The Spirit Of Laws Part 6

It is now two centuries since a disease unknown to our ancestors was first transplanted from the new world to ours, and came to attack human nature even in the very source of life and pleasure. Most of the princ.i.p.al families in the south of Europe were seen to perish by a distemper that had grown too common to be ignominious, and was considered in no other light than in that of its being fatal. It was the thirst of gold that propagated this disease; the Europeans went continually to America, and always brought back a new leaven of it.22 Reasons drawn from religion seemed to require that this punishment of guilt should be permitted to continue; but the infection had reached the bosom of matrimony, and given the vicious taint even to guiltless infants.

As it is the business of legislators to watch over the health of the citizens, it would have been a wise part in them to have stopped this communication by laws made on the plan of those of Moses.

The plague is a disease whose infectious progress is much more rapid. Egypt is its princ.i.p.al seat, whence it spreads over the whole globe. Most countries in Europe have made exceedingly good regulations to prevent this infection, and in our times an admirable method has been contrived to stop it; this is by forming a line of troops round the infected country, which cuts off all manner of communication.

The Turks,23 who have no such regulations, see the Christians escape this infection in the same town, and none but themselves perish; they buy the clothes of the infected, wear them, and proceed in their old way, as if nothing had happened. The doctrine of a rigid fate, which directs their whole conduct, renders the magistrate a quiet spectator; he thinks that everything comes from the hand of G.o.d, and that man has nothing more to do than to submit.

12.-Of the Laws against Suicides We do not find in history that the Romans ever killed themselves without a cause; but the English are apt to commit suicide most unaccountably; they destroy themselves even in the bosom of happiness. This action among the Romans was the effect of education, being connected with their principles and customs; among the English it is the consequence of a distemper,24 being connected with the physical state of the machine, and independent of every other cause.

In all probability it is a defect of the filtration of the nervous juice: the machine, whose motive faculties are often unexerted, is weary of itself; the soul feels no pain, but a certain uneasiness in existing. Pain is a local sensation, which leads us to the desire of seeing an end of it; the burden of life, which prompts us to the desire of ceasing to exist, is an evil confined to no particular part.

It is evident that the civil laws of some countries may have reasons for branding suicide with infamy: but in England it cannot be punished without punis.h.i.+ng the effects of madness.

13.-Effects arising from the Climate of England In a nation so distempered by the climate as to have a disrelish of everything, nay, even of life, it is plain that the government most suitable to the inhabitants is that in which they cannot lay their uneasiness to any single person's charge, and in which, being under the direction rather of the laws than of the prince, it is impossible for them to change the government without subverting the laws themselves.

And if this nation has likewise derived from the climate a certain impatience of temper, which renders them incapable of bearing the same train of things for any long continuance, it is obvious that the government above mentioned is the fittest for them.

This impatience of temper is not very considerable of itself; but it may become so when joined with courage.

It is quite a different thing from levity, which makes people undertake or drop a project without cause; it borders more upon obstinacy, because it proceeds from so lively a sense of misery that it is not weakened even by the habit of suffering.

This temper in a free nation is extremely proper for disconcerting the projects of tyranny,25 which is always slow and feeble in its commencement, as in the end it is active and lively; which at first only stretches out a hand to a.s.sist, and exerts afterwards a mult.i.tude of arms to oppress.

Slavery is ever preceded by sleep. But a people who find no rest in any situation, who continually explore every part, and feel nothing but pain, can hardly be lulled to sleep.

Politics are a smooth file, which cuts gradually, and attains its end by a slow progression. Now the people of whom we have been speaking are incapable of bearing the delays, the details, and the coolness of negotiations: in these they are more unlikely to succeed than any other nation; hence they are apt to lose by treaties what they obtain by their arms.

14.-Other Effects of the Climate Our ancestors, the ancient Germans, lived in a climate where the pa.s.sions were extremely calm. Their laws decided only in such cases where the injury was visible to the eye, and went no farther. And as they judged of the outrages done to men from the greatness of the wound, they acted with no other delicacy in respect to the injuries done to women. The law of the Alemans26 on this subject is very extraordinary. If a person uncovers a woman's head, he pays a fine of fifty sous; if he uncovers her leg up to the knee, he pays the same; and double from the knee upwards. One would think that the law measured the insults offered to women as we measure a figure in geometry; it did not punish the crime of the imagination, but that of the eye. But upon the migration of a German nation into Spain, the climate soon found a necessity for different laws. The law of the Visigoths inhibited the surgeons to bleed a free woman, except either her father, mother, brother, son, or uncle was present. As the imagination of the people grew warm, so did that of the legislators; the law suspected everything when the people had become suspicious.

