Of the different ways of acquiring
I. THE only just
foundation of sovereignty is the consent, or will of the people.
But as this consent may be given different ways, according to the different
circumstances attending it; we may distinguish the several ways of acquiring
II. Sometimes a people are constrained, by force of arms, to submit to
the dominion of a conqueror; at other times the people, of their own accord,
confer the supreme authority on some particular person. Sovereignty may
therefore be acquired either by force and violence, or in a free and voluntary
III. These different acquisitions of sovereignty may agree in some
measure to all sorts of governments; but, as they are most remarkable in
monarchies, it shall be principally with respect to the latter, that we shall
examine this question.
1. Of conquest.
IV. Sovereignty is sometimes acquired by force, or rather is seized by
conquest or usurpation.
V. Conquest is the acquisition of sovereignty by the superiority of a
foreign prince's arms, who reduces the vanquished to submit to his government.
Usurpation is properly made by a person naturally subject to him, from whom he
wrests the supreme power; but custom often confounds these two terms.
VI. There are several remarks to be made on conquest, considered as a
method of acquiring the sovereignty.
1. Conquest in itself is rather the occasion of acquiring the
sovereignty, than the immediate cause of this acquisition. The immediate cause
is the consent of the people, either tacit or expressed. Without this consent
the state of war always subsists between two enemies, and one is not obliged to
obey the other. All that can be said is, that the consent of the vanquished is
extorted by the superiority of the conqueror.
VII. 2. Lawful conquest supposes, that the conqueror has had just reason
to wage war against the vanquished. Without this, conquest is by no means of
itself a just title; for a man cannot acquire a sovereignty over a nation by
bare seizure, as over a thing, which belongs to no proprietor. Thus when
Alexander waged war against distant nations, who had never heard of his fame,
certainly such a conquest was no more a lawful tide to the sovereignty over
those people, than robbery is a lawful manner of becoming rich. The quality and
number of the persons do not change the nature of the action, the injury is the
same, and the crime equal.
VIII. But if the war be just, the conquest is also the same; for, in the
first place, it is a natural consequence of the victory; and the vanquished,
who deliver themselves to the conqueror, only purchase their lives by the loss
of their liberties. Besides, the vanquished having, through their own fault,
engaged in an unjust war, rather than grant the satisfaction they owed, are
supposed to have tacitly consented to the conditions, which the conqueror
should impose upon them, provided they were neither unjust nor inhuman.
IX. 3. But what must we think of unjust conquests, and of submission,
extorted by mere violence? Can it give a lawful right? I answer, we should
distinguish whether the usurper has changed the government from a republic into
a monarchy, or dispossessed the lawful monarch. In the latter case, he Is
obliged to restore the crown to the right owner, or to his heirs, till it can
be presumed that they have renounced their pretensions, and this is always
presumed, when a considerable time is elapsed without their being willing or
able to make any effort to recover the crown?
X. The law of nations therefore admits of a kind of prescription with
respect to sovereignty. This is requisite for the interest and tranquillity of
societies; a long and quiet possession of the supreme power must establish the
legality of it, otherwise there would never be an end of disputes in regard to
kingdoms and their limits; this would be a source of perpetual quarrels, and
there would hardly be any such thing, as a sovereign lawfully possessed of the
XI. It is indeed the duty of the people, in the beginning, to resist the
usurper with all their might, and to continue faithful to their prince; but if,
in spite of their utmost efforts, their sovereign is defeated, and is no longer
able to assert his right, they are obliged to no more, but may lawfully take
care of their own preservation.
XII. The people cannot live in a state of anarchy, and as they are not
obliged to expose themselves to perpetual wars, in defence of the rights of
their former sovereigns, their consent may render the right of the usurper
lawful; and in this case the sovereign dethroned ought to rest contented with
the loss of his dominions, and consider it as a misfortune.
XIII. With regard to the former case, when the usurper has changed the
republic into a monarchy; if he governs with moderation and equity, it is
sufficient, that he has reigned peaceably for some time, to afford reason to
believe, that the people consent to his dominion, and to efface what was
defective in the manner of his acquiring it. This may be very well applied to
the reign of Augustus. But if, on the contrary, the prince, who has made
himself master of the republic, exercises his power in a tyrannical manner, and
oppresses his subjects, they are not then obliged to obey him. In these
circumstances the longest possession imports no more than a long continuation
2. Of the election of sovereigns.
XIV. But the most legitimate way of acquiring sovereignty is founded on
the free consent pf the people. This is effected either by the way of election,
or by the right of succession; for which reason kingdoms are distinguished into
elective and hereditary.
XV. Election is that act, by which the people design or nominate a
certain person, whom they judge capable of succeeding the deceased king, to
govern the state; and, so soon as this person has accepted the offer of the
people, he is invested with the sovereignty.
XVI. We may distinguish two sorts of elections, one entirely free and
the other limited in certain respects; the former, when the people can choose
whom they think proper, and the latter, when they are obliged for example to
choose a person of a certain nation, a particular family, religion, &c.
Among the ancient Persians no man could be king, unless he had been instructed
by the Magi.
