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Full text of "Physics and politics, or, Thoughts on the application of the principles of "natural selection" and "inheritance" to political society"

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I ii*i^^Stiy]B*fflA^».:£*W*'i;*^''a!VA^vjMl"';,ifi4< 



^THE WORLDS 
GREAT CLASSICS 



Timothy D\(aGHxD.D.LIJ) 
RiaiARD Henry5to[)Dard 
Arthvr Richmond Marsh AB. 
Pavlvan Dyke. D.D. 
JvLiAN Hawthorne 





illv5trati:d ■ wrrM- nearly two 

tl\-NDRED PHOtOCRAVVftES ■ ETCH' 
INCS COLORED-PLATES AND FV1.L- 
PACE-POftTRAlTS-OrCRtAT-AVTHORS 

CLAftENce Cook ■ Art Editor 



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CHOICE EXAMPLES OF EARLY PRINTING AND 
ENGRAVING. 

Pu*siinlles fioin Tart md Oirioiis Books. 



JU/iJ L>fi J COWMN Oh Gi-fh.\ti!iR{rs lUllLk. 



■ Tf III, 






.[-cl ci^Viu i^ i wit ^;lI &bf-vGJTvi. 



THE SPIRIT OF LAWS 



BOOK XXIII 

OF LAWS IN THE RELATION THEY BEAR TO THE 
NUMBER OF INHABITANTS 

I, — Of Men and Animals with respect to the Multiplication of 

their Species 

''Delight of human kjnd,a and gods above; 
Parent of Rome, propitious Queen of Love ; 

For when the rising spring adoms the niead» 

And a new scene of nature stands displayed; 

When teeming buds, and cheertul greens appear, 

And western gales unlock the lazy year; 

The joyous birds thy welcome first express^ 

Whose native songs thy genial fire confess; 

Then savage beasts bound o'er their slighted food, 

Struck with thy darts, and tempt the raging Rood: 

AIJ nature is thy gift, earth, air, and sea; 

Of all that breathes the various progeny. 

Stung with delight, is goaded on by thee. 

O'er barren mountains, o'er the flow'fy plain, 

The leafy forest, and the liquid main, 

Extends thy uncontroird and boundless reign. 

Thro' all the living regions thou dost move. 

And scatter'st where thou go'st the kindly seeds of love." 

THE females of brutes have an almost constant fecundity. 
But in the human species, the manner of thinking, the 
character, the passions, the humor, the caprice, the idea 
of preserving beauty, the pain of child-bearing, and the fatigue 
of a too numerous family, obstruct propagation in a thousand 

different ways- 

aDrydco'fl " Lncrice." 
Vol, H,— I I 



ft MONTESQUIEU 

2. — Of Marriage 

The natural obligation of the father to provide for his children 
has established marriage, which makes known the person who 
ought to fulfil this obligation. The people ^ mentioned by Pom- 
ponius Melaf had no other way of discovering him but by re- 
semblance. 

Among civilized nations, the father is that person on whom 
the laws, by the ceremony of marriage, have fixed this duty> 
because they find in him the man they want.<' 

Among brutes this is an obligation which the mother can 
generally perform; but it is much more extensive among men. 
Their children indeed have reason; but this comes only by slow 
degrees. It is not sufficient to nourish them; we must also di- 
rect them; they can already live; but they cannot govern them- 
selves. 

Illicit conjunctions contribute but little to the propagation 
of the species. The father, who is under a natural obligation 
to nourish and educate his children, is not then fixed; and the 
mother, with whom the obhgation remains, finds a thousand 
obstacles from shame, remorse, and constraint of her sex and 
the rigor of laws; and besides, she generally wants the means. 

Women who have submitted to public prostitution cannot 
have the convenience of educating their children: the trouble 
of education is incompatible with their station; and they are so 
corrupt that they can have no protection from the law. 

It follows from all this that public continence is naturally con- 
nected with the propagation of the species. 

3. — Of the Condition of Childrm 

It is a dictate of reason that when there is a marriage, chil- 
dren should follow the station or condition of the father; and 
that when there is not, they can belong to the mother only.^ 

4, — Of Families 

It is almost everywhere a custom for the wife to pass into the 
family of the husband. The contrary is without any inconven- 

bThe Garaniuitfrt. f For tbis m»n. imqTi^ Aklions Uvt 

cLib. L ctp- Till. tiiTc tiavcs. ihr child Blmoit ftlvrt^i iol- 

J"Fmt€r est quern nuptic demoa^ Iowa the lUhon w c^jnditioa of th* 

•tnnt-" Dutticr. 



TIIE SPIRIT OF LAWS 



BahlisliM at Formosa/ where the hii^hand E^ntn^ into 
y oi ihe wife, 

Thb l«w, which fixes Uic family in a succession ol pefM>ns 
of the same sex, f(reat1y contributes, independently of the first 
motives, to the propagalioit uf tht: liitman species. The family is 
A kiod of property: a man who has children of a sex which docs 
not perpettute it is never satisticd if he lia& not tlioi^c whu can 
render it perpetual. 

Names, whereby men acquire an idea of 3 thing which one 
woxild imagine ought not to perish, arc extremely proper to in- 
spire every family wilh a desire ol extending its duration. There 
are pcopk among whom names distinguish families: there arc 
others where they only dislirigni^h pet5und; the Utter have out 
Ibc same advantage as tlie former. 

5. — Of flm scvei^! Orders of lawful Wives 

Laws and religion sometimes ei^Ubliith many 'kinds of civil 
conjunctions; and this t& the case among the Mahommodans, 
where there are several order* of wive*, \\\v eliil<lren of wliom 
are di^tingiiiftlKd hy being Iwm in the house, by civil contract, 
or even by the slavery of the motlier. and the subsequent ac- 
knowledgment of the father. 

It ttould be contrary to reason that the law should stigmatize 
the children for what it approveJ in the father. All these chil- 
dren ought, therefore^ to succeed, at least if some particular 
reason doe* not oppose it, as in Japan, where none inherit but 
the children of the wife given by the Emperor, Their policy de- 
mands tliat Ihe gilts of the Emperor should not he too much di< 
lided. because they subject them to a khid of service, like that 
ufotir ancient fief*. 

There are countries where a wife of the second rank enjoys 
Dcaily the >amc honurn m a family as in our part of the world 
tre granted to an only consort ; there the children of concubines 
are deemed to belong 10 the fint or principal wife- Thu5 it is 
also established in China. Filial respect^ and the ceremony of 
deep moumingr are not due to the natural mother, but to her 
appointed hy the law. 

By means of this fiction they have no bastard children: and 
where such a fiction does not take place, it is obvious that a law 

/Du HaUc, lom. L ^ Idfr flbid. lorn. U. p, uf- 



MOXTESQUIEU 




CO legitimatize the children of concubines must be considered 
OS an 3ct of violence, as the bulk of the nation would be sttgnu* ^ 
lized by soch a decree. Neither is there any rc^l&tion in these H 
countries with regard to children liom in aduhery. The r<^chuc 
live* of women, the locks^ the inclosurcs. and the eunuchs ren- 
der all inJidelity to thdr husbands so diffictih, that the law judges 
it impossible. Besides, the same sword would exterminate tbcj 
mother and the diild. 

6u— 0/ Bastards in differmi Cammmenis 

They have ibereforc no stich ihirg as bastards where 
amy ts permitted; this disgrace is known only in coumric^ 
which a man is allowed to many but one wife. Here they w< 
obliged to Btamp a mark of infamy upon concubinage, and con- 
sequently lhc>' were under a necessity of stigmatiiing the issue 
of such tinlawful conjunctions, ■ 

In republics, where it is ncceasorx- that there should be the 
purest morah, bastards ought to be more degraiJcd than in mon-^ 
archica. H 

The laws made agamsf them at Rome were perhaps too severe* 
but as the ancient institutions laid all the citizens imder a nece?u 
sity of marrying, and as marriage-s were also softened by theM 
permission to repudiate or make a divorce, nothing hut an ex-' 
treme corruption of manners could lead them to concubinage. 

It is observable that as tlic quality of a citiicn was fi very con- 
siderable thing in a democratic government, where it carried 
with it the sovereign power, they frequently made laws in re- 
spect to the state of bastards, which had less relation to the thini 
ilscif and to ihc honesty of marriage than to the particular con 
stitution of the rcpubtic. Thus the people have sometimes ad- 
mitted bastards into the number of citizens, in order to increase 
their power In opposition to the greats Thus the Athenians 
exclude bastards from the privilege of being citizens, that they 
might posse>v a greater share of the com sent them by the King 
of Egypt, In fine, Aristotle informs us that iti many cities where 
tlierc was not a sufficient number of ciii/cns, their baUards suc- 
ceeded to thctr possession!^; and that when there was a proper 
number, tliey did not inherit.* 

S Aritivtiv, " roTlL-* lib. VI, np, fv. f Ibid. lUi. TIT. cap. lU 



I- 



I 



TU£ SPIRIT OF LAWS 



» 



7/— 0/ tlu Father's Consent to Marrioge 

The consent of father:^ is founclcil on thdr authority ; that is, 
on tho right ot property. It is nUo founded on their lovij, on 
ibejr reafon, and on iJic unccrtamCy of chat ol their cliildr^n^ 
vbom youth cun^iies ia a :»tate of ignorance and passion in a 
»iatc of ebriety. 

in the small republics, or sUiguiar instittitions ahcatly men* 
tioncd, the>' miglit have laws \^'hich gave to magiaratcs tliat 
rigtu of inspcctjon over the marriages of the children of citizens 
which nature had alre;idy given iq fathers. Tlie love of the 
public might there cqttal or ^^urjia^ all other love. Thus Plato 
ivould have marriages regulated by tlic magistrates: this the 
Laced^eitonian magistrates performed. 

But in coDimon institutions, fathers have the disposal of their 
children in marriage: their prudence tn this respect is always 
supposed to be superior to thai of a stranger- Nature gives to 
htlicTs a d<'sire of proctinng successors to their children, when 
ihcy lutve almost lo^t the dc^3I^c of enjuymeitt themselves, fn 
ihc several degrees of progeniturc, they sec themselves inscnsi* 
My advAncing to a kind of inmioriality. But what must be done, 
it opprcsnon And ovsricc arise to such a height as to usurp all the 
authority of fathers? Let us henr what Thomas Gage says in 
regard to th« conduct of ihe Spaniards in the West Indios^y 

'* Accordtng (o the nnmhor of the sons and daiighters that are 
marriageable, the father's tribute i* raUed and increased, until 
they provide husbands and wives for their sons and daiiglUers, 
wImj. as soon as they are married, are charfi:ed wiih tribute ; 
vhich. that h may increase, they will sufEer none above fifteen 
rears of age to live immarried. Nay, the set time of marriape 
ippointed fcr the Indians is at fourteen years for the man, and 
ihineen for the woman; alleging that they are sooner ripe for 
fte fruit of wedlock, and sooner ripe in knowledge and malice, 
md strength for work and service, than any other people. Nay, 
tometimes they force those to marry who are scarcely twelve and 
tMitcen years of age, if they find them welMimhed and strong 
in body, explaining a point of one of tlie canons, which alloweih 
fourteen ami fifteen yciira. Nist tnalUia sapfictit <rtQtem." 

He saw a list of ihcsc taken. It was, says lie, a rtiost sliameful 

i "A Nfw Snrvrr of the Wl*l Tndlff." try Thomas Cag*. p. MS* 1^ edU. 



MCKfTESQUIEU 



aSftir. Thtis in an action which ought to be ibc most fret, the 
ludxiiu ve the greatest slaves - 

8. — The same Smbjecl £o$uinM€d 
In England the taw it ^Dcntly abused by ih«^ daughtttv 
iMirying according to their own fancy without consuldng ihcir 
pBTOits* This custom is, I am apt to imagine, more tolerated 
there than anywhere else Uom a consideration that as the laws 
have not establuhed a mooast^ celibac>-, the daughters have no 
other state to choose but that oF marmgc. and Hih they cannot 
refuse. In FraiKC, on the contrar\^ young women have always 
the resource of celibacy; and therefore the law whkh ordains 
that they shall wail for the consent of their fathers may be more 
agreeable. In this light the custom of Italy and Spain niu^t be 
less rational; convents are there established, and yet they may 
marry without the consent of their fathers. 



I 



g.— Of young IVomcn 

Young women who arc conducted by uiarn^e alone to lib- 
erty and pleasure, who hate a mind which dares not think, a 
heart which dares not feel, eyes which dare not see, cars which 
dare not bear, who appear only ro show ihcmaclvcs silly, coo- 
dctnned without intermission to triSes and precepts, have suf* 
licient indticemcnts to lead them on to marriage: it is the youi^ 
men that wart to l»e encouraged- 

la — tVkat it is that dfterminei Marriage " 

Wherever a place is found in which two persons can live com* 
rrofliously, there they enter into marriage- Nature has a suf- 
ficient propensity to it, when unrestrained by the diffictilty of ■ 
subsistence. f 

A risini* people increase and multiply extremely. Tim is be* 
cause with them it would be a great inconvenience to li\"c in 
celibacy; and none to have many children. 'JTie contrary of 
which b the case when a nation is formed. 



11. — Of ihr Snwty of Governrnml 

Men who have absolutely nothing;, such as beggars, have 
many children. Tliis proceeds from their being in (he case of a 
rising people: it costs the father rothing to give hii heart to his 



I 



THE SPIRIT OF LAWS 



offspring, w^n tven in ihc'tr infancy are Ihe ins»rii!npnt« of thiJi 
art. These people multiply in a rich or superstitious country, 
because they do not support the burden of society, but are tliem- 
seLves ihc burden. But men who arc poor, only because they 
Uvc under a severe government; who regard their fields less as 
the source <A their subsistence than 35 a cause of vexation; these 
men, I say. have few chiklrcn: they have not even subsistence 
for themselves. How then can they think of dividing it? Tliey 
are unable to take care of their own per^sons when tlicy arc sick. 
Hovr then can they attend to the wants of creatures whose tn- 
lancy is a continual sickness? 

It is pretended by some who are ap: to talk of things wlncli 
they have never examined that ibc greater ihc poverty ol the 
utbjectSr the more numerous their families: that the inure they 
arc loaded with taxes, the more industriously they endeavor lo 
put them^lves in a station in which they will be able to pay 
them: two sophisms, which have always destroyed and will 
lorever be the de*tniction of monarcliies. 

The ieveriiy of government may he carried to such an extreme 
u lomaketlie natural sentiments destructive of ihe natural senti- 
ments themselves. Would the women of America have refused 
to bear children had their masters been less cruel ?^ 



13-^0/ thi Nuffxhcr of Malts and Females in difftrent 
Countries 



l,.._..,.,..„.,..,...„. 

^Vnort lK>ys than girb.'J It ha« been remarked that in Japan there 
^Vve bom rather more girk ihar boyt:fr all things compared, 

here must be more fruitful wcwien iti Japan than in Europe, 

md consequently it must be more populous. 
We arc informed that at Hamam there are ten girls lo one 

teyx A disproportion like this must cause the number of (ami- 
^vEf5 there to be to the number of those of other climates as i to 
^■JVi, which is a prodigious difference. Their families may be 
^Fnuch larger indee<l ; but there must be few men in circumstances 
" uiBident to provide for so large a family. 









CairMtTop of VoyiA* Hui 



- OOft- 



ndia Cooipui;," vot. 1^ p. us* 



MONTESQUIEU 



Jl.~0{ StQfort Toxvns 

In seaport towm, where mca cxpoic thcm&elx'es to l 
danglers, ind go abroad to li\T or die in distaDt climates^ there 
arc fewer men than women: and yet vre tef more children there 
than in other pbccs. This proceeds from the greater ease with 
which they procure the means of sub^isienc^ Perhaps even 
the oily parts of 6&h arc more proper to furnish that maner 
which contributes to generation. Hus may be one of 
the causes of the infinite number of pcopJc in Japan ^ and China/ 
where they live almost wholly on fUh.' If thi» be the case, ccr- 
tiin monutk rules, whi<:h oblige the monies to live on fich, must, 
be contrary to the spirit of ihc legislator himself. 



>4 



Of the Productions of the Berth Tvhich rcquirt a greaift 
or less Nttmbrr of i/«i 

P&stitre-lands arc but link peopled, because they find cmpluy- 
mciu only for d (tw. Corn-lands employ a great many mtn,\ 
and vineyard* infirilciy more* 

It has been a frequent complaint in Engl an^jpf that the increasQi 
of pORturc-land diminished the inhabitants; ami it ha* been oH- 
served in France tlmt the protli|^iows number of vineyards is one 
of the great cati^e^i of the multitnde of prcple. 

Thoie countries where coabpiT?^ fumtsh a proper sub&tanoe] 
(or fuel have this advantag:c over others, that not having th« 
same occasion for forests, ibe lands may be cultivated. 

In countries productive cf rice, they arc at vast pains in water- 
ing the land: a great number of men mu*l ihcreforc be cm- 
ployed. BcMdcs, th*Tc is less land required to furnish subsUt- 
encc for a family than in those wliicli produce other kinds of 
grwL Id Bite, the land which is ebcwhcre anployed in raising 
cattle serves immediately for the subsistence of man; and the 
labor which in other places is performed by cattle is there per- 
formed by men; so that the culture of the soil becomes to man 
an immense manufacture. 

4 JtpiA U coiQpoied ol I numbu ot 
I lief. *htrp (here Are lokny IiAaki, ftnd 
Ih« >ra li thrre FMrfmcly lull ol fiili, 

« Oilhi flbtiundi m rivrrt- 



I 



I 
I 



, -.- Du lUlCe, lorn, i\. pn. ijo-iM. 

f Tile ireciot ttu«iber ul (ht prnpHr- 
lor* of luid. iB7» Diibop Bumr;^ lia^iait 
more pru&l Jn letlinc tbfilr wool thin 



ihrlr ooni, «nelM*d lh«lr *i1Mmi the 
conmoni, mdr fr> (lerrih w^fh tiunfftr, 
TQK u[> 111 »nni; ihcy ItisIfIc'I oa ■ 
itiviilon ot thf 1oii<l«' (1i« ^oiinc klnc 
even wrcjff on tbkt mhjtCT, An*! procla- 
mitliom vi^fr mtdc Lnfonr ihote who 

the Uiitorr of tbc Kd^rniBUoiL" 




THE SPIRIT OF U\WS 



» 



l5,*-Of the dumber of Inhabitants with relation to the Arts 

When there is an af^nan law, and the lands arc equally di* 
tided, the country ntay be extremely well peoplctt, thougti there 
arebut few arts; hecatisc every citizen rccehtr* from the cultiva- 
tion of his Ian<J whatever U necessary for hU subsijttence, and all 
\\\c citizens together c<msumc aU the fruits of the earth. Thus 
it was til »ocne repuhtics. 

In our present sitUQtion, in which lands an: unccjually dis- 
tributed, (hey produce much more than those who cultivate thcni 
arc able to consume; if ilie arts, therefore, tihould be ncgleciedt 
and nothing minded but agiictiUiirc, the country coufd nol be 
peopled. Tliose who cultivate, or enipby others to cuhivate, 
having com to spare, nothing would t^ngage theni to work the 
following >'ear; Ihc (niits of the earth would not he con*uniefl 
by the indolent ; for tlicsc would liave nothing with which they 
could purchase them. It is neccssan,'. then, that the arts 
ihoutd be established, in order that the prodtscc of the land 
may be consumed by the laborer and the nrtiScer. In a word, 
it is now proper that many should cnhivate imich itiotc than is 
ncc€ssar>' for their own use. For this purpose they must have 
a desire of enjoying super fluilies; and these they can receive only 
from the anificcr. 

The machines designed to abridge ail are not always nsefuL 
If a piece of workmanship is of a moderate price, sucli as is 
eqoally agree^ible to the maker and the buyer, those machines 
which >vouId render the manufacture more simple, or, in other 
words, diminiUi the number of workmen, would be pernicious. 
And if watcr^niins were not everywhere entablished, I should not 
have bc£eve<l them so ti*cful as is pretended, because they have 
deprived an infinite mtiltitude of llieir employment, a vast num- 
ber of persons of the use of water, and great part of tlie land oi 
its fertility. 

id— 7*Af Concern of the Legislator in the Propagation of the 

Species 

Regulations on the number of citizens depend greatly on cir- 
cumstances. There arc countries in which nature docs all; the 
kgishlor tlien lus nothing to do. What need is there of indue* 
tag men by laws to propagation when a fruitful climate yields a 



lO 



UONTESQUIEU 



bvonUe Ihan the ^il; the people multiply, and are destroyed 
by fambc: this U Ihe cu« of China. Hence a fatlier sells his 
daughters and expoocs his children. In TonquiD,^ the same 
causes produce the isme eSccu; so we need net, like tlte Ara- 
bian travcllcTS mcnlioncd by Rcnau<lol» search for the origin o( 
this in their senlinienu on the metcmpsychosisvi 

For the umc reason, the religion o( the isle of Formosa does 
not *»flcr the women to bring thdr children into the world till 
they arc ihirty-fivic years of age: > the priestew, before this age, 
by bruifting the belly procures abortion. 



I 



ly.^^Of Cre<ct ond the Number of t/j Inhabitants 

That cflfccl which in certain countries of the Esst springs from 
plijsical causes was produced in Greece by the nature of the 
government. The Greeks wrrc a great nation, composed of cit- 
idp each of which had a distinct government and separate laws. 
The> had no more the spirit of conqueM and anibilion thaii those 
of Switzerland, Holland, and Germany have at this day. la 
every republic the IcgiHator had in view the happiness of the elti- 
zetii at home, and their po\^ er abroad, lest it should prove inferior 
to that of the neighboring citii's* Tims, with the enjoyment of 
a Ismail territory and great happiness, il wa& ea.«y for the number 
of the citizens to increase to such a degree as to become burden- 
some. This obliged them inces^ntly to send out colonies^ and, 
as ihc Swiss do oow. to let Ihcir men ott to war Nothing was 
neglected iliat could hinder the too great multiplication of chil* 
dren. 

They had among them republics, whose constitution was very 
remarkable. The nations they had subdued were obliged to pro- 
vide subsistence for the citizens, Tlie Lacedxmonians were fed 
by the Helotes, the Cretans by the Pcritcians. and the Thesfia- 
lians by the Pcncsies. They were obliged to have only a certain 
number of freemen, that their slaves might be able to furnish 
them with subsistence. It is a received maxim nowadays that 
it is neccnsary to limit the number of regular troo|j.s: now 



ilbid. p. )6t- 
I See Uic " C> 



vcir*r«*." VOL li p. 41. 

ollfclion 0I Vor>En iVwl 

"Ihc 



EnirlbDtad l^ the nidbliihiHOi of 1I 
ifl tndU Campftor/' «DL L part 
pp. jSjv aV. 



k In T«tor. dlKipllnv, ind m&lLfArr «» 

/The Gaul«» «ho wy Ld th« uni« 
circarMUQcn, jkuJ In Ibv Mmc ouR' 



THE SPJRIT OF LAWS 



XI 



Is 

1^ w!i 



tlw Lacedxniocians were an anny maint^ntd l>y the peas- 
ams; it waj; proper, lliercfore, that this army shcuM be limited; 
whhout this the freemen, wlio had all the advantages of society, 
would incrta^ beyonil number, and the Uborer.s be overloaded. 

Thcpoliticsof the Orct'kj were panicularly employed in regu- 
lating ihe ntiniber of citixens. Plato fixc^ them at five thousand 
and (orty,*n and he vruuld have tlietn stop or <:ncouragc propaga- 
tiionp as wa? nKM»t convenient, by honors, ^lamc, and itie advice of 
the ulU men; he would even regulate the nuribcr of niarrlaf^eA 
in aueh a manner that the rcpubhe might l>c recruited without 
being overcbarged.n 

tf the laws of a eountry. sayft Aristotle, forbid the exposing of 
children, the nimib^r of those bn^nght forth ought to be limited.o 
If ihey have mor* than ihc ntimSer prrftcrihH by law. he advises 
to make the ^fc'omcn misearry before the fetus be formed.^ 

The same author mentions the infamons means made use of 
by Uie Cretans to prevcni their having too great a number of 
ehiJdrcn — a proceeding too indecent to repeal. 

There are places, says Aristotle again,9 where the laws give 
ihc privilege of being citizens to strangers, or to bastards, or to 
those whose mothers only are citizens; but as soon as they have 
1 suflkient ntunber of people this privilege ceases. The savages 
ol Canada bum their prisoners; btit v^heo they have empty cot- 
tages to give ihcm, they receive them mto their nation. 

Sir William Petty* in itU eateulaiions, supposes that a man tn 

bgland is w*oah what he would sell for at Algiers.'" This can 

true only with respect to England. There are coimtrics 

vhere a man is worth nothing; Ibcrc are others where lie ia 

worth less dian nothing. 




i8L — Of the StQU ond Number of People before the Romans 
Italy, Sicily, Asia Minor, Gaul, and Germany were nearly in 
the same stale as Cre<eee: full of small natinn*; that abounded 
with inhabitants, they had no need of laws to increase their num- 
ber. 

t^—Of the Depopulation of the Globe 

All these little repuMics were swallowed up in a targe one. 
and the ^lobe insensibly became depopulated: in order to be 

iitk V. p Tlild. 

f ibsd. lib, rir. cap, ni. 
lUiy pouoiii vicrlmg. 



IS 



MOHTESQUTEU 



convinced of this, we need only consider the slate of Italy and 
Greece before and after the victories of the Romans. 

*' You will ask me." says Livy^ " where the Volsci could find 
soldiers to support ihc war, after haring been .so often defeated. 
There must liave been formerly an iniinite number of people in 
those coitnlnes, which al present would be little better than a 
desert, were it not for a few soldiers and Roman slaves." 

"Tlie Oracle* have ceased," says Plulaich, "because the 
places where they spoke are destroyed. At present wc can 
soircely hnd in Greece three thousand men tit to bear arms." 

" I shall not describe/' says Strabo,' *" Epinis and the adjaccrt 
places, because thc*c countries are entirely deserted. This de- 
population, which began long ago, still continues; so that the 
Roman j^oldicrs encamp in the houses they have abandoned." 
We fmd tlic cause of tlus in Polybius, who »ays that Paulujt 
^milius, after his victory, destroyed seventy cities of Epirus, and 
carried away a hundred and 6fty thousand slaves. 

20.— T/ja/ the RomoTts were under the Necessity of making 
Laws to cficourage the Propagation of the Species 

The Romans, by destroying other*, were tliemseives de- 
stroyed: incessantly in action, in the heat of battle, and in the 
most violent attempts, they wore out like a weapon kept con- 
stantly in use. 

1 shall not here speak of the attention whh which they applied 
themselves to procure citizens in the rootn of those tl»ey lost,* 
of the associations they entered into, the privileges they be- 
fttowedp and of that immense nursery of citizens, their slaves, 1 1 
shall mention what they did to recruit the number, not of their 
citizens, but of their men; and as these were the people in the 
would who knew best how to adapt their laws to their projects, 
an examination of their conduct in this reject cannot be a matter 
of iiidif]tcrcuce. 

21.^0/ the I^ws of the Romatts relating to the Propagation 
of the Species 

The ancient laws of Rome endeavored gready to incite the 
ciliatens to marriage. The Senate and the people made frequent 

t t.lH. VT- iMffmHon* an the Cauwt or the lti*« 

I UIl VIT' p. 406^ uid DedcEuiud oj ihe Rooua Gmid> 

H t hare irulAl of thli Id lli# " CoO' tat." 



THE SPIRIT OF LAWS 



^icgolatioas on thu fiubject, a« Augustus says in his speech rc- 
llied by Dio.** 

Djony«iii3c HalicamAsftUK fv cannnt bplt«v« HiAt ^U^r the death 
M t\\Ttc hundred and five of the Fabii, exterminated by the 
Vcientcs, there rcniiiinctl no more of this faiiiil> than one single 
child: because the ancient law, which obliged every citi£cn to 
n!arr>' and to educate all his children, wa& still in force.-' 

Independently of the laws, the Censors had a particular eye 
upon mafna;;es, and according to the exigencies oE the republic 
mgaged them to it by shame and by punishmenls^y 

The corruption of manners that hcgan to lake place contrib- 
uted vastly to di^ist the cifizens with ntarria^e. which was pain- 
bl to those who had no taste for the plcastire^ ot innocence. This 
i} the purport of that speech which MetcHus Numidicus, when he 
was censor, made lo ihe people:' " If it were possible for us to 
6j williuui wtve>, we should OeHvcr ourselves (ruia this evil: but 
u nature has ordained that wc cannot live very happily with 
ihcin, nor subsr^it without them, wc ought to have more rc^rd 
to our own preservation than lo iransicm gratitica lionet/' 

The corruption of manners <)estroyed the censomhip, which 
uafi itself established to destroy the corruption of manners: for 
•ben tht* depravatirin bi^^aitie penrral, (he Censor lost his 
power.* 

Civil discords. Iriumviratw. and proscriptions weakened Rome 
more than any xs-ar she had hitherto engaged in. Tliey left but 
Icwcitizen*,* and the ii-reatest pad of thein unmarried. To rem- 
c\y this last cvii. Ca?5ar and Augnstus re-established the ccnsor- 
ihip, and would even be censors themsclves.e Oesar gave re- 
TOd» to tboMj who had niany chik!rcn,<J All women under forty- 
frre years of age who had ntitho- husband nor children were for- 
bttfen to wear jewels or to ride in litters;<an excellent method 
Ums 10 attack celibacy by the power of vanity, Tlie laws of Ati- 
gmtus were mere pressing: / he imposed new penaltiL'S on such 

•Uy. Uyi. in*d< 4 Kirvcjr of th« l^nman cHtcni, 

■ L*. II. found iliar* ••»» n<^ nu.pr lh«n one 

Ijaike Xnr Df Komc V7?. hurdrrrl jind fifty ThitiiAind h«tf> ot 

in " ALBHif." 

jnto, hh xi.nr- stinoniui. "Uf* 

of t>»ir/; chill, iLi App&«i), lib. u. 
/tXo. lib UV. 





MONTESQUIEU 



as were not nurried^ and incrcai^rd the rcu'ardf both of 
mho w«rt niarned and of tlio^ who had children. T»citu« calb 
ihne Julian 1aw«;ib to all appearance ihcy were founded on tlie 
ancietu regulations made by the Senate, ihc people, and the 
Censors. ^^ 

'Fhe law of Au^Mtu niet with innumerable obstacles, andjH 
thirt>'-foiir years after it had been rtade the Roman knighu in- 
sisted on it» betii^ ^l>oIi^hnU He placed on une side ;^uch as 
were married, and od the other side those who were not: these 
[asl appeared by far ihe greatest number; upon which the cid- 
zcns were astocished and confounded- Augustus, with the grav- 
ity of the ancient censors, addrcs^d them in this manner : — i ^| 

" Wliilc sickne&i and war iirialch aw:ty %o many citizens, whar' 
must become of this state if marriages arc no longer contracted? 
The cily does not consist of houses, of porticos, of public places^ 
but of inhabitants^ Vou do not sec men like th^^ mentioned 
in Fable ^Ulnt^g out of tl>c earth to take care of your affairs 
Your celibacy in uoi owicg lo the de^re of living alone; for 
none of you cats or slccp» by himself. You only seek to enjoy 
irregularities undisturbed. Do you cite the example of tlic Ves- 
tal ViigittR? Hyou preserve not Ihc laws of chastity, y*^ ought 
to be punished like them, Vou are equally bad cilizens, wlietlier 
yotir example ha« an mfluence on the rest of the world, or 
whether it be disregarded. My only view i* ihe perpetuity of 
the republic, I have increased the penalties of those who have 
disobeyed; and with respect lo rewards, they are such as 1 do 
not know whether virtue has ever received greater. For less 
will a thousand men expose life itself: and yet will twt these 
"1K3KC yott to take a wife and provide for children? " ^1 

He made a law, which was called after his name, Jtilia atiiJB 
Papla Poppaca, from the names of the Consuls for part of that 
ycar> The greatness of the evil appeared even in their being 
elected: Dio tells us that they were not married, and that 
bad no children.' 

This decree of Augustus was properly a code of tawi. ar 
fyslenLalic IhkIv of all the reguUlloiiw iliat could be made on this 

ita tTic ftn of Bamr 7j& 



t^fflf 



in. 



Jffliaa roc»tiope»-"— ^ Ann*!."" IHt 



IfVI. 



t T hftvr vbri^ffH fbb *pHch, which 

ift <pf tediovt IfinjriHj i( » tt> be h>EiB4 In 
Dio, lih, l-VI- 

pvB> S4bieiu.-DIo, Ub. LVL 




THE SPIRIT OF LAWS 



■S 




mbject. The Julian la^^-s were incorporated in it, and rccdved 
greater 5trci3g:t!Ln It was so extensive in its use, and liad an in- 

lencc OD so many ttimgs, that it fonncd the finest pan ol the 
law or the Romans, 

Wc Anil paria of it dispeiicil in the precious fragments of U1- 
4ao,» ui the l«aws of the Di^ciil, collected (luiit aulhur^ wliu 
'Woic on the Papian Uw>, in the historians and others wlio liavc 
cited tbctn, tii the Thcodomao code which abolUhed tliem, and 
in the works of the (athen^, who have censured them, without 
<k>ul>t from a laudable »al for the things of the other life, but 
*iih very little Vtiowlcdge of the affairs of thii, 

T^if^e hwi. had nuny heads'> of whirh we know rhirty^iive. 
But to return to tny subject as speedily a& possible. I 5ha)l hegin 
«ith that head which Autus Geltitis informs us was the seventti, 
and relates to the lionors aiid rewards c^ranted by that law.^ 

The Romans, who for the most part sprang from the cities of 
Ibe Latins, which were Lacedn^mnnlan colonics? and hnd re- 
ceived a part of iheir laws even from those cities/ had, like the 
Lacedemonians, stich veneration for old age as to give it all 
honor and precedence. When the republic wanted citizens, slic 
gmiied to marriage and to a number of children the privileges 
vhich liad been given to age.' She granted some to marriage 
ilone, independently of tlie children which might spring from it: 
this was called the right of husbands. She gave oihers to those 
who had any children, and larger Mill to thuse whu had Uiree 
diildren. These tJtrec things must not be confounded. These 
hsl ti^ those privileges which married men constantly enjoycil; 
», for example, a particular place in the thcaire : ' they had those 
•liieh could only be enjoyed by men who h;id children, ard 
wliich none could deprive them of but such as had a greater 
nuniber. 

These privileges were very extensive. The married men wlio 
Ittdthe most children were always preferred, whether in the pur- 

toitor in the exercise of honors.** Tlie Consul wlio had the most 



uwu ' 4MiflW«>th*4 very njihdr b*' 
,*tU j^h U <vl4d hi Ihc iffih Uv ff 



Nt flla QopiiftfuA." 



rtht depuTiei of Rome. *ho wer* 

■vni to ttarrVi Infn the ItKt □! ^'rc«cr, 

■went IQ Albcnt, ind ic ihc cttic* ol 

1t4ly. 

f Aulufe OflHuiL, lib. II- c*fx X*' 

f ftti^lnniiiB, m '" AHpi^rft ' r*i» ■li'C- 

■ Tfldtu*. lib, 11, i " Vt numera* 

tlhrmmm in rviut^diili prvpcllnvC, 

quod kx Jubqbtt'" 



MONTESQUIEU 



numerous offspring was (he first who rccdvcd iht fasc«;p ht\ 
had his choice of the provinces; tv the Senator who had most chiJ-' 
drcn had his name written 6r£t in the csLtalogue of Serators, and I 
was the first in giving his opimon in the Senate,-*" They might 
cvei: stand sooner than ordinary for an office, because every child 
gave a dispensation of a yearj* If an inhabitant of Rome hadfl 
three chililren, he was exempted from all trouhlcsomc offices.' 
The frec-bom women who had three childTcn. and the treed- 
women who had four, passed out of that perpetual tutcl^e a ia ■ 
which they had been held by rhc ancient laws of Rome> 

As the> hnd rewards, they had also penalties/ Those who 
were not married could receive no advantage from the will of any ' 
person that was not a relative ; ^ and those who, being married^ I 
had no children, could receive only half.' Th; Romans, ^y^ 
Plutarch, marry only to be heirs, and not to havclhcm/ 

The advantages which a man and hi;s wife might recnvt from I 
each other by will were limited by [aw.« If they had children of 1 
each other, they might receive the whole; if not, they could re- ' 
ceivc only a tcnih pan of the Aucces&ion on the account of ntar* I 
riagc ; and if they had any children by a former venter, aa many i 
tenths as they had children. 

If a husband absented himself from his wife on any other 
cause than the aiTairs of the republic, he could not inherit from ■ 
her.A ' 

The law gave to a surviving Iiiisband or wife two years to 
marry again,' and a year and a half in case of a divorce. The 
fathers who would not suffer their children to marry, or refused 
to give their daughters a portion, were obliged to do it by the ^ 
magistrates./ 

They were not allowed to betroth, when the marriage was to 1 



vAnlui G«lllui, lib. II. cap. iv, 

" ' i;b. XV. 



frTtciiij*. " Aniul' 

w S*« L#w 6, itcL %. 

y Sh 1-*w m H. " Ac ram^'ili." 

t L<w lit ant! jd If. "d< vicAliooe ct 

n " KfJr <^T Lflpian." rit. n. *m^ J- 

I* Plut*icb, " L-ie of Kutna. 

f S« tlic '' FrtiT'nent" '^t Uliiisn." tU- 
■4> 11. 1^ ir. «°d >B. wbich cqfBv<jBe ono 
Cl lb* ta/bt\ t%list\tU pifcrt of ihc kii' 
and dvil law of ih* SanuuL 

rfSaon. Mh. ^. c^p, m. Thfv could 

Ulpinn," (i1. ifi. aec t, 

" (t« Inuin, iiarnii otib- et orbiL'* 



/ " Mc^l Work-." " Of iln tovB ol 

f SfT ft RiLir? pjirljcitltr account of ltii< 1 
Jn Ibtc " Frts ot Ulpiiui," UL u uj j& 

Albiil^ lit. lA, *rc- 1- ( 

• lh\A. UC 14- It rc^na llid fir*| JtilUa j 
Uvi Hllowtd thrve ^vitl— " Spefch cf ' 
Aujpaafu>t" Irt l^'ot lih- LV*!- i Sdpiq- 
nmin "Life of AuHwaTos," cap, junlV. 
Other Juli4ri U^a jrmniect but one r**f I 
lh« Papun lav jtiv? iwo,»" Frtff. of 
UtpUm. ttr^ 14. Thc'c tiiwa w^c u-f4 
»nabb lo the pa>plf; Au^uitnt. 
ih*T«for«, tofi*nci1 i>r «lr*«i|tl>*m?tl 
thfloi DM lh«y wtrv nton or Ich disponed 
lO comply ivifh theriL 

; Thin «4t (h4 icTh h»<f of ihv F«pita 
law>-^L^C. 10 IL "^d« tiiu DuptiBcvQu" 



THE SPIRIT OF LAWS 



«» 



I 



be deferred for more than two years: ^ and z% they could not 
marrj a girl till she was twelve years old, they could not be be- 
trothed lo her till she was ten. The Uw woulO noi suffer them to 
trifle to no purpose;' and under a pretence of being belrollicd, 
to enjoy the privileges of marrifrd men. 

It was contrary to law For a man of ^xtv to ttntny a worrun 
oi fifty." As they had given great privileges to married men, 
the law n-ould not suffer them to enter into useless marriages 
For the same reason, the Calvisian scnatus-corisuKum declared 
the raarriage of a woman abov<: fifty with a man less titan sixty 
lo be unequal: " so that a woman of fifty ye^n of age cotild not 
marry wilhciut mriimng thv pcnallirs of thc^c laws, Tiberius 
added to the rigor of ihe Fapian law.o and prohibited men of 
sixty from marrying women under fifty; so that a man of sixty 
could not marry in any ca^e whatsoever, without incurring the 
penalty. But Claudius abrogated this law made under TibcriusJ 

AH these regulaliom were more conformable to the cliinate of 
Italy than to that of the North, where a man of sixty years of age 
has still a con^derable degree of strength, and where women of 
fifty are not ahvays past child-bearing, 

Tfiat Ihey might not be unnecessarily hmited in the choice 
they were to make, Augustus permitted aU the frcc-bom citizens 
who were not senator* 9 to inarr)" freed-women/ The Fapian 
law forbade the Senators manying frccd-womcn/ or those who 
bad been broughi up to the »tage; and from the time of Ulpian,' 
tree-bom pcrivons were forbidden to marry women who had led 
a disorderly life, who had played in the theatre, or who had btcn 
GOademned by a pwlilie stnlcnee> Thin must have been entab- 
EisKed by a decree of the Senate- Dunng the time of the republic 
they had never made laws like these, because the Censors cor- 
recte^l thi« Icmd of disorders as soon as Ihey arose, or else priN 
vented their rising, 

Con5tantinc made a law u in which he comprehended, in the 
prohibition of the Papian law, not only the Senators, but even 



kSc4 ty*K tRk LlV.. ihflno tfCi Su^ 
loB-u. in " OcffTiO," ctp- mxiv. 

i Iha. libi LIV ; ■rJ in '.he ^amr Dlo, 
Iba " ^«b of Apruilui " Ijli. LVL 

■t*-Fnff Af Ulolui," III. 1^ pBd the 
tyth U». cod, "dc miptiU" 

• Ibi4- tit lA, we- > 

»Sc« SiMtoaiiu in " CUudio," cip« 



Hiid (h« " Pru. of Ulpian." llL 16. ift. «. 

tit. ij. 
f ** AutuXui'i vpccrrK'* In Die. liK 

#"Prtiir- ct L'luinn," p»p. niii-. md 
Ihe ^ah b» a. "oc riiu nuptUrum.^ 

I Thid- [tl- ij mid lA- 

u See Law i, in co^ "dc naiur. Ub^' 



i8 



MONTESQUIEU 



Rticli as hart a considerable rank in the sUlc. wllhout mentioning 
ptTsons in an inferior si;ition: ihi* coiiMilulcd the law of those 
times. These marriages were therefore no longer forbidden, ex- 
cept to the free-born comprehended in the law of Constantine. 
Justinian, however, abrogated the law of Constantinept* and per- 
mitted all sorts of persons to contract these marriages; and thus 
\i'e have acquired so fatal a liherty. 

It is evident th^E the penalties inflicted on such as married 
contrary to the pralnbition of the law were the same as those 
inflicted on persons who did not marry. These marriages did not 
give thcni any civi]adv9irtai£c;u' for the dowry ^ was cunftscaled 
after ilie di-alli of the wifo 

Augi]?^lU5 having adjudged the succession and legacies of those 
whom these laws had declared incapable to the public treasury^ 
they had thr Appearance rather of 6gcal than of potitkal and 
eivU laws. The disgust they had already conceived at a burden 
which Appeared too heavy was incrrascd by their seeing them- 
selves a continual prey to the avidity of the treasitry. On this 
account, it became necessary, under Tiberius, that these laws 
should he softened :o that Nero should lessen the rewards givca 
out of the treasury to the informers ; * that Trajan should put a 
stop to their plundering ;f that Severus should also moderate 
these laws; d and that the civilians should consider them as odi- 
ous, and ir all their decisions deviate (rem the literal rigor. 

Besides, the emperors enervated these laws * by the privileges 
they granted of the rights of husbands, of children, ard of three 
children. More than this, they gave particular persons a dis- 
pen^tion from the penalties of these laws.' But the regulations 
esTahlishcd for the public utility seemed incapable of admitting an 
alleviatioa 

It was highly reasonable thai dicy should grant the rights ol 



I 






tv L*w T» a. "*dfi frpflfib. libcrtomm." 
HC-^; " Pntf- of UlpiBQp" lit' 1^ uc i 

« Fiaa- ol T-TlpiBJi.'* |JI, re, Mt *. 

>Sf*^^k XjCVI chip, xiii- 

" Fnif. of Ulpiin," lit. tK, tnA lh« fmly 
Ihv tn end. "de C*^uC- loflfn^." 

p*i-''— T*rn, " Ann*1/' ti^- MI. f ■■>■ 
b ir« rrdiicrd ihem to (b« lourtli part^ 
— Sutl«Alii<, 'nt " Ntrotir " c«p, m- 

4 Scvcnu *Ktaid«4 eves to iwialj' 



f vc mt* tor ihc riaUi. and (o tfrerrty 

lor lli« Ifitbalci. itie unic Jnc^l bf tUt 
Ptffiin Uw. *■ we tet bj (omjitriatf (h« 
" PrtLi;, ot LTJpi.n." nt. iC, with «1ut 

TertuliiMi «jr<, " Ajwl" cap, W. 

hi% tprccU ro ih# pcopU. ol the Abvica 
which vcic uTicaay IntraduMd. thM ikcy 
r«nTrd iht rtm# pt\^\fgtt for adopted 

lib' V. cap, Kit. 

t ^99 thm ymt Uv l|. " d* ritv BUpUfr > 

mm." 



THE SPIRIT OF LAWS 



>9 






dtHdrcfi to tlic vcMatsjf wliom religion rcUiincd in a necc».%ary 
virginity; itwry gave, tn the same manner, tlic privilege of mar- 
ficil men to soldier^,* because ibcy could not marry. It was cuk- 
lomar}' to cxenipl the emperors from the constraint of certain 
civil laws. Thus Aitgnstns was freed from the cotintrairt of the 
Uw which limited ihe pow^ of enfranchif.ing»> antl of that whieli 
*L»t F>oumIs to the right of bequeathing by tcslamcrt,/ Tlic^ 
were only particular eases; but. at last, dispcnsatJons were civen 

ithout discretion, and the rule itself became no more than an 
[exception. 

The sects of philosophers had already introduced in the empire 
t dUpOMtion that estranged them from businesH'^a disposition 
vhieh could not gain ground in the lime of the republic,*^ when 
everybody wa* employed in the arts of war and peace. Hence 
irose an idea of perfection, as connected with a hfc of specnlatioi) ; 
hence an estrangement from the cares and embarrassments of a 
family. The Christian rc]igt;jn coming after this philosophy 
fixed, if I may make use uf ilic cxprcSision, the ideas wlucli tlut 

»btd only prepared. 
Cbrbtianily stamped its character on jurisprudence; for ctn- 
|JBnliu cvtr ft connection with the priesthood. This h visible 
boBitbeTheodosian code, which is only a collection of the de- 
crees of the Christian emperors. 
A panegyrist of Constantine t ^id (o th.nt emperor, " Your 
laws were made only to correct vice and to regulate manners: 
yoiL have stripped the ancient laws of that artifice which seemed 

ktohavc no other aim than to lay snares for simplicity." 
it is certain Iliat the alterations made by ConstatUine took their 
risedlher from sentiments relating to the establishment of Qiris- 
taii^, or from ideas conceived of iLs perfcciionn From the fir*t 
proceeded tho«e laws which gave such authority to bisliops. and 
*hjcb have been the foundation of the ecclesiastical jurisdiction; 
*>fKe those laws which weakened paternal authority,m by depriv- 
ini tbc lather of his propcny in the possessions of his children. 



XbiMdi la Ihe Piplin iiv mv 
>« LXvL Num* hdcl ■mnrtJ ih<m 

y —tilt privilcK* oi •raiucn vrha ba<l 

<W cklldroa: t£il !•> ol luvmo no 

BMaq— Plocanb, " L<1* of F^um*^" 

tfumpvoHd ibtm by ClaudiuL 

'm^ vpud nia> fl. "At iranvrf\i9- 



I Dio. lih. LV, 

*<!«. in CT«ro'4 "OfficH." titn tm- 
tlmrniK on ihfl tpirit oi •p^mlftilmi, 

I Natal Hit, " in jpflnvsyrl^o C^ntun^ 
tini." innti jJt, 

pr 5^c« Lnvfi I, 0. ], irx Iht Th^»'1'*>>iin 

B«narU," Mf-, an>t tliv only Ikw if* the 
eamf vcrilr. " d* bQJtLt qux Altai UrruL 



MONTESQUIEU 



To exicfld a new rdigioa. tbcy were obliged to take away tht 
dependence of cfaildrcti, wbo arc alwajrs Icut attached to what is 
afccadjf eatablbhcd, 

TIk laws made with a view to Chrutlan p^cction were more 
particutarljr tbose by which the petialtiea of the Fapian laws were 
abcli&hed;« the uomamed were cqu^Uy exempted from them, 
with tho«e who, bem^; married, had no childreiu 

"Theie laws were eitabh^hrd/* says an ecclesiastical hislo- 
rtan^ " a^ if the mnlTiplicatioii of the human species waft an tU 
feet of our cart; instcjid of being »eosibte that the number i-t 
increased or diminished, accofding lo the order of Fro\-idencc/' 

Principles of rcUifton havie had an cxtraordinar}- influence on 
the propagation of the htunan species. Sometimes tbe>' have 
promoted it, as among the Jew*, ihe Hahommedans* the Gaurs, 
and the Chinese; at others they have put a damp to it, as was 
the case of the Romans upon their conversion to Christianity. 

They everywhere ince&sanily preached conlincncy; a virtue 
the more perfect because in its own nature it can be practised but 
by very fcw- 

Constantine had not taken away the decimal bws which 
granted a greater extent to the donations between man and wife, 
io pfoponion to the number of their children. Theodosius, tlie 
younger, abrogated even these laws.^ 

JtiBtinUn declared all those niarnages valid which had been 
pFohibtted by the Papt:in laws.ff These ]^\\st rc^jairc people to 
marry again: Justinian granted privileges to those who did rot 
marry again r 

Hy ihe ancient institutions, the natural right which evrrynne 
had to many and beget children could no* be taken away- Thus 
when they received a legacy .j on condition of not marT>ing, or 
when a patron made his frecd-man swear ' that he would neither 
marry nor beget children, the Fapian hw annulled both the con- 
dition and the oath." The clauses on corlinuing in widowhood 
established among us contradict the ancient law, and descend 
from the constitutions of the emperors, founded on ideas of pcr^ 
flection. 



u1a£^ ontc. cod. Tttcotf- " de Infirm. 



r^-^' 



« Leg. SMiClmWS, cod. " dv OdpEll*." 



r"NoTdl" ttr. «p, UL; " KoYtn.-* 

ti& op, V. 
f i^f. S4 fl' "d* condiL H dcmonrt/' 
>1«. i, ux. 4. ■■ dc lurt purooitu*." 
U Pt«l. ia hl4 " ScntenecA," lih» UL 

Hl 4. >K, 15. 




THE SPIRIT OF LAWS 



VI 



lier« h tto law thai contains an express abroijalion of tlie 
privilege* anil honors which the Romans ^ad granted to mar- 
riages, and to a number of children. But where c«libicy had the 
pre-eminence, marriaffe could not be held in honor ; and since 
they could oblige the officers of the public icvcnue to renounce 
so many advantages by the abolition of the penalties, it i& easy to 
perceive that with yet greater case they might put a stop to the 
icward;>. 

The same spiritual reason which had pcmiitccd celibacy soon 
impo^d It even aj> necessary. God Eorbid tliat I should here 
speak against celibacy as adopted by religion; bin who can be 
silent, when ii is built on hbeninisrii: when ihe Iwo sexes, cor- 
rupiing each other e\*cn by the natural sensations themselves* 
fiy from a uniom which ought tu make tlum belter, to live in that 
>A'liich always renders them worAC? 

It is a rule dravm from njitiirc, that the more the number of 
marHagea i& diminished, Uie more corrupt arc (hose who have 
entered into that f^tatc; the (ewer married tncn^ the 1c;;« fidelity ts 
«licrc m marriage; as whoi there arc more thieves, more theflfi 
AJ-e commit led. 

22. — Of th€ Exposing of Children 

The Roman policy was very good in respect to the exposing 
oi children. Romulus, says Dionysius Halicaniassus.f laid the 
citizens under an obligation to educate all their male children, 
and the eldest of their daut:hters. H the infants were rleformcd 
ftxid nftODStrous, he permiue<l the exposing tliem, after having 
shown tliem to five of their nearest neighbors. 

Romulus did not suffer ihcm lo kill any intanis under three 
years old: » by which means he reconciled the law thai gave to 
fathers the right over their children of life and death with that 
*l6ch prohibited their being exposed. 

We fird ^tso in Dionysus Halicarna^sus ' that the law which 
obliged the citizens to marry, and to educate all their children. 
^n«tn force in the 277th year of Rome; we see that custom had 
mtraiiicd the law of Romulut which permitted them to expose 
iW younger datighter*^. 
W* have no knowledge of what the law of the Twelve Tables 
[<riadf in the year of Rome 30:) appointed with respect to the ex- 

• •*AaiiQDUie* of Some," libu IL wlbid. xlJh. IX. 




MONTESQUIEU 



l>osing of ch3dr«i, occtpt horn a pa&sage of Cicero j wb< 
ing of ihc ofBce of trilninr of the p<^pic, £ays that soon 
birth, like tlie monslroiu Infant of Ihe law of the Twelve Tables, 
i[ wa5 stitlcH; (be infant that was not monslroiis wa? therefor* 
preserved, and the law of the Twelve Tables nude no aiteration 
in the precedinff institutions. 

" Tbe Germans," Mys Tacitus.* " never expoae Iheir chil 
among them the best manners ha\c more force than in 
places the best laws/' The Romans had tlKreforc laws against 
this custom, and yet they did not follow them. We find tK> Ra- 
man law that permitted the exposing of children;^ this was. 
without doubt, ail abuse introduced louards the decline of the re- 
public, when luxury lObbed them ol their freedom, when %^~cahh 
divided was called poverty, when the father believed that all was 
lost which he g^ve to his family, and when thb family was dis- 
tinct from his property. 



ration^ 

Idraifl 

otbe« 



23.— 0/ the State of the World offer the Destruction of the 

Romans 

The regulations made by the Romans to increase the number 
of their citizens had their eflfect while the republic in the full 
vigror of her constitution had nothing to repair but the lo^es she 
sustained by her courage, by her intrepidity, by her Tirmness, her 
love of glory ard of Wnue, But soon the wisest taws could not 
re-establish what a dyitig republic, what a general anarchy, what 
a military government, xvhat a rigid empire, what a proud des* 
poiic power» what a ieeble monarchy, what a stupid, weak, and 
superstitious court had successively pulled down. It might, in- 
deed, be said that they conquered the world only to weaken it, 
and to deliver it up defenceless to barbarians. The Gothic na- 
tions, ihc Getcs. the Saracen* arid Tartars by turns harassed 
them; and soon the barbarians had none to destroy but barbar- 
ians. Thus, in fabulous times, after the inundations and :he del* 
ugc, there arofic out of the earth armed men, who exterminated 
one another. 



1 



I 



jLib. lit- "At WiW 
«"t>« Mnhbuf Otf^Btnorum," 
aTbcn ii ng litU od ihit tubfrtt Ip 



the D^ff«i( 



the tiEle of the r'>d< nn 




THE SPIRIT OP LAWS 



«3 



24. — The Changes xi'hich happened in Europe ivith regard to 
the Number of the Inhabitants 

In tli€ siitc Europe was in one would nol imagine it possible 
for it to be retrieved, especially when under Charlemagne it 
(ormed only one vast empire. Bui by ihe nature of government 
u that time it became divided into an infinite number of petty 
K>vcreigniie$, and a« the lord or sovereign, ^^ho resided in hi$ 
village or city, was neither great, rich, powcdul, nor even safe 
but by the number of his subjects, everyone employed himsell 
with a singular atleniion to make his little country Itourii^h. This 
mcccrdcd in such a miituiet that iiijlwiilistaitding t!n: irregular- 
Itjcs of fiovexiimeut, tJic wiiU of iJiat Knowkdgc whith Iiaa Mnc« 
been acquired tn commerce, and the numerous wars and <ii5- 
ordcTs incessantly arising, most countries ol Europe were better 
peopled in those day* than ihey arc even at prctcni, 

1 flaw nol lime to treat fully of tbh subject, but I shall cite 
Iheprodigiou^armicfiongagrd in ttiecntsadcs, composed of men 
of all coiinlrie*- Puffendorf say* that in The reign of Charles IX 
there were in France twenty millions of racn-ft 

It is the per;>ctual reunion of many little states that has pro- 
duced this diminiTtion. Formerly, every village of France was a 
capital; there i* at present only one large one. Every part ot 
the slate wss a centre of power; at present all has a relation to 
one ccntTCp and this centre is in some measure the state itself. 



35. — The same Subject continued 

Enrope, tt is tnie, has for these two a£;es past j^eatly increased 
ils navigation; this has both proaircd and deprived it of inliabi- 
Unu. Holland sends every year a great number of mariners to 
lie Indies, of whom not above two-thirds return : the rest either 
pfriih OT settle in the Indies, The same thing mu&t happen to 
fttry other nation concerned in that trade. 

Ve most not judge of Europe as of a particular sl;ite engaged 
atone in an exlcmive navigation. This state would increase in 
pwp!c, because all the neighboring nations would endeavor to 
^ft a share in tliia commerce, ajid mariners wotild arrive from 

'^IdlroduCtjOn ty tbe Tiitt^^y of Ku' Fnnc* wu ntwwr to poputoui a* tt (hsl 
*■(•.'' thap, V. 0f Pf*tH9. Thm K ob- llmv. ah* d'd nai povtait tveaif aUU 



UONTBSgUlEU 



all pari*;, Europe, separated Irora tJie rest of llic world by relij;:- 
icii^f b> vast seas and deserts, cannot be repaired iq this manner. 

From all this wc may conclude that Europe is at present in a 
eondilion to require laws to be nude m favor of ihe pfDpa^tion 
of the human species. The politics of the ancient Greeks Lnce*- 
sanlly complain of the inconveniences attending a republic, from 
the excessive number of citizens; but tlicf^otitics of this age call 
upon us to take proper means to increase ourf^ 

27. — Of th^ La^ made in France to encourage the Propagation 
of the Species 

Louis XIV appointed particular pensions to those who had 
ten children, and much larger to such as had twelve.rf But it is 
not sufficient to reward prodigies. In order to communicate a 
general spirit, which leads to ihe propagation of ihe species, it ts 
necessary for us to establish, like the Romans, general rewards, 
or general penalties. 

28. — By whet Means we may remedy a Depopulation 
When a state ts depopulated by particular accidents, by wars, 
pestilence, or famine, there arc ^lU ruourccs left- The men who 
remain mxky preserv*c the spirit of industry ; ihey may seek to re- 
pair iheir misfortunes, and c;ibrnity itself may make them be- 
come more industrious, Tliis evil is almost incurable when the 
depopulation is prepared beforehand by interior vice and a bad 
government. When this is the case, men perish with an insensi- 
ble and habitual disease; bom in misery and weakness, in vio- 
Icnce or under the infiucnce of a wicked administ ration, they sec 
themselves destroyed, ard frequently without perceiving the 
cause of their dettruclion. Of this we have a melancholy proof 
in the ccunirics desolated by despotic power, or by the excessive 
advantages of the clergy over the laity. 

In vain shall we wait for the succor of children yet unborn to 
re*estab]]sh a state thus depopulated. There ii not time for this; 
men in then- solitude arc without courage or industry. With 
land kufTicienl to nourish a nation, they have scarcely enough to 



I 



1 



«lnioit on CTC17 tide^ 






THE SPIRIT OF tAWS 



nottftsh a family. Th« common people have not rvcn a property 
ID ihc mijcrici of the coiimry, llnl U, in the fallows wiili which 
tt al>ouad5. Tlic clcrg)-, the prince, the cities, the great men, 
aod some of the principal citizem inscnMbly become proprietors 
of ill the land which lies unciihivated ; the families who are 
mined have Icf: their fields, and the bboring man h desiitule, 

111 this situation they should take the satne measures through- 
out Ifac whole extent of Elie empire which the Romans took m a 
pan of theirs; they should practise in thdr distress what these 
observed in the midst of plenty; that is, ihey should distribute 
land to all the families who arc ill want, and procure them nia- 
taials for cleaving and culuvatlng \L This di^tribuuon ought to 
be continued »o long d:& there h a man to receive it, and in ^uch a 
ntuiner as not to lose a moment that can be industriously em- 
ployed. 

291—0/ H0Sfitcts 

A man is not poor because he has rothin{[, but because he docs 
not work. The man who without any dc£;rce of wealth has an 
cmploynient is as much at his rase as he who without labor has 
an bccvne of a hundred crowns a year. He who has no suh- 
stance, and yet Ijas a trade, is not poorer than he who, possessing 
len acres of land^ is obliged to cultivate it fur his subsistence. 
The mechanic who gives his art as an inheritance to his children 
Aas kit them a fortune, which is niuttiphed in proportion to their 
viambcT. ft is not so with him who, having ten acres of land, 
<Jivide3 it among his children. 

In trading conntrici, where many men have no other subsisl- 
VDce but from the wis, i]ie slate is frequently obliged 10 sufjply 
*he necessities of the aged, the sick, and the orphan. A wcU- 
s-cgulated govcrnmcnE draws this support from the arts them- 
selves. It gives to some such employment as they arc capable of 
performing; otiien are taught to work, and this teaching of it- 
sellbccomesan employment. 

The alms given to a n-tkrd man in the street do not fulfil the 
obligations of the slate, which owes to every Ciiirtn a certain sub- 
tiitence, a proper rourishnient, convenient clothing, and a kind 
of life not incompatible with health. 

Aurcngzcbe, being asked why he did not build hospitals, said, 
"1 will make my em[»rc so rich that there shall be no need of 



«6 




MONTESQUIEU 



hospltiW' "He ought to have said, I will b4^gin by rencteriiig 
mjr empire rich, and [hen 1 will build iLO&pit.nl^ 

The riches oE the state suppose ^cat industry. Amidst the 
nuinerouft branches cf trade it is impossible but that some roust 
suffer, and cofuequcntly the mechanics must be in a momentary 
necessity. 

