or to be born, of the transmission of those rights, &c. But they ought to have considered the succession, less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred: they are fundamental laws:—those not authorised by the state can only be obligatory on the prince who made them. They cannot injure his posterity; and he himself may recede from them in case the state stands in need of him and gives him an invitation: for he owes his services to a people who had committed their safety to his care. For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care.†
§63. The order of succession ought commonly to be kept.
In ordinary cases, when the state may follow the established rule without being exposed to very great and manifest danger, it is certain that every descendent ought to succeed when the order of succession calls him to the throne, however great may appear his incapacity to rule by himself. This is a consequence of the spirit of the law that established the succession: for the people had recourse to it, only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. “What a door would this open for usurpers or malcontents!—It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done; since by this means no more is required than his being the king’s son, and his being actually alive,—which can admit of no dispute: but on the other hand there is no rule fixed to judge of the capacity or incapacity to reign.”* Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it. <27>
These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practised in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king’s name.
§65. Indivisibility of sovereignties.
The principles we have just established respecting the successive or hereditary right, manifestly shew that a prince has no right to divide his state among his children. Every sovereignty, properly so called, is, in its own nature, one, and indivisible, since those who have united in society cannot be separated in spite of themselves. Those partitions, so contrary to the nature of sovereignty and the preservation of states, have been much in use: but an end has been put to them, wherever the people, and princes themselves, have had a clear view of their greatest interest, and the foundation of their safety.
But when a prince has united several different nations under his authority, his empire is then properly an assemblage of several societies subject to the same head; and there exists no natural objection to his dividing them among his children: he may distribute them, if there be neither law nor compact to the contrary, and if each of those nations consents to receive the sovereign he appoints for it. For this reason France was divisible under the two first races.* But being entirely consolidated under the third, it has since been considered as a single kingdom,—it has become indivisible,—and a fundamental law has declared it so. That law, wisely providing for the preservation and splendour of the kingdom, irrevocably unites to the crown all the acquisitions of its kings.
§66. Who are to decide disputes respecting the succession to a sovereignty.
The same principles will also furnish us with the solution of a celebrated question. When the right of succession becomes uncertain in a successive or hereditary state, and two or three competitors lay claim to the crown,—it is asked, Who shall be the judge of their pretensions? Some learned men, resting on the opinion that sovereigns are subject to no other judge but God, have maintained that the competitors for the crown, while their right remains uncertain, ought either to come to an amicable compromise,—enter into articles among themselves,—chuse arbitrators,—have recourse even to the drawing of lots,—or, finally, determine the dispute by arms; and that the subjects cannot in any manner decide the question. One might be astonished that celebrated authors should have maintained such a doctrine. But since, even in speculative philosophy, there is nothing so absurd as not to have been advanced by one or other of the philosophers,† what can be expected from the human mind, when seduced by interest or fear? What! in a question that concerns <28> none so much as the nation,—that relates to a power established only with a view to the happiness of the people,—in a quarrel that is to decide for ever their dearest interests, and their very safety,— are they to stand by as unconcerned spectators? Are they to allow strangers, or the blind decision of arms, to appoint them a master, as a flock of sheep are to wait till it be determined whether they are to be delivered up to the butcher, or restored to the care of their shepherd?
But, say they, the nation has divested itself of all jurisdiction, by giving itself up to a sovereign; it has submitted to the reigning family; it has given to those who are descended from that family a right which nobody can take from them; it has established them its superiors, and can no longer judge them. Very well! But does it not belong to that same nation to acknowledge the person to whom its duty binds it, and prevent its being delivered up to another? And since it has established the law of succession, who is more capable or has a better right to identify the individual whom the fundamental law had in view, and has pointed out as the successor? We may affirm, then, without hesitation, that the decision of this grand controversy belongs to the nation, and to the nation alone. Even if the competitors have agreed among themselves, or have chosen arbitrators, the nation is not obliged to submit to their regulations, unless it has consented to the transaction or compromise,— princes not acknowledged, and whose right is uncertain, not being in any manner able to dispose of its obedience. The nation acknowledges no superior judge in an affair that relates to its most sacred duties, and most precious rights.
Grotius and Puffendorff differ in reality but little from our opinion; but would not have the decision of the people or state called a juridical sentence (judicium jurisdictionis). Well! be it so: we shall not dispute about words. However, there is something more in the case than a mere examination of the competitors’ rights, in order to submit to him who has the best. All the disputes that arise in society are to be judged and decided by the public authority. As soon as the right of succession is found uncertain, the sovereign authority returns for a time to the body of the state, which is to exercise it, either by itself, or by its representatives, till the true sovereign be known. “The contest on this right suspending the functions in the person of the sovereign, the authority naturally returns to the subjects, not for them to retain it, but to prove on which of the competitors it lawfully devolves, and then to commit it to his hands. It would not be difficult to support, by an infinite number of examples, a truth so evident by the light of reason: it is sufficient to remember that the states of France, after the death of Charles the Fair,17 terminated the famous dispute between Philip de Valois and the king of England (Edward III.),18 and that <29> those states, though subject to him in whose favour they granted the decision, were nevertheless the judges of the dispute.”*
Guicciardini, book XII.19 also shews that it was the states of Arragon that decided the succession to that kingdom, in favour of Ferdinand,20
