Montesquieu
 

XXVI.16 That one must not decide by the rules of civil law when one should decide by those of political law

We shall get to the bot­tom of all the ques­tions if we avoid confu­sing the rules that derive from the pro­perty of the com­mu­nity with those that arise from the liberty of the com­mu­nity.

Is the domain of a state alie­na­ble, or is it not ? This ques­tion must be deci­ded by the poli­ti­cal law, and not by the civil law. It must not be deci­ded by the civil law because it is as neces­sary for there to be a domain that ena­bles the state to sub­sist as it is neces­sary that there be within the state civil laws that regu­late the dis­po­si­tion of pro­per­ties.

If the­re­fore the domain is alie­na­ted, the state will be for­ced to make a new fund for ano­ther domain. But this expe­dient again over­turns the poli­ti­cal govern­ment, because, by the nature of the thing, at each domain that is esta­bli­shed, the sub­ject will always pay more, and the sove­reign will always receive less ; in a word, the domain is neces­sary, and the alie­na­tion is not.

In monar­chies, the order of suc­ces­sion is based on the good of the state, which requi­res that this order be fixed, to avoid the mis­for­tu­nes which I have said must occur in des­po­tism, where eve­ry­thing is uncer­tain because eve­ry­thing there is arbi­trary.

It is not for the rei­gning family that the order of suc­ces­sion is esta­bli­shed, but because it is in the inte­rest of the state that there be a rei­gning family. The law that deter­mi­nes the suc­ces­sion of indi­vi­duals is a civil law, the object of which is the inte­rest of indi­vi­duals ; the law which deter­mi­nes the suc­ces­sion to the monar­chy is a poli­ti­cal law, the object of which is the pre­ser­va­tion of the state.

From this it fol­lows that when the poli­ti­cal law has esta­bli­shed an order of suc­ces­sion in a state, and this order comes to an end, it is absurd to claim the suc­ces­sion by vir­tue of the civil law of any peo­ple what­soe­ver. A par­ti­cu­lar society does not make laws for ano­ther society. The civil laws of the Romans are not more appli­ca­ble than any other civil laws ; they them­sel­ves did not use them when they jud­ged kings, and the maxims by which they jud­ged kings are so abo­mi­na­ble that they must not be revi­ved.

It fur­ther fol­lows from this that when poli­ti­cal law has made some family abdi­cate the suc­ces­sion, it is absurd to attempt to use res­ti­tu­tions taken from civil law. Restitutions are in the law, and can be good against those who live in the law ; but they are not good for those who have been esta­bli­shed for the law, and who live for the law.

It is foo­lish to pre­tend to decide on the rights of realms, of nations, and of the earth by the same maxims by which one deci­des bet­ween indi­vi­duals on a right to a gut­ter, to invoke Cicero’s expres­sion.1

Book I of Laws.