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 grandfather of Ferdinand21 the husband of Isabella queen of Castile,22 in preference to the other relations of Martin king of Arragon,23 who asserted that the kingdom belonged to them.†
In the kingdom of Jerusalem also, it was the states that decided the disputes of those who made pretensions to it; as is proved by several examples in the foreign political history.‡
The states of the principality of Neufchatel have often, in the form of a juridical sentence, pronounced on the succession to the sovereignty. In the year 1707, they decided between a great number of competitors, and their decision in favour of the king of Prussia was acknowledged by all Europe in the treaty of Utrecht.
§67. That the right to the succession ought not to depend on the judgment of a foreign power.
The better to secure the succession in a certain and invariable order, it is at present an established rule in all Christian states (Portugal excepted) that no descendent of the sovereign can succeed to the crown, unless he be the issue of a marriage that is conformable to the laws of the country. As the nation has established the succession, to the nation alone belongs the power of acknowledging those who are capable of succeeding; and consequently, on its judgment and laws alone must depend the validity of the marriage of its sovereigns, and the legitimacy of their birth.
If education had not the power of familiarising the human mind to the greatest absurdities, is there any man of sense who would not be struck with astonishment to see so many nations suffer the legitimacy and right of their princes to depend on a foreign power? The court of Rome has invented an infinite number of obstructions and cases of invalidity in marriages, and at the same time arrogates to itself the right of judging of their validity, and of removing the obstructions; so that a prince of its communion cannot in certain cases be so much his own master, as to contract a marriage necessary to the safety of the state. Jane, the only daughter of Henry IV. king of Castile,24 found this true by cruel experience. Some rebels published abroad that she owed her birth to Bertrand de la Cueva, the king’s favourite; and notwithstanding the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry’s sister, and wife to Ferdinand heir of Arragon. The grandees of Jane’s party had provided her a <30> powerful resource, by negotiating a marriage between her and Alphonsus king of Portugal:25 but as that prince was Jane’s uncle, it was necessary to obtain a dispensation from the pope; and Pius II.26 who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardour of the Portuguese monarch, and abated the zeal of the faithful Castilians. Every thing succeeded with Isabella, and the unfortunate Jane took the veil, in order to secure, by this heroic sacrifice, the peace of Castile.*
If the prince proceeds and marries notwithstanding the pope’s refusal, he exposes his dominions to the most fatal troubles. What would have become of England, if the reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown?
A great emperor, Lewis of Bavaria,27 boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find* two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his life-time, nor imitated by his successors.
§68. Of states called patrimonial.
Finally, there are states whose sovereign may chuse his successor, and even transfer the crown to another during his life: these are commonly called patrimonial kingdoms or states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shewn (§61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I.28 em-<31>peror of Russia, nominated his wife29 to succeed him, though he had children.
§69. Every true sovereignty is unalienable.
But when a prince chuses his successor, or when he cedes the crown to another,—properly speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, intrusted— he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labour for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shewn (§60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: