[111] CHAPTER VII.

Of the derivative acquisition which takes place by Law; and herein of succession to intestate property.

I. THE derivative acquisition or alienation which takes place by Law, takes place either by the Law of Nature, or by the instituted Law of Nations, or by the Civil Law. Of the Civil Law we do not treat, for to do so would be an infinite task; and the principal controversies concerning war are not defined by the Civil Law. Only this we may note, that some civil laws are manifestly unjust: as those which confiscate goods thrown on shore by shipwreck. For without any probable preceding cause, to take away from anyone his right to his own property is mere wrong. So Euripides, Constantine, Dio Prusæensis. [See.]

II. 1 By the Law of Nature, which follows from the nature and force of ownership, alienation is made in two ways, by legal compensation and by succession.

Alienation takes place by legal compensation, as often as, in the place of a thing which is mine or is owing to me, when I cannot ob112tain the thing itself I receive another thing of the same value from him who detains or owes what is mine. For expletory justice, when she cannot restore the same thing, has recourse to a thing of the same value, which is in moral estimation the same. That the ownership is transferred in such cases, is proved by the end of the procedure, which in moral cases is the best proof. For I cannot obtain compensation for my right, except I become the owner. My detention of the thing is of no use, if I cannot use it as I choose. So in Diodorus, Hesioneus took the horses of Ixion, as compensation for what he promised his daughter and did not give.

2 By the Civil Law indeed, it is, as we know, forbidden to execute justice for one’s self; so that it is called violence, if any one take by act what is owing to him; and in many places he loses the right of a creditor who does so. And indeed if the Civil Law did not directly prohibit this, it would follow from the institution of judicial tribunals that it is unlawful. Therefore the rule that we have laid down holds, when the course of regular justice is continuously interrupted, as we have explained above, (I. iii. 2). When the interruption is momentary, the taking of the thing will be lawful, in case you cannot otherwise recover what is yours; for example, if your debtor be running away. But the establishment of ownership must be waited for till the judge assigns it, as is usual in reprisals; of which we shall hereafter treat. But if the right be certain, and at the same time it be morally certain that compensation cannot be obtained from the judge; for example, for want of proof; the truer opinion is, that under the circumstances, the law concerning the tribunals ceases, and the matter reverts to the pristine rule.

III. Succession to intestate property, setting aside the Civil Law, has its natural origin in the conjecture of the will of the last possessor. For inasmuch as the force of ownership was such that the property might, by the will of the owner, be transferred to another, even on account of approaching death, and with possession retained, as we have said before; if any one has made no manifestation of his will, and yet it be not credible that he was so minded that his property should after his death come into the hands of any one who should take possession of it; it followed that the property should belong to him to whom it was most probable that the defunct person wished it to belong. As Pliny says, It is a rule of law to understand the will of persons defunct. And in a doubtful case, every one is supposed to have willed that which is most equitable and proper. And in this case, the first claim is that which is strictly due; the next that which, though not strictly due, is conformable to duty.

IV. 1 Jurists dispute whether children have a right to aliment from their parents. For some are of opinion that it is indeed agreeable to natural reason that children should be supported by 113their parents, but that it is not a debt or due. We make a distinction as to the word debt or due; which strictly taken, is sometimes taken for the obligation introduced by expletory jus; but sometimes, more laxly, that which cannot be decently omitted, though that decency proceeds not from expletory justice, but from some other source. Now what we here speak of is (except there be in addition some human law) a debt or due in the laxer sense. So Va­lerius Maximus, Plutarch. [See.] That he who gives the form gives what is requisite to the form, is a dictum of Aristotle. Therefore he who is the cause of a man’s existence, ought, as far as he can and as far as is necessary, to provide him with the things necessary to human life, that is, natural and social life.

2 So other animals by natural instinct provide for their offspring. Hence Apollonius Tyanæus so amends Euripides, and gives many arguments, which see in Philostratus; and so Appian: and Euripides in the Dictys.

Hence the old jurists refer the bringing up of children to Natural Law; that is, to that class of things which Instinct recommends to animals, and Reason to man. So Justinian, Diodorus Siculus, Quintilian. Sallust calls a testament in which the son is excluded, impious. And since this is a natural due, the mother ought to support her children of which the father is uncertain.