XVII. The time between the death of the king and the election of his
successors is called an Interregnum.
XVIII. During the Interregnum the state is, as it were, an
imperfect body without a head; yet the civil society is not dissolved. The
sovereignty then returns to the people, who, till they choose a new king to
exercise it, have it even in their power to change the form of government.
XIX. But it is a wise precaution to prevent the troubles of an
Interregnum, to nominate beforehand those, who during that time, are to
hold the reigns of government. Thus in Poland the archbishop of Gnesna, with
the deputies of great and little Poland are appointed for that purpose.
XX. The persons, invested with this employmant, are called Regents of
the kingdom; and the Romans styled them Interreges. They are
temporary, and as it were provisional magistrates, who, in the name and by the
authority of the people, exercise the acts of sovereignty, so that they are
obliged to give an account of their administration. This may suffice for the
way of election.
3. Of succession to the crown.
XXI. The other manner of acquiring sovereignty is the right of
succession, by which princes, who have once acquired the crown, transmit it to
XXII. It may seem at first, that elective kingdoms have the advantage
over those, which are hereditary, because, in the former, the subjects may
always choose a prince of merit, and capable of governing. However experience
shows, that, taking all things into the account, the way of succession is more
conducive to the welfare of the state.
XXIII. For, 1. by this method we avoid the vast inconveniences, both
foreign and domestic, which arise from frequent elections. 2. There is less
contention and uncertainty with respect to the title of the successor. 3. A
prince, whose crown is hereditary, all other circumstances being equal, will
take greater care of his kingdom, and spare his subjects more, in hopes of
leaving the crown to his children, than if he only possessed it for life. 4. A
kingdom, where the succession is regulated, has greater stability and force. It
can form mightier projects, and pursue them more vigorously, than if it were
elective. 5. In a word, the person of the prince strikes the people with
greater reverence, and they have reason to hope, that the splendor of his
descent, and the impressions of his education, will inspire him with the
necessary qualities for holding the reigns of government.
XXIV. The order of succession is regulated either by the will of the
last king, or by that of the people.
XXV. In kingdoms truly patrimonial, every king has a right to regulate
the succession, and to dispose of the crown as he has a mind; provided the
choice he makes of his successor, and the manner, in which be settles the
state, be not manifestly opposite to the public good, which, even in
patrimonial kingdoms, is ever the supreme law.
XXVI. But if the king, prevented perhaps by death, has not named his
successor, it seems natural to follow the laws or customs, established in that
country, concerning private inheritances, so far at least, as the safety of the
state will admit. But it is certain
that in those cases, the most approved and powerful candidate will always carry
XXVII. In kingdoms, which are not patrimonial, the people regulate the
order of succession. And. although they may establish the succession as they
please, yet prudence requires they should follow the method most advantageous
to the state, best adapted to maintain order and peace, and most expedient to
promote the public security.
XXVIII. The usual methods are, a succession simply hereditary, which
follows nearly the rules of common inheritances; and the lineal succession,
which receives more particular limitations.
XXIX. The good of the state therefore requires, that a succession simply
hereditary should vary in several things from private inheritances.
1. The kingdom ought to remain indivisible, and not be shared among
several heirs in the same degree; for, in the first place, this would
considerably weaken the state, and render it less proper to resist the attacks
of a foreign enemy. Besides, the subjects, having different masters, would no
longer be so closely united among themselves; and lastly this might lay a
foundation for intestine wars, as experience has too often evinced.
XXX. 2. The crown ought to remain in the posterity of the first
possessor, and not pass to his relations in a collateral line, and much less to
those, who have only connexions of affinity with him. This is no doubt, the
intention of a people, who have rendered the crown hereditary in any one
family. Thus, unless it is otherwise determined, in default of the descendants
of the first possessor, the right of disposing of the kingdom returns to the
XXXI. 3. Those only ought to be admitted to the succession, who are born
of a marriage conformable to the laws of the nation. For this there are several
reasons. 1. This was undoubtedly the intention of the people when they settled
the crown on the descendants of the king. a. The people have not the same
respect for the king's natural or base sons, as for his lawful children. 3. The
father of natural children is not known for certain, there being no sure method
of ascertaining the father of a child, born out of wedlock; and yet it is of
the last importance, that there should be no doubt about the birth of those,
who are to reign, in order to avoid the disputes which might embroil the
kingdom. Hence it is, that, in several countries, the queen is delivered in
public, or in the presence of several persons.
XXXII. 4. Adopted children, not being of the royal blood, are also
excluded from the crown, which ought to revert to the people so soon as the
royal line fails.
XXXIII. 5. Among those, who are in the same degree, whether really or by
representation, the males are to be preferred to the females; because they are
presumed more proper for the command of armies, and for exercising the other
functions of government.
XXXIV. 6. Among several males or several females in the same degree, the
eldest ought to succeed. It is birth, which gives this right; for the crown
being at the same time indivisible and hereditary, the eldest, in consequence
of his birth, has
a preference, of which the younger cannot deprive him. But It is just,
that the eldest should give his brothers a sufficiency to support themselves
decently, and in a manner suitable to their rank. What is allotted them for
this purpose is distinguished by the name of Appennage.