Whene^-er this happens, the state is obliged to lend them a 
ready assistance, whether it be to prevent the suScrings of tlic 
people, or to avoid a rebellion. In this case hospitals, or some 
equivalent regulations, are necessary to prevent this misery. 

But when the nation is poor, private poveny springs from the 
general calamity, and is, if 1 may so express myself, tlie general 
calamity itself- All the hospitals in the world cannot cure this 
private poverty; oo the contrary, the spirit of indolence, which 
it constantly inspires, increases the general and consequently tite 
private misery- 
Henry VIII/ resolving to reform the Church ol England, 
ruined the monWs, of themselves a lazy set of people, that en* 
eouraged la^in^u in others, because, as (hey practised hospitality, 
an infinite number of idle persons, gentlemen and dtiretit, spent 
their lives in running from convent to convent. He demolished 
even the hospitals, in which ilic lower people found subsistence, 
as the gentlemen did theirs in the monasteries. Since these 
changes, the spirit of trade and industry has been established i 
En^and. 

At Rome, the hospitals place everyone at his ease except tb 
who labor, except those who are industrious, except those w! 
have land, except those who are engaged in trade. 

I have observed that wealthy nations have need of hospitals, 
becau^f: fortune subjects them to a tlioui.3nd accidents; but it is 
plain that transient assistances are much better than perpetual 
foundations. Tlie evil is momeniary; it is necessflrv. therefore, 
that the succor should be of the same nature, and that it be ap* 
plied to particular accidents^ 



\csc 
1 11^ 

iOt« 
irh^ 



rSM Sir John Cter^ia't ^'TriTtli 



^S««Dtim«>"Ht«0iT7O<t!w ; 



BOOK XXIV 

OF LAWS IN RELATION TO RELIGION CONSID- 
ERED IM ITSELF, AND IN ITS DOCTRINES 

i.^-Of Riti£ion in Ctn^ml 

AS amJdst several ticgrccs q( darkness wc may form a 
judgment uF tUo>c yxiWwM irc ihc least thick, and amonjc 
precipices which arc the kast deep, so wc may se^rcli 
among false reli^ons for those that arc most confoimabU to 
the welfare ol society; for tho»e which, though they have not 
the effect of leading men to the felicity of another life, may 
contribute most to their happiness in this. 

I shall examine^ therefore, the several religions of the world, 
m relation only to the good they produce in civil ftoci{^ty, 
whether I speak of that which has its root in heaven, or ot those 
which spring from the earth. 

As in this work I am not a divine but a political writer, I 
nay here advance things which arc not otherwise true, than as 
they correspond with a worldly manner of thinking, not as con- 
sidered in their relation to truths of a more sublime nature. 

With regard to the true religion, a pcrK>n of the leail degree 
of impartiality must sec that I have never pretended to make 
Us interests submit to those of a political nature, hut rather to 
anite them ; now, in order to unitc^ it is necessary that wc 
should know them. 

Tlie Christian religion, which ordains that men should love 
«4eh other, would, without doubt, have every nation blest with 
the best civil, the best polirical hws; because these, next to 
thu religion, are the greatest good that men can give and 
receire. 

2. — A Pcraiox of Mr. BayU's 

Mr. Bayle has pretended to prove o that it is better to be an 
aibeist than an idolater; that is, in other words, that it is less 
a"71)^*tBhl» <*n the Comtt* 
=7 



aS 



MONTESQUIEU 



danffCTDus to havt no religion at all than a bad ont. " I had 
rather/' aaid he, " it should be said of me tliat I had no existence 
than that I am a Tilbin." Tliis ia only a sophism founded on 
ih\s, that it is of no importance to the humaa race to believe 
that a certain man exUts> whereas tt n extremely useful for 
ihem lo believe the existence of a God. From the idea of his 
non-existence immodiatciy follows tliai of our independence; 
or, if we cannot conceive this idea, that of ditobedicnce. To 
say that religion b not a restraining moiivc. because it does not 
always restrain, is equally absurd as to »ay Lliat the civil laws 
are not a restraining motive. It is a false way of reasoning 
against rdiifion to collect, in a Utrc work, i long dcuil of the 
evih it has produced, if we do not give at the same time an enu- 
mcmtion of the advantages which have flowed from it. Were 
I to relate all the evils that have arisen iti the world from civil 
bws, from monarchy, and from republican government, I 
might tell of frightful things. Were it of no advantage for sub- 
jects to have rcHeion, ii would still be of some, if princes had 
it, and if they whitened with foam the only rein which can re- 
strain those who fear not human laws, 

A prince who love^ and fears religion is a lion, who stoops 
to the hand that strokes, or to the voice that appeases him. 
He who fears and hates religion h like the ravage beast that 
growls and bites the chain whicli prevents his flying on those 
who come near htm. He who has no religion at fUl is that terri* 
1>]e animal who perceives his liberty only when be tears in pieces 
and when he devours, 

Tlic question is not to know whethtr it would be better that 
a certain man or a certain people had no religion than to abuse 
what they have, btit to know what is the least evil, that rcHgign 
ttc sometimes abiisi:<l, or that there be no such restraint as 
religion on mankind. 

To diminish the horror of atheism, they lay too much to the 
rharg<* nf idolatry. Tt i* f;tr frvim being tnte t^at when the 
ancients raised altars to a particular vice, they intended lo show 
that they loved the vice; this signified, on the contrary^ that 
they hated it- When the Lacedaemonians erected a temple to 
Fear, it was not to show that this warlike nation desired that 
he would in the midst of battle possess the hearts of the Laccdie- 
monians, They liad deities to whom they prayed not to inspire 



4 



THE SPIRIT OF LAWS 



»9 



Ibein wiih guilt; and others whom they h«oiight to shield 
tiicm Iromiu 

j^TAof a moderate Government is most ogrecahle to the 
, Ckfislum ReUgioH, and o despotic Government to the Ma- 
honunedan 

The Christian religion b a stranger to mere despotic powcr- 
Thc mtldne&s &o frequently recommended in tlie gospel i* in- 
compatible with the despotic rage with which a prince ptiniAhcs 
hill subjects, and exercises himself in cruelty. 

As this icligion k>rbids tlic plurality oE wives* its princes arc 
h%s confined, less concealed from their subjects, and conse* 
qiicntly have more humanity ; they are niore di.tptjsed to be di- 
rected by laws, and more capable of perceiving thai they cannot 
do whatever they please. 

While the Maliommcdan princes incessantly give or KCdve 
death, the religion of the Christians renders their princes leas 
timid, and consequently less cruel The prince confides in his 
subjects, and the subjects in the prince. How admirable the 
religion which, while it only seems to have in Wcw the felicity 
of the other life, continue* the happiness of this I 

It is the Christian religion thai, in spite of the extent of the 

empire and the influence of the climate, has hindered dcspolic 

pgwer from being established in Ethiopia, and has carried into 

Uic heart of Africa the manners and laws of Europe. 

The heir to the Empire of Ethiopia ^ enjoys a principality 

r and give* to other subjects an example of love and obedience. 
Not far thence may we see the Mahommedan shutting tip the 
cWldrCTi 6f the King of Sennar, at whose death the Council 

, sends to murder them, in favor of the prince who mounts the 

' throne. 

Let tis set before our eyes, on the one hand, the continual 
massacres of the kings and generals of the Gree):s and Romans 

■and^ on the other, the destrtiction of people and cities by those 
famous conquerors Timor Begand Jenghiz Khan, who ravaged 
Asia^ and we shall see that wc owe to Christianity, in govern- 
ment, a certain political law ; and in war, a certain law of na* 

, tions — benefits which human nature can never sufficiently ac- 
knowledge. 

^''DfKrjpLloa (J Eihwpla," by U, ronoc, Phralclui. " Calleciloa of lUk 
f)4Df Letters.*' 



s» 



UONTESQUIEU 



It t5 owing; to fhts lam of nations that amon^ us vktory 
leaves these great advantages to the conquered, life, liberty, 
laws, vi-ealth, and alw-ays religion, when the conqueror is not 
blind to hh own inlcrcst. 

We may truly say that the peop^ of Europe are not at pre<vnt 
more disunited than the people and the armies, or even the 
armies antong tbcmKlves were, under the Roman Entfure i 
when it had become a despotic and military crovenunenL On 
Ihe one hand, the armies cn£:aged in war ag^nst each other, 
and, on the other, they pillaged the cJlie^ and divided or coo- 
&Mated the lands. 

4. — Cons€^ti€rtctj from the Character of the Christian Rtti^itm^ 
and thai of the Mahommedcn 

From the characters of the Christian and Mahommedan rc- 
li^ODS, we ought, without any funlier examinatioo, to embrace 
tlie one and reject the other; for it is much easier to prove tliat 
religion ou^iit to huinantxe tlie niaiincrs of men than tliat any 
particular religion is true. 

It is a misfortune to human nature when religion is given 
by a eonqueror. The Mahommedan religion, which speaks only 
by the sword, acts still upon men with that destruclivc spirit 
with which it was founded. 

The history of Sabhaco,' one of the pastoral kings of Egypt, 
is very extraordinary. The tutelar god of Thebes, appearing: 
to him in a dream, ordered him to put to death all the priests of 
Eg>'pt. He judged that the gods were displeased at his being 
on the throne, ^ince they commanded him to commit an action 
contrary to their ordinary pleasure; and, therefore, he retired 
into Ethopia- 

5. — That the Catholic Religion w most ogrceabfe to a Monarchy, , 
and the Proicstani t<? a Reput^Ik 

When a religion Is introduced and ftxed in a state, it is com- 1 
tnonly Kudi as is most suitable to the plan of government there I 
established ; for those who receive it. and those who arc the 
cause of its being received, have scarcely any other idea of pol* 
icy than that of the stale in which ihey were born. 

When the Giristian religion, t^'o centuries ago, became un* 



I 




THE SPIRIT OF LAWS 



SS 



hap[Mly divided into CallioHc .niul ProteMant, the people of the 
North embraced the Protestant, and those of the South ad- 
hered still to the Catholic- 

The reason is plain: the people o[ the north have, and will 
torever have, i spirit of liberty and independence, which the 
people of the south have not; and, therefore, a rcli^on whicli 
has no vnibic head i& more agreeable to the independence of the 
climate than that which has one. 

In the courtries ihtmselves where the Protestant religicin 
t>€caiTte csiablishcd, the rc\'o]ucions were made pursuant to tlie 
flcveral plans of political government- Lutlier having great 
|>rtnce& on lus ^d<: would never have been able to make them 
vclish an ecclesiastical authoriiy that had no exterior pre-cnii- 
sienee ; while Calvin, having to do with people who lived under 
repubUcan governments, or with obscure citucns in mon^ 

^u-chie«, might very well avoid e^tablisliing dignities and prefer* 

ments. 

Kadi of theie two religions was believed to be perfect : tlie 

Oalvinist judging his most conformable to what Christ had 

^aid, and the Lutheran to wliat the A;>ostles had practiced. 



6. — Another of Mr. Baytc'x Pantdoxes 

Mr. Bayle, after having ahuicd all rcli^ionn, endeavors to 

-ullj Christianity: he boldly asserts that true Christians can* 

tot form a government of any duration. Why not? Cititens 

*i this profession being infinitely enhghtcncd with respect to 

«*ic various duties ol life, and having the warmest zeal to fulfil 

•tTricn, m«5t l>e perfectly sensible of the rights of natural defence, 

T^hc more they believe themselves Indebted to religion, itic 

*"*~iorc ihcy would think due to their country, Tlie principles of 

CThristianily, decjJy engraved on the heart, would he infinitely 

^'lore powerful than the false honor of monarchies, than the 

^nttsane virtues of republics, or the servile fear of despotic 

h It astonishing that iVx^ great man should not be able to 
digtiD^rQish between the orders for the cstahlishmert of Chri*- 
JjttiiT and Qiristianity itjelf; and that he should be liable to 
w charged with not knowing the spirit ol his own religion, 
^n the legislator, instead of laws, has given counsels, this 13 



MONTESQUIEU 

because he knew that if these counsels were 9r<Uined a£ Laws 
they would be contru^ to the spirit of the Uws tbemselvct. ^m 

y-T'^Of thr Laws of PtrjccHon in Religion 

Human Uws, mack to direct the will, ought to give precepU, 
and not comiseh ; religion, madr^ to influence the hi^art, should 
gnre i&any eoun^Is, and few prc<:eptiL 

Wieu, for instance, it givc$ niks. not for what is good, but 
for what is better: not to direct to what b right, but to what 
is perfect; it is expedient that these should be coumels, and 
not laws: for perfection cati have no relation to the univcrsal- 
iXj of men or things. Besides, if the»e u-ere laws> there would 
be a necessity for an in&nile number of others, to make people 
obf^enc the hrst. Celibacy was advised by Christianit) ; when 
they made it a law in rcspcci to a certain order of men, it be- 
came necessary- to make new ones ever}- day, in order to oblige 
those men to observe liM The legislator wearied himself, and he 
wearied jocirty, to make men execute by precept what those 
who love pcffection would liavc executed as counsel. 

8,-0/ the Conmciion brtwcrn the moral Laivs and tkos€ of 

Religion 

In a country so unfortunate as to have a religion that God 
has not revealed* it ii nece<i4ary for it to be af^e^jible to moral- 
ity; because even a false religion is the best security we can 
have of the probity of men. |H 

The principal points of religion of the inhabitants of Pcgu<^ 
are. not to commit murder, not to steal, to avoid uncleanliness, 
not 1o give the least uneasiness to their neighbor, but to do 
him, on the contrary, all the g:ood in their power. With these 
rules they think they should be saved in any religion whatso* 
ever. Hence it proceeds thai those people, though poor and 
proud, behave with gentleness and compassion to the unhappy .^ 

9,-0/ /A/ Esstn^i " 

The Esscncs ^ made a vow to observe justice to mankind, to 
do no ill to any person, upon whatsoever account, to keep 
feith with all the world, to hale injustice, to command with 

the Hh cttt^uiy," nL r. lnit(« Compsor/' vol. ^l ran I. pk J& 

r"CoUaefl« of V<t7*af chat «««- /" HUurr «f the Jwn,'^ tridrtu>. 




TU£ SPIRIT OF LAWS 



modesty, always to side with truth, and to Hy from d1 unlaw- 

10,-0/ tht S^r^l of Stones 

Tbc several sects of philosopliy among the ancients were a 
species of religion. Never were any principles more worlJiy 
of human nature, and more proper to form tlic good man, than 
those of the Stcics; and if I could for a moment cease to think 
tbat J am a Ovristian, I should not he able to hinder myj^elf 
from ranking ih^ de^tlruction of the sect of Zena among the 
niUfortunes that have befallen the human race. 

It carried to excess only those things in which there U true 
greatness — the contempt of pleasure and of pain. 

It was this sect alone (hal made citizens; tliis alone that 
made great men ; this alone great emperors. 

Laying aside for a moment revealed truths, let w search 
tfaroiigh all nature, and we shall not find a nobler object than 
the Anioflimiscs; even Julian himself — Julian (a commenda- 
tion thus wrested from me will not render me an accompUcc of 
his apostasy) — no> there has not been a prince since his reign 
more worthy to fjovcm mankind, 

\\'hilc ihc Stoics looked upon riches, human grandtrur, grief, 
dis<]uietuclcs, and pleasures as vanity, they were entirely em- 
ployed in laboring for the happiness of mankind, and in exer* 
dsjng the duties of society. It seems as if they regarded that 
acred spirit, which they believed to dwell within them, as a 
kind of favorable providence watchful over the human race. 

Bom tor society, they all helieved that if was their deiitiny 
!i> lahnr for it : with fui much the less fati^e, their rewards 
were all within themselves. Happy by their philosophy alone, 
It seemed as if only the happiness of others could increase 
theirs. 

tU^^f Contemplation 

Men beinj* made to preserve, to nourish, to clothe them- 
lelvcft, and do all the actions of society, religion ought not to 
give them too contemplative a life.r 

The Mahommedanfi become speculative by habit: they pray 
five limes a day. and each time they are obltired to cast behind 
thcDi everything which has any concern with this world; this 

f Tbli ti tbf LnnnvHiLenc* □! the doclrlnc ol Poe lad LAOcktum. 

Vol. 1L— 3 



MONTESQUIEU 

forms them for speculation. Add to tliii that intlifference lor 
aJJ tiling* which is inspired by the doctrine of unalterable late. 

If other causes besides these concur to disengage their sffcc" 
tions; for instance, if the severity of the government, if the 
law* concerning the property of land, give thcra a prccarioua^ 
spirit — all is lost ^| 

Tlic rclifpon of the Gaurs fotincrly rendered Persia a flour- 
ishing kingdom ; it corrected the bad effects of despotic power. 
The MUne ciupiie U now destroyed by the Mahonuncdan religion. 

12.-0/ PtHJHttS ( 

Penances oug^it to be joined with the idea of labor, not with 
that of idleness; with the idea of good, not with that of super- 
eminence; wiUi the idea of fnig^ty, not wiUi that of avarice. 

13-— 0/ intxpiable Crimes 

It appears from a patssa^ of the books of ihe pontiffs, quoted 
by Cicero^ that they had among the Romans inexpiable 
crimes: < and it is on this that Zozynnw founds the narration 
so proper to blacken the motives of Constantine's converiion ; 
and Julian, that bitter raillery on this conversion in his Casars. 

The Pagan religion, indeed, which prohibited only some of 
the grosser crimes, and which stopped the hand btt meddled 
not with the heart, might have crimes that were inexpiable; 
but a religion which bridles all the passions ; which Is not more 
jealous of actions than of thouglits and desires ; which holds 11s 
not by a few chains but by *n infinite number of threads : whidi, 
leaving human justice aside, establishes another kind of jus' 
tice- which is so ordered as to lead us continually from re- 
pentance to love, and from love to repentance ; which puts 
between the jtidge and the criminal a greater mediator, be- 
tween the just and the mediator a great judge — a religion lilce 
this ought rot to have inexpiable crimes. But while it gives 
fear and hope to all, it makes us sufficiently sensible that 
though there n no crime in its own nature inexpiable, yet a 
whole criminal life may be so ; that it is extremely dangerous 
to affront mercy by new crimes and new expiations; that an 



ftUb. IT, «f -Uwi/' 

<"Sacri3Ri contmtttuco. quod iwqut 



quod unJAfI polcTil pnUid klcfn1nl«« 




THE SPIRIT OF LAWS 



)S 



Bifi^s^ f>t» arrmmt of ancient delitftr irrtm wbi^h we arc 
entirely free, ouf^ht to make u!l afraid of contracting new 
onc8» of filling up the measure, arnl going even to that point 
iffbere patemal ^[oodness is limited. 

14.— /« tvhat Afann^ Rciigion has an In^atnce on Civil Lqv!S 

All both religion and the civil lawi: ought to Have a pcctitur 
tendency to render men good ctliicns, it is evident that when 
one of these deviates from this end, the tendency ol the other 
ouglit to be strengthened. The less severity there is in religion, 
the more there ought to be in the civil laws, 

Thtts the reigning religion o( Japan having few doctrines, 
and proposing neither future rewards nor punishment,*, the 
laws to supply these defects have been tnadc with the spirit of 
seventy, and are executed with an extraordtnnry punctiulity. 

When the doctrine of necessity is established by rciigion. 
the penaltici of the laws ought to be more severe, and the 
magisirate more vipilant : to the end that men who would 
otherwise become abandoned might be detenntned by these 
motives; but it is (|uitc otherwise where religion has cslab- 
Itshed the doctrine of liberty. 

From the inactivity of tlic soul springs the Mahommedan doc- 
trine of predestination, and from this doctrine of predestination 
spring! the maclivity of the soul. Tliis» they say, is in the de- 
crees of God; they mn^?!, therefore, indulgr their repose. In 
a caG« like thb the magistrate ought to waken by the taws thoie 
vho are hilled asleep by religion. 

When religion condemns thiuir* which (he civil laws ought 
to permit, there is danger lest the civil laws, on the other hand, 
should permit what religion ought to condemn. Either of 
these is a constant proof of a want of true ideas of that harmony 
and proportion which ought to subsist bciwccn both. 

Thus the Tartars under Jcnghiz Khan,/ among whom it 
was a sin and e\'cn a capital crime to put a knife in the fire, 
to lean against a whip, to strike a horse with llie bridle, \o break 
ant bone with another, did not believe it to be any sin to break 
their word, to seize upon anotlier man's gotxls, to do an injury 

to a person, or to conkmil muider. In a word, laws which ren- 

- iSee Ibc rdtlidn minen b? Jahn Dnplui Carp'ti. >«Bt tQ TirUnr by Pom 
Want IV ia tte naa %aA^ 




3* 



jm^ESQUIEU 



1 



dcT that iiccc!(»3ry which U only indificrtnt Itavc tltis inconvcn* 
icncc, that they make those things indi0crcnt which arc abao^^H 
lutely necessary. ^| 

'ITic people of Formosa believe I' thai there is a kind of hell, 
hut it is to punish those who at certain seasons have not gone 
naked, who have dressed m calico and not in silk, who have 
prrMimei! to took for oyUers, or who have undertaken any 
business without consulting: the song of birds ; whilst drunken- 
ness and debauchery arc not regarded as crimes. They believe 
even that the debauches of their children arc agreeable to their 
gods. 

When religion absolves the mind by a thing merely ace 
demal. it loses its greateM influence on mankind. The peopl 
of India believe that the waters of the Gang:cs have a sanctifj 
ing virtue.' Those who die on its banks arc imagined to be 
exempted from the torments of the other life, and to be en* 
titled to dwell in a region full of delights; and fc>r this reason 
the ashes of the dead arc sent from the most distant places 
to be thrown into thi^ river. JL^ittlc then does it signify whether 
they had lived virtuously or not, so they be but thrown into 
the Ganges, 

The idea of a place of rewards has a necessary connection^ 
with the idea of the abodes of misery; and when they hop^H 
for the former without fearing the latter, the civil laws have 
no longer any influence. Men who think themselves sure of 
the rewards of the other life arc above the power of the lcg:is- 
lalor; they look upon death with too much contempt. How 
shall the man be restrained by laws who believes that the great- 
est pain the magistrate can inflict will end in a motnent to begin 
his happiness? 

IS- — How fai^e Relighns au sometimes corrected by the CMl 

Laws 
Simplicity, superstition, or a respect for antiquity have some- 
times established mvslcries or ceremonies shocking to modes-?H 
ty: of this the world has furnished numerous examples. Aris-'^f 
totle says « that in this case the law permits the fathers of 
families to repair to the temple to celebrate these mystems fofj 



(he tf u|ilUtim«fLi of tbe £aii 



£!SS!^&'. 



'■ PofiL'^lib. VII. C»p. iTii- 




THE SPIRIT OF LAWS 

ihcir wives and children. How admirable the civil law which 
ia spite of rcli^on preserves the rnaDoers untainted! 

Augu*ituB f* excluded the ^otith of either sex from assisting 
at any nocturnal cfreniony, unless accompanied by a nif^re 
aged relative: and when he revived the Lupercalia, he would 
not allow the young men to ntn naked, 

t6,— Hour the Laws of Religion correct the Inccnvenicnus of 
a poliiicQl Constitution 

On the other liand, religion ni^y support a state when the 
laws themselves are incapable of doing it. 

Thus when a kingdom is frequently agitated by civil wars, 
religion may do much by obliging one part o£ the state to 
remain always quiet Among the Greeks, the Eleans, as 
priests of Apollo, lived always in peace. In Japan,^ the city 
Df Meaco enjoys a constant peace, as being a holy city. Re* 
ligion supports this regulation, and that empire, which seems 
to be alone upon earth, and which neither has nor will have 
any dependence on forgigncrs, has always in its own bosom a 
trade which war cannot ruin* 

In kingdom* where war« are not entered upon by a general 
consent, and where the laws have not pointed out any means 
cither of trrmtnaling or preventing them, religion establishes 
times of peace, or cessation from hostilities, ihat the people may 
be able to sow their com and perform those other labors which 
are absolutely necessary for the subsistence of the state. 

Every year all hostility ceases between the Arabian tribes 
for four months: the least disturbance would then be an iin* 
piety./ In former times, when every lord in France declared 
war or peace, religion granted a tnice» which was to take place 
at certain seasons. 

17, — Tfu same Subject continued 

When a stale has many causes for hatred, religion ought 
to produce many ways of reconciliation. The Arabs, a people 
tddieted to robbery, are frequently guilty of doing injurv and 
I&)ustiee. Mahomet enacted this law ; 4 "If any one forgives 



■ SvffluiiJU^ la " AuptK'^." ftp. txxi. 



4 Koran, book I-, chipter "of ii^ 
Cow.'* 



MONTESQUIEU 

ll« blood of hia broUicr/ he may pursue the malcEaetor fo 
<lamagG& and interest ; but he who sluU injure tlic wickedi^ 
after having received salisfaclior, shall, in the day of judgmcDl, 
suf!er thr most grievous tomtentu/* 

The Ciemians inherited the hatred and enmity of their near 
relatives ; but ihcsc were not eternal Homicide was expiated 
by Kivinjj a ccrlstn number of cattle, and all the family re- 
ceived ^tisfaction: a tiling extremely useful, says Tacitus, be* 
cause enmities are most dangerous among a free people-^ I 
believe, indeed, lliat tlicir minisicrf of religion, who were held 
by ihem in ao much credit^ were concerned in these reconcilia* 
tions. I 

Amon^ the inhabitants of Malacca,' where no form of rtcon-" 
ciliation is esiahlishcd, he who has ccmmittctJ murder, certain 
of being a&saivsinated by the relatives or fncnds of the decea^d, 
abandons hitmeU tu fury, and wounds or kills all be niecu. . 

i8- — How the Laws of Keli^wn hcvc the Effect of Ci^l Law^ 

The first Greeks were small nations, freqtJcnEly dispersed, 
pirates at sea, unjusi on land, wiihotu government and with- 
out laws- Tlje mighty aciiuns of fieiculcs and Theseus let as 
sec the stale of that rising people. Wtiat cuiiM religion do 
more to inspire them with horror against muider? It de- 
clared that the man who had been murdered was enraged 
against the assassin, that he would po&scss hi^ mind with ter- 
ror and trouble, and oblige him to yield to htm the places he 
liad frequented when alive." They couM not touch the crim- 
inal, nor converse with him, widi^tit hHng drfiletha the mur- 
derer was to be expelled the city, and an expiation made 
the erime.& 




ig. — That it is not xo much thr Truth or Falsity of a Doctrin^ 
whiih renders it useful or pernidous to Men in civii Gov 
tnent, as the Use or Abuse of U 

The most true and holy doctrines may be attended with the 
very worst consequences, when they are not connected with 

rOn frnnundnff^fhf Itit <]f ntaliiHoEL anrl whil 1i« Mfi ot the p»pte of y» 
l"C^lMtioii U Voneri ibm ^oif « l>liio. of " La«i " fib. IX 

miVlM t* <A* «M«h]l*bin«ni 4,1 ih« Kul pTr4CA|)r of " CKdffiut ColcntiU,'* 

IndlA Ovmitfiir. '^\- rii. p. jn^ S(« h PUio, d " L«wi/' lib. IX, 
*Jh> "Utmoln" of iht C d« F«bLii, 




THE SPIRIT OF LAWS 



39 



the principles ol society ; and on the contrary, doctrin« the 
most taUe may be attends with cxcdlcnt cointctjiicnces, wben 
contrived so a« to be connected with iUl'^c principles- 

Tbe religion ol Confucius di^wns the immortality of the 
soul : and the Acct of Zeno did not bdicvc it, Tlie^c two sects 
have drawn from their bad principles consequences, not jusi 
indeed, bu: most :tdiiufablc ai to their influence on society. 
Tl^ose of the religion of Tao, and of Foe/ believe the immor' 
talJty of tlic soul ; but from this sacred doctrine they draw the 
most frightful consequences 

The doctrine of the immortality of t!ie soul falsely under- 
stood has, almost In every part of the globe and in every age, 
engaged women, slaves, subjects, friends, to murder thcm- 
»clvo, that they might go and icrve in the other world the ob- 
ject of tlicir respect or love in this. Thus it was in ihc West 
Indies ; thus !t was among the Dane) ; d thus it is at present in 
Japan,' in Macassar/ and many other places, 

ThcAC customs do not *o directly proceed from the doctrine 
of the iminortaliiy of the soul as from that of the resurrection 
of the body, whence they have drawn this consequence, that 
after death the same individual will have the &aitie wants, the 
same sentiments, the same passions. In this point of view, 
the doctrine of the immortality of the soul has a prodiinous 
eiTect on mankind: because the idea of only a simple change 
of habitation is more within tlie reach of the human under- 
s:anding, and more adapted to Hatter the heart, than the idea 
o! a new modification. 

It is not enough for religion to establish a doctrine ; it must 
also direct its influence. Tliia the Oui**tian religion performs 
ia the most admirable manner, particularly with regard to the 
doctrines of which we have been speaking. It makes us hope 
£or a state, which is the object of our belief; not for a state 



ifiini*! lfc»dodrIn« of Fo*: " t| ia ft4i<l. 

m ■ W*^ *t <^*< >«*] ll^^l <^* bfdj' i« 



4v dvtltlne-placv vnd ibt aoul tl* im- 






hw ■ ■tTB«Mr««l «aflh ifitf d-rt. Tt ri^i 
lib «M<«*onDa |o 1«r from Ibc heart 

TtU lc»d« 9t FTvn H> nccU<t the cam 
«l lb* body, ud lo rtfutff it *1i« »»- 



fttatlon annj ifEffdian vt B*<i**i>nr ffi# 
fi ifmrrvuEiDn; htnca Lh« dJKlplft of 
Fa* ktll ih«m»]v<c bj IhnuHntlL"^ 
"Work of ui kncirni Chinr^ nh^lov 
ophr*/* in Ih* C>Uhi1Iob «t liu Htldt, 

VoL ill, [L |l}. 

<fS» Thn, R^rlholIoV " AnTL<]ii;tf«fl 

of t\\r Uanr^" 

f " An Ar^niirtf ff J«pjiii,'* ifi lh* 
" C<*tt«linrt fil Vtyasf* ihiT confribDlfd 





40 MONTESQUIEU 

whfch w* liave already cxpcnVnced or Trtiown: tTiii? every 
article, even the resurreciion of the body, lea<ls us lo spinlual 
ideas. 

30l — The same Subject ecntinuid 

The AAcrcd books < of the ancient Tcrsians fiay, "If yot 
would be holy instruct your children, becau&e all the good ac- 
tions whieh they perform will be imputed to you." Tliey ad-* 
vise them to marry betimes, because children at the day of 
judgment will be as a bridge, over whieh those who have none 
cannot pass. These doctrines were Ealse, but extremely usc- 
foL 

21, — Of iht MeUmpsyckosU 

The doelrine of the immortality of the soul Es divided into 
ihrec branches — that of pure immortal it v, that of a simple 
change of habilation. and Lhat of a metempsychosis, thai is, Uie 
*y3tem of the Christians, (hat of the Scythians, and that of the 
Indiana. We have just been speaking of the first two, and I 
*hall say of the last, that as it has !>een well or ill explained, 
it has had good or bad effects. As it Inspires men with a cer- 
tain horror against bloo<!shed, very few murders are committed 
in the Indies ; and ihough they seldom punish with death, yet 
they enjoy a perfect tranquillity. 

On the other hantl. women burn themselves at the death of 
their husbands; thus it is only the inncceut who suffer a vio- 
lent death. 

22, — That it u danj^erouji fcr RcUj^on to inspire an Aversion 
for Things in themselves indifferent 

A kind of honor established in the Indies by the prejudices 
o( religion has made the several tribes conceive an aversion 
againfit each other. Tliis honor is founded entirely on religion ; 
these family distinctions form no civil distinctions; there are 
Indians who would think themselves dishonored by eating 
with their king. 

These sorts of distinctions are conreeted with a certain aver- 
sion for other men, very different from those semimenta which 
naturally arise from difference of rank ; which among us com- 
prehends a love for inferiors, 

f Ur itrd*. 



THE SPIRIT OF LAWS 

The laws of religion should never inspire an avefston to 
inyihing bul vice, and above all iliey should never entrance 
man from a love and tenderness for liis own species. 

The Mahommedan and Indian religions embrace an infinite 
Dumber of people; the Indians hale the Mahommcdans. became 
tbcj cat cows; the Mahommedans dctc&t tJie Indians because 
they eat bogs. 

23-— 0/ F^sth^ 

When religion appoints a cessation from labor it ought to 
have greater regard to the nctrc&sitics of mankind tlian to the 
grandeur of the being it designs to honor. 

Athens was subject to great inconveniences from the cxces* 
s\vt number of its festivals.* Thcae powerful people, to whose 
decisign alt the cities of Greece came to submit their quarrels, 
cuuld not have time to despatch sucli a muUiplicity of affairs. 

When CoDstaniinc ordained that ibc people should rc*t on 
the Sabbath, he made this decree for tbe cities,* and not for the 
inliabiiants of the open country; he was sensible that labor in 
the Cities was useful, but in the fields necessary. 

For the same reason, in a country supported by commerce, 
^e number of fe^tivsU ought to he relative to this very com- 
wnrrcc. Pmtestant and Catholic countries are situated in such 
^ manner that there is more need of labor in the forrrer than 
in the latter;/ the suppression of festivals is, therefore, more 
suitable to Protestant than to Catholic countries. 

Dampier observes that the diversions of different nations 
vary greatly, according to the climate.* As hot climates pro- 
duce a quantity o\ ijelicale fruits, the barbarians easily find 
necessaries, and. therefore, spend much time tn diversions. 
The Indians of colder countries have not so much leisure, be- 
ing obliged to fish and hunt continually; hence they have less 
inufic, dancing, and festivals. If a new rcli^on should be 
established among ihtr^ people, it ought tu have regard to this 
ill the io&titutton of festivals. 



% Xcnopboa " on t1i« R«pab1ic at 
iUc J, eol. "de F<Tlk" nil h« 



jTht OlTiolki II« inort tcmr^v lliv 
•ouih. mn«] thf l^ioivaiKnii lowaidt thfl 
DorTh. 




HONTESQU1EU 



24p— O/ tht locci Lows of Religion 

There arc nuny local litws in various reUjfions ; and when 
Montezuma wiih so much obstinacy in&bted tliat the religioD 
of the Spaniards was good for tlieir country, and hh for Mex- 
ico, he did not assert an absurdity ; because, in lact, legislators 
could never help having a regard to what nature had esUb- 
lished before them. 

Tlie opinion of the metempsychosis is adapted to the cHmate 
of tbc Indies. An excessive heat burns up all the country:' 
they can breed but very few cattle ; tliey arc always in danger 
of warning them f(jr lillagc; ibeir black cattle multiply but in- 
difTcrcrul;' ; "' and tluy arc subject to many di&lcaipcib. A Uw 
of religion which preserves them U, therefore, more suitable X&\ 
l}ie policy of the country. 

While the niL'stiow* irc tcorchcJ, rice and puUe, by the as- 
sistance of water, arc brought to perfection; a law of religion fl 
whirl) perrnilft only this k\ni] of nonnKhment must, therefore, 
be extremely useful to men in those climates. 

Hie Resh of cattle in that country is tnsipid,n but the milk 
and butter which they receive from them serve for a part of 
their subsistence: therefore, the law which prohibits the eat 
ing and killing of cows is in the InJies not unreasonable, 

Athens contained a prodigious multitude of people, but itHj 
territory was barren. It was, therefore, a religious maxim 
with this people, that those who offered some small presents to 
the gocis honored them more than those who sacrihccd an ox.o 



I 



IK 

"1 



25. — Th^ Inconvmence of transf'tafttirtg a i?Wvgi^n from om 

Country to another B 

It follows hence that there are frequently many inconven- 
iences attending the transplanting a religion from one country ^ 
to any other. ^| 

"The hog," says Mr. dc Boulainvillicrs,^ "must be very 
scarce in Ar:ihia, where there are almost no wootis, and hardly 
anything fit for the nourishment of these animals; besides^S 
the saltne^s of the water and food renders the people most sus- 
ceptible of cutaneous disorders." This local law could not be 






H nfffiirT'i "Tf»veli." vol. ii. JX ib. H 
If Euripidfft. in " Aihenvu*," iTb. LL V 




THE SPIRIT OF LAWS 



43 



"jjood in otfior mnmH<^,fl wlitre ilie hop is almmt a i]niv^r»1, 
u3 in some sort a ncccsiary. nourbhmenL 

I shall here make a rcnection. Sanctoriits has observed 
that pork transpires bui littlc,r and that this kind of meat 
greatly hinders the trait^^piratton of other food; he has found 
that chis diminution amounts to a third.' Besides, it is known 
that the want of transpiration forms or increases tbe disorders 
of the skin, llic feeding on pork ought rather to be prohibited 
in climates where the people arc subject to these disorders, as 
in Falcstioc, Arabia, ligypt, and Libya. 



26.— ^rAtf same Subject continued 

Sir John Chanlin «ys' tJiai there is not a navigable river 
in Persia, except the Kur. which is at the extremity of the em- 
pire. The ancient law of the Gaurs which prohibited sailing 
on riYers was not. therefore, attended with any inconvenience 
in this countryi tliough it would have ruined tlie trade of an- 
other. 

Frequent bathings are extremely useful in hot climates. 
On this account they are ordained in the Mahommcdan law and 
is the Indian rehgion. In the Indies it is a most meritorious 
act to pray to God ta the running stream;" but how could 
these things be performed in other climates? 

When a religion adapted to the chmaic of one country 
clashes too much with Ehc diiiiate of another it cannot be there 
establislicd ; and whenever it has been introduced it has been 
afterwards discarcScd. It neemn to all human appearance a? it 
the climate had prescribed the bounds of the Christian and the 
Mabommedan religions. 

It follows hence, that it h almost always proper for a religion 
to have particular doctrines, and a general worship. In laws 
concerning the practice of religious worship there ought to 
be but few particulars; for instance, they should command 
Tnortification in ffcneral and not a certain kind of mortiiication. 
Chiistianity is full of gL>od sense ; abstinence is of divine insti* 
tution; but a particular kind of abstinence is ordained by hu- 
man authority, andp therefore, may be changed. 



ica," MCL s, 4pbor^ 



I Ihfd. 

I '* Travel* Into Peful*," voL iL 




BOOK XXV 



OF LAWS IN RELATION TO THE ESTABLISH-" 

MENT OF RELIGION AND ITS EXTERNAL 

POLITY 

1.^-0/ Religious Sentiments 

^HE pious man and the atheist always talk of religion? 
the out speaks of what he loves, and the other of what 
tic fears. 



T 



2, — Of the Motives of Attackfnent to differmt Religions 

The difTercnl rclifn^rs of the world do not give to those who 
profess them equal niotivi;« of attachment ; this depends great- 
ly on ihc manner in whtch they agree with the ttim of thought 
and perception* of mankind. 

We are extremely addicted to idolatry, and yet hare no ^eat 
inclination for the religion of iciolsters ; we are not very fond 
of spiritual ideas, and yet are most attached to those reli^ons 
which teach us to adore a spiritual being. This proceeds from 
the satisbction we find in ourselvc*^ at having been so intel- 
ligent as to choose z religion which raises the deity from tliaC 
baseness in which he had been placed by others. We look 
upon idolatry as the religion of an ignorant people, and the 
religion which has a spiritual being for its object as that of 
the most enlightened nations. J 

When with a doccrinc that gives us the idea of a spirittiaT 
^uprcnic being we can still join those of a scnsiMe nature aiid 
admit ihcm into our worship, we Contract a greater attachment 
to religion ; because those motives which we have just men- 
tioned are added to our natural inclinations for the objects of 
•ense. Thus the Catholics, who have more of this kind of wor- 
Khip than the Protestants, are nore attached to their religion 
than the Protestants are to theirs, and more zealous for itft 
propagation. 



I 

Lt 

I 




*1R!T OF LAI 



4S 



WTieii the people q[ £phe»us were informcO tliat ttic; (allicrs 
of the council lud declared ihcy might call the Virgin Mary 
the Mother of God, they were transported with joy, they kissed 
The handa of the bishops, ihcy embraced their knees, and the 
whole city rebounded wtth ace lama t tons. a 

Wh«n an intellectual religion iuperadds a choice made by 
thp ileily^ and a preference for tho^^r who profew it over thnse 
who ilo not. this greatly attacheik us to religion. The Ma- 
homniedans would not be stich good Mus^uhnans if, on the one 
hajid, there were not idolatrous nations who make them im* 
agine themselves the champions of the unity of God ; and on 
the other Christians, to make them believe that tliey are the 
objects of his preference. 

A religion burdened with many ccrcmomcsfr attaches us to 
it more strongly than that which has a fewer number. Wc 
have an extreme propensity to thinj;s in which we arc con- 
tinually employed : wliness ihe obstinate prejudice* ol the Ma- 
bomme^aiis and the Jews/ and the readiness with which barbar- 
ous and savage natic>n9 change their religion, who, as they arc 
employed eiiiircly in hiuuing or war, have but few religious 
ceremonies, 

Men are extremely inclined to the passiona of hope and fear; 
1 religion, therefore, thai had neither a heaven nor a hell, could 
hardly please them. This ift proved by the ease with which 
foreign religions have hern established in Japan, and the leal 
and fondnew with which ihcy were received,'' 

In order to raise an attachment to religion it is necessary 
that ii should inculcate pure morals. Men wlio arc knaves by 
retail arc extremely honest in the gross ; they love morality. 
And were [ not treating of so grave a subject I should say 
that this appears remarkably evident in our theatres: we arc 
sure of pleasing the people by sentiments avowed by morality; 
«e are sure of shocking thera by those it disapproves. 

When external worship is attended with great magnificence 



9 ThU do4i I 



. ... I not CflfiJfidirt wftat 1 ^Mktt 

■aid >« ;h4 Ivl ^hjplar aJ iltc picccfliaji 
htok: I btrr tprwt d ih* moiWrfl ol 
4tUiliB*n« vt nt\^<ia^ *n4 tlwfr i>t tU< 
MHk* «d rttt^rHni it mort irencf*]. 

vedd. S«- tm lo ihe Turki. ihe ■* Mli- 
. of the LetAiit "; file " CvUkHuh 



of Voyiufct th«t conlrTbutcd tc the <» 

tiMii1]m«n1 of %n Eart Inftia Cam- 

Smr'"^ v(jL lii. p Ani, (tn (lie MiKiit of 
bvirU; snd MHipr Labit on the 
" MATiH-iRim^ d4n NcKTiaefl/' cK-, 
'STht rhriaiian md ihe IndUn re* 

dlie. whjch the rcliflon o( Sixtto* hu 





MONTESQUIEU 



it fTattcrs our minds and strongly attaches us to religion. The 
riches of temples and tho^e of the clergy greatly affect us. 
Thus even the misery of the people is a motive that rendcrt 
them fond of a reli^cn which has served as a prcicxi to those 
who were the cause cf their tniiery. 



3-— 0/ Temples 



J 



Almost all civilized nations dwell in houses ; hence naturally 
arose the idea of building a house for God in which they might j 
adore and seek him, amid»t all their hopc^ and fear9> \ 

And, indeed, nothing is more comfortahlc to nmukind than 
a place in which Ihcy may find the deity peculiarly prctcnl, 
and where they may assemble togciher to confess tbcir weak- 
ness, and tell their griefs. 

But This naiuial idea never occurred to any but such as culti- 
vated the land ; tliose who have ito houses for tlicinadves were | 
never known to build temples. 

This was the caunc that made Jenghiz Khan discover such « 
prodigious contempt for mos<]Ucs.' This prince examined th« 
Mahomcdanft ; f he approved of sll their doclrine^. except that 
of the necessity of going to Mecca : he could not comprehend 
why God might not be everywhere adored. As the Tartars 
did not dwell in houses they could have no idea of temples. 

Thostr people who liavc no temples have Init a small attach- ' 
trcni to their o\vn rchgion. This is the reason why the Tar- 
tars have in all times given so great a toleration ;£ wliy the 
barbarous nations, who conquered the Roman Empire did not 
hesitate a moment to embrace Christianity; why the savages 
of America have so little fondness for tlicir own religion ; why, 
since our missionaries have built churches in Faragtiay» the 
natives of that country have become so zealous for ours. 

As the deity is the refuge of the unh.ippy. and none are more 
unhappy than criminals, men have been naturally led to think 
temples an asylum fur ihu&e wretches.^ Tliis idea appeared 
Still more natural to the Greeks, where murderers, chased from 



I 



ihe tnnfftiiv of Bochara, he 
arurii," p< 



'T'lWd. p. JM. 



f»inqiui>ie«lrd lo the J*|>*»v«*, ^tuty ■■ 
It m4r be Hfelly proved, dcHve iMr 

AS» Oinrdb, " Pcn< 
*dit at iTU- 



•nt U. Jtg 




THE SPIRIT OF LAWS 



4T 



thrir city and the presence of men, seemed to have no hou9C5 
but the temples, nor otlier protector* than the gods. 

At fint these were only designed lor invohmtary homiddet; 
but when the jieople ma<le ihem a jt^inctuary for those who bad 
committed great crimes they fell into a grfiss contradiction. 
If they had offended men thcy had much greater reason to 
believe they had offended the eods. 

These a^yUiTrs muhtplied in Greece, The temples, says 
Tacitus> were filled with imolvcni debiort and wicked slaves; 
the magistrate found it difficult to exercise his office ; the peo- 
ple protected the crimes of men as the ccreinonii's of the gods ; 
at length the Senate was obliged to retrench a great number of 
ihem. 

The laws of Moses were perfectly wise. The man who in- 
voluntarily killed another waji innocent; buT he was obhgcd to 
be taken away from before the eyes of the relatives of the dc- 
ceased* Monies, therefore, appohitd an aiJtyhim fur such un- 
fortunate people./ The perpetrator* ol great crimes deserved 
not a pbee of Kifety, anti they had none:* the Jews had only 
I portable tabernacle, which continually changed its place; 
thiK excluded the idea of a sanctuary. It ifi true that thoy had 
afterwards a temple ; but the eriminals who would reiort 
thither from alt parts mifrht disturb the divine service. If per* 
sons who had commillcd manalaug:hlcr had been driven out of 
the country, as was customary among the Greeks, they had 
reason to tear that thev would worship strange gods. All these 
CODsideratiDns made them establish cities of safety, where they 
ai^A slay till the death of the high-priest. 



4. — Of tht Ministers of Religion 

The first men, says Porphyry,! sacrificed only vegetables. 
In a worship so simple every one might be priest in his own 
bmily. 

The natural desire of pleasing the deity multiplied cere- 
monies, Hence it followed, that men employed in agriculture 
became incapable of observing them all and of filling up the 
ttumber. 

Particular places were consecrated to the gods ; it then bc- 



r Anii»i"iib. 11. 



J " Da AbKinaKU aelmaL" 



IL J, 




MONTESQUIEU 



th^H 



Oils, 
ratcf 



cam^ nrcr*«ry thai fboy shoul<l have minlftfers to take care" 
of them : in the sanic manner a^ every eitizcn took care of liis 
bouse and domestic affairs. Hence the people who have no 
priests arc commonly barbarians: «uch were fonncrly 
Pcdahan^," and such are auW the Wolgusky.H 

Men consecrated to the deity ought to be honored, especially 
among people who have formed an idea of a personal [mricy 
necessary to approach the places most agreeable to the gods, 
and for the perlotmance of parttctilar cercnLonic& 

The worship of the gods requiring a continual applicatic 
most nations were led to consider the clergy as a sepirat 
body. Thus, among the Egyptians, the Jcw5. and the Per-' 
siaiis,i> tlicy consecrated to the deily certain families who |>er- 
formcd and perpetuated the service- There have been even 
religions whieh have not only estranged ecclesiastics bom 
buMncss. but have also taken away the cmb^irrsssments of a 
family ; and this 'u the practice of the principal branch of Chris*a 
tiantty. ^ 

I shall not here treat of (he consequences of the law of cclib* 
acy: it is evident that it may become hurtful in proportion 
as the body of the clergry may be too numerous; and, in con- 
sequence of this, that of the laity too small. 

By the nature of ihe human understanding we love in re»l 
ligion everything which carries the idea of difficulty; as inf 
point of morality we have a speculative fondness for ever>-thin{ 
which bears the character of severity- Celibacy has been most ' 
agreeable to those nations to whom it seemed least adapted, 
and with whom it might tie attended with the most fatal con- 
sequences. In tlic southern countries of Europe^ where, by 
the nature of the climate, the law of celibacy is more dilTicult to 
observe, it has been retained; in those of the north, where the 
pasMons are less lively, it has been banished. Further, in 
countries where there are but few inhabitants it has been ad- 
mitted; in ihojie that are vastly populous it has been rejcctci. 
It i^ obvious that these reflections relate only to the too great 
extension of celibacy, and not to celibacy itself. 






*■ l.iliui rfinldut, p. jtL 

"lA pnpit ol SlbfTlr Stt Ihe ac" 



Td«. In t1i« "G>llMlJOQ of Travtl* to 
the Nofilu" voL viiL 




THE SPIRIT OF LAWS 



l.^-0[ tkt Bounds which the L<kvs ought to prescribe to thf 
Riclus cf the CUrgy 

As particular families ina> be cxiinct, their wealth cannot 
be a perpetual inhcriiaoce. The clergy is a family which cannot 
be extinct ; wealth b^ therefore, fixed to it forever, and cannot 
^ oat of it. 

Particular families may increase; it Is necessary then that 
their wealth should aUo increase. T\\t clergy is a family which 
ou^ht not to increase; their wealth ought then to be limited, 

Wc have retained the reflations of the Levitical laws as to 
the possessions of the clergy, except those relating to the 
bounds of these possessions; indeed, among us we must ever 
be ignorant of the limit beyond which any religious community 
can no longer be permitted to acciuirc 

These endless acquisitions appear to the people so unrca- 
lonable thai he who should speak in their defence would be 
regarded as an idiot. 

The civil laws tinJ sometimes many difficulties in altering 
established abuses, because they are connected with thinp^ 
worthy of respect; in this case an indirect proceetling would 
be a greater proof of the wisdom of the legislator than another 
which struck directly at the thing itself, lostcjid of prohibiting 
the accitiisitions of the clergy we shottld seek to give them a 
(Gftefle for them \ to leave them the right and to take away thi; 

dM(L 

Tn lAme conntrie?t of Europe, a respect fnr Ihe privtleges 
ol the nobility has established in their favor a right of indem*- 
nity over immovable (roods acquired in mortmain. The inter- 
est of the prince has in the same case made him exact a right 
of amortization. In Castile, where no such right prevail*, the 
clergy- have seized upon even-thing. In Aragon, where there 
s some right of amortization, they have obtained less; in 
France, where this right and that of indemnity are established, 
ihey have acquired less still ; and it may be said that the pros- 
perity of this kingdom is in a great measure owing to the ex- 
ercise of these two rights. If possible, thcn» increase these 
rights, and pui a stop (o the mortmain. 

Render the ancient and necessary patrimony of the clergy 

Vou ri.-4 



MONTESQUIEU 



sacred and inviolable, let it be fixed and eternal like that body 
itficif, but let new inheritances be out of their power. 

Permit them to break tbe rule when the rule has become an 
abuse; suffer the abuse when it cntcri into the rule. 

They still remember in Rome a certain memorial sent tlniher 
on some disputes with the clerf^, in which was this maxim; 
" The clerjr> oii^lit to contribute to ilie expenses of the state, 
let the Old Testament say wliat it will." They concluded from 
this passage that the author of this mcmori^ was better versed 
in the lau^piagc of the tax-gatherers, than in that of reltgioiL 

6. — Of Monasteries 

The least dcRTCC of common sense will let us sec that bodies 
dciigntd for a perpetual conlinuance should not be allowftd to 
sell their funds for life, nor to borrow for life; unless we want 
them to be heirs to all those who have no relatives and to 
those who do not choose to have any. These men play against 
the people, but they hold the bank themselves. 



J 



7- — Of the Luxury of Supersiiticn 

" Those arc ffuilty of impiety towards the gods " says Plato,^ 
"who deny their existence; or who, while they believe it, 
maintain that they do not interfere with what is done below; 
or, in fme, who think that they can easily appease tlicm by 
sacrilices: three opinions equally pernicious/' Plato has here 
said all that the clearer H){ht of nature liai ^ver been able to 
say in point of religion. The magrtificcncc of external worship 
has a princtpaT connection with the institution of the state, fn 
good republics, they have curbed not only the luxury of vanity, 
but even that of superstition. They have introduced frugal 
laws into religior. Of this number are many of the laws of 
So!on ; many of those of Plato on ftinerals, adopted by Cineto ; 
and, in fine, some of the laws of Numa on sacrifices.^ 

Bird*, says Cicero/ and paintings begim and finished in a 
day are gifts the most divine. We offer common things, say* 
a Spartan,' that we may always have it In our power to honor 
the gods. 

t " Of Lav*." book X. wordft Irem Pbld (" lavi." boob XII.). 




THE SPIRIT OF LAWS 



51 



The desire of man to pay his worship to (he deity is very 
diHercnt from ihe niagnificencf of this worship. Let m tiot 
gfftr our treasures to him if wc are not proud of showing tUat 
we e»teem what tic wouhl have us dcsptse. 

" What mu^i llic gods tUink of the gifls of llic iMipious," said 
the admirabk Plato, " when a good man would blush to receive 
[>rcsent» from a villain? " 

Religion ought not, tinder the pretence of gifts, to draw from 
i1>e people what the neees«ity of the Sitate hm loft them ; hut a» 
Plato »^yV "The cha«e and the pious ought to offer gifts 
which resemble thenmelvoft.'* 

Nor is it proper for religion ta encourage expensive funerals, 
What ts there more natural than to take away the difference 
of fortune in a circumstance aid in the very momctn which 
equals all fortunes? 

\Vhen religion has many ministers it is natural for them to 
have a chief and for a sovereign pontiff to be established. In 
monarchies, where the several orJcrs of the state cannot be 
kept too distinct, and where all powers ought not to be lodged 
in the same persun, it h prupcr tlmt the pontificate be distinct 
from the empire. The same neccs^ilv i& not to be met with in 
I despotic govcmmcnt, the nature of which is to unite all the 
different powers in the same person. But in this case it may 
happen, that the prince may regard religion as he does the 
bws ihemselvea, as dependent on his own wilK To prevent this 
ioconrenience. there ought to he monitmrnt^ of religion, for 
instance, sacred books which fix and establish it. The King of 
Persia is the chief of the religion ; but this religion is regulated 
by the Koran. The Emperor of China is the sovereign pontiff; 
hut there arc books in the hands of everybody to which he 
himself mu«t conform. In vain a certain emperor attempted 
(o abolish tbcm ; they triumphed over tyranny. 

9-— Of Totcration in point of Religion 

Wc are here politicians, and not divines ; but the divines 
themselves must allow that there is a great difference between 
tolerating and approving a religion. 

t*On Uw»." book II. 




^^] 



51 



MONTESQUIEU 



When the k-gislator lias hclicvcd it a duty to permit the ex- 
crcE>eof many religions, it is ncccsaary thai he should enforce 
aJao a toleration among these religions themselves- It is a prin- 
ciple thnt every religion which is persecuted becomes itself 
persecuting; for as soon as by some accidental turn it arices 
from persecution, it attacks the religion which persecuted it; 
not as religion, but as tyranny. 

It is necessary, then, that the laws require from th« several 
religions, not only that ihcy shall not embroil the stale, but 
that lhe> shall not raise disturbances amcng themselves. A 
citizen does not fulfil the laws by not disturbing the govern- 
metit; it is requisite that he should not trouble any citizen 
whomsoever. 

lo. — T/ie samf Subject continued 

As there arc scarcely any but persecuting religions that have | 
an extraordinary ccal for being established in other places (be- 
cause a religion that can tolerate others seldom thinl^s of ita i 
own propagation), it must, therefore, be a very good civil bw, 
when the sta.t« is alri^ady satisfied with the established religion, 
not to suffer the establishment of another.H 

This Ls then a lundamentaf pnnctpic of the political laws in 
regard to religion: that when the state is at liberty to receive 
or to reject a new religion it ought to be rejected; when it is 
received it ought to be tolerated. 

iT,^?f changing a Religion ^^ 

A prince who undertakes to destroy or to charge the es* 
tablishcd religion of his kingdom must greatly expose himself. 
If his government be despotic, he runs a much greater risk 
of seeing a revolution arise from such a proceeding, than from 
any tyranny whatsoever, and a revolution is not an uncommon 
thing in such states. The reason of this is thai a state cannot 
change its reli^on, manners, and customs in an instant, and 
tt'ith the same rapidity as the prince publishes the ordinance i 
which csiablishesa new religion. 

Be:j;ides, the ancient religion is connected with the constilu* 

«1 da MF mnn to ipuV In tbb tht cbH ai th« prtCfdinE chAplrr, ind 

cb4i>ivf uf tl»c Cliribiuti rtliiiun- lor, ih* " Ddeoot gl (ha 5pwli w Law**'* 

M I tiAVG elirwhfTt obnrrvrrt. fhc Oifi*- PVl II. 




THE SPIRIT OF LAWS 



53 



two of the kingdom and the new one is not ; tlic lormer agrees 
irilh llic climate and very oficn the ecw one is opposed to it, 
Moreover, the citiJiciis become disgusteil with their laws, ^ind 
look tipon tltc government already established with contempt; 
they conceive a jealousy against the two religions, instead of 
t Srm belief in one ; in a word» these innovations g;ive to the 
(tate, at least for some time, both bad citizens and bad be* 
lievers* 

19. — Of penal Laws 

Penal laws ought to be avoided in respect to religion : they 
impntK fear, it is true; Iju! as religion has also penal laws 
wbkli iiispifc the saiiic passion, the one is effaced by the other, 
uid between the^e two different kinds of fear the mind becomes 
hardened. 

The tbrealeningv of reli^on are so terrible, and its promiies 
10 great, that when Ihey actuate the mind, whatever efforts the 
magiiitrale may use to oblige lis to renounce it, he seems to 
leave us nothing when he deprives us o( the exercise of our 
religion, and to bereave us of nothing when we are allowed to 
profess it. 

It is not, therefore, by fitting the soul with the idea of this 
peat object, by hastening her approach to that critical moment 
in which it ought to t>e of the highest importance, that religion 
can be roost successfully attacked: a more certain way is, to 
tempt her by favors, by the conveniences of life, hy hopes of 
fonune; not by that which revives, but by that which ex- 
tinguishes the sense of her duty; not hy ttiat which shocks 
her, but by that which throws her into indifference at the lime 
when other passions actuate the mind, and those which religion 
inspires are hushed into sitcncc. As a general nile in changing 
a religion the invitations should be much stronger than the 
penalties. 

The temper of the human mind has appeared even in the 
flature of pimishmciits. If we take a survey of the persecutions 
in Japan.f we shall iind that they were mere shocked at cniel 
torments than at long stiffcrinp?!. which rather weary than 
affright, which arc the more difficult to surmount, from their 
tpftearing less difficult. 

V Tft ilv " Collection (A Vofigiet that coatrrbuleJ la Ih* «t>b1IthDmt of an 
Kwi Intfifl Cnmpvnr." ^^^ v< 



Li 



UONTGSQU1EU 

In a wofd, hiitovy mffidently infeniis nt that penal laws 
bare ntvcr bad aaj tAktt effect tfaui to destn>y. 



I 



iy^~A mo^ humbli Remonstrance t9 ikt tnquiniors of Spain 
and Portugd 

A Jewess of eighteen > cam of age, who was burned at Lisbon at 
the last 9ut^da-ffj gave occasion to the following little piece, 
ibc niosi idle. I believe, that ever wa» writteo. When we at- 
tempt to prove things so evident we are sure never to convince. 

The aathor declares, that thoagh a Jew he has a respect (or 
the Christian religion ; and that he should be gtad to take away 
from the princes wJk> arc not Chnsdaiu. a ptausit>]e pretence 
(or persecuting this religion. 

" You complain, " «i>-« he to the Inquisitors, " that the Em- 
pCTor of Japan caused all the Christians in his dominions tn 
be bumcd by a slow fire. But he will answer, we treat you who 
do not bchcve like us, as you yourselves treat those who do 
not believe like you ; you can only comptain of your weak- 
ness, which has hindered you from extermtnatiiig us, and 
which has enabled ds to cxtcririnate you. 

"' But it must be confessed, that you are much more cruel 
than this cnipert>r. You put us to death who believe only what 
yoH l>elievc. because we do not believe atl that >'OU believe. 
We follow a religion, which yoa yourselves know to have been 
formerly dear to Gud. We think tliat God loves ft still, and 
yon think that he loves it no more : and because you judge 
thus, you make those suffer by svford and fire who hold an 
error so pardonable as to believe that Cod still loves what h *-^ 
once loved.w ^H 

" M you are cruel to us. you arc much more so to our chil- 
dren; you cause them to be burned because they foilow the 
inspiration* given them by those whom the law of nature and 
the laws of all nations teach them to r^rard as gods 

" You deprive yotirsclvcs of the advantage you have over 
the Mahommcdans, with respect to the manner in which their re- 
ligion was established. When they boast of the number of 
their believer*^ you tell them that they have obtained them by 



Jrwi \y ihrir not pcrccrviflf Ihil lb« 
cfmicmir of ih* foipal ti la Iba ordcf 



of i!i« (lefr«M of Col-. A.r\A thm It U la 
Ihil lifrbt g OMwqtMna ol tan in 




THE SPIRIT OF LAWS 

TJolencc. and thai th«y hare cxtendvcl their religion by ili« 
sword ; why llien do you c.siabli&h yours by fire ? 

** Whtn you wotiW bring us over to you, we object to 2. 
scarce from which you glory to have des-cendwJ, You reply 
lotis, that though yoar religion i« new, it is divine; and you 
prove it from it5 growing amidst the penecutions of pagans, 
ind when watered by the blood of your martyrs ; but zt present 
jt>u play the part of the Diocletinnii, and make us lake yours. 

