had they lived, must have succeeded.

XXIII. The lineal succession of the Males only Agnatical suc∣cession.

There is likewise another lineal succession of Males only which is called Agnatical, which differs from the Cognatical, in that it excludes Females, and admits only of Males; which, from the Kingdom of France takes its rise, and is therefore called the French succession. Though the Kingdom of Israel seems to have been thus setled, 2 Chron. 13.5. And the chief reason of this, is to debar Strangers from the Crown, by marrying the Kings Daughters. In both these lineal successions all are admitted that are any wayes allyed, though in degrees never so remote from the last possessor, whilst they can derive themselves from the first King. And in some places where the Agnatical Succession is deficient, recourse is had to the Cognatical. Nay, and this latter is sometimes preferred before the former; as in Aethiopia, where the Kings Sisters Son did alwayes succeed him; which Bede records also of the Picts, where the kindred of the women were preferred to the succession. The like we read of the Indians; So Tacitus of the Germans, That their Kings gave the greatest honour to their Sisters Son, as being nearest in blood to them.

XXIV. A succession that alwayes respects the proximity to the first King.

* 1.38Other manner of successions may be introduced, either by the people, or at the plea∣sure of him, who holds the Kingdom in a patrimonial right, so that he may alienate it. For he may so settle the succession, that they that are next to himself at all times, may be preferred before others; as it was anciently among the Numidians, where for the like cause, the Unkle did succeed in the Kingdom, before the Children of the last King. This Custome was introduced in Africk by the Testament of Gizerick, wherein amongst many other things, he chargeth his Vandals, That they should admit of him only into the Throne, that should be at any time n••arest unto himself, in a right Masculine line, and of them still the eldest, and then the next in order, wherein he regarded not the present possessor, but the first Acquisitor: Which order, whether Gizerick himself learnt from the Africans, among whom it had been long observed; or whether they learnt it from some of our Northern Nations, is a question. The like was of old in use among the happy Arabians, as may be gathered out of Strabo. And the later Historians report the same of Taurica Chersone∣sus:* 1.39 Neither is it so long since the Kings of Fesse, and Morocco did the like. Livy speak∣ing of Massinissa, saith, That whilst he made War in Spain for the Carthaginians, his Father dying, the Kingdom fell according to the custome of the Numidians unto Desalces the de∣ceased Kings Brother. The same Custome is in force throughout all Mauritania, as Mari∣ana testifies: and in the Kingdom of Mexico and Peru, as the Histories of those parts re∣cord. Now the same if in doubt, is to be observed in things committed to trust, if it be left to the Family. And this agrees best with the Roman Laws, though some Interpreters do wrest it otherwise. These things premised, it will be no hard matter to resolve all Controversies which do arise, concerning the Right of Kingdoms, which the different opinions of Lawyers have made so intricate.

XXV. Whether the Son may be so exhereda∣ted, that he shall not suc∣ceed in his Fathers Kingdom.

And in the first place, this Question ariseth, Whether a Father may exheredate his Son, so that he shall not succeed in his Kingdom? Where we must distinguish between Patrimonial Kingdoms which are Alienable, and such as are not Alienable. In the for∣mer there is no doubt, but that exheredation is lawful; for such Kingdoms differ nothing from other Goods: and therefore in such places, where by Law or Custome Exhe∣redation is in force, it is practicable even in the case of Kingdoms: yea, though there were no Law or Custome to warrant it, yet naturally it is lawful for a Father to exclude his Son from all but bare Alimony; yea, and from that also, if he have committed any Crime worthy of death,* 1.40 or have been otherwise notoriously wicked, and have of his own whereby otherwise to subsist. Thus was Reuben punished by Jacob with the loss of his Birth-right, and Adonija by David with the loss of his Kingdom: For David's King∣dom was in a manner Patrimonial, though not by the right of War, yet by special

donation from God himself. Now where the Kingdom is Patrimonial, the King may nominate which of his Sons he will to succeed him, as the Kings of Mexico now do. Nay, if the eldest Son have provoked his Father by any hainous crime, and there be no manifest sign that he hath forgiven him, he shall be as one tacitely exheredated.* 1.41 But it is otherwise in Kingdoms not alienable, though they be hereditary, because the people are best pleased that the Kingdom shall descend in an hereditary way, especially from an In∣testate. Much less shall it be in the power of a Father to exheredate his Son where the Kingdom is to pass in a lineal descent: For there without any imitation of an Inhe∣ritance, it was agreed in its first Institution, That the Kingdom should by the peoples gift pass to every person of the Royal Family, in such order as was then prescrib'd.

