| Those contrary phaenomena proceed from the same principle. |
| Where the royal family is excluded, it is from a refinement in politics, which makes people sensible of their propensity to chuse a sovereign in that family, and gives them a jealousy of their liberty, lest their new monarch, aided by this propensity, should establish his family, and destroy the freedom of elections for the future. |
| The history of Artaxerxes, and the younger Cyrus, may furnish us with some reflections to the same purpose. |
| Cyrus pretended a right to the throne above his elder brother, because he was born after his father's accession. |
| I do not pretend, that this reason was valid. |
| I would only infer from it, that he would never have made use of such a pretext, were it not for the qualities of the imagination above-mentioned, by which we are naturally inclined to unite by a new relation whatever objects we find already united. |
| Artaxerxes had an advantage above his brother, as being the eldest son, and the first in succession: But Cyrus was more closely related to the royal authority, as being begot after his father was invested with it. |
| Should it here be pretended, that the view of convenience may be the source of all the right of succession, and that men gladly take advantage of any rule, by which they can fix the successor of their late sovereign, and prevent that anarchy and confusion, which attends all new elections? To this I would answer, that I readily allow, that this motive may contribute something to the effect; but at the same time I assert, that without another principle, it is impossible such a motive should take place. |
| The interest of a nation requires, that the succession to the crown should be fixed one way or other; but it is the same thing to its interest in what way it be fixed: So that if the relation of blood had not an effect independent of public interest, it would never have been regarded, without a positive law; and it would have been impossible, that so many positive laws of different nations coued ever have concured precisely in the same views and intentions. |
| This leads us to consider the fifth source of authority, viz. |
| positive laws; when the legislature establishes a certain form of government and succession of princes. |
| At first sight it may be thought, that this must resolve into some of the preceding titles of authority. |
| The legislative power, whence the positive law is derived, must either be established by original contract, long possession, present possession, conquest, or succession; and consequently the positive law must derive its force from some of those principles. |
| But here it is remarkable, that though a positive law can only derive its force from these principles, yet it acquires not all the force of the principle from whence it is derived, but loses considerably in the transition; as it is natural to imagine. |
| For instance; a government is established for many centuries on a certain system of laws, forms, and methods of succession. |
| The legislative power, established by this long succession, changes all on a sudden the whole system of government, and introduces a new constitution in its stead. |
| I believe few of the subjects will think themselves bound to comply with this alteration, unless it have an evident tendency to the public good: But men think themselves still at liberty to return to the antient government. |
| Hence the notion of fundamental laws; which are supposed to be inalterable by the will of the sovereign: And of this nature the Salic law is understood to be in France. |
| How far these fundamental laws extend is not determined in any government; nor is it possible it ever should. |
| There is such an indefensible gradation from the most material laws to the most trivial, and from the most antient laws to the most modem, that it will be impossible to set bounds to the legislative power, and determine how far it may innovate in the principles of government. |
| That is the work more of imagination and passion than of reason. |