" We conjure you, not by the mighty God whom both you 
and we sen-e, but by that Christ, who, you tell us, took upon 
htm a human form, to propose himself as an example for you 
to follow ; we conjure you to behave to us as he himself would 
behave wcxc he tipon earth. You would have us become Chris- 
tians, and you will noi be so yourselve*. 

■• But if you will not be Christians, be at least men ; ucai us 
u you iroLild, if hnviiig only the weak liglii oE justice which 
nature bestows, you h^d not a leligion to conduct, and a revela- 
tion to enlighten you. 

" If Ifoavcn has had so gre^t a tove for you aa to make you 
lec the truth, you have received a singular favor; but ifl it for 
children who have received the inheritance of their father, to 
hate thm^ who Have rn! ? 

" If you have this truth, hide it not from us by the manner 
in which you propose it. The cliaracteristic of tnith is its tri- 
iHnph over hearts and minds, and not that impotency which 
yon confess when you would force us to receive it by tortures. 

" If you were wise, you would not put us to death for no 
other reason than because we are unwilling to deceive you. 
If yoar Qirisi is the son of God. we hope he will reward us tor 
being so unwilling to profane hi» mysteries: and we believe 
that the God whom both you and we scr\e will not punish us 
for hiving suffered death for a religion which he formerly gave 
us, only because we believe that he still continues to ||^ve it. 

'* Vuu live ill £n age in which the Ijg1il df nature shines more 
brightly than it has ever done; in which philosophy has eii- 
Hghtcucd human undcratandingii ; in wliich the morality of 
yotir gospel has been better known; in which the rcapcctivc 
rights of mankind with regard to each other and th« empire 
whieh one conscience has over another are beat understood. 
If you do not, iherelore, shake off your ancient prejudices. 




UOHTESQUIED 



which, wHls! iinr^ardtd, mingle with your passton^, it miut 
be confessed that >ou are incorrigfibte, incapable of any degree 
of light or instruction ; and a nation mufit be very tinhappy 
that gives authority to such men. 

*■ Would you have us frankly tell you our thoughts? You 
consider us rather as your enemies tlun as the enemies of 
your religion ; for if you loved your religion you would not 
suffer it to be cormptccl by such gross ignorance. 

" It is necessary th^t we should warn you of one thing; that 
is, if any one in times to come shall dare to asscn. that in the 
age in which we hve, the people of Europe were civihzed, you 
will be cited to prove that they were barbarians ; and the Idea 
they will have of you will be such as will dishonor your age, 
and spread hatred over ail your c^ontenipofarics.*' 

14. — tVhy the Christian Religion is so odious in Jopan 

We have already rnenlioned the perverse temper of the peo- 
ple of Japan.r The magistrates considered the firmness which 
Christianity inspire*, when they attempted to make the people 
renounce their faith, as in itself most dangerous; they fancied 
thai it increased their obstinacy. The law of Japan punishes 
severely the least disobedience. The people were ordered to 
renounce the Christian religion; they did not renounce it; 
this was disobedience; the magistrates punished this crime; 
and the continuance in disobedience seemed to deserve another 
punishment. 

Punishments among the Japanese are considered as the re- 
TCilge of an insult done to the prince; the songs of triumph 
sung: by our martyrs appeared as an outrage against him : the 
title of martyr provoked the magistrates; in their opinion it 
signified rebel; they did all in their power to prevent tlieir 
obtaining it- Then it was that their minds were exasperated, 
and a horrid struggle was seen between the tribunals that con* 
demned and the accused who suffered; betM-ccn the civil laws 
And those of religion. 



#BeokJV. dup^auEt*. 



I 




THE SPIRIT OF LAWS 



57 



15, — Of the Propagation of KcUgicn 

AH the people of the East, except the Mahomniedans. believe 
ill rcligjons in themselves indiffcrert, Tliey fear the estab- 
lishment o( another religion^ no otherwise than as a change in 
pjTcnimcnl. Among the Japanese, where there are many 
tvci%t and where the state has had For so long a time an eccle- 
siastical superior, they never dilute on rdigion,^ It is the 
»me with the people of Siain.^ The Calmuck» a do more, they 
make it a point of conscience to tolerate every specie.^ ol re- 
ligion ; at Calicut it U a maxim of the state, that every rcUgicin 
is good> 

But it does not follow hence, that a religion brought from 
a far distant country, and quite different in climate, laws, man- 
ners, and c'jstoms, will have all the success to which its holi- 
ness might entitle iL Thii Is more particularly true in great 
despotic empires: here strangers are tolerated at first, be- 
cansr there is no altentton given to what doe* not seem to 
strike at the authority of the prince. As they are extremely 
ignorant, a European may render himself agreeable by the 
knowledge he commuRtcates: this is very well in the begin- 
ning. But as soon as he has any success, when disputes arise 
and when men who have some interest become informed of 
it, as their empire, by its ver)' nature> above all things requires 
tranquillity, and as the least disturbance may overturn it, they 
proscribe the new religion and those who preach it: disputes 
between the preachers breaking out, they begin to entertain a 
dstaste for religion on which even those who propose It are 
Dot agreed. 

y$tt Kcasltr. o^Htttorr of the Tkrun," pirt V* 




BOOK XXVI 



OF LAWS IN RELATION TO THE ORDER OF 
THINGS WHICH THEY DETERMINE 

I.'— Idea of this Book 

MEN are governed by several kinds of taws; by the law 
of nature: by the divine law, which i& that of religion; 
by ecclesiastical, othe^^■isc called canon law, which is 
that cF religious polity ; by the law of nations, which may be con- 
sidered as the civil law of the whole globe, in which sense every 
nation i» a citizen; by the general political law, which relates to 
that human wisdom whcrcc all societies Uerivc their origin; by 
the particular political law, the object of which is each society; by 
the law of conquest foiinJtd on this, that one nation has been 
willltig and able, or has had a ri|;lit to ofTcr violence to another; 
by ibc civil law of every society, by which a citizen may defend 
his possessions and his life against the attacks of any other citi* 
Tcn; in fine, by doTnestic bw, which proceeds from a society's 
being divided into several Eamilies, all which have need of a par- 
ticular government. 

There are therefore ijifferent orders of lavrs. and the sublimity 
of human reason consi&ls in perfectly knowing to which of these 
orders the things that are to be determined ought to have a 
principal relation, and not to throw into confusion those princi- 
ples which should govern mankind. 

3.^ — Of Laws divine and human 

We o'lght not to decide by divine laws what should be decided 
by human laws; nor determine by human what should be de- 
tcimincd by divine laws. 

These two sorts of laws differ in their origin, in their object, 
and in their nature. 

It 15 universally acknowledged, that human laws are, in their 



4 

4 




THE SPIRIT OP LAWS 



59 



own nattiTC, diiiFrrrnt from rho^r o( rrligion ', thU i* an irrprtrlani 
larinciple: 1>ui thJ^prmciplci^itacUsubjccttootlicr^, which mu&t 
be inquired tntc. 

i< It is in ihe nature of human laws to be subject to all the 
accidents which c^n happen, ^iid io vary in proportion as the w\l 
of nvan changes; on the contrary, t>y the nature of the 1aw*< of 
religion, they arc never to vary. Human laws appoint for some 
good; those of religion for the best: good may have auoUier o!>- 
ject, bccnu5C there- arc niany kinds of good : but the best is but 
one, it cannot therefore chanj^c. Wc may alter laws, because 
they are repuiecl no more than good; but the institutions of re- 
ligion arc always supposed to be the best. 

a. There arc kingdoms in whkli ihc Zuwe are of no value as 
they dcpeiuj only on the capricious and fickk humor of the sov- 
ereign. If in these kingdutn? the laws oi religion were of the 
same nature a$ the human in&ti tut ions, the law^ of religion too 
would be of no value, it is, however, nccc^aiy to the society 
that it should have sometbtng 6xed; and it Is religion that has 
thU *lahili!y. 

3. The influence of religion proceeds from its being believed; 
that of hitman laws from their being feared. Anticjuity accords 
vrilh retifi'ionHbeeaiiscwehavc frequently a firmer beUef in thinfrs 
in proportion to their distance, for we have no ideas annexed to 
thero drawn from those times which can eonlradict them. Hu- 
man laws, on the contrary, receive adx'antage from their novelty, 
which implies the actual and particular attention of the Ic^slator 
to pat them in execution. 

3-^-0/ civil L41WS contrary to the Law of Nature 

If a slave, says Flato, defends lumse|[, and kills a freeman, he 
ought to be treated as a parricide^ This is a civil law which 
punishes self-delence, though dictated by nature. 

The law of Henry VIII which condemned a man without be- 
ing confronted by witnesses was contrary to self-defence. In 
order to pass sentence of comtcnination, it Is necessary lliat the 
wiincsfcs shouH know whether the man against whom they 
make tlicir deposition is he whom they accuse, and that this m^n 
be al liberty to say, T am not the periion you mean. 

The law passed duHrg the same mgn, which condemned 
oUh. IX. "on Uwi.*- 




fe 



MONTESQUIEU 



every woman, who» having <:aiTied on a cnmittal commerce did 
noi declare it to the king before her marriage, violated the re- 
gard due to natural modesty. It is as unreasonable to oblige a 
woman to make this declaration, as to oblige a man not to at* 
tempt the defence of his own life. 

The law of Henry H which condemned the woman to death 
who lost her cbild, in case she did not make known her pregnancy 
to the magbtraic, was rot less contrary to sdf-dcfence. It would 
have been sufficient to oblige her to infotm one of her nearest 
relatives, who might watch over the preservation of the infant. 

What other informal:on could she give in thi* Mtuation, so tor- 
turing to natural modesty? Education has heightened the no- 
tion ot preserving that modesty; and in those criilcal moments 
scarcely has she any idea remaining of ihc ]o5« of life 

TlierchiwlKcnmuchtalkofalawin Engl^ml, which permitted 
girls seven years old to choose a husband,* This law was shock- 
ing in two ways; it had no regard to the time when nature ^vcs 
maturity to tJie unclerstanding, nor to thai in which she gives 
maturity to the body. 

Among the Rinnans, a fatlicr might oblige his daughter to re- 
pudiate her hii<ibflnd. though he hin^self had consented to the 
marriage/ But it is contrary to nature for a divorce to be in the 
power of a third person. 

A divorce can be agreeable to nature only when it is by con- 
sent of the two parties, or at least of one of them; but when 
neither consents it Ls a monstrous scparalion. In short, the 
power of divorce can be given onl> to those who feel the incon- 
veniences of marriage, and who are sensible of the moment when 
it is for their interest to make them cease. 



4 
4 



j^^-The some Subject continued 

GundebaTd, King of Burgundy, decreed, that if the wife or son 
of A person guilty of robbery did not reveal the crime, they were 
to become staves,'' This was contrary to raiurc: a wife to in- 
form against her husband! a son to accuse his father) Toavenge 
one criminal action, they ordained another still more criminal. 

The law of Rcccssuinthiis permits the children of theadulter- 



I Mr tliitl', In tii* " rHtJrlim aa iKp 



Ft Judldo de motibiu pubtaio." 
d Law d th* Biirnnrli«n«, ttt^ «r. 



THE SPIRIT OF LAWS 



or tiKMC of her hu:ibaDd, to accu.%c li«r, And to put the staves 
olthe house to the torture.' How iniquitous the law, which, to 
preserve a purity of niorah, overturn* nature, the origin, the 
source ol all inoralit>- 1 

With pleasure we behold in our theatres a young hero/ ex- 
press as much horror against the discovery of his nicther-in-Uw's 
guilt. 35 agairsi Ehe guilt iUelf. In his siirDnse, lhoLi»;h accused, 
judged, condemned, proscribed, and covered with infamy, he 
Kaixcly dares to reflect on the abominable blood whence Phxfira 
sprang ; he abandons the most tender object, all that h most dear, 
aJ] that Lies nearest his heart, all that can fill him with rage, to 
deliver himself up to the unmerited vengeance of the gods. It is 
nature's voice, the sweetest of all rounds, that inspires us wtih 
this pleasure. 



5-— CfliW, in which wt ntay fudge by the Friftciptes of the chii 
Law in Hmiting the Frindpics of th€ Laiv of Nature 

An Athenian law obliged children to provide For their fathers 
when falleo irto poverty ;jC it excepted those who were bom of a 
courtesan,* those whose chastity had been infamously prosti- 
tuted by their father, and those to whom he had not given any 
means of gaining a livelihood.' 

The law considered that, in the first case, the father being un- 
certain, he had rendered the natural obligation precarious; that 
in the second, he had sullied the life he had given, and done the 
greatest injury he could do to his children in depriving thetn of 
their reputation ; that in the third, he had rendered in support able 
a life which had no means of subsistence. Tlie law suspended the 
natural obligation of children, bceause the father had violatecl 
bift; it looked upon the father and the £on a$ no more than two 
citizens, and deternined in respect to them only from civil snd 
political views; ever condderrng that a good republic might to 
have a particular regard to manners, I am apt to think, that 
Solon's law was a wise regulation in the first two cases, whether 
that in which nature ban left the son in ignorance with regard to 
his father, or that in which she even seems to ordain he should 

f tath««o4p oFffif Vialffot^*. Tib. tlf. ^ UrnJcr r**fi of litfam)'. ■noV>ter im^rr 



tit J, MC, 13. 



Ii PIvtarrK - Ljf« of S&lan." 



•rt'" up. iriiL 



dthort, mA 




6i 



MONTESQUIEU 



not own bim; hut it cannot be approved with rc&pcct tci the 
thixd, where tb< father bad only violated a civil instittitioii. 



6. — That th^ Order of succession or Inheritance depends oh 
the Principles of poHHcoi or civil l^w, end noi on ihose of 
th^ Law of i<JoHift 

Tht Voconian law ordained that no woman should be left beir* 
C«s lo an eMatc, nut cvcii if !>hc had aik only child. Never was 
tlicrcaUw.sajsSl- AuguMiiK, iiiurcuijjuat.; A forniuUof Mar- 
Cidtus treats that ciulorn as impious which dqinvca daughters of 
Ihe ng:bt of succeeding to the estate of their fathers,* Justinian 
gives the af pcllation of barbaro^is to ihc nght which the male& 
had formerly of suceeeding tn prejudice to the daughlrrsJ These 
notions proceeded from their having considered the rigbt of chil- 
dren to succeed to their father's possessions as a consequence of 
the law of nature: which it is not. 

The law of raturc ordains that fathers shall provide tor thdr 
children; but it doe^ not oblige them to make them their heirs* 
The division of property^ the Jaws of this cKvision, and the succes* 
sion after the death of the person who has had this division can 
be rcgtalaled only by the community, and consequently by politi- 
cal or civil laws. 

True it is, that a political or civil order frequently demands 
that children should succeed to their father's estate; but it does 
not always make this necessary. 

There may be some reasons given why the laws of our fiefs 
appoint that the eldest of the males, or the nearest relatives of 
the male side, should have all. and the females nothing, and why, 
by the laws of the Lombards,^ the siaters, the natural children, 
the other relatives; and, in their default, the treasury might 
share the inhentanee with the daughters. 

It was regulated in some of the dynasties of China, that the 
brothers of the emperor should succeed to the throne, and that 
the cliildrer should not. If they were wilting that the prince 
should have a certain degree of experience, if they feared hi* be* 
ing too young, and if it had become necessary lo prevent eunuchs 
from placing children successively on the throne, they might 
very justly estabhsh a like order of succession, and when some 
f-Dta*tiBte Deintb- IV, J" Nov.lt." *i. 



4 




THE SPIRIT OF LAWS 



wrilcra have trcatc<I these brothers as usurpers, they have ju<igcd 
only by ideas received from ihe Ia*-s of thctr own countries." 

According to the custom of Numidia,^ Dcsalces, brother of 
Gab, snccecfled to the kingdom, noi Ma«inissa, his sor. And 
CTcn to thU day, amon(f the Arabs in Barbary. where each village 
has its chief, they adhere to this ancient custom, by choosing the 
uncle, cr aome other relative to succeed-^ 

There arc monarchies merely dcciJvc; and since it is evident 
lluit the order of succession ought to be derived from the poliEical 
or civil laws, it is for these to decide in what cases it is aj^eeablc 
to rc:ascn tlial (he &ucce5.f4on be granted to children, and in what 
cases it Giight to be given to otliers. 

In countries where polygamy i& established, the prince has 
many children; and the number of them is much greater in 
some ol these countries than inotTiers, There are Mates v where 
it is impossible for tlic pcupic to maintain the children of the king; 
tliey iiiEglu therefoic niukc it a law that the crown ahdl devolve, 
QM on ihc king's clitldrcn. but on iliusc of Ins sister. 

Aprodigiousnumbcrcf children would expose the state to the 
roost dreadful civit wars. The order of succession which gives 
ihc crown :o the children of the sister, the number of w*hom is not 
larger than those of a prince who has only one wife, must pre- 
vent ihpsff inconverience*. 

There are people among whom reasons of state, or some 
maxims of rcbgion, have made it ncccssar>" that the crown should 
be always fixed in a certain fiiniily: hence, in India, proceeds 
the jealousy of their tribes/ and the fear of losing the descent; 
tliey hare there conceivied thai never to want princes of the blood 
royal, they ought to take the children of the eldest sister of the 
king, 

A general maxim : it is an obligation of the law of nature to 
provide for onr cliildren ; but to make them our successors n an 
obligationof the civil or policical bw. licncc are derived the dif- 
ferent regulations with respect to bastards £n the different coun* 
tries of the world; these arc according to the civil or political 
laws of each country. 



t f-<vy, d«»d. ^ lib, Vr. 

f sba*** " Tri>H</' vol I. r. 4« 

« S« iht *' C9ri»oii4n of Voy4««« thai 



Stu- Ani Mr £milh't *' Vo];K^ io 
utim." put tr p, ija, ccncernioc ibt 
kifil|t1i>in vf fudi'i. 
wStt" Edjlyla* Utifrt/' t^tt. u. »ad 

lh« " Vctr««<-9 tltAT coAiribuitd 14 lt>* 

«Ul>1j«btneav c4 *n Eut IndU Coir 

pAOXi" VoL 111- put II' p. ^44, 




64 MONTESQUIEO^ 

7- — That w€ ought not to JeciiU by tht Prtapts of Religion 
what btiongs only to lh< Law cf Nature 

The Aby«mians have a mosi severe fast of fifty flay«, whteh 
weakens ihcm to such a degree, ihat for a long time they arc 
incapable of business: the Turks do not fail to attack ihem after 
their lent.' Rcli^un ought, in favor of the natural right of sdf- 
defence, to set bounds to tliefe cuMoms. 

Tlie Jews were obliged to keep the Sabbath; but it was an in- 
stuice of great stUfHdtty in this nation not to defend themselves 
when their enemies chose to attack thcni on this day.' 

Cambyscs laying stege to Pelusitini* set in the first rank a great 
number of those animaU which the l4;:>'ptians regarded as sa- 
cred ; the consequence was, that the soldier* of the garrison durst 
not inoIcM them. Who does not sec that self-defence is a duty 
superior to every precept ? 

8, — That itv oughl not to regulate by the Ptineiphs of the 

coHon Lata Things which should be regulated by those of the 

civil Law 

By the dvit law of the Komana u he who look a thing privately 
from a sarrrd pUce was punishe-d only for ihe gi"lt of theft; by 
the cnncn law, he was punUhed for the crime of sacrilege,*' The 
canon law takes cognizance of the place; the civil laws of the 
fact. Btit to attend only to the place is neither to reflect on the 
nature and definition of a theft, nor on the nature and definition 
of sacrilege. 

As the husband may demand a separation by reason of the 
infidelity of hi* wife, the wife might formerly demand it, on ac* 
count of Uic infidelity of the husband.tt- Tliis custom, contrary 
to a r^ilation made in the Roman 1aw&,.r was introduced into 
the ecclesiastic court j* where nothing was regarded hnt the max- 
ims of canon law; and indeed, if we consider marriage as a thing 
merely spiritual, and as relating only to the thing* of another life, 
the viobiion h in both cases the same, but the political and civil 
hkw£ of atniost all nations have, with reason, made a (li&tinctioQ 

j-CulltcIioEi tA VoT«l<* l^t con- " Cvj«a" obtcmt. Ikth XIII. Mp. nfeb 

f-ibut«El ta ihf ««i*bhi1i(n«iH of an Ekat tarn. Hi. 

ndlii CoimartT'" *">!' J*- PP- )f "n-l i"J' •" I>rjwm«n<^lr " va ibc Bncical <uf 

t A\ Id^T J"' *hfffl P^mpcy bcttf^d tumi lif Beauvoiiii." thup- *vtii. 

Ihs T«n|>It I>io- XXXVl.-^&l * t-t* ^-r ihe fir»t C**dff. '' *d Wk- 

k Lcr T " 'fi 1«r- Jnliam pKiililui." Juliftm dt aAuhcrii^" 

9 C*pit4 quitqu* </, ^viHt(4n« 4, y M uir*<ni liter ^"^ ("ri It^t Ctf|Bia> 

■lue 01 lfac«e Ihla^ is Fnoc^ 



I 

4 



« 



n 




THE SPIRIT OF LAWS 



6S 



between them. They have required from llie uomiMi a degree of 
rc»cr*c an*l continciicy, which tlicy liavc not cxactcO from Ihe 
men; becatiac iti womrn, a violation o( chastity supposes a re- 
nunciation of atl virtue; bccauS'C womcn^ by violating the Uwj 
of marriagr, <juit the sTatc of thdr natural dqwnclence ; because 
nature ha« marked the infidelity of women with certain Kigns; 
aud. in fme, bocanso th*^ children of the wife born in adultery 
nnresMrily belong and are an expensp to tlie husband, while the 
children produced by the adulEcry of the huiband arc not the 
wife's, nor arc an expense to the wife. 



9.— r/w( Things zvkich ou^kt to be regulated by the Principles 
of civil Lavj can seldom tc rc£t(Uued by those of Religion 

Tlie Iaw« of religion have a greater sublimity; the civil laws 
a greater extent. 

The laws of perfection drawn from religion have more in view 
the soodness of the pennon tIi;Lt observes them than of the society 
in which they are observed: the civil laws, on the contrary. Imve 
more in \-iew the moral goodness of men in general than that of 
individtjalfr. 

Thus, venerable as those ideas are which imtrcdiately spring 
from relii^on, th<ry c»ught not always to fler\'c as a first principle 
to ihe civil Iaws; bcc^u&e the&c liave another, the general wel- 
fare of soeieiy. 

The Romans made regulations among theinselvcs to preser\"e 
the moraU of their women; thcKC were political iiistiiulions. 
Upon the establishment of monarchy, they made civil laws on 
thi« head, and formed thcnj on the principle* of their civil gov- 
emmoitt. When the Chriitian religion became predominant, the 
new lawft that were then made had less relation to the general 
reetitudc of morals, than to the holiness of marriai^c; they had 
\tss regard to the union of the two sexes in a civil, than in a spirit- 
ual State. 

At fiTiil, hy the Roman Uw, a hni;h;ind, who brottght back 
his wife into his house after she had been found ^ilty nf adultery, 
was punished as an accomplice in her debauch,* Justinian, from 
other principles, ordained thai during the space of two years he 
might go and take her again out of the monastery .« 

Let. 11. Mt. nit S. "sd he- Julum a"K9r." m. Cot 4b c«p. v. Ilu ijo^ 
you II s 



4! 



<« 



MONTESQUIEU 



Formerly^ when a woman, whoac husband was gone lo war, 
h«ard no longer any tidings of him, she might ca&ily m^ry again, 
becaii^ she had in her hands the power oE making a divorce. 
The law of Constantine obliged the woman to wait four years, 
after which sJie might send ihe bill ai divorce to the general; and, 
it her husband returned, he could not then charge her with aduU 
(ery,* Hui Justinian dccrettl, ih'M Iti lh<r time be never so long 
after the departure of her husband, she should not raarry unless, 
by the depo^tion and oath of the general, she could prove the 
death of her husband.^ Justinian had in view the indissolubility 
of marriage; bul we. may *afely say that he had it loo much in 
view. He demanded a positive proof when a negative one was 
sufficient ; he re<;uired a thing extremely difficult to give, an ac* 
count of the fate of a man at a great distance, and exposed to so 
many accidents; he presumed a crime, that is, a desertion of the 
husband, when it was so natural to presume his death. He in- 
jtu^ed the commonwealth, by obliging women tu live out of mar* 
riagci he injured individuals, by exposing them to a thousand 
danger?. 

The law of Juatinian, which ranked among the causes of di- 
vorce the conicnt of the bus^hand and wife to enter into a mon- 
astery, was entirely opposite to Iht^ principles of the civil laws.^ 
It IS natural that the causes of divorce should have their origin in 
certain impediments which could not be foreseen before mar- 
riage; but this desire of preserving chastity might be foreseen, 
since it is In ounclves. This law favors inconstancy in a state 
which is by its very nature perpeltial; it shook the fundamental 
principle of divorce, which permits the dissolution of one mar- 
ri^ngc only from the hoi>e of another. In short, if we view it in a 
religious light, it is no more than giving victims to God witliout 
a sacrifice. 



n 



4 



lo»— '/» zvhat Case w& cught to follow the civil Law which 
fcrmiU, and not the Law of Religion xi/hich forbids 

When a religion which prohibits polygamy h introduced into 
a country where it is permitted, we cannot believe (speaking 
only as a politician) th;it the laws of the country ought to suffer 






f Aitih. l]odi4 Qiuatiicaaiiuc cod- ' 



de 



dAoLlL quod hodiQ cod. *'d« npih 
dii*." 




THE SPIRIT OF LAWS 



*7 



t man who lias many wives to embrace thi& rcli^on; uTiltf» the 
magistrale or the husband should mdeninify them, by restoring 
Ihem in some way or other to ihdr civil slate. Without this their 
condition would be deplorable; no sooner would ihcy obey the 
laws Ihan they would find tliemselves deprived of the greatest 
advantaj^cs of society, 

II, — Thct human Courts of Justict should not be regulated by 
the Maxims of those Tribunah which relaie to the other Life 

The tribunal of the inquisition^ formed by the Christian monks 
on the idea of the tribunal of penitence, is contrary to ajl good 
policy. It has everywhere met with a general disliWe, and must 
hare *unk iinder ihc oppositions it met with, if those who were 
resolved to establish it had not drawn advantages even from these 
oppositions. 

This tfibtinal is in&upportable in all governments. Tn mon- 
archid, it only makc^ informeis and traitors: in republics, it 
only forms dishonest men; in a despotic state, it is as destructive 
aslhegovcrnnieTii it&clf. 

13.— T/w scm^ Subject cotttinued 

It is eme abuse of this tribunal, that of two persons aectised of 
Ihe same crime, he who denie* i^ condemned to die : and he who 
confesses avoids ihe punishinent. This has its source in mon- 
astic ideas, where he who denies seenu in a slate of impenitence 
and damnation; and he who confesses, in a slate of repentance 
and salvation. But a di,stinction of this kind can have no relation 
to human tribunals. Human justice, which sees only the actions, 
has but one compact with men, namely, thai of innocence; di* 
vine jnstice, which sees the thoughts^ has two, tliat oi innocence 
and repentance. i 

13.-/11 what Cases, with regard to Marriage, we aught to foU 
low the Lazvs of Religion; ap^d in what Cases ^ve should fol- 
low the cizil Laws 

Tl ha« happened in all ages and countries. Ihat religion haft 
been blended with marna^e*. When certain things have been 
considered as impure or unlawful, and had neveriheless become 
necessary, they were obliged to call in religion to legitimate in 
the one case, and to reprove in others. 



tiS 



MONTESQUIEU 



On the other hand, as marriage is of all human actions that m 
which society is most interested, it became proper that this 
^oiild be regulated hy the civil laws, 

Evefj ihing ivhich relates to the nature of marriafje, iT* form, 
tlic manner of contracting it, the fntitf utncss it occasions, which 
has niacle all nations consider it as the object of a panicuUr bene- 
diction. 3 benediction \^hich, not being always annexed to it, is 
supposed to depcn[i on certain superior graces; all this is within 
the resort of religion. 

The consequences of this union with regard to properly, the 
reciprocal advantages, everything which has a relation to the 
new family, to that from which it sprang, and to that which is ex- 
peeled to arise; all this Tclatc& to the civil laws. 

As one of the great objects of mamage is to take away that 
uncertainly which attends unlawful conjunctions, religion here 
stamps its seal, and the civil laws join theirs to h, to the end that 
it may be as authentic as possible. Thus, besides the conditions 
required by religion to make a marriage valid, the civU laws may 
sdll exact othcrit. 

The civil laws receive this power From their being additional 
obligations, and not contradictory ones. The law of religion in* 
eistt upon certain ceremonies, the civil laws on the consent of 
falherK; in tliU ca^c*, they demand «omelhing more than that of 
religion, but they demand nothing contrar)* tD it. 

It follows hence, that the rcli^ous law must decide wheth- 
er the bond be indissoluble or not: for if the laws of religion 
had made the bond indissoluble, and the civil laws had de- 
clared it might be broken, they would be contradictory to each 
other- 

Sometimes the regulations made by the civil laws witli respect 
to marriage, are not absolutely necessary; such are those estab- 
lished by the laws, which, instead of annitUing the marriage, only 
punish those who contract it. 

Among the Romans, the Fapian law declared those marrbges 
illegal which had been prohibited, and yet only subjected them to 
a penalty ; ' but a scncttis-con^uUHm, made at the instance of the 
Emperor Marcus Antoninus, declared them void; there then no 
longer subsisted any such thing as a marriage, vHfe, dowry, or 



I 



f Sm «h«l ta« bf«n uld on <hlt >ub 
JflCt, la lioah XXEII. *htifi. tt. in th« 



rvbHon Ihejr bear 



to ihe nsmbcf «l 




THE SPIRIT OV LAWS 



«9 



hiitband/ The civil Uws detemijne according to circumstancu; 
Kuuctimcfi they arc most attentive to rq^aii the evil; at other*, 
to prevent it< 

I4^^iii what instances Marriages bduecn Rflativcs shall be 
fcguiaUd by the Laws of !^ature: and in what instances by 
the citil Laws 

With regard to the proWhition of mamago between rebtive^, 
h b a tiling extremely delicate to fix exactly the point at which 
the laws of natvirc stop and iwherr the rivil laws bcgtn. For this 
ptirpoftc we nitml e&tablish some principles. 

The marriage of the son with the mother confounds the state 
ot thingf : the Aon ought to li:4ve nn unlimited respect for !iifi 
mother, tlie wife an unlimited respect for her husband ; therefore 
the marriage of the mother (o her son would subvert the natural 
stale of hath. 

Bcwdes, nature has forwarded in woTnen the lime in which 
they are able to have children, but has retarded it in men; and, 
lor the same reason, women sooner lose this ability and men later, 
if the marriage between the mother and the son were permitted, 
it would almoM always be the ease that when the luisband was 
cspable of entering into the views of nature, the wife would be 
incapable. 

The marriage between the father and the daughter i» contrary 
to nature, as well as the other ; but it is not less contrary, because 
it has not thcAC two obstacles. Thus, the Tartars, who may 
marry their daugtilcrs^ nevtT marry their mothers, as we »ee in 
theaecounts we have of that nation.* 

It has ever been the natural duty of fathers to wateh over the 
ehastily of their children, Inlrusntefl with the rare of their erluca- 
tiofli, they arc obliged to preserve the body in the greatest perfec- 
tjon, and the mind front the least corruption ; to encourage what- 
ever has a tendency to inspire them with virttious desires, and to 
nourish a becoming tenderness. Fathers, always employed in 
preserving the moraU of their children, must have a natural aver- 
sion to everything that can render them corrnpt. Marriage, you 

/Sec I** tS, ft- "4e rUn nuptJi- 

ui iaivr vJniin vi uio- permllied/' hf add*, 

TirUTK" part Iir. 



*dc doostlonibi 



PUD 

ihfa, Anil^ HT1 rrlKDi, Id hLi cm' 



b^tty ttoppcd n 9 c*rt»tn pboe t* 
wauty EiCA bit duuifhtrr, " A thknir 
permilled/' h^ add*, " br ilie Uw« ol 
the BcyxyiiMttatj p. a* 

Jh" H»tH of Ibt 
p. 13b. 



70 



MONTESQUIEU 



will say, is not a corruption; but before marriage tbcy must 
speak, they must jn-ikc their persons beloved, tUe> musi seduce; 
it h lUvs aeOueiion which ought to inspire us witli lionor. 

There should be therefore an insurmountable barrier between 
those who ought to give the cducatton, and tliosc who are to re- 
ceive it, in order to prevent every kind of corruption, even though 
the motive be hwfuL Why do lathers so carefully deprive those 
wlio are to marry their daughters of their company and faniil- 
iarily ? 

The horror ihat arises against the incest of the tirother with 
the »i*ter ^ihoulf! proceed from the same source. The desire of 
fathers and mothers to preserve tlie n)orals ol their children and 
faiiiilies untainted is sufficient toinspirc their offspring with a de- 
testation of everything that can lead to the union of th«: two sexes. 

Tlie prohibition of marriage between cousins-gcrman has the 
same origin, In the early agc«, that is, in the times of innocence; 
in the ages when Ijxury was unknown it was customary for chil- 
dren " upon their marriage not to remove from their parents, but 
settle in the same house; as a small habitation was at that time 
GufHcicnt for a large family; ihc children of two brothers, or 
cousins-german,/ were considered both by others and them&ehes 
as brothers. The estrangement then between the brothers and 
sisters as to marriage subsisted also between the cousin s-gcrman> 
These principles arc so strong and so natural that they have had 
their influence almoM over all the earthy independently of any 
eommunieattan, tt was not the Romans who taught the inhabj- 
tants of rormosa.J that the marriage of relatives of the fourth de- 
gree was incestuous; it was not the Romans that communicated 
this sentiment to the Arabs :m it was not they who taught it to 
the inhabitants of Ihc Maklivian islands." 

But if some nations have not rejected marriages between fath- 
ers and children, sisters and brothers, we have seen in the firtt 
book, that intelligent beings do always follow the law of nature. 
Who could have imagined itl Religious ideas have frequently 



4 



ill V4> tbUB imoiiff th« Aodcnt Ri>- 

J Afnonf the Komiini (hey hkd ttie 
URIC ntRie» (he Cuumni-jEcman wqn 
called broibm^ 

k It wit Ihut tC RoRjf in th« Am apra. 
lill lh« peopk iBAilc ■ Uw t<> ficrmii 
llicm: lliiy wen uritlinc to fBV4>r a n)4n 
cxtfinuty popu!ar« who h«d tauried bi» 



eoijttn'nTm«n,— Flutireh^i trt*liie cP' 
titlrfl " Ou^rtont conptrnldE th« tt- 
tiiri of tfa« KomtniV 

^"CollecUon at VorAr^t tn the !» 
di»^"voVv pnwtl. Ad ftC<Qual otUw 
wtmc r>l fhe iile ni Ftirmou. 

K KoTin. chapter "on WomcD." 




THE SPIRIT OF hA\ 



node meu Call into Uic:^ uiibUkc». II ibc A^syTiann and the rrr* 
\ nUTTiicd tlkdr nioihcrs, the first Acrc inftiicncal by a rcUg- 
trt^icct for Scmtrambt and the second did it tiecame the re- 
fickm oi Zoroaeicr ^\c a preference to thcK mama|;Gft.« \i 
the Egyptunfi muricd their Mstcrs, U proceeded from the wild- 
ncss oE the Egyptian religion^ which conteciated these inantagfeft 
in honor of Uis, As the spirit of rclii^ion leada ub to attempt 
whatever is great and diffinilt, we cannot infer that a thin|£ (■ nat* 
oral from its being consecrated l>y a faUe re1i|fion. 

The principle which JnEomis us that marria^a between failirm 
and cbUdren, between brathcr^ and »i?kteTt, arc prohibited in 
order to preserve natural modesty in iamilies will help ui to the 
discovery of tho^e inarnagcK that are forbidden l>y llie law ol 
nature, and of those which can be so only by the civil law. 

Aa children dwell, or are supposed to dwell in their liither'i 
boose, aod consequently tlie ^n^imlaw with the motlier-in-taw, 
the (aibcr-in-law with the daupbicr-in-law. or wi(c» daiigliicr, 
the marriage between then is forbidden by Ujc law of nature. In 
thia case the resemblance has ibc sanic dTect a» the reality, be- 
: it springs frocn the same cause; the civil law ndilicr can, 
'ought to permit tlicse marriages. 

There ore nation*, as wc ha^'c already observed, among whom 
consina-geTnun arc considered as brothers, because tlicy com* 
vonly dwelt in the aaae bouse; there are otfacra where Ihb cua- 
lunisfiotkixm-tL Among the first the marriage of touiina^er- 
safl ought to be regarded as contrary to niture ; not so among 
Ae olfacra. 

Bat the laws oj nature cannoil be loeaL Therefore, whm theac 
vamagea arc forbiddca or pennittcti, they are, according: to the 
c iMnaitfan cc*, pcmiittcd or forbidden by a crv3 law, 

b ii BOC a occe aaar y custom for the bFOtbef'in'law and the 
■axr-in^av to dwefl in the aame bouse. The marriage between 
Oeni m not tbca proh3MCed to preserve chaatity in tbe tamUy; 
aad die law vUd ioftnda or peftnita it it Dot a law of nature. I>tn 
r, fcgubtcd by cirouMlMoea a«d dcpcadcot « tbe cua- 
partly: Acaeaoecaaesip which tbe liMdcpefld 
<mmc iiajahwOrciwtooiaoltfKiaJMMtaMa 

Bjv cixfllm farvUflBfnafca nim by ibecwinna jvcanstf 



7» 



MONTESQUIEU 



in a fCTfain couniry tbey are found to be m the same eueum- 
stanccs as those forbidden by the law of nature; and ihcy permit 
than when thi» ii not tlte case. I1ic prohibitions of the laws of 
nature arc invariable, bccau£<: the thing on which they «iepcnd is 
invariable; the father, the mother, and the children necessarily 
dwell in the same house. But the prohibitions of the dvil laws 
arc accidental, because they depend on an accidental circiim* 
stance, cousins-gernian and others dwelling in the house by acci- 
dent. 

This explains why the taws of Moses, those of the Egyptians^ 
and of many other natians pcmiiticd the inairiagc of the brother- 
in-Eaw with the siMer-in-law; whilst tlicse very marriages were 
disallowed by other nations. 

In tiiG Indie) they havr a very natural reason fur admitting 
thb !>oTt of marriages. The uncle is there considered as Ihc 
father and is obliged to maintain and educate hi» nephew as if 
he were hi« own cliild; this proceeds from the dispoution of this 
people, which is good-natured and full of humanity. This law or 
ihUaiiitomliatpn«clucfd another; if a husband ha*i lost hii wife, 
hedocsnot fail tomarf)' her Mstcrta which is extremely natural, 
for his new conw^rt becomes the mother of her si&tcr's children^ 
and not a cruel siq>-motlicr- 



15, — That '.vc should not regulate by the Principtes of fioHtieai 

Laws those Things which depend on the Principles of civil 

Law 

As men have given «p their natural independence to live under 
pahtical laws, they have given up the natural community of 
goods to live tinder civil laws. 

By the first, they acquired liberty; by the second, property. 
We should not decide by the laws of liberty, which, as we have 
already said, is only the government of the communiry. what 
ought to be decided by tlie laws concerning property. It is a 
paralogism to say. that the good of the individual should give 
way tothalof thepiiblir; tins can never tatce place, except when 
the government of the community, or, in other words, the liberty 
of the subject is concerned ; this does not affect such cases as re* 
late to private property^ because the public good con»i-ita in cvcry- 






de iQccftift i " Edifrins Letttrt." «tb. 4as 



THE SPIRIT OF LAWS 



<Hi€*s having his property, which was given him by ihc civil laws, 
invariably preserved. 

Cicero maintains, that tht? Agrarian laws wrrc unjust: because 
the community wa< ^'rtahlislicil with no olher view tlun tlial 
ever]rone might be able lo preserve his property. 

Let us. therefore, lay dovh-n a certain maxin^ that whenever the 
public g:oo(l happens to be the matter in question, it is not (or 
the advantage of the public to dqmve an imllvidual of hi^ prop- 
erty, or even to retrench the least part of it by a law, or a po- 
litical regulation. In this case wc thouIJ follow the rigor of the 
civil law, which it the plladtum oE property. 

llnis when the public has occasioii for the estate of an Lndivitl- 
aat, it ought never to act by the rigor of political law; it is here 
that the civil law ought to triumph, which, with the eyes of a 
mother, reg^irds every incliviiltial a^ the whole coTinnuntEy. 

If ilie poliUcal inagi&tratc would creel a publit: edifice, or make 
a new roadi he must indemnify thoac who arc injured by it; the 
public ii in this respect like an individual who treats with an in- 
dividual- It i$ fuUy enough that it can oblige a citizen to tell hit 
inheritance, and that it can strip him of the great privilege, which 
be holds fmm the civil law, of not being forced to alienate his 
poiues^ons. 

After the nations which subverted the Roman Empire had 
abused their very conquests, the spirit of liberty called thein back 
lo tliat of equity. Tliey exercised the most barbarous taws with 
moderation: and if any one should doubt the truth of Ehit, they 
Deed only read Beaumanoir's admirable work on jurisprudence, 
written in the twelfth century, 

Thcy mendetl the highways in bis time as wc do at present- 
He says, that when a highway could not be repaired, they made 
a new one as near the old as possible; but indemnified the pro* 
prietors at the expense of those who reaped any advantage from 
tbe road.'' Tlicy deLeiiitii^'d at Lh^t time by the civil law; in our 
days, wc detenninc by the law of politics, 

r'Ttiv lofd ADpolarcd collector! to bv tbe count, knd tlic dcrffy lo the 
fenUemen »ee obtiecd to contribute 



u 



16.— TAof w^ ought not to decide by the Rules of the cix^i Law 
when it is proper to deeidt by those of the political Law - 

Moal difficuhies on this siibjcci may be easily solved by not 
confounding the rules derived from property with those which 
spring from Ubcrty. 

h the demesne of a state or g:ovfrnmcnt alienable, or h it not? 
This <iucsuon ought to be decided by tbc poUiicai law, and not by 
the dvil. It ought not to be decided by the civil law, because 
it is as necessary that there should be demesnes for the subsist- 
ence of a state^ as th<Lt the siatf should have civil laws to regulate 
the disposal of propcrry. 

If then they alienate ihe demesne, the Male will be forced to 
make a new fund for another. But this expedient overturns the 
polilical govcmment, because, by the nature of the thing, for 
every demesne tliat shall be established, the subject wilt always 
be obliged to pay more, and the sovereign to receive less; in a 
word, the demesne is necessary, and the alienation is not. 

The order of succession is, in monarchies, founded on the wel- 
fare of the state; this makes it necessary that such an order 
should be fixed to avoid the tniafcrttines, which I have said must 
ari&e in a de&^potic kingdom, where all is uncertain, because all is 
arbitrary, 

I'he order of succenlon is not fixf^d for the sske of the reign* 
ing family; but because it is the interest of the state that it 
should have a reigning family. The law which regulates the suc- 
cession of individuals is a civil law* whose view is the interest 
of individuals ; that which repfuiates the succession to monarchy is 
a political law, which ha« in view the welfare and preservation of 
the kingdom. 

It follows hence, that when the political law has established an 
order of succession in government, and this order is at an end, it 
is absurd to reclaim the succession in virtue of the civil law of 
any nation whatsoever. One particular society does not make 
laws for another society. The civil laws of the Romans are no 
more applicable than any other civil laws. They themselves did 
not make use of them when they proceeded against kin^; and 
the maxims by which they judged kings are so abominable, that 
tbcy ouffbt never to be revived 

It follows also hence, that when the political law has obliged 



4 



THE SPIRIT OF LAWS 



75 



a family to renounce tTic succession, it is absurd to in&Ut upon 
the restitutions drawn from the civil Uw. Restitutions arc in the 
law, and may be good against tho^c wlio live in ihc law: but 
Ihcy arc not proper for »uch as have been rai^ed up for tbe law, 
and who live for the law. 

It 15 ridiculous to pret«id to decide the rights of kingdotns, of 
nations* and of ihe whole globe by the aame i«axitna on which 
(to make use of an txpre^ssion of Cicero) J we should dctennine 
the right of a gutter between imlividuaU. 

17, — 7/rtf sam^ Subject continued 

Ostncbm ought lo be examined by the rules of politics, and 
not by those of the civil law; and so far is this custom from ren- 
dering a popular government odioui, thai ic is, on the contrary, 
extremely well adapted to prove its lenity. We sbouM be sensi- 
ble of this ourselves, if, while hant^ment ifi always considered 
among us as a pcnahy, wc arc able to separate the idea of ostra- 
cifiB from that of punishTnent. 

Aristotle' tells tis, it is universally allowed, that this practice 
has something in it both humane and popular. If in tho«e times 
and places where this sentence was executed they found noth- 
ing in it that appeared odious : is it for us who sec tilings at such 
a distance to think otherwise than tbe accuser, the judges and tbe 
accused themselves? 

And if wc consider that this judt^mcnl of the people loaded 
the person with glory on whom it was passed; that when at 
Athens It fell upon a man without merit," from that very moment 
they ceased to use it ; f wc shall find that numbers of people have 
obtained a false idea of iT; tor It was an admirable law that could 
prevent the ill consequences which the glor^ of a citizen might 
produce by loading bim with new glory. 



i&— rAa/ U is necessary to inquire zvlicther the Laws which 
seem contjadictory are of the wme Class 

At Rome the husband was pennicted to lend his wife to an- 
other. Plutarch tells us this in express tcrms.«f Wc know that 

f Ub, I. "ol Lav«." (t ti wii found cnpoiftc to ih« spirit 

l^Repttb/' Ut>. MJ. up, xltL ol ()i4 icfiUfttcti. 

■ Brorto l ui, Sec Pluarch* "lil* sv Piuianh In hii "compufnn b» 

of aniUWir Iwiaa L^urffua «ai] Nujaa." 



T6 



MONTESQUIEU 



Cato lent his wife to Hortemius,' and Cato was not a man to 
violate the Uw» of his country. 

On tlie other liand, a husband wbo suffered his wife to be de- 
bauched, who (lid noi bring h^r to justice, or w ho took her ngam 
after her condemnation was pitnished.y These laws sccni to 
contradict each other, and yet arc not contradictory. The law 
which permitted a Roman to tend hi^ wife was visibly a Lacc- 
dtCmonian institution, established with a view of giving the re- 
public children of a f^ood species, U 1 may be allovi-ed the tcnn; 
the other had in view the preservation of morals. The first was 
a law of politics, the second a civil law. 

ig^^^That we should not decide those Things by the chHl Law 
v;hich ought tv be decided by domestic Lows 

The law of the \'isigothi enjoins thai the slaves of the house 
shall be obliged to bind the man and woman they surprise in 
adultery, and to prc^nt them to the husband and to the judge; « 
a terrible law, which puts into the hands of 3uch mean persons^ 
the care of public, domestic, and private vengeance! 

This law can lie nowhere proper but in the seraglios of the 
East, where the slave who has the charge of the tnclosiire is 
deemed an ^iceoniplicc upon the discovery uf the tca^t niftdelity. 
He seizes the criminal^t not so much with a view to briiig them 
to justice, as to do justice to himsdf, and to obtain a scrutiny 
into the circumstances of the action^ in order to remove the sua- 
ptdon of hii^ negligence. 

But, in countries where women are not gitardcd» it is Hdicu- 
!nn« to subject those who govern the family lo the inquisition of 
their slaves. 

The inquisition may, in certain cases, be at the most a particu- 
lar domestic regulation, but never a civil law, 

sa — That we ought not to decide by the Principles of the chit 
Laws those Things which behng to the Law of Nations 

Liberty consists principally in not being forced to do a thing, 
where the laws do net oblige: people are in this state only as 
they arc governed by civil laws; and because they live under 
those civil laws, they are (rce» 



4 



31 !-<<- 11' IOC nil. fS. " «4 1«B. Jul- dt 
adulter til/' 



vLav ol tht Viiiffoihi, lib, TIL dt 
4, aoc«. 



THE SPIRIT OF LAWS 

ItfqIlDWd hcncCi that princ<:£ who live not among Uicmsclvc) 
under ctviMriws ore nut free; ttiey are governed by force; Uiey 
niay continually force, or be forced. Hen<e it JoHowa, that 
tn^atie^ ma<ie by force are at oblii^lory as those ina*le by free 
consent When wc. who live under ci\'il laws, are, contrary to 
law» constrained to ent«r into a contract we ntay» by the assist- 
ance of the law, recover from the effects of violence : bm a prince, 
who is always tn that »t;itc in whteh lie forces, or is forced, can- 
not complain of a treaty which he has been compelled to sign. 
This would be to complain of his natural state; il would se^cm as 
if he would be a prince with respect to other piinces, and as if 
other princes :(hould be subjects with respect to him ; that is, it 
would be contrary to the nature of things 

21;— 7*/iaf u^e should not decide by political Laws ThiH£s 
which bciotig to the Law of Nations 

Poliljcallawsdanand thatcver> man be subject to the natural 
and civil courts of the country where he resides, and to the ecn* 
sure of the sovereign. 

The law of nations requires that princes shall send airbaBsa- 
dor&; and a realtor druwn From the nature of thingi^ doei; not 
perr«it these ambassadors to depend either on the »overeign to 
whom they are sent, or on his tribunals. They arc the voice of 
the prince who sendit them, and this voice ou^ht to be free: no 
obstacle should hinder the execution of their office: they may 
frec|uently offend, because they speak for a man entirely inde- 
pendent; they mi^ht be wron^rfully accused, if they were 
liable to be puni?^1ied for crimes; if iliey could be arrested 
airested for debts, these might be forged. Thus a prince, who 
ha» naturally a bold and enterprising spirit, would speak by the 
mouth of a man who had everything to fear. We must then be 
gtiided, with respect to ambassadors, by reasons drawn from the 
law of naflons, and not by those derived from political law. But 
If ihey make an il! use of their representative character, a stop 
may be put to it by sending them back. They may even be ac- 
cused before their master, who becomes cither their judge or 
thctr accomplice. 



78 



MONTESQUIEU 



22. — Tke unhappy state of the Yfua Athuaipa 

Tlfe principles we have just been cstablUhing ysert cruelly 
violated by the Spaniards- The Ynca Alhualpa<> could not be 
tried by the law of nations: they tried him by poHlkal and civil 
laws ; Ihcy accused him for putting to death some of his own suli* 
jecis, for having many wives, etc., and ro fiJJ up the measure oi 
thdr stupidity, they condemned him, not by the political and 
civil 1aw& of his own country, but by the political and civil laws 
of theirs. 

23.— TAjI nrhfti, by some Circumstance, the political Law bf- 
COMCS destructive to the State, we ought to decide by such 
a political Laxtf as mil preserve it, tvhich sometimes becomes 
a Law of Nations 

When that poHtical law which h^ estahlislied In the tdngdoni a 
certain order of succession becomes des^tntclive lo ilie body pf>- 
litic for whose sake it was established, there is not the least room 
to doubt but another political law may be made to change this 
order; and so far would this law be from opposing the first that 
it would in the main be entirely conformable to it, since both 
would depend on this principle, that ihe safety of the people is 
the supreme Ictv. 

I have said,^ that a great state becoming accessory to another 
is itself weakened, and even weakens the principal. Wc know 
that it is for the interest of the state to have the supreme magis* 
trate ynihin itself, that the public revenues be well administered, 
and that its specie be not sent abroad lo enrich another country. 
It is of importance that he who is to govern has not imbibed for- 
eign maxims ; thrse are less agreeable than tliose already estab* 
lishcd. Besides, men have an exiravagani fondness for their own 
laws and customs: these constitute the happiness of every com- 
munity; and, as we learn from the histories of all nations, arc 
rarely cliangcd without violent commotions and a great effu- 
sion of blood. 

It follows hence, that if a great state has for its heir the posses- 
sor of a great state, Ihe former may reasonably exclude htm, be- 
cause a change in the order of succession must be of service to 

« Sf< OfcreiUio dt !• V#c», p, wR rhip. iv., v. tI^ vkd tILi ttid book X. 

» 5« book V, ctufi- %iv.; hoak VIII. clup- IX. tad z- 
diap. xrli tTw tK i9> ioi M> book IX. 



4 
4 




THE SPIRIT OF LAWS 



79 



bolli countries. Tliu* a taw of Russia, made in ihe beginning of 
the rcigti of Elizabeth, irost wisely excluded from the po^sc^ion 
of the crown «ver> hrir who possessed another monarchy; thvi« 
the law of Portucral disqualifies e^'ery stranger who lays claim Eo 
the crown by right of blood- 
But if a nalion nay cjiclude, it may with greater reason be al- 
lowed a right to oblige a prince to renounce. H the people ft^ar 
that a certain marriage will be attended with such consequences 
as shall rob Ihe nation of x\s independence, or dismember some 
of its provinces, it may very justly oblige the contractors and 
their descendants to renounce all right over them ; while he who 
renounces, and those to whose prejudice he renounces, have the 
less reason to complain^ as the state might originally hare made 
a law to exclude them. 



24. — That the Regulations of the Police are of a different Class 
from other civil Laws 

There are criminals whom the magistrate punishefi. there are 
others whom he reproves. The former are subject to the power 
of the law, the latter to his authority : those are cut off from so- 
ciety ; these Ehey oblige to live according to the rules of society. 

In the exercise of the police, it is rather the magisiarte who 
punishes, than the law; in the sentence passed on crimes, it is 
rather the law which punishes, than the magistrate. The busi- 
ness of the police coniists in affairs which ari&e every instant, and 
arc commonly of a trifling nature : there is then but littlle need 
of formaUies. The actions of the police are quick ; they are excr* 
dscd over things which return every day: it would be therefore 
improper for it to inflict severe punishments. It is continually 
employed about minute particulars: great examples arc there- 
fore iKTt designed for its purpose. It is governed rather by regu- 
lations than bws ; those wlio are subject to its jurisdiction are in- 
eessanlly under the eye of the magistrate: it is therefore his fault 
if Ibey fall into excess. Thus we ought not to confound a fla- 
grant violation of the laws, with a simple breach of the police; 
these things are of a difT*rent order. 

Hence it follows, that the laws of an Italian rcpublic^c where 
l>earing fire-arms is punished as a capital crime and where it is 

f Vc9le^ 



86 MONTESQUIEU 

not more fatal to make an ill use of them than to carry them, is 
not agreeable to the nature oE things. 

It follows, moreover, that the applauded action of that em- 
peror, who caused a baker to be impaled whom he found guilty 
of a fraud, was the action of a ruler who knew not how to be 
just without committing an outrage on justice. 

3S-— TAa* we should not follow the general Disposition of the 
civil LaWt in things which ought to be subject to particular 
Rules drawn from their own Nature - 

Is it a good law that all civil obligations passed between sailors 
in a ship in the course of a voyage should be null? Francis 
Pirard tells us d that, in his time, it was not observed by the 
Portuguese, though it was by the French. Men who are to- 
gether only for a short time, who have no wants, since they are 
provided for by the prince, who have only one object in view, 
that of their voyage, who are no longer in society, but are only 
the inhabitants of a ship, ought not to contract obligations that 
were never introduced but to support the burden of civil society. 

In the same spirit was the law of the Rhodians made at a time 
when they always followed the coasts; it ordained, that those 
who during a tempest stayed in a vessel should have ship and 
cargo, and those who quitted it should have nothing. 



CHOICE EXAMPLES OF CLASSIC SCULPTURE 



THE LAO COON. 

I ' I i'. .1 !\. -.v- . :- ;i-.I -. '-v'r' -■ ;■:.> -•"•-'^ '.'.•'.r, ti I ^ l--i >:. : - :- .inv 

-'h' : ■" > ':•-.' r-" "J. <^l *■.?:■■. 'irv \^-i.- :: -.■l^ :i Tr* r :n 1 r:r">t -f :1't; T'"-:*:.:f!"i'nr. 

. iSi, ■^hL'. :■ T'. J ' ::.. -if? -:r~.-:ii'> :■! '-.rri '-ill ul [!.!_' 5l:i, cg.nrJ .v -::(I ^.^Aij-^iun j::i; 

iC'ir '3i'- ^;i^l.- 'il "1 -Ml' . ;jr'r.T'''y n I.-ii: r-ii:it 'A -i-A [>;lUl'l- -it the liMpTi»r I .::«. 



BOOK XXV II 



I-— 0/ tht Origin and R^'oiutions of tht Komon Law^ on 

Sue^ejjions 

Tins Affair derives its estaMi^hn^eut from tt^c mofit dU- 
tani intiquity, an^l lo ^nctralc lo il^ foundation, per* 
mit rnr lo se^ircli among ihf first 1aw« of thcf Romans 
for v^hal, I believe, nobody yet has be«n so happy as to dis- 
cover. 

We know thai Romulus ^ divided the land of his little king- 
dom amOTig his subjects; it seems to me that hence the laws 
of Rome on sitcccssions were derived. 

The lav/ of the divmon of Und» made it necessary^ that the 
propeny of one family should not pass into another: hence it 
foUowedi that tlicrc were but two order* of heir* established 
bj law, the children and all the descendants that lived under 
the power of the falher, whom they called jwi htrrfdfs, or his 
natural heirs ; and, in their default, the nearest relatives on the 
male sidc» whom they called apiaiuh 

It followed likeu^ise, that the relatives on the female aide, 
whom Ihcy cailcd ccgnati, ought not to succeed; they would 
have conveyed tlte estate into another family, which was not 
allowed. 

Thence also it followed, that the children ought not to suc- 
ceed to the mother, nor the mother lo her children; for ihii 
mt^ht carry the estate of one family intn anotlier- Thus we 
see them excluded by the law of tlie Twelve Tables: ' it called 
none to the succession but the agnatu and there vns no agna* 
tion between the son and the mother. 

But it was indifferent whether the suus hsrts, or, in default of 
such, the nearest by agnation, was male or female; because, 



pDtoaT*< HiHwr. lib, M. c- \iu Plo- 

9" Ami it iTifcilkto moriiur cuL ibus 
h>m Dcc «iuVt> iar»fU4 iiroxintua 

Vol. n— e g| 



tiw of Tbr Tik7v« Tftbltt " Sn Ulpiii^ 
e<.tt tbf " Fnff- of UIaIuIh" lec & 



^•±t: rf^sirrs hl raf mnrir: ^ sue -rtnir -nrr smzcced, ihoi^ti 
£ vonnsc nc icsf ar h=F^= ^^^^Jt muu et iT' marrr. yet the 
rsisnr alic« j^ r-nrm-»r tttt : znt :snmr} ^ni^izs r lamt On riu» 
azi^zmni. in: siw zt zns Zw*-*- Tajn^ m^^ nn: dsdngidsh, 
iTMiiier th; z^ersuL war sarr^rorL •ra? icaif nr Tfrnatr,^ 

Tiis vxs TTtf "Tff«s»» "T -B - mrmcT TTif j.y^ nj^'^iiri^ iT^ by the 
KiL finr;*^i*c xr tie f ^ i4 Ti :i :a-*t^- 7n; ij iuf ffr*^"" ^>' irr the 
CKnpin^ dii nrc sm-^^ii: in: iz u r L ^ar iitt csanr irjm pus- 

SdEt oi* om^ - iii^ . Hni xi:x iac: ^iiinr=t. "airrrriM to lie 

Tms smncc ib; t^' ^^^^" '* ^ »Lnnaa&. :ie wnxncn snccccded, 
««3: liui vi^ trrrs-rij; rr zrc icv ru ne drrsiac JC Isn^ and 

lESon £i>^ tr iij^sr hai x la^^rx^ 5?:*CTi3=Prf nr tie consrira- 
"^-"^ i^- WTT^ Zr^^rr^ft ^znr zz^ zrr^^TC zt tK^^ i it cict" to 
'ptr^*::M ibti -irrf^ bill T>:i: i iznr.:^ :r:^nL sni ve« ooc ai 

LfilC^^Em? -— ^'>"^--r;=g^5 "X*^ ^t - -^- i^TTTZS TsIE^S. find- 
* ?^t*.--»r Ttz'hu AVf r^— fc-^r, ir*frr5rr;- SrcVc rcr: "'"^s- the 
^*^ ■*- "^T» ii^er F7"fxicrr re. r^>ii- ir rrc:««T:>f=>r^ zc i^M 
■^t^rjz^ mtrc -J:-- w:rr£ zi iJi^sc ur« Rrcr,i= jf^i^lirrics, 

'.-^i^-.',* ",: £ ^/_:':5r^ L=Tr. ziz zi^^in -r^ iZz-v^z ZZ' br^rak in 

iit >_*.'-; r.\n ±* p:wfrr r: =:sii=^ « :*sct=e=:. Vc: r woaM 
r^v* '-yt*r_ ^^ird to ceprrr^ bi=:, Er his lt5: :r^-=c::5^ cf the 

7r<. '.:',*rt:V« f-r-d a niff-.h^f r: rftrr!:c£:£zi:, = eu5 TTsp«t. 

v.-^ '-A M »h:-: :h- ct=:r« ci '.he irivii::!:. He wi5 permitted 
Vy <.\yA^ 'A hU s-^i^.iarc in an assczibly ci" the pe^lc; and 
•>-':* ^/^r/ ttttaniCEt was, in soaie sort, aa aa or liw l^iilarivc 

T:,*: '^w rj th* Twelve Tables pcrrcined the pcrwn who 



THE SPIRIT OF LAWS 



8j 



made his will to choo5€ which citizen he pleaf^cd for hh fa«ir. 
The reason that tiidt]ce<l the Kom^in laws so strictly to restrain 
the number of those who might succeed cb intestato was the law 
ol the division of lands; and the reason why they extended so 
widely tJic power of the testator was, that as the father might 
scU his children^ he iiiiglit with greater reason deprive theoi 
of lib substance. Tlicsc were, therefore, different eHccts, 9ince 
they flowed from different principles; and such 19, in this re- 
apect, the spirit of Uie Koiiian laws. 