XXVI. Whether a King may re∣nounce his Kingdom. In a Kingdom meerly he∣reditary he may, but n•• in a Lineal Succession.

Another Question is this, Whether a King may so abdicate his Kingdom as to deprive his Son of his Right to succeed, which is resolved by the same distinction. For in King∣doms meerly hereditary, he that renounceth his Kingdom, cannot transfer it to his Son. But in lineal descents the Fathers act cannot null his Sons Right that is born: For as soon as the children begin to exist, the law makes provision for them; yea, and for those that are to be born so, because that right which, by the peoples consent is entailed upon them, must in due time descend upon them. Neither doth that which I have already said concerning transmission, contradict this. For that transmission is Necessary, as to the Parents, and not Voluntary. But yet a difference there is between those Children that are born before the Renunciation, and those born after: For they that are already born, have by the Law a full Right to the Kingdom, though they that are not permitted to enjoy that Right during the life of their Parent; but to those not born, there cannot as yet be any Right acquired: and therefore it may be taken away by the will of the people, if the Parents also to whom it belongs to transfer that Right unto them, be willing to release it. And to this purpose is that we have already said con∣cerning dereliction.

XXVII. Whether the King, or the People only, have a Right to judge of the Successi∣on.

Another Question doth sometimes arise, namely, who shall be judge of the Right of Succession to a Kingdom: Whethet the King then reigning, or the people by themselves, or by such Judges as they shall appoint. If the Question be put of such a Judgement as is Authoritative, neither of them have any Right to judge. For Jurisdiction there can∣not be, but in a superiour, who should have respect not barely to the person, but to the matter also, which is to be poised with its due circumstances. But the case of Suc∣cession is not properly under the jurisdiction of the present King: because he cannot of himself by any Law bind his Successor. For the Succession to the Empire lies not under the jurisdiction of the Empire, but remains in the state of Nature, wherein there was no jurisdiction at all. But yet notwithstanding, if the Right of Succession be controverted, the pretenders unto it will do very piously and justly, if they can agree between themselves upon some indifferent persons, to whose arbitrement they can be contented to refer themselves; whereof we shall discourse hereafter. But the people have transferred all their Jurisdiction from themselves into the King and the Royal Family; during which, they cannot challenge to themselves any reliques of it. This I mean of a true Kingdom, and not of every Principality. But yet, if in the discussing of this Right any question do arise concerning the primary will and intention of the people at the first institution of the Kingdom, it were not amiss to take the advice of the people in present, that is, of all the three States; I mean, of the Nobles, Clergy, and Com∣mons in Parliament assembled, as is usual in England and Scotland, as Camden testifies in his History of Queen Elizabeth:* 1.42 For the people in present may be judged to be the same they anciently were. Or by Delegates purposely chosen, as in the Kingdom of Arra∣gon, unless it do sufficiently appear, That the people then were clearly of another will, and that thereupon the Right of Empire was obtained:* 1.43 Thus did King Euphaes suffer the Messenians diligently to enquire which of the Royal stock of the Aepytidae had most Right to the Kingdom. But the contest between Xerxes and Artabazanes was de∣termined by their Uncle Artaphernes, to whom it was amicably referr'd, as to a Dome∣stick Judge.

XXVIII. The Son born before his Fa∣ther was King, to be prefer∣red before him that was postnate.

But let us proceed to other cases, It hath been often controverted which of the two Sons hath the best Right to the Succession: He that was born before the Father gained the Kingdom, or he that was born after: Whereunto the most Rational Answer is, That he that was first born, shall first succeed, if the Kingdom be indivisible, which holds true in every kind of Succession. (Yet did Henry the First, youngest Brother to Rufus, as∣sume the Crown of England, whilest his elder Brother Robert was in the Holy Land, up∣on this pretence, That he was born to his Father after he was Crowned King of England, whereas his Brother Robert was born whilest his Father was Duke of Normandy only; yet was Henry justly branded as an Usurper of his Brothers Right, by Mat. Parisiensis.) But in case the Kingdom be divisible, without doubt the latter shall have his share, as well in this as in other goods, concerning which it matters not when they were got.

