And for the question (which may arise sometimes) who it is that the Monarch in possession, hath designed to the succession and inheritance of his power; it is determined by his expresse Words, and Testament; or by other tacite signes sufficient.
Succession Passeth By Expresse Words;
By expresse Words, or Testament, when it is declared by him in his life time, viva voce, or by Writing; as the first Emperours of Rome declared who should be their Heires. For the word Heire does not of it selfe imply the Children, or nearest Kindred of a man; but whomsoever a man shall any way declare, he would have to succeed him in his Estate. If therefore a Monarch declare expresly, that such a man shall be his Heire, either by Word or Writing, then is that man immediately after the decease of his Predecessor, Invested in the right of being Monarch.
Or, By Not Controlling A Custome;
But where Testament, and expresse Words are wanting, other naturall signes of the Will are to be followed: whereof the one is Custome. And therefore where the Custome is, that the next of Kindred absolutely succeedeth, there also the next of Kindred hath right to the Succession; for that, if the will of him that was in posession had been otherwise, he might easily have declared the same in his life time. And likewise where the Custome is, that the next of the Male Kindred succeedeth, there also the right of Succession is in the next of the Kindred Male, for the same reason. And so it is if the Custome were to advance the Female. For whatsoever Custome a man may by a word controule, and does not, it is a naturall signe he would have that Custome stand.
Or, By Presumption Of Naturall Affection
But where neither Custome, nor Testament hath preceded, there it is to be understood, First, that a Monarchs will is, that the government remain Monarchicall; because he hath approved that government in himselfe. Secondly, that a Child of his own, Male, or Female, be preferred before any other; because men are presumed to be more enclined by nature, to advance their own children, than the children of other men; and of their own, rather a Male than a Female; because men, are naturally fitter than women, for actions of labour and danger. Thirdly, where his own Issue faileth, rather a Brother than a stranger; and so still the neerer in bloud, rather than the more remote, because it is alwayes presumed that the neerer of kin, is the neerer in affection; and ’tis evident that a man receives alwayes, by reflexion, the most honour from the greatnesse of his neerest kindred.
To Dispose Of The Succession, Though To A King Of Another Nation, Not Unlawfull
But if it be lawfull for a Monarch to dispose of the Succession by words of Contract, or Testament, men may perhaps object a great inconvenience: for he may sell, or give his Right of governing to a stranger; which, because strangers (that is, men not used to live under the same government, not speaking the same language) do commonly undervalue one another, may turn to the oppression of his Subjects; which is indeed a great inconvenience; but it proceedeth not necessarily from the subjection to a strangers government, but from the unskilfulnesse of the Governours, ignorant of the true rules of Politiques. And therefore the Romans when they had subdued many Nations, to make their Government digestible, were wont to take away that grievance, as much as they thought necessary, by giving sometimes to whole Nations, and sometimes to Principall men of every Nation they conquered, not onely the Privileges, but also the Name of Romans; and took many of them into the Senate, and Offices of charge, even in the Roman City. And this was it our most wise King, King James, aymed at, in endeavouring the Union of his two Realms of England and Scotland. Which if he could have obtained, had in all likelihood prevented the Civill warres, which make both those Kingdomes at this present, miserable. It is not therefore any injury to the people, for a Monarch to dispose of the Succession by Will; though by the fault of many Princes, it hath been sometimes found inconvenient. Of the lawfulnesse of it, this also is an argument, that whatsoever inconvenience can arrive by giving a Kingdome to a stranger, may arrive also by so marrying with strangers, as the Right of Succession may descend upon them: yet this by all men is accounted lawfull.
CHAPTER XX.
OF DOMINION PATERNALL AND DESPOTICALL
A Common-wealth by Acquisition, is that, where the Soveraign Power is acquired by Force; And it is acquired by force, when men singly, or many together by plurality of voyces, for fear of death, or bonds, do authorise all the actions of that Man, or Assembly, that hath their lives and liberty in his Power.
Wherein Different From A Common-wealth By Institution
And this kind of Dominion, or Soveraignty, differeth from Soveraignty by Institution, onely in this, That men who choose their Soveraign, do it for fear of one another, and not of him whom they Institute: But in this case, they subject themselves, to him they are afraid of. In both cases they do it for fear: which is to be noted by them, that hold all such Covenants, as proceed from fear of death, or violence, voyd: which if it were true, no man, in any kind of Common-wealth, could be obliged to Obedience. It is true, that in a Common-wealth once Instituted, or acquired, Promises proceeding from fear of death, or violence, are no Covenants, nor obliging, when the thing promised is contrary to the Lawes; But the reason is not, because it was made upon fear, but because he that promiseth, hath no right in the thing promised. Also, when he may lawfully performe, and doth not, it is not the Invalidity of the Covenant, that absolveth him, but the Sentence of the Soveraign. Otherwise, whensoever a man lawfully promiseth, he unlawfully breaketh: But when the Soveraign, who is the Actor, acquitteth him, then he is acquitted by him that exorted the promise, as by the Author of such absolution.
The Rights Of Soveraignty The Same In Both
But the Rights, and Consequences of Soveraignty, are the same in both. His Power cannot, without his consent, be Transferred to another: He cannot Forfeit it: He cannot be Accused by any of his Subjects, of Injury: He cannot be Punished by them: He is Judge of what is necessary for Peace; and Judge of Doctrines: He is Sole Legislator; and Supreme Judge of Controversies; and of the Times, and Occasions of Warre, and Peace: to him it belongeth to choose Magistrates, Counsellours, Commanders, and all other Officers, and Ministers; and to determine of Rewards, and punishments, Honour, and Order. The reasons whereof, are the same which are alledged in the precedent Chapter, for the same Rights, and Consequences of Soveraignty by Institution.
Dominion Paternall How Attained Not By Generation, But By Contract
Dominion is acquired two wayes; By Generation, and by Conquest. The right of Dominion by Generation, is that, which the Parent hath over his Children; and is called PATERNALL. And is not so derived from the Generation, as if therefore the Parent had Dominion over his Child because he begat him; but from the Childs Consent, either expresse, or by other sufficient arguments declared. For as to the Generation, God hath ordained to man a helper; and there be alwayes two that are equally Parents: the Dominion therefore over the Child, should belong equally to both; and he be equally subject to both, which is impossible; for no man can obey two Masters. And whereas some have attributed the Dominion to the Man onely, as being of the more excellent Sex; they misreckon in it. For there is not always that difference of strength or prudence between the man and the woman, as that the right can be determined without War. In Common-wealths, this controversie is decided by the Civill Law: and for the most part, (but not alwayes) the sentence is in favour of the Father; because for the most part Common-wealths have been erected by the Fathers, not by the Mothers of families. But the question lyeth now in the state of meer Nature; where there are supposed no lawes of Matrimony; no lawes for the Education of Children; but the Law of Nature, and the naturall inclination of the Sexes, one to another, and to their children. In this condition of meer Nature, either the Parents between themselves dispose of the dominion over the Child by Contract; or do not dispose thereof at all. If they dispose thereof, the right passeth according to the Contract. We find in History that the Amazons Contracted with the Men of the neighbouring