The ancient laws of Athens did not sufifcr a citizen to make 
a wilL Solon permitled it, with an exception to those who had 
children; A and the Ifgistator* of Rome, filled with the idea of 
paterna] power, allowed the making a will even I0 the prejudice 
of their children. It mtist be confessed tliat the ancient laws of 
Alliens were more consistent than those of Rome, The in* 
definite permission o{ making a will which had been eranicd to 
the Romans, ruined little by little the (political rcgutatiun on 
tlie division of lands; it was the principa] thing that intro- 
duced the fatal difTcrencc between riches and poverty: many 
shares were united in the same person ; some citizens had too 
much, and a multitude of others had nothing. Thus the people 
being continually deprive<l of their shares were incessantly eall- 
ing out for a new distribution of lands. They demanded it in 
in age when the frugality, the parsimony, and the poverty of 
the Romans were their distinguishing characteristics; as well 
35 at a time when their luxury had become still more astonish- 
ing, 

Testaments being properly a law made In the assembly of 
the people, those who were in the ftrmy were thereby deprived 
of a tenianicninrA' power. The people, therefore, ffave the 
soldiers the privilege 01 making before their companions > the 
diiipoRilinni; which should have been made before them./ 

The great assemblj' of the people met but twice a year ; be- 
fldes* both the people and the aflairs brought before ihem were 



inlifcJ ■ iMiUrr lo Kll hit imn rhrre 
i-mfi w*« nt'l* hv Knmulni, and tttti 

4 Vr PliiiiTh't " I. If* ol f^Alon." 
iTJii* lff«»»npnt. «l]*d "to pr* 
^nnu." WAV iliff^^nl ("xn ittn whirh 



listifd cmly by (h* cflnmiti»tion» of lh« 

m^ntn. " This w*t one of xhe ortilkfvt 
by O'hkh lh«V fqjnl'^) fh« b^Mlm 

■ nji IT «-4« wlllioiir frirmalHy, " cinr ILKrA 
tt ubvti*," •« CKcrg uyi, lib, L "il« 



VOXTESQCTEU 



^ 



iocreasett ; ihey, ihereion; jodgeA n cencdem to pcnnit dl 
lltf ataoii KD mkc tbcir «dl bdonwamiB Roata cnteiM <if 
ripe age; who tft lo f e p ruti die body q< ibc people ; * dvjr 

loob fm ckimw^ n wfaow p t m n cc ^ mberiior pordased 
Irii lunilyt tbtt A, hia i nhcrittnce , of tbc tc*taior;< 

brovgjM a pur ol otW* Id sti^u Uk valoc ; far 
, tf yet, bad oo oKmejr^ 

To aO a ppca J aoc e tftcw fire dttae&k war to w pr wm 
frn ciuftc» ollbc people; and tfacy set mo vakM on the imht 
a* briDc uom poae d of men who had oo propetf y . ^M 

W< ongftf aot to cay, with Justxniaii. that thei« wain wn^^ 
merely imaginary ; tbey became, indeed, iinagi n arv in time:, 
bat were DOC lo oriftnaDy. Maao<tbelaws,wl&ch afterwards 
recnbted wilb, were bt^ oa the rtafiiy of these Kales: we 
find fofficicttt proof of this in the fragmenU of UlpiaiL* The 
deaf, the dumb, the prodigal, cooU not make a will : the deaf, 
bct ao i c he could not bear tbc words of the bvvcr of the in- 
beritaoce; the dumb, becaose be could not proooance the 
Icrmf of nomitiatioo ; the prodigal bccaase as he was exduded 
frotn tbc management of all affairs, be could not tell his inber- 
itancc I omit any funhcr examples. 

WiOs bdng miilc in the SMcmUy u( the peopte were rather 
the acts of political titan uf ciri] Uw», a puUk rather than a 
private right ; whence it followed, tlut tlie father while his K>n 
waa under his autboHty could not give him leave to make a 
will 

Ainong mort nations, wills arc not snbject to greater for- 
nuliltcft than or^iinary crtnlract* ; t>ecause both the nnr and 
the other are only expressions of the will of him who makes the 
comnurt, and both arc equally a private right. But among th« 
Romans, where (esiamcnis were derived from the poblfc bw 
they were attended with much greater fomulitles tlun other 
affain ; and this is still the case in those provinces oj France 
which are govcroed by the Roman bw, 

Tertamcnts being, as I have said, a law of the people, they 
oughi to be tnade with the force of a command, and in such 



jk-lnik." tlk IL tii rt, Mt. 1, ■ T LitT, Iftk ly " DOodnm Mirtittim 

Aul« f-Hiiui, lib. Xv7 c*^ Kim, ftirnkoin cr^L" H« vpnh* ol i^t ttma 

tW i^ll*^ rhu torn d uauibmi '* par «4 IM mnn et Vnu 

m» t tibnm/' *Til- a^ AVt ij. 

I iriniaa. (it. 14. Hc 1, « ** iMiL-' lib. 11. tk. m. MC. r. 

■ TlKOplL " toiL-* Ub. 11- in- 10. 



THE SPIRIT OF LAWS 

tcriDS M art called direct and imperative.^ Hence a rule was 
formed^ thai ihey could neitlier give nor tran&mit an uiheri-* 
tance withotK making une of the imperaiivc words : whence it 
foMowirfl, that they might very juMly m certain ca*e« make a 
lubatilution : 4 and ordain, that the inheritance should pass to 
another heir; bul that they could never niake a fiduciary be* 
quest/ that is, cliargc any one in terms of entreaty to restore an 
inhcntance. or a par! of ix, to another. 

When the (athcr rcither instituted his son his heir, nor dis- 
inherited him, the will waft annulled; hut it wa* valid thoxigh 
be did not disinherit his daughter, nor institute her his hcircis, 
The reason i$ plain : when he neither instituted ncr disinherited 
his son, he did an injury to his ^andson, who might have suc- 
ceeded at intcstato to his father; but in neither instituting nor 
disinheriting his daughter, he did no injury to Iiis dauglitcfs 
children, who could not succeed ab inltstati> to their mother, 
betrause they were neitlicr jwi /urrcdts, nor agnoti.^ 

The lavf« of the ancient Romanii conccrniiig successions, be* 
ing formed with the aamc spirit which dictated the division of 
lands, did not sufficiently refltrain the riches of women * thus a 
door was left open to luxury, which is always inseparable from 
thtfl lOTt of opulence. Retwren the iiecnnd and third Punic 
wane, they hef^an lo perceive the evil and made the Voronian 
law; I but as they were induced to this by the most important 
considerations; as but few monuments have reached us. that 
take notice of this law, and as it has hitherto been spoken of 
in a most confused manner, I shall endeavor to clear it up, 

Cicero has preserved a fragment, which forbids the institut- 
ing a woman an heiress, whether she was married or unmar- 
liedv 

The epitome of Livy, where he speaks of this law, says no 
morciv it appears from Cicero tv and St, Au^stin,^ that tlie 



f VitlKir. ptrpillary, anri fimplnrr. 

t AdflUAtiM. ic-w pAdkGuUf ri«*cin^ 
Ini tirnan Id iiiihcmic lb« tfiducEiir' ^v- 
qvtti, nfiLtfh. m tH# Raman Uw, whi 
%M*4 "fidd tirmrplnam/' " Inrtit" 
ttb. J|- lil- 13, "in »f/tmU>." 

r"AdlJb«r<>* mitnt tiiT««i«r' hirr«4Et 

IB," Ifffr It 'I'aS,, " (ikin (fHt-Attml, quJA. 

f^m^n* Fiioi nvffdvi n^n habrnL" 

Vl|ittn. " i-ng." tit. ««. itr r- 
lit wii tirnponfd by QutiUui Vo- 



Ciixro'k " Se^onJ Of^tiun a^ln*! 
VtrrrB." In the " F.pltomf " of T. I>vr. 

ikh^ XL1-, i*c afaiiuld rud Vo^oniuti 
riJiEfnd r>! Voluuiiimn, 

Cl«ro'B " S««'nd Or«iihn ftctJaR VtF- 

TVS*' 
I'" Lrff«m tnfLt, nc ^utt bitrc^tn 

mnllertm iiiit3lu«n1."— Lib. IV. 
•r"6rcaind Orvli'.^h icvfrifr V«R4to" 
M" 01 tht Cny Oi Ufli" lib- III 





Oao^ Ac elder, coalrihrittd al ia fcis pom- to cet Ait lar 

afngiBiwoi* jffMih.gwfaidi 

t to taJce aw3T ibe loarre of taxnry ; as bjr 
r of tbe OppiM In; be aioded to p«t 

fl ttop l9 IwuRy ndL 

la the tmtitau^ ot JxsaHmamm wmi TbcopUn^ neatini k 
mdc of a di^NcT of the Tocooin Inr vUch Emits the power 
of bcqMtfUa^ Itt rcadnif Hkk nAors, croTtedy 
ifM[fr*f tint das dupter W3t BAde to prevent the ii 
fron bdag to exlttiistttl b^ Ic^dcs is to render it mtwoitlij 
of the bear's ao cep t a n ce, Botthis vaiaot tbejpiritoftbe Vo- 
cosoao bw. We bare jtat seen, thtt ib^ had Id viev tbe 
h in dcriin vQtiica Cron iafaeriliiig an cstaee. Tbe ankle of 
ihii laWf which tct bomxls to the power oC bego ca t hin g. entered 
imothis view: lor U people bad beca pot Ks t e d ol the fibey^ 
to bequeath as inach as tbey pt c ase d . the women might have 
rce^ved as legades what tbejr eoold not receive by w tccei s i oa. 

The Voconbn bw wa» made to binder the women from 
grow in g too wcalibj ; far thts end it wai necea tsa jy to deprive 
ihem of large nsberitaoccs. and f»t of socb is were incapable 
of topponing hixnry. The Uw fixed a certain sam to be giti-eti 
to the women wbom it deprived of ibe succession. Gcero/ 
from whocn we have this particular, docs not tell us what was 
llie sum ; but by Dio ve are informed ii was a hundred tboo- 
sand sestcTccs-rf 

The Voconian law was made to regulale optileticc, not to 
lay a rciiraint ttpon poverty; hence Cicero' informs os ilai 
it related only to tbosc whose names were registered In the cen- 
sors' books- 

Thii furnished a pretence for eluding the law: it is well 
known that the Romans were extremdy Tocid of set forms; 
and we have ahcady taken notice, that it was the spirit of the 



J*- Cptlow " of Urj. lib. Xt~ 
JUb. XXVII, <^ ii. 

tf-iftrtiL- kb. LiL lit u. 

« fMH. 

/ " Kcmo feoialt pJa« Padt« t 

^a%n evit*4 mA **m !■■* V««4*ia p«r< 



J" CMb ket V«CMib BDlwibv pro- 

millibu tmBBsm h i r t d to ioi KM*t 
•ili»."-Ltb. LXVL '^ 

#-Qiri «iwu cntt-^-Stco^ 0»»> 
lioa opiui Vhth." 



n 



THE SPIRIT OF LAWS 



«T 



r«ptiblicr to follow (he Mter of the law, Thcr^ were fathers 
who woul<l not give in their names to be enrolled by the Cen- 
sor*, btcaii&e they would have it in their power to leave the »ue- 
cMsion to a daughter: and the preiors determined th^t thi^i 
was no violation of the Voconian law smce it was not contrary 
to the IcUcr of it- 
One Anius Afiellus had appointed hiA dau^ter his sole hctr 
and executrix. He haJ a right to make this disposition, says 
Cicero;/ he was not restrained by the Voconian law, $ince he 
was not included in the census. Verres. during the time of his 
pretorship, had deprived Anius's daughter of the succession; 
arrd Cicero maintains that Verres has been bribed, otherwise 
be would not have annulled a disposition which all (he other 
pretors had confirmed. 

What kind of citizens then nmsi those have been, who were 
not registered in the census in which all the freemen of Rome 
were included? According to tlie institution of Scrvius Tul- 
lius. mcnlioncd by Dionysius of Halt earn ass us ,tf every citiicn 
not enrolled in the census became a slave ; even Cjccro himaelf 
observes> that such a man lorfeited his liberty, and Uie *amc 
thing is affirmed by Zonara*. Tlierc must have been, there- 
fore, a difference between not being in the census according 
to the spirit of the Voconian law, and not being in it according 
to the spirit of Servius Tullius's institutions. 

Tliey whose names were not registered in the first five 
classes,* in which the inhabitants ranked in proportion to their 
(ortunes, were not comprised in the census according to tlie 
spirit of the Voconian law: they who were not enrolled in one 
of these six classes, or w!io were not ranked by the Censors 
among such as were called terarii, were not included in the 
census according to the spirit of Servius's institutions. Such 
was the force of nature, that to elude the Voconian law fathers 
submitted to the disgrace of being confounded in the sixth 
class with the froiftarii and cGpitc cat-xi, or peTh;ips to have their 
names cntereij in the Cteritcs iabuUtJ 

\Vc Eiave elsewhere observed that the Roman laws did not 
admit of fiduciary bequests. Tlie hopes of evading the Vo- 



fUK IV. 

« Id *' Ontioot pro CscinL*' 



able, ihM tuihon voincrlnin inentloii 
no mctft ihfth Gvt- 
}" la CjRhum labalM rfTerH: >**■ 



88 



MONTESQUIEU 



conian law were the cause of thetr bein^ introduced : they id- 
ftitutcd an hdr qualified by the law, and they bc^^d he would 
resign the succession to a person whom tbe law had excluded; 
this new method of disposhion was productive of very differ- 
ent effects. Some reiigned the inheritance; and the conduct 
of Scxius Pcduccus on an occasion of this nature was very re* 
itiarkablc* A consixlerable succession was Left liiin, and no* 
body living knew that he was desired to resign it to another^ 
when he waited upon the widow of the testator and made over 
to her the whole fortune bclongiitg to her late husband, 

Ollicrs kept possession of the inheritance i and here the 
example of P. Scxtilius Rufus is also famous, having been 
made uMT of by Cicero in his disputations against the Epicure 
ans^ " in my younj^or days»" says he, *' I was desired by 
Sextilius to Accompany him to his friends, in order to know 
whcthrr he ought to restore the inheritance of Quinlus Fadius 
Gallus to his daughter Fadia- There were several young peo- 
ple present, with others of more niaturity and judgnienE : and 
not one of them was of opinion that he should give more to 
Fadia ilian the lady was entitled to by the Voconian law. In 
consequence of thi^, Scxtilius kept possession of a fine eslate. 
of which he would not have retained a single sestertius had he 
preferred justice to utility. It is possible, added he, that you 
would have resigned the inheritance ; nay it is possible that 
Epicurus himself would have resigned it ; but you would not 
have acted according to your own principles/' Here I shall 
pause a liule to rcAect. 

It is a misfojlune inherent in hiim;inity» that legislators 
should be sometimes obliged to enact laws repugnant to the 
dictates of nature: such was the Voconian law. The reason 
w, tilt! legi};Tatnre considers the society raihcr than the citizen, 
and the citiztn rather than the man, Tlic Iaw sacriiiccd both 
the ciii/m and the man. and directed iu views to the pros- 
perity of the republic- Suppose a person made a fiduciary be- 
quest in favor of his davighter; the law paid no n^gard lo the 
sentiments of nature in the father, nor to the fiUal piety of the 
daughter; all it had an e>c to was the person lo whom the 
bequest was made in trust, and who on such occasion found 
himself in a terrible dilemma. If he resto^d the estate he was 

lOccro, "d« SnLV boni «( nutl," lil. It ftbiil. 



4 
« 
4 




THE SPIRIT OF LAWS 



89 



a ba<l cltiztn ; if he kept It he wae a bad man. None but good- 
nattir^ |>coplc thought oi eluding the hw; and tbcy could 
pitch upon none but honest men to help ihem to eltifle It; 
for a trust of tlits kind requires a triumph over avarice and 
inordinate pleasure, which none bui honc*( men are likely to 
obtain. Perhaps in this light to look Dpon them as bad citixens 
would have j-avcired too much of severity. It h not impossible 
but that the legislator carried his point in a great measure, 
since his law wa^ of such a nature as obliged none but honest 
men to elude it. 

At the time when the Voconian law was passed, the Romans 
still preserved some remains oi their ancient purity ol man- 
ners. Their conscience was sometimes engaged in lavor of 
the law ; and they were made to swear they would observe it r «» 
so that honesty in mme measure was set in opposition against 
ludl But Latieily their morals were corrupted to £uch a dc- 
^ce that the Gductary bequests must have had less eflicacy 
tQ elude ihc Voconian law, than that very legislator had to en- 
force tii o^»ervancc. 

The civil ware were the destruction of an infinite number 
<>f citizens. Under Auguiitut, Rome was almost deserted; it 
\vas necessary to rc-pcople it. llii^y made the Papinn laws, 
which omitted nothing that could cncotimge the riti7enft to 
tnarf>\ and procreate children,*! One of the principal means 
\ras to increase, in favor of those who gave in to the views cd 
the law. the liopcs of being heirs, and to ditninifth the expecta- 
tions of thosnC who refused ; and as the Voconian law had ren- 
dei-ed women incapable of succeeding, the Papian law, in cer* 
tain cases, dispensed with this prohibition.** 

Women.p especially those who h;Ld children, were rendered 
capable of receiving in virtue of the wilt of their husbands; 
they even might, when they had children, receive in virtue of 
the will of ?^irangers. All this was in direct opposition to the 
regubtions of ihc Voconian taw : and yet it is remarkable, that 
the spirit t)f this law was not entirely abandoned. For ex- 
ample, the Papian law, whkli peniiittcd a man who had one 



lib. 






i^ " 4« a«>1rui hnnl «1 omU." 
wKm litd b««a MiJ la bi»k 



3tu}. clup. »u 



*The lime, difference nfcvn tn «?- 
rml rcKiTlifli>n9 oi 'be Ptp^an Inw. 8vc 
Ilif " Fnffinrnii of ITlpiui," wet 4. f. 
U)d €. 

^$f« "Fifti- of LIpitQ," 1IL |^ M«, 
1*. 



uosrssQviEa 



cbfld f to recriie m cndre inberilaBce br the ir31 of 1 stnuscTij 
jcnotcd die mae bror to Lh e wife oaly wben she had three I 
6tcnx 

It fcttst be remarked, that thf P^mad hw did not rcodcr i 
vocDcn who hid three cbildien capable of succeeding 
m virttsc of ih? will of strangers; and thai wrlh rtspect to the 
ioccetuoa o< relative*, it left the uctcni laws, and paiticidafljr 
tbc VocooiaD, io all their forces Bot this did not long snt^ 



Rofne, comqiced by the riches of every natioa» bad changed 
her maiiBcrt ; tbc potttag a stop to tbc luxorj of wocDcn was 
DO looger inindcd, AuJtu GcUtub, who Urcd under Adiian/ 
tells iiSv that in his time tbc Voconian law was ahno^t abolidaed ; 
it was bnned under the Of>ulencc of the cky. Thus we &»d iflj 
the sentences of Paulus," who livnj under Ntgcr, aud in ths 
fragmenu of Ulpian^t* who was in the time of Alexander 
Sevcrus, that the sisters on the father's side might succeed* 
and thai none bur the rebtivrs r\i a morr rlistant degree wercw 
ID the case of those prohibited by ihc Voconian law. ^ 

The ancient laws of Rome bc^n to be tboug:ht severe. The 
pretors were no longer roorcd except by reasons oi equity, mod-^ 
enlion, and decorum. 

We have seen, tliat by the ancient laws of Rome niotb« 
had no share in the inheritance of their children. The Vocon-3 
ian law afforded a new reason for their exclusion. But the 
Emperor Claudius gave the mother the succession of her chil- 
dren as a consolation for her loss. Ihc Tcrtullian setuxtus-etm- 
shltum, made under AOrian^w gave it them when they had three 
children >f free women, or four If they were freed-women. It is 
cv>dcnt» that this decree of the Senate was onlj' sd extension of 
the Papbn law, whicli in t}ic same caie bad granted to women 
Ihc inheritance left them by strangers. At length Justinian 
bvored them with the succession independently of the number 
of ihcir children.' 



K)d-^ 



a " Qvdd tibi £]eo]iu. r1 Gib naaeivur 

tSet U« a C^ 'Hirod. "d* bonn 

EvanjiioTua/' and Din, lib. V. Srt 
" FnM- *» Ulpitn," itL U>1, hc, «, 
«nd tlT. t^ **€. p 

J Fn«vncnu oi IJlpkc." Irt tb, «eb 
J. Smonrani, lib. L cip, ix. 



nlJb, IV, tit, jl, tte. }. 

nThAt IK ih« FntMTor Pia<L vbo 
cbinMTit h» mmc lo tMl of Adnm bf 
adcipiion, 

t^,jh II, o>d, "d< Iwc llbtronm," 
"Jnihi/" lit. 3, Mfr ^ -dt — *«■ 



THE SPIRIT OF LAWS 

The same cause* which had debilitated the law against the 
succession of women subverted thai, by degrees, which had 
limited the succession oi the relatives on the woman's side. 
These laws were cxlrcmely confonnablc to the spirit of a good 
republic, where they ought to have such an influence, as lo 
prevent ihis sex from rendering either the possession, or the 
expectation of wealth, an instrument of luxury- On the con- 
trary, the luxury of a monarchy rendering marriage expensive 
and costly, it otight lo be there cnconraged, both by the riches 
which women may bestow, and by the hope of the inheritances 
it is in their power to procure. Thus when monarchy was es- 
tablished ai Rome, the whole syMcni of successions was 
changed. The prelors called llie relatives of the woman's side 
in default of thuae of the niJile side; though by the ancient 
laws, the relatives on Ihc woman's side were never called. 
The Orphitian jcjiattu-cansultntn called children to the suc- 
cession of their mother; and the Emperors Valentinian, Theo- 
do^ius, and AreadiuE called the grandchildren by the daughter 
lo tJie succession of the grandfather.y In short, the Emperor 
Justinian ' left not the least vestige of the ancient right of suc- 
cessions: he established three orders of heirs, the descendants, 
the ascendants, and the collaterals, without any distinction be- 
tween the males and females; between the relatives on the 
woman's side, and those on the male side; and abrogated all 
ol this kind, which were still in force: he believed that he foU 
lowed natttre, even in deviating from what he called the em- 
barrassments of the ancient jurisprudence. 



7 Lib. V, Cod. "da b^ ct l««itiaia 



M Lib. XIV, Cod. "da iniv M lr«iliaiif 
licre^bui," et " Kov.'* w8 tud jj;. 





BOOK xxvm 



OF THE ORIGIN AXD REV'OLimOKS OF THE 
aVIL LAW'S AMONG THE FRENCH • 



CK^IM- 



nfi^^ 



ij^Dit^rtni CkancUr af tJu Lata cf tikr Morrvl PttfUs i 

Grfwmmy 

AFTER the Franks lad qcnttcd tbor own coantry. tbcy 
made a compHatioo of the S^Hc lavs vrhh tbe ^^c****^ 
o( the sages cf tbcir ovo oatxxLfr Tbc tribe of Ibc R>* 
poams Fniiks bara^ >o<Ded hsdf ntida' Oovis c to thai of ibe 
Safiini prcacnrcd tta owo cttstonu; and TlicDdoncy King of 
AtHtfaiia, ordered than to be reductd to wtitiog. He coQected 
likevbe the costoois of those flaramns aod Germans, vrbo were 
dependent on fats IdngdonLX For Oennany having been weak* 
ened by the nigrationot soch a nmltitiMlc of people, tbc Franks, 
after conquering aQ before ihem, made a retrogr^e march and 
extended thetrdoounton into tbc forests of their ancestors. Very 
Kkely the Thnnngian code was given by the same Thcodork, 
sjoce tlie Thtiringians were al&o his subjrct^.' As the Frisians 
were subdiicd by Ourles Martcl and Pepin, their Uvr camioc be 
prior to those princess Char]«magsc, the firTt that reduced the 
Saxona, gave them the law «til1 extent; and wc need only read 
theae last two codes to he con%-inced they came from the hands 
of conqtterors. As foon ax the Vbngolhs, the Burgiindtans, and 
thr Ijnwh^rM hat! foumjed their r^spectur VinE'Umi*, tbry rr- 
dticcd their laws to writing, not with an intent of obliging the 

B^rUMia mf%, «D hla inMlAv of tli« 
•MaoJlfecKndili^ Ikii UU b« »■« 

~ Mt ta bcSsn Uh FfwA* 



rt It c^ 
9S 



_ Grcffory o* Toor*, 
4 See iIm proSof oe id -he U« □! Uw 
BkwitBc mad tbv to Ibr S»>k Ur, 

3^ A^ghpym WmMRDi, boo 

M P0< koowbov lovricc 



THE SPIRIT OP LAWS 



ds 



vanquithccl nations to conform to their customs, but with a de* 
sign of following tlicm theniselvcft. 

There is an admirable simplictty in the Salic and Ripuanan 
laws, as weU as in those of the Alemans, Bavarianii, TliuHngianj, 
and Frbian!^ They hrcathc an ongiiial coarseness and a spirit 
which no change or corruption of manners had wcalcencd- Thejr 
received but very fc^- allcrationa, because all those peoples, ex- 
cept the Franki^, remained in Germany. Even the Franks them- 
selves laid there the foutidaiion of a great part of their empire, 
%n that they had none but German lawn. The sam** rannot be 
said of the laws of the Visifroth*, of (he L-oinhards, and Burgun- 
dians: their character considerably altered from the great chang^c 
which happened in the cliaracter of the peoples after they had 
settled in their new habitations. 

The kingdom of the Hurgundians did not last lor^ enough to 
admit cf great changes in the laws of the conqitenng nation. 
Cundebald and Sigisniond, who collected their customs, were al- 
most the last of their kings. The laws of the I^mbards received 
additions rather than changes. The laws of Rotharis were fol- 
lowed by those of Grimoaldus, Lniiprandiis, Rachi»» and Astiil- 
phus, but did not a5;sumc a new fonn. It was not so with the 
laws of the Visigoi!is;ft their kings new-molded therm, and had 
tbeni a!wj ncw-nioMed by the clergy. 

The kings, indeed, of the first race struck ont of the Salic and 
Ripuarian laws whatever waa absolutely inconsistent with Chris- 
tianity, but left the main part imtottched.^ Thi« cannot be £aid 
of the laws of the Visiffoths. 

The laws of the Burgundians, and especially iho^c of the Visi- 
gothSr admitted of corporal punishments; these were not 
talented by the Salic and RipuarUn laws ; ; they preserved their 
clraTaciermuch helier. 

Tlic Burgundian5 and Visigoths, whose provinces were greatly 
exposed, endeavored to conciliate tlic affections of the ancient 
inhabitants, and to give them the most impartial civil laws; ^ but 

1 Sfc (he vtolorne lo th« Uv «! tlie 
Jlav4rUnL 
r Wc find onh » ttvi in Chllr]el]«rt'> 

* See the (>roloi(Ue lo the Co<\e of tlje 
UufBundUn^ anil the tudc Wttlt, e^ 



lYliffv nn EuHe b? Eurk. and 
■«inid»d by Lcovi^i](lli». Srt Uh 
mnttr rSfi^ni^Ip- ChjiinitaHiiinthin and 
BcarvmnEliLj^ ftEornncl thrta. Eicl^ns 

attt4 tbt cihI* now ni:inl Il» ht mmJc. 
commtBfioncd bithofti lor ilui pur* 

■abtbuft and R<cciBuinihu« vrcic |4'c- 
»n«d. «i ftPDcan bf Uie Sblh CoancH 
of Toltdb. 



|m4iinT [}it tiih lit. tec. 1, Jinfl ril- A 
Spp M*u Gifaorf oE "Fourth liouh iL 
(bail- xxxiii.. aod tha CQd« m lb« VUi- 
COlb*. 



w 



MONTESQUIEU 



u tlx; kiiig& of \hc Fraoks bad esubli^inl tlidr |>ow«r, tbcy had 
no Each cormderatioiu.' 

The Saxon«, who lived under the dominion oE the Frvikt, 
were of an iniractahle t««per. ami pront to re\'alt- Hence we 
find in their lau fi the scvcritks of a cooqucror,"< which are not to 
be met with in the other codes of tJie laws of the barbahans. 

Wc see ^lie spirit of Ihc German laws in Ihc pecuniary i>unish* 
mcms, and the spirit uf a con<iueror :n tho^e of an aOlictive nat- 
ure. 

The crimes they comniit in their own country are subject to 
corporal punishment ; and the spirit of the German laws i& fol* 
lowed only ir the punishment of crimes committed beyond the 
extent of their own territory. 

They are plainly told iliat tlieir crimes shall meet with no 
mercy, and they arc refused even the asylum of churches. 

Tile bi^hop?^ had iin immense aulhorilval thecuurtof the Visl* 
goth kings, ihc most important affairs being debated in councils^ 
All the maxims, principles, and vic^-s of the present inquisition 
■re owing to the code of the Visigoths; and the monkj have only 
copied against tJie Jews the laws formerly enacted by bishops 

In other respects the laws of Gundcbald for the Burgtindtana 
seem prHly jitdtHous; and those o( Rolharis, and of the other 
Lombard princes, arc still more so. But the laws of the Visi- 
goths, those (or instance of Reccssuinthus, Chaindasuirthus, ami 
^fras arc piieriJe, ridiculous, and foolish; they attain not their 
end; llicy are ttufTtyl with rhetoric and \*oid of scnsc^ frivolous 
in the substance and bombastic in the style. 

2. — That the Lim's of the Barbarians Wfre aJl personai 

II is a distinguishing character of thcie hws of the harbarianft 
that ihcy were not confined to a certain district; the Frank was 
tried by (he law of the Fraxiks, the Aleman hy thai of the Ale- 
mans, the Burgundian by that of ihc Burgundians, and the Ro- 
man by Uie Roman law : nay, so tar were the con<]uerors in those 
days from reducing their laws lu a uniform system or body, that 
they did not even think of becoming legislators to the people they 
had conquered. 

Tlic original o( this I find in the manners of the tjenmang. 

ISk lairtt dowa. <bi[i, j, m Sec cti*;^ H. uct. Sindo. Md ib«|iL 

■Y. »tv. t via J. 




THE SPIRIT OF LAWS 



95 



These people were parted aiiundcr by mashes, lakes, and forests; 
anil Ca:sar observes," they were fond of suth separations. Thdr 
drc^d of ihe Rt^Jians iKoughi abuui tlicir rcunioi^; and yet each 
individual among ihe^c mixed people wd5 slill to be tiicd by the 
c&tabUalie<l custon^^ of hU own nation. Each iribc apart was 
free and independent ; and when ihcy came to be inicrmixcd, the 
independency fltill continued; the country was common, the gov- 
ernment peculiar; tlie territory the «ame, and the nations differ- 
ent The ajiirit of peraonal laws prevailed therefore among those 
people before ever they set out from iheir own homc5, and they 
carried it with them into the conquered provinces. 

Wc find this custom cstabtbhtd in the formulas of Marculfus.* 
in the codes of the laws of the barbarians, but chicfiy in the law 
of the Hipuanans P and the decrees of the kings of the first race,? 
whence the capitularies o\\ tliat subject in the second race were 
derived^rThc children followed the laws of their father,* ilie wife 
that of her husb^md/ the widow came back to hut own original 
law,» and the frccdman was under that of his patron.T/ HesideSj 
every man cotild make choice of what laws he pleased; but the 
cori&tituiion of Lotbarius 1 ^' required that tliU choice should be 
made public. 



3- — Capital Difference between the Salic Laws and those of the 
Visigoths and Burgundians 

We have already observed tliat the laws of the Burgnndians 
and Visiffoths were impartial : but it was otherwise with re^rd 
to ilie Salic law, for it established between the Franks and 
Romans the most mortifying distinctions. When a Frank, a 
barbarian, or one living under the Salic law happened to be 
killed, a composition of 200 goIs was to be paid to his relatives ; ^ 
only too upon the kilting of a Roman proprietors and no more 
than forty-6vc for a Roman tributary. Tlie composition for 
the murder of one of the king's vassals, if a Frank, was 600 



■>" Dc bcHo G4lllc<»;* lib. vt. 
#Uli. 1- lornuL B. 

«Ifc4l ol CloUfiUi in Ue ypar sfo* iO 
A* «d^ii»n oi the C-iprhitari» at Ba- 
InnDi, vol- i. ATT. (. ib. " in l^n?-" 

r CapiTolirici siiMrd ta ihr Ijiw of the 
umbwdB, Ub. [- liL 1^. cup, UxL- hb. 
IL d^ 4ij OF> vi^' ud tit. |«> cap. t- 



ilbiif. lib. VI. tit. 7, CAp» L 

H Ibid, cap^ ii. 

ftbld. lib. n. fit, K, cap. IL 

V Iti ihff liw of th4 Lombirdt, Ut>. II. 

r Stiic law. tit, 41. tt<. t- 
jf " Qui rra in pa^p u1»t rvmtnet pro- 
pTiBt tMbct/'— Silic l«w, tiL M< tec IS 



9i 



MOSTESQUIEU 



M 



sols ; * if a Roman, ihouRli the king's giic«ti<i only 300.& Th€ 
Salic law rnatlc ihertfort a crud liiMinction between ihc Frank 
and Roman lord, and ihc Frank aii4 Ruinan commoner. 

Further, if ai number of [Jcoi>k wen: got togcUier to assault a | 
Frank in his house/ and }te happened to be kilkd, the Salie law 
oriJaincd a compoEiition of 600 ^^; but if B Roman or a frec<l- 
man was assaulted* only one-half thai eomposilion.'' By the 
Hme bw/ if a Roman put a Frank in irons, he wa« tJAblc to a 
composition of 30 ioh; but if a PVank had fhus used a Roman, 
he paid only 15. A Frank, stripped by a Roman, was entitled tO^| 
the composition of 62!^ soU. and a Uonian stripped by a Frank ^^ 
received only 30. Such unequal tre<irment must needs have been 
very grievous to a Roman. 

And yet a celebrated author ' forms 9. system of the cstabfish- 
Rient oF the Franks in Gaul, on a supposition that they were thQ-| 
best friends of the Romans. The Franks then, the best friends 
of the Romans, they who did, and they who suffered from the 
Romans such an infinite deal of mischief If 'ITie Franks, thcj 
friends of the Romans, they who, after subduing them by their \ 
arms, oppressed iheni in cold blood by their laws! They were 
exactly the* friends of the Romans as the Tartars who concjuercd 
China were the friends of the Chinese, ^i 

IfsomcCalhoHc bishops thou|*ht fit to make use of tlic Franks ^| 
ITI destroying the Arinn kings, docs it follow that they had a de- ^^ 
aire of living under those barbarous pcopk? And can wc lience 
conclude that the Franks hnd any pariicubr regird for the Ro- 
mans? I should draw quite different consequences; the le*K the 
Franks had to fear from the Romans, the less indulgence they 
showed thL'm- 

The Abhi du Bos has consulted but indifferent authoritiei for 
hift history, such as poets and orators; works of parade and o** 
tcntation arc improper foundations for Iniildirg systems. 



I 
1 



I 



t" Qvk Id liuite domicici eit-"— Ibid' 

a " 3» RoRitAUi homo convl^a recia 
loffit,"— Ibid mtc. fl- 

b Th* TirmcipAl J^omani (oll*»ed th« 
cfjiirl. Si mav hf '"-n hy th* live* oT 

■ c*»nl biahfjpi. »hu -WC" lhcr« *Jli- 

caffd; there wtrt h»dl/ Any but Btf- 
Biaot. Ihai kbcw how io wr^f. 



/ $r^lit Uv. lit, 41. 

(/ U(lu> whoie condition ««• bf Utr ^ 
lliftn rbt( *'l ■ burdkruan. - Imw vl iSe j 
Alcmrini. chjtp. icv. 

« T't- 15. wcc%. 1 and 4, 

fTht AbM Ju Bofc 

f WiiBQu Ihc iKpaditi«n al Arfa^ , 



SPIRIT OP 



ft 



4, — /ft tvhat mann^ the Roman Low tafne fo bt loii in thf 
Cou$ttfy subject to Ike Franks, and prescr^^d in that tubjtct 
to the Goths and Dnrgundians 

Whai has been above said will throw somt light upon other 
ihiiig^, which liave hilhcrlg been involved in grcal obscurity. 

The ccuntry at this day caUed France was under the first race 
govcrnc<3 by the Romar law. or l!ic Thcodosian code, and by the 
different laws of the barbarians,'" who settled in those parts. 

In^the cormtry subject to (he Franlcs the Salic law was eiSab* 
li^hed for the Ffark*L. and the Theodosian code 1 for the Romans 
!n that jtiihject lo the Visifrofhs, a compilation of the Theodoaian 
code, made by order of Alaricj regulated disputes among the 
Romans; and the national customs, which Euric caused to be 
reduced to writirg.^ determined those among the Visigoths. 
Bu: how comca it, some will say, that the Salic laws gained al- 
most a general authority in t]ic country of the Franks, and the 
Roman law gradually declined; whilst in the jtirisdiction of the 
Vi^goihs the Roman law spread itself, and obtained at la»t a gen- 
eral sway ^ 

My answer is, that the Roman law came to be disused among 
the Franks because of the Kfcat advantages accruing from being 
a Frank, a haiharian,' 01 a f)c^^un llviTig under the Salic law; 
everyone, in that case, readily quitting the Roman to live under 
the Salic law. The clergy alone retained i(,w as a change would 
be of no advantage to them, The difference of conditions and 
ranks consisted only in the largeness of the composition, as I ehall 
show in another place. Now panictilar laws 1 allowed the clergy 
as hvorable compositions as those of the Franks, for which rea- 
son they retained the Roman law* This law brought no hard- 



i The Fnnlit, th« Vnirorhi^ uid Bur- 
1 11 wii Arii<>iM in ^K 

f7h* «th Tfaf ai t\iK KiflU ol Xhit 
^cc«. md E>uMnh*'I two jMM afirt by 
AnlU. It «ppr>r> ttom ire prrfmc* Id 
tbM code. 

* The yni ^Up of rh< Spinlih vr«, the 

I^FrtRrurn* *»i ]3til>«ruin. lul finmi- 
bcm qoi Sit»ck ittt vjvit."— Sillc Uv, 

m ^ Afcorling i« the !tenAfl law un- 
4» trtrlrh thv i^li-ircli livr«.'^ ck ii Mid 

lo ibe ]t« of i^t Ri|iunfi»nfc tir. <& tec. 

b ^B «|ku Ikt (lumlin-LoA eLilliUi ill** 

Vol. IL-7 



on this lirad pronoun^vt! by Du CnwVb 

un<J« thr worilpi " Lm RomaiU." 

fi^t lTi« t4piiiiTari» AdiJed V> tht 
S«Jlc IBW in UnJlrmLfroclL. il iht «M| 
f>i thu liv. and itiv iltfTmifi todtt Of 
the lavi of i[>« bAfbiritnt confrmfnc 
the privi[«i;» ol f?c]ttkaMi£« In thii rc^ 

• l^ffcl- S« i3»n (h* JvKri of Ct»*Fl^ 

m&ern^ I0 bii ion rtpin. K^nit «r lE«1y, 
In the yt^i B07, in Oie vdJilon M n*- 
tuliilii torn. i. tGi. wTirre il it iihd, (hut 
an *Ei^Ict^B9iic iT»uulrl rvcri<rc * Ifii'l* 
compVAHiion ir^J fhe " Calleci&an of 

L, cdllfoD of liuiuliuL 



UCRTTZSgLIED 



wit w dw «ofk ol Onu 

VMepih bw#ga¥<poCTa jirfyiiwipr tp Ae Vii%irti opcrlfae 

BoottM^ tbc bitcf Ind bo rcuoB to wKOobmc KttDg udckt 
their cmokv in order to anbcaceanolba^ TbcxrcOiBedtlxre- 

Tni IS ttdi ittrtDcr coifinDcd a pnifioftni ss wc proocied in 
^jut iDtfoujm Toe BV CI r"'**lf*™M vsi csctrCBUCgr unpuli^, oot 
fafwiny A* Rm yMiinM nrnTT thm rlrr ff i ■ ! ■■ Itappeusby 
the prcaobk lo thai Imr Cfatt il «at sade for dK Bivgwidaii^ 
■infill umilim ilii iliniMHii ■ I imIimI i . W mhi I iilwniilliMniml 
tix Komuu; and ia the tancr ckfe te |isdgCi were «4ciaB]F ifr 
Tided of a udc This vas nccessair for {nnktiiir reason^ 
drawia froo the poBtkal i c gubii o w of tbote tiattM^ The Ro- 
Bau Um wa» coiiUiMwd in Burifoady, in onlcr lo ri^;ttltle che di^ 
polo o< R ot n a n a axnocg ibcmMhr^ The tatter had oo hidDCC- 
ment to quit their own law, as in the coa auy ol the Fiaolo; and 
rather at Uw Safic law wv oot ctta b lia h cd in BttrgODdy, as ap- 
pear* by the famouc letter which Agobord wrote to Loots the 
Koot. 

Acobar<l € desirrd that prince to «stab&sh th« Sa& bw in Bur- 
gundy; cocwqurntly it tud not hetn r«lahlUh(d there at that 
time. Thus the Roman bw did, and still clocssidkatft in so many 
priTvinccs, which torntaij depended on tlm kioedOfll. 

The Roman and Gothic laws cootiatied likewise in the country 
of the establishcneot of the Goths, where the Safic law was never 
received. Wltcn Pepin and Qurics Martd expelled the Sara* 
ccns, the towns and pnmoces wtuch soboutted to (hex prioces 
petitioned fora oomimBoce of their own bwsand obtained jt;^ 
this, in sfntc of the usages of those ttn:es, when all laws were per- 
sonal, soon inadc the Homan bw to be coo^dercd as a real and 
territorial hw in llioie countries. 

This appears by the edsct of Charles the Bald, gli'^en at Testes 



• a*« flat Uv, 

fOf thM I ilirfi «pnk la 

pUe*. t-94* XXX. ciiap*. i. ^ ■; ud » 
fAfvti. "Upm,** 

Fart* f«r<tiMH fvin Pr^vliv tiJ ilKe 

Gflchl pairiis Itvt^M. fBOlbBs pMcnii 
vfrtAL El tic Kv^oAcAiia p > «inci a 



fkotf BTtb* -L«r «t LMkiba DcSo* 
M<tf«.'* ^H4 tK« iIitwmJ nail ^ lb* 

lio*." M& IL p. Sit. 





THE SPIRIT OF LAWS 



99 



in the year 8(34, w^ich distingtitslies the coi]ntri& where causes 
WCTC decided ty the Koiuan law from wlicrc it was otherwise-' 

The edict of Pistes ^hous two thiLig»; unc, ihat there wcrt 
couiiLried where cauM.'s were decided by the Koman law, and 
othcn where they were not; and the other, that tho»c countries 
where the Roman law obtained were precifl«1y Ihc same where it 
is stitl foDowc^d at this very day.aK appear* by the said edict : ' thu* 
the dititiDCtion of ihe provinces of France under f ufttom and ihf>i« 
under written law was already estabLithcd at the time o( the edict 
of Pistes. 

i have obsen'cd, that in the beginning of the monarchy all laws 
were persona]; and thus when the edict of Pbtes distinj;:tiishcs 
theccunlriesof the Roman law from those which were otherwise, 
the meaning is, that in countries which were not of the Roman 
law, such a nntltitudc ^f people had chosen to live under some 
Of otiicr of the laws of the barbarians that there were scarcely 
any who would be subject to the Kom^tn law; and that in the 
Gounlries of the Roman law there were few who would choose to 
live under the lavs of the barbananit, 

I am iK>t ii^norant tlut what is here advanced will be reckoned 
new; but if l!ie tliiiig* which I a»«eTt be lrue» surely they art 
very ancient. After all, what jcrcat matter is it, whether they 
coenc from mCt from the Valc:;iu$^cs» or from the Bignons? 

5,— TA^ same Subject ccntinucd 
The law of Gundebold subsisted a lon^ time among the Bur> 
gundiam, in conjunction with the Roman law: it was still in use 
nnder Louis the Pious, as AB:ohard's letter plainly evinces. In 
like manner, though the edict of Pities calls the countr>' occupied 
by the Visixotlis tlie country of the Roman law. yet the law of the 
Visigoths was alwa>'s in force there ; as appears by the synod of 
Tioyes lield under Louis the Stammerer, in the year 878, that is, 
fourteen years after the edict of Pi^es. 

In process of lime the Gothic and Biirg:mdian laws fell into 
disuse even in their own coimtrj'. which was owing to those gen- 
eral causes that everywhere suppressed the personal laws of the 
barbarians. 



#" In (lift %*m In qua Jviflffln vncvn- 
4nm kaen K«ii«nAm Mfmlnnnrar. k< 
«UKlun ivmta lenm >u4lOCt«r; m m 
ilia CcfTA in Qot;. ct&» Afl iL Sea 



i^M wt. M and t6 <4 tN " Rditt <^ 
CiiHa," " in Cav Uono/' •" In Nubcoa." 

etc 



HONT£SQUl£U 

6l — How the Roman Law kept its Ground in tkt Danesne 
of the Lombards 

The fael3 all comcidc with tuy principles. The law of tlw 
Lombards was imparliaJ, and the Rom;in« were under no temp- 
tation to quit their own for it. The motive whicli prevailed with 
lh<! Romang under the Frjinlc^tn make choice of thr Salic law did 
not lake place in Italy: hence the Roman law maintained itseli 
there, together with that of the Lombards. 

It even fell oiil. that the latter gave way to the Roman insti- 
tutes, and ceased to be the law of the ruling nation: and though 
it continued to be that of the principal nobility, yet the greatest 
pan ot the cities formed themselves into republics, and the no- 
bilily moldered away of themselves, or were destroyed," The 
citizens of the new republics had no inclination to adopt a law 
which established the custom of judiciary combats, and whose 
instituiion^ retained much of the customs and usages of chivalry. 
As the clergy of those days» a clergy even then so powerful in 
Italy, lived almost all under the Roman law, the number of thaw 
who followed the institutions of the Lombards must have daily 
diminished. 

Besides, the insEittttions of die Lombards had not that extent, 
that majesty of the Roman law, by which Italy was reminded of 
her nniversal dominion. The institutions of the Tjjmbards and 
the Roman law could be then f>f no other use than to furnish out 
Matutes for those cities that were erected into republics. Now 
which could better furnish them, the institutions of the Lombards 
that determined on some partictilar cases, or the Roman law 
which embraced them all? 



7. — Hoii) fhf Roman Law came to he lost in Spain 

Things happened otherwise in Spain. The law of the Visi- 
goths prevailed, snd the Roman law was lost, Chaindasuin- 
ihusf and Recessuintbus proscribed the Roman la\^'s,te- and 
even forbade citing Ihem in their courts of judicature, Reces- 
minthits was likewise author of the law which took oflF the pro- 



« Sv4 vhai Mtciiivvct tty* of the ruin 
* at b«e:m tc retgo la U« ycB 4«J; 



wW* urtll no Inntfrt br h*r»»*td *Ith*T 
by Inrtijm or ^t i^« Komtii Uwl— Lav 
of ibfl VlilgDiliv lib. II. liL 1, MV^ ft 
•ad tA 



I 




THE SPIRIT OF LAV?S 



101 



hibition of marriage between the Gotha and Romans-:^ .'It jS 
eviJent Uial ihcsc Iwo laws had ihc same spirit; itiis ktp^/-*. _ 
wanted to rcmow ific principal causes ol separation whicli sub- '•',■'/,/ 
listed between the Goths and the Romans. Now it was thought " • -■ 
that nothing maJe a wiiltr sqiaration tlian the probibhiju of 
intcinmiiia^e^, and ibc liberty of living under diilcfeni uiMitu- 

tiODS. 

But though the kings of the Visigoths hod proscribed the 
RonUJi law, it still subsisted in the demesnes the)' posteescd in 
South Gaulj' These countries being dUtant fioni the centre of 
the monarchy lived in a state of great independence, Wc see 
from the hUtory of Vamba, who ascended the Ibrone in 672, 
diat the natives of the country had become tlie prevailing party.* 
Hence the Roman law had greater authority and the Gothic 
less. The Spanish laws neither suited their manners nor their 
actual siluatioii; the people might likewise be obstinately at-* 
tached to the Roman law* because tfiey had annexed to it the 
idea of liberty. Besides, the laws of Chaindasuinthus and of Re* 
cessuinthus contained most severe regulations against the jews; 
but these Jews had a vast deal of power in South GauL The 
author of the Iiistory of King Vamba calls these provinces the 
brothel of the Jews, When the Saracens invaded these prov- 
inces, it was by inxitation; and who could have invited ihem 
but the Jcw-s or the Romans? The Goths were the first that 
were oppressed, because they were the ruling nation. We see 
in Procopiuft, that during their calamities they vntlidrew out of 
Narbonne Gaul into Spain.fl Donbtlcas, under this misfortune, 
they took refitge in those provinces of Spain which still held 
out: and the number of those who in South Gatit lived under 
the law of the Visigoths was thereby greatly dimlnislied. 



8, — A false Capitulary 

Did not that wretched compiler Bcncdictns Levita attempt to 
transform this Visigoth estabhshment, which prohibited the use 



Raouns Golhlm aiATrlmonlo Lcvai look- 
aii."— L41* uf Uic Viii«olJil>, hb. 111. 
liL I- th»p. i. 

1 ?.*t I-iv IV. to uriil ^ 

tTlit revoll ol thc»« pi>ivJn«t wii A 

Paulat u)d hit adhETfru trttt RofriJioi: 
Ibtj v«rc ercn U^fOfid by ttic bkkhop*. 



Vimbfl dur*t not pul 1o cE»th tht rrhpti 
«honi be hftd qticllrd, T^e nuthor ol 
(h« lttaik.>Fv ^A^l> Nferlionnri Gaul the 
nuoFry of irriton. 

a "ColJif, (;iii cUdi nuiirrfiifrinl, «x 
<>iMtA cum uiortbiii litffrtkttue cflrrbfti, 
in HitfitnUm «d Tnjdim i^m pkl^m 
TVT»nfi«m te feceppfiinl-"— " De Bcllu 






109 



MONTESQUIEU 



gf tlic'Gontaii law, into a cdpkutary ^ ascribed &uicc to Oiart^ 
,*\ tmgnc^ He made of this particular instituiion a gcmrral one, hs 
/\';^'J-/-if'nc intcoded to cxtcnniaatc tlic I^^nnan law tliroughout the 
1 :'' tuiivcrsc 

9. — /n what manner the Cedes of Barbarian Larrs, and the 
Capitularies came to be lost 

The Salic, the Ripuarian, Burgundian, and Vbsgoth taws 
cani«, 6y decrees, to be disused among the Frcncb in the tal- 
lowing: manner: 

A* fiei* became Iicreditar>, and arrHre-fieis extended, many 
usages were introduced, to which these laws were no longer ap* 
pitcable. Tlieir spirit, indeed, was continued, whieh was, lo reg- 
ulate most disputes by Grcs. Bui 05 the value of money was, 
doubitesfl, subject to change, the fineji were also changed; and 
we sec several chariCTs,r where the lords fixed the fines, that 
were pa}'ablc In their petty courts. Thus the spirit ol tlte hw 
was followed, without adhering to the Jaw itself. 

Besides, aii France was divided into a number ol petty lord- 
ships, which acknowledged rather a fcuJal than a political de- 
pendence, it was very difficuh far ordy one law to be authorized. 
And, indeed, it would be intpossiblc to sec it observed. Tlic 
cuAtom no longer prevailed of scxiding extraordinary officer* d 
into the provinces, to iti^^pcct the adniinistration of juatice, and 
political nffairii; it appears, even b}' the charters, that when new 
fiefs were established our kinge di%'e«cd themselves of the right 
of sending tlinsf ofHcers. Thufi, when almost everything had 
become 3. fief, these officers could not be employed; there was 
no longer a common bw because no one cotild enforce the ob- 
servance of iL 

The Salic. Riirgundian, and Visigoth laws were, therefore, ex- 
tremely neglected at the end of the second race; and at the be- 
ginning of the third they were scarcely ever mentioned- 

Under the first and second race, the nation was often assem- 
bled; that is, the lords and bishops; the commons were not yet 
thought of. Ii these assemblies, attempts were made to regu- 
late the clerg>% a body which fonned itself, if I may so speak, 

c M. dc U TluoTntiii^F* hit* fo1l««t«d 
mnnj ^I tl<«ni- Sk. tut iiiai4iK«i ^bftpft 



h C«pliuUH«*, lib. \T ehw>, colrit ol 

the y%at itrU. cdit^oD «1 D«iimiU, D. 



lOi^ 






^ 




THE SPIRIT OF LAWS 



103 



vntetlw conqueror«p and Mtab1»hc<l lU privileges. The Uwr 
iMde fn tliis« aflaembl]«» are what we cmM tht Capitularies. 
H<nce four things eiuued: the feudal laws were eslablishtd and 
a greai pan of the church revenues was atlminiMer(*d by (hose 
laws; thccler|:y cfTecteJa wkicr separation, and neglected those 
decrees of reformation where tlicy themselves were not the only 
reformers : * a collection was made of tire canons of councils and 
of the decretals of popes;/ and these the clergy received, as 
coming from a purer source. Ever since the erection of tlic 
gr^nd fiefs, our kings, as we have already observed, had no long- 
er any deputie}^ in the provinces to enforce the obsen<'ance of 
their laws; and hence it is, that, under the third race, we find no 
more mention made of Capiitdaries, 



10, — The same Subject ccntinued 

Several Capitularies were added to the law of the Lombards, 
as wdl a» to the Salic and Bavarian laws. The reason of this 
I144 been a iitauer of Inquirv; hut it mu&t t^e sought for in the 
tiling ilscH. There were jievcral sorts of Capitularies. Some 
had relation to poUtical govemment, others to economical, most 
of them to ccclcfiastical polity, and tome (cw to civil govcm- 
menL Those of the last species were added to the civil law, that 
is, to the personal hws of each nation; for which rrnson it is 
said in the Capitularies, that there is nothing stipulated therein 
contrary to the Roman law.f In effect, tliose Capitularies re<* 
gardtng economical, ecclesiastical, or political government had 
no relation to th«tt Uw ; and those concerning civil government 
bad reference only to the laws of the barbarous people, which 
were explained, amended, enlarged, or abridged. But tlie add- 
ing of these Capitularies to the personal laws occasioned, I im- 
agine, llie neglect of the very body o( the Capitularies them- 
selves; in times of ignorance, the abridgment of a work often 
canses the 1os!» of the work itself. 

« Ld not Ibe biithopi. Min Charlvf 
IW UaU. Js tbt CxjiVuFanr of tiJ. art. K 
iDPCr prctflicf Di uiF ■tii1iorii;r uf m>k- 
Iw nooMi oppaM Ihit oriaiirtiiji:!!. or 
BlflfCt iBt obacrvBtice of 1I- I1 kr^ini 
mt Wt^Aj forrMw Ihi; foil ihrcfni. 

/In \wt collcdinn nT cinnnM > tiht 
niunb«t Vi thf dtcrrtaT* of ih« i>opr« 
m-r« ma»"prt ; Jh*^ wrrp Mfr tew in the 
tD^i4»i C'lllf^tn-.n, DloriTii^^t Eii(Tro* 

tui ■ itn\ miny mio f\t%-, hut Uul ol 
kifana U«fT«tof ««« «fuifcd »lih 



ffrauW and tpunoita dfcrcCila. Th« olH 
witeclioo oblihntd ^n Fr^Ticv \\\\ Char 
trmjiirn«- Thi" pntir* fcrrmfl itottt 

\hr hind of I'npf Adrian 1 r1i« (aHcflion 
r>] l>rDnr"ui K^iji^niii, :inrl iriiTtrid it \f 
hi! oc;r&lrd. Tlif c'^Hrrunn *ii [lidorui 
WrrfJtnr ■ift'fij'd m t-tnnc* at^:<ul (he 

tiAiiATrly Ipnd af 11- to 1Iii< >DCCC*drd 
w^ai we now c*)] " the count «f cinor 
la*-" 
g Sec the E<tkt of Pla)e». art «a. 



104 



MONTESQUIEU 



11^— Other Causes of the Disuse of the Codes of Barbaruin 
jUntfS, OS iv^ll as of the Roman Law^ and of the Capitularies 

When Ihc German nations subdued ihc Roman Empire, iKcy 
teamed the u^*^ of writing; ^nd, in imitation of tlit Romans. 
they wTolQ down their own usages, anci digested them into 
codes.A The unhappy reigns which foIJowed that of Charle- 
magne, tli(^ invasions of the Normans, ami the civil wars, 
plunged the ccnqucring nations again into the darkness out 
of which they had eint'Tgtd, so that rtading and writing were 
quite neglected. Hence it is, that in France and Germany the 
written laws of the barbarians, as well as the Roman law and 
the Capitularies fell into oblivioa The use ot writing was bet- 
ter preserved it^ Italv, where reigned the popes and the Greek 
emperors, and where there were llourif,hing cities, which en- 
joyed almost the only commerce in those days. To this neigh- 
borhood of Italy it was owing, that the Roman taw was pre- 
served in the provinces of Gaul, formerly subject to the Goths 
and Burgundiatis; aiid so much the morc> as this law was there 
a Icrriiorial institution, and a kind of privilege. It is probable, 
that the disuse of the Vi^iigoth lnw3 in Spain proceeded from the 
want of writings ard, by the loss of so many laws, customs were 
everywhere established. 

Persona! law& fell to the ground Composition*, and what 
they call FretJa.i were regulated more by custom than by the 
text of these laws. Thus, as in the cstabhshmcnE of the monar- 
chy» they had passed from German cusloms to written laws: 
some ages after, they came back from written laws to unwritten 
customs. 



4 



12> — Of heal Customs, Revolution of the Laws of barboroiLS 
Nations, as welt os of the Roman Law 

By several memorials it appears, that there were local ctis- 
toms, as eariy as the first and second race. We find mention 
made of the " custom of the place/' ; of the " ancient usage," * 



PlThi» II *«itfM<ly *rT down in Jn-itn* 
pruniblet to ihf^e rodet' ve rypfi fi»il 
in ihr law* uf tSr Sntitnn ktieI Fnii^ini 
dtfTtrent T*|[UlaTion<. ncf^^rTTmii t" fh* 
dLflmnt [Iltlftrt* T*i ihete ui^fCK wrre 
tAdfi tQmt ptrt»mW tc«uI>1Judi «uU' 
iiUc ta \ht exi$tticy of drcumiEuicti ; 



■(It'll wvre th« ttvfrre Uv« »^Eiut the 
I*, hook X.XX-V 

tjir oi th« LomlHrdi, book IL tit. 
^ we. ^ 




THE SPI 



toj 



of " vuatum," ' uf " law-s" "i ami of " cubtoius." It has been the 
Opinion of sainc authors, tliat what went by the name of cu^ttoms 
were the b%\:» of the barbarous nations, and wliat had the ap- 
pcIlAlion of law were the Roman imtitutc^. This cannot po^ 
sably be. King Pepin ofdained," that wherever there should 
happen to be i>o law, custom should be eomphed with ; but that 
il sihouhl never be preferred tn the law. Now, to pretend that 
the Roman law was preferred to the codes of the laws of the 
barbarians is subvening; all nietnonals of antiqiitt)', and espe- 
cially those codes of barbarian laws, which constantly afKmi 
the contrary. 

So far were the laws of the barbarous nations from being 
those ct^stoms, tliat it was these very laws, as personal institu* 
lions, which introdiLcccI them. The Salic law, lor instance, was 
a personal law ; but generally, or almost generally, in places in* 
babited by the Salian Franks, this Salic law, how personal so* 
ever, became, in respect to those Salian Franks, a territorial in* 
stictition, and was personal ont> in regard to those Franks who 
£ved elsewhere. Nuw if several Burgundians, Alanan^ or even 
Romans should happen to have frc<|ucnt difputes, in a place 
where the Salic law was territorial, tln!y must have been de- 
termined by the laws of those people; and a great number ol 
decisions agreeable to some of those laws must have introduced 
new eu^oms into the country. This explains the constitution 
of Pepin. It was Tutural tliat those customs should affect even 
the Franks who lived on the spot, in cases not decided by the 
Salic law; bui ii was not natural that they should [prevail over 
tbe Salic taw itself. 

Thus there were in each place an cstabHshcd law and received 
customs which served as a supplement to that bw when they 
did not contradict it. 

They might cwn Jinppen to supply a law that was in no way 
lerritorial; and to continue the same example, if a Durgundian 
WBS judged by a law of his own nation in a place where the 
Satlc law was territorial, and the case happened not to be 
explicitly mentioned In the very text of this law, there is no 
manner of doubt but that judgment would have been passed 
upon him aecordinj^ to the custom of the place. 



II^H nt Ibc l«mb«ri1i, booJi II. Ul. 
•'^i'^li* ol St !*«<./• 



41, *«C t 



»OXT£50tnEU 



In dw raps ct Km^ Pepcoi ■ 
ooc ibe ane force u the l»v«; boi it was DCtf kag bcfor« tlM 
la«« ^W* V3V lo the cttctonu. And st ttcw rcgaU t io i are 
gacnVj rssttfioi tbatlmcily a prcscflC cinl, it miy wdl be im* 
m^oitd UiM as cart^ as Pepni'i ux. tb^ bceao to prefer the 
eMbns to the cstabfiibcd Imts. 