3 And though the Roman Laws directed that those born of a cohabitation condemned by the laws should have no legal inheritance, as the law of Solon provided that it was not necessary to leave anything to natural children; the rules of Christian piety corrected this rigour, and teach that all children may rightly have that left them by their parents, and if need be, should have that left them, which is sufficient to support them. And thus is to be taken what is usually said; that the lawful share of the inheritance (legitima) cannot be taken away by human laws: that is, so far as this lawful share implies necessary aliment. For what is more than this may be taken away without transgressing Natural Law.

4 Not only descendants in the first degree, but in the second, if necessary, and in ulterior degrees, ought to be supported. So Justinian. And this extends to those who are descendants through females, if they have no other source of support.

V. 1 Also aliment to parents is due from their children: which is not only a matter of law, but expressed by a proverbial term referring to the supposed filial piety of the stork. And Solon is praised for marking with infamy those who do not discharge this due. But this is not so ordinarily applicable as the rule concerning children; for children, when they are born, bring with them nothing on which to live: add to which, that they have to live longer than the parents have. Therefore as honour and obedience are due to parents, not to children, so support is due to children more than to parents. So Lucian and Aristotle.

114 2 Hence, even without the aid of the Civil Law, the first rule of succession is, that the goods go to the children; because the parents are believed to have intended to provide for them, as for parts of their own bodies, not only necessaries, but all things which pertain to an agreeable and decent life, and especially after they cease to be able to enjoy their property. So the Jurists Paulus, Papinian. So Valerius Maximus says of Hortensius, when he made his ion his heir, though disapproving his character, that He rendered the due honour to the tie of blood. So St Paul, 2 Cor. xii. 14.

VI. It is ordinarily the case, that the father and mother provide for their children, and therefore, so long as they are alive, the grandfather and grandmother are not bound to furnish them ailment; but when the parents, or one of them, fails, it is equitable that the grandfather and grandmother should undertake the care of the grandchildren for their defunct son and daughter: and this goes on in like manner to parents still further removed. And hence is the origin of that right by which the grandson succeeds in the place of the son, as Ulpian speaks. See Modestinus, Justinian, Isæus, Philo Judæus, Demosthenes. This vicarious succession by family branches, the more recent Jurists call Representation. This prevailed among the Hebrews also, as the division of the promised land among the sons of Jacob, plainly shews. [Ephraim and Manasseh, the sons of Joseph, having a lot; but in fact they had each a lot, being adopted. J. B.]

VII. What we have said of the conjectured will, holds only if there be no evidence to the contrary. Amongst such evidence, the first place belongs to abdication of a son, which was practised by the Greeks, as exheredation [disinheriting] was by the Romans: but this rejection or disinheriting of a son, if he had not merited death by his crimes, was to be so limited that he was to be provided with aliment, as we have stated above.

VIII. 1 To the rule of a man providing for a son, this exception also is to be added; if it be not sufficiently certain that he is really his son. Things which are done in the sight of men have a certain degree of certainty from testimony; and as persons are usually present at the birth of a child, the mother is known, but the father cannot be known with the same certainty. So Homer, Menander.

Hence it was necessary to find some other way in which it might be known who was the father of a child: and the way is, marriage in its natural state, that is cohabitation, the woman being in the custody of the man. But if it be known in any other way who is the father, or the father have ascertained the fact, such offspring, as well as any other, does by Natural Law succeed. Why not? Since a stranger, adopted as a son, also succeeds from the conjectured will.

2 Natural children, even after the law has made a difference between them and legitimate children, [see Euripides,] may be adopted [by the father], except the law interpose. This was formerly permitted by the Roman Law of Anastasius: but afterwards, in order to favour 115legitimate marriage, a more difficult way of putting them on a footing of equality with legitimate children was introduced, per curiæ oblationem, by offering them to be Curiales [a burthensome condition], or by subsequent marriage [of the parents]. An example of the old adoption of natural children we have in the sons of Jacob, who were by their father made equal to the sons of free women, and received equal parts in the inheritance.

3 On the other hand, it may happen, not only by law but by compact, that children born in marriage may receive aliment alone, or at least may be excluded from the principal inheritance. A marriage contracted on such a compact, even with a free woman, the Hebrews called concubinage; such was the marriage of Abraham with Keturah, whose children, like Ishmael the son of Hagar, received certain gifts or legacies, but did not succeed to the inheritance of their father. Such is the marriage which is called morgengabe: and not very different from this is the law of second marriages among the Brabanters: for the landed property which existed when the former marriage was dissolved passes to the children of the first marriage.