These laws had, therefore, a particular regard for the two s.e.xes. But in their punishments they seem rather to humor the revengeful temper of private persons than to administer public justice. Thus, in most cases, they reduced both the criminals to be slaves to the offended relatives or to the injured husband; a free-born woman27 who had yielded to the embraces of a married man was delivered up to his wife to dispose of her as she pleased. They obliged the slaves,28 if they found their master's wife in adultery, to bind her and carry her to her husband; they even permitted her children29 to be her accusers, and her slaves to be tortured in order to convict her. Thus their laws were far better adapted to refine, even to excess, a certain point of honor than to form a good civil administration. We must not, therefore, be surprised if Count Julian was of opinion that an affront of that kind ought to be expiated by the ruin of his king and country: we must not be surprised if the Moors, with such a conformity of manners, found it so easy to settle and to maintain themselves in Spain, and to r.e.t.a.r.d the fall of their empire.

15.-Of the different Confidence which the Laws have in the People, according to the Difference of Climates The people of j.a.pan are of so stubborn and perverse a temper that neither their legislators nor magistrates can put any confidence in them: they set nothing before their eyes but judgments, menaces, and chastis.e.m.e.nts; every step they take is subject to the inquisition of the civil magistrate. Those laws which out of five heads of families establish one as a magistrate over the other four; those laws which punish a family or a whole ward for a single crime; those laws, in fine, which find n.o.body innocent where one may happen to be guilty, are made with a design to implant in the people a mutual distrust, and to make every man the inspector, witness, and judge of his neighbor's conduct.

On the contrary, the people of India are mild,30 tender, and compa.s.sionate. Hence their legislators repose great confidence in them. They have established31 very few punishments; these are not severe, nor are they rigorously executed. They have subjected nephews to their uncles, and orphans to their guardians, as in other countries they are subjected to their fathers; they have regulated the succession by the acknowledged merit of the successor. They seem to think that every individual ought to place entire confidence in the good nature of his fellow-subjects.32 They enfranchise their slaves without difficulty, they marry them, they treat them as their children.33 Happy climate which gives birth to innocence, and produces a lenity in the laws!

1 This appears even in the countenance: in cold weather people look thinner.

2 We know that it shortens iron.

3 Those for the succession to the Spanish monarchy.

4 For instance, in Spain.

5 "One hundred European soldiers," says Tavernier, "would without any great difficulty beat a thousand Indian soldiers."

6 Even the Persians who settle in the Indies contract in the third generation the indolence and cowardice of the "Indians. See Bernier on the "Mogul," tom. i. p. 182.

7 We find by a fragment of Nicolaus Damascenus, collected by Constantine Porphyrogenitus, that it was an ancient custom in the East to send to strangle a Governor who had given any displeasure; it was in the time of the Medes.

8 Panamanack: See Kircher.

9 La Loubiere, "Relation of Siam," p. 446.

10 Foe endeavored to reduce the heart to a mere vacuum: "We have eyes and ears, but perfection consists in neither seeing nor hearing; a mouth, hands, etc., but perfection requires that these members should be inactive." This is taken from the dialogue of a Chinese philosopher, quoted by Father Du Halde, tom. iii.

11 Father Du Halde, "History of China," tom. i. p. 72.

12 Several of the kings of India do the same. "Relation of the Kingdom of Siam," by La Loubiere, p. 69.

13 Venty, the third Emperor of the third dynasty, tilled the lands himself, and made the Empress and his wives employ their time in the silkworks in his palace. "History of China."

14 Hyde, "Religion of the Persians."

15 Monsieur Bernier, travelling from Lah.o.r.e to Cashmere, wrote thus: "My body is a sieve; scarcely have I swallowed a pint of water, but I see it transude like dew out of all my limbs, even to my fingers' ends. I drink ten pints harm."-Bernier's "Travels," tom. ii. p. 261.

