of 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

Gronovius argues against this doctrine, but rather in the manner of a rhetorician than a jurist. W.

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 it.

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

favourable 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 first-born [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

Barbeyrac has corrected Grotius's mistakes in the English royal genealogy.

substitution 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.

THE

XIV. Alluvium or Island?
XV. Alluvium when to Vassals.
XVI. Against Roman Law.
XVII. Road bars Alluvium.
XVIII. Offspring follows the mother?
XIX. Right by Fabrication;
XX. Even from another's mate-
rial.

XXI. Mixed properties.

XXII. Right by plantation, &c.

XXIII. Bona fide possessor.

XXIV. Mala fide possessor.

XXV. Delivery not required.

XXVI. The use of what has been said.

I. 1 HE order of our subject has led us to that acquisition which takes place jure gentium, as distinct from jus naturale, Natural Law; which we have above called Instituted Jus Gentium. Such are the things done by the Laws of War; but we shall treat of these hereafter.

The Roman Jurists, when they speak of acquiring the ownership of things, reckon many ways of such acquisition, which they say are juris gentium; but if we duly attend, we shall see that they all, if we except the Laws of War, do not pertain to that jus gentium of which we now speak; but are either to be referred to Natural Law (not mere Natural Law, but that which follows the introduction of ownership, and precedes all Civil Law,) or to the Civil Law, not of the Roman People alone, but of many other nations: I suppose, because the origin of such Law or custom came from the Greeks, whose Institutions, as Dionysius Halicarnassensis and others note, the peoples of Italy and the neighbourhood followed.

2 But this is not the jus gentium properly: for that does not pertain to the mutual society of nations amongst themselves, but to the tranquillity of each people: whence it might be changed by one people without consulting others; and also it might happen that in various places and times, very different usages, and thus, different jus gentium improperly so termed, might be introduced: which, we see, happened, in fact, from the time that the Germanic nations invaded almost the whole of Europe. For as the laws of Greece formerly, so now Germanic Institutions are everywhere received, and are still in authority.