Whtt bai bccD sud suAckstly c^cphsas the waanrr to wlitdi 
the Roman hw b^as to Ttry carijr to become lerritanal, as 
nay be seal m the edict olPtacs: aodbowtbe Gotbic taw coo- 
ttooed stiO to Cofce, as ^pors bj the synod of Ttoyt% above 
mtntiooidJ The Roman bad become tbt geDoal personal Uv, 
and the Gothk the panktilar pcno&al law; coaieqoentiy ibe 
Roman law was terntoiial Bvt bow came it, some wOl aik, 
thai tlic posotal laws of the barbarians fell cTcrywb ef e into dis- 
ttse, wbik the Roman law was coodnoc^} as a icmtorial bhs/tkO' 
tioa in ibe Vis^ach and Bargundiui prtn^nces? 1 answer, that 
even ibe Ronuo Uw had very ncaily the same fate as ihe uthcx 
pcnooal tmtitution^; othcmbe we would sttS have the Thco 
domn code in tho«e provmcts where the Roman law wa» tcrri* 
tonal, wbeT«a£ we have tfae liutttntes ol Justnnan. Those prov- 
inces retained scarcely anjihiag ntore than the name oi the 
c o umi> ondcT thtf Rnm-in» cr written law^ than the natural af*- 
lection which people have for their own institutiom, eipecultj 
when they consider ihcm as pririlef^es. and a few regnibtions of 
the Roman lav which were not yet for^tten. This was, bow- 
ever, sufiicicnt to produce such an cRcct, that when Justinian's 
compilation appeared, it was received in the prov-inces o( the 
Gothk and Burgundtan demesne as a ^Trttcn taw, whereas it 
was admitted only as writlcti reason tn ihe ancient demesne of 
the Franks. 

rj. — Difftrmcr bchv^^n the Saltc tcrv, cr that of Ihc SaUan 
franks, and that of the Rifuartan Franki and other bar- 
borous Nathns. 

The Sa}ic law did no4 allow of the custom of iiegativc proofo; 
that If, ifa person brotij^ht a demand or charge against another, 
he was obliged hy the Salic bw to prove it, and it wa» nol suf- 
ficient for the second to deny it» which is agreeable to the laws 
of almost all nations. 



4 



4 




THE SPIRIT OF LAWS 



107 



Tlic law of the Ripuarian Franlcs had quite a different spirit ; ^ 
it was contended with negative proofs, and the person, against 
whom a demand or accusation was brought, might clear him- 
self, in niO£t cmQS, by swearing, in conjunction with z certain 
ikumber o( witncwes, ilal he had not comn^ittrd the crime Uid 
to hiw chjtrf>e. The nitmher of witnefts.es \vho were ohiiged 10 
swear? increased in proportion 10 the iniporlancc oi the affair; 
sometimes il aniounied to seventy-lwo.' Tlie lawj of the Ale- 
mans, Bavarians, Thuringians, Frisians, Sa7c<Ais, Lombards, 
and Burgimdlans were formed on the same plan as those of the 
Kipuarians. 

I (Served, that Ihe Satic law did nol allow of negative proofs. 
There was one case, however, in which they were allowed : * but 
c^Tn then they were not a<)iiiitted alcne, and without the con- 
cuiTcncc of positive proofs. The plaintiff caused Hitncsse^ to 
\k heard/ in onlei to ground his acilon, the defendant produced 
also wiiiK55e& on his side, and the judge was to conic at tlie 
Inith by comparing tho^e k-»tinioiiicv.>* Tim piaclice was vastly 
diffcTcni from that of the Kipuarian, and otiier barbarous laws, 
where it was customary for the jiarty accused to clear himself 
by ftwearing he was not guilty, and by mat<ing his relative* also 
swear that he had told the tnith, Theee laws couTd be suitable 
only to a people remarkable for their natural simplicity and 
candor; we shall sec presently that the legislator* were obliged 
to take proper nieibod^ to prevent tlieir being abused 

14. — Another Difference 

The Salic law did not admit of the trial by combat; though 
it liad been received by the taws ol the Kipuariansr ^nd of al- 
most all the barbarous nations.tu To me it seems, that the law 
of combat was a natural consequence, and a remedy of the law 
which e*tabii^lIC^I negative proofs. When an action was 
brought, and it appeared that the defendant was going to elude 



f Thb nittrt to wliai Tucirut §^jk 
lh«t th« nrrTTiEiat liflij f»tnl And pir- 
Unlir ctiilotn* 

f Lt« of the Ripnarlini. till 6, 7, S, 

r [bid. \iiK tt. iJ, util 1^ 
ttnnjtht a^^nut an Riitruuin, ihiT ii. 



eriy. Se« Ut 76 of the *' AcTui 1«via 

l^tt j&ih lit. or Ih« "PjicIui IcffU 

■ Atcoriiatt la the prtetlco nDw loU 
1«v«l in EoiUnJ. 
rTtt jf; Fit pj. ict^ >; Ht. 5a, uc ^ 
tt'See Utc lnlUti/itt^ note. 



jtbS 



JrtONTESQUlEU 



It by sn oath, wliat other rcmcily wa> left to a military man^ 
who saw liimiidf upon the point of being confounded, than to 
demand satisfaction for the injury done to him: and even lor 
the attempt of perjury? The Satle law, which did not allow Uic 
Guelom of negative proofs, neither admitted nor had any need 
of the trial 1>y combat; bul the laws of the Ripuarians y and of 
tJie other barbarotis nations ' who had adopted the practice of 
negative proofs, were obliged to establish the trial by combat. 

Whoever will please to examine the two famous regulations 
of Cnndchald. Kitig of Burgundy, concerning this subject will 
find they are derived from ihe very nature of the ihing.o It was 
necessary, according to the language of the barbarian laws, to 
resctie the oath out of the hands of a person who was going to 
abuse it. 

Among the Lombards, the law of Rolharis admits of cases 
in which a man who had made his defence by oath should not be 
suffered to undergo tlie hardship of a duel Tills custom spread 
itself further: fr wc shall presently sec the mischiefs that arose 
from it, and how they were obliged lo return to the ancient 
practice* 



ij.— ^ ReHeciion 

I do not pretend to deny that in the changes made in the code 
of the barbarian laws, in the regulations added to thai code, and 
in the hody of the Capitularies, it is possible to find some passages 
where the trial by combat is not a consequence of the negative 
proof. Particular circumstances might, in the course of many 
ages, give rise to particular laws, 1 speak only of the general 
spirit of the laws of the Gcmians, of their nature and origin; I 
speak of the ancient customs of those people, that were cither 
hinted at or established by those laws; and this is the only mat- 
ter in question. i 



4 



jrThU ipiTit •ppm™ \a itie law of Ihc 
KipiHin«ni, III. w. *^- «■ ""(3 trt 6;, 
•t«. t, »aA in Ibr raiiintljry <>' l.ntiu 
the D<hi?nntjft, added lo Ili« Uw ol 
the ftipiiiriAfta ^a tt\t yru ^, Wt- A$. 

y See tlui U«. 

r The law M ll*e yrUlpn* lAmhtffli* 
Il*vuriint^ Saxon 1. TburinEiaiii. &nd 



a lo lh< Uw of thr uurffundiani, 



til- 



It, ufi- I 4nil », Dii crirmm] i.1t&Ln; 
>*ad til- 45, vliich (Xlvutb 4libi lo dvU 



■ATvin, Srv bIho ttit liv of tha Thoria- 

StVEt^H lit- ■- vc ji. til. y, ICC, 6. »nd 
1- S: ami Xhr %vm M ihr \1ffnaflB, \i%. 

ff^i ihe law of %hn B*vari4ni. tit. j*, fh4pi, 

\k. t^r. ^ And chAD *tk S^K I. hfid IIT, «^ 

<hap, IT, life. 4: W law o[ th< Fhiiaoh 
m. *. »tc. 1, arid ill u. t«. »; ihr U« 
Ol tb* Loraliardi, boofc \. fU-jl*, •«_ i 
and til, 15, tve. i. iaU book tl. tit, jT 

I See cbj^i^ xtMu^ lowATda t1i« nd. 




THE SPIRIT OF LAWS 



m 



:6l — Of the Ordeal or Trial by boiling Water, eslablishtd by 
the Salic Law 

Tlje Sniic law c allowed of Uie ordeal, or tml hy boiling watw; 
and as thU tiiaJ was excessively cruet, (he law found an expedi- 
ent to soften its rigor,^ It permiited the person, who had been 
summoned to make the trial with boiling water, to ransom his 
hand, with Uie consent of the adverse parly. The accuser, for 
a particular sum determined by the law, might be satisfied with 
the oath of a few witttesses, declaring thai the accused had not 
committed the crime. This was a particular case, in which the 
Salic law admitted of the negative proof. 
,, This trial was a thing privately agreed upon, which the law 
iHpermitted only, but did not ordain. Tlie law gave a particular 
indcmnily to the accuser, wlio would allow the accu&ed to make 
hi* defence by a negative proof: the plaintiff was at liberty to be 
satisfied with the oath of the defendant, as he was at liberty to 
Eorgive him the injury- 

The law contrived a middle course/ that before sentence 
pcu;i;ed, both partiet, the one through fear of a tcrriMe trial, the 
other for the sake of a small indemnity, should termtnafe their 
disputes, and put an end to their animosities. It is plain, that 
when once this negative proof was completed, nothing more was 
requisite; and, therefore, ibat the practice of legal duels could 
not be a consequence of this particular regulation of the Salic 



t 

' fori 
reaj 
use 
con 

"othc 



17. — Particular Nolions of tfur Ancestors 

It is astonishing that our ancestors should thus rest the honor, 
fortune, and life of the subject, on things that depended less on 
reason than on hazard, and that they should incessantly make 
use of proofs incapable of convicting, and that had no manner of 
connection either with innocence or guill, 

'ITie Germans, who had never been subdued./ enjoyed an cx- 

ive independence. Different families waged war with each 

other X to obtain satisfaction for murders, robberies, or affronts, 

Tliis custom was moderated by subjecting these liu^itiliiiea to 

lies; it was ordained that they should be no longer committed 



t At alu ■rme oiha hw* i^f thf Im^ 

Willi. a^iu 5j. tlbtd. (It. s& 

f'Pttf ipr*«r] by »l]it T>CLli» My*. 



ill [hpir diepaiet by ihc awonL 



tio 



kOKTESQUIED 



but bf tbc dircctkn and uDda tbc xyv of the magistrateA Thb 
wu£v jrrcfcraMcloigciicnlbctaftcofaniiOTiagciicfaQdict. 

A» tbc Turki in thdr dvil w&rs look upon the first victory 
aL> a «kcuion oj hesvcn in bvtw of fhe victor, »o the [nhafntams 
of Ccfmaay in their private qnarrdfi considered the event ol a 
combat as a decree of Providence, ever ittentive to punisb tbc 
cHfnina] or the ufiirprr. 

Tflidttts infornii ti£. rhat when one German nation imendcd 
10 dedare war against another, they looked ottt lor a prisoner 
vbo was lo fisflit with one **f their people, and by the c\-ent they 
jtidgcd of the success of the war. A nation iriio beticTed thai 
public quarrcb could be deternimed by a single combat might 
very well thtnk that it was proper also (or deciding tbc disputes 
of indiifiduals. 

Gundcbald. King ol Burgund}-, gave the greatest sanction to 
the custom ol legal ducls.^ The reason he af^igns lor this law 
is meniioDcd in hi* edict " It i^r says he, " in order to pre\*ent 
our subjects from attesting by oaih whai is uncertain, and per- 
juring ihcoiscUxs ahout what is ccnaiii." Ttitis, while the 
clergy declared tliat an impious !avr which pcmiiUcd combats^ 
the DurgundJan kings looked upon that as a sacHl^ou? Uiw 
which authorized the Uiking of an oath. 

Tlic trial by combat had some reason for it, Foanded on ex- 
perience. In a mitilary nation, cowardice Kiippf>M.s other vices; 
il is an argument of a person's having deviated from the pnncJ" 
pies ol his eilucation. of his h^ng imenMhlc of honor, and of 
having refused to be directed by those maxims which eovcm 
other men; it >bows that he neither fears their contempt, nor 
»ets any value upon their esteem. Men of any tolerable extrac- 
tion seldom w^nt either the dexterity requisite to co-operate 
with strength, or tbc tlrtngih necessarj- to concur with courage; 
for as they set a value upon lionor the^ are practi^d in matters 
without which this tionor cannot be obtained. Besides, in a 
military nalttsn, where strength, courage, and prowess are es- 
teemed, crimes really odious are thof>e which arise from fraud, 
artiJice, and cunning, that Is from cowardice. 

With regard to the trial by finr, after the party accused had 



Mid, lo ntpca u> le» *H-icii{ i'th**, 
Bwimmiuir Dfl tbc " Cuii««4 oJ Bos' 



i Law of the Rumin^fisniL ahap^ iiln 
i Sec Um wuckB (rf AtiotHva. 





THE SPIRIT OF LAWS 



lit 



put hu hand on a hot iron, or in boiUtig water, they wrapped ihe 
hand in a bag and ^alcd it up; if Aft<rr three days there ap- 
peared no mark, he war; acquitted. U n not plain, tlial atncn^ 
people imtrn) lo the hainUing of arms, the Emprc»,Mon made on 
a rough or caIloti« skin by the hot iron or by boiling water coutd 
not be *o greAt us to be seen three days aficrwarda? An^ il 
there appeared any mark it ihowed tliat tJie person who had 
undergone the trial was an cffeminale (cilow, Owr peasant* are 
not afraid to handle hot iron with thHr callous hands; and, with 
rrgard to the women, the Iiande ol those who wf>rked hard 
mtirht be very well able to re«i*t Iiot iron. The ladies did not 
want champions xo defend their cauBc; and in a nation where 
there was no luxtiry, there was no mtddle statcJ^ 

By ihe law of the ThiiriTigians ' a woman accused of adultery 
was cofKJenmed to tlie trial by boiltnf: water only when there 
was no champion to defend her; and Ihe law of the Ripuarians 
admiu of this trial >« only when a person had no witnesses to ap" 
pear in jiistirication. Now a woman that could not prevail upon 
any one relative to defend her cause, or a man that could not 
produce one single witness to attest hi» lioncsty were, from ihos^r 
very circumMance:^, sufficiently convicted. 

J conclude, thcicforc* that under the circumstance* of time 
in which the trial by combat and the trial by hot iron and boil- 
ing vratcf obtained, there was such an agreement betw ccn those 
bwft and the manners of the people, that the laws were rather 
onjust in themselves than productive of injustice, that the cfferts 
were more innricottt tbau the cau^, thai they were nuire con- 
trary to equity than prejudicial to its rights, more utu'casonabic 
than tyrannical. 






-/« u/hct mmnir the Custom of fudkiat Combats gained 
Ground 
From AgcAard's letter to Louis the Debonnaire it might 
be inferred that the custom of judiciaJ combats was not estab- 
fiihe<l ainon^ the Frauk^; for having represented to that prince 
the abuses of the taw of Gand«.-bald, lie desires tliat private dis- 
putes should he decided in Btirgundy by the law of the Franks-" 



k 5c« DMUimnalr on ibv " Cusmm oi 
Btflfivoidli,** chap. faL Srv ntu ihe lAtf 
t4 t^ AfkKtl. ct«|h Hi*', wh^rt ibe iriil 
by boil*i< wattT b only > tnhtHiMj 
proof- 



• " « plAcvTM DomhM na»(n> nt < 






Its UONTXSQUIEU 

But tf it b wdl V&own Irom other qn&rtcrs tliat tbc trial hf coro- 
iMt prcrailcd at that time in France, this has been the cause of 
fiooic perplexity. However « lh« difnctilt}' may b« »oAv«d by what 
I bare iaid: ibc law of the SaHan Fnnks did not aDow of tbit 
kind of trial and that of the Rtpuarian Franks dtd.0 

But, notwithsunding the ctamon of the dcrgy, the ctistotn of 
jadktal combati gained icrotuid conttnttally In France: ami I 
iliallprtseiitly make it appear, thai tbe dcrsy thcmsdres verc ia 
a great measure the occasioo of it. 

It is the law of the Lombards that furriisbcs us with this 
proof. " There ha$ been kmg since a detestable custocn intro* 
duced,** says the preamble to tlic constituttoa of Otbo 11:^ 
" this t», that if the title to an estate was said to be Etlse, the per- 
son who claimed under that title made oath ijpon the Gospd 
that it wa» genuine; and nitbout any preceding jndgmcin he 
took possession of the ntalc; >o thit diey mho would perjure 
thcmsdven were sure of gaining their point*' ll>c Emperor 
Otbo I having caused hixnscH to be crovt-ncd at Romcf at Xltc 
rcry time that a Coutidl was there under Pope John Xll a)l 
the lords of Italy represented to that prince the necessity of et»- 
acting a law to reform this horrible abuser TIm Pope and the 
Emperor were of opinion thj*t tbe affair ^ho^ild be referred to 
the Conncil which was to be shortly held at Ravenna.* There 
the lords niade the same demands, and redoubled their com> 
plaints; but the affair was put off once more under pretence of 
the absence of partiailar persons- When Otho II and Conrad* 
King of Burgundy, arrived in Italy ,' they had a conference at 
Verona « with the Italian k)rds; v and at their repeated solicita- 
tions, the Emperor, xviih their unanimous consent, made a law, 
that whenever there happercd any disputes about inheritances 
while one of the parties insisted upon the legality ol his title and 
the other maintained its being ia\%c, the affair shoulEl be decided 
by combat; that the same rule should he ob*er\'ed in contests 
relating to hcfs; and that the clergy should be subject to the 

c Sn Ihit hv, fit 59> **^ 4. td'l ttt. i It vif beM la (he T^v tfy. H tfti 

*r. "- J-, ^ , »...,-( Pft*fn« ^f Pom John XlU ud «f Ut* 

f Tl« ynf «£& liut Kinc of Tniuiorian Barf nd/. 



tarn, m tnpvmo* woctw niiriiri Ufr. i-'^ Cum tt hev ftb i-minibaf ImpcflAlt* 



tni LomUw^ book II. tit ij, ch*fiL lanl«, book It. C% m^ ai»|>. nxiv. 





THE SPIRIT OF LAWS 



tlj 



^ 



same law, but should fight by their champions. Here wc set, 
that the nobility iiiM^tciJ un the trial b>~ combat, bccuuiiC of the 
inconvenience oE the proof introduced by the clergy^ that not- 
withttxiitding the clumon: of the nobility, the notoriounncsK of 
the abuse which called out loudly for redress, and ihe authority 
of Ctho Mtho came into Itsily to a^peak am! act as master, still 
the clergy held out in two Councils: in fine, that the joint con- 
cnrrtnce of the nobility and princes havitif; obligt^d the clergy 
to submit, die custom of judicial combats must have been con- 
sidered as a privilege of the nobility, as a barrier against injus* 
licc, and as a security of property, and from that very moment 
thi:« curtoin must have gained grouni. And this was effected at 
a lime when the power of the emperors was great, and that of 
the popc5 incomidcrabk; at a lime when the Uthos came to 
revive the dignity of the empire in 1 taly. 

I shall make one reflection which will conroboratc what has 
been above said, namely, that the instttucion of negative proofs 
entailed tbat of judicial combats. The abuse, complained of to 
tbe Otl)Q5, was, that a person wlio was charged v^itti having a 
^Ue tide to an estate, defended himself by a negative proof, de- 
claring xipon the Gospels it was not false. What xvas done to re- 
form the abme of a law which had been mutilated? Tbe custom 
oi combat was revived, 

I hdMened to ipeaV of the cor^litulion of Otho II, in order 
:o fifivc a clear idea of tbe disputes between the clergy and the 
laity of those times. There liad been indeed a constitution of 
Lotharius I w ot an earlier dale, a sovereign who, upon the same 
iplaintsand disputes, bein^dcalrous of securing the just po$* 
sion of property, had ordained that the notar>' should matcc 
oath tbat the deed or title was not forged; and if tlie notary 
should happen to die, llie witnesses should be sworn who had 
signed it. The evil, however, still continued, till they were 
ot>Jigcd at length to have recourse to the remedy above men* 
doned. 

Before that time 1 find that, in the general assemblies, held by 
Charlemagne, the nation represented to hiin^-t tbat In the actual 
state of things it was extremely diflictilt for either the accuser 
the accuftcd to avoid perjuring themselves, and that for this 



^Gom 
Kessi 

1 flafVi 



IL tflf ^, Hc jj. In l1;c cop> vhicb 

Vou IL— S 




MtiritoH maftr tin* erf ft U ^tirlbutfd to 



reason it was much better to revive the judicial combat, which 
was accordingly done. 

Ihc usage of judiciaJ combats gained ground among theBur- 
gundians, and that of an oath was limited. Theodoric, King of 
Itiily, »>u]^iic&&cd iht? single combat among the Oslrogo1hs;> 
and llic laws of Cbamdaiuinthn^ and Ri^ccs&uinlhus seemed a& if 
they would alioli^h the very idea of it. But th^se laws were so 
tittle respected in Narbonnc Gani, that they looked upon the legal 
ijuel at. a privilege of the Goths.^ 

The Lombards who conquered Ua\y after the Oatrogotlu had 
been de>ilmye<l by the Greeks, inlroduced the custom of jndicijil 
combat into that country, bitt their first laws gave a check to ii.* 
Charlcm3fine,fl Louis the Debonraire. and the Othos made 
divers general constitutions, which wc find inserted in the laws 
of the Lombardst and added to the Salic lawa, whereby the prac- 
tice of legal duels, at first in criminal, and afterwards in civil 
ca«es, obtained a greater extent, lliey knew net what to do. 
The negative proof by oath had its inconveniences; that of legal 
duels had its inconveniences also; hence they often changed, ac- 
cording as the one or the other affected them most. 

On the one hand, the clergy were pleased :o *ee that in all 
secular alfaJrs people were obliged ti> have recourse to the altar,* 
and. on the otlier, a haughty nobility were fond of maintaining 
ihdr rigbla by the sword, 

I would not have it inferred t}iat it woa the clergy who tntro* 
duced the custom eo much complained of by the nobility. Thid 
custom wat <teriveJ frofu the tpirit of t!ic barbarian laws, and 
from the establishment of negative proofs. But a practice thai 
contributed to the impunity of such a number of criminals, hav- 
ing given some people reason to think it wae proper to make use 
of tlie saticttiy of the churches in order to strike (error into the 
guilty, and to intimidate perjurers^ the clergy maintained this 

nnltmrlii: amf id ttc 1$, that of I.11U. 

a litiA haoU If. ill %%^ %^r 9$. 

ATlif juiljcid cuth» were made >t tlwl 
liffl' in Ibt fliiirrhri. knd ftiirinq tW 
Crx net ^ our kinfri ihcrc ««■ « clupcf 
«c1 ajitrl in ihr royal imlara W thd 
mffajr^ that ni-re fo ht ihvy <!<?cidrcL 
Sffi fhe iDFtnuTB.* ul iJinmiliat- hnrA I. 
chip. mcKrfil. The bfr* tji fhe Rino- 
nnrti. (Jl u^ ■«. 4, rif, ^,5. rec. j. Th# 
hntfiri of GrFKory of Tuun; «ui tbo 
C««*ti|'ary of Iht yt»r Box tdOtd in Mi* 



# " In palaiio <iDAc)ifci, Item comn 
1t4r'^n''.n'<nBTi, nm *inp»»prtfur ■ *3P*i- 
dftm vDCUo Sunild, rt tafidtUlsiii ViiDr- 
mur. cum pDitrm tr<'iJrid»iii Lrdeni 
proprlsn, utpolf quia uifniutf Cuihut 

Sat, fS^f»^ rf»lin f^tisnmim «■* il 
PlUt,''— Tilt innnTmiiim luthor of lb* 
" Life of LouU The Debcrtna»TT." 

lh« l*Tf M 111* l,ctmbinl>, 

4 ind ill. Oh ^oc. M.\. %na 

..- ^ wc*^i taid %. anr) tiT. 

!• Jt vA a. Tb< recuUtlofki of 



'm. 



- See Id II 

ES3 k% 




THE SPIRIT OP LAWS 



"5 



usage and the practice which atten<lecl it: for in other respects 
they were absolutely averse lo negative proofs. We find In 
Bcaurnani>ir ( that this kind of proof wus never siUowet) in cc- 
clesiasilc courts, which coiUributed greatly wUhout douhi to iU 
suppression, and to weaken in tliU respect the regulation of the 
cotUs of the hnrbarian laws. 

Thiswillconviiiceus more strongly of the connection between 
the usage of negtitivc proofs and that of judicial combats, of 
which I )uv« Laid io much. The lay tribunals admitted of both, 
and both wer« rejected by tlie eccleAiaaiic court*. 

In fhooting thr trial liy duel thr nnlton foUowod its military 
spirit: for while thia was established ns a divine d<-ri«ion. the 
trials by the crow, by cold or boiling waters, which had been also 
retarded in the &ame lights, were aboH^heJ. 

Charlemagne ordained, that if any difference should arise be- 
tween hts children, it should be tcntiinatcd by the judgment of 
the cross. Louis the Dcbonnairc,^ ]iniilc<1 this judgnient lo ec- 
clesiastic afTairs; his son Lotharius abolished it in all cases; nay. 
he suppressed ever the trial by cold watery 

1 do not pretend to say, that at a time when so few usages 
were universally received, these trials were not revived in totnc 
churches, especially as they are menlloned in a charter of F'hilip 
Augustus/ hut I affirm that they were very seldom practised, 
Beaufiianoir,f whcs liveil at the tiinc of -St. Louis and a little after, 
enumerating the di^crcni kinds of trial, mentions tliat of judicial 
combat, but not a word of the others. 



19- — A ««t' Rccson of th^ Disus* of the Salic aftd Roman Laws, 
as aijo of ih^ Capitularies 

I have already mentioned the reasons that had destroyed the 
autbonty of the Salic and Rcmnn taws, asi also of the Capitu- 
laries; here 1 shall add, that the principal cause was tlie great 
extension given to judiciary combats* 

As ilic Salic Uws did not admit of i!m custom, they became in 
»Qmc measure uneLcss, and fell into oblivioiu In like manner the 



f Chap. «DiU. p. Mf. 

hi a« la* of the LioiUfdi And bi the 
»A f4 tb* Salic \§mt, 
« Id A ccnifltiutioa iaiRted ia the Uw 



«t ihe Lombatdi, iMok IL til. u. lee. 
j^In (he yttt 100. 



ii6 



ilOKTESOUIEU 



Ronuji laws, which ako rc)cctcO Uns cmtocst were Uid a^de; 
tbctf whole alteotion wa5 ibcn talcca up in c^ublifrhmg the U« 
ol jodkiai conitMtA, and to fonntng a proper digctt ol the several 
CAKsihat Rii^t happen oaiboMocoMOfifl* The ircgubtknis of 
the CapitiUaries became htcevmc oC no maimer ol Mrvic^. Thns 
Kt is that such a number of bws loft all tKeir authority, «-ithout 
o«r being abk to tell the pfw*e time in which it was lost ; th<y 
fell Into oblivion, and «^ cannot find any oth^s that w^re sub* 
stituifd in their place. 

Such a nation had no need of wriucn bws; bence its written 
laws very easily bU into disuse. 

If there happened to be any disputes between two parties, they 
had only to order a single combaL For this no great knowledge 
or abilities were rcc^uisite. 

All civil and criminjl actions are redtxied to fact& It is upon 
these (acts they fought: and net only the sut^tajKC of the affair, 
bt)t likos'ise the incidents and imparlances were decided by com- 
bat, as Beauroanoir observes, who pnxltices several instances.^ 

I find that louards the conuncncemeni uf the third race, the 
jurisprwlcnce of iho^ tituc^ related entirely to prccedcnis, every- 
thing was reflated by the point ci honor. If the judge was not 
obeyed, he insUted upon satisfaction from the person tlut coci^ 
tctnned his authority. At Bourgcs if the provost had summoned 
a person and he refused to come, hb way of proceeding was to 
tdl him, " 1 tent for thee, and thou didst not think it worth thy 
while to come; 1 demand therefore satisfaction for this thy con- 
leropt." Upon which they fought J Lottis the Fat reformed 
thi^ custom./ 

The custom of legal duels prevailed at Orleans, even in all 
demands of dcbL^ I^tiis the Yotine. declared that this custom 
thould lake place only when the demand exceeded five ^us. 
This ordinance was a local law; for in St. LoaisV time it was 
sufficient thai the value was more than twelve dcnicrs-J Beau- 
ntanoir «• had heard a gentleman of the law affirm, that formerly 
there had been a bad custom in France of hiring a champion for 
a certain time to fight their battles in all causes. This shows 



I 0«p, III. 
i Chirtr* 



k rh»r^rr nf Louit thff YovoO, Itt llHL 



cL ra, ja^ nOk k Ch^rirv nf Louit thff YovoO, 1 

tyi lAoit nw hi, tn the in Or rnnfrtion of Ordiw^M 
to liw CaJMCtloa of Crdl- I ^t^ BnumMOtr, dt^ InlL i 



P- SIS' 

m St< Ih4 "Custom of D«tirnil«U.* 




THE SPIRIT OF LAWS 



"7 



r 



lliat ihi; custom of judicbry combat niu^L have prevailed at that 
ic to a wonderful ejttent. 



^ 



20. — Origin of the Point of Honor 

Wc meet with inexplicable enigmas in the codes of laws of 
the barbarbn«. The Inw of the Frisians n jil]o\v« orly half a sou 
£□ composition to a person thai had been beaten with a stick, 
and yet for ever so small a wound it allows more. By the Salic 
law, if a freeman gave three blow5 \\ttli a stick lo another frce- 
fBan.hcpntd three sons; if lie drew blood, he was punished as if 
he had wounded him with ^icel, and he paid fifteen sous: thus 
tbc puni&bmcnt was proportioned to the fp'catncss of the wound, 
The hw of the Lombards <£tabHs]ied different cotnpomions for 
one, two, ihrce, four blows, and so on,p At present, a single 
blow is equivalent to a hundred thousand. 

The constitution of Cliaricmapnc, in&crtcd in the law of the 
Lombards, ordains that those who were allowed the trial by 
combat should fight with baaions.r Perhaps this was out of re- 
gard to the clergy; or probably, a^ the u^uge of legal ducU 
gained ground, they wanted to render tlietn less sanguinary. 
Tile Capitulary of Louis the Debotmaire, allows the liberty of 
choosing to fight cither with the ^word or baston.a In proecu 
of lime none but bondmen fought with the baston.^ 

Here T see the first rise and fonnation of the particular articlefi 
of our point of honor The accuser began by declaring in the 
prcKenee of the judge that such a person had committed mch an 
action, and the accused nadc answer that he lied.' upon which 
the judge gave orders for the duel. It became then an established 
rule, that \vhcne\er a person had the lie given him, it was incum* 
bent on him to fight. 

Upon a man's declaring that he would fight i he could not 
afterwards depart from Im word; if he did, he wa& condemned to 
a penalty. Hence this rule ensued, that whenever a person had 
engaged his word, honor forbade him to recall it- 

tjenticTncn foTEght one another on horseback, and armed at 
points :k villain*^ fought on foot and with bastons.v Hence it 

" AdAcfo MplMlliuni WtUtnul," I 5t« linuniftnair. iii. pp. 35 tnd jaa. 

fc Sf e in t«u*T<\ tn lh* ifinj ol tnfl 
GomlftikniAH Deiumnnuir. ch4pn lis. p. 
joL nnd chap, hW. p jjft 

f Ibi<l. chip. |«rv. p, yM. SfP alM 



fB(Ak IL li!, 1- i*c. ^ 

« Addnt to Ih< S4lk Iftv la Si«. 




quoted by tdlUnd, p. «> 



iiS 




UOHTC5QUIEU 



I 



loUcHirtd diat the baitoo wma lookc<1 upon ju the iiutrammt 
ttmslts and affrant«,» b«cait^ to strike a man vith it was tri 
iftg him lik^ a vilUin, 

None }mi v*ni&rai fott^ with fhctr taces tiBCOVcred^ so 
Dome but thcr could reccnreabknv on the face. Tbcrcforca 
on Ibc car became an injury that most be cxpbted with Mood* 
because the pcnon who received U had been treated as a viUiin. 

The leveral peoples of Germany were do less soisiblc than wt 
of the point o( honor; Da>\ they were more so. Thus the most ' 
distant relatives took a very considerable share to themsdves in 
et'ery affront, and on this all their codes are founded. The law 
of the Lotnbards ordains^ Oiat whosoever goes attended with 
servants to beat a man unawares, in order to load him with 
slianie and to render him ridiculcun, ^koukl pay liali the compo- 
sition which he would owe if he had killed him;' and If tbrou^ 
the same motive he tied or bound him, he would pay thrw- 
quancrs of the ume composition. 

Let U4 then conclude that our forefathers were extremdy 
sensible of aflFroniR; but that affronts of a paniculir kird, such 
as bdt^ struck with a certain instniment on a certain pan of the 
body, and in a certain manner, were as yet unknown to them. 
All this was included in the affront of being beaten, and in this 
case the amount of violence determined the magnitude of tlte 
outrage* 

I 
31.— 'W new Rfittction upon th€ Point of Honor among tki 

Cermons 

^ It was a ifreat infamy." says Taciiujt^fl " among the Germans 
for a person lo kave his buckler behind him in battle; for which 
reason many after a misfortune of this kind have destroyed 
themselves." Thus the ancient Sahc law b allows a composition 
of fifteen sous to ary person that had been injuriously reproached 
with having left his buckler behind him. 

When Charlemagne amended the Salic law/ tie allowed in this 
case no more tluiii three sous in coinpofition. As this piince 
cannot be vtispccted of having had a design lo cneT\-atc the mili- 

j Booli L Ht. IL ^tc t, I 

f Bufk k 1^ S- "^- *- 

A In 4rt *' PftCtm ]«ii> S^hcr." 
t W« lave baOi ih< ancicat bv Mid 
thit wbicb v*i *smdrd bjr Ihit priiw*. 



nnt In- 

_.... _ .. .1. "1^ 

t>c lU q«L D«tintiir id- 






idti* tuittun 
bini»-" 
M Th«T tu<l i^alT <l^ Unoa tiid 




THE SPIRIT OF LAWS 



119 

lar>' diMnpliitc, il is niamf»t lliat such an aUcration was dnc to 
a change of weapons, antl tli^t froiu tins chaugc of wcapoiLS a 
great number of usages derive their origin, 



42,^-0/ the Manners in rrlation to judicial Combats 

Cur coitnccdoDs with the fair ficx arc founOcd on the pleasure 
ot cnjoymnit ; on the happine» of loving and being loved \ and 
bkcwtac on the ambition of pleasing the Udi<3, because they arc 
the beit judg<:i of some of those things which constitute per* 
aonal merit. This general d€sirc of pleasing produces gaUariiry 
whichi^not love it«eU, but ihedelicaie, the volatile, the perpetual 
sunulation of Uive, 

According to the different circumstances of every countr>'and 
age, love inclines more to one of those three thinj^ than to the 
other tvb-c. Now I maintnin. tliat the prevailing spirit at the 
time of our judicial combats must have been Ihat of palLintry. 

I find in the law o! the Lombard*/ that if one of the two 
dumpions was foimd to have any magic herbs about him, the 
judge ordered them to be taken from him, and obliged him to 
swear he had no morcr< This law could be founded only on the 
vulgar opinion; it was fear, the alleged inventor of much that 
made them imai2:ine this kind of prestige, h% In single combats 
the champions were aniicd at all poiEiis, and ;i5 lAith heavy arms, 
both <A the ofTcnMve and defensive kind, those of a particular 
temper and strength gave immcn5e advantages, the notion of 
^me champaons having enchanted arm^ nuist certainly have 
turned the hraitis cf a ^rc:it many people. 

Hence arose the marvellous system of chivalry. Tlie minds 
cf all (om of people quickly imbibed these extravagant ideas. 
In romances are fotmd ktiights-crrant, necTomancers. and fairies, 
winged or intelligent horMrs, invisible or invulnerable men, ma- 
gicians who concerned themselves in the birth and education o( 
great personajjcs, enchanted and disenchanted palaces, a new 
world in the midst of the old one. the usual couree of nature be- 
ing left only to the lower ckss ot mankind. 

Knights -errant ever in armor, in a part of the world abound* 
ing in castles, forts, and robbers, placed all their glory in punish- 
ing injtistice, and in proleciing weakness. Hence our romances 
rfBooh II, lit u, ICC. It, 



ijo 3COSTESQCIEir 

are faH ci galbiitrr fenoded aa die idea of lore joined to that 
ci §tr€Dgdi 2nd pcattcdaa. 

Soch was the cngm cc gal Lintr i, wfaoi tfaer farmed the tk>- 
lioo of an exmcn^jQuy race of tntsu who at the sight of a vir- 
tnods and bcantifol ladj in digress were iDdined to expose 
thenuehres to all hazards for her sake, and to endeavor to please 
her in the common actiocis of hfe. 

Oor romances of chhairj ^altered this desire of i^eashi^, and 
co mmu nkated to a part of Emnope ihai sporit of gaUuitry which 
we may Tenture to affirm was very httlc known to the ancients. 

The prodi^ons huniry of that immense city of Rome cn- 
cooraged sensuotis pleasures. The tranqmlfity of the plains of 
Greece gave rise to the description of the sentnnents of love.' 
The idea of knights-errantr protectors of the vtrtne and beauty of 
the fair sex, led to that of gallantry-. 

This spirit was continaed by the ctistom of tournaments, 
which uniting the rights of \^or and love» added still a consider- 
able importance to gallantry, 

23- — Of the Code of Laws on judicial Combats 

Some perhaps will have a curiosity" to see this abominable cus- 
tom of judiciar)' combat reduced to principles and to find the 
groundwork of such an extraordinary code of laws. Men, 
though reasonable in the tnain, reduce their very prejudices to 
rule. Nothing was more contrarj- to good sense, than those 
combats, and yet when once this point was laid down, a kind of 
prudential management was used in carrj-ing it into execution. 

In order to be thoroughly acquainted with the jurisprudence 
of those times, it is necessary to read with attention the regula- 
tions of St, Louis, who made such great changes in the judiciary 
order, Difontaines was contemporary with that prince; Beau- 
manoir wrote after him; ^ and the rest lived since his time. We 
must, therefore, look for the ancient practice in the amendments 
that have been made of it 

24. — Rules established in the judicial Combat 

When there happened to be several accusers, they were obliged 
toagrccamongthemselvesthat the action might be carried on by 
a linglc prosecutor; and, if they could not agree, the person bc- 

« Sh th« Greek nmuuicci of Ibc Uiddlc Ag& / la the jw ijBj. 



THE SPIRIT OF LAWS 



iti 




liora tlie action was bnnughT^ appoint«<l one of them to 
ute the <i\MiTT^].i 

When A gentleman challcngecl a villain, he \vau obliged to 
_ t himself on fool with buckler and baston ; but if he came 
oA^&orseback aiicJ armed like a gentleman, they took his borae 
and hisarms from him, and stripping him to his shirt* they com- 
pelled him to fight in that condilion with the villain.* 

Before ihc combat tlic magistrates ordered three bans to be 
published. By the first the relatives c( the parlies were com- 
manded to retire; by the second the people were warned to be 
silent; and the third prohibited the giving of any assistance to 
cHher of the parltes, nndcr severe penalties, nay, even on pain of 
death if by this assUtance either of the combatants should happen 
Ic be vanquished.' 

Tljcofnccrj»bcloHe"^gtf>*beci\'il magistrate /guarded (be list 
or enclosure where Ihc tjfittlc was fought; and in case cither of 
the parties declared himself dcdrous of peace, they took particti* 
notice of ihe actual state In which they mutually stood at that 

■ry moment, to the end ihat they might be restored lo the same 
ition, in case they did not come to an undcrstarding.* 

When the pledges were received ettlier for 3 crime or (or false 
judgment, the parties could not make up the matter without the 
consent of the lord ; and when one of the parties was overcome, 
there could be no accommodation without the permission of the 
count, which had some analogy to our letters of graced 

Bill if it Iiappeneil to be a capital crime, and the lord, cor- 
mptcd by presents, consented to an accommodation, be was 
obliged to pay a fine of sixty livrcs, and the right he had of pun- 
ishing the malefactor devolved upon the counL»» 

There were a great many people incapable cither of offcringj 
or of accepting battle. But liberty was given them, on cause 
being shown, to choose a champion; and that be might have a 
Mronger inlercat in defending the party, in whose behalf he ap- 
peared, hl& hand was cut off if he lost the battle.n 



thep 

■very 
Bftua: 
^^ w 

H 

I 



IftcMOnviolVi chip. tL op, 40 aail 41' tlir autbtir* nf ih<i*p daiyt hqv^ not 
Ibw. olupi IxtT. p. ^M. eenct&l i^MnificJiiinn. Inn t iiitn*^<*ti 

ITht crnf v»td« hid puticullf 



I Be*uRtSfiair. chtp- Ixiv. p, jjo, mft^ 



RmUcd to Ihf affajr ^n qfrrttkta^ D^ 
fouiiinw. chap, ni. an. ^ 

H Thir cvrinni, wbich «c mfft «rith in 
Ihe CflTiiEut Ariel, mi fiiU flubiiiilnc *< 
lh« rime o| ileiumiODir- Sea cbifK Ixi. 
^ JiS- 



tMB 



UONTESgUlHU 



UlKn caintal liws were made in the l2it century acrtintt dueli. 
perJuips ii wtitibl have been sufHcicnt to have deprived a warrior 
of his military capacity by the lo«$ of hU hand; nothing in gen- 
eral bong a greater inortificabon to mankind than to survive the 
loss of their cliaraeter. 

When, in capital cases, the dud was fought by champioiu, the 
paitici were placed where tiieycQuldnoi behoM the battle; each 
was botwd with the cord that was to be used at his execution in 
case bts champion wai overcome.^' 

Tbe person overcome in bslile did oot always lose the point 
contesLcd; ii, for iiiAiance, they fought on an imparlance, be lost 
only the impajUncc^ 

25. — Of the Bounds prescribed to tht Custom of judidal 

Combats 

Vlien pledges of battle had been received upon a crnl affair 
of fmall imponance, the lord obliged the parties to withdniw 
them. 

If a {act was notorious: for int^tance, if a man hzA been assas* 
linated in the open market-place, then there was neither a trial 
by witne&se^ nor by combat: tbe judge ca^'e his decision from 
the notoriety of the fact* 

When the court of a lord bad often determined ^fter the same 
manner, and the usage was thus known.'^ the lord refused to 
grant the parties the privilege of duelling, to the end that the 
usages might not be altered by the different success of tbe com* 
bats. 

They were not allowed to inslM upon duelling but for them- 
»c1ve:s, for some one t>ekinging to their family, or for thdr liege 
lord.' 

When the accused had been acquitted, another relative could 
not insist on fighting; him; otherwi»c dbpiites would never be 
terminated-' 

If a person appeared again in public whose relatives, upo«t a 
nippoution of his being murdered, wanted to revenge htt death, 
there was then no room for a combat: the same may be said if 
by a notorious absence the fact was proved to be tmpo««ihle.*> 

#BaMB^. eli^k bhr. PL JID. * Bfinnsaoii, ckip, fadtl p. )a 

t tbid. ft. wA; cU;i. jditL p. » ■ Ibid. 










THE SPIRIT OF LAWS 



113 



If a man who had been mortatfy woundi-tl had exculpated be* 
fort ht^ deaili the person accused and named anotiici, thc>' did 
not proceed 10 a duel; but if he liad mentioned nobody bis dec- 
laration was looked upon as a forgiveness on his deatli-bed: the 
prosecution was contin^ied, and even among gcnilenien the/ 
could make war against each oihcr.v 

When there vz^ a conllia, and one of the relatives had given 
or received pledges of batllcj the right ol contest ceased; for then 
it was thought chat the parties wanted to pursue tlie ordinary 
course of justice; therefore he that wonld have continued the 
conicst would have been sentenced to make good all the losses. 

Thus Uic practice of judiciary combat had this advantage, thai 
It wn^api to change a general into an individual quarrel, lo re- 
store the courts of judicatiu"e to their anthoritv, and to bring back 
into the civil state those who were no longer governed but by 
the bw of nations. 

As there are an inlinlte number of wife things that are man- 
aged in a very foolish manner; so there are many foolivh things 
that are very wisely conducted. 

When a man who was challenged with a crime visibly showed 
that it had been committed by the challenger himself, there could 
be then no pledges of battle; for there is no ertminal hut would 
prefer a dud of uncertain event to a certain punishmeiit,to 

There were no duels in affairs decided by arbiters/" nor by ec- 
clesiastical courts, nor in cases relating to women's dowries, 

" A woman " says Beaumanoir. *' cannot fight." If a woman 
challenged a person without naming her champion, the pledges 
of battle were not accepted. It was also requisite that a woman 
shoQld be anthoriied by her baron, that is, by her husband, to 
challenge; but she might be cliallcnged without this auilioriiyj 

If either the challenger or the person challenged were under 
fifteen years of age, there could be no combat.' Tlicy might 
<irder it. indeed, in disputes relating to orphans when their guar- 
dians or tmstccs were willing to run the rislc of this procedure. 

The cases in which a bonchnan was allowed to fight are, I 

think, at follows. He was allowed to fight another bondman ; to 

fight a frecd-nian, or even a gentleman, in ca« hf were chal- 

lengfd; Imt if he himself challenged, the other might refuse to 

V 1W4uiDADCi1r, chap. l^iL p- jn. 'I!*!^ 

«UU. pu »^ nid in booh XVIIU 



alto what I hvm 



1*4 



MONTESQUIED 



fight; and «vro tbe hoodmaa't lord had a rigltf to take Inm out 
of the coartfi The bondman might by bis lord's diarter or by 
mage fight with any trtcman;^ and tbc drarcb cbimcd th^ 
right (or her boodmen ^ as a mark of respect doe to her by the 
bity^ 

26. — On ike judiciary Combat hetxcrcn one of the Parties and 
cne of the Witntises 

B^umandr infornu us^ that a persoo who stw a witness 
ffomg: to ftwear against him might ehide the otbcTt bj telling 
the judges thsit hi^ adversary produced a fibe and sLandcring 
witneu; and if the witness was willing to maintain the quarrel, 
he gave pkdget of battle. The enquiry was no longer the quea- 
tiun; for if the witness was overcome, it was decided that the 
adversary had produced a false witness, and he lost his cause. 

It was necessary that the second witness should not be heard; 
for il be bad made his attestation, the affair would have been 
decided by the dcposilion of two witnesses. But by sla}ing the 
second, ttie dqju»itioii of the first witness became void. 

Tlie second witness being thus rejected, the party was not al* 
lowed to produce anyotltcra, hut he U^i ha cau>ci in case, how- 
ever, tlicrc had been no pledges 01 battle he might produce other 
witnesses* 

Beaumancsr obscrws/ that the witn«s might say to tlie party 
he appeared For, before he made hi« depoiiilioR: " 1 do not care 
to fight for your quarrrl, nor to enter into any debate; hut if you 
are willing to stand by me. I am ready to tcH the truth." The 
party was then obliged to fight for ihe witness, and if he hap- 
pened to be overcome, he did not lose his causer but the witness 
was rejected. 

I'his, I believe, was a modification of the aticient custom : and 
what makes me think so ifi, that we find thij^ usage of challeng- 
ing the witnesses established in the laws of the Bavarians h and 
Burgundians • without any restriction, 

I have aU'eady made mention of the constitution of Gundebald, 



n Hfitirrnmof, chip, liaii- p- jti 

9 ChAi^ td. lib aifr 



fBqr if lh« lutitr wit fniffht Vir 

coRif hi'i Tii» n»nd cvE off. 
* TH. il^ K<. 7, 



I 

4 



THE SPIRIT OF LAWS 



"S 



against which Agohard / and St, Avitus * made such loud com- 
pblnis. " When the accused^" says ihU prince, " producer wU- 
IK&5CS lo swc^r iliat he lias not coniinittcd the crime, the accuser 
may challenge gne of the witnesscrs to a combat; for it b very 
jwit ihM the |>crson who has oflfcrcd to swear, and has declared 
that he was ccnnin of the tnjth, should make no difficulty of 
maim^Ltning it by conibal," Tlius the wimc*se& were deprived 
by this king of every kind of subterfuge to avoid the jncHciary 
eomkit. 






h 



27- — Of the judiciary Comi}ot between one of the Parties ani 
one of the Lords' Peers. Appeal of false ludjitnent 

the nature of judicial combats was^ to terminate the a^atr 
er, and v^a$ incctnpatible with a new judgment and new 
prosecutions.^ an appeal^ such as is establiiihed by the Roman 
and Canon laws, that is, lo a superior court in order to rejudgc 
the proceedings of an inferior, was a thing unknown in France. 

This is a iorm of proceeding to which a warlike nation, gov- 
erned solely by Uic point of honor, was quite a stranger; and 
agreeably to this very spirit, the same methods were used again«t 
Ute judges as were allowed against the partics,"i 

An appeal among the people of this nation was a challenge to 
fight with arms, a cimllcngc to be decided by blood; and not 
tbat invitation to a p^ipcr qLiurrcl, the knowledge of which was 
reserved for succeeding ages," 

Thus St. Louis in hi^ Inslittitions says, that an appeal includes 
Iwih felony and inii^nity. Thus Beaumanoir tells «s, that if a 
vassal wanted to make his complaint of an outrage committed 
against him by his 1ord,'> he was first obliged to announce that he 
quitted his (icf ; after which he appealed to his lord paramount, 
and offered pledges of battle. In like manner the lord renounced 
the homage of his vassal, if he challenged him before the count 

For a vasuil lo challenge his lord of false judgment was as 
much as to say to him, that his sentence was unjust and ma- 
licious; now to utter such words against his lord was in some 
measure committing the crime of felony. 

Hence, instead of bringing a challenge of false judgment 

1 Letter to LodU Oie Deboitatire. 



.."UU of Si. Aviui*/' 

fBfkDmAaair. cbitp. iu p- n- 

■t Ibid., ctap. LjcC p. jij, and ebip. 




H Rook IL fh&p. xt. 
llnuTiianolr, chip, M. pa |io and 
)ii« ftod <lupi Ixvli. p- jj7# 



ia$ 



MONTESQUIEU 



agaimt the lord who appcnnted and directed the court, they 
chalfmgtrd the peers of whom the court iuelf wa» formed, by 
whitlt itiean^ ihe> avoided the cnme of Iclony, for Uiey ^ruulteU 
only their pcet^i with whom they could always account for the 
affront. 

It wftfl a very dangerous thing to challenge the pccT% of ftl»c 
jmlgmcTil.^ If the party waited till judgment wu pronounced, 
he wai obliged to fight ihcm all when they offered to make good 
their jiulgnicni,^ If the appeal wa* made before all the judget 
had jiven their oi>inion, he wan oh%ed in fight alt who had 
agreed ia their judgment. To avoid this danger, it was usual 
to petition the lord to direct that each peer should give his oi^n* 
ion aland: 'and when the first had pronounced, and llie second 
was going to do the same* the party told him that he was a liar, 
a knave, and a slanderer, and tlien be had to fight only with that 
peer 

Delontaines ' would have it, that before a challenge was made 
of (ahe judgment, h was customary to let three judges pro* 
noiince; and he docs not say that it was necessary to hght them 
all three, much less ihat there was any obh^atian to hght all 
those who liad declared themselves of the same opinion. These 
dilTcTenccs argse from this, that in thu&c times there were few 
uiiu^e» exactly mi all parts the ^nic; Beauiuaiiolt givei an ac- 
count of what passed in the county of Clermont; and D^foa- 
taincs of what was practised in Vcrmandois. 

When one of the peers or a vassal had declared that he would 
maintain the jisdgment, the judge ord«re<l pledges of t>attle to be 
given* and likewise took security of the challenger, lliat he 
would maintain his case.' But the peer who was challenged gave 
no secnnty, beraii^e he was the lord's vassal, and was ol>lij;;ed 
to defend the challenge, or to pay the lord a fine of sixty h\TCS, 

If he who challenged did not prove that the judgmem was 
had,* he paid the lord a fine of sixty livrcs, the same fine to the 
peer whom he had challenged, and as much to every one of those 
who had openly consented to the judgment.f 

W'hcn a person, strongly suspected of a capital crime, had 
been taken and condemned, he could make no appeal of false 
f )lMamaai>[r, dnp* 1x1. p. jij. ^'^^fj. tjiai «ach «l ittm w ttli>»cd 4 



P- AM- 



g Chft^ nU. art. i. iSk and tu be mt* 



4iiJ^] Sn«. 
I nnuiiu.. . ., .... 

p Ibid. 



.nuifunoir^ rhtp. In. pu J14 




THE SPIRIT OF LAWS 



137 



judgment :tf for he would ;ilwa>-» appeal either to prolong hU 
life^ or lo gci an ab^uic di^har^c. 

If a pcr:iaii said that the jadgairnt was ikUc and hitA, and di<l 

not offer to prove ii w3, that la to fi^ht, he was condemned to a 

Ane of ten 5ou3 if a gcntknian, and to live sous if a bondman, for 

the injurions exprcMion* he had uttered,* 

L The judges or peers w\\o were overcome, forfeited neither life 

'rior limbs :^ but ihe person who chalJrngcd them was punished 

with death, if it hajipened to he a capital enme.t 
L This manner of challenging the vassals with false judgment 
rvras to avoid challenging the lord himself. But if the lord had 
no peer&.a or had not a suflicient number, he might at his own 
e:cpcnse borrow peers of his Itjrd paramount ;fr but tliese peers 
were n^i obliged to pronounce judgment if they did not like it; 
they might declare thai they were oome only lo give their opin- 
ion: in t)ui particular case, the lord him&elf judged and pro- 
nounced sentence as judge ;f and if ^n appeal of false judgment 
wa$ made againf;t him. it wa-s his business lo answer to the chal* 
lenge- 

H the lord happened to be so very poor as not to be able lo 
hire peers of his paramoiini,i' or if he neglected to ask for them 
or the paramount refu.scd lo give them, then, a» the lord could 
not judge by Inniselfr and as nobody was ubhged to plead before 
a tribunal where judgment could not be given, the affair was 
bfought before the lord paramount* 

Thia> I believe, wa» one of the principal causea of the sepft- 
ratton betueen the jurisdiction and the fief, whence arose the 
niaxfm of the French lawyers, " The fief is one thing, and tlie 
jurisdklion i* another." For as there were a vast number ol 
peers who had no subordinate vassals under Ihem. they were 
incapable of holding their court; all afTairs were then brouglu 
before ihcir lord paramoimt. and they lost the privilege of pro- 
nouncing judgment^ because they liacl neither power nor will to 
claim it. 
L All the judges who hjid been at the judgment were obUged 



w a«»aTnHnelr, ehtf. liL p. ji6. lad 
IMfbntuMi. tttkft. jtiiii- wt. Ji. 
r I hill ehitp. Wi. p- jm,., 
J DrfimlkiEw c\k^, uji, AtL J. 
tl^t* rHlfHit&^n<\^ rhAfk. kaj. Brf. Tl 

and If. aod lallovmiTH whti f!itiintuiah«> 

!ti* tmar^ m whith iW siorllini fif Wiie 
vd^mmi loin hn hfv. [he ff^iat ton- 
" - ' 9t only lb* imparlarjce. 




A nfaEifnannir. ehap. Iiii. p, ja* H^ 

fonijiiTirl. cTil|i. ixii. 

ft T^*i *viii»rtf ofa» nnt oWfftMl |A T^rtd 
any- B^aumnnnir. chap- ItvH- f. w. 

t SfthrifiT "■!» p*" iu/ifpnt-nt InHhU 
court, >ayii Btaijinafloir» cn4i>- bivIL pp, 
3jfi And jjff. 

J Ibid, cbap. lull, p, JJ& 



MOVTESginEC 



to be 



p 



aad ttjajc to ibc pcaoa «fao^ waatiDc la make^ 
Md liufv is so moi tiang as cncni or odoy. ncncVt * nn- 

SffsQfv ITOCC tbtf custom fSU tOBOWCO is a^BJCttP^L QB OOOfflSE 

the juft to be ^ mnmtooo^ io thrir wrAct, in C3se6 r g h t it ig to 
lilc and dcatk. 

JvdgBcnt vu tberHore circn, l ecoriif to tbe offajoo of 
tte Ji^ of i t y : and if tbcrcwataa cqtal AvittOD, sentence was 
p i u n ouuL c d , in crimiaaJ cases, in txwr ct tbe accaaed; incases 
of debt, in bvor of tbe dciAor; and in cases of inheritance, in 
bvoroftbedcfcntam- 

tUfootatncs obserrcs^ that a peer cooM not excuse himseU 
hf njring thai be would not sit tu coon if there were only fotir> 
or if the whole cumber, or at kast the visesi pan, were not pres- 
ent. Thb is just as if be v^ere to ^y in tbe hcai of an engage- 
ment, that be would not assist his lofd, because be had not aH 
his rassals with him. But it was the lord's busiDcss to cause his 
couil to be rc^jcatd. and to choose the brarcst and most know- 
big of his tenants. Tliis, I mention, in order to show the dtt^ 
of vasails, which was to fight, and to givt judgment : and such, 
indeed, was this dutr, that to give judgment was all the same 
as to fight, M 

It was lawful for a lord, who went to law with hu vassal in V 
his own court, and was cast, to challenj^e one of his tenants with 
fako judgment. Rirt as the lartcr owed a resped to bJs lord for 
th^ ff-atty he bail vowed, and the loril, nn th^ oiher h;incl, owed 
benevolence to bis vassal lor the fealty accef>ted: it was cns-1 
tomary to irakc a distinction between the lord's affirming: ii^j 
general tliat the jud^^cnt was fal^ and unjuBt^i and imputir 
pcr«onil pre\'an cat ions to his tenant./ In the former case hel 
affronted his own coart, ai>d in ftome measure himseU. so tli 
(here wa* no room for pledges of battle. But there was roomf 
in the latter, because be attacked his vasiyifs honor; and the per- 
son overcome was deprived of life and property, in order to-— 
maintain Ihe public tramiuilUty. ■ 

« DtTontikiei. cb>ik nl. art tr soid h Thlt mmbtr al l«M ««■ , 
aS £>tfoiiufii«i. cW^ »■! «^ jL 

t Ibia. «ri. aL f llrinmannif chap. IzriL ^ xn 

f C)i*p. ni, ait. ff. ilbllL 





THE SPIEIT OP LAWS 



129 



Th!^ di^tinriton, which wan nccj^«ary in that paHinilar caie^ 
liad aftcrw.ircls a greater extent B^aumanoir says, that when 
the cballcagcr of false judgment attacked one of the peers by 
personal imputation, battle ersued; but if he attacked only the 
JudiCtnenl, the peer challenged was at libcrly to determine the 
clispute either by battle or by law> But as the prevailing spirit 
in Beaunianoir's time was to reslrain the usage of judicial com- 
l^ats. and b& this liberty which had been granted io the peer 
challenged of defending the judgment by combat or not is 
equally contrary to the ideas of honor established in those days, 
and to the obhgation the vassal lay under of ddending his lord's 
jtuisdietionr I am apt to think, that this distinction of Bcau- 
jnanotr's was a noveky in French jurisprudence, 

I would not liavc it thought tliat all appeals of false judgment 
were decided by battle; it fared with this appeal a> with all 
others. The rcailcr may recollect the c:<cepticn» mentioned in the 
25th cl\apter. Here it was tltc business of the superior court to 
examine whether it was proper to ^vitbdraw the pledges of battle 
or ttot. 

There could be no appe^il of false judgment ftgainst the king's 
eourt: because, a* there was no one equal to the king, no one 
could challenge him; and as the king had no superior, nani^ 
could apr<'al from hU court. 

This fundamental regulation, winch was necessary as a politi*- 
cal bw, diminished also as 3 civil law the abuses of the judicial 
proceedingsof those times, \\1ien a lord was afraid that his court 
would be challenged with false judgment, or perceived that they 
were determined 10 challenge, i( the interests of justice required 
(hat it should not be challenged, he might demand from the 
fcing'scourt, men whose judgment could not beset aside.' Thus 
King Philip, says Ddfoniaincs,"" sent hts whole Couneil to judge 
an affair in the court of the Abbot of Corbey, 

But if the lord could not Iiavc jiid^c^ from the king, he might 
remove his court into the king's, if he held immediately of tiini; 
and if there were intermediate lords, he bad recourse to his 
susirain, removing from one lord to another till he came to the 
tovercign, 

Thus, notwithstanding they had in those days neither the 
practice nor even the idea of our mndem appeals, yet they had 

- ABctumAiu^. chtp- trril pp. jyj *ai1 J3S. / DifoalaioH, chip. nfL aitbl^ 
Vol. lL-9 



ty> 



MONTESQUIEU 



recourse to the kinfj. who was the source whence all those rivi 
flowed, and l!ie sea into which tliey returned. 



28.— 0/ i*r 'j4ppcat of DtianU of Jusftcr 



J 



The appeal of default of justice was, when the cowrt o( a par- 
ticuLar lord deferred, evaded, or refused to do justice to the 
parties. 

Duriu^ the lime of our princes of the second race, thnugti ihe 
count liati several officers under him, thtir person vba& buboiOi- 
nate, but not their jurbdiction. These ofHcers in their court 
da^s, assizer, or flatUa, gave judgment in the last resort as the 
count hini£«lf; all tli<; di^erence eoti&isted in the tlivUion of the 
jurisdiction. For instance, the couri had (he power of con- 
dtMntiing to death, of jud^ng of Hheny, and of the rentiEution of 
goods, which tlic cenienarii liad not." 

For the same reason there were greater cases which were re* 
served to the king; namely, those which directly concerned ihe 
political ordtT of the statc.o Such were the dispules between 
bishops, ahbots counts, and other grander, which were deter- 
mined by the king^ together with the great vas^^ls.^ 

What some authors have advanced, namely, that an appeal 
lay from the count to tlic king's commissary, or missus dcminunj, 
is not well grounded. The count and the tnissus had an equal 
jurisdiction, intlependenl of each otlicr.7 Tlie whole difference 
was, that the missus held his plectra, or assizci, four months In 
ihe year/ and the count the other eight. 