16 In the blood there are red globules, fibrous parts, white globules, and water, in which the whole swims.

17 Plato, book II. of "Laws "; Aristotle, of the care of domestic affairs; Eusebius's" Evangelical Preparation," book XII. chap. xvii.

18 This is seen in the Hottentots, and the inhabitants of the most southern a day, and it does me no manner of part of Chili.

19 As Pittacus did, according to Aristotle, "Polit." lib. I. cap. iii. He lived in a climate where drunkenness is not a national vice.

20 Book II.

21 Book II. t.i.t. 1, sec. 3, and t.i.t. 18, sec. 1.

22 It has been thought that this malady has a still more ancient origin, and that it is probable the Spaniards carried it to America at the start.-Ed.

23 Ricaut on the "Ottoman Empire," p. 284.

24 It may be complicated with the scurvy, which, in some countries especially, renders a man whimsical and unsupportable to himself. See Pirard's "Voyages," part II. chap. xxi.

25 Here I take this word for the design of subverting the established power, and especially that of democracy; this is the signification in which it was understood by the Greeks and Romans.

26 Chap. lviii. secs. 1 and 2.

27 "Law of the Visigoths," book III. t.i.t. 4, sec. 9.

28 Ibid. book III. t.i.t. 4, sec. 6.

29 Ibid. book III. t.i.t. 4, sec. 13.

30 See Bernier, tom. ii p. 140.

31 See in the 14th collection of the "Edifying Letters," p. 403, the princ.i.p.al laws or customs of the inhabitants of the peninsula on this side the Ganges.

32 See "Edifying Letters," IX. 378 Great exception has been taken to Montesquieu's abuse upon the effects of climate physically; it is Servan who avers that the weakness attributed to organisms under the equator is erroneous.-Ed.

33 I had once thought that the lenity of slavery in India had made Diodorus say that there was neither master nor slave in that country; but Diodorus has attributed to the whole continent of India what, according to Strabo, lib. XV., belonged only to a particular nation.

Book XV

In What Manner the Laws of Civil Slavery Relate to the Nature of the Climate 1.-Of civil Slavery SLAVERY, properly so called, is the establishment of a right which gives to one man such a power over an other as renders him absolute master of his life and fortune. The state of slavery is in its own nature bad. It is neither useful to the master nor to the slave; not to the slave, because he can do nothing through a motive of virtue; nor to the master, because by having an unlimited authority over his slaves he insensibly accustoms himself to the want of all moral virtues, and thence becomes fierce, hasty, severe, choleric, voluptuous, and cruel.

In despotic countries, where they are already in a state of political servitude, civil slavery is more tolerable than in other governments. Every one ought to be satisfied in those countries with necessaries and life. Hence the condition of a slave is hardly more burdensome than that of a subject.

But in a monarchical government, where it is of the utmost importance that human nature should not be debased or dispirited, there ought to be no slavery. In democracies, where they are all upon equality; and in aristocracies, where the laws ought to use their utmost endeavors to procure as great an equality as the nature of the government will permit, slavery is contrary to the spirit of the const.i.tution: it only contributes to give a power and luxury to the citizens which they ought not to have.1 2.-Origin of the Right of Slavery among the Roman Civilians One would never have imagined that slavery should owe its birth to pity, and that this should have been excited in three different ways.2 The law of nations to prevent prisoners from being put to death has allowed them to be made slaves. The civil law of the Romans empowered debtors, who were subject to be ill used by their creditors, to sell themselves. And the law of nature requires that children whom a father in a state of servitude is no longer able to maintain should be reduced to the same state as the father.

These reasons of the civilians are all false. It is false that killing in war is lawful, unless in a case of absolute necessity: but when a man has made another his slave, he cannot be said to have been under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any further harm by securing their persons. All nations3 concur in detesting the murdering of prisoners in cold blood.

Neither is it true that a freeman can sell himself. Sale implies a price; now when a person sells himself, his whole substance immediately devolves to his master; the master, therefore, in that case, gives nothing, and the slave receives nothing. You will say he has a peculium. But this peculium goes along with the person. If it is not lawful for a man to kill himself because he robs his country of his person, for the same reason he is not allowed to barter his freedom. The freedom of every citizen const.i.tutes a part of the public liberty, and in a democratic state is even a part of the sovereignty. To sell one's freedom4 is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller. The civil law, which authorizes a division of goods among men, cannot be thought to rank among such goods a part of the men who were to make this division. The same law annuls all iniquitous contracts; surely then it affords redress in a contract where the grievance is most enormous.