Now if he that of a divisible Estate may have his share; and in that which is indivisible, is preferred by the priviledge of his birth: Surely even the Inheritance must follow that Son which was born before his Fathers first Investiture. But even in a Lineal Succession, a Kingdom is no sooner got, but the Children which are antenate, do immediately con∣ceive an hopes of Succession. For admit that there are none born after, surely no man will say, That those before born are to be excluded. But in this kind of Succession an hope once conceived begets a Right: Neither doth it by any post fact determine, unless it be in a Cognatical Succession, where it may be for a while suspended, by reason of the priviledge of Sex. Thus was the case decided in Persia, between Cyrus and Artaxerxes; in Judaea, be∣tween Antipater, the Son of Herod the Great, and his Brethren; In Hungary, when Geissa began his reign; and in Germany (though not without Blood) between Otto the first,* 1.44 and Henry; and in Turky, between Bajazet the antenate, and Gemes the postnate, to the Empire. And though haply it may be true, that the choice of the Kings of Per∣sia did much depend upon the suffrages of the people; yet were those suffrages always li∣mited to the Royal Family:* 1.45 For thus much doth Mariana testifie of the Arsacidae, who being Parthians reigned in Persia. And the like doth Zonaras in Justin, of those Persians that succeeded those Parthians.

XXIX. Unless other∣wise provi∣ded by some Law.

But that it was otherwise in Sparta, we attribute to the Laws proper to them only, which gave the Sons that were postnate the Preheminence, for their more Heroick Edu∣cation. The like may also happen by some peculiar Law made upon the first Investiture, If a Soveraign Lord shall give unto his Vassal, and to those that shall be born of him, an Empire, to be held of him in Fee: upon the strength of which Argument, Lewis (in the contest that arose between him and his Brother Galeatius for the Dutchy of Millain) did principally rely. For in Persia, That Xerxes the Postnate Son was preferred before Artabazanes the Antenate, was more by the power of Atossa his Mother, than by true right, as Herodotus observes. For in the same Kingdom when the same Controversie afterwards arose between Artaxerxes, Mnemon and Cyrus, the Sons of Darius and Pari∣sardis, Artaxerxes the first-born, though begotten by his Father in his private condi∣tion, was notwithstanding saluted King. Unless we take that as granted, which Am∣mianus hath delivered unto us, That the Succession to that Monarchy did much depend upon the suffrages of the people, confined only within the Royal stock.

XXX. Whether the Nephew by the elder Son be to be pre∣ferred before the younger Son.

It is no less disputed both by Wars and single Combats, whether the elder brothers Son, his Father being dead, should succeed before the second Brother. But this in a lineal descent will hardly admit of a dispute. For herein are the dead reckoned as living, in that they are able to transfer a Right to their Children; therefore the Son of the deceased, shall doubtless in such a Succession be preferred, without any exception made to his age; yea, and where the Succession is cognatical, the Daughter of the eldest Brother shall be prefer∣red before the Uncle: because in such Successions neither Sex nor Age should make us to decline the right line. But in such Kingdoms as are hereditary, yet divisible, there shall each have a share, unless it be where the Right of Representation is not as yet received: as of old among many of the German Princes: For it is but of late that Nephews have been admitted before their Uncles. But where it once comes into debate, surely the Ne∣phews case is to be preferr'd, as being most pleasing to humane Nature. And where by the Civil Laws of any Nation, representative Succession is once openly admitted, there the Son of the deceased Brother shall succeed in the room of his Father; though in that Law the word Proximus, that is, Next of kin, be only mentioned. The Reasons that are extracted out of the Roman Laws for this, are but weak; as is evident to such as inspect them. But this is the best reason, That in matters that are to be favourably understood, the sense of words must be extended to all propriety, not only vulgar, but artificial. So that under the name of Sons, may be comprehended those of Adoption; and under the word Dead, may in included those that are dead in Law, because the Laws do usually speak thus. And thus he may deservedly be said to be Proximus, whom the Laws present in the next degree. But yet in Kingdoms that are hereditary, and withal individual, and where this Representative Succession is not excluded: Neither is the Nephew always preferred to the Succession, nor always the second Son, but as amongst equals; because by an effect of Right, as to degrees that are adequate, his case is best that is eldest.* 1.46 For as we have said before, in hereditary Kingdoms, Succes∣sion is guided by the priviledge of age. Among the Corinthians, the eldest Son of the deceased King did succeed in his Fathers Throne.* 1.47 So among the Vandals it was provi∣ded, That the next in Blood to the first King, and the eldest should be declared Heir. So that the second Son, because of his maturity of years, was preferred before the Son of the eldest Brother.* 1.48 So in Sicily, Robert, being the Second Son, was advanced to the Throne before Martell, his elder Brothers Son, not properly for the reason fansied by Bartolus, because Sicily was held in Fee (as it were) by a Superiour Lord; but because that Kingdom was hereditary. There is in Guntanus an ancient example, of such a