]f a person^ who had been condemned at an a^Izc, demanded 
to have his cause tried over again, and was afterwards cast, he 
paid a fine of fifteen sous, or rceeived fifteen blows from the 
judges who ha<l decided the afTair.^ 

When the counts, or the king's commi&sanes did not find 
Ihemselvps able to bring the great fords to r^non, they made 
them give bail or security ( that they would appear in the l<injr*< 
court: this was to try the catiie, and not to rejudgc it. I find in 



■ Tblrd C*pitulftinr of the jrwr 8iib 
jrL \. filttian of £a1utiu«. p- MT- '^'^ 
of CI'iLrl» U|c Bdlil. aJtlrd Eu the Imv 



of the luimbarilii. hook IL tn^ 3, 

V lbi<l-. ir. vp^ 

p " Cum fid(iilm»."— CUpitulflf)' 01 
Luula the t>ebuuu4iic« idlliua vl B4- 



(I Sc« the CipTtsluT ef Oi«r!v« IIib 
B«l(!. A^lde^J ro the Uw of tb« I^m- 
b4EiI*. 1f-ruk [I. Hit. 3, 

r Third C«iulultry u( the rw li^k 

i •■ Ptaciiuoi " 

fXliI* ■;iL>»Ti hy the Ivrutiit*^ cImk* 
Uriv ifld Lite capituliricb 




THE SPIRIT OF LAWS 



>3i 



the Cipltiilnry of Met;: u u law by whioli the appeal of false jinlp- 
mcnt to Uic king's court U established, and all otitcr kindn of 
appeal are proscribed and punUhc^I. 

If they refused to submit Xo the judgment of iht sheriffs v and 
made no complaint, they were imprisoned lill they had sub- 
mitted, but if they complained, they were conducted under a 
proper guard before the king, and the alTait was examined in his 
court 

Tliere could be hardly any room then for an appeal of default 
of justice. I'or instead of its being usual in those days to com- 
plain thatthc counts andotlicrs who had a right of holding assizes 
were not exact in discharjpng dns duty,*" it was a general coin* 
plaint that they were too exact. Hence wc find ^ucU numbers of 
ordinances, by which the counts and all other officers of justice 
are forbidden to liold their aaskcs above thrice a year, II was 
not Eo ncccfcsary to chastise their indolence, as to check their 
activity. 

But. aft^r an infinite number of petty lnMi;hip$ had been 
formed, and different degrees of vassalage eslablifihed, the neg- 
fect of certain vassals in holding their courts gave rise to this 
kind of appeal ; j especially as very considerable profits accrued 
to the lord paramount from the several tines* 

As the custom of judicial combats gained every day more 
ground, there were places, cases, and times, in which it was 
diflietiU to assemble the peers, and consequently in which justice 
was delayed. The appeal of dcfatilt of justice was therefore in- 
troduced, an appeal that has been often a remarkable era in our 
history; because most of the wars of those days were imputed 
to a violation of the political law; as the cause, or at least the 
pnrtcnce^ of our modern ware h ttic infringement of tlie laws of 
nations. 

Reaumanoirsaysy that, incascof dcftiult of justice, battle was 
notallowed: (he rea£on& are these: i. They could not challenge 
thr lord himeeH, because of the respect due to his person ; neither 
eould they challenge tlie lord's peers, because the ease was clear. 



afn 1b« fttr TST* c4i<ion of Biluiinf, 

ft. fth ulL ftiul 14. «iir1 (he trnaa 
^a^v4 Vtnu*" In the ytar JM, fcrt. «. 
CdnfoD of B*lnfSuiL,- fi. 775. Tticie Iwa 
nv*<ulMitt vtTc mule unr|« King 

^ V Til* amoer* tiadir ifa« covat. 



tt>5ec the law of the LoTnbnHi. book 
11. Tit. tJ, art. A 

fTh«fr «rc intunoct of Apncali a\ 
^rCmilt cf ibnticff ai euly U the Um« 




■^ 



Md ib^ tad orir to ndn Oe d^s oT ^ MHWH* w <tf the ' 

iWrccoold be w> appeal of fafaciod^KM: in fae. Ifac crioK d 
tbe pecfB oCeaded tfe bri ai v«l a» the poitT. and It «» ipinat 
r^ dial Acre ihoiild be tack bctwos the kvd aad fas pecfn 

Bot aatDcdriinlr wjft piovod by vascSMs boDre tne supcnot 
ccoft: ' tne wttEut^ts wt^tt be aucDpo^snd tncn nrnticr tbc 
lora sof nil court were oflctidc< 1 

Ifl caie Ibe dctaak «■§ mnc Id ttae IcnTs tenw or pcen, 
«bo bid ddiycd to a i lm i nHlff ionke, or bad avoided pm^ 
j^Ff*'^ after [tta ddars, ifaen ibcse peers were appealed of 
dcbidl «f ^otioc before Ok paranoant; aod if dicy were caai, 
they paid a fine (o tber lord* Tbe btter coold tiu gtvt then 
aoy aMMtance; od ffae eon Uar y, he a ci ee d ibdr fid till they had 
each paid a fine of abOy btres, 

X WhcD the ddEvdiwuowisg to the lard, wbiAwa* the case 
wbenerer ihefe h^ipencd not to br a s ufiki cM notnbcr of peers 
mhi«roiirt to pan judgment, or when he bad not avenbled hU 
tenams or appoutted somdaody in fas iDom Id astemUe tbem, 
as appeal micfat be made oC the dcfaoh before the lord pva* 
mount; bttt then tbc paitr and not the lord wu suxainoDcd. be- 
c3iue of tbc respect doc to the bttcr> 

Tb« lord ^*wmMiwi to be tried bek^e the pamnomt, and if 
be was acquitted of the default, the cause i«as remanded to inm, 
and be was likewise paid a fine of sixty firresx But if the de- 
Utilt was proved, the penalty mfticted oo him was, to lose ttie 
tml of the caused which was to be then detenmned in the sa* 
pcrior coon. And, indeed, the coniplaim of default was nude 
whb no other view, 

3. If the lord was sued 10 his own court/ which Dcver hap- 
pened btil upon disputes m rcUtion to the fief, after letting all 
the delays pass, the lord himself was sumtnooed before the peers 
in the 0overetg;n's name,' whose permission was necessary on 
that occasion- The peers did not make the snnimons in their 



Jp^tdOtM— ■, chap. KKL BT^ ■(■ 



t^^^'^i.' 






/"Hift wxt thr «" in The !(i.__^ 
tfc« nC «i LouU VUL Be allS 



npaa htt to Ii«tv it tri^J vitUn fOrtT 
^fk, tad ih^rrapnn chtUvagvrf bcr «l 
Ibe kint"! (Qvt vjch Manh of J««i» 
Skm ■BM T »I that lb* wrtU fc«n It 
tnrf by ber wm _iD ^P li Jen, The 
feiBC'B ceort drtrnniiiHl rlur H *hoiiU 
BOt M Mat f><re jind tbn ihf mwMciii 
' b4 citml- 




THE SPIRIT OF LAWS 



13S 



own namr, hccauw they roiild nol summon thrir lord, bill they 
cculfl ^utnnion for their Jord^ 

Sonictimcs the appeal of default of justice was followed by an 
appeal of false judgment, wticn the lord had caused judgiitent to 
be passed, notwi I h standing; the dclault.^ 

The vassal who had MTongfully challenged ht5 lord of default 
ol justice was sentenced to pay a fine iiccording to his lord's 
pleasure.* 

The inhabitanifi of Ghent had challenged the Earl of Flanders 
of default of juslicc before the king, for havinj; delayed to giw 
judgment in his own cottrt./ Upon exanhnation it was founds 
that he had used fewer dcla>-s than nen the custom of the coun- 
try ^tllowcd. They wcic iluTi^fure reniiitidt-d tu bitii ; upon which 
thirir cfTcctfi to die value of ^ixly tLousaiid tivica wae ^cucd. 
They returned to the king*.*! court in order to have the fine mod* 
etatcd; btit ic was decided that the earl might insbt upon the 
tine, and even upon more if he pleaded. Beaiinianoir was pres- 
errC at those judgments. 

4. Tn other (HtpnteK whirh the lord might h;ive with his vaft- 
tal, in respect to the person or honor of the latter, or to pioperty 
that did not belone to the fief, there was no room for a challenge 
ofdcfaultof jnsticc: because the cause was not tried in the lord's 
court, but in that of the parsmourt : vassals, »a>'s D^fontaines,^ 
having no power to give judgment on the person of their lord, 

1 have been at some trouble to give a clear idea of those things, 
which are so obscure and confused in ancient authors that to 
tUsentajigle them from tlic chaos in which tliey were involved 
^roay be reckoned a new discovcTy. 

^^^^ 29. — Epoch of the Rfign of St. Louis 

^M St Lctiis abolished the judicial combats in all the courts of hU 
H^emesne, as appcrars by the ordinance he published thereupon,' 
and by the Imlitutions.fM 

But he did not suppress thein in the courts of his barons, ex- 
cept in the case of challenge of false Judgment." 



Lttvanoir, <nix, Ui. p* in. 
-X. p' |Lr Dui he ihJil ira* 
^v Imsnt DOT vai^l to thr InrJ 







Art. IS 



I In tilt yttt 11^ 

ti* Uook I. chBpi. if. 4m| rll-, iftJ 
boolt 11. cTiapL ■. *ntl xi. 

p A< DppHn ewnywhere in rh* " In- 
ft^iuEjon", dc^ and Bnumiaoir, thoi^ 




<54 



MONTESOUIEU 



A ra»Al couM not chaUcngc ihc court of his lord of false judg- 
fncni, without demanding a judicUl combat againil the judges 
who pronounced sentence. But St. Louis inlroduccd the prac- 
tice of challrnging nf falwr jtuI^iriMit \^-jihout fighting, st change 
that tijay be reckoned a kind of revolution.** 

He declared P that there should be no challenge of false judg- 
menr in the lordships of his demcGDCS. because it was a crime of 
felony. In reality, if it was a kind of fckiny against the lord, by 
a much iilTongcT reason it was felony against the king. But he 
confic^ntcd that they might demand an amendment ff of the jtidg* 
mcnls passed in his courts; not because they were false or iniqui- 
tousr but because they did some prejudice.r On the contrary, 
he ordained, that they should he obliged to make a challenge of 
false judgment against tlic courts of the barons,^ in case of any 
complaint. 

It was not allowed by the Institutions, ai we have already ob" 
served, to bring a challenge of false judgment against the courts 
in the king's demesnes. The}- were obliged to demand an amend- 
ment before the same court; and in case the bailiff refused the 
amendment demanded, the king gave leave to make an appeal to 
bis court ; ' or rather, interpreting the Institutions by themsehres, 
tc prpit'nl him a refluent or pctilion-d 

With regard to the courts of the lords, St, Louis, by permitting 
them to be challenged of false judgniert, would have the cause 
broucht before the ro>^l trilnmal,^' or that of the lord paramount, 
not to be decided by duel w but by witnesses, pttrsiiant to a cer- 
tain form of proceeding, the rales of which tie laid down tn the 
InstitutionSpJT 

Thus, whether they could falsify the judgment, as in the court 
of the barons; or whether they could not falsify, as in the court 
of his demesnes, he ordained that they might appeal without the 
hazard of a dud. 

Difontaincs y gives us the first two examples he ever saw, in 
which they proceeded thus without a legal duel; one, in a cause 



# " IntlilvtiDu.** hook L dlHp^ vL, 

^ tbid. bw>t 11^ chut*. HV. 
g Ibrd- book J' chap, IkxvIU., and 
IhwIe n. **i»p. itv. 

r Ibift. book I, cbjip^ JKXviH. 
fih-A. Motr if. cKuo wv. 
Jihld. book I. chjip. liltilL 
■ IbiiJ. book 11. tfaftp. iiT« 



Ool filaifyiE]^ tkr JLidffmcnt, tb« appMl 

waa aai »dRii|(eJ.— " lAititUTi^Bt:," bo^ 

11. ch«p, xv. 
V Book I- ebipL v4, nnft IkWI-^ and 

book 11. th^p. xv.; and BciumaDoir, 

chae. Hi p. 38. 
# Hook I' eh*pa. I, li.. %nd iiL 
y CbAt^. Kxii. trtt. i4 and 17. 



THE SPIRIT OF LAWS 



»35 



tried at the court of St. Qucntin, which belonged lo tlic kingS 
dcmcane; and the other, in the court of Ponthicu, where the 
coimt. who waa present, opposed the fmcient jurispnidcDce: but 
the»f two caufCK were decided by law. 

HeTC, perhaps, it will be asked why St. Lonii ordained for 
the courts oJ his barons a diffident (orm of proceeding frnrn that 
which he had established in the courts of his demesne? The 
reason is this: when St. Louis made the regulation for the courts 
of bis demesnes, he was not checked or limited in bis views: but 
he had measures to keep with the lords who enjoyed ihis ancient 
prerogative, that causes should not be removed irom their courts, 
unless the parly was willing to expose himself lo ibc dangers of 
an appeal of false judgment. St, Louis preserved the usage of 
this appeal; but he ordained that it should be made without a 
judicial combat ; this is, in order to make the change less felt, he 
(upprc«scd the thing, and coniinued the terms. 

This regulation was not universally received in the courts of 
ihK lords. BeauniatiDir ^^ys,' that in his time there were two 
ways of trying causes; one accordiug lo the king's establish- 
ment, and the other pursuant to the ancient practice; that the 
lords were at liberty to follow which way they pleased ; but when 
they had pitched upon one in any cause, they could not after- 
wards have recourse to the other. He adds^a that die Count of 
Clermont followed the new praclice. while his vas?.als kept to the 
old one; but that it was in his power to re-establish the ancient 
practice whenever he pleased, otherwise he would have less au- 
Ihority than his vassals. 

It is proper here to observe, that France was at that time di- 
vided into the country of the )dng*s dcncsne, and that which was 
called the country of the barons, or the baronies; and, to make 
use of the terms of St. Louis's Institutions, into the country 
liDder obedience to the king, and the coitntry out of his obedi- 
ence.^ When the king made ordinances for the country of his 
demesne, he employed his own single authority. But when he 
published any ordinances that concerned also the country of his 
barons, these were made in concert with thcm.f or sealed and 



jJJjj>.W. p.^ 



li.. tv-, and iilheri 
<Sh lh< Drd]fi4«« kt lite bcKinninf 



ef Ihr thiril ncp^ in tht cellvcfifin o1 

i^Bj cf Louih VI U eonceminii the 
iWt: ATid the cTmTlrr* rctalril hj Mr. 
Ilnikicl; panictiluljr that of St. tdui^ 



IS* 



MONTESQUIEU 



eubscrlbetl by Ui«n: otherwifte tlie barons received or ri 
tht-m, accorfling aa they soemed conducive to ihe good of 
baronies. The rear-vassals were upon tbe same Icrms with the 
^Tea I -vassals. Now the Instt!ntions were not made wiih thccoti- 
scnl of the lords, tlioueh thry regulated matters which lo them 
were of great importsnee: but they were received only by those 
who believed they would redound to Ihcir advantage. Robe: 
son of St, Louis, received them in bis county of Clermont; y 
his vassals did not think proper to coalorm to this practice 




30. — Observation on Appeals 

I apprehend that appeals which were challenges to a combat,! 
must have been mode inuiiedtately on the s|iot. *' If the party 
leaves the court without appealing/' says Beaumanoir.'' ** he 
loses his appeal, and Ihe judgment stands good." This con- 
tinued still in force, even after all the restrictions of judicial conw^ 
bat.' 

y.—The same Subject continued 

The villain could not brinff a challenge of false jui^gmetit 
against the court of his lord. This we learn from Dcfontaine*/j 
and he is confirmed moreover by tlie InstituiionsHf Hence T>i 
fontaines says,* " between the lord and his villain there is 
other judge but God," 

It was the custom of judicial combats that deprived die villainy 
of the privilege of challenging their lord's court of false judu- 
mcnl. And so true is \\m, that those villains ( who by charter or 
aislom had a right to light had also the privilege of challengini; 
their lord's court of false judgment, even though the peers who 
tried them were gentlemen;; and Defoinaines proposes expedi- 
ents to gentlemen in order to avoid the scandal cf fighting with ad 
villain by whom they had been challenged of felsc jndgtncnt.^ 

As the practice of judicial combats began to decline and tbe 



.1- 

J 

e*/ — 



on tbe r«1uie uid rtmvcry cl lan^^, 

ftbtt lh« Ivodal majArEfy «f yr*iina v"*m- 

■X lom. ii- book ill. p. 3^. *»*" *W., 

Ihe Onlintncv o( Philip Auvi>*'m. p. r- 

dOiAp, Ulli, p. 3"; «^1P l"^. p. 3»* 

* Srt the " IfifcTil'ilfoni *" *\i *sr Tv>ui^ 

tiQok ir «hap. IlP.. and tbe OrdluoQ* 

ef ChMTltt Vll in (he yw us$. 

fCl\art. xxL aftL 11 »nd aa. 

tBocik I. cliii*. ciEXvt 
OiAp. IL att Si 



i D^f«au!n«ft, chap, xxli «rt. 7. TUv 

«rli?l«. And tb< 3t*X of <ha Hd D>IB^«r 

of the umc nutTinr. hivf hptn hilli«rti> 
vtry bidfy tf-fplainrd. r>^4nniian*« tint* 
net! oppott ih< imlumcRi of thq lord to 
Ihjr 41 Itir »ntLflnmn, haemi«* It m*4 
the um« iliini; but hs opp9*M th« 
conmoft villain tn hJm whA hM Ilia 
|ir4iOetf« of hRhtln^. 

i Cienttemtn mty aTmrt h* H^pAfniM 
JttdzFf.'--D^FoaiAiae*> cup. xxL ut. , " 




THE SPIRIT OF LAWS 



!« 



usage cjf new uppcab to he iatioduord, it was fcckoijc-d uuTair 
that {recdmcn aJiould have a remedy against the injii^licc of the 
courts of their Jords, and the villaina i^iuuld not; hence the Par- 
tiAmcnt received tlkcir appeals all the aainc as those of frcemciL 

32. — The same Subject continued 

When a ehallcnge of false judytiiem was brought aji;alnst the 
lord's court* the lord appeared in person before hh paramount 
to defend the judgment of his cotirt. In Uke manner in the dp* 
peal of default of justke, the party summoned before the lord 
paramouni brought his lord along with him, to the end thai if 
the default was not proved, he might recover his jurisdiction,' 

In procest> of time as the practice observed in these two par- 
ticular cases became general^ by the introduction cf all sorts of 
appeals* it seemed very extraordinary that the lord should be 
obliged to spend hiE whole life in strange tribunals, and for other 
peon's aiFairs. Philip ot Valoi» ord;iined m that tronc but the 
bailiffs should be summoned; and wh^ the usage of appeals 
became still more frequent, the parties were obliged to defend 
the appeal : the deed of the judge became tliat of the party.^i 

I took notice that in the appeal of default of justice the lord 
loirt only the privilege of having the cause tried in his own court. 
Dul if the lord liimself was sued as party ,P which btcanie a very 
common practice,? he paid a fine of sixty Itvrcs to the king, or to 
ihe paramount, before whom ihc appeal was brought. Thence 
arose the miagc after appeals had been generally received* of 
making the fine payable to the lord itpon the reversal of the ten- 
tence of his judge; a usage which lasted a long time, and wa^ 
confirmed by the ordinance of Roustllcn, but fell, at length, to 
the ground through its own absurdity. 

33- — The same Subject eonttnucd 

In the practice ot judicial combats, the person who had chal- 
lenged one ol the judges of false judgment might lose his cause 
by the combat, hut could not possibly gain ttr And, indeed, the 
party who had a judgment in his tavor ought not lo have been 

J n^onTttnrt. chAf), xif. ftrt. U. »Se< eh^p^ xtk. 

mi fii if»4 >-ur txii^ P Dqnuiunoulr, vlH|h txL pp. ju wid 

« !w ihf nntuticin of ihinff* in Eou- jift- 
tlitlcf'p riiii^, wliu tW^d jii eIjc jtift ^ Uvid. 

14U,— " Sumnre RufLlc." book 1. pp^ r D^fQaUlne*, Cbip. xzL trt i^ 

IP ami m. 



MOKTESQUIEa 

<St|)ci«cd otkby anotbcr mao's act- TIk appdhat, tbcTcfocc, 
wbo had gained the battle w ob%ed to %lil filccvu^ a^aixoC 
the »d^en< pftr^: ooc in order to Icno* iHwtber tbe ludgment 
wat gcx>d or bad (for ihu jodgmcsi was o«it ol tbe caWi being 
r^^^ened by tb< cofnbftt). but to determine wbethcr the demand 
was jitfit or not; and it was on this new point thej longht. 
Thcncg p rocee d! oof mann e r of proaottDdnfi dttreca. "The 
ooort ananb tbe appeal; Ae covt anonls the appeal and the 
judgment against wbkh the ippcal was brooghL" In cffccu 
when the person wbo bad made the chaBcogc o{ fake jodgniGQt 
happened to be ovcreome the appeil was rcvcr»ed: when be 
prorcd victorioos both the jadgment and the appeal were re- 
verted; thenlhey were obliged to proceed to a new jw^ctcot, 

TUs is so Ear true, that when the canse «as tried by inquests 
this manner of pronouncing did not uke pbee; witness what 
M. de la Roche Flavin says^ naincly. that the chand>er of enqairy 
could not use this form at the beginnii^ of its existence. 

34.^/fi what Manner ihr ProcttHngs at Law hrcamt srcrft 
Dueb had imroduccd a public form of proceeding so that both 
th« attack and tb« defence were equally known. " The wit- 
nc%u^" ukys Iteanmanoir^ " ought to give thoir testimony in 
open coort." 

Boiiti1Iier*a commentator says he had learned of ancient pnc- 
litionrrs. and from 5omc old manuscript bw books, that criminal 
processes were anctcnily carried on in public, and in a form not 
very different from the public judgments of the Romans^ This 
wai owing to their not knowing how to write; a thing in tho^ 
days very common. T!ie usage of writing fixes the ideaSj and 
keeps the secret; but when this usage is laid aside, nothing but 
the notoriety of the proceeding is capable of fixing tttose ideas. 
And as uncertain^ might easily ari^e in resp<rct to what had 
been adjudicated by vassals, or pleaded before ihem, ihey cotild, 
therefore, refresh their memor>-» every iirac they held a coun 
by what were called proceedings on record-^ In that case, it was 
not allowed to challenge the witnesses to combat; for then there 
wotild be no end of disputes. 

f Of ih« PmrTlimnu of TntKt, book tThtf rrovnt Vf *h i# wt vhu kod 

Xn. chtp^ 11V htttt AlrcMj rioof. uld, or drcfced in 

iCliAp ihL p. jis- vowt> 

IT At BcAmruooif far*, chap. ttaSjL 




THE SPIRIT OF LAWS 



i» 



p 



In process of time a private lomi of proceeding was intra- 
[uccd. Evciyttiing before had been public; cveryl^iing now 
aiiicMCreti ihe intcrrogaicries, th*; iiUormatioti&, lUc re-irx- 
aminations, the confronting of witnesses, the opinign of the At* 
lorncygencral ; and this is the present practice* The first form 
oJ proceeding was suitable to ihc govcmincnl of that time, as 
the ncu' form was proper to the government sinec established. 

Boulillier's commentator fixes the epoch of this change to the 
orditiancc in the year 1 539. T am apt to believe that the change 
\»'a* made insensihly, and passed from one lordship to another, in 
proportion as the lords renounced the ancient form of judging, 
and that derived from the Institutions of St. Louis wa^ improved. 
And, indeed, Bcaumanoir saysw' that wilnessei were publicly 
heard only in cases in which it was allowed to give pledges 
of battle: in others they were heard in secret, and their depo- 
sitions were reduced to writing. The proceedings became, there- 
fore, secret, when they ceased to give pledges of baitlCp 



^ 



35—0/ the Costs 

In former ttmee no one was condemned in the lay cotirts of 
France to the payment of costs,' The party cast was suiljcienlly 
punished by pecuniary fines to the lord ^Lnd his peers. From 
the manner of proci-^dtng hy judicial romb.it it followed, that 
the party condemned and deprived of life and fortune was pun- 
ished as much a» Iie could be: and in the other cases of the ju- 
dicial combat, there were fitics sometimes fixed, and sometimes 
dependent or tlie disposition of the lord, whicli were snflScieni 
to make people dread the consequences of suits. The same may 
be said of causes that were not decided by combat. As the lord 
had the chief profits, so he was also at the chief expense, either 
to a&senible his peers, or lo enable Ihetn to proceed to judgment. 
Besides, as disputes were generally determined at the same place, 
and almost always at the same time, without that infinite mulii- 

idc of writings which afterwards followed, there was no ncces* 
nty of allowing costs to tlic parlies. 

The custom of appeaFs naturally introduced that of giving 
costs. Thus Dcfonlaines says^y that when Ihcy appealed by 



/ JKf<inr«inra m bit counsel, eSkp. 



chip. HXKilL 

> Chip- uU. art. ft 





t40 MONTESQUIEU 

written tftw, that br wbcfl ihcj CoOowtd Uk ocw tews frf St. 
tbey gave costs; bot that ia tht onfinary pnctke, which 
pcTBk than to app«a! wiihottt hlafying the judgment, no covts 
wereafkm-ed TTicy obumcd ooly a fiog, and the pnrctHiim tori 
a yvax and a Aay ol the tUnQE coclcstcd, i{ the canfte was re- 
mancWd to the lord. 

Bat wbdi the otunbcr of appeals in c T t ta cd from the new £a-; 
ciHtr of j^ipealioe : ' wboi bj the frcqtiem tisace of those an>eab' 
from one conrt to aDOCber, the parties were oontiDitally tmomd 
frooi the pboe of their rcsadcoce; when the new method of pro* 
eednreimiltqiBed and prolooged the suits; uhciuhc an of elud- 
ing the rtry justcst demaiKls became refined; wfaeo the parties 
at bw knew bow to fly only in order to be followed; when 
pUintswereruitkODsaiiddciaicecasy; when the argnments were 
totttDwboIcvolumesof wonbandnhTiiitigs; when the kingdom 
was filled with limbs of the law, wbo were strangers to justice; 
when knavery found encour^ciReiit at the very place where it 
did out iind protect Jon; Uicn ii was necessary tu deter IttigiottS 
peof^ bj the fur of costs. They were obliged to pay costs (or 
ihe judgment and for the means Ifaey had employed to elude it. 
ChaHcs the Fair, made a general orcHnance on that sobject^ 

36. — Of the public Proseattor 

As hf the 5^!c. Ripnarian. and other SarSaron*; taws, «intes 
wer« pnnifhM with peenniary fines: they had not in tho«r day^ 
a$ we haveai present.a public officer who had the cart of crimiRal 
prosecutions. And, indeed, the issue of all cames being rrduc«I 
to the reparation of injuries, cv^ry prosecnlion was in some meas- 
ure civil, and might he managed by anyone. On the other hand, 
the Roman law had popular forms for the prosecmion of crimes 
which were inconsistent with the ftindions of a public prosecutor. 

The cmtom of judicial combats \t*as no less oppo&ite to this 
idea; for who is it that would choose to be a public prosecutor 
and to make himself every nun's champcon against all the 
world? 

I 6nd in the coUeaion of formidas, inserted by Muratort En 
the laws of the Lombards, that nndcr our princes of the second 
race there was an adrocaic for the public pro»ccutor> But who- 

dlpil to »MttK nri BodiilUfc^ S" Athvcana iirpme puUid"* 
"iKwinr B^Jc.- book I. tit. ^ >. <L 



THE SPIRIT OF LAWS 



*4i 



^vor pVnftrt trt rrttfl tlitf cnliro rnHi^rtinn fif ihpsc frHTtiilla*! will 
find tJiat there was a total difference between such officers and 
those we now call the public prosecutor, our attomeys-ceneral 
our kinfE^s solicitDfs, or our solicitors for the nobtltty. The for- 
mer were rather agents to the public for the management of po- 
litical and domestic afTairs, than (or the civil. And, indeed, we 
did not 6nd in those formulas thai they were intniMcd with 
criniinat prosecuticns, or with causes relating to minors, to 
chtirchcs, or to the condition of anyone. 

I said ttut the estabUshment of a pubtic prosecutor was repug- 
nant to the u^agc of judicial combats. I find* notwithstanding, 
in one cf those fanuulas, an advocate for the public prostcutor, 
^ho had the liberty to fight. Muraiori h^s placed it just after 
the coiulitulion of Henry I. tor which it wa» made.' In this 
constitution it u said. ''That if any man WilU his father, his 
brother* or any of his other relativeSn he shall lofte their aucce*- 
Aion, which shalt pass to the other relatives, ^nd his own prop- 
erty ^all ffo to the exchequer/' Now tt was in suing for the 
estate which had devolved to the exchequer that the ad voeale for 
the public pmsecntor, by whom its rights wc-re defended, had 
llie privilege of fighting: this case fell within the general rule. 

We see in those formulas the advocate (or the ptiblic prose- 
cutor proceeding ajjainst a person who had taken a robber, but 
hadnotbrought him before the count; <' against anolher who had 
raised an insurrection or tumult airainst the count; f against an* 
other who had saved a man's life whom the count had ordered 
to be put to death;' ap:ainst the advocate of some churches, 
whom the count bad commanded to bring a robber before him, 
but had not obeyed u against another who had revealed the 
king'» secret lo strangiTs; ^ ag;itn5t another^ who with open vio- 
lence tiad attacked ihe eiiipcror s commissary; • against another 
who had been guilty of cuntcmpt to the emperor^s re-*vcript», and 
he wa^ prosecuted cither by the emperor's advocate or by the 
emperor himE^cIf; / against another, who refused to accept of the 
prince's ccin;^ in fine, this advocate sued for thin£:s, which by 
the law were adjudged to the exchequer.' 



rmilj- in \hf ^t^:^^nlI volume ol 






voiunie 

„,-, -- V ifl4. on 

Ac tth bw of ChvlPtDune, book L 



tAotAha 101 



rtnglA, ibid p^ y. 



f Ibid- p- l<U' 

SCuFlDctiun of MuTSLori. p. CS- 
Ibirt. p. 8*t 
1 1 bid. b. q£L 

I Jbid. 
tlbid, x^. Il^ 



143 



UOMTESQUIEU 



But in criminal causes, we never nicet with the advocate lor 
ihe public prosecutor ; not even where duck arc used : " not even 
in the ca^ of incciidianes ; >• not even when the ju<jgc i). killed on 
hU bench ; ^ not even in causes relating; to the conditions of per- 
sons^ to libeny and slavery .4 

These lonnula^ arc made, not only for the laws of ilie Lom* 
baids, but likewise tor the capitularies added to them, so that we 
have DO reason to doubt of their giving us tiie practice observed 
with regard to this subject under our princes of the second race. 

It h obvious tlui (hcso Jidvoc;itc^ fur a public prosecutor must 
have ended with our second race of kings, in the ^amc manocr 
as ihc kingS commbMoncrs in tlic provinces; becaux there was 
»o longer a general low nor general exchequer, and because there 
were no longer any counU in tlie province!! to hold the asswes, 
and^ of course, there were no more of those officers, whose pnnci- 
pal function wa& tr> Kiip]iort the authority of the countf«. 

As the usage of combats became more frequent under the 
third race, it did not allow of any such thing as a public prosecu- 
tor. Hence Uoutiltier, in bis " Somme Ruralc/' 5t>eakin£r of the 
oflficers of justice, take« notice only of the l>ailiffs. the peers, and 
sergeants. See the Institutions/ and Beaumanotr^ conceming 
the manner in which prosecutions were managed in those days. 

I find in tlic laws of James II, Kin^of Ma^orea/a creation of 
the office of king's attorney-generaU with the very same (unc- 
tions as arc exercised at present by the officers of that name 
among us.x It is manifest tliat this ofl^cc n^s not instituted till 
we had changed the form of cur judiciary procecdmgs. 



37* — In whol hfanntr ike InsiituHans of St Louis f<tt into 

ObiifioH 

It was the fate of the Institutionj, that their origin, progress, 
and decline were comprised withtn a very shon period, 

I shall make a few reltcciions upon this subject. The code 
wc have now undei the name uf St. Loub's Institutions was 
never designed as a law for the whole kingdom, iliough such a 



rB«ok t iS«h U ud book 



n. 



I Sf* ibt*« !■«« lo tb# " Urn c4 tti« 
Siintk'' «l Ihe iMvA «l Jane. iok. m. 
p. ^L 

• " Qol cootinae noMnm BAcmm 
curian tniuJ ic4«v«r, taatiiHKvr gal 
Ufta r( riiiui ifi ipM curiA prnmiTTCTi 





THE SPIRIT OF LAWS 



■43 



is mentioned in the preface. The compilation is a rcd- 
eral cotie, wliicli determines all points relating lo civil atTairs, 
Hto the disposal of properly by will or olhcnvisc, the dowries and 
"privileges of women, and eniolument^ and privileges of fiefs, with 
the affairs in relation to the pohce, etc. Now, to give a general 
body of civil laws, at a lime when each city, town, or village, had 
its ciiitomt, was aUempling to subvert in one moment all Ihe 
particular laws then in force in evcr>' part of the kingdom. To 
reduce M the parLtcuIar custoiiih to a general one would be a 
\cvy incoasidcraie ihing. even at present when our princes find 
everywhere the most passive obedience. But if it be true that wc 
ought not to change when the inconveniences are equal lo the 
advantages, much less should wc charge when the advantages 

I ire small and the Inconveniences immense. Now, if we atten- 
tively corsider the simation which the kingdom was in at that 
ttme, when every lord waa puffed up with the nolinn of his 
sovereignly and power, wc shall find thai to attempt a general al- 
Icraiioii of the received laws and custoniit niu»t be a thing that 
could Qcver enter into the heads of those who were then in the 
adminislration- 

tWhat I have been saying proves likewise that this code of 
instilulions was not conlirmed in parliament by the barons and 
magistrates of the kingdom, as is mentioned in a manuscript of 
Uie lown-hall oi Amiens, quoted by M Ducange.t We find in 
Cither manuscripts that this code was given by St. Louis in the 
year 1270, before he set out for Tunis. But this fact is nol Iruer 
than the other; for St, Louis set out upon that expedition in 
1269, as M. Ducange observes : whence he concJudw, that this 

»CDde might have been published in his absence. But this 
I »ay b impossible. How can St. Louis be imagined to have 
pitched upon the time of his absence for transacling an affair 
which would have been a sowing of troubles, and might have 
produced not only changes, but re%'olulionE? An enterprise of 
th;>t kind had need, more than any other, of being closely pur- 
sued, and could not be the work of a feeble regency, eompo»ed 
imoreover of lords, whoi^e inter^ftt it was that it should not sue- 
T1ie*e were Maith«-w, Abbot of St, Denis Simi>n of Oer- 
nont. Count of Ncsic, and, in case of death, Fhilip, Bishop of 
ivrcux, and John, Count of Ponthieu. Wc have seen above tc 
V Prdicc (o tb« " Inttitutioru," v Clwp. xta%. 




«44 



HONTESQITIEU 



thai ibe Count of Fonthici] opposed the cxccotioo o[ a new lu* 
Sdaryjxier in his lordship. 

Thirdly, I affirm it to he T«y probable thai the code now ex- 
tant is quite a difierent thing from St Louis's InstiiuiJonft. It 
cites the Institutioas, thtrdore it is a comment upon the Institu- 
tjors,andnol the Jn^ututKxislhem&elves. Besides, Bcaumanoir. 
who Crcqticntly makes mention of bL Louis's Instittmoos, quotes 
only some particular laws of that prince, and not this compila*' 
tjon. D^fontaincs^ who wr^^tc in that prince's rciffn- makes 
mention of the first two lime^ tliai his Institutions on judicial 
pfoccvdingB were put in exccuiioo, as of a Uiii^ loiij; since 
cUpscd. The In«iitijtJons of St* Loub were prior, ll^cr^orc, to 
the cocnpiblion I am now speatciog oJ, which from their rigor, 
and tbcir adopting the erroneous prefaces in&erted by some ^- 
norairt perv^ns in that vrork, could not have been publuhcd be- 
fore the last year of St. I.j>tiis or even not tilt after his death. 

38. — The SQtnt Subject contUued 

What is this compilation then which (rocs at present under 
the name of St. Louis's Institutions? What is this obscure, con- 
fused, and ambiguous code, where the French law is comimialty 
mixed with the Roman, where a legislator speaks and yet we see 
a ciriijan. where we 6nd a complete digest of all cases and poiitu 
of the ctvit law ? To understand this thoroughly, we must trzut* 
fer ourselves in imagination to those times. 

Sl Louis, seeing the abuses in the jurisprudence of his lime, 
endeavored to give the f>eop1e a dislike to it- With this view 
lie made several regulations for the court of his demesnes, and 
ioT those of his t^aruos- And vnch was his success that Beau- 
manoir, who wrote a little after the death of that prince, informs 
us 7 tliat the manner of trying causes which had been established 
by St. Louis obtained in a great number of the courts of the 
barons. 

Thut this prince attained hift end. though hie regulations for 
the courts of the lords were no* designed as a general law for 
the kingdom, but is a model which everyone might follow, and 
woi:ld even find his a^lvanlage in it. He removed the bad prac- 
tice byshowmg them a bcttt-r- When it appeared iliai his courts, 
aitd those of some lords, had chosen a form of proceeding more 






THE SPIRIT OF LAWS 



>4S 



natural, more reasonable, aiorc confofinabk to morality, to re 
It^ion, to the public traii(|Ljil lily, and to the security of persuti and 
property, this form was soon adopted, and the other rejected. 

To allure when it ts ranh to eoiistrain, to win by pleasing 
means when it is improper to exert auLhority, shows the man 
of abittttcfi. Rcafion ha« a natural, ;tti<l even :i tyrannical eway; 
it meets with reiiatance, hut this very resistance canstitute» itt 
triumph: for after a Rhort struggle it commands an entire sub* 
mission. 

Sl Louts, in order to give a distaste of the French jurispru- 
dence, caused the books of the Roman law to he iramUted; by 
which means they were made known to the lawyers of those 
time*, DWoniaines, who is the oldest bw writer we have, made 
great use of those Roman lawM His work is, in some measure, 
A result from the ancient French jurisprudence, of the laws or 
Institutions of St, Louis, and of the Roman law, Beaumanoir 
made very hitle use of the latter; bitl be reconciled the ancient 
French laws to the regulations of St, L^n'is. 

I Jjave a notion, thtrcfure, that the law huuk, known by the 
name of the l»stiiution&, was compiled by £onie b^tlifta, with 
the same design as tlut of the authors of those two works, and 
especially of Dcfonraliics, Tlic title of this work mentions that 
it is written according to the usage of Paris, Orleans, and lh« 
court of barony ; and the preamble says tliat it treats of the ufiage 
of the whole kingdoni,ofArjou, and of the court of barony. It 
is plain that ihift w(^k was made fnr Pari*, Orleans, and Anjou, 
as the works of Bcaumanoir and Dcfontaine^ were framed for 
the counties of Clennont ami Venitandois: and as it appears 
frum Beaumanoir that divers laws of St. Louis had been received 
in the couns cf barony, the compiler was in the right to say that 
hit work related abo to those courts.o 

It is manifest lltal the penon who composed Ihis work com- 
piled the customs of the country together with the laws and In- 
stitutions of St. Lotis. This is a very valuable work, because it 
contains the andcnt customs of Anjou, the Institutions of St. 



f H« »T* °> hinttcll, IB b!i pro1o£U«. 
"Km Iny ts pnt oariuu cnvi Mile 
eltof doni i'»t, 

d?t«tana M -ntrut «4 the mc and 

prologv*. At lir>t tlicy ut ibt cuf- 
UMU oC Plfih OrLcdDH. Liic] (he cobirt 



«r Mronr: iti«n itier )ft rbc «uvtan> 

of lit tlip liy vrattt tt iW WmndoRi, 
and al (lie tirov4>fli>hii)i t>t Fnnct-. n 
Imnfli, ihcy itre ihc cnttfi>m>i df i>>« 
wliol« kinidom, AnJou, And U^c court 



V^ II — lO 



m6 



MONTESQUIEU 



Louis, as tliey w^ere then in use; and, in fine, the whole practice 
of the ancient French law. 

The (lifFcrencc hclwccn this worlc^and those of Oelontaincs and 
Ucaumanoir is, its speaking in impcrati^'c terms as a legislator; 
nncj this might l>e right, since it vcua a medley ol written customs 
and laws. 

Tlicre was an intrinsic defect in this compilation; it formed an 
amphibious code, in which tlic French and Roman laws were 
minted, and wlt<,rc things wcic joined that were tn no relation, 
but often contradictory to each oihcr. 

I am not ignor.-mt that the French courts of vassals or peers, 
the juttgnicnt^ without |K>ivcr of appealing to another tribunal, 
the manner of pronouncing );cntcncc by these words, " I con- 
demn " or " I absolve/' f> had itome confonnily to the popular 
judefmcnts of the Romans. But they made very little use of 
ihai ancient jurisprudence: they rather chose that which was 
afterwards introduced by the emperor, in order to regulate, 
limit, correct, and extend the French juris^jrudence, 

39. — The snmi Subject continued 

The judiciary foniis intioduced by St. Loui^ fell into disusc- 
This prince had not *o much in view the thing itself, that is, the 
beat manner of trying causes, as the best manner of supplying 
the ancient practice of trial. The principal intent was to give a 
dUrdith of the ancient jurisprudence, and the next to form a new 
one. But when the inconveniences of the latter appeared, an- 
other soon succeeded. 

The Institutions of St. LouU did not, therefore, so much 
change the French jurisprudence, as they afforded the means of 
changing it ; they opened new tribunals, or rather ways to come 
at them- And when once the public had easy access to the su- 
perior courts, the judgments which before constituted only the 
usages of a particular lordship formed a universal digest- By 
means of the Institutions, they had obtained genera! decisions, 
which were entirely wanting in the kingdom; when the building 
was finished, they let the scaffold fall to the ground. 

Thus the Institutions produced effects which cculd hardly be 
expected from a masterpiece of legislation. To prepare great 

*" loiiliuilDQi," \took II. cbfcp. ■:*• 




THE SPIRIT OF LAWS 



U7 



[igcs whote *e« arc somclimes re^iuisitc; the cvcnls ripen, 
and ciic rcvolulioiis follow, 

Tli€ Parlianiem judged in (he tasi resort of almost all the af- 
h\rs oi the kingdom. Before,^ it took cognizance only of dis- 
putes between Hie dukeis, counts, barons, bishops, abbots, or be-* 
tweeti the king and his vassah^c/ rather in the rdation they bore 
10 the political than to the civil order. They were soon obliged 
to render It permanent, whereas it used to he held only a few 
E^DCs in a year: and. in line, a great number were created, in 
Hder to be sufficient for the decision of all manner of causes. 
No sooner had the Parliament become a fixed body, than they 
be^an to compile its dccxec^, John cle Monluc, in ihe rcig« of 
Philip the Fair, made a collection which at present id kiio^ii 
by the name of the Olim regislers.^ 



40. — Ijt wAoJ ASanncr the judiciary Forms wert borrowed from 

the Decretals 

But how comes it, some will ask, that when the Institutions 
were laid a^ide the judicial forms of the canon law should be pre- 
ferred to those of the Roman? It was because they had con* 
stantly before their eyes the eccleMSMic courts^ which followed 
the forma of the canon law, and they knew of no court that fol* 
lowed those of the Roman law? Resides, the limits of the spirit- 
u^ and temporal juHidiction were at that time very Httk under- 
stood ; there were people who ^^wc^ indifferently 'and causes that 
were tried indifferently, in either court.c Tt iteemsJh as if the 
temporal jurisdiction reserved no other cases exclusively to it- 
self than the jtidgment of feudal matters," ;ind o( such crimes 
cormnitted by laymen as did not relate to religion. For; tf, on 
account of conventions and contracts, they had occasion to sue in 
a temporal court, the parties might of their own accord proceed 
before the spiritual trihunals; and as ihc latter had itot a power to 
oblige the temporal court to execute the sentence, Ihcy com- 

t Stt Du Ti11«i on l!l^« canit of pren. 
S« »\v> Lar-ichf Pl*»iiiLbook I ch*p, 

crtitimrr iribunal*. 

Ifflt tbHdfment of the "HiKtofT oE 
irramcc " la ih« Ti«r >jil 
t BttumtnoEr. chip, xl, p^ )!■■ 

cfaip^xL p. SL 



&Sr« lh« wholo «tevrnrti chipin a| 
Baununoir. 

■ The anirituaL Iribunalv hod vvrn Uid 
boM of tiiffe. vnJrr die prtiext of <he 
QttXh, ■■ may ht ic*<i hi- thr l»mou< 
Curcnnltir he^wrns 1' hi lip AuEikiirufw 
the tlrTwy. anH tUt haroin, which 11 lo 
^c lound in ihff Urditunctt fA t#4iinm. 

; BvAumanoir, chap. xL pk «0k. 




I4» 



UONTESQUtEU 



mandcd subnussioa b> ineaas of excomrounications. Ui 
itiosc circumstances, when tlit>' warned to dtange the course of 
proceedings m the tcmpora] court, they took that of the spiritual 
LribiinaU, beca;Lse they knew tt; but did noi meddle with that of 
the Koman law, by rca^n tbcy were strangers lo tt: for in point 
of practice peopk know only wiiat is really practised. 



ra/^l 



4t. — Flux and Reflux of the tcdesiastic amt temporal 
Jurisdiction 

The civil power being in the hands of an infiintc number of 
lords, It was an easy matter for t]>c ecc)c»iasttc Jurisdiction to 
gain <Iaily a greater cxtenL But as the ecclesiastic courts wcak- 
etHxl iho^c d tbc lurd^, and contributed thereby to gtve ittrcngih 
to the royal juriadictton, the latter gradually checked the juriv 
dktion of tbc clergy- The Parliiment, which in its form of pro- 
ceedings had adapted wliatevcr was good and u^ful ia tlic spirit- 
ual courts, soon perceK'ccI nothing ebe but the abufies which had 
crept into tho^e tribunah; and as the rc^^ junsdiction gained 
ground ex'ery day, it grew cvct>- day more capable of correoiing 
those abuser. And, indeed^ they were intolerable ; without enti- 
mcrating them I shall refer the reader to Deaumanoir. to liouiil- 
tier, and to the ordinances of otir kings*^ 1 sh^all mention only 
two, in which the public interest was more directly concerned. 
These abuses we know by the decrees that reformed them ; they 
had been introduced in the times of the darkest i^orance, and 
upon the breaking out of the first gleam of light, they vanished* 
I'-rom the silence of the clcrgj it may be presumed that they for- 
warded this reformation: which, considering the nature of the 
human mind, descries commendation. Every man that died 
without becjueathlng a part of his esrtate to the church, which 
was called dying without confe^sloHp was deprived of tltc sacra- 
ment and of Christian buriak If be died intestate, his relatives 
were obliged to prc^-ail upon the bishop that he would, jointly 
with them, name proper arbiters to determine what sum the 
deceased ought to have given* In case he had made a will. Peo- 
ple coiil<I not lie together tbc lirst night of their nuptials, or even 
the tVfO following nights without having previously purchased 

k S*e BooillUrf, " Pommp Rurtlc," tfOrtB ©t Philip Au«DViiii opoo ititi vdIk 
lit. 9l what prrtnni nrr incriTPiib!« of itrt; » »}to the regulAOoa bctiVMn 
tuJiiK In ■ irnipEinl cmirt: anj] llrav- ri>lUp AugoiniUi lb* CkrS^i Utf llM 

aMD4>ir, cbjp^ a. Ik ^ ftnd ibe rtguii- bftf^iDiH 





THE SPIRIT OP LAWS 



149 



Itave: these, indeed, were the best three nights to choose; for 
as 10 the others, they were not wtjrth much. All this was re* 
ilresicd by the Farlument: we find in the |2[lo&s3ry of the French 
law,' by Ra^cau, the decree which it pubhshed against ihe 
Bishop of Amiens,'" 

I return to tlic beginning of tny chapter. Whenever we ob- 
serve in any age or governnienl the diftercnl bodies of the slate 
endeavoring to increase their aiitliorily, and to lake particular 
advantages of each oiher>wc should be often mistaken were we 
to con^dcr their cnroachments as an evident mark of their cor- 
ruption. Thrungh a fatality inscrpaiab!e fruni huiriun lutuicr, 
Diodoation inj^icat men i> very rare: and as it U always much 
easier to push on force in the direction in which it nicve» than 
to stop its moveiTicnt, so in the superior class of the people, it i* 
less diflicul', pcrliftps, to find men extremely virtuous, than ex- 
tremely prudent. 

The hiimfin mind feels snch an *^quis?te pleasure in the ex- 
ercise of power; even ihose who are lovers nf virtue arc so ex- 
cessively fond of themselves that there is no man so happy as not 
£ti!) to have reason to mi&lrtist Iji» honest intentions; and. in-* 
deed, our actions dcpcrd on so many things tliat it is infinitely 
ea^er to do good, tlian to do it well. 



42,— *rAf Revival of the Roman Law, end the Result thereof, 
Chartgc of Tribunals 

Upon the discovery of Justinian's digest towards the year r 137, 
the Roman law &eented to rise out of it« ashes. Schools were 
then established in Italy, where it was publicly targht ; they bad 
already tJie JuMinian code and the ^'o^^cU(C. 1 mentioned before, 
that this code had been so favorably received in that country as 
to eclipse the law of the Lombards, 

The Italian doctors brought the law of Justinian Into France, 
where Okv had only the TlicotlojJan code; «» because Justinian's 
law» were not made till after Ibc setllanent of the t>(trbarians in 
Gau1,i> This law met with some oppo>ition: but it stood its 
ground notwithstanding the ex com muniea lions of the popes. 



Tcilnmcntarjr ck> 



J la <h« words 

■ in liB^y llicj MloiMd funOnmn** 
C06ii hrnrv I'opc jLihn Vfll iri li>i 



of Ttaytt nukrv Tncnllon of cTil» coU«. 

(till itrc^iju- hv knrw It ttlmKif. mil hi* 
AjnRiiEiKioin wat BencraL 

tfTMa KinpcniTB cod* WM pKbllib«i4 

lovud* ib« ftar uob 



ISO 



MONTESQUIEU 



who supponci^ tlieir own c^nonsj St. Louis endeavored to 
bring it into rqnitc by the translations of Ju»tiniin's w^orks, made 
according to hi5 orders, whicli arc still in manuscript in our 
libmries; and I liavc alrea<]>- observed, thit they made great use 
of ihcm in compiiijig the Institutions. Philip the Fair ordered 
the laws of Justinian to be taught only as written reason in those 
provinces of France that were govtmed by customs; and ihey 
uere adopted as a law in those provinces where the Roman law 
had been rcceivcd.9 

I have already noticed that the manner uf pTocccdlng by ju- 
dicial combat required scsy UlUc kiiowWgc in llic judges; dis- 
putes wcic decided according to the usage of e." rh place, and lo 
a few simple customs received by tradition. In Beaumanoir's 
time there were two different ways of administering justice; '' in 
some places they tried by pccrs,i in otlicrs by bailiffs: in follow- 
ing the former way, the peers gave judgment according to the 
practice of their court: in the latter, it was the pntd'tumrnrs, or 
old men, who pointed otit this &acte practice to the bailiffs.' Tliis 
whole proceeding required neither learning, capacity, nor study. 
But when the dark code of the Instiiution^ made its appearance; 
when the Roman law was translated and taught in public schools; 
when a certain art of procedure and jurisprudence began to be 
formed; when practitioners and civilians were seen to rise, the 
peers and the pntd'kemmes were no longer capable of judging: 
the peers began to withdraw from the. lords' tribunals; and the 
lords were very httle inclined to assemble them; especially as 
the new form of trial, instead of heiiig a solemn proceeding, 
agreeable to (he nobility and intcresiing to a wariitcc people, had 
become a course of pleading which they neither understood, nor 
cared lo learn. The custom of trj-ing by peers began to be less 
used; « that of trying by bailiffs to be more so; the baiEiffs did 
not give judgment themselves,'' they summed tip the evidence 

from the furmuU quotr<} br Botrtillkr. 
"Sommf Rtirilc."' liouk IV, tit. uL 

with trial ■ (ly pfrr*, t-rm in B^taA 
ller't liniv, wnci iLvtd in rliv ye%r I4t^ 
which ]f the dii« □( hu wUl. i1< frftea 
I bit foruiulMH tifjck I. iJt- ii, '"^Sit* 
Jogf. ca ma iiimif* h*[«*, tnornuie 
« bi>i«. iiai j'uL cb IffI Ikm, couf, 
IjlKid'. EisJiliv hnrnirir^^ Icodaux «t 

1fr> were tried any Incifrr by the ped^ 

IblJ. buuk I. lit. l. [». Id, 

f Aa ftpvuti by tho formuU of tkt 



P HtfCTTtali. bfiok V. til. '* d« prlvJ- 
Irsiti," <Mpiif " »uprr ipflCDla." 

g Kf m chJuUr in tht ycfcr I5u. lo 
HT<fT ol lli« unlvtrvitjr of Orlcuia, 
quoted by Do Til In. 

r " Cantonii" of n*auvoiiLu." ch4fi. U 
of tht oAcc uf Litlllffl^ 

t Amonv the cumniuR people Ihe 
biirwherfe -kxix trieil t>y ImiMhco. at lln 
fraulorr lenann w<re irieti by ane an- 
otWT, See L4 TbnuKiiiaicjr. t*i(i|j. Jiin, 

(Thuii >ll tet^iert* bfiinn wiih ihett 
wardi: " M] Imil /Lulifc, it it itt^i'jriL' 
uj itHi m your «>url, clc, at Api^Aua 





THE SPIRIT OF LAWS 



151 



and pronounced the judgment of the prutThottimcs; but the Utter 
being no longer capable of judging, the bailiffs themselves gave 
judgment. 

'Hii* ^vas effected so much the easier, as they had before their 
eyes the practice of the ecclesiastic courls; the canon and new 
axil Jaw bolh concurred alike to abolish the peers. 

Thtis fell theusagc hitherto constamly observed in the French 
monarch)', that judgment should not he pronounced by a single 
person, as may be seen in the Salic !aws, ihc Oipilularie>, and in 
(he 5r»t bw-wrlEcrs under the third race.<v The contrary abuse 
which obtains only ir local jurisdictions has been moderated, and 
in some measure rvrlressefl, by introducing In many placets a 
judge's dc[>uty, whom he consults, and who represcniB the an- 
cient frxid hommcs by the obligation the judge is under of taking 
two graduates in cases that deserve a corporal punishment : and. 
in fine, it has become of no effect by the cxtrente facility of ap- 
peals. 

43. — The samf Subject coniinutd 

Thus there was no law to prohibit the lords from holding their 
conrtH themselves: rone to abolish the functions 0/ their peer*; 
none to ordain the crcntion of bailifTA: none to give them the 
powCT of judging. All this was effected insensibly, and by the 
Tcry necessity of Ihc thing. The knowledge of the Roman law. 
the decrees of the courts, the new digest of the customs, required 
a study of which the nobility and illiterate people were incapable. 

The only ordinance we have upon this subject is that which 
obliged (he k>rds to choose their baitifTs Worn, among the laity.' 
It b a mistake to look upon this ^% a law of their creation; for it 
Mys no such thing. Besides, the intention of the legislator is de- 
termined by the reasons assigned in the ordinance: "to the end 
that the l>ai[ilTs may be punished for their prevarications it is 



lencn which Ihdr loni uMd to ttVvt 



Son 






.. of ihe 



iljRa; th<y ontr 4irflc'rd 

lb* prtvmcc t.t th# pCTr* 10 tikt ilown 
ibf i*wr)* fil ilifnp Who filebdn anJ <■> 

ttk Ihc i>inici wlirllKr 111 (7 Attf wUh 

ov to h«vc judsmtni Elvrn tccordinif 



v». my lord: the biillm oiiffM I0 obl4s« 
the p*ff» to tl*c iBclfmeni,"' See »l» 

She " iDtmutlont** of Si, I^iit^ bnnk 
. chfp, e*» and book II. cliaji. 1*. 
" 1^1 Juce tl He doll pai l«Jr« \t jufle 

ff |irjiiiTn«notr. chap, (xvik, p. vfi, 
%n'\ cSop 1*1. ppH J15 intl J1& The 

" JPHlUiillun^/' hnolc 11^ cha^i. xx- 

X It irai piibliibcd L4 tbe yMr ijC?, 



iS» 



MONTESQUIEU 



necessary thej- be taV«n fn>m (he ortkr of ihc laity."* The tuh 
tntmil>«'jtol llie dcrgy in those days arc very well known. 

We must Dot tmagiDe that the pri\nltgcs which the nobilit 
formerly eiijoyed, andoi whkh they are now divested, were take 
from tbcm as usorpations; ao, many of those privileges were 
lost through neglect, and others were given up, because as vari^ 
out chuiges had been introduced in the course o( 80 many j 
they were incoasistent with those changes. 




44- — 0/ the Proof by IVUn^ss^s 

The judges, who had no other rule to go by than the tuages, 
inquired very ofien by wiinewes inio every cause that was 
brought bclore them. 

The usage of jtididal cuml^ts beginning lo decKnc, they made 
tbcir inquests tn writing. But a verba) proof committed to writ' 
ing is never mofc than a verbal proof; so that this only tn- 
creased the cxpennes of bw proceedings. RegtUations were then 
made which rendered most of those inquests useless ;« public 
registers were cstab!i«hed which aKcertaineil rao^t facts, as nO' 
billty» age, legitimacy, and marriage. Writing h a witnei;s very 
hard to corrupt; Ihc customs were therefore reduced to writing- 
All this is very reasonable; it is mudi easier to go and see in 
the baptismal register, wlicther Peter is the sou of Patil than to 
prove this fact by a icdious inciucsL When there are a number 
of usages ill a country it is much easier to write them all down 
in a code, than to oblige individuals to prove every usage. At 
Icf^h the famous ordinance was made, which prohibited tlie 
admitting of the proof by witnesses for a Jebi exceeding an hun- 
dred livies, except there was the beginning of a proof in writing. 



45- — Of the Customs of France 

France, as we have already observed, was governed by written 
cu5tumH, atid die pactlcular usngcs of each lordship constituEcd 
the civil law, Ever>' lordi»hip had its civil hw, according to 
Deaumanoir,-* and so particular a law, that this author^ who » 



# Sm in vlut Dunnc *f* ^^ pvcnl' 



Mf were nroTfld.— " Tnit>tutEoii&'' book 
a Fralofue tg tbc " Cotlom of Bc«il* 




THE SPIRIT OF LAWS 



153 



^ looked upon as a luminary, ard a very great luminary of those 
timc», 9Jiy» he doe^ net Wicvc that througlioiit the whole king- 
dom there were two lordships cnlircly goverucd by ilic same 
law. 

This prodipous diversity had a twofold origin. With regartl 
I the first, the reader may recollect what has been already said 
concerning ii in the chapter of local etistomi;:fr and a« to the 
wcond we meet with it in the different events of lefpl clue!*, It 
being natural that a continual scries of fortuitous cases must 
have been prodi:ctive of new usages. 

These customs were preserved in the memory of old men, but 
_inseDsihlylawsor written customs were formed. 

t. At the commencement of the third race, the kings gave not 
only particular cliarteis, but likewise general ones, in the maimer 
above explained; such ,-ire the Institutions of Philip Augustus 
aad those made by St. Luuis. In like manner the great vassal, 
in concurrence with the lords who held under them, granted cer- 
tain charters or establishments, according to particular circum- 
stances at the assizes of their duchies or counties; such were the 
assize uf Gudfrey, Count uf Brittany, on the division of Ihe no- 
bles; tl)c customs of Ncnnanily, granted by Duke Ralph; the 
cufitoms of Champagne, g^ivcn by King Theobald; the laws of 
Simon, Count of Monlfort, and others. Tins produced some 
writwn laws, and even more general ones than those they had be- 



if""- 



ra. At the beginring of the third race, almost all the common 
pQOpIc were bondmen; but there were several reaftona which 
afterwards dclcmiincd the kings and lords to enfranchise them. 

The lords by enfranchi&ii]!; iheir bondmen gave thmi proper- 
ty; it was necessary therefore to give than civil laws, in order 
to regulate the disposal of that property- Btit by enfranchising 
their bondmen, they likewise deprived themselves of their prop- 
erty; there was a necessity, therefore, of rcgulatiTig the rights 
vhich they reserved to themselves, as an equivalent for that 
prc^ny. Both tliesc things were regulated by the charters of 
enfranchisement; those cliarters formed a part of our customs, 
^ and this part xvas reduced to writing-^ 

3. Under the reign of St. Louis, and of the succeeding princes. 
unc able pTactJtioner?^, »uch as Defuntiune^, BeaunMnoir, and 

5 Clia^ »1L t 3«q tba " Cflllsctloa of OrtUauiBCin" by L*iuiin~ 




<54 



MONTESQUIEU 




others, committed the customs ot thdr bailiwicks to writing. 
Their design was rather lo give the course ol judicial procecil- 
iDgs, tl^n the usages uf ihcir lime in Jcspcct lo the disposal o( 
properly. 13ut the wh4jlc i> tliere, and though thc«: particular 
authors have no authority but what ihey derive from the tn«h 
and notoriety of the thing* they speak of, yet there is no manner 
of doubt but tliat Ihey contributed greatly to tlie resloration of 
our ancient French jurisprudence. Such was in thotc days oar 
common law. 