The third way is birth, which falls with the two former; for if a man could not sell himself, much less could he sell an unborn infant. If a prisoner of war is not to be reduced to slavery, much less are his children.

The lawfulness of putting a malefactor to death arises from this circ.u.mstance: the law by which he is punished was made for his security. A murderer, for instance, has enjoyed the benefit of the very law which condemns him; it has been a continual protection to him; he cannot, therefore, object to it. But it is not so with the slave. The law of slavery can never be beneficial to him; it is in all cases against him, without ever being for his advantage; and therefore this law is contrary to the fundamental principle of all societies.

If it be pretended that it has been beneficial to him, as his master has provided for his subsistence, slavery, at this rate, should be limited to those who are incapable of earning their livelihood. But who will take up with such slaves? As to infants, nature, who has supplied their mothers with milk, had provided for their sustenance; and the remainder of their childhood approaches so near the age in which they are most capable of being of service that he who supports them cannot be said to give them an equivalent which can ent.i.tle him to be their master.

Nor is slavery less opposed to the civil law than to that of nature. What civil law can restrain a slave from running away, since he is not a member of society, and consequently has no interest in any civil inst.i.tutions? He can be retained only by a family law, that is, by the master's authority.

3.-Another Origin of the Right of Slavery I would as soon say that the right of slavery proceeds from the contempt of one nation for another, founded on a difference in customs.

Lopez de Gama5 relates "that the Spaniards found near St. Martha several basketfuls of crabs, snails, gra.s.shoppers, and locusts, which proved to be the ordinary provision of the natives. This the conquerors turned to a heavy charge against the conquered." The author owns that this, with their smoking and tr.i.m.m.i.n.g their beards in a different manner, gave rise to the law by which the Americans became slaves to the Spaniards.

Knowledge humanizes mankind, and reason inclines to mildness; but prejudices eradicate every tender disposition.

4.-Another Origin of the Right of Slavery I would as soon say that religion gives its professors a right to enslave those who dissent from it, in order to render its propagation more easy.

This was the notion that encouraged the ravagers of America in their iniquity.6 Under the influence of this idea they founded their right of enslaving so many nations; for these robbers, who would absolutely be both robbers and Christians, were superlatively devout.

Louis XIII7 was extremely uneasy at a law by which all the negroes of his colonies were to be made slaves; but it being strongly urged to him as the readiest means for their conversion, he acquiesced without further scruple.

5.-Of the Slavery of the Negroes Were I to vindicate outright to make slaves of the negroes, these should be my arguments:- The Europeans, having extirpated the Americans, were obliged to make slaves of the Africans, for clearing such vast tracts of land.

Sugar would be too dear if the plants which produce it were cultivated by any other than slaves.

These creatures are all over black, and with such a flat nose that they can scarcely be pitied.

It is hardly to be believed that G.o.d, who is a wise Being, should place a soul, especially a good soul, in such a black ugly body.

It is so natural to look upon color as the criterion of human nature, that the Asiatics, among whom eunuchs are employed, always deprive the blacks of their resemblance to us by a more opprobrious distinction.

The color of the skin may be determined by that of the hair, which, among the Egyptians, the best philosophers in the world, was of such importance that they put to death all the red-haired men who fell into their hands.

The negroes prefer a gla.s.s necklace to that gold which polite nations so highly value. Can there be a greater proof of their wanting common sense?

It is impossible for us to suppose these creatures to be men, because, allowing them to be men, a suspicion would follow that we ourselves are not Christians.8 Weak minds exaggerate too much the wrong done to the Africans. For were the case as they state it, would the European powers, who make so many needless conventions among themselves, have failed to enter into a general one, in behalf of humanity and compa.s.sion?

6.-The true Origin of the Right of Slavery It is time to inquire into the true origin of the right of slavery. It ought to be founded on the nature of things; let us see if there be any cases where it can be derived thence.

In all despotic governments people make no difficulty in selling themselves; the political slavery in some measure annihilates the civil liberty.

According to Mr. Perry,9 the Muscovites sell themselves very readily: their reason for it is evident-their liberty is not worth keeping.