IX. 1 Where there are no children to whom the succession may naturally fall, the case is less clear; nor is there any point in which Laws are more various. The whole variety however may be referred mainly to two sources; one of which respects the proximity of degree, the other directs the property to return to the quarter from which it came; as the phrase is, the father’s goods to the father’s house, the mother’s to the mother’s. We find it necessary to make a distinction between the property of the father and grandfather, (as it was expressed in the formula^* in which the prodigal was interdicted from the control of property,) that is, the old inheritance, and new acquisitions. The former are to be regulated by Plato’s rule; who directs the patrimonial lot to be kept inviolate for the family to which it belongs. Which we are not so to accept as if it were not lawful to dispose by testament of property received from father or grandfather, (for that is often not only laudable but necessary,) but that it may appear what is to be supposed the will of an intestate person in a doubtful case. For we grant that the person of whom we speak has in him plenary ownership^†.

2 But since he cannot retain his ownership after death, and it must be held for certain that he would not lose the means of doing a favour to some one; let us consider what is the most natural order of such favours^‡. Aristotle says that we are to repay obligations before 116we confer favour.; and so Cicero, Ambrose. But obligations may be repaid to the living or to the dead: to the dead, in their children who are a part of them; and whom if they were alive they would wish to have benefited. See Lysias.

3 And this equity has been recognized by the careful framers of Justinian’s code, in the question between full brothers, and brothers by the father’s side, and by the mother’s; and in some other cases. See Aristotle: Valerius Maximus. In Justin it is called gentium commune jus for brother to succeed to brother.

4 When he is not to be found from whom the property came, nor his children, it remains that the obligation be repaid to those to whom it is due in the next degree, though less due; that is, to a parent of superior degree and his children; especially since by that means it remains among the nearest relatives, both of the deceased owner, and of the person from whom the property came. So Aristotle.

X. 1 In newly acquired property, (the surplus beyond the patrimonial lot, of Plato) when the rule of repaying obligations fails, it remains that the succession fall to him who is believed to have been most dear to the deceased: and this is he who comes nearest to the deceased in the degree of relationship. So Isæus, Aristotle, Cicero, Tacitus, Ambrose. [This however is a moral claim, not a jural claim.]

2 The succession to intestate property, of which we here speak, is nothing but a tacit testament made out by conjecture of the late owner’s will. So Quintilian. And what we have said of property newly acquired, will hold also of inherited property, if neither the persons from whom it came nor their children are extant.

XI. 1 The rules which we have given, though most consentaneous to natural conjecture, are, however, not necessary by Natural Law; and therefore by different causes, moving the human will, they vary by compacts, laws, customs. These in some cases allow one person to succeed in the place of another; in other cases, do not permit it; in others, make a distinction as to whom the property came from; in others, disregard this. In some cases the first-born take more than those born later, as among the Hebrews; in others, the shares are equal. In some cases the father’s relatives only are reckoned; in others, the mother’s relatives share equally with the father’s. Sometimes the sex has its effect, sometimes it has not; sometimes account is had of cognation within the nearer degrees, in other cases it is extended further. It would be tedious and foreign to our purpose to follow these differences.

2 This rule we must hold by: that when there are no more express indications of will, it must be supposed that every one intended, with respect to his own succession, that which the law or custom of the people directs: and this, not only from the force of the authority of the State, but from conjecture of what the person’s will was. And this is to be held good also of the persons who have the sovereign authority. For they are probably believed to have judged in their own 117case that which is most equitable, which is what they have established as law or sanctioned as custom.

XII. In the Succession to kingdoms, we must distinguish the kingdoms which are held by plenary possession and which are patrimonial, from those which are held in some way involving the consent of the people. Of which difference we have spoken above.

