foundation of succession to one who dies intestate.
But if an owner can really and truly will that his goods may be transferred to one after his death (§291), there is no reason why as much should not be attributed to one’s will, presumed from his end and intention, as to one’s will expressed by words or signs (§268). Now we have already shewn, that it is not the end and intention of those who acquire any thing, and take care of their acquisitions, that they should after their death be held for things relinquished to the first occupant; but that they should be advantageous to those whom they love and wish well to (§284). But hence we may justly conclude the succession to belong to them, preferably to all others, for whose sake chiefly the defunct acquired and took care of his acquisitions with so much concern and sollicitude.* <223>
SECTION CCXCVI
Axioms relating to it.
But because this is not a duty of perfect obligation, but rather a species of humanity, which pays regard to persons and ties or connexions, and therefore prefers relatives to strangers (§220); hence we have reason to infer, that relatives exclude all strangers from succession, and that among relatives those of the nearer degrees are preferable; and that many of the same line and degree have equal rights to succession.* <224>
SECTION CCXCVII
The succession of children.
Since of relatives the more remote are excluded by the nearer (§296), but none can be reckoned nearer to one than children are to their parents; therefore they are justly preferred in succession to their parents before all others, and that without distinction of sex or age:† For as to the preference given in some countries to males, and to the first-born, that, because it is making an unequal division among equals, proceeds from civil law, pact, or some other disposition; and so it is not of the law of nature (§271).
SECTION CCXCVIII
Legitimate children only succeed to the father, but to the mother even illegitimate children succeed.
But if in succession to parents children be justly preferable to all others (§297), and this may be concluded from the presumed will of parents, (§295); the consequence is, that it ought to be <225> certainly known who is the child. But because that cannot be ascertained except in the case of lawful marriage; hence we infer, that legitimate children only, even posthumous ones, and not illegitimate ones, or bastards, succeed to a father; but that all children succeed promiscuously to a mother; tho’ none will deny that a father may take care of his illegitimate children in his disposition.
SECTION CCXCIX
How grandchildren succeed.
Besides, it may be inferred from the same will of parents (§295), that the succession of descendents extends not only to children of the nearest, but of the more remote degrees; and therefore that grandsons and grandaughters are admitted to inherit, as well as sons and daughters; and that not only if there be no children of the first degree, but if they concur with them; so that the right of representation, by which children of the remoter degrees succeed into the room of their parents, and receive their portion, is most agreeable to the law of nature.* <226>
SECTION CCC
What if none other exist?
From the same rule, that the nearest of many relatives are to be preferred (§296), it follows, that grandchildren are to be preferred both to the parents of the grandfather, tho’ nearer in degree, and to his brothers and sisters, tho’ equal in degree. For one is to be judged nearer, not only in respect of degree, but chiefly in regard to line (§296).* But whether natural equity in this case calls grandchildren to succession by heads, or by descent, may be easily understood from what hath been said in the preceding scholium.
SECTION CCCI
Succession in the ascendent line.
Since, failing the line of descendents the nearest is the ascendent (§296), hence it is plain, that the mournful succession to their children is due to the progenitors,† and in such a manner, that <227> the nearer in degree excludes the more remote, and those of the same degree come in equally. Nor does the law of nature in this case suggest any reason why the inheritance of children should be divided among many of the same degree according to lines; so that these, and like cases, must rather be left to the determination of civil laws.
SECTION CCCII
Succession of collaterals.
It follows from the same principle (§296), that failing both the ascending and descending line, the succession to intestates devolves on the collateral kindred, according to the degree of nearness in which they stand; nor is there any reason why the right of representation should take place among collaterals;* much less is there any reason why duplicity of ties, or the origine of the goods should <228> make any difference. In this case, many of the same degree equally divide the inheritance: nor is there any difference how far they may be removed from the defunct, seeing it was in his power to appoint another heir, if he had no mind they should be made happy by his estate.
SECTION CCCIII
Much is here left to civil legislators.
So far does right reason acknowledge the right of succession in kindred. But because it is obvious to every one, that all these things belong rather to the permissive than to the preceptive part of the law of nature, much must here be left to civil legislature, to fix and determine by their laws, as the end and interest of their states may require (§18). And hence it is easy to give a good reason why legislators have thought the surviving wife should be taken care of; and why there is no branch of law almost in which civil laws and statutes so much differ, as with regard to succession to intestates.
SECTION CCCIV
Whether any heirs be necessary?
Seeing this whole right of succession proceeds from presumed will (§285); but he, whose consent is presumed, may enter upon an inheritance, <229> or renounce it as he pleases (§294), it must be evident to every one, that necessary heirs are unknown to the law of nature.* And therefore that no person is heir to an intestate by unalterable right, but becomes such by his consent, declared by words or deeds.
SECTION CCCV
How heirs succeed to the rights and obligations of the deceased.
Now, when one determines to succeed to another, nothing is more equal, than that he should be adjudged to succeed to all his rights and burdens (§267); whence it follows, that an heir, whether by the real disposition of the deceased, or by his presumed will, acquires all his rights, which are not extinguished by his death; and that he has no reason to complain, if he be bound to satisfy all his obligations, as far as the inheritance is sufficient.* <230>
Concerning the rights and duties which arise from property or dominion.
SECTION CCCVI
A three-fold effect of dominion.
Dominion is the right of excluding all others from the use of something (§231). But when we exclude others from the use of a thing, we pretend to have the sole right of using it. Hence the first effect of dominion is the free disposal of a thing; i.e. the right or faculty of granting any one the use of it; nay, of abusing it, and of alienating it at his pleasure. Again, from what we can justly exclude others, that we