XXXV. 7. Lastly we must observe, that the crown does not pass to the
successor in consequence of the pleasure of the deceased king, but by the will
of the people, who have settled it on the royal family. Hence it follows, that
the inheritance of the particular estate of the king, and that of the crown,
are of a quite different nature, and have no connexion with each other; so
that, strictly speaking, the successor may accept of the crown, and refuse the
private inheritance; and in this case he is not obliged to pay the debts, due
upon this particular estate.
XXXVI. But it is certain, that honor and equity hardly permit a prince,
who ascends the throne, to use this right; and that, if he has the glory of his
royal house at heart, he will, by economy and frugality, be enabled to pay the
debts of his predecessor. But this ought not to be done at the expense of the
public. These are the rules of succession simply hereditary.
XXXVII. But since in this hereditary succession, where the next heir to
the deceased king is called to the crown, terrible disputes may happen
concerning the degree of proximity, when those, who remain, are a little
distant from the common stem;
several nations have established the lineal succession from branch to
branch, the rules of which are these following.
1. All those descended from the royal founder are accounted so many
lines or branches, each of which has a right to the crown according to the
degree of its proximity.
2. Among those of this line, who are in the same degree, in the first
place sex, and then age, gives the preference.
3. We must not pass from one line to another, so long as there remains
one of the preceding, even though there should be another line of relations
nearer to the deceased king. For example:
A king leaves three sons, Lewis, Charles, and Henry. The son of Lewis,
who succeeds him, dies without children; Charles leaves a grandson; Henry is
still living, and is the uncle of the deceased king; the grandchild of Charles
is only his cousin german; and yet this grandchild will have the crown, as
being transmitted to him by his grandfather, whose line has excluded Henry and
his descendants, till it be quite extinct.
4. Every one has therefore a right to succeed in his rank, and transmits
this right to his descendants, with the same order of succession, though he has
never reigned himself, that is to say, the right of the deceased passes to the
living, and that of the living to the deceased.
5. If the last king has died without issue, we make choice of the
nearest line to his, and so on.
XXXVIII. There are two principal kinds of lineal succession, namely
Cognatic and Agnatic. These names come from the Latin words
Cognati and Agnati, the former of which, in the Roman law,
signifies the relations on the mother's side, and the latter those, on the
XXXIX. The Cognatic lineal succession is that, which does not
exclude women from the succession, but only calls them after the males in the
same line; so that, when only women remain, there is no transition made to
another line, but the succession runs back to the female again, in case the
males, who were superior or equal to them in other respects, shall happen to
fail with all their descendants. This succession is also called
Castilian. Hence it follows, that the daughter of the son of the last
king is preferred to the son of the daughter of the same prince, and the
daughter of one of his brothers to the son of one of his sisters.
XL. The Agnatic lineal succession is that, in which only the male
issue of males succeeds; so that women, and all those descending from them, are
perpetually excluded. It is also called the French succession. This
exclusion of women and their descendants is principally established to hinder
the crown from devolving to a foreign race, by the marriage of princesses of
the blood royal.
XLI. These are the principal kinds of succession in use, and may be
tempered in different manners by the people; but prudence directs us to prefer
those, which are subject to the least difficulty; and in this respect the
lineal succession has the advantage over that, which is simply hereditary.
XLII. Several questions, equally curious and important, may be started,
with regard to the succession of kingdoms. On this subject the reader may
consult Grotius. We shall only
examine who has a right to decide the disputes, that may arise between two or
more pretenders to a crown?
1. If the kingdom be patrimonial, and disputes arise after the death of
the king, the best method is to refer the cause to arbitrators of the royal
family. The welfare and peace of the kingdom recommended this conduct.
2. But if, in kingdoms established by the voluntary act of the people,
the dispute arises even in the king's life time, he is not a competent judge of
it; for then the people must have invested him with the power of regulating the
succession according to his own pleasure, which is not to be supposed. It
therefore belongs to the people to decide the dispute, either by themselves or
by their representatives.
3. The same holds true, if the dispute does not arise till after the
death of the king. In this case it is either necessary to determine which of
the pretenders is nearest to the deceased sovereign; and this is a matter of
fact, which the people only ought to determine, because they are principally
interested in it.
4. Or the point is to know what degree, or line, ought to have the
preference according to the order of succession, establish by the people; and
then it is a matter of right. Now who can determine better this point, than the
people themselves, who have established the order of succession? Otherwise
there would be no method of deciding the dispute but by force of arms, which
would be entirely opposite to the good of the society.
XLIII. But, to avoid every perplexity of this kind, it would be proper
that the people should, by a fundamental law, expressly reserve to themselves
the right of judging in the above cases. What has been said is sufficient on
the different ways of acquiring sovereignty.
1. On this subject see part i. chap vi.
2. See Cic. de Divin. lib. i. cap. iv.
3. See the Law of Nature and Nations, book
vii. chap. vii. § 11.
4. The Right of War and Peace, book ii.
chap. vii. sect. 25, &c.
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