Succession in the Kingdom of the Francks; but that proceeded rather from the peoples choice, which at that time did not fully cease: But since that Kingdom ceased to be Elective, and that the line of Agnatical Succession was there established, the matter ad∣mits of no dispute. As anciently among the Spartans, where as soon as the Kingdom came to the Heraclidae, the same Agnatical Succession was introduced. And therefore Areus, the Son of the elder Brother Cleonymus, was preferred to the Crown before his Uncle. But even in a Lineal Cognatical Succession, the Nephew hath been preferred: As in England, John, the Nephew of King Edward by his eldest Son, was prefer∣red before Hemon and Thomas: Which also is setled by Law in the Kingdom of Castile.

XXXI. Whether the younger Bro∣ther living, be to be prefer∣red before the Kings el∣der Brothers Son.

By the same distinction we may resolve another doubt, between the surviving Bro∣ther to the last King, and the Son of the elder Brother: But that we must know, that in many places, where among children, the living may succeed in the room of the dead in the right line, they are not permitted so to do in the transverse. But where the Right is not clear and undoubted, it is most rational to incline to that part which favours the Child in the Right of his Father; because we are thereunto guided by natural equity, namely, in that Estate which descended from his Ancestors. Neither is it any Impe∣diment, that Justinian calls the Right of Brothers Children, Depredatory: For this he doth in relation to the ancient Roman Laws, but not to natural equity. Let us now proceed to examine the other cases proposed by Emanuel Costa.

XXXII. Whether the Son of the Brother be to be preferred before the Kings Uncle.

The Son of the deceased Brother, or even his Daughter, he saith is to be preferred be∣fore the Kings Uncle: This is true, not in a Lineal Succession only, but even in an he∣reditary, in such Kingdoms where Representative Succession takes place; but not in such Kingdoms which in express terms do bind us up to the degrees that are Natu∣ral. For there they are to be preferred, which have the precedency of Sex and Age.

XXXIII. The Nephew by the Son preferred be∣fore the Daughter.

He further adds, That the Nephew from the Son is to be preferr'd before the Daughter: It is true, By reason of his Sex; yet with this exception, Unless it be in such a Nation, which even amongst Children respects only the Degree.

XXXIV. The younger Nephew from the Son, be∣fore the elder from the Daughter.

He farther adds, That the younger Nephew from the Son is to be preferr'd before the elder from the Daughter; which is likewise true, where a Lineal Cognatical Suc∣cession is in use, but not in an hereditary, without the warrant of some Special Law. Neither do we approve of the Reason alledged, namely, because the Father of the one, was to be preferred before the Mother of the other: For that was by reason of his dignity, which was meerly personal, and descended no farther. And yet on the con∣trary, we read that Ferdinando, the Son of Berengaria, the younger Sister of King Henry deceased, was preferred to the Kingdom of Castile before Blanch, the elder Sister of the same King: But this, as Mariana notes, was done in hatred to the house of France, into which Blanch married.

••XXV. The Neece from the el∣der Son pre∣ferred before the younger Son.

That which he adds, as seeming to him most probable, namely, That the Neece from the elder Son excludes the younger Son; cannot hold in hereditary King∣doms, although Representative Succession be there in force. For that gives only a capacity to succeed: But of those that are capable, regard is to be had to the priviledge of the Sex.