We have come now lo the grand epoch. Charles VII and has 
successor! caused the different local customs throughout the 
kingdom to be reduced to writing, and prescribed set forms to be 
obscrve<l to iheir digesting. Now, as this digesting was made 
tlirough all tJie provinces, and as people came from each lord- 
ship to declare in the general assembly of the province the 
written or unwritten usages of each place, etideavors were made 
to render the customs more general, as much as possible, with- 
out injuring the interests of individuals, wluch were carefully pre^ 
served.^ Thus oisr customs were characterized in a threefold 
narner; they were committed to writing, they were made more 
general, and ihcy received the stamp of the royal authority. tM 

Many of these customs having been digc^^tcd anew, s<rvcral^ 
changes were made either in suppressing whatever was incum- 
patibic with the actual practice of the law, or in adding several 
things drawn from this pradiee. 

Though the common law is considered among us as in some 
measure opposite to the Roman, insomueh that these two la\h'S 
divide the different territories, it is, notwithstanding, tnie that 
several regulations of the Poman law entered intootir customs, 
especially when they made the new digests, at a time not very 
distant from ours, when this law was the principal study of thote 
who were designed for civil employments, at a time when it waa 
not usual for people to boast of not knowing what it was 
their duty to know, and of knowing what they ought not to 
know, at a time when a quickness of understanding was made 
more subservient to learning than pretending lo a profession, 
and when a continual pursuit o( amusements was not cvcp the 
characteristic of women. 

Sm La 11ift]imi»i«fe, vhtp, ill. 



THE SPIRIT OF LAWS 155 

I should have been more diffuse at the end of this book, and^ 
entering into the several details, should have traced all the in- 
sensible changes, which from the opening of appeals have formed 
the great corpus of our French jurisprudence. But this would 
have been ingrafting one large work upon another. I am like 
that antiquarian ' who set out from his own country, arrived in 
Egypt, cast an eye on the Pyramids and returned home. 

f la the *'5pecuuir." 



BOOK XXIX 

OF THE MANKER OF COMPOSING LAWS 

1- — Of the Spirit of a Legislator 

1SAY it, and methinks I have undertaken this work with 
no other view than to prove it, the spirit of a legislator 
ought to be that of moderation ; political, like moral 
good, lying always between two extremes.^ Let us produce an 
example. 

The set forms of justice are necessary to liberty, but the 
number of them might be so great as to be contrary to the 
end of the very laws that established them ; processes would 
have no end ; property would be uncertain ; the goods of one 
of the parties would be adjudged to the other without examin- 
ing, or they would both be ruined by examining too much. 

The citizens would lose their liberty and security, the ac- 
cusers would no longer have any means to convict, nor the 
accused to justify themselves. 

2. — The same Subject continued 

Cecilius, in Aulus Gellius,^ speaking of the law of the 
Twelve Tables which permitted the creditor to cut the insolv- 
ent debtor into pieces, justifies it even by its cruelty, which 
hindered people from borrowing beyond their ability of pay- 
ing/ Shall then the cruellest laws be the best? Shall good- 
ness consist in excess, and all the relations of things be de- 
stroyed ? 

3. — That the Laws which seem to deviate from the Views of the 

Legislator are frequently agreeable to them 

The law of Solon which declared those persons inbmous 
who espoused no side in an insurrection seemed very extra- 

a Ariftt. " Pol it." I. tva ttia.hVishfd: the op\niaa of wtme 

£ Rook XXTL chap. I. civiTians, ihu (h« law of lh« Tv^lve 

f Creiliuq snyt. Ihal he ii«vn fAW nor Tables mrant onir thr AW\s\on af thr 

read or an inslancr, in whi<:h this pun- niDii«y ariaina From the sale of lh« 

iiihmenT had been infliclrd; but it ia debtor, ficema very probablv. 

likely |hal no such puniahment waa 

156 



THE SPIRIT OF LAWS 



■57 



irdinar)' ; but we oxxght to consider ihc circum«Cancc« in wliicli 
Greece was at that time. Il was divided into very small states; 
and there was reason to apprehend lest in & republic toni by 
intestine <Uvisions the soberest part should keep txrtired, in 
consequence of which things might be carried Eo exlremity. 

In the seditions raised in those petty stales the bulk of ihc 
citizens cither made or engaged in the quarrcL In our large 
monarchies parties arc formed by a few, and the people choose 
Xtt live quietly. In the httcr case it i» iidluriit tu call Uick the 
sirditiouh to llic bulk of ihc citl;tens, and not these to the scdi- 
tiotis; in the other it is ncccfisary to oblige tJic small number 
of prudent people lo enter among the seditioiis; it is thus t!ie 
(cfmentation of one liquor may be stopped by a singlv drop of 
ither. 



r 



4.— Of the Lawi contrary to the Views of the Legislator 

There are laws so little understood by the legishtor as lo 
be contrary to ilic very end he proposed. Tliose who made 
this r^ulation among the French, that when one of the two 
competitors died the benefice should devolve to the survivor. 
li;Ld in view without doubt the extinction of quarrels; but the 
very reverse falls out, we see tlic clergy at variance every day, 
and like English mastiifs worrying one another to death, 

L 5- — The same Subject conimued 

The law I am goin^ 10 speak of is to be found in this oath 
prcser\*cd by /Hsciiines : ** " I swear that i will never destroy a 
tcwii of the Amphiclyojips, and that I will not divert the course 
of it« nmning waters ; if any nation shall presume to do such a 
thing, I will dcchirc war against them and will destroy their 
towns/* TIk last article of tliia law, which scem.i to confirm 
the firfl, U really contrary to it. Amphictyon l& willing that 
the Greek towns should never be destroyed, and yet hi* law 
pav<>fi the way for thHr destruction- Tn order to eitabli«b a 
proper law of nations amonp: the Greeks, tliey orght to have 
been accustomed early to think it a barbarous thing to destroy 
a Greek town : consequently tbcy ought not e^-en to ruin the 
destroyers. Amphictyon's law was just, but it was not pru- 
dent; thJ5 appears even from the abufre made of it* Did not 




'S8 



MONTESQUIEU 



Philip assume the power ol demolishing towns, under the pre- 
tence oi their having infringed the law& of the Greeks? Atn< 
phictyon might have inflicted ottier punishments; he might 
tiave ordained, for example, tJiat a certain number of the mag- 
istrates of the destroying town, or of the chiefs of the irfnng* 
ing army, should be punished with death- that the destroying 
nation should cease for a while to enjoy ihc privileges of the 
Creeks; tliat they shotitd pay a fine till the town was rebuilt. 
The law ought, above all things, to aim at the reparation ol 
damages. 

6. — Ths Laws which appear ike scmt /uistf not tdwoyt iht scm£ 

Effect 

Caesar made a law to prohibit people from Icecping above 
sixty sesterces in their houses,' This law was eonfiidered at 
Rome a* extremely pmper for reconciling the debtor* to their 
creditors, because, by obliging the rich to lend to the poor, 
they enabled the latter to pay their debts. A law of the same 
nature made in France at the time of the System proved ex- 
tremely falal, because it was enacted under a most fng:htful 
situation. After depriving people of all possible means of lay- 
ing otil their money, they stripped them even of the last re- 
source of keeping it at home, which was the same as talcing 
it from them by open violence* Csesar's law was intended to 
make the money circnlalc; the French Minister's design was 
to draw all the money into one hand. The former gave either 
lands or mortgagee on private people for the money ; the latter 
proposed in lien of money nothing but effects which were of 
no value, and could have none by their very nature, because 
the law compelled people to accept of tbem> 

7- — Thfi same Subject conimued^ Necessity of composing Laivs 
in a proper Motwcr 
The bw of o&tractsm was establislied at Athens, at Argos/ 
and at Syracuse. At Syracuse it was productive of a thousand 
mischiefs, because it was impntdently enacted. The principal 
citizens banished one another by holding the leaf of a riR:-tree 
in their hands^ so that those who hsd any kind of merit with- 

fZiio. MK XL1- i Plufjirch 4nd Diodornt of Skihr nv 

fArUu " Bepub." lib. V> chip, tii it v» » oUve ItMt Sec [>tod. XL-^ 




THE SPIRIT OF LAWS 



"59 



<lr«w from public affairs^ At Athens, where tlie legislator 
i^as sensible of the proper extent atid hmits of his law, ostra- 
cism proved an <idmir&b]e regulation. They never condcmacd 
more than one person at a time; and such a number of suf- 
fr^^s were requisite for passing this sentence, that it was ex- 
tremely difficult For them to banish a person whose absence was 
not necessary lo the statc.i 

The power uf banishing was exercised only every fifth year: 
and, indeed, as the ostraebm was designed against none but 
great personages vtho threatened ihc state with danger, il 
ought not to have been the transaction of every day. 

Sl-^TAo^ Lawi which appear the same 7vere not al^uays made 
thrcugh the same Motive 
Tn Fninec they have received most of the Poman laws on 
substitutions, but through quite a different motive from the 
Romans;, Among the latter the inheritance was accompanied 
wifh certain sacrifices / which wete to he performed by the in- 
heritor and were regulated by the pontifical law; hence il was 
that they reckoned it a dishonor to die without heirs, that they 
made slaves their heirs, and that they devised substitutions. 
Of this we have a very strong proof in the vulgar substitution, 
which was the first invented, and took place only when the heir 
ap^Kjinted did not accej)! uf tlie inheritance. Its view was not to 
perpetuate the estate in a family of the same name, but lo find 
somebody that would accept of it. 

9. — That the Creek and Roman Laws punished Suicide, but not 
through the same Motiie 

A man, says Plato, who has killed one nearly related to him, 
that is. himself, not by an order of the magistrate, not to avoid 
ignominy, but throwgh pusillanimity, shall be punished.* The 
Roman law punished this action when it was not committed 
through pusillanimity, through weariness of life, through im* 
patience in pain, but from a enminal despair The Roman law 
acquitted where the Greek condemned, and condemned where 
the other acquitted. 



• WttEwcb, " TJfr of nivnntiu" 
*Vld* booV XXVI, rhap, ij. 

f Wlwn 111* InhcrllHiicfi wnn loo niucli 

cocomlicnd th«T eluded Chs pontiSo) 



liw by c<f(ii1n wAe%, wli^ncc c^me Ibc 
k ikiuk IX, " vl L**B." 




i6o 



UOSTESQUIEU 



Plato's bw «-u tormed upon the Laccdamonian tnstitutioiis, 
where the orders of tbc magistntc were atMohxte, where shame 
was tbc greatest of mtscfics* attd pttsillaiiiiEnqr die greatest of 
crimes. The RoiiiaiB bad do loiq^ A<Me refined ideas ; theirs 
was only a fiscal law. 

Dortn^ tlic Uoie of the repuUic, there was do law at Rome 
a)j;jijist suicides; thu action 13 always coitsadcred by their 
bistonanft ha a favorable light, and wc never meet with any 
puzttshmcnt mAictcti upoo tho«e who comnittted iL 

Under the fir&i emperors, the great families of Rome were 
conttniully di**1rnyerl by criminal pro*^c«honft. The ciiitom 
wx%. then introduced of preventing judgment by a \Yiluntafy 
death. In this they fonnd a grtU advantafre: they had an 
honorable intenncnt. and tbetr wilb were executed, because 
there was no law against stucides,' But when the emperors 
became as avaricious as cruel, they deprived those who de- 
stroyed themselves of the means of prcscrring their estates by 
rendering it criminal for a person to make away with himseU 
through a criminal remorse. 

What I liave been saying o! the motive of the emperors is so 
true, that they consented thai the estates of suicides should not 
be confiscated when the crime for which they killed tbcmsehres 
was not punished vridi conliscattuiij" 



4 



lO — That Laws which st^m contrary proceed sometimes from 
the same Spirit 

In our time wc give summons to people in their own houses ; 
but this was not permitted among the Romans." 

A summons was a violent action.^ and a kind of warrant tor 
seizing the body;# hence it was no more allowctl to summon 
a person in his own house than it is now allowed to arrest a 
person in his own house for debt. 

Bofh the Roman and our taws admit of this principle alike, 
that every man ou^ht to have lit* own houic for an asylum, 
where he should suffer no violence.^ 



prctiufn leiiiftindi-"— Tjcit- 

m Bcifript *4 the E(nji#ror l*tiis rti 
Ihc >4 Uv, K<& 1 And 1 It. ** de boniA 

comcivcTuat." 



41 Sw ih? hw Til ih* T«4f«« Tctilf^ 
^"Rapii in ju*."* Tlontc. Smiire ^ 

4 Sf« Ihe litt i» «. ^^ de In J« v^ 




i 




THE SPIRIT OF LAWS 



l«l 



1I<— How to compare hvo different SysUms of Laws 

In Prnnce the puiiislirnent for fals« witnesses is capital; in 
Englaad it is not. Now, to be able to jadgc which of these 
two lawf; ifi iher bt^st, we must a<l(], that in France tht rack is 
used for criminals, but not in England : that in France the 
iccuftcd is not allowed to produce his witnesses, and that ihcy 
very seldom admit of what arc called justifying: circumstances 
in favor of the prisoner; in England they allow of witnesses on 
both sides. ITiesc three Frcndi laws form a close and wcli- 
connccicd jysicni ; and so do the tliree English laws. The 
law of England, which does not allow of the racking of crim- 
inals, has but very little hope of drawing from the accused a 
confession of his crime; for this reason it invites witnesses 
from all pans, and docs not venture to discourage them by the 
tear of a capital punishment. The French law, which has one 
resource more, is not afraid of intimidating the witncsbca; on 
the contrary, reason reciuires they should be intimidated ; it 
listens only to the witnesses on one side, which arc those pro- 
duced by the attorney-general, and the fate of the accused 
depends entirely on their tcstimonv.'' But in England ihcy ad- 
mil of wilncB&cs on both sidc^, .-ind the affair is discussed in 
tome measure between them ; consequently false witness is 
there less dangerous, the accused ^aving a remedy against 
the faUe witness which he has not in France. — Wherefore, to 
determine which of those systems is most agreeable to reason, 
we must take them each as a whole and compare them in their 
entirety. 



l2j^^That Lows which appear the same ar€ sometimes rcaily. 

different 

The Greek 2nd Roman laws inflicted the same punishment 
on the receiver as on the thief ; J the French law docs the same. 
The former acted rationally, but the latter does not. Among 
the Greeks and Romans the thief was condemned to a pecun- 
iary punishment, which ought also to be indicted on the re- 
cdver; for every man that contributes in what shape soever 



w« Snd in th« " Tnilitoti<Mi»" <ti Si, 
£«QiAi book I, cTiftp, viL, that thnv 

Vot, 11-— It 



wif only a [ifciinUrT runiihrnrnt 
ilAK^ 1 fl' "<lt Keccputoribtu." 



i6i 



MONTESQUIEU 



to a iUioa^[c b obliged to repair it. Bnt as the putiisTimetit 
oE ihcft h capital wllb us, tlic receiver cuicot be punlsbcil like 
the thief without carrying thing^s to excess. A receiver may 
act inrKKcntly on a ttioti»aiid occasions: th« thief b always 
ctilpable; one h-lndeT£ the conviction of a crime, the other 
comrritt it; in one the whole ic pa«five» the oihw is active: 
Ihe thief must surmount more obstacles, and his w)ul must be 
more hardened against i\w bws. 

The civilians have gone (unhcr : tbcy look upon the rccetrcr 
as moreodiotu than the thitf,' for iverc it no: for the receiver 
the theft, say they, coidd not be looff concealed. Biil this again 
might be right when there was only a pecuntarj- punishment ; 
the affair in question was a dan:ag:c done, and the receiver was 
generally better able to repair it ; but when the ptunshment 
beeatne capita^ they ought to have been directed by other 
principles, ^_ 

13- — Th^t W4 musl Hot stfaroU Laws from tJu End f^r whic^^ 
tkcy n."^^ madt: of the Roinan Unvs on Th^ft 

When a thief was caught in the act this was called by the 
Romans a manifest theft ; when he was not detected till some 
time afterwards it was a non-manifcM theft. 

Tlie law of ihe Twelve Tables ordained that a manifest thief 
should be whipped with rods and condemned to sbvcry if be 
had attained the ajje of puberty ; or only whipped if he was pot^ 
of ripe age ; but as for the non-manifest thief he was only cobH 
demned to a fme of double the value of whst he Itad stolen. 

When the Porcian law^ aholiflnliefl the custom of whipping 
the cititens with rods, and of reducing them to slavery, the 
manifest thief was condemned to a payment of fourfold, and 
they still continued to condemn the non-manilcsi thief to a 
payment of doublcx 

It seems very odd that these laws should make such a diiTcr- 
cnee in the quality of those two crimes, and in the punishments 
they inflicted. And. indeed, whether the ihicf was delected 
either before or after he had carried the stolen goods to the 
plaee intended, this was a circumstance which did not alter the 
nature of the crime. I do not at all question thai the whole 

IU» I ff. "df RcK^ptatorlbuft." iiSf* *b»t ^rortotH $MTf in Ada 

GflUlui, book XX. cb*p. I. 




THE SPIRIT OF LAWS 



t6s 



ihcory of Uie Roman laws in relation to theft was borrowed 
from tlie Lacedaemonian ^1&tUl]tton5. Lvcurgit<t, with st view 
of rendering the citizens dexterous and cunning, ordained that 
children thould be practised in thieving, and that those who 
were caught in the aci should be Bcverdy whipped. This oc- 
(asiotictj anjong the Greeks, and ^iflerwarJs among thv Ro- 
rian&v a great difTcicikCL- bcLwecn a maiiifcit and a non-maitiftst 
tlicft.tf 

Among tbc Romans a ^lavc who had been guilty of £tcal- 
ing was thrown from the Tarpcian rock. Here the Lacede- 
monian mititulion^ were out of the question ; the laws of 
Lyeiirgn? in relation to theft were not made for slaves; to 
deviate from then: in tln» respect was in reality conforming tO 
ttiem. 

At Rome, when a person of unripe age happened to be 
caught in the acl, the prctor ordered him to be whipped wilh 
rodi according to his pleasure, as was practised al Sparta, All 
this bad a more remote origin. The Lacedaemonians had de- 
rived ihe^e usngeft from the Cretans; and Plato,^ who wants 
to prove that ihe Cretan institutions were designed for war, 
cites the following, namely, the power of bearing pain in in- 
dividiul combats, and in thefts which have to be concealed. 

As the civil lawi depend on the political insticultons, because 
they arc made for the same s<jcirty, whenever there is a design 
of adopting the civil law of another nation, tt would be proper 
to examiae beforehand whether they have both the «ime insti- 
lutioru and the same political law. 

Thus when the Cretan laws on theft were adopted by the 
1-aced«monian», aa their constitntion and government were 
adopted at the same time, these laws were equally reasonable 
in both rations. But when thej- were carried from Lacedae- 
monia to Rome, as they did not find there the same constitu- 
tion, they were always thought strange, and had no manner of 
connection with the other civil laws of the Romans. 



« Cv(D|i*f c what Pluurch tttya In the 
"Lift of LTCurnu*" with the 1b«* oE 
Ihc t>M(«(. title " Ct Furtit'^i Add ibe 



'lo-tlluUk." boek IV, lit. I, 
'. ana i. 
6"0rijw>," book I- 



I«4 



UOKTESQUIHT 



14- — Tkat we must itoi ufarau tkr Laws from tkc Circum'j 
stamcts in tthUk they xpcrg made 

ti wu decreed by a law at Athens, thai wheri tTi« city wan 
besieged, all the tucless peopte sboctld be put lo <lc3th.f This 
vas an abofninablc political lav, in axiscqacncc of an abomi- 
ii^>le taw of nations. Amoni; ihc Gndcs tbc inhabitants of a 
town taken lost their ci\-i] liberty and verc sold as slaves. Tlic 
taking of a town implied its entire destruction, which is the 
source not ool)' of those obstinate defences, and of tbo&e un* 
natural actions, but likewise of those shocking laws which ihcy 
sotnctimcs enacted. S 

The Roman laws ordained that phy^dans should be pun-^ 
tfhed for ncgtcct or unikilfulness.^ In tiiosc cases, if the phy&j* 
dan was a person of any fortune or rank, he was only con- 
demned to deportation, but if he n-u of a low condition lie was 
put to death. By onr institutiofts tt is otherwise^ The Roman 
laws ^^re not made under iht same circtunstancei as our? : atS 
Rome cvcr>" igrorant pretender intermeddled wiih physic ; bu^l 
among tis physicians are obliged to go ihrou^ a regular 
eounie of study, and to taWe their de^rree*. for whidi reason 
they are supposed to understand their profes*iion. 

15. — That sometimes it is proper the Law shoM amend Usel^ 

The law of the Twelve Tables allowed people to kill a night- 
thief a5 well as a day-lhicf/ if upon being pursued he attempted 
to make a defence; but it required that the person who killed 
the thief should cry out and call his fcUow-citizens/ This is 
indeed what those laws, which permil people to do justice ioM 
themselves, ought always to require- It is the cr>' of innocence" 
which in the very moment of the action calls in witnesses and 
appeals to judges. The people ought to uke cognizance of the 
action, and at the very instant of its being done; an instant — 
when ever>-thing speaks, even air> countenance, passions, si-^ 
leoce ; and when every word cither condemns or absolves. A 
law, which may become so oppoHxl to the security and liberty 
of the dtixens, ought to be executed in their presence. 



fTTi!corBf»iii l»w ' 
DVTitnt'- hb. IV, dl, 
Aqt»hA." «& 7' 



' »t« the jih |»w fl, - m4 Ift^ 
Mbld: i«c tbe 4RTn oTl 
d« 5lc«r>i4/ *d(lfi1 lo llw lav <ir Uie b«t ' 
^ " d« lc«» popuUrtb- LccLb."* Mtt. . 





THE SPIRIT OF LAWS 



1*5 



16. — Things to be obscn^ed in the composing of Laivs 

They who have a jfcnivs sufHcicnt to enable them to give 
hws to their own. or to another nation, ought to be particu* 
lirly attentive to the manner o[ forming Ihem, 

The style oiighl to be concise. The laws ol the Twelve 
Tables are a model of conciseness; the very children used to 
Ifarn them by hearts Justinian's Novcllfr were so very dif- 
fuse that they were obliged to abridge thcni.ft 

The style tiliould also be plain and simple, a direct expres- 
sion being better understood than an indirect one. There is no 
majesty ai all in the laws of tbc lower empire ; princes arc made 
io ^pcak like rLeluittiaii^. Wlitn the »ly1e of laws is inOated, 
ihey aix: looked upon only aa a work of parade and ostentation. 

It is an cjjtcntial article that the words of the laws shoold 
CKche in everybody the same ideas. Cardinal Richelieu • 
agreetl that a minister might be acciued before the king, but 
be would have the accuser piini«Hhed if the facts he proved were 
not matters of moment. This was enough to hinder people 
from telUng any truth whatsoever against the minister, he- 
cause a matter of moment is entirely relative, and what may be 
of moment to one is not so to another. 

The law of Honorius pnnisheti with death any person that 
purchased a frced-man as a slave, or that j^ave him molesita- 
tionj He should not have made use of so vague an expres- 
sion; the molestation given a man depends entirely on the dc* 
gree of hi-^ sensibility. 

When the law has to impose a penalty^ it should avoid as 
much as pojsible the estimating it in money. The value of 
money changes from a thousand causes, and the same denomi- 
nation continues without the same thing. Every one knows 
the story of that impudent fellow al Rome.* who used Iq give 
those he met a box on the car. and afterwards tendered them 
the five'an<l-twenty pence of the law of the Twelve Tables. 

\V1ien the law has once fixed the idea of things, it should 
never return to vague expressions. The crdtnance of Ixtuis 

("t^l tArneiL nevrnarium."— Cicero^ 

"« I,*«ll»-" t .\FiiTotle fivcfi thM be- 
If^F* Ate Hi vf writinir wb> Jingo^grtd. 
Iht UwA «ef« tomp-jte^ in vcnc and 






ill* wurli *| Irnvrius* 



^ " Aiif (iii«!ibrt m«nuffli*ilonc doni- 
lun tfiquietarv vrnfucrti." A]i|)eiidiK to 
the Theodoilftn tutlc in ibi Urn >-olnni« 
*' FMtirr SiftTiimd'* w&rk*. b 737, 

frAufui GcUius hook XX. Gfiifk L 



tM 



UOlfTESQUIEV 



XrV' conccmmg criminal matters, after an exact cnximent- 
tion of the catifict in which ih« king is immediately concerned, 
adds these words, *' and those which in all times have been tub* 
jcct to the determination of the king's judges " ; this again 
renders arbitrary what had just been fixed, 

Oiarles VII says^ he has been infonned that the paitiea 
appeal three, four, and ^x months after judgment, contrary 
to the custom of the kingdom in a country where custom pre- 
vailed; he, therefore, ordains that they shall appeal forthwith. 
ualciS there happens to be some fraud or deceit on the part of 
the attorney," or unless there be a great or evident cause to 
discharge the appeal. The end of this law destro)^ the be^n- 
ning. and it destroys it so effectually, that they u»d afterwards 
to appeal during the space of thiny years.^ 

Tlic law of the Lombards doc« not allow a woman tlmt has 
taken a religious habjt,f though slie has made no vow, to 
marry ; bccaose, says this law, " if a spouse who has been con- 
tracted to a woman only by a ring cannot without Ruih be 
married to another, for a mtich stronger reason the tpotisc of 
God or of the btei^ied Virgin/' — Now, T say, that in laws the 
arguments sTiould be drawn from one reality to another, and 
not from reality to figure, or from figure to reality, 

A law enacted by Conslantincff ordains that the single tes* 
timony of a bishop should he sufficient without listening to any 
other witnesses. This prince took a very short method ; he 
judged of affairs by persons, and of persons by dignities. 

The laws ought not to be subtle ; they are designed for peo- 
ple of common nnderstanding, not as an art of logic, but as the 
plain reason of a father of a family. 

When there is no necessity for exceptions and hmitations in 
a law k is much better to omit them : details of that kind throw 
people into new details. 

No alteration shotild be made in a law wiihout sufficient 
reason. Justinian ordained tliat a husband might be repndH 
atcd and yet the wife not lose her portion, if for the space cf 
two year* he had been incapable of consummating the mar- 



I 



fW*« ^ti4 In vK« Ttrlwl pm#ru nl 
thJ« cHiomcc the noikxt* that d«Lcr' 



tWh In ih« mr >4U . 

iTher nKht puusii 




the niXomtj, 



. „ - , ..da. 

>Tha ordifMiBc* al th* ytmr riio b^t 
n)iO< tomr frf^Utic^oi upon lliii br»d 

p Boole n. (>■- jp 

<hc TheodotiHk eod«h lolik I. 



THE SPIRIT OF LAWS 



a, 



^htred Tiis taw afterwards, and allowed tile poor 
wretdi Uirec years.* But in a case of (list nature two years are 
as good a£ thrtrc, and Ihreo arc not worth more than two, 

Wlien a leffislator condescends to give the reason of his law 
it ought to be worthy of ils majesty. A Roman law decrees 
that a blind man is incapable lo plead, because he cannot see 
the ornaments of the magistracy,* So bad a reason must have 
been given on purpose, when &uch a number of good reasons 
were M hand. 

Paul, the jurist, says." that a child grows perfect in the 
seventh month, and that the ratio of Pythagoras's numbers 
seems to prove it. It is very extraordinary tliat they should 
judge o( those things by the ratio of Pythagoras 's numbers. 

Some French lawyers have asserted, that when the king 
made an acquisition of a new country, the churches became 
subject to the Rtgai^, because the king'i crown is round. I 
shall not ex^ninc here into the king's nghta, or whether in 
this case the reason of the civil or ecclesiastic law ought to sub- 
mit to that of the law of politics; I shall only say, that those 
augvst rights ought to be defended by grave maxims. Was 
there ever such a tiling known as the real rights of a dignity 
founded on the figure oF that dignity'^ sign? 

Davila taysP that Charles IX was declared of age in the 
Parliament of Rouen at the commencement of his fourteenth 
year, because the laws rcQuire every moment of the time to 
he reckoned, in cases relating to the restitution and adminis- 
tration of a ward's estate ; whereas it considers the year com- 
menced as a year complete, when the case is concerning the 
acquisition of honors.ty I am very far from censuring a regu- 
lation which has been hitherto attended with no inconvenience ; 
I shall only notice that the reason alleged is not the true one ; ^ 
it is false, that the government of a nation is only an honor- 
In point of presumption, that of the law is far preferable to 
that of the man. The French law considers every act of a 
merchant during the ten days preceding his bankruptcy as 
(laudnlent : y this Is t}ic presumption of the law. Tlie Roman 

w ^ce Du|iQ)r< ^ Tntt4 de la MrMiI 
Af no9 mil," p, lAi, MJf- tfe*r^lM, 



rrtC- J. coda "At IteriucIiE*." 






« rn%i» ■' Sonttnc**-" btx* tV. tiL o. 



>$t. 



■ [Hlb eiitm dirHi di Fnocio,^ 



rThe OiinRllor de rR6|>iuT.— IM 
> li wa9 rnad# la the rnoDlh of No 
vcidbcr, 1701. 



i68 




UOKTESQUIEU 



Ijiw iniltcEed punishments on the husband wVo kept his wife 
after slu" had l>een guilty of adtdtcry^ unless he wzs induced 
to do it through fear of llic event of a law-suit, or through con- 
tcnTpt of his own shame; this is the presumption of the man. 
The judge must have presumed the motives of the husband's 
comhicT, and must have determined a very ol)scurc and am- 
higiions point ; when the Jaw presumes it gives a hxcd rule to 
the judge. 

Plato's law,' as I }iavc observed already, required that a pttn- 
ishncDl should t>c inflkicd on the person w];o killed lUmselt 
n>ot with a design ol a^'oiding shame, but througti pusillanlni- 
ity. This law was »o far dcfecU^-e, that in the only case in 
which it was inipo«siblc to draw from the enminal an acknowl- 
edgment of tlte motive upon which he had acted, it rcquLred 
tbc jtidge to determine concerning these motives. 

Aa useless laws dehlliiate Mich as arv^ nece^<an\ sn those that 
may be easily eluded weaken the legislation. Every law 
ought to have its effect, and tio one should be suSered to 
deviate from it by a particular exception. 

TIk Falcidiin law ordained among the Romans* that th« 
hetr should ahv-a>-s have the fourth pari of the inheritance; 
another law suffered the testator to prohibit the heir from re- 
laiDintr thii; foitrth part.'* This is making a jest of the laws. 
The Falcidian law becmme useless; for if the testator had a 
mind to favor his heir, the latter had no need of the Falcidian 
law : an<] if he did not intend to favor htm, be forbade him to 
make use of it. 

Care should be taken that the laws be worded in such a man- 
ner as not to be contrary to the ver>- nature of things. In ttie 
proscription of the Prince of Oranjfc. Philip 11 pnxntscs to 
any man tliat will kill the prince to give him, or his heirs, five< 
and-twenty ihousutd crowns, together with the title of nobil- 
ity : and titb upon the word of a king and as a servant of God 
To proQiisc oobiGty for sech an aetioo f to ordain toch an ac- 
tkm In the qoaKty of a servant of God I This is eqiiaUy stib- 
versive ot the ideas oS honor, movality, and reKgion. 

There \-ery seMom happens to be a necessity of prohthitvig^ 
a tJMftir wbicfa it not bad ondcr pretence o{ some 
perfrctioiL 
«BMh IX. -«lLnm.- alt fa ite ■■fciil", "S^ <m 





THE SPIRIT OF LAWS 



■69 



Thcr^ ought to ht a cenam simplicity and candor in the 

laws ; made to punish the iniquity of Tften they themielveu 

should be clad with :hc robes of innocence. We find in the law 

of the Visigoths t tiuit riiliculous request, by which ihe Jew* 

were obliged to eat everything dressed with pork, provided 

they did not eat the pork itself. This was a very great cruelty : 

they were obliged to submit to a law contrary to their own ; 

and they were obliged 10 retain nothing more of ihcir own than 

'uhat might serve as a mark to distinguish them. 

17- — A bad Method of gixing Lams 

The Roman emperors manifested their wil! like our prince*. 

Ijy decrees and edicts; but they permitted, which our princes 

<Io nol, both the judges and private people to interrogate theni 

fcy letters in iheir several differences; and their answers were 

«:^lled re*cripts. The decrctaU of ilic popes are rescript*, strictly 

speaking. It is plain that tins is a bad method of legislation. 

"Those who thus appl> for law^ arc improper guides to the 

legislator; the facts arc always wrongly stated. Julius Cflp- 

iloKntv 3«y»/ that Trajan often reftiscd to give this kind of 

Te»eript», lest a single decision, and frequently a particular 

favor, shouti] be extended to all eases. Macrinu^ had resolved 

TO abolisli all those rescripts ;ff he could not bear that the 

answers of Comiroduft, Caracalla. and all those other ignorant 

prince*, <ihoulcl be considered as laws. Justinian thought 

otherwise, and he filled his compilation with them, 

f would advise those who read the Roman laws, to dis- 
tinguish carefully between ihis sort of hypothesis, and the 
Senattis-Consulta, the FMebiscita, the general constitutions of 
the emperors, and alt the laws founded on the nature of things, 
on the frailty of women, the weakness of minors and the pub- 
lic utility. , 

iR— 0/ the Jicas cf Vniformity 

There are cerlain ideas of uniformity, which sometimes 
ilrike great gcniLisca (for they even aiTecled Charlemagne), 
but infallibly malcc an impression on little souls. They di»- 
cover therein a kind of perfection, which ihey recognize bc- 

Mlook XII. m- A, tec VL eStt_ Jaliui Capiloljnui 



tStt 



tflbid. 




CHOICE EXAMPLES OF EARLY PRINTING AND 
ENGRAVING. 

Fac-similes from Rard anii Curious Books. 



HARLV VIIXHTIAN PRINTING. 

f rinii rh'- r'^i'^E :iii'-l!.* '!H]-i Mumi\^ ut Picirv* Kiorcntino. Primed by Bernardo 
-irid M:iTrc'i <U- Vi:i1t ;»■ Kmu -i ';i i^s:^ A ropy ut ihc work may b« seen in the 
rLitJicfEcc:^ Miirrinn.i 




gmGATiO-NO^ 





y^^^ 



gjg 




^ ^^^ 



fe^^fe-i^^ 




<^ k».. » i- t<. L r 



"JJtt w- 




BOOK XXX 

THEORY OF THE FEUDAL LAWS AMONG THE 
FRANKS IN THE RELATION THEY BEAR TO 
THE ESTABLISHMENT OF THE MONARCHY 

i.~Of Feudal Laws 

I SHOULD think my work imperfect were I lo pass over in 
silence an event which never again, perhaps, will hap- 
pen; were i not to speak of those laws which suddenly 
appeared overall Europe without being connected with any of 
ihe former insmuiions ; of ihosc law* which have done irfinite 
gOoO ainl infmile miscliitrl; which have auf^Tcrcd rights lo re- 
main when the demesne has been ceded ; which by vesting sev- 
eral with different kinds of seigniory over the same things 
or pCTHons have diminished the weight of the whole seigiiiory ; 
which have e^Uhlishc^d dilTereni liEnits in empires of too great 
odent; which have been prndnctivf of nile with a bias to 
anarchy, and of anarchy with a tendency lo order and bar* 
mony. 

This would require a particular work to itself; but consid- 
eriD(f the nature of the present undertaking, the reader will 
bcre meet rather with a general survey than with a complete 
treatise of those laws. 

The feudal laws form a very beautiful prospect. A venerable 
old oak raises its lofty head to the skies, tlie eye aee» from afar 
it* spreading leaves; upon drawing nearer, it perceives the 
trunk but does not discern the root ; the ground must be dug 
up to discover St." 

2.— O/ the Source of Feudal Laws 

The conqueror* of the Roman Empire came from Germany. 
Though few ancient author* have described their manners, yet 

i^hrruA. taDlutn rrnlkc ad Tariftra lFniIII/''-VfTt1L 




MONTESQUIEU 



we have Iwo of very grs^ai weigbt, Caesar making war agftitttt 
the Germans di^cribes ihc manners of that nation ; b uid upon 
these he regulated some of his cnleqirises^f A tew pages of 
C*esar upon tliis subject arc equal to whole volume*.'' 

Tacitus has written an entire work on the manners of the 
Germans* This work ts short, but k comes from the pen of 
Tacitus, who was always concise, because he saw everything 
at one glance. 

These two authors agree so perfectly with the codes still ex- 
tant oi the laws of the barbarians^ that reading Cssar and Tac- 
itus we imagine we arc perusing these codes, and penising 
these codes we fancy we are reading* Cscsar and Tacitus. d 

But if in this research into the feudal laws» I should find my^H 
self entangled and lost in a dark labyrinth I fancy I liavc the 
clue in my hand, and tliat I shall be able to iiud my waj 
through. 

3,*— r/ir Origin of Vasjahgc 

Caesar says/ that " The Germans neglected agnctilture ; that 
the greatest part of them lived upon milk, cheese, and flesh; 
that no one had lands or boundaries of his own; that the 
princes and magistrates of each nation allotted what portion 
of land they pleased to individuals, and obliged tliem (he year 
following to remove to some olber part " Tacitus says/ that 
" Each prince bad a miJtitudc of men, who were attached to his 
service, and followed him wherever he went." This author 
gives them a name in his language in acconlance with their 
state, which is that of comparions.c They had a strong emula- 
tion to obtain the prince's esteem ; and the prinees had the 
same emulation to distinguish themselves in the bravery and 
number of their companions. "Their dignity and power," 
continues Tacitus, " consist in being constantly surrounded 
with a multitude of young and chosen people : this they reckon 
their ornament in peace, this their defence and support in war. 
Their name becomes famous at home, and among neighboring 



LIU 

1 




b Ho&V VI. 

cTor irt«ian», hi* rftrat from Ocr- 

diS. ChabHt et^rttan hit aitoninh- 
muiI that Monieiouini Jwrllii uiHin 
C«4tr't knnvlectie of Ttic l^trmani. 

(ltd quile tcnora the (»au1v wiih iTift 
onA of inlavmuioD upga uds >ul»J«ci. 



#KnflW VI. "4.t tht GtllSe W*«.- 

mif nlLqn* rnr%i pn>irt nd qiitni vvBfr* 

n»iti " - 

i"T>f Moribui G«miAnonim/' 




THE SPIRIT OF LAWS 



«w 



nations, when they excel all others in the number and counge 
of their compaiiiuTiK : ihtjy receive present;* aiid embassies from 
all pans. Rcpuutiun frcijucntly ila:i(.lc5 tlie fate of war. In 
battle it LS inbtiny in the prmcc to be surpassed in courage; h 
a infamy in the companions not to follow the brave example 
of their piincc; it is an eternal diBfrrace to survive bim. To 
defend biiD h their most g^crcd engagement. If a city be at 
peace, the princes go to those who are at war; and it is thus 
they retain a great number of friends. To these they give the 
war horse and the terrible javelin. Their pay consists in 
coarse but plentiful repasts. The prince supports his liberality 
merely by war and plunder. You might more easily persuade 
tltcm to attack an enemy and to expose themselves to the dan- 
gers of war, than to cultivate the lanJ, or lo attend to the cares 
of husbandry; they refuse to acquire by sweat what they can 
purchase with blood." 

Thus, among the Germans, there were vae^sals, but no fiefs; 
they had no fiefs, because the princes had no lands to give ; or 
rather their tiefs consisted in horses trained for war, in amis, 
and feasting. There were vassals, because there were irnsty 
men who being bound by their word engaged tu follow the 
pfhicc to the field, and did very nearly the same service 35 was 
aherwards performed for the fiefs. 

4. — Thf sarm Subject continued 

Cxsar says^ that "when any of the princes declared to the 
assembly that he mtendcd to set out npnn an expedition and 
ask them to follow him, tho*^ whn approved the leader and the 
enterprise stood up and offered their assistance. Upon which 
Ihcy were commended by the multitude. But. if they did not 
fulfil their engagements, they lost tlic public esteem, and were 
looked upon as deserters and traitor*." 

Uliat Caesar says in this place, and what we have extracted 
in the preceding chapter from Tacitus, are the substance of the 
history of our princes of the first race. 

We must not, therefore, be sunmsed, that otr kings should 

have new armies to raise upon every expedition, new troops to 

encourage, new pcf>ple to engage : that to acquire much they 

were obliged to incur great expenses ; tliat they should be con- 

Jb-'Uv Iicilo (i&Ulco." Ub. VL 



>I4 



MONTESQUTKJ 



jitint gainers by the division of Lards and EpoiU, and jct give 
these Eaivh arnt lipoiU incessanily away: thai their ricnieine 
should continually increase and dimiois]]; that a father upon 
settling a kingdom on one of his children ' should always give 
him a treasure with il: tliat the king's treasure bhotdd be cua- 
fridcred as necessary to the monarchy; and that one king 
could not give part oE it to foreigners, even in portion with hta 
daugtitcr, without the consent of the otlicr kingsi The mon- 
archy moved by springs, which they were continiially obliged 
to wind up. 



J 



5- — Of tkt Conquests of the Franks 

It is not tme that the Frank* upon cnlerinff Gaul took pos- 
session of the whole country to turn it into fiefs. Some have 
been of this opinion because they »aw the neatest pan of the 
country towards the end of the second race converted into 
fiefs, rear-fiefs, or other dependencies; but such a dispoation 
was owing to particular causes which we shall explain here- 
after. 

Tlic consequence which sundry writers would infer thence,^ 
thai the barbarians made a general regulation for establishing 
in all parts the state of villanagc is as false as the principle 
from which it is derived, H at a time when the fiefs were pre- 
carious, all the lands of the kingdom had been fiefs, or depen- 
dencies of fiefs; and all the men in the kingdom vassals or 
bondmen subordinate to vassab; as tlic person that has prop- 
erty is ever possessed of power, the king, who would have con- 
tinually disposed of the fiefs, that is, ^f the only property then 
existing, would have had a power as arbitrary as that of the 
Sultan is in Turkey ; which is contradictory to all history. 



6, — Of the Goths, Burgundians, and Franks 



I 



Gaul was invaded by German nations. The Visigoths took 
possession of the province of Narbonnc, and of almost all the 
South; the Burgundians senled in the East; and the Franldj 
subdued very nearly all the rest. I 



I S« the " Life of Dagobfrt." 

/See GKjrorj of Towf*. b(»Ii Vt., 
«fi 1h« nurriafc «]f tfte rliuirhifT of 
rhifp«nr, CbiTJ«b*rl trnA* I'Tibti-i*- 
^on to icU bim that tt iboald ngi ^Irt 



iht cUitt or hli rtther'i IdnfdoQ fo 
hit ^kn^htrt^ nrr l^iB trf^aurc*. nor bla 

bofldmHi. ctor horui. oot bcrKioffl, 
nor tctoa* or Axce. «V- 




THE SPIRIT OF LAWS 



«7S 



No doubt but these barbaHan» retained in tlicir respective 
conquests the manners, indinatiors. and usages ultttcir own 
countiy; for no nation can cliangc Jn an in»Uint tlieir manner 
of thinking and acting. Th«c p<xyplc in Germany neglected 
agriculture. It seems by Cccsar and Tacittis that they applied 
themselves p"eatly to a pastoral life; hence the regulations of 
the codes of barbarian laws almost all relate to ttieir flocks. 
Roricon, who wrote a history among the Franks, was a shcp- 
herd> 

7 — Different Ways of dividing the Land 

After the Goths and Burgundians had, under various pre- 
icnces, penetrated Into the heart of the empire, the Rotnans, 
fn order to put a stop to their devastations^ were obliged to 
provide for their aubaistcncc At first they allowed them 
com \ ' but afterwards chose to give them lands. The em- 
perors, or the Roman magiBirates, in their name, made par- 
ticular conventions with tlicm concerning the division of 
landfitM as we find in the chronicles and in the code* of the 
Visigoths » and Burgundians.^ 

The Franks did not follow the same plan. In the Saltc and 
KipuarLan laws, we find not the le^^t vettij^e of any such divi- 
sion of lands; they had conquered the country, and so took 
^hat they plea^d, making no regulations but among them- 
selves. 

Let us, therefore, dislinguish between the conduct of the 
Surgundians and Visigoths in Gaul, of those same Visigoths 
in Spain, of the auxiliary troop* under AugfUiitutus and Odo- 
accr in Italy,;' and that of the Franks in Gaul, as also of the 
Vandals iii AfrEca.9 Tlic former entcretl Into conveiitfons witli 
the ancient inhabitants, and In consequence thereof made a 
division of lands between them ; the latter did no such thing. 



IKatfiinv Mnite U known e*Mic«m- 
lOff lliii RnrLcon; and hii w^>rki flr« 
Btltirf rrvci]?t uiA fiMrt tl^ia iny- 
Hunir die. ^rf ib? iri^ciEr in "Mct^ 
nn" lor OclijbtT. i?4t.— 1^*1. 

« " BprgUDdlon** ti«n«in CaKJif og< 



ic[« " in the v^ir 4sa 
H Book X. fiL I, ««<:>. 1 9. tnd 16. 

Ylifon wit itfll lubilidnf In Ifae timo 

SI Louli tlic I>fl>nnnal[f. 21 ippfar* bf 
l« cftplfuluy of ili« ycir tffi. irhJch 
bftn laKTMd <n wvp kw of (he 



,._„ War oflhe Cochi. 





176 



MONTESQUIEU 



^^-Thc ^tmf Subjtct continued 

What has induced tome to think thai the Roman Ian<U were 
wtJrfly uviiq^ed hy ihc barbarians is, their fin*imp in ihe lawn 
of the Visigoths and th« Burgundians that thc5C two nations 
had two-thirds of the lands ; but this they took only in certain 
<]tiarters or districts assigned them. 

Gundebald says, ta the law of the Burf^undtanSr that his peo- 
ple at their establishment had two-thirds of the bnds allowed 
them ; r and llic second supplement to this law notices that only 
a moiety would be allowed to those who should hereafter come 
to live in that country.* Therefore, all the lands had not been 
divided in the be^nning between the Romans and tJic Bur-^^ 
gundians. f 

In those two regulations we meet whh the same expressions 
in the text, conscqucnlly they explain one another; and as liie 
latter cannot mean a universal divtaion of lands, neither can this 
signification be given to the former. ^ 

The Franks ;tcted with the 9^ame moderation as the Burguiv-S 
dians; they did not strip the Romans wlierever they extended 
their conquests. What would they have done with so much 
bnd? Tliey took what suited them, and left the remainder. 



g.*^^ fust 'Appltcotif>n of the Low of tkt Burf^undu^ns, and o\ 
that of the Visigoikx, in rclaiion to the Dtxision of Lands 

It U to be considered tliat those divisions of land were not 
made witli a tyrannical spirit ; but with a view of rcHeWng 
tlic reciprocal wants of two nations that were to inhabit the 
same country. 

The law of the Burgundians ordains that a Burgundian shall 
he received in an hospitable manner hy a Roman. This XB 
agreeable to the manners of the Germans, who, according to 
Tacitus, were the most hospitable people in the world. 

By tlie law of the Burgiindians, it is ordained that the Bur- 
gundiuts shall have two-thirds of the lands, and one-third of 
the bondmen. In this it considered the genitis of two nations, 
and conformed to the manner in which they procured ihcir sub- 



^ 




Irrrirum pan«« jrcfpit." eft— La» of 



qui lofia veoctvni mjuinriir qiatm jul 
ft — Art 11^ ^ 




THE SPIRIT OF LAWS 



>J7 



sistence. As the Bur^ndbns kept herds and flocks, they 
wanted a great deal of land and few bondmen, and the Romans 
from their application to agrictilture had need of less [and and 
of a gfreater number of bondmen. The woods were equally 
divided, because their wants in this respect were the same.* 

We find in the code of the iliirgiindians,' that each barbarian 
was placed near a Roman. The division, therefore, was not 
general; but the Romans who gave the division were equal in 
nunibcr to tlic Bur^ndians who received it. The Roman was 
injured Ica^t. The Ifurgiindiaus a» a martial people, (ond of 
bunting and of a pastoral life, did not refuse to accept of the 
bllow grounds: while the Romans kept such landa as were 
propercst £or culture: the Burgundian's flock fattened tlic Ro- 
Rian'^ fields 

lo.— 0/ Sfirvitud^s 

The law of the Burgundlans notices u that when those peo- 
ple settled in Gaul, they were allowed two-thirds of the land, 
and one-third of the bondmen. The suie of villanage was, 
therefore, established in that part of Gaul t>cforc it waa in- 
vaded by the Bnrfi:unJians.v 

The law of the Burgiindians, in points relating to the two 
nations, rnakea a formal Uisrznction in botJi, between the nobleSt 
the free-bom and the bondmen.tw Servitude was not, there- 
(cre, a thin]? peculiar to the Romans ; nor liberty and nobility 
to the barharianii. 

This very same law aays,-*^ that if a Bnrgundian freed-man 
bad not given a certain sum to his master, nor received a third 
share of a Roman^ he was always supposed to belong to his 
master's family. The Roman proprietor was therefore free, 
since be did not belong to another person's family ; he was free, 
because his third portion was a mark of liberty. 

We need only open the Salic and Rlpuarian laws to be sat- 
isfied, that the Romans were no more in a state of servitude 
among the Franks than among the other conquerors of Gauh 

The Count de Boulainvillierso is mistaken in the capital 

w"&\ dvntcm optliRAil Ihir^odionl 



f AnJ In ihAi or lb« ViMK^'ttm. 
tiTii- ^ 

d the CAdc *de AETiCohi el Ccmttii 
VdL. IL— IS 



Roma nit, "—Ibid, kc- «. 

-■Til, »r 



178 



lfO^^^£5QUlEU 



poJnt of liiH syslcm: he has no* proved that Iht Franks maac 
a general regulation which reduced the Romars into a kind ol 
servitude. H 

A5 this author's work is pcimwl without art, and as he^ 
speaks wiEh the siniplicityr frankncsf^ and candor of thai ancient 
nobility whence he descends, every one is capable of juc^ng of 
the good things he says, and of the errors into which he has 
fallen. I shall not, therefore, nncicnake to criticise him ; I 
sbaH only obser%-e, that he had more wi: than enlightenment, 
more enlightenment than learning; though his learning was 
not contomptible, for lie was well acquainted with the most 
valtiable pan oJ onr history and laws> 

Tlic Count dc Boulainvilliers and the AbW du Bos* havc^ 
formed twQ different systems, one of whtcli sceini» to be a con^f 
spirjcy against the commons, and ihe other again&t Oic nobit* 
tty. When die sun gave leave to Phaeton to drive hi^ chariot* 
be said to hitn, " If you ascend too high, you will bum the 
heavenly mansions; if you descend too low, you will reduce 
the earth to ashes ; do not drive to the riglit, you will meet 
there with the constellation of the Serpent; avoid going loo 
much to the left, you will there fall in with that of the Altar Sj 
keep in the middle." ^ 



ai. — The sam€ Subject continued 

What first gave rise to the notion of a genera! regtilalion 
marie at the time of tlie conquest was our meeting with an im- 
mense number of forms of servitude in France, towards the be- 
ginninj; of the third race : and as the continual progression of 
these forms of servitude was not perceived, people imagined 
in an age of obscurit>' a general law which was never framed. 

Towards the commencement of the first race wc meet with 
an infinite number of freemen, both among the Franks and the 
Romans; but the number of bondmen increased to that de* 
grec, that at the beginning of the third race, all the husband- 
men and almost all the inhabitants of towns had become bond- 



1 



h Sm 3t- Ibierrv e& the lntn>diicti«a 

€ " N«< pTtmr; n«c BumdinrD molirr 

Altlui rtEH 



M»u«, cccJcitia icelB 



Krvc itntElerlof prcuAm Tot4 i!» 
IdUf anmqve tciu."— OviiL,. 




THE SPIRIT OF LAWS 



m 



men : ^ and whereas, at the first period, there was very nearly 
tlie 5amc administration in the cities as among the Ronun», 
namely, a corporation, a senate, and courts of judicature; at 
the oUier wc hardly meet with anything hiLt a Jortl and his bond- 
nen. 

When the Franks, Dtirgundian«, and Goths made their sev- 
eral invavtonii, they iteiitcd upoii gold, silver, movables, 
clotlies. men. women, boys, and whatever the army iroitUl car- 
ry; the whole W3fi brought to one place, and divided among 
the army.' Hiitory shows, tliat alter the first settlement, that 
b. after the first devastation, they entered into an agreement 
mith the inhabitants, and Ml thcra all their political and civil 
rights. Tills was the law cf nations in those days; they plun- 
dered evcrythirg in time of war, and granted everything in 
time of peaee. Were it not so, how should we find hoth in the 
Sahc and Burgundian laws such a number oF regulations ab- 
solutely contrary to a general servitude of the people? 

But though the comjuest was not immediately productive 
d servitude, it arose nevertheless from the same law of nations 
which sut^sisted after the conquest/ Opposition, revolts, and 
the taking of towns were fotlowcd by the slavery of tiie inhabi* 
tints. And, not to mention the wars which the conquering 
options made a^inst one another, as there was thfs peculiarity 
a^uong the Franks, thai the diliferent partitions of the mon- 
archy gave riJc contmuaUy lo civil wars between brothers or 
Dephews, in which this law of nations was constantly practised, 
wrvitiides. of course, became more general in France than in 
oiher countries: and this is. I believe, one of the cause* of the 
difference between our French laws and those of Italy and 
Spain, in respect to the right of scipniorics. 

The conquest \^'as soon over, and the law of nations then in 
force was productive of some servile dependences, Tlte ctis- 
*om of the same law of nations, which obtained for many age*, 
gave a prodigious extent to those servitudes. 

Theodorici ima^nin^ that the people of Auvergne were not 

itMul to him, thus addre^^ed the Franks of his division: 



Wntni (ncy foTm^d pamcitUr 
dm; 11]«M wvr* (prnmiTlT iret^-ntcn. 

-. iBc 4**cciniuDl* of trvcd-mf-n, 
t S«c Crrsonr nf Tciitrq b^^k TI, 

ttiEt. xs^iL Airaoin, bovk I. chdp. idL 




/ Sf« th« " T,fvts M Jh« Silnt*.** 
r s« Cr<irnry n[ Toun, b>ok III., 
for MontpniHipir? d^riaHorL Iran th« 



lONTESQUIEU 



" Follow me, in<1 I will carry yuu >iito a country wherv yOfi 
shM have gold, silver, captives dotbcA, and flocks in abun- 
dance; and you shall remove all the people into your own 
country /■ 

After the conclusion of the peace between Gontram and 
Chilperic the troops employed m t))e siege of Bourge*, having 
bad orders !o return, carried such a considerable booty away 
with them, that they hardly left either men or cattle in the 
countTy> 

Theodoric, King of Italy, whose spTit and policy it was ever 
to disttn^tsh himself from the other barbarian kings, upon 
seodiog an amy into Gad, wrote thus to the ^ncnl: ' ''It 
is my will that the Roman laws be rollowed, and that you re- 
*torc the fugitive slaves to their riglit owners. The defender 
of liberty otight not to encourage ^rvanls to desert their mas* 
tQTi. Let other kings delight in the plunder and devastation of 
the towns which they have Mibcliied ; we are dextrous to con- 
quer in such a manner, that our subjects shall lament their hav* 
ing fallen too late under our government." It ts evident that 
his intention was to cast odium on the kings of the Franks anil 
tile Bargundian?, and thai he alluded in the above passage to 
thdr particular taw of rations. 

Yet this law of nations continued in force under the second 
race. King Pepin's army, having penetrated into A<)uttame, 
reitimcd to France loaded with an immense booty, and with a 
number of bondmen, as we are informed by ihe Annals oi 
MetzJ 

Here mij^ht I quote numberless authorities:^ and as the 
public compasfiioTi was raised at the sight of those miseries, as 
scN'erdl holy prelates, beholding the captives in chains, em- 
ployed the treasure belonging to the church, and sold even the 
sacred utensils, to ransom as manv as they could ; and as sev- 
eral holy monks exerted themselves on that occasion, it is in 
the " Lives of the Saints " that we meet with the best explana- 
tions on the subject.' And, although it may be objected to the 



h Set GMflofj- of Tour*, boots VI, 

thnp- SI 
i Letier 4J, tib. \iu " in C»*»[i>d," 
I In Ihfl yctr 763, " Iiiniimtrariilt1iit> 

ilmruR. in l< ran cum revrrf,u8 esV 
*S<e (b« "Aona1»" n( FuM. in tlir 
TOT ?t9i l^ulut DiKcviliia, "dc (icftllt 



LftptfibaHofum." Tib. llf, c^p. %t.%.^ 
and hh. JV- »p, ti, and tn« " Ltvvi of 
thr Saimi " m xhr iirii <iuo»t[on- 

<>.ct the lire* of M. Ap4nlidnmv SL 
E]>uHm*. S.U ptMTiu. »> Vk<lola«, St 
k'Hjrciin. Si- TrcTcrhua, Si- Kuti«hm«; 
;*id ol Si. I^ffvr, th« ninelu ol fit. 




authors of tbose lives tbat ttiey liave been soiitelimc^ u Itttte too 
crx:^u]ou» in rcspeci to tbin^ which God has certainly per- 
lbnncd> iS ihey were in the order of his provitlcnce; yet wc 
draw considerable tight thence with regard to the manners and 
af;af-«s of those times. 

When we cast ao eye upon the monuments of our history 
and taws, the whole ^tetms to he an immense expanse, a bound- 
less ocean;"* all iliose frigid, dry. insipid, and hard writings 
muit be read and devoured in the same manner a« Saturn is 
fabkd to have devoured the stones. 

A vast quantity of land wbicli had been in the hands of free- 
men » was changed into mortmain. When the country wa» 
Mripped of its Tree inbabiiants ; those who bad a great multi- 
tude of bondmen cither took large territories by force, or had 
them yielded by agreement, and buiU villages, as may be seen 
in dif!erent charlcrs. On the oilier hand, the freemen who 
cultivated the arts found themselves reduced to exercise those 
arts in a state of servitude ; thus the semtudes restored to the 
arts and to apiculture whatever they had lost. 

It was a customary thing with the proprietors of lands, to 
pvc them to the churches, in order to hold them themselves 
by a qnil-Tcnt. thinking to partake by their servitude of the 
nnctity of tJie churches. 

12. — That tli^ Lands behngin^ to the Dmsion cf the Bar^ 
barians paid no Taxes 

A people rcnwrkable for their simplicity and poverty, a free 
and martial people, who lived without any other industry than 
that of tending their flocks, and who had nothing but rush cot- 
tages to attach them to their lands,'' such a people, I say, must 
have followed their chiefs for the sake of booty, and not to pay 
or to raise taxes. The art of tax-gathering was invented later, 
and when men began to enjoy the blessings of other arts. 

The temporary lax of a pitcher of wine for every acre,? which 
was one of the exactions of Chilperic and Fredegonda, related 
only to tl:c Romans. And, indeed, it was not the Franks that 
tore the roll* of those tasces, but the clctgy. who in those days 

■• " DrvTimt quoquc til|oi« pudCd."-* Ctn^liU et rolohli,*' iikI the xnh of 

OviiL lib. I. Ihff *4tnfr litU. 

« Hvm Itiv hiultAlidniTn tbvuiKlvct 5ef Cieifory of TuUfii bouk tl- 

«fn not oil ilifei: *«e the iStIl and p f biil, l>uok V. 
>^J law ilk tha ivje ** Uv Aip-icaLii «l 



i8s 



MONTESQUIEU 




were all Rontans.9 Ttic biirdca o[ this tax Uy cliicfly oa the 
uibab)taiil5 oi the towns ; ' now ih»c were >lnio5t a)l inhabited 
by Romains. 

Gregory of Totirs rclatcf:,' that a eertain judge was obliged, 
after the <Icaih of Clulperic, to take refuge in a chttrch, for 
havini; uDd«r the reign of that prince ordered taxes to be levied 
on several Frank* who in the re\^ of ChiUlehert wer^ ingrnut, 
or free-boni : " MuUos de francU, qui tempore Childeberti re- 
gis ingcnui fucrcnt, publico tributo tubegit." Therefore the 
Fratiks who were not bondmen paid no taxes. 

There is not a grammarian but wouKl turn pale to see how 
the Abbe du Bos has interpreted this passage.' He observes, 
that in those days the freo<imen were aUo called iugcttui Upon 
thii supposition he renders the Latin word ingcnui, by the 
words " treed hx>ni taxes " ; a phrase which we indeed may use 
m French, as wc say " freed from cares," " freed from punish- 
ments" : but in the Latin tongue such expressioiu as htgmui 
a tributes tiberiim a Iribulis, monumisji tributorum, would t>e 
tjuile aioii stroll !i.i< 

Partbcnius, say% Gregory of Tours,^ had like to have been 
put to death by the Franks for subjecting them to taxes. The 
Abbi du Bos finding himself hard pre^^ed by this passage tv 
very coolly assumes the thing in question; it was, says he, a 
surcharge. 

We fin<1 in the'Iaw of the Visigoths^ that when a barbarian 
had seized upon the estate of a Roman, the judge obliged him 
lo *ell it. to the end that this estaie might continue to be tribu- 
tary; consequently the barbarians paid no land taxcs.y 

The Abbe du Bos.j who wotild fain have the Visigoths sub- 
jected to taxcs.t3 quits the hteral and spiritiia) sense of the bw, 
and pretends, upon no other indeed than an imaginary founda- 

yTbe V«nr!ili ptid none fa AfrJCL— 
Itocfmtu*, " W|r Ol ttie V«ndAl>." liti. 
r And ti -Uiiloria MjilxUl^' lib, 
XVt. p. ins. <JtiKr\c thic the «««- 
atieroH of Atric* ttrtr « mUtun od 
VindAlf. Alan. U4 Frmdk*. " Htolorte 
MiicclU," lib, XIV. p, ta. 

