But where testament, and express words are wanting, other natural signs of the will are to be followed: whereof the one is custom. And therefore where the custom 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 possession had been otherwise, he might easily have declared the same in his life-time. And likewise where the custom 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 custom were to advance the female. For whatsoever custom a man may by a word control, and does not, it is a natural sign he would have that custom stand.
Or, by presumption of natural affection.
But where neither custom, nor testament hath preceded, there it is to be understood, first, that a monarch’s will is, that the government remain monarchical; because he hath approved that government in himself. Secondly, that a child of his own, male, or female, be preferred before any other; because men are presumed to be more inclined 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 nearer in blood, rather than the more remote; because it is always presumed that the nearer of kin, is the nearer in affection; and it is evident that a man receives always, by reflection, the most honour from the greatness of his nearest kindred.
To dispose of the succession, though to a king of another nation, not unlawful.
But if it be lawful 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, nor 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 stranger’s government, but from the unskilfulness of the governors, ignorant of the true rules of politics. 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 principal men of every nation they conquered, not only 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, aimed 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 civil wars, which make both those kingdoms, 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 lawfulness of it, this also is an argument, that whatsoever inconvenience can arrive by giving a kingdom 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 lawful.
CHAPTER XX.
OF DOMINION PATERNAL, AND DESPOTICAL.
A commonwealth by acquisition.
A COMMONWEALTH by acquisition, is that, where the sovereign power is acquired by force; and it is acquired by force, when men singly, or many together by plurality of voices, for fear of death, or bonds, do authorize all the actions of that man, or assembly, that hath their lives and liberty in his power.
Wherein different from a commonwealth by institution.