The Spirit Of Laws Part 10

After what has been said, one would not imagine that the perpetual succession of males to the crown of France should have taken its rise from the Salic law. And yet this is a point indubitably certain. I prove it from the several codes of the barbarous nations. The Salic law,28 and the law of the Burgundians,29 debarred the daughters from the right of succeeding to the land in conjunction with their brothers; neither did they succeed to the crown. The law of the Visigoths,30 on the contrary, permitted the daughters to inherit the land with the brothers:31 and the women were capable of inheriting the crown.32 Amongst these people the regulations of the civil law had an effect on the political.

This was not the only case in which the political law of the Franks gave way to the civil. By the Salic law, all the brothers succeeded equally to the land, and this was also decreed by a law of the Burgundians. Thus, in the kingdom of the Franks, and in that of the Burgundians, all the brothers succeeded to the crown, if we except a few murders and usurpations which took place amongst the Burgundians.

23.-Of the regal Ornaments among the Franks A people who do not cultivate the land have no idea of luxury. We may see, in Tacitus, the admirable simplicity of the German nations: they had no artificial elegances of dress; their ornaments were derived from nature. If the family of their chief was to be distinguished by any sign, it was no other than that which nature bestowed. The kings of the Franks, of the Burgundians, and the Visigoths wore their long hair for a diadem.

24.-Of the Marriages of the Kings of the Franks I have already mentioned that with people who do not cultivate the earth, marriages are less fixed than with others, and that they generally take many wives."Of all the barbarous nations the Germans were almost the only people who were satisfied with one wife,33 if we except," says Tacitus, "some persons who, not from a dissoluteness of manners, but because of their n.o.bility, had many."34 This explains the reason why the kings of the first race had so great a number of wives. These marriages were less a proof of incontinence than a consequence of dignity: and it would have wounded them in a tender point to have deprived them of such a prerogative.35 This also explains the reason why the example of the kings was not followed by the subjects.

25.-Childeric "The laws of matrimony amongst the Germans," says Tacitus, "are strictly observed. Vice is not there a subject of ridicule. To corrupt or be corrupted is not called fas.h.i.+on, or the custom of the age:36 there are few examples in this populous nation of the violation of conjugal faith."37 This was the reason of the expulsion of Childeric: he shocked their rigid virtue, which conquest had not had time to corrupt.

26.-Of the Time when the Kings of the Franks became of age Barbarians who do not cultivate the earth have strictly speaking, no jurisdiction, and are, as we have already remembered, rather governed by the law of nations than by civil inst.i.tutions. They are, therefore, always armed. Thus Tacitus tells us "that the Germans undertook no affairs either of a public or private nature unarmed."38 They gave their vote by the sound of their arms.39 As soon as they could carry them, they were presented to the a.s.sembly;40 they put a javelin into their hands;41 and from that moment they were out of their minority: they had been a part of the family, now they became a part of the republic.42 "The eagles," said the King of the Ostrogoths,43 "cease to feed their young ones as soon as their wings and talons are formed; the latter have no need of a.s.sistance when they are able themselves to seize their prey: it would be a disgrace if the young people in our armies were thought to be of an age unfit for managing their estates or regulating the conduct of their lives. It is virtue that const.i.tutes full age among the Goths."

Childebert II was fifteen years old when Gontram, his uncle, declared that he was of age, and capable of governing by himself.44 We find in the Ripuarian laws that the age of fifteen, the ability of bearing arms and majority, went together. It is there said45 "that if a Ripuarian dies, or is killed, and leaves a son behind him, that son can neither prosecute, nor be prosecuted, till he has completely attained the age of fifteen; and then he may either answer for himself or choose a champion." It was necessary that his mind should be sufficiently formed to be able to defend himself in court; and that his body should have all the strength that was proper for his defence in single combat. Amongst the Burgundians,46 who also made use of this combat in their judiciary proceedings, they were of age at fifteen.