Kingdoms of the former kind may be held by males or females: as formerly in Egypt and in Britain. See Lucan and Tacitus. And adopted as well as real children succeed in such cages, from presumption of the will. So Hyllus the adopted son of Hercules succeeded Æpalius; Molossus succeeded Pyrrhus; Atheas [Ateas, Gronov.] would have taken Philip for his successor; Jugurtha succeeded to the kingdom of Numidia; and so in the kingdoms of the Goths and Lombards adoption prevailed. Even the kingdom shall pass to those relatives of the last possessor who have no connexion by blood with the first king (the source of the royal stock), if such succession be received in the country in question. Thus Mithridates, in Justin, says that his father received Paphlagonia by inheritance, the line of domestic kings being extinguished.

XIII. If it be directed that the kingdom is to pass undivided, but not to whom it is to go, the eldest child, male or female, will take it. See the Talmud on kings, Herodotus, Livy, Trogus Pompeius. This is called jus gentium, the order of age and of nature. But he or she who succeeds in such a kingdom is bound to provide a satisfaction for the coheirs, instead of their share of the power, if, as and as far as, it can be done.

XIV. Those kingdoms which have become hereditary by the free consent of the people, are transferred according to the presumed will of the people. The people are presumed to will what is most expedient. Hence it follows, in the first place, that the kingdom passes undivided, because that arrangement is of great use to preserve the state and the concord of the citizens. So Justin: except law or custom ordain otherwise, as at Thebes, the kingdom was divided between the males; and ancient Attica among the sons of Pandion; and Rhodes; and Argos. [See.]

XV. Another rule is, that the succession remains among those who are descended from the first king: for that family is conceived to be elected for its nobility, and when it fails, the kingdom to return to the people. So Curtius. [See.]

XVI. In the third place, that none succeed except those who are born according to the laws of the country: not natural children, who are open to contempt, since their father did not deem their mother worthy of a legitimate marriage, and besides, as being less certain. For in kingdoms it is expedient for the people that there should be the greatest possible certainty, to avoid controversies. So Demetrius in Macedon was taken, rather than Perseus. So says Ovid. Also not 118adoptive children, because the nobility of the race makes kings more reverenced, and turns more hope to them. So Horace. [See.]

XVII. In the fourth place, that among those who are admitted alike into the inheritance, whether as being of the same degree, or as succeeding in the place of their parents, males are preferred to females; because males are more fitted both for war and for other parts of government.

XVIII. 1 Fifthly, that among males, and among females when the males fail, the elder is preferred, because he is either more mature in judgment, or will sooner be so. So Cyrus in Xenophon. But because this superiority of age is only temporary, while that of sex is perpetual, the prerogative of sex is stronger than that of age. So Herodotus, Diodorus, Trogus, Xenophon, Virgil. So at Lacedæmon, Sparte the daughter of Eurotas succeeded, and her children; and the children of Helen, to Tyndareus, because there were no male children. And Eurystheus was succeeded by his uncle Atreus. By the same right the kingdom of Athens passed to Creusa, that of Thebes to Antigone, because the males failed: and the kingdom of Argos went to Argus the grandson of Phoroneus through his daughter.

2 Whence it is to be understood that although children in some degrees fill the place of parents who have died, that is to be understood, so as that they are capable of ruling compared with others, and saving the prerogative, first of sex, and then of age. For the quality of sex and of age, so far as in this matter they are considered by the people, adheres to the person, so that it cannot be separated from it.

XIX. It is made a question whether a kingdom, when thus transferred, is a part of the inheritance. And the more true opinion is that it is a certain kind of inheritance, but distinct from the inheritance of other property; such an inheritance as is seen in some fiefs, in leases, in the right of patronage, in priority of legacy. Whence it follows that the kingdom pertains to him who may take the property as heir if he choose to do so; but in such a way that it maybe taken without the property and its burthens. The reason is, because the people is supposed to wish that the kingdom should be transferred by the best right possible; nor is it their concern, whether the king accept the inheritance of the property or not; since they chose the hereditary order of succession, not that the heir of the ordinary property should have it, but that the order might be certain, and might carry with it the reverence given to the blood; and also that from the habits of the race and their education, there might be the hope of good moral qualities: and that the possessor of the kingdom might bestow more care on the kingdom, and defend it with more energy, since he was to leave it to those whom he most wished to benefit for benefits received, or from natural affection.

XX. But when the rule of succession is different in allodial and 119in feudal property, if the kingdom be not a fief, or certainly was not so at first, even though homage have been done for it; the succession is by the law which regulated allodial property when the kingdom was instituted.