XXXVI. The Sisters Son preferred before the Brothers Daughter.

And therefore in the Kingdom of Arragon, the Sisters Son was preferr'd before the Brothers Daughter: And as Mariana observes, It is credible, that in that Kingdom in times long since past, The Kings Brother, and not his Daughter, had the Right of Succession: But afterwards they were so well pleased with a Lineal Succession, that they preferred the Sisters Son before those that, in a more remote degree, descended from the Brother. And in another place, speaking of Alphonsus, he saith, That unto the Inheritance of the Kingdom of Arragon, after his Son Ferdinando, he appointed his Nephews by his Sons; and for want of such, then the Nephews by his own Daughter were to be preferred before the Daughters of the said Ferdinando: Whereunto he adds, Sic saepe ad Arbitrium Regum jura regnandi commutantur; They are Titles to Kingdoms oft∣times fann'd about by the breath of Kings.

XXXVII. Whether the Daughter of the elder Bro∣ther be to be preferred be∣fore the youn∣ger Brother.

After the same manner, In Kingdoms that are hereditary, the Daughter of the eldest Son shall give place to the Kings younger Brother.

Notes

• * 1.1

  Helen.
• * 1.2

  Lib. 1. C. de Na••f. l. 12.
• * 1.3

  See Book. 3. ch. 7. §. 6.
• * 1.4

  First Reason.
• * 1.5

  Lib. 2. de vita cler. & ser. 52. ad frat. in ere∣mo. Gratian. c. 13. q. 2. &c. 17. q. 4. in fine. Pers. l. 1. Second Rea∣son.
• * 1.6

  Partem jure gentium p••to.
• * 1.7

  The Roman Laws made no provision for Bastards.
• * 1.8

  Beyond ne∣cessaries no man bound to provide for them.
• † 1.9

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Reverence to Parents, and sustenance to Children. Nic. 8.
• * 1.10

  Lib. 5. c. 9.
• * 1.11

  Ib.
• * 1.12

  2 Cor. 12.14.
• * 1.13

  The Fathers Estate to his Relations, the Mothers to hers. The ancient Estate to be continued in the same Tribe.
• * 1.14

  Our Benefa∣ctors are first to be gratifi∣ed, and then our Friends obliged.
• * 1.15

  Procop. Pers. 1.
• * 1.16

  Val. Max. lib. 5. c. 5.
• * 1.17

  Esay 58.7. De Off. l. 1. c. 30.
• * 1.18

  Pontanus 7. Danicor.
• * 1.19

  Neque enim Sexum in Im∣periis discer∣nunt, Tac.
• * 1.20

  Lib. 7.
• * 1.21

  Strab. l. 9.
• * 1.22

  Paus. l. 1.
• * 1.23

  Salust. bell. Jugurth.
• * 1.24

  Paul. Diac. l. 6. de gest. Longob.
• * 1.25

  Lib. 2.
• * 1.26

  Lib. 40.
• * 1.27

  Lib. 21. A Kingdom united is stronger, than when divi∣ded.
• * 1.28

  Lib. 8.
• * 1.29

  Lib. 7.
• * 1.30

  Lib. 4.
• * 1.31

  Iliad. n.
• * 1.32

  Lib. 2.
• * 1.33

  Fee-Farms and Copy-holds why first given.
• * 1.34

  Why the people would have their Kingdoms hereditary.
• * 1.35

  Cognatical succession.
• * 1.36

  See Argen∣traeus in his Brittish Histo∣ry, l. 6. c. 4.
• * 1.37

  This is the succession of the Kingdom of England.
• * 1.38

  Livy, lib. 29. Vand. l. 1.
• * 1.39

  Lib. 16.
• * 1.40

  He may, if the Kingdom be Patrimo∣nial.
• * 1.41

  Otherwise in Kingdoms nor alienable.
• * 1.42

  1571, 1572.
• * 1.43

  Plut. de fra∣trum amore. Paus. lib. 4. Justin. lib. 2.
• * 1.44

  Mariana l. 24.
• * 1.45

  Lib. 23.
• * 1.46

  Diod. l. 6.
• * 1.47

  Procop. Vand. lib. 3.
• * 1.48

  Vid. sup. §. 24.