Agathias tells us that the arms of the Franks were light: they might, therefore, be of age at fifteen. In succeeding times the arms they made use of were heavy, and they were already greatly so in the time of Charlemagne, as appears by our capitularies and romances. Those who had fiefs,47 and were consequently obliged to do military service, were not then of age till they were twenty-one years old.48 27.-The same Subject continued We have seen that the Germans did not appear in their a.s.semblies before they were of age; they were a part of the family, but not of the republic. This was the reason that the children of Clodomir, King of Orleans, and conqueror of Burgundy, were not proclaimed kings, because they were of too tender an age to be present at the a.s.sembly. They were not yet kings, but they had a right to the regal dignity as soon as they were able to bear arms; and in the meantime, Clotilda, their grandmother, governed the state.49 But their uncles, Clotaire and Childebert, a.s.sa.s.sinated them, and divided their kingdom. This was the cause that in the following ages princes in their minority were proclaimed kings immediately after the death of their fathers. Thus Duke Gondovald saved Childebert II from the cruelty of Chilperic, and caused him to be proclaimed king when he was only five years old.50 But even in this change they followed the original spirit of the nation; for the public acts did not pa.s.s in the name of the young monarch. So that the Franks had a double administration: the one which concerned the person of the infant king, and the other which regarded the kingdom; and in the fiefs there was a difference between the guardians.h.i.+p and the civil administration.

28.-Of Adoption among the Germans As the Germans became of age by the wielding of arms, so they were adopted by the same sign. This Gontram, willing to declare his nephew Childebert of age and to adopt him for his son, made use of these words: "I have put this javelin into thy hands as a token that I have given thee all my kingdom."51 Then, turning towards the a.s.sembly, he added, "You see that my son Childebert is grown a man; obey him." Theodoric, King of the Ostrogoths, intending to adopt the King of the Heruli, wrote to him thus:52 "It is a n.o.ble custom of ours to be adopted by arms; for men of courage alone deserve to be our children. Such is the efficacy of this act, that whoever is the object of it had rather die than submit to anything ignominious. Therefore, in compliance with the national usage, and because you are a man of courage, we adopt you for our son by these bucklers, these swords, these horses, which we send you as a present."

29.-Of the sanguinary Temper of the Kings of the Franks Clovis was not the only prince amongst the Franks who had invaded Gaul. Many of his relatives had penetrated into this country with particular tribes; but as he had met with much greater success, and could grant considerable settlements to such as followed him, the Franks flocked to him from all parts, so that the other chiefs found themselves too weak to resist him. He formed a design of exterminating his whole house, and he succeeded.53 He feared, says Gregory of Tours,54 lest the Franks should choose another chief. His children and successors followed this practice to the utmost of their power. Thus the brother, the uncle, the nephew, and, what is still worse, the father or the son, were perpetually conspiring against their whole family. The law continually divided the monarchy; while fear, ambition, and cruelty wanted to reunite it.

30.-Of the national a.s.semblies of the Franks It has been remarked above that nations who do not cultivate the land enjoy great liberty.

This was the case of the Germans. Tacitus says that they gave their kings, or chiefs, a very moderate degree of power;55 and Caesar adds further that in times of peace they had no common magistrates; but their princes administered justice in each village.56 Thus, as Gregory of Tours57 sufficiently proves, the Franks in Germany had no king.

"The princes," says Tacitus, "deliberate on matters of no great concern; while affairs of importance are submitted to the whole nation, but in such a manner that these very affairs which are under the cognizance of the people are at the same time laid before the princes."58 This custom was observed by them after their conquests, as may be seen in all their records.59 Tacitus says that capital crimes might be carried before the a.s.sembly.60 It was the same after the conquest, when the great va.s.sals were tried before that body.

31.-Of the Authority of the Clergy under the first Race The priests of barbarous nations are commonly invested with power, because they have both that authority which is due to them from their religious character, and that influence which amongst such a people is the offspring of superst.i.tion. Thus we see in Tacitus that priests were held in great veneration by the Germans, and that they presided in the a.s.semblies of the people.61 They alone were permitted62 to chastise, to bind, to smite; which they did, not by order of the prince, or as his ministers of justice, but as by an inspiration of that Deity ever supposed to be present with those who made war.

We ought not, therefore, to be astonished when, from the very beginning of the first race, we meet with bishops the dispensers of justice;63 when we see them appear in the a.s.semblies of the nation; when they have such a prodigious influence on the minds of sovereigns; and when they acquire so large a share of property.64 1 Lib. XVII.

2 "Life of Solon."

3 Or he who wrote the book "De Mirabilibus."

4 j.a.pan is an exception to this, by its great extent as well as by its slavery.

5 Polybius, lib. X.

6 It is thus that Diodorus tells us the shepherds found gold in the Pyrenean mountains. Aristotle concurs in this idea, but Strabo treats it as a fable.-Ed.