XXI. But in those kingdoms which were given as fiefs by a person who had plenary ownership, the law of feudal succession is to be followed: not however always the Lombardic law which we have in the law-books, but that which was received in each nation at the time of the first investiture. For the Goths, Vandals, Huns, Franks, Burgundians, Angles, Saxons, all the Germanic nations which occupied the best parts of the Roman empire, had each their own laws or customs concerning fiefs, as well as the Lombards.

XXII. 1 But there is another succession frequent in kingdoms, called Lineal; in this, the rule observed is, not that of the representation of the heir by his progeny, but the heir transmits the future succession, [even if he die before he succeed himself] the law founding a true right upon an expectancy which of itself produces no effect; [see the illustration from the Civil Law;] so that this right passes to his posterity who are descended from the first king: but according to a certain order; so that there are first called in the children of the last possessor of the first degree, both those who are alive and those who are dead: and among those alive and dead account is had, first of sex, then of age: and if the right of the dead be superior, it passes to those who descend from them, with the like prerogative, first of sex, and then of age; and preserving at every step the right of transmission from the dead to the living, and from the living to the dead. If the children of any branch fail, the succession passes to the next who are nearest of kin, or would be if they were alive, by a similar transmission, and observing in those of the same branch the same distinction of sex and age; so that transition is never made, on account of sex or age, from one line to another. It follows from this, that a son’s daughter is preferred to a daughter’s son, and a brother’s son to a sister’s son, and an elder brother’s son to a younger brother, and so in other cases. This is the succession of the kingdom of Castile: and the same rule holds with regard to majorats in that kingdom.

2 An argument for this lineal succession, if law and example be wanting, may be taken from the order of public assemblies; [such as a House of Peers.] For if in such cases also account is had of lines of descent, that will be a sign that expectancy is by the law vivified into a Right, so that the succession passes from the dead to the survivors.

This is a Cognatic lineal succession, in which women and the sons of women are not excluded, but are postponed in their own line; but yet so that there is a regress to them, if there be a failure of claimants nearer, or equal in other things, who are males, or from males.

The foundation of this succession, so far as it differs from the hereditary, is the hope entertained by the people as to the good education 120of those who have the legitimate hope of the kingdom: and such are they whose parents, if they had lived, would have succeeded.

XXIII. There is also an Agnatic lineal succession, of males to males only; which, obtaining in a certain noble kingdom, is called Frank Law [or Salic Law.] This, so far as it differs from the cognatic, was introduced mainly with this view, that the empire might not pass to foreign blood by the marriages of the female branches.

In both these lineal successions, those are admitted who are distant even in the most remote degree from the last possessor, provided they descend from the first king.

There are some cases when, failing the agnatic succession, the cognatic is substituted.

XXIV. Other modes of succession also may be introduced according to the will of the people, or by the will of the patrimonial sovereign. For instance, he may settle that those who on each occasion are nearest to himself, [see Grotius’s note] should succeed to the kingdom: as amongst the Numidians formerly, I suppose by some such rule, the brothers of the last possessor were preferred. So in Arabia Felix, the Tauric Chersonese, and the Africans of Morocco and Fez. And this rule is, in doubtful cases, followed in choosing trustees for family property, as is the sounder opinion, agreeing also with the Roman laws, though the commentators wrest them another way.

These rules being well known, it will be easy to answer the controversies concerning the right of succession, which are thought very difficult in consequence of the different opinions of jurists.

XXV. It is made a question, whether a son can be disinherited by his father so as to be prevented from succeeding to the kingdom. Here we must distinguish alienable, that is, patrimonial kingdoms, from those which are inalienable. In alienable cases, there is no doubt that disinheritance takes its effect, since the kingdom cannot differ from other property; and therefore the rules which by law or custom obtain as to exheredation will have place here. And if there are no laws or customs, by Natural Law exheredation is lawful, except as to aliment; and even without that exception, if the son have committed a crime worthy of death, or otherwise greatly offended. Thus Reuben was deprived of his right as first-born by Jacob for his offense, and Adonijah, of the kingdom, by David. And he is held for tacitly disinherited who has committed a grave crime against his father, if there are no tokens of condonation or pardon^*.

But in inalienable kingdoms, though hereditary, the same does not hold: because the people chose indeed the hereditary way; but the hereditary way with the usual succession to intestates.