At Achim every one is for selling himself. Some of the chief lords10 have not less than a thousand slaves, all princ.i.p.al merchants, who have a great number of slaves themselves, and these also are not without their slaves. Their masters are their heirs, and put them into trade. In those states, the freemen being overpowered by the government, have no better resource than that of making themselves slaves to the tyrants in office.

This is the true and rational origin of that mild law of slavery which obtains in some countries: and mild it ought to be, as founded on the free choice a man makes of a master, for his own benefit; which forms a mutual convention between the two parties.

7.Another Origin of the Right of Slavery There is another origin of the right of slavery, and even of the most cruel slavery which is to be seen among men.

There are countries where the excess of heat enervates the body, and renders men so slothful and dispirited that nothing but the fear of chastis.e.m.e.nt can oblige them to perform any laborious duty: slavery is there more reconcilable to reason; and the master being as lazy with respect to his sovereign as his slave is with regard to him, this adds a political to a civil slavery.

Aristotle11 endeavors to prove that there are natural slaves; but what he says is far from proving it. If there be any such, I believe they are those of whom I have been speaking.

But as all men are born equal, slavery must be accounted unnatural, though in some countries it be founded on natural reason; and a wide difference ought to be made between such countries, and those in which even natural reason rejects it, as in Europe, where it has been so happily abolished.

Plutarch, in the "Life of Numa," says that in Saturn's time there was neither slave nor master. Christianity has restored that age in our climates.

8.-Inutility of Slavery among us Natural slavery, then, is to be limited to some particular parts of the world. In all other countries, even the most servile drudgeries may be performed by freemen.

Experience verifies my a.s.sertion. Before Christianity had abolished civil slavery in Europe, working in the mines was judged too toilsome for any but slaves or malefactors: at present there are men employed in them who are known to live comfortably.12 The magistrates have, by some small privileges, encouraged this profession: to an increase of labor they have joined an increase of gain; and have gone so far as to make those people better pleased with their condition than with any other which they could have embraced.

No labor is so heavy but it may be brought to a level with the workman's strength, when regulated by equity, and not by avarice. The violent fatigues which slaves are made to undergo in other parts may be supplied by a skilful use of ingenious machines. The Turkish mines in the Bannat of Temeswaer, though richer than those of Hungary, did not yield so much; because the working of them depended entirely on the strength of their slaves.

I know not whether this article be dictated by my understanding or by my heart. Possibly there is not that climate upon earth where the most laborious services might not with proper encouragement be performed by freemen. Bad laws having made lazy men, they have been reduced to slavery because of their laziness.

9.-Several Kinds of Slavery Slavery is of two kinds, real and personal. The real annexes the slave to the land, which Tacitus makes13 the condition of slaves among the Germans. They were not employed in the family: a stated tribute of corn, cattle, or other movables, paid to their master, was the whole of their servitude. And such a servitude still continues in Hungary, Bohemia, and several parts of Lower Germany.

Personal slavery consists in domestic services, and relates more to the master's person.

The worst degree of slavery is when it is at once both real and personal, as that of the Helotes among the Lacedaemonians. They underwent the fatigues of the field, and suffered all manner of insults at home. This helotism is contrary to the nature of things. Real slavery is to be found only among nations remarkable for their simplicity of life:14 all family business being done by the wives and children. Personal slavery is peculiar to voluptuous nations; luxury requiring the service of slaves in the house. But helotism joins in the same person the slavery established by voluptuous nations and that of the most simple.

10.-Regulations necessary in respect to Slavery But of whatsoever kind the slavery be, the civil laws should endeavor on the one hand to abolish the abuses of it, and on the other to guard against its dangers.

11.-Abuses of Slavery In Mahommedan states,15 not only the life and goods of female slaves, but also what is called their virtue or honor, are at their master's disposal. One of the misfortunes of those countries is that the greatest part of the nation are born only to be subservient to the pleasures of the other. This servitude is alleviated by the laziness in which such slaves spend their days; which is an additional disadvantage to the state.

It is this indolence which renders the eastern seraglios so delightful to those very persons whom they were made to confine.16 People who dread nothing but labor may imagine themselves happy in those places of indolence and ease. But this shows how contrary they are to the very intent of the inst.i.tution of slavery.

Reason requires that the master's power should not extend to what does not appertain to his service: slavery should be calculated for utility, and not for pleasure. The laws of chast.i.ty arise from those of nature, and ought in all nations to be respected.