7 "Edifying Letters," 20th collection.

8 When a khan is proclaimed, all the people cry that his word shall be as sword.

9 Book XVII. chap. 5.

10 We ought not therefore to be astonished at Mahomet, the son of Miriveis, a who, upon taking Ispahan, put all the princes of the blood to the sword.

11 t.i.t.62 12 "Nullas Germanorum populist urbes habitari satis notum est, ne pati quidem inter se junctas sedes; colunt discreti, ut nemus placuit. Vicos locant, non in nostrum more connexis et cohaerentibus aedificiis: suam quisque domum spatio circ.u.mdat."-"De Moribus Germanorum."

13 The "Law of the Alemans," chap. x,. and the "Law of the Bavarians," t.i.t. 10, secs. 1 and 2.

14 This inclosure is called "Cortis" in the charters.

15 See Marculfus, lib. II. form. 10 and 12. Append. to Marculf. form. 49, and the ancient formularies of "Sirmondus," form. 22.

16 Form. 55, in Lindembroch's collection.

17 "De terra vero Salica in mulierem nulla portion hereditatis transit, sed hoc virilis s.e.xus acquirit, hoc est filii in ipsa hereditate succedunt."-t.i.t. 62, sec. 6 18 "Sororum filiis idem apud avunculum quam apud patrem honor. Quidam sanctiorem arctioremque huncnexum sanguinis arbitrantur, et in accipiendis obsidibus magis exigunt, tanquam ii et animum firmius et domum latius teneant."-"De Moribus Germanorum."

19 See, in "Gregory of Tours," lib. VIII. chap. xviii. and xx., and lib. XI. chap. xvi. and xx., the rage of Gontram at Leovigild's ill treatment of Ingunda, took up arms to revenge.

20 Salic law, t.i.t. 47.

21 Ibid. t.i.t. 61, sec. 1. his niece, which Childebert, her brother, 22 "Et deinceps usque ad quintum genuculum qui proximus fuerit in hereditatem succedat."-t.i.t. 56, sec. 3.

23 t.i.t. 56.

24 Ibid., 7, sec. 1: "Pater aut mater defuncti, filio non filiae hereditatem relinquant"; sec. 4,."qui defunctus, non filios, sed filias reliquerit, ad eas omnis hereditas pertineat."

25 In Marculfus, lib. II. form. 12, and in the Appendix to Marculfus, form. 49.

26 Lindembroch's collection, form. 55.

27 Ducange, Pithou, etc.

28 t.i.t. 62.

29 t.i.t. 1, sec. 3; t.i.t. 14, sec. 1; and t.i.t. 51.

30 Lib. IV. t.i.t. 2, sec. 1.

31 Among the Ostrogoths, the crown twice devolved to the males by means of females; the first time to Athalaricus, through Amalasuntha, and the second to Theodat, through Amalafreda. Not but that the females of that nation might have held the crown in their own right; for Amalasuntha reigned after the death of Athalaricus; nay, even after the election of Theodat, and in conjunction with that prince. See Amalasuntha's and Theodat's letters, in "Ca.s.siodorus," lib. X.

32 The German nations, says Tacitus, had common customs, as well as those which were peculiar to each.

33 "Prope soli Barbarorum singulis uxoribus content sunt."-"De Moribus Germanorum."

34 "Exceptis admodum paucis qui non libidine, sed ob n.o.bilitatem, plurimis nuptiis ambiuntur."-Ibid.

35 See Fredegarius's "Chronicle of the Year 628."

36 "Severa matrimonia-nemo illic vitia ridet, nec corrumpere et corrumpi saeculum vocatur."-"De Moribus Germanorum."

37 "Paucissima in tam numerosa gente adulteria."-Ibid.

38 "Nihil neque publicae neque privatae rei nisi armati agunt."-Ibid.

39 "Si displicuit sententia, fremitu aspernantur; sin placuit, frameas concutiunt."-Ibid.

40 "Sed arma sumere non ante cuiquam moris, quam civitas suffecturum probaverit."

41 "Turn in ipso concilio vel principum aliquis, vel pater, vel propinquus, scuto, frameaque juvenem ornant."

42 "Haec apud illos toga, hic primus juventae honos; ante hoc domus pars videntur, mox reipublicae."