Still less will exheredation hold good in a lineal succession, when the kingdom comes to each person by the gift of the people, without attempting to imitate the hereditary rule.

XXVI. Similar is the question whether the kingdom, or the right 121of succeeding to it, can be abdicated. And that each person for him­self may abdicate, there is no doubt: whether he can do so for his children also, is more controverted, but is to be solved by the same distinction. For in hereditary kingdoms, he who abdicates for himself can transfer nothing to his children. But in a lineal succession, the act of the father cannot be allowed to prejudice sons already born; because as soon as they began to exist, they acquired a right by law; nor sons not yet born, because it cannot prevent that the right should descend to them also by the gift of the people. Nor does the difficulty of transmitting the right make any obstacle: for the transmission is necessary, not voluntary, so far as the parents are concerned. There is this difference between children born, and to be born; that those not yet born have not yet acquired any right, and therefore their rights may be cut off by the will of the people, if the parents whose interest it is that the right should pass to the sons have given up that right: and to this pertains what we have said above of dereliction.

XXVII. 1 This also is made a question, Whether the reigning king, or the people, or judges appointed by them, can judge concerning the succession. And we must deny that they can pronounce a judgment as if they had jurisdiction in such a case. For jurisdiction belongs only to a superior, not merely taking account of the person, but of the cause also, which is to be regarded with its circumstances. But the cause of the succession is not subject to the reigning king: which appears from this, that the reigning king cannot bind his successor. For the succession to the sovereignty is not under the authority of the sovereign, and therefore remains in the natural state in which there was no jurisdiction^*.

2 If however the right of succession be controverted, they who claim the right, will do rightly and piously if they agree to appoint arbitrators. The people has transferred all the jurisdiction from itself to the king and the royal family; and so long as that lasts, it has no relicks of it. I speak of a true kingdom, not merely of a government. But if a question arise concerning the primeval will of the people, it will be much to the purpose to ask the people now existing, which is conceived to be the same with the former people, to express its opinion upon that matter, which is to be followed, except it appear certainly that the will of the people formerly was different, and that a right was thence acquired. Thus Euphaes, as king, permitted the Messenians to determine who of the royal family of the Egyptidæ should reign; and in the controversy of Xerxes and Artabazanes the people decided.

XXVIII. To come to other questions; that a son who was born before his father’s accession to the kingdom is, in an indivisible kingdom, to be preferred to one born during the enjoyment of power, is true in every form of succession. In a divisible kingdom he will doubtless have his share; as is the case with other property, in which

122 OF THE, DERIVATIVE ACQUISITION [BOOK II.

no difference is ever made as to the time when it was acquired. Now, he who would take a share in a divisible inheritance, will, in a matter indivisible, be preferred on the ground of age; and thus the fief follows the son who was born before investiture. But in a case of lineal succession also, as soon as the kingdom is acquired, there is some expectancy given to the children born previously; for suppose that none were born afterwards, nobody will say that the former children were to be excluded. But in this kind of succession, an expectancy once given to any one gives him a right, and does not cease by any subsequent event; except that in a cognatic succession it is suspended by the privilege of sex. The opinion which we are stating obtained in Persia between Cyrus and Arsica; in Judea between Antipater, the son of Herod the Great, and his brothers; in Hungary, when Geissa took the kingdom; and in Germany, though not without recourse to war, between Otho I. and Henry.

XXIX. The fact that a different rule was followed at Sparta, proceeded from a peculiar law of that people, which on account of their education, preferred those that were born in the reign. The same may take place by a peculiar Law of the primitive investiture, if the government be given as a fief to a vassal and his offspring: on which argument Ludovico seems to have relied against Galeazzo his brother, in the controversy respecting the dukedom of Milan. For in Persia, Xerxes who obtained the kingdom against his brother Artabazanes owed his success to the power of his mother Atossa, rather than to his right, as Herodotus notes. And in the same kingdom of Persia, when afterwards the same controversy arose between Artaxerxes Mnemon and Cyrus, Artaxerxes as the eldest, though born in a private station, was made king.

