Montesquieu
 

XXVI.6 That the order of successions depends on the principles of political or civil law, and not on the principles of natural law

The Voconian law pro­hi­bi­ted naming a woman as heir, even one’s only daugh­ter. There never was, St. Augustine sta­tes, a more unjust law.1 A for­mula of Marculfus2 treats as impious the cus­tom that depri­ves daugh­ters of their fathers’ suc­ces­sions. Justinian3 calls the right of inhe­ri­tance of males to the pre­ju­dice of daugh­ters bar­ba­ric. The rea­son for these notions is that the right which chil­dren have to inhe­rit from their fathers has been regar­ded as a conse­quence of natu­ral law, which it is not.

Natural law requi­res fathers to nou­rish their chil­dren, but does not oblige them to make them their heirs. The divi­sion of pro­perty, the laws on that divi­sion, and the suc­ces­sions after the death of the one who had recei­ved this share, can all be deter­mi­ned only by society, and conse­quently by poli­ti­cal or civil laws.

It is true that the poli­ti­cal or civil order often calls for chil­dren to inhe­rit from their fathers, but it does not always require it.

The laws of our fiefs could have had rea­sons why the eldest male, or the clo­sest rela­ti­ves on the male side, should have eve­ry­thing, and the daugh­ters nothing ; and the laws of the Lombards4 could have had some rea­sons why sis­ters, natu­ral chil­dren, other rela­ti­ves, and for want of them the public trea­sury, should share with the daugh­ters.

It was decreed in some Chinese dynas­ties that the empe­ror’s bro­thers would suc­ceed him, and that his chil­dren would not. If they wan­ted the prince to pos­sess a degree of expe­rience, if they fea­red rule by minors, or if it was essen­tial to pre­vent eunuchs from pla­cing chil­dren suc­ces­si­vely on the throne, they could very well esta­blish such an order of suc­ces­sion ; and when some wri­ters have cal­led those bro­thers usur­pers,5 they have been applying notions taken from the laws of our own coun­tries.

According to the cus­tom of Numidia, Delsaces, bro­ther of Gala, suc­cee­ded to the king­dom, and not his son Massinissa.6

There are purely elec­tive monar­chies ; and once it is clear that the order of suc­ces­sions must derive from the poli­ti­cal or civil laws, it is for them to decide in which cases rea­son would have that suc­ces­sion tur­ned over to the chil­dren, and in which cases it must be given to others.

For one Arabian peo­ple, the day when the king moun­ted the throne, guar­dians were assi­gned to all the pre­gnant women in the coun­try, and the first child to come into the world was the suc­ces­sor prince.7

In coun­tries where poly­gamy is esta­bli­shed, the prince has many chil­dren ; the num­ber is grea­ter in some coun­tries than in others. There are sta­tes where the peo­ple would find it impos­si­ble to sup­port the king’s chil­dren8 ; they were able to esta­blish that the king’s chil­dren would not suc­ceed him, but rather his sis­ter’s.

A pro­di­gious num­ber of chil­dren would expose the state to fright­ful civil wars. The order of suc­ces­sion that gives the crown to the sis­ter’s chil­dren, who are not more nume­rous than the chil­dren of a prince who had had but one wife would be, avoids these draw­backs.

There are nations where rea­sons of state or some maxim of reli­gion have requi­red that a cer­tain family should always be on the throne ; such is in the Indies9 the jea­lousy of one’s caste, and the fear of dero­ga­ting from it ; it was their thought that, in order always to have prin­ces of the royal blood, it was best to take the chil­dren of the king’s eldest sis­ter.

The gene­ral maxim : to nou­rish one’s chil­dren is an obli­ga­tion of natu­ral law ; to give them one’s suc­ces­sion is an obli­ga­tion of civil or poli­ti­cal law. Whence derive the dif­fe­rent pro­vi­sions rela­ting to bas­tards in the dif­fe­rent coun­tries of the world : they fol­low the civil or poli­ti­cal laws of each coun­try.

The City of God, book III.

Book II, ch. xii.

Novella 21.

Book II, tit. 14, §6, 7, 8.

Father du Halde, on the second dynasty.

Livy, Decade 3, book IX.

Strabo, book XVI.

Such as Lovengo in Africa. See Recueil des voyages qui ont servi à l’établissement de la Compagnie des Indes, vol. IV, part 1, p. 114.

See Lettres édifiantes et curieuses, 14th volume ; and Recueil des voyages qui ont servi à l’établissement de la Compagnie des Indes, vol. III, part 2, p. 644.