43 Theodoric in "Ca.s.siod." lib. I. ep. 38.

44 He was scarcely five years old, says "Gregory of Tours," lib. V. cap. i.,when he succeeded to his father, in the year 575. Gontram declared him of age in the year 585; he was, therefore, at that time no more than fifteen.

45 t.i.t. 81.

46 t.i.t. 87.

47 There was no change in the time with regard to the common people.

48 St. Louis was not of age till twenty-one; this was altered by an edict of Charles V in the year 1374.

49 It appears from "Gregory of Tours," lib. III., that she chose two natives of Burgundy, which had been conquered by Clodomir, to raise them to the see of Tours, which also belonged to Clodomir.

50 "Gregory of Tours," lib. V. cap. i.: "vix l.u.s.tro aetatis uno jam peracto qui die Dominicae Natalis regnare cpit."

51 See "Gregory of Tours," lib. VII. cap. xxiii.

52 In "Ca.s.siod." lib. IV. ep. 2.

53 "Gregory of Tours," lib. II.

54 Ibid.

55 "Nec Regibus libera aut infinita potestas. Caeterum neque animadvertere, neque vincire, neque verberare," etc.-"De Moribus Germanorum."

56 "In pace nullus est communis magistratus, sed principes regionum atque pagorum inter suos jus dic.u.n.t."-"De Bello Gall." lib. VI.

57 Lib. II.

58 "De minoribus principles consultant, de majoribus omnes; ita tamenut ea quorum penes plebem arbitrium est. apud principles pertractentur."-"De Moribus Germanorum."

59 "Lex consensus Populi fit et const.i.tutione Regis."-"Capitularies of Charles the Bald," anno 864, art. 6.

60 "Licet apud Concilium accusare et discrimen capitis intendere."-"De Moribus Germanorum."

61 "Silentium per sacerdotes, quibus et coercendi jus est, imperatur."-Ibid.

62 "Nec Regibus liberal aut infinita potestas. Caeterum neque animadvertere, neque vincire, neque verberare, nisi sacerdotibus est permissum, non quasi in pnam, nec Ducis jussu, sed velut Deo imperante, quem adesse bellatoribus credunt."-Ibid.

63 See the "Const.i.tutions of Clotaire" in the year 560, art. 6.

64 The last ten chapters of this book, reunited in Books XXVIII., x.x.x., and x.x.xI., form a complete treatise upon the origin and early ages of the French monarchy, and they should be thus read to be understood.-Ed.

Book XIX

Of Laws in Relation to the Principles which Form the General Spirit, the Morals, and Customs of a Nation 1.-Of the Subject of this Book THIS subject is very extensive. In that crowd of ideas which presents itself to my mind, I shall be more attentive to the order of things than to the things themselves. I shall be obliged to wander to the right and to the left, that I may investigate and discover the truth.

2.-That it is necessary People's Minds should be prepared for the Reception of the best Laws Nothing could appear more insupportable to the Germans than the tribunal of Varus.1 That which Justinian2 erected amongst the Lazi, to proceed against the murderers of their king, appeared to them as an affair most horrid and barbarous. Mithridates,3 haranguing against the Romans, reproached them more particularly for their law proceedings.4 The Parthians could not bear with one of their kings who, having been educated at Rome, rendered himself affable and easy of access to all.5 Liberty itself has appeared intolerable to those nations who have not been accustomed to enjoy it. Thus pure air is sometimes disagreeable to such as have lived in a fenny country.

Balbi, a Venetian, being at Pegu, was introduced to the king.6 When the monarch was informed that they had no king at Venice, he burst into such a fit of laughter that he was seized with a cough, and with difficulty could speak to his courtiers. What legislator could propose a popular government to a people like this?

3.-Of Tyranny There are two sorts of tyranny: one real, which arises from oppression; the other is seated in opinion, and is sure to be left whenever those who govern establish things shocking to the existing ideas of a nation.

Dio7 tells us that Augustus was desirous of being called Romulus; but having been informed that the people feared that he would cause himself to be crowned king, he changed his design. The old Romans were averse to a king, because they could not suffer any man to enjoy such power; these would not have a king, because they could not bear his manners. For though Caesar, the Triumvirs, and Augustus were really invested with regal power, they had preserved all the outward appearance of equality, while their private lives were a kind of contrast to the pomp and luxury of foreign monarchs; so that when the Romans were resolved to have no king, this only signified that they would preserve their customs, and not imitate those of the African and Eastern nations.