XXX. 1 It has also been a matter of contest, discussed by means of wars and single combats, whether the grandson of the former son be to take precedence of the later son. This, in a lineal succession, can have no difficulty; for there the dead are held as living, in this respect, that they transmit their right to their children: wherefore in such a succession the son of the first-born is preferred without any regard to age; and in cognatic kingdoms, the daughter also: for neither age nor sex lead them to desert the line. In divisible hereditary kingdoms, the claimants share the inheritance according to the shares of the sons; except in those countries in which the substitution of the son for the parent is observed, as among most peoples in Germany. For it was only at a later period that grandsons were admitted along with sons to the inheritance. But in a doubtful case, we are rather to suppose that that vicarious succession has place, because nature favours lt.

2 If the substitution of the son in the place of his deceased parent be plainly introduced by the Civil Law, it will have place, although, in any law, proximus, “the nearest relation,” be mentioned as the successor. The reasons which are drawn from the Roman Laws to this effect, are insecure; as will appear to any one who examines these laws themselves. But this is the best reason; that in a 123favourable matter, the signification of words is to be extended to every property, not common only, but artificial also; so that under the name of sons are to be comprehended adoptive sons; and under the name of death, civil death, because the laws have been accustomed so to speak. Therefore he may justly come in the name of proximus whom the law has put in the nearest place to the succession. But in hereditary indivisible kingdoms, in which substitution of one person into the place of another is not excluded, we cannot say that either the grandson always, or the second son always, is preferred; but as being equal in claim, by the effect of law in equalizing their degrees of relationship, he is preferable who is the elder; for in hereditary kingdoms, as we have said, the privilege of age is not transferred by succession. At Corinth the eldest of the descendants of the deceased king succeeded. So among the Vandals it was provided that the heir should be he who was nearest and oldest; and the second son, being older, was preferred to the son of the first son. So in Sicily, Robert was preferred to the son of his elder brother Charles Martel, not exactly for the reason which Bartolus devised, because Sicily was a fief; but because the kingdom was hereditary.

3 We have a similar succession exemplified in the Frank kingdom, in Guntram; but that happened rather by the election of the people, which at that time had not quite fallen into disuse. But since the agnatic lineal succession without any election is introduced, the matter is clear of controversy: as formerly at Sparta, where, when the kingdom passed to the Heraclidæ, there was a similar agnatic lineal succession. And thus Areus was preferred to his uncle Cleonymus. But in the cognatic lineal succession also the grandson is preferred; as in England, Richard^* the grandson of Edward III. by his first­born [the Black Prince] was preferred to Edmund and Thomas [and others], sons of the same Edward III.: which also is the rule in the kingdom of Castile.

XXXI. By a like distinction we reply to the question between the surviving brother of the last king, and the son of his elder brother: except that we must know that in many places succession into the place of a person deceased is received, as among the children, when it is not received in the transverse line. When the law is not manifest, we are rather to incline to that rule which puts children in the place of their parents, because natural equity points that way, that is, in things which have descended from the grandfather. Nor is it any objection that Justinian calls the right existing in the sons of brothers a privilege; for that he does, not with reference to Natural Law, but to the old Roman Law.

Let us run over some other questions which Emanuel Costa proposes.

XXXII. He says, that the son of the brother of the deceased, or even his daughter, is to be preferred to their uncle; rightly, not only in a lineal succession, but also in a hereditary one, in kingdoms where 124substitution in the place of the deceased is observed: but not in kingdoms which in precise words respect the natural degree; for there he will be preferred who is superior in sex or age.

XXXIII. He adds, that a grandson through a son is preferred to a daughter; rightly; namely, on account of sex: with this exception, unless the question be in a country which, even among children, regards only the degree [the order, not the sex].

XXXIV He adds, that a younger grandson by a son, is preferred to an older grandson by a daughter; which is true in a cognatic lineal succession, but not in a hereditary, except a special law be produced. Nor is the alleged reason sufficient, that the father of the first would have excluded the mother of the second; for that would have happened on account of a mere personal preference, which is not transferred.

XXXV. What he adds as probable in his opinion, that the granddaughter by the first-born excludes a younger son, cannot be received in hereditary kingdoms, even if we admit substitution in the place of the deceased: for that does indeed make the granddaughter capable of the succession; but among those capable, the privilege of sex must have its weight.

XXXVI. And therefore in the kingdom of Arragon, the son of a sister is preferred to the daughter of a brother.

XXXVII. In the same manner, in hereditary kingdoms, the younger brother of the king is preferred to the daughter of his elder brother.