The same writer informs us that the Romans were exasperated against Augustus for making certain laws which were too severe; but as soon as he had recalled Pylades, the comedian, whom the jarring of different factions had driven out of the city, the discontent ceased. A people of this stamp have a more lively sense of tyranny when a player is banished than when they are deprived of their laws.

4.-Of the general Spirit of Mankind Mankind are influenced by various causes: by the climate, by the religion, by the laws, by the maxims of government, by precedents, morals, and customs; whence is formed a general spirit of nations.

In proportion as, in every country, any one of these causes acts with more force, the others in the same degree are weakened. Nature and the climate rule almost alone over the savages; customs govern the Chinese; the laws tyrannize in j.a.pan; morals had formerly all their influence at Sparta; maxims of government, and the ancient simplicity of manners, once prevailed at Rome.

5.-How far we should be attentive lest the general Spirit of a Nation be changed Should there happen to be a country whose inhabitants were of a social temper, open-hearted, cheerful, endowed with taste and a facility in communicating their thoughts; who were sprightly and agreeable; sometimes imprudent, often indiscreet; and besides had courage, generosity, frankness, and a certain notion of honor, no one ought to endeavor to restrain their manners by laws, unless he would lay a constraint on their virtues. If in general the character be good, the little foibles that may be found in it are of small importance.

They might lay a restraint upon women, enact laws to reform their manners and to reduce their luxury, but who knows but that by these means they might lose that peculiar taste which would be the source of the wealth of the nation, and that politeness which would render the country frequented by strangers?

It is the business of the legislature to follow the spirit of the nation, when it is not contrary to the principles of government; for we do nothing so well as when we act with freedom, and follow the bent of our natural genius.

If an air of pedantry be given to a nation that is naturally gay, the state will gain no advantage from it, either at home or abroad. Leave it to do frivolous things in the most serious manner, and with gayety the things most serious.

6.-That Everything ought not to be corrected Let them but leave us as we are, said a gentleman of a nation which had a very great resemblance to that we have been describing, and nature will repair whatever is amiss. She has given us a vivacity capable of offending, and hurrying us beyond the bounds of respect: this same vivacity is corrected by the politeness it procures, inspiring us with a taste of the world, and, above all, for the conversation of the fair s.e.x.

Let them leave us as we are; our indiscretions joined to our good nature would make the laws which should constrain our sociability not at all proper for us.

7.-Of the Athenians and Lacedaemonians The Athenians, this gentleman adds, were a nation that had some relation to ours. They mingled gayety with business; a stroke of raillery was as agreeable in the senate as in the theatre. This vivacity, which discovered itself in their councils, went along with them in the execution of their resolves. The character of the Spartans was one of gravity, seriousness, severity, and silence. It would have been as difficult to bring over an Athenian by teasing as it would a Spartan by diverting him.

8.-Effects of a sociable Temper The more communicative a people are the more easily they change their habits, because each is in a greater degree a spectacle to the other, and the singularities of individuals are better observed. The climate which influences one nation to take pleasure in being communicative, makes it also delight in change, and that which makes it delight in change forms its taste.

The society of the fair s.e.x spoils the manners and forms the taste; the desire of giving greater pleasure than others establishes the embellishments of dress; and the desire of pleasing others more than ourselves gives rise to fas.h.i.+ons. This fas.h.i.+on is a subject of importance; by encouraging a trifling turn of mind, it continually increases the branches of its commerce.8 9.-Of the Vanity and Pride of Nations Vanity is as advantageous to a government as pride is dangerous. To be convinced of this we need only represent, on the one hand, the numberless benefits which result from vanity, as industry, the arts, fas.h.i.+ons, politeness, and taste; on the other, the infinite evils which spring from the pride of certain nations, as laziness, poverty, a total neglect of everything-in fine, the destruction of the nations which have happened to fall under their government, as well as of their own. Laziness is the effect of pride;9 labor, a consequence of vanity. The pride of a Spaniard leads him to decline labor; the vanity of a Frenchman to work better than others.

All lazy nations are grave; for those who do not labor regard themselves as the sovereigns of those who do.

If we search amongst all nations, we shall find that for the most part gravity, pride, and indolence go hand in hand.

The people of Achim10 are proud and lazy; those who have no slaves, hire one, if it be only to carry a quart of rice a hundred paces; they would be dishonored if they carried it themselves.