1" KjiA^hiiiinm ol Ttit Tnnk9 In 
Gif)!/' t«m- ILK ch4p, KLV, p, 51& 

a lie lar« > sirvH QMQ tnotlirr Uw 
of the ViBiftolbi., book jL iH, 1, ■«. 11, 
which pravd noiTiinf 11 iH: \t myw 
only lliftt he »tfl ha» reecf^td of « lord 
■ \iir<t o| lADd on cordilEi>ii o4 a fdll 
or Mfvict ottihl 10 par iL 



C Sc* Grc«ory ol Tourt. book VtIL 
r "^^< condHio iimvfriiv urtnbu* 
per C»l|t*Tri coftHiTiilii fiiininor>ne ot 
trthmui."— " Life cl Si. Arldioft." 

t B<x>fc vn. 

I " EiiibTuhmrnt ol tJi* Frcneh Mo* 
wcliy." Tom. ill. chip. nir. p. 515. 
■ Sn Uflurlui. U. p, mj. 
t Book 111. chap. uixtL. 
»Tofli' lu. p. $n. 

RnmaDorutn, ih 1111 ■ int dtcuiibu* 

nihil fiico ctebCAl depvrirr-"— Lib^ X. 
III. I, np. lEv, 





THE SPIRIT OF LAtt'S 



tfofli, that between the establishment of the Goths and this law, 
there batf been an atigincnUtiQn of tJixcs which related only to 
tb« Roman*, But none but Fatlicr Ilarduin Ate allowed thus 
to cxcrcifc an arbitrarj- power over fact*. 

This learned author ^ lius rtimma^^ed Jttstinian's code.' in 
search of laws to prove, that amorg the Romans^ the milttary 
benefices were subjeel to taxes- Whence h« would infer that 
the &anie held good with regard to fiefs or benefices air^on^ the 
Franks. But the opinion Ihat our fiefjt derive their ori^n from 
ihat Ifustitution of the Romans is at present exploded; ft ob- 
tained only at a time when the Roman history, not ours, was 
well understood, and out ancient records lay buried in ob- 
Mnirity and dutt. 

But the abbe is in the wronf: to quote Cassiodorus, and to 
make use of what was transiicting in Italy, and in the part of 
Gaul subject to ITicodoric. in order to acquaint us with the 
practice established among the Frank^i; these are thini;^ 
which must not be confounded, 1 propose to show, some 
time or other, in a certain work, thai the plan of the monarch} 
ot the Ostrogoths was entirely different from that of any other 
govcrnnicni founded in those days by the other barbarian na- 
tions : and that so far from our hthifz entitled to alHrm that a 
practice obtained among the Franks becaui^c it was cstabltahed 
amon^ the O*trogoth» we ha\e on the contrary jutt reason 
to think that a custom of the Ostrogoths was not in force 
among the Frankft. 

The hardest task for persons of extensive cniditirm I*, to 
seek their proofs in such passafrcs as bear upon the subject, 
and to find, if we may be allowed to express ourselves in as- 
tronomical tern»s, the position of the sun. 

The same author makes a wrong use of the capitularies, as 
well as of the historians and laws of the barbarous nations. 
When he wants the Franks to pay taxes, he applies to freemen 
what can be understood only of bondnien;^ when he speaks 
of their military service, he applies to bondmen what can nctcr 
rcUtc but to freemen,' 



rlcm. ill riL 74. lit)- XI- 
4- &faTi1i*hncni ol (he Frtneh Uon- 
*rely/' lorn. Ui. chup. k1t> p. Siji 



vlwrv tic ^rnotei the aSib ftrtldv d ttat 



iS4 



HOKTESQVIHU 



13.— 0/ Taxes paid by tht Romms ami Catds im the Monart k^ 

of tkt Franks jH 

I m^bt herv examine wheiher, aft^ the Gaul* anH Romans 
wcT€ cooquercd, they coomiued to pay ibc taxes 10 which they 
were subject nnder the emperors. But, for Ihe sake of brevity, 
I shall be satisfied with obsernng, that if they paid tbein in the 
bceiniuDg, they were tooa after exeftqMcd. and that those 
taxes were chan^ into a militar>- scnricc For, I confess. I 
can hardly concctre how the Franks should hare been at first 
such great ftiead», and afterwards such sudden and vioknt 
enemies, to taxes. 

A Ca[»tuUry/ of Louis the Debotmaire explains extremely 
well the situation of the freemen in the monarchy of the Franks. 
Some troop« of Goilw or Itwriacsj *lyinK (rom the oppression 
ol the Moors, were received into Loois's dcMninioru. Tlie 
agreement made with them was tliat, like other freemen, tbey 
should follow their count to the army ; and, that upon a march 
Utey should mount guard and patrol under the command also 
of their count ; h and that ihey should furnish horse* and car- 
fiages (or baggage to the king's eomniisaaiies,* and lo the am- 
bassadors in their way to or from eomt : and that they should 
not be compelled to pay any further impost, bat should be 
treated as the other freemen. 

It cannot be said, that these were new usages introduced at 
the commencemem of the second race. This mtist be referred 
at least to the middle or to the end of the firsL A capitulaxy 
oj the year 864 i sa>-s in express terms that it was the ancient 
custom for freemen to pcrfonn military service, and to furnish 
likewise the horses and carriages above metitioned ; dnttcs 
particular to themsehres, and from whkh those who possessed 
Ihe 6efs were exempt, as I shall prove hereafter. 

This is not all ; there was a regulation which hanlly per- 
mitted the imposif^ of uxes on those freemen^ He who bad 
r u te Tw ta cteph u i>%«a i> t* ui p^cm 




a _ 
Wttnu 

1S^ 



-no. 

■__ , 

-mi: 

BC ObOfBd 



VL liu L 



vt %. So ytm 



w 7^m tih an. 0. 



"n«»^ 






THE SPIRIT OF LAWS 






foar Bianors was alwaj-s obliged to march against the enemy : I 
be vrbo bad but thr«e wad joined wttli a Cre«fnan tbat bad otHy 
onr ; the Utter bore the fourth port of the other's charges, and 
vtMyed at borne- In like manner, ihey joit>cd two fro<?mcn who 
hid eadi two manors : he who weni to ihe amiy bad half bis 
Chiracs home by him who stayed at liome. 

Again, we have an infinite number of chancn, in which the 
privileges of fiefs arc granted to lands or districts possessed 
V frccxnen, and of which I shall make further mention bere- 
tfter^ These lands arc exempted from all the duties or s^- 
vices which were required of ihcm by the counts, and by the 
t^st of the king's officers ; and as all these services arc particu- 
laiiy enumerated without making any mention of taxes, it it 
rnanitest that no taxes were imposed upon tliem. 

It was very natur^tl that the Roman system of laxiiion should 
itself fall out of use in the monarchy of the Franks; it was 
moat complicated device, far above the conception, and wide 
fiom the plan of those simple people. Were the Tartars to 
overrun Europe, wc should find il very difficult to make them 
comprehend what is meant by our financiers. 

The anonymous author of the " Life of LouU tlic Debon* 
fiaire," " speaking of the connts and other officers of the nation 
of ihe Franks, whom CharleiTiagne establisliec! In AquUania. says, 
that he intrusted them with the care of defending the frontiers, 
as also with the military power and the direction of the dc- 
iDCsnes belonging to the crown. This shows the state of the 
royal revenues under the second race. The prince had kept 
his demesnes in his own hands, and employed his bondmen in 
improring them. Eut the indictions, the capitations, and other 
imposta raised at the time of the emperors on the persons or 
goods of freemen had been changed into an obligation of de- 
fending the frontier*, and nurehitig against the enemy- 

In the same hisEor),i> we find thai Loais the Debonnaire, 
having been to wait upon his father in Germany, ilris prince 
asked bim, why he, who was a crowned head, came to be so 
poor; To which Louis made answer, that he wa^ only a noni* 






I hntr that 

_ — - — ,, , „., II " w&t ■ ptr- 

l ycnU t jibnlon M UnJ Ixloriirmff (a ft 
Sw™ vntra fhrrt wnt hondmtnx *r»t- 
, •WH iSe r«p4luljHy of [lie ynu Bu, 
^ M^ S|l»»™in/' lit, *ivH, AlTBUut 




ttoie vtio Arvn the bondmrn from 

■I Sfc bcloi*. ch»p, *0,/*t iJif" boot 
I* lu D4jclk<«A«, lom. il. ft ^tfrn 

« f bid., p. «v> 




i86 



MONTESQUTEU 



inal king, and that tlic grcst lonls were possessed of almost alt 
his detnesnee; that Qiarlemag^nc being; apprch«n&tvc lc»t this 
young prince should foHctt ttieir affection, if he attempted 
himseli to resume what lie had ineonsideratdy granted, ap- 
pointed commisMries to restore things to their fonuer ill 



"*! 



Iton. 

The bUhops, writing P to Louis, brother of Charles the BaM, 
tiscd these words; " Take care of your lands, that you may 
not be obliged to travel continually by the houses of the ckrg^r, 
and to ttrc tlicir bondmen with carriatn^. Manage your af- 
fairs/' continue they, " in such a manner, that you may have 
enough to live upon, and to receive cmbassie*." It is evident 
that the king's revenues in those days consisted of their de- 
nie^nes.^ 



14. — Of what thiy tatitd Census 



I 

as 
lan^ 



After ihe barbarians had quitted ihdr own country, they" 
were desirous of reducing their usages into writing; but as 
they found difficulty in writing German words with Roma 
letters^ they published these laws m Latin, 

In the confusion and rapidity of the conquest, most thinj^ 
change<l their nature; in order, hoAever, to express them, 
Uicy were obliged to make use of such old Latin words as were 
most analogous to the new usages. Thus, whatever was likely 
to revive the idea of the ancient census of the Romans they 
called by the name of {vnsus tribuium; r and when things had 
no relation at all to the Roman census, they cxprcs^d, as well 
as they could, the German words by Roman letters ; thus ihey 
fDHned the word frcdion, on which I shall have occasion to 
descant in tlic following chapters, ^ 

Tlic words c<nsns and tributum having been employed in an^ 
arbitrary manner this has thrown some obscurity on ihe sig- 
nification in which these words were tited under our princes o( 
the firit and second race. And modern authors* who havc-^ 




. 14. 

flTh*T l*tW a^BS Bom* duii«i on 
riven, vh«rv th^re happened <o be a 
britfn or • twiRs*. 

rT^« cmn* wa* 19 fpnrri^tl ■ word. 
thit m*y nude a*r tit It to vkptvh the 
toll* of fivtft. when ihrre i'dh i brldffe 



IvT. In th« ynr 1Im» cdtllon of ntlotiaii^^ 
;i9, p. *i6. Th''7 gave rikfwUp thi< 



fiArne lT> The nrrii^n furniihcti by t1>« 
frefmen ic iV» Wln^. cf to hfi cuai- 
miiurlei. u AL>p«rt ^y ihe Ctpilular* 
of Cliir1«B th« V-i\A in Ihe •nut »& 
ui. a. ^ 

$ Th* AbM da Do*. lAd hU folbwr^l 




THE SPIRIT OF LAWS 



» 



adopted particular systems, having foun<l these words in the 
wntinge of those davs, imagined that what was then chilled c«n- 
ftUSi was exactly the census of th« Romans; and thence they 
inJerred thU oonse<iuence, that our kings o( the first two mccfl 
had put themselves in the place of the Roman emperors, and 
made no change m their admini^ration.' Besides, as particu- 
lar duties raised tinder the second race were by change and by 
certain restrictions converted into oihers,« they inferred thence 
that these duties were the census of the Romans ; and as, since 
llje modern regulations, they found that the crown demesnes 
were absolutely unalienable, they pretended that those duties 
which represented the Roman census, and did not form a part 
of the demesnes, were mere usurpation, I omit the other con- 
sef^uences. 

To apply the idea of the present time to distant ages is the 
most fruitful source of error. To those people who want to 
modcmUc all the ancient ^K^s, I shall say what the Egyptian 
priir^ts said to Solon, " O Athenians, you arc mcic children ! " v 

IS-— T"Aa/ what they coHcd Cfnsus was raised only on the 
Bondmen atid not on the Freemen 

The king, the clergy, and the lords raised regular Uxes, each 
on the bondmt^n nf their reftpective demesnes. 1 prove it with 
respect to the king, by the Capitulary de yUlLi; with regani to 
the clergy, by the codes of the laws of the barbarians w and 
in relation lo the lords, by the regulations which Charlemagne 
made concerning this subjcct.J^ 

These taxes were called ccnjus; they were economical and 
not fiscal claims, entirely private dues and not public taxes. 

I affirm, that what they called census at that time was a tax 
raised upon the bondmen. This I prove by a formulary of 
Marculfui containing a pcrmiMion from the king to enter into 
holy orders, provided the persons be frec-born,y and not en- 
rolled In the regUter of the census. T prove it also by a commis- 

fS«t tht wvaknfi* ci( thv krsrumrnii 
H«4liic«4l by itif \t'hr Jii il-^v 1" thf 

EatAblUhnicnf ot (he Trcndi M-m- 
tt^y." torn. 111. h'wjV V'T. <hafi n>v. : 
UfHiilJy in ihv ^knlcrfiice h« ^rawi 

^ ... 



p«u»t« of LretioiY oi Toinii. 
diipurc between hii 

, vnir*n_ . _. ... 
'*lAtoiirni. in TltriKo. vel dc 



«BC«remdE Jl diipurc between 
■ For liui»nc«. by vnl|Tn«hia«ni«riti. 



n* Ijw of the Alrmtni. cbip. xxi\.: 

Ami the law -^f tlif P«Tnfi>npi. fit. i, 

cliop. \iv.. wheit ihv f*jti»U>ion# an 
• ft hr fcmnd which Iha r\^rtt maJe eon- 
cernlnff ibelr order. 
* Book lUi of ihe CApitutari^a. <b*p 

cccta 

J" iii illt de eap{Ir mu/i bene rnsenuui 
cT in l'vi«Uco publico ccasUDft non 
HI."-LII^ L tortnuL it. 




MONTESQUIEU 



fiiQD from Oiarlcmagnc to a count » whom he had sent int 
Saxony, which contains the enfranchisement of the Saxons for" 
having embraced Christianity, and is properly a charter of fre€- 
clom.o Thi* prince restores them to their former civil liberty,^ 
and exempts them from paying the census. It was, therefore^ 
the sam<^ thing to )>e a bondman as to ^y the census, to be free 
as not to pay it. M 

By a kiiid of letters-patent of the same prince in favor ofV 
the Spaniards/ who had been received into the monarchy, the 
counts are forbidden to demand any census of them, or to de- 
prive them 01 their lands. That strangers upon (heir coming 
to France were treated as bondmen is a thing well known; 
and Charlemagne being desirous they should be considered as 
freemen, since he would have them be proprietors of their 
landSt forbade the demanding any census of them. ^L 

A Capitulary of Charles the Bald.d given in favor of those™ 
very Spaniards, orders ihcm to be treated like the Other Pranks, 
and forbids the requiring any census ol them ; consequently 
tl>is census was nul paid by freemen, 

Tlie thirtieth article of the Edict of Pistes reforms the abuse 
by which several of the husbandmen belonging to the king or 
to the church sold the lands dependent on their manors to , 
ecclesiastics or to people of their condition, reserving only 
small cottage fo themselves: by which means they avoided] 
paying tlie census; and it ordains that things should be re J 
stored to their primitive situation: the census was, therefore, 
a tax peculiar to bondmen. 

Thence also it follows, that there was no general census in 
the monarchy; and this is clear from a great number of pas- 
sages. For what could be Ihe meaning of thi^ capihalanr',' 
" We ordain that the royal census should be levied in all places, 
where formerly it was lawfully levied " ?/ What could be the 
meaning of that in which Charlemagne g orders his commis- 



I 



^«1n \Yit y««r 360, vdlriaa at <h» 
Cftp^^li'tf* br Buuiiiu. vol. i. p. t^ 
9" Ex W fim lnffcnuiiaii» paffirm 
firnia lUbilliciuc roiMi9Ur.'*'-Ibi<l. 

emni nobik dfbilo Cfnsii toTuiQL"— 
tbid 

f " Pfreepiuin pro Hiip*nif/" In Ihc 
mr %%t^ *4ilion cf UiluiUi. Ian. i^ 

iTtn thr yvwt fM. rdiHon of Baltuiaiw 
lorn. U. ftfU, I «Qd f, (k 97. 



fTtiird TjipiinluT if the retr IuaJI 
*rti. j» «nd t%^ ifiipfirJ [ft the CoUec- 
tinn a£ Anwunt- hf^V 111, «», ■¥, 

B*M, in [Jip v«r B^, '" spud Atiint ' 



— ibi 



K In tilt Trtr ftu. Hfft. 14 and il, 1 
tioQ Of tfaiuiiDfi lom. I, p. yfL 



THE SPIRIT Of 



JiWS 



1^9 



P 



N 



saries in the provinces to make an exact inquiry into all the 
cnism that bclon^^ed in former times to the king's demesne? fc 
And of that ' in which lie t!i*poses of the census paid by those / 
of whom they arc demanded? What can that other capitulary 
mean * in which wc read, " If any per;»on has ac<juired a tribu- 
tary land f on which wc were accustomed to levy the census " ? 
And that other, in hne.m in which Charles the Ualdn makes 
mention of feudal lands whose census had from time imme- 
morial belonged to the king? 

Observe that there arc sonic paiisagcs which seem at first 
sight lo be contrary to wliat I have said, and yt-i confirm it- 
Wc have already »ecn that the freemen in the monarchy were 
obliged only to funiish particular carria^s; the capitulary just 
now ciicd gives to this the name of census,*? and opposes it to 
the ccnsuit paid by the bondmen. 

Besides, the Edict of Pistes t* notices those freemen who are 
obliged to pay the royal ccnsws for their head and for their cot- 
lagei,4 and who had sold themselves during: the famine. The 
king orders them to he ransomed. This is because those whn 
were manumitted by the king's letters r did not, generally 
speakinp. acquire a full and perfect liberty,' but they paid ccn- 
sum in caf*ite; and Uicsc arc the people here meant. 

We mast, therefore, waive the idea of a general and universal 
census, derived from that of the Romans, from which the 
rights of the lords are aho supposed to luvc been derived by 
usurpation. What waa called census in the I'Vcnch monarchy, 
independently of the abuse made of that word, was a particular 
tax imposed on the bondmen by their masters. 

1 hcR the reader to excuse the trouble I must give him with 
»uch a number of citations. I should be more concise did I 

A" Undctunquc kmiaujfus ad psncm 



tb< retf Si*, ftrtt. to and ... 

tin fbe yrar ftij. art. 6. taitioO □! 
ItiAloiiUfi, torn. L n 508. 

f-'tyt iElrn uEidc HUM nLffUCrL"— 
Cftpiivtify of thtf ytar Sis. art 6, 

kBotik IV- of the Csphiitiricv an- 

t: ud ioKFtrd in ih« lair of ih« iAin< 

I" Si auU ffTTarn tfihvfafi.im. tmrle 
M|*C*P*T^L — UooV IV,. of (lit < flpllU- 

m In f^e T*ar *^^. «>. t 

n" Uad« cfOKut Dd padMD ruis 
nwil anthiuiTUi."— CipituUnr ol th« 
rmr 80s. vL IL 



(j"Cpnsibo» rt] paravenedlt quo* 
Fmnfi hnmines *d TCfitm (tolnUrnn 

p In ihr ytar BA4- irt a. tStion of 
Bftlufjtja. p. i^f. 

tf " Dv ilUt francls btMniniliui qui 
DcnAum rFtfEtim d« beio <apitc «1 d« »uti 
t<«rMli debnni/'— [bid. 

rThe 4ib ariiclv of th« tame fdict 
Ciplams thti fifrrTncTv wetl; it rvtn 
m>Vti a dittiofiirtn helw?rii 3 Roman 
IrecdTxion and h Frink ffr?dmAn: And 
wc l(kpwi>e Kt thrrp (hnl Oie «rt«n 
*at noi Rrnrrol: U d«icr«c> to bp nad. 

J At QiJpcara hy iti*- t'upirtitn'T '^i 
Cli^rlrmtitnc in ihv yeu Bij, whlcr vt 
have already guoltd* 



190 



UOKTESgUIEU 



not Tucrt with the Ahljc du Bo*'* boot on th* esUhlUhment ol 
the French monarchy in Gsul, continually in my way. Noth- 
ing is a greater obstacle to our progress in knowledge, than a- 
bad pcrfomiancc of a celehralcd author; because, before we 
instruct we must begin with undeceiving* 

16, — Of tht ffudci Lords w Vassds 

I have noliccd those vohinteers among the Germans, who 
have followed their princes in their several expeditions. The 
same usage continued after the conquest Tacitus mentions 
them bv the name of companions ; ' the Salic law by that u( 
men who have vowed feaUy to the king;" the formularies of 
Marculfust' by that of the king's " antruslios,'* tu [he earliest 
I'fcnch historians by thai of "Icudes/"-^ faithful and loyaJ; 
and those of later date by that of vassals and lordso' 

In the Salic and Ktpuarian laws wc meet with art infinite 
number of ve^ulatton^ in regard to the Fraiiki», and only wttli 
a few for the antruslios. The re^iilalions concerning llic an- 
ti^Mios arc different from those which were made for the other 
Franks; they are full of what relates to the settling of the 
property of the Franks but mention not a word concerning that 
of the animstio*. This is becanse the property of the latter 
was regulated rather by the polilira) than hy the civil law, and 
was the share that fell to an army, and not the patrimony of a 
family. 

The goods reserved for the feudal lords were called fiscal 
goods, benefices, honors, and fiefs, by dliTcrcnt authors, and in 
different times.* 

There is no doubt but the fiefs at first were at will-o We 
find in Gregory of Tours,* that Sunegisitns and Gallomanus 
were deprived of all they held of the exchequer, and no mote 
was left them than their real property. When Gontram raised 
his nephew Chilctebert to the throne* he had a private confer- 
ence with him, in which he named the persons who ought to 
I 



• Ci^raitci." 
n" Qui sunt in lnuit« rfeia." tit 4A, 
■ft. 4. 

r Doab 1. larmuIafT iH 
& From \he fcurrl " trfw/' which *ij- 
oific* " failhftil " auinne the GcrnunL 

j"Vmu!Ii." "-K^nbrcfc" 
t**P4ftcalU." S» th« t^th forau- 
' ' It U nwa- 



Isry of MncolfuBn book 1. 



i!«i*d In tl.« "Ufe of S(. Mror." 
" dv'lit fivcafn iTnim "; \nd ut ihm 
" Annali &! Mrtr " in l!ie j*Jr y**, 

'* iJFilif nil CrtmitklUI «l ^«ra« i>Iur;- 

nioi," The food a dnitned !or ih* 

■uiiiicsn tif tire royil fiTniljr wrrt cal]#4 

A Sc« ihc IHt hAok. xU. >, of lIlB ftHt| 

tnd C'uiu oa that book, 
ft Book IX. chap, xnviii. 




THE SPIRIT OF LAWS 



191 



b^ honorccl with, and those who ou^ht to be deprived of, the 
fie^.f In a fonnulary of MarcuHiis,^ the king gives in ex* 
change, not only the benelices held by his exchequer, but like- 
wise those winch had been held by another. The Iaw of ihv 
Lombards opposes the benefices to property.' In this, our 
hUtoriaaSt the (orniularies, the codes of the different barbar* 
ous nations, and all the monuments of those day& arc unani- 
mous. In fine, the writers of the book of fiefs inform us/ that 
at first the lords could take ihcm back when they pleased, that 
afterwards they granted tliem for the «pacc of a year^ir and that 
at length they gave them for hfc. 



17. — Of the military Snzfice of freemen 

Two sorts of people were bound to military service; the 
great and lesser vassals, who were obliged in consequence of 
thdrfiefa; and the freemen, whether Franks, Romans, or Gauls, 
wlio served under the count and were commanded by him and 
bis officers. 

The rame of freemen ivas given to those, who on the one 
band had ng benefits or fiefs, and on the other were not sub- 
jert to the base services of viUanage; the lands they posse»»;d 
were what they calli^d allodial estates. 

The counts assembled the ficancn^ aud led them against 
the enemy; ihcy had officers under them wlio were called 
vicars ; • and as all the freemen were divided Into hundreds, 
which constituted what they called a borough, the counts had 
also officers imder them» who were denominated ccntcnarii, and 
led the freemen of the hofough, or thrir hundreds, to the fieldj 

This divi^tion into hundreds is posterior to the establishment 
of the Franks in Gaul. It was made by Clotharius and Childe- 
bert, with a view of obliging each district to answer for the rob- 



hoiuHv depetkreL"— Ibid hb, VJT, 

4" V«l ffliqialft qvfhUBCumiiue benc- 
Gdi«- <|u^coniaa« lllf, v«l iiK-un ti<i»' 

Ljh. I, (ofmuJ, 3<\ 
tl,iv 1|J. fir *, m«, J, 

*ffvi jn rfiim'nH-jTi'ni fiHTdrffT^t* cnnvx- 
imL vf <]M>nf4n vrMrnT pi>iiviif atifvrre 
rrni iwi friiiliim a *f itilAm; i>n<Tr« vm 
«rO¥tiiFUfn fit til pff annum TitTiiutn 
SnMiBlrnt 1iAE>f<r*nf, ilrin^f* KEKninm 
tm ut nttiae *d film) fidclit produce- 
»*».'*—•' ?#n44rufn," Uh. I, ifl, l 



wnich the lord r<msentFd or nfuied te 
fenvv cferjr yurs •* Cujn* h«f vh- 

h Sec <he Capiiularr ni Clinrltmiifiif 
in ihe yfAT ^r^ *ttt- j >ad t. vi1iti>-<n of 
rtalLtim*^ lorn- I p- 4if', mnit thr Iv'Jitt 
<>f Fivir* in (he Ttar tS64. irt, 9^ wm, 
ti ^. iM. 

Vir3rio« FT Criitentfio* ufum."— Booh 
\\. <ii lh« CipitulitrfB> art, ^ 
^ They mrr ciiMtd " comfiBgen>«L'* 



19' 



MONTESQUIEU 



bcrics committed in iheir division : this we find in the decrees 
of Ihose princcs> A regulation of this kind is to this very day 
obsenxd in England. 

Aft the counts led the freemen against the enemy^ the feudal 
lords commanded also their vassals or rear-vassaU; and the 
bishops, abbots, or their advocates ' likewise commanded 
theirs.w 

The bishops were greatly embarrassed and inconsistent with 
ihemselves;" tliey requested Charlemagne not to oblige them 
any longer to militar>' service; and when he granted ihcir rc- 
i^ucst, they complained th^t lic had deprived them uf Uic public 
esteem ; so that this prince was obliged to justify his intentions 
upon thii head. Be thai as it may, when they were exempted 
from marching against the enemy I do not find that their vas- 
saU were led by the counts; on the contrary, we see that the 
kings or the bishops chose one of their feudatories to conduct 
thcm.o 

In a Capitulary ol Louis the Deboniiaire.P lliis prince dls- 
tin^ishcs three sorts of vassah. tho^ belonging to the king, 
tliose to the bishops, and those to the counts. The vassals of 
a feudal lord were not led against the enemy by the count, ex- 
cept some employment ir the king's household hindered the 
lord himself from commanding them.j 

But who is it that led the feudal lords into the field? No 
doubt the king himself, who was ahvays at the head of his faith- 
ful vassals. Hence we conslanly find in the Capitularies a dis- 
tinction made between the king's vassals and those of the 
bishops.^ Such brave and magnanimous princes as our Icings 
did not take the field to put themselves zl the head of ;Ln eccle- 
siastic militia ; these were not the men they chose to conquer 
or to die with. J 



fr Pottliilif d tn Ihv ytw SVS. vt. i. 
5m the C«i>tiuldriri. edffioa of Balii- 
iLut* a «d^ J hcic rvsQl4tian« were ua- 
doubudJy niail« by ■Hntmcot, 

t " Advo^iiti," 

(h CAptlulir^ of Chirlcmajrnp tn thr 

SEAr Sii. ifi&. t »nd 5, tdnlon ol 
.aluilui. lorn. s. p. 490 
H Sre the Cipllulftry nf ibf ytttr Knj, 
OUbUibcd " Worm^. rdidon ol Ailu- 
iln*. pp. ^ anil 410. 

tf Cipi^wUrr ol Wnrm* \n Ihe yrar 
S^j, cdlllon oi UaivtliiK V*U* 4fK'. »H1 
the Council ^n (He r<*t ^j« qnHrr 
ChJirln Ihc Itidil, " fn vrrna paUilui" 
«dklon of Di1xi<iu»p ton- ii* p. 17, »rL t 



#T1w fth GM^tuluT of tlic fmt ^t% 
iirt n, «ditioa of Baluxiij^ p. 4iL 

ff " De viasla dooiLnicU qui ftdhuc 
itiTfi fdHin Krviunt rt Umen bonpflci* 
hftbeff noKiiniur. iliiuium t*\ ut ijui- 
<umEiu« 41 til cvm ilomino imfirfaiuirc 

tos iKun ron rf iiii«Ani ; ic^ <um 
ccrnlitt ciijiin paBtt'^t% nimt, 9tr prrnill- 
Uni."— Seconif CapUuUry in iht >Yftr 
fit. Kit, 7. sCkUhi i>t lialuiigf. lom. I. 

r rTmi Caphut. cf th« yrar 

" dr fKiinioibui nrnrriB. tI , 

n Abbifom cjul TBI bcnrllcM Vfl ttfla 
pr>pri4 hib«r]|," tic fttitioo of WM- 
tinK torn. i. p. igih 




THE SPIRIT OF LAWS 



193 



But thcM lordi Ii1cewi«e carried their vassals an^ rear-vas' 
SaU with them, as wc can prove by the Capitulary in which 
Charlemagne ordains that every freeman who has four manors, 
either in l»:s own i»roperty or as a benefice from somebody eUe. 
should march against tlic enemy or follow his lordJ It is cvi- 
detit. that Charlemagre means> that the person who had a 
manor of \m own should march under the count and he who 
held a benefice of a lord should set out alon^ with htm. 

And yet the Abbe du Bos pretends,' that M^hern mention is 
made in the Capitularies of tenants who depended on a par-* 
ticular lord, no others arc meant than bondmen ; and he 
(grounds his opinion on the law of the Visigoths and the prac- 
tice of that nation. It is much better to rely on the Capitu- 
laries iheraselves ; that which i have just quoted says expressly 
the contrary. The treaty iK-tween Charles the Bald and his 
biulhcrs notices also those frcemcii who might choose to fol- 
low cither a lord or the kinjc; and this regulation is conform-* 
able to a great many othcTS. 

Wc may. therefore, conclude, that there were three sort* of 
military services ; lliat of the king's vassals, who had other 
vassals under them : that of Ihe bUhop* or of the orher clergy 
and their vassals, and. in fine, that of the count, who com- 
manded the freemen. 

Not but the vassals might be also subject to the count; a> 
those who have a particular command arc stibordinatc to him 
who is invested with a more general autliofity. 

We ev^en find thitt tlie count and the king's commissaries 
might oblige them to pay the fine when Ihcy had not fulfilled 
the engagements of their fief, !n like manrter. i( the king's 
vassals committed any outrage " they were subject to the cor- 
rection of the count, unless they choose to submit rather to that 
ol the king< 

iS.— Of the double Service 

It was a fundamental prirciplc of the monarchy that who* 
soever was subject to the miliinry power of another person was 
subject also to his civil jurisdiction. Thus the Capitulary of 

I ToiHt iii. fcook VI, th9p. (T. Ph n% 

I^»ii|^ll9^infa< of the French Mait- 



* Jo tS* ytat StJ. (hflp. i. riliiinn ol 
ututlui. ci. 49J, " ut omriJi lininfi tilicr 

rum •cuot ma," 

Vol IL-is 



trch_ 



Biluiiu** loitu u. ^ 4ck 



>94 



UONTESQUIEU 



Lou]« the Dcbonnairc," in the year 815, mikcs tli« mllitar>' 
power of the count and his civil jiin«diction over the frcomco 
keep atv.-ay£ an e^ual pace. Thus Ihe f^octta w of (he count who 
carried the freemen against the enemy were calW the plncita 
of the freemen;^ whence undotibtedly came this maxinu that 
Ihe questions relating to liberty could be decided only in the 
count's phdta, and not in those of Ins officers. Thus the count 
never led the vassals > belonging to the bishops or to the ab- 
bots, againsl the enemy, because they were not subject to his 
civil jurisdiction. Thus, he never commanded the rcar-vassals 
belor^ng lo the king's vasfuds. Thus the glossary of the Eng- 
lish laws infonns us,^ that those to whom the Saxons gave the 
name ol cof^aa were t>y the Normans called counts, or com- 
panions, because they shared tlie justiciary fine* with the king. 
Thus we »ee, that at all tintcs the duty of a vassal tovrarda his 
lord fr was to bear arms,« and to try his peers in his court. 

One of the reasons which produced this connection between 
the judiciary right and that of leading the forces against the 
enemy was because the person who led them exacted at the 
same dme the payment of the fiscal duties, which consisted In 
some carriage services due by the freemen, and in general in 
certain judiciary profits, of wliicli wf shall treat hereafter. 

The lords had the right of administering justice in their fief, 
by the same principle as the counts had it in their countie-s. 
And, indeed, the counties in the several variations that hap- 
pened at different times always followed the variations of the 
fiefs: both were govenied by the same plan, and by the same 
principles. In a word, the counts in their counties were lords, 
and the lord,s in their seigniories were counts. 

U has been a mistake to consider the counts as dvil officer*, 
and the dukes as mihtary commanders. Both were equally 
civil and military ofGcLTs:«f the whole difference consisted in 




»Attv 1, t. and i)i« Cfvr%ci} "in 
TOno ptiwio '" ol Ibf jrtir B45. ut. 8. 
edition qI (f*tii*iua, ivm. %l, p. 17, 

bOt a«HiL 

IcflCon M Anffiii?. arf, $7: and <h« 
<i1i r'4irim1»nr of l#4U^t t^« iJctavtnA'r* 
in ihv v^" Ki^ ttx. i|. tdilion ol Dtlu- 

y^rt notf p. pajf to*. 

ol W?]]i«in r^mbudp " dc pflKia 
Afif loruiA Iffiihiu." 



* Ifl (lie wofd " Mtr»pia,'* 

Tall l« weII fhvliinrd by lh« ftHliei 

rThc Jdvtfweei ot th* chmch C ^^ 
v«o*»i ") wrr< rquAllr H (ha h4«J vf 
rtcir pIi^ilA trliJ ol ihcir miHli*. 

tf}*«v ih* »h lonnukrr oi Marvullu*. 
book L. which coDiaini th« IcUcn 



RlvHI to ft Jul**, , . , 

and mT»t» rheni wjib the civil larl^ 

Mo 



or eH^tisi i 

_ . ..._ ..._ civil lurl»- 

<1kclloD. ftnd the fitol idmiaiairauoo. 




THE SPIRIT OF LAWS 



XQ5 



!he duke's having several counts under him, though there wcfe 
counts who had no (Juke over them, as wc leam from Krcde- 
garios.' 

It will be imagined, perhaps, thai the gavcrnnicnt of the 
Franks niusl have been very severe at thai liuic^ aiiKc the i^atnc 
ofHccr* were invcMcd with a military and civil power, nay, even 
wiih a fiscal aiUhonty. over the subjects ; which in the pre* 
ceding books I have observed to be distinguishing marks of 
despotism. 

But we must not believe that the coiinU pronounced judff- 
oent hy themselves, and administered jtistice in the ^ame man- 
ner a£ the basliaws in Turkey : in order to judge affairs, they 
assembled a kind of assizes, where the principal men appeared. 
To the end wc may thoroughly understand what relates 10 
the judicial proceedings in the formulas, in the laws of Ihc bar- 
barians and in the Capitularies, it is proper to observe that the 
iunctions of the count, of the gra/io or fiscal judge, and the 
tentfnarius were the same ; that the judges, the rcthimburgherst 
and the aldermen were ihe same persons under different names. 
These were ihe count's assistants, and were generally seven in 
lumber; and as he was obliged to have twelve persons to 
judge/ he filled up the number with the principal mcn^ 

But whoever h:td the jurisdiction, the king, the count, the 
araHo, Ihc c<nt€narius. the lords, or the clergy, they never tried 
Causes alone ; and this usage, which derived its origin from the 
forests of Gern;any, was still continued even after the £efd had 
Assumed a new form. 

With regard to the fiscal power, its nature was such that the 
Count could hardly abuse it. The rights of the prince in re- 
spect to the freemen wpre so simple that they consisted only, 
as vrc have already observed, in certain carriages which were 
demanded of them on some public occasions^ And as for the 
judiciary rights, there were laws which prevented mtsde- 
tncanorsj' 



«**C1u4rtit]i." ctvp- UhvUEm La <1i0 

/Sec «OfK4rninf ihU puUtcI (he 
Ciptmlftflci of lyOula ib« D^br^nnarrv. 

einl tc Iht SaWc law, an, t, pnd ilia 

C>i|A¥ fn t1^* wanu *' boni hominea.' 



lh«r« w«r« i»«i« but prlncSfiftT mtik 

* AfirJ n>inc lolU on mrr», of which 

iSft th* Ik* of t^c fJrpuiriana. iit» 
t4: and lh« lnw of tb« Lombirdi. book 
11, Ikf. V* ■'^ ^ 



19^ 



MONTESQUIEU 



19. — Of Compositions cmcn£ the batbatous Nations 

Since it is impossible to f^am any insif^hl into our pclittca] 
law unless wc arc ihoroughly acqminted with the laws and 
manners of the German nationii, I shall, therefore, |>aus« here 
Awhile, in order to inquire into those manners and laws. 

It appear* by Tacitus, tlwt the Germans knrw rmlj- two 
capital crimes; they han&:ed trailers, and drowned cowards: 
these were the only public crimes among that people. When 
a man had injured another, the relatives of l)ie person injured 
took share in the quarrel, and the offence was cancelled by 1 
satisfaction^ This satisfaction was nude to the person of- 
fended, when capable of receiving it ; or to the relatives if they 
had been injured m common, or if by the decease of the party 
aggrieved or injured the satisfaction had devolved to them. 

In the manner mentioned by Tacitus, these satisfactions were 
made b> the mutual agreement of the parties; hence in the 
codes of the barbarous nations these satisfactions are called 
composiiioiis. 

The law of the Frisians* is the only one I find that has left 
the pcojilc JTi that situation In which ever; family at vaiiancc 
was in some measure in the state of nature, and in which being 
unrestrained either by a political or civil law they mi^ht give 
freedom to their revenge till they had obtained satisfaction. 
Even this law wa« moderated : a regulation was made ' that the 
person whose life was sought after should be nnnioleftted in 
his own house, as also in going and coming from church ami 
the court where causes were tried. 

The compilers of the Salic law ■" cite an ancient usage of the 
Franks, by which a person who had dug a corpse out of the 
ground, in order to strip it> should be banished from society 
tilt the relatives had consented to his being readmitted. And 
as before that time strict orders were issued to everyone, eveti 
to the offender's own wife, not to give him a morsel of bread, 
or to receive him under their roofs, such a person was in re- 



ne^niF efi^ nee; imp)icilatln dufanl ; 
lullur tnLm tEkara bonticidium cerio 
«rinenf<trbni u pccorum nuoivro. r^ 
Ftpitouc iiLitUctifinem «aKcr»« do- 
muL —TtciluA* "Jc Horibui Germi- 
fiorum." 



kS^m thU hw l» ih« >d bile mi mbt, 
d<f*: Add VaUnar'i adcfilloa on ;ob- 

KC J, 




THE SPIRIT OF LAWS 



fpect to others, and othcrv in respect to him, in a atatc of sav- 
1^17 till an end was put to this state by a compomion. 

This exceplc<i, wc find that the f4ige« of the diflfcrent bar* 
btroiis nations thought oE dctermintnj- by themselves vrhat 
voukl have been too long and too dangerous to expect from 
ite mutual agreement of the parlieai. They loofc care to fia 
ihr valntf of ihe composition which the party wronged or in- 
jured was to receive. All those barbarian laws ure in this re* 
speci most arlmirflblT exAct; the several cases &re minutely 
diftlinffuiHhed.'* the circumstances are weighed, the law sub- 
stitutes Itself in the place of tlie person injured and insists upon 
Ibe same satisfaction as he himself would have demanded in 
cold blood. 

By the esiahltshing of those laws, the German nations quitted 
that state of nature in which they seemed to have lived In Tad- 
ttts's time. 

Rotharis declares, in the law of tlie Lombards,^ that he had 
increased the compositions allowed by aiKtcnt custom for 
wounda, to the cud that the wounded pcrsun being fully sat- 
isfied, all enmities should cease. And, indeed, as she Lom- 
banU, from a very poor people had grown rich by the conquest 
0I Italy, tlic ancient compositions had become frivolous, and 
Ttconcilements prevented- I do not question but this was the 
motive which ohli^^od Ihe father chiefs of Ihe conquering na- 
tions to ni;ike the different corlr« of laws now extant. 

The principal composition was that which the murderer paid 
to the relatives of the deceased. The difference of conditions 
produced a difference in the composilions.f Thrs iii the law 
o( the An^li, there was a composition of six himdred sous for 
the murder of an adding, two hundred for thnt of a freeman, 
and thirty for kiltinf; a bondman. The largeness, therefore, of 
tlie composition for the life of a man was one of his chief 
privileges; for besides the distinction it made of his person, it 
likewise established a greater security in his favor among rude 
and boisterous nations. 

This we are made sensible of by the law of the Bavarians:^ 
it i^ves the names of tlic Bavarian families who received a 



« Tik* !Ul1c IftVt Ate ai1mlt»bl« \n thia 
rapKt. ttr »*pfri.iUv thr utht 3. a. $. 

S«nd r. which rcEmccJ tii Itit tltnllu^ 

f vovk I- di. 7, 09t, If. 



f Svc II1C }tw or v!>c Anxn. t^L 1- tecL 
I, $. 3n<1 4: i>>l()- tri. Y- tf<. 6; iht ttw 

i^r tfic Bav4r{Ani« tH. i vtiflji*. ft vntl % 
inc] rhe Uw □! the FftiiAiti, lit iv. 
4 Til- >. chill. ■& 



■98 



MONTESQUIEU 



double composition, because they were rhe first after the Agil- 
olfingsT Tlie Agilolfings were of ihe ducal race, and it was 
customary with this nation to choose a duke out of that family ; 
these had a quadruple composition. The composition for a 
duke exceeded by a third that which had been established lor 
the Agilolfings. '* Because he i& a duke/' says the law^ *' a 
greater honor is paid to him than to his relatives." 

All these compositions were valued in money. But as those 
people, especially when they lived in Germany, had very liEtle 
specie, Ihey might pay it in cattle, corn, movables, arms, dogs, 
hawks, lands, cicJ The law itself frcquctitly determined the 
value of those things ; which explains how it was posMbIc for 
them to have such a number of pecuniary punishments with 
so very little money.' 

TIk^c lawa were, therefore, employed in exactly determining 
the difference of wrongs, injuries, and crimes; to the end that 
everyone might know how far he had been injured or offended, 
the reparation he was to receive, and especially that he was to 
receive no more. 

In this light it is easy 1o conceive, that a person who had 
taken revenge alter having received satisfaction was guilty of 
a heinous crime. This contained a public as well as a private 
oflfencc ; it was a contempt of the law of itself; a crime which 
the legislators never failed to punish." 

There was another crime which above all others was con- 
sidered as dangerous, when those people lost something of 
their spirit of independence, and when the kings endeavored to 
establish a better civil administration ; this was, the refusing 
to give or to receive satisfaction.^ We find in the different 
codes of the laws of the barbarians that the legislators were 
peremptory on this article.^ In effect, a person who refused to 

HC> 8 4nd u; IbM. kc. jB, Md iht 



rlfoiidr^ Oua. SasDnA. Hibalfnffua, 

J Thut iht Isw c( Ihb laturd Hit by 
• «<r|Akn turn ft lor-nc^. <if hy a ctrtHin 

ponlon <fi litid,-^" Ltvtt Tnji regii, 

inAl<t Oim onj# r^juUtiun lor wvfnl 
p«nrii*, 4-hin. nuUir S*# Kl«ik rht l>" 
**i \ht RirLL.-tri»nit, lit. jA, »tc- li. 1h« 
tjiw of thr llnviriant, lii ( **t* to ami 
ti. "Si durum n<in Vmff-rH ti'mtt aliam 
Ikfriihiam. mnadpin. tmwwam " Mr, 

mSte <hc Um of fbv LombaHK. book 
L lit. 4, Hc Ji; ibid. 1»ak I. tit- (k 



- - - -, - r*** 

Bu, chap, linii., coDliinin« ikA rnilruc- 
tign vlv<a lo ihA»* wlioia lie sent ioCo 



the ptovmwfc 



I Greirory tJ T/-uf«. tw«l VII. 



thn th" harl trfcn adjudaM ro _.„ 



hilV 



m. 



Atmrf ni »»ivinf MiiifatriinriH vlutevcr 
injiT'T ht miff he have MTcrwJftlA re- 
C*ivrd, 

Bv S#« rhe Tbw nl The Sti'^fU^ thmp^ 
tii ttc. 4i th« Uw of the Lomhtt^ 
booh 1, lU^ tf, H«B. I lad *: and iha 





THE SPIRIT OP LAWS 



<« 



receive satisfaction wanted to preserve his right of prosccutioD ; 
lie who refused to giv<; it left the right of prosecution to the 
person injured ; and ihU is what the sages had reformed in the 
tnstitulion« of the Germnnit, wherd^y people were invited but 
not compelled to com posit ions. 

I have )u$t now made ni<:nuon of a text of the Salic law, in 
vrhich the legislator left the party offended at liberty to receive 
cr to refuse s^tisfaclion: it h the law l>y which a person wlio 
had stripped a dead body was expelled from society till the 
relatives upon receiving satisfaction petitioned for his being 
readmitted.^ It was owing: to the respect they had for sacred 
things, that the compilers of the SaUc laws did not meddle with 
the ancient us3gc> 

It would have been absolutely unjust to grant a composition 
to the relatives of a robber killed in the act. or to tlic relatives 
of a woman who had been repudiated for the crime ol adultery. 
The taw of the Bavarians allowed no compositions in the like 
caACJ, but punished the relatives who :tought rcvcngc.y 

It is no rare thing to meet with compositions for involun- 
tary actions In the codes of the laws of the b:irbarian«. The law 
of the Lombards is generally very prudent ; it ordained * that 
tn those eases the compositions should be according to the per- 
son's generosity; and that the relatives should no longer be 
permitted to pursue their revenge. 

Clotharius II made a very wise decree; he forbade the per- 
son robbed to receive any clandestine composition, and with- 
out an order from the judge," We shall presently sec the mo- 
tive of this law. 



SO.— Of 'J^bat was afterwards called the Jurisdiction of the 

Lords 
Besides the composition which they were obliged to pay to 
the relatives for murders or injuries, they were also under a 
necessity of paying a certain duty which the codes of the bar- 



liw c4 the Alemini. tIi. 45. •««. 1 tnd 
» Thtt U11 liw ^VT ifiivc 10 the 
tMtf injured (o ftiht himitlf upon the 

r, Aii4 In il^f n^ii iffiniporl of p«t- 
Set altt tTt« CApitalinri ol 
Ourrvm^Hnr in ill* >ejf 77*. <l*ap. 
tnki.. in the ycAr Sn. rhiip. xjnh.. and 

■1*0 Th4t l-f lllT f*ti ^. vh>p> V. 

'The coinpUeT* t*l ibe law u( th* 



Ript»ri>n« ircm to hii-e »tFT?ned ihl». 
See ibe ficih uric of iFiotf Ihm. 

ySee ih* HrcrrQ of Tiwlllon. "dc 
[Knjii?jiEiE)ua Icnihvi*," ittt$^ j, 4, 10, 10^ 
«; the In* <yi (ho AttnU, tit. BiL ttt. 4. 

J BiLMjk 1 lit- ix- ipcc. 4. 

el dvcrerio cinurii t r«fti, e\ra aa- 

UUUI tU^" ^ll(L xi. 



tOQ 



MONTESQUIEU 



barian laws called fredtmfi I intend to treat of it at Lirge; 
and in order to pivc an idea of it, I begin with defining it as 
a recompense for the pnjtcetioti gnnied agaimi the right of 
vengeance. Even to ^ia day, frat in the Swedish language 
signifies peace. 

The admini*lralion of juittcc among those rude and un- 
polished nations wn* nothing more thnn granting to the per- 
son who h;id committed an offence, a protection against the 
vengeance of the party offendc<^, and obliging the latter lo ac- 
cept of the tatisfartinn due \n him: insomuch that among the 
fiemians, contrary to the practice of all other nations, justice 
was administered tn order to protect the criminal against the 
party injured. 

The codes of the barbarian laws have given U5 the cases ni 
which the fffda might be demanded. Wben the relatives 
couM not prosecute, they allowed of no frtdum; and. indeed, 
when there was no prosecution there could be no conipo^itign 
for a protection against it. Thus> in the law of the Lombards/ 
if a person happened to kill a freeman by accident, lie paid ttie 
value of The man killed, without the fwcdttm; because, as Iw had 
killed hfni involuntarily, it was not the case in which the rela- 
tives were alloHxd the right of prosecution. Titus in the law 
of the Ripiiarians.<f when a pcr,son wa* killed with a piece of 
woodt or with any instrument made by man. the imtrunient 
or tlic wood were deemed culpable, and the relatives sctied 
upon them for their own use, but were not allowed to demand 
the frcetnm. 

In like manner, when a beast happened to kill a nian^ the 
same law established a compositinn withotit the ircdum, he* 
cause the relaiiveB cf the deceased were not offended/ 

In fine, it was ordained by the Salic law/ that a child who 
had committed a fault before the age of twelve should pay the 
composition without the frtdum: as he was not yet able to t>ear 
arms he could not be in the case in which the party injured, or 
his relatives, had a right to demand satisfaction. 



I 



6 Wh^fi i\ 411 DM dcitrmiTKd by the 
r«w it »»■* «ripr«]]y x\c ihifcl ol wbit 
w civen lof ihe c^ifnprjttiioii. «■ tp- 
rif«n in tbe law dI chr Rifiuanant, 
ch»i». liAitin., which ii eni>ltiBed \j 
lh» third Ctpilulftty t%\ the yrar tij.— 
E4ivioa ol baluiui, (dpl L fv 51*. 



fBook I. 






lit, «. ace, 17, idittoii ol 



fTii, «&. S« »Su i^« la* of ibe 
LurnhiriK boult I. chjipi. ixL ine, ^ 
l.iiKlffmhmck^ edition, '* n Cftbillai 
cum pcdc." cTc /Tit jl^ ate <k 




THE SPIRIT OF LAWS 



lOI 



I 



I 



It was the criminal vhnt pnid tlie frtduni for ihf pracc and 
necunty of whiclj he had been deprived by hU crime, aiifl 
whach he might recover by protcctiun. Bui a chiltj did not 
hue ihis security, be was not a man ; and consequently could 
Dot be expelled from human society. 

Thii frcdum was a local right in favor of the person who was 
judge of the disirict-£ Yet the law of the Ripuarians^ for- 
bidc him to demand it himself: it ordatned that the party who 
bad gained the cause should receive it and carry it to the ex- 
chequer, to the end that ihcrc might be a laMitig peace, says 
Ibc law among the Kipusrians. 

The greatness of ihe frcduin wai* proportioned to Uie degree 
of protection: thus the fraium \or ihc king's protection was 
l^reater than whuE was granltrd fur the prulcctiun of the count, 
or of Ihc other judges.* 

Here f t-cc the origin of the jurisdiclion of the lords- The 
&eb comprised very Lirg* territories, as appears from a vast 
number of records. 1 have already proved that the Icinge raided 
no taxes on the lands belonging to the division of Ihe Frank« ; 
much le«s could ihcy reserve to themselves any duties on the 
lieis. Thow who obtained them had in thin respect a full and 
perfect enjoyment, reaping every possible emolument from 
tbem. And as one of the most considerable emoluments was 
the justiciary profit* (frriia)J which were received according 
to the UMige of the Franks, it followed thence that the penon 
seitcd of the 6ef was also seized of the jurisdiction, the exer- 
cise of which consisted of the compositions made to the rela- 
tives, and of the profits accruing to the lord; it was nothing 
more than ordering tlie payment of the compositions of the 
law, and demanding the legal fires. We find by the formularies 
containing corfirniaiion of the pcqK'tuity of a fuf in favor of a 
feudal lord,t or of the privileges of fiefs in favor oi churches,' 
Uiat the IicTa were possessed o\ this right. This appears also 






f Ab ftp pur* 
llttltiu II in lb« Tfar S^y 
Mmm iofllrl *n ri»i'n rfts<-> '•! f*"r- 

i " €*p>m\iitm Lncrrtl innL" chiSk 
)vti., lA Kflriifiiii inm. r p. trr ^1^4 ^1 

*■ Irtdum '" Of " iBfdV" in thv monu' 
BnHt af thff Sffl rut** n Unri»n hy 



Ihr trentiA ne^. a* iiii|i*ar4 fmm the 






<j[]i(ii]4ry <^f ChdTlfmsffiff. 
' Af viUm." vli«r« li# mnki fhri* ttrdt 

it See ihe t^. Pih. *nJ lyth forntulaa, 
hciik 1- (if M»tnilf[n. 

^Scr tht li. lil. iad 4ih lomtuia* od 
UaraiUuih book I, 




90t 



MONTESQUIEU 



from an infinite number of charters w mentioning a prohibi- 
tion to the king's judges or oflicer« of entering upon the ter- 
fjlory in ord^r to excrcUe any act of judicature whatsoever, or 
to demand any judiciary emolument. When the Wing's judges 
eotild no longer make any demand tn a district they never en- 
tered it : and those to whom this district wa5 left performed the 
same functions as had been exercised before by the judjjcs. 

The kings judges arc forbidden also to oblige the parties 
to give security for thtir appearing before Ihem; il bclonfifcd, 
therefore, lo the person who had received the territory in fief 
to demand this security. They mention also that the king's 
commissaries shall not insist upon being acconimod;tted with 
a lodging ; in effect, they no longer exercised any fimction in 
those districts. 

Tlie administration, therefore, of justice, both in the old 
and new fiefs, was a right inherent in the very fief Itself, a lucra- 
tive right which constituted a part of il. For this reason it liad 
been considered at all times in Jiia It^ht; whence lhi5 maxim 
aro»c, that jurisdictions arc patrimonial in France. 

Some have thought that the jurisdictions derived their origin 
from the manumissions made by the kings and lords, in favor 
of their bondmen. But the German nations, and those de- 
scended from them, are not the only people who manumitted 
their bondmen, and yet they arc the only people that efttah* 
lishc*! pntHmoninl jurisdictions. Besides, we find by the 
formularies of Marculfus « that there were freemen dependent 
on these jurisdictions iti the earliest times: the bondmen were, 
ihcreforc, subject to the jurisdiction, because they were upon 
the territory ; and ihey did not give rise to the fiefs for having 
been annexed to the fief. 

Others have taken a shorter cut : the lords, say they, and this 
is all Ihey say, usurped the jurisdictions. But are the nations 
descended from Germany tJic only people in the world that 
usurped the rights of princes ? We are sufficiently informed by 
history that several other nations have encroached upon their 




■* Sc« (be CfllI*ctloai of IhoBtf chuf- 

ilh volum* of ihc " fllvTarfan* el 
'rtfic«," publiihvd by vh« B«n«dkllrL« 

■ Sr« the jd. 4th. ttul 14th 1^ th« 
firtt bo«k. tmd Ihv Cbvttr d Oiark^ 



lofn. j» Anecdot. ^IHI^ 11. ** pnccipi- 

iiuoi ^tiim «l tervos. <t i|Ul •uper 
«4rwm tvrra* »iftn<i«i*' vt«. 




THE SPIRIT or LAWS 



>03 



fovrrcignf^ and yel we find no other instance of what we call 
the juriidiction of tlic lords. The origin of it is, therefore, to 
be traced in the usages ^nd customs uf the Gtmians. 

Whoever has the curiosity to look into Loysc&u c will be sur- 
prised at the manner in which this author supports the lords to 
have proceeded, in order to form and usurp their different 
jurisdictions. They Ttiust have been tht most artftil people 
ill the world ; they must have robbed and plundered, not after 
the manner of a military natior, but as the country justices and 
the attorneys rob one another. Those brave warriors must be 
said to have formed a general system of politics throughout all 
the provinces of ihc kini^dom, and in so many other countries 
in Europe ; Loyseau makes them reason as he himself reasoned 
inlii> ck>^et. 

Once more; if the jurisdiction was not a depcndci^cc of the 
M, how eome we everywhere to fitid, that the service of the 
M was to attend the king or the lord, both in their courts and 
in the army ? P 

2iJ~^f the T^rritoriol /urhdicHon of th€ Churches 

The churches acquired very considerable property. We find 
that our kings gave them great seigniories, that is, great iicfs; 
and we find jurisdictions established at the same time in the 
demesnes of those churches- Whence could so extraordinary 
a privilege derive its origin? It must certainly have been in 
the nature of the grant. The cluirch land had this privilege be- 
cause it had not been taken from it. A seigniory was given 
to the Church ; and it was allowed to enjoy the £amc privileges 
as if it had been granted to a vassal. It was also subjected to 
the same service as it would have paid to the state if it had been 
given to a layman^ aecording to what we have already observed. 

The churches had, therefore, the right of demanding the pay^ 
mcnt of compositions in their temtoryt and of insisting upon 
the frcdttm: and as those right* neccfisarily implied that of 
hindering the king's officers from entering upon the territory 
to demand these freda and to exercise acts of judicature, the 
right which ecclesiastics had of administering justice in their 






£^n Moru. Ducsnge oq th« word 
ominium." 



MOKTSSQUIEU 



own territory was called intmunUy, In tttc style of the (onnti- 
IaHcs, of the charters, and of the Capilubrieit.17 

The law o[ the Kipuarians f forbids the fn^edoin of the 
charch« j to holJ the assl^mh!y for aclmint^terin^ jtistict- in any 
othcf place than in the church where they were luaiiumitted/ 
The churches had. tliercforc, jumdicUon£ even over frcctncB, 
and held Iheir phcita in the earliest times cf the monarchy, 

I find in the '' Lives of the Sainls," « lliat Clt>vts gave to a cer- 
tain lioly person power over a district of six leagues;, and ex- 
empted it from ail manner of jurisdiction. This. 1 believe, is 
a (aliity, Ittt it is a falsity for a very ancient date; both the 
truth and the hciion contained in that hfe are in relation to the 
customs and laws of those times, aiid it i» these customs and 
laws we arc invcstigating-t- 

Clothanus II orders the bisliops or the nobihty who arc pos- 
sessed of estates in distaat parts^ to choose upon the veiy »put 
those who arc to administer justice, or to receive tJic judiciary 
emoluments,!*' 

The same prince regulates the judiciary power between the 
ecclesiastic courts and his ofHccrC' The Capitulary of Charle- 
magne in the year S02 prescribes to the bishops and abbota 
the f|uali Beat ions necessary for their officers cf jiKttre, An- 
other Capitulary of the same prince inhibits the royal offirers > 
to exercise any jurisdiction over those who arc employed in 
etihivating church lands, except they entered into that slate by 
fraud, and to exempt themselves from contributing to the pu1>- 
lic charges.^ Tbc bisliops assembled at Rhcims made a decla- 
ration that the vassals belonging to the respective churches are 
within their immunity." The Capitulary of Charlemagne in 
the >«ar 8c6 ordains that the churches should liave both crini* 



I 



HirvDllut, brok I, 



id alii forinufarkt of 




f " NV ahubi nisi ad roclFi(«ni. ubi 
niftiaii mm. milium m?<nT.'' itt. 

tVEii. ««e. y t«e ilio »c_ ig: Llndem' 

■ " Vltfl Si. GfTmcrl, Kplwopi Tolo» 
Unl apurt llolljincftanDB ]& Mitv'' 
t'&V'; al>o Ibt Itfv d( Sf, Mr)anlU4. 

n> in ihf Cntincil ol I'lriH. In l^e jnr 
Sif- " EpiBcapt TPl pottntf^, ti\\\ in 
sill* ponkdrni nstaniDUii, judicr* tvI 
niHu dMGttnor** d« 4lii« prortnciii 



Don li«4iriuAnt. fLT»i de loco qui Ja«eiti«n 

Scrvir^aAi ti 9\\i% reddani," *n. i^, 
« iJ^o the irth art. 1 

jf In. (he law al the Lorabfrdi, hnnb 
II. til, hU. chftp, \l. Ltnd«rnbr^cl;'« 
tdhion, 

tf " S«rH AMioDft, llbfllirU fflULiqui, 
T«t ilU novUcr UctL - ibid- 

4 IMUr in tT)» yvar l^ an. 7. hi 
\h9 CapiluUriM. p. itfL ''Sicul iJt* r« 
ri Uciil1dt««. in f|vri)U» Tfvuni cin-id, 
JtA e( i\\* lub conHcrtlicwr imtniiM- 
lDri>^ vunt il« quibui d«buil nUliUnJ 
fasulli." 




THE SPiRIT OF LAWS 



flos 



iikal ftitd civil jumc!iction over those who live tipon their lands.^ 
In fine, a» ihc Capitubry of Charlc* the Uald' distiTiguishi^g 
l>etwc>en the kingf junKtlicticn, thai of the lords, and thai of the 
church, I shall say nothing further upon this subject.cf 



22.-**rA4iJ 'A^ JurUdictions were established before the End of 
the Second Race 

It has hwTi prrtonded that the vassah usurped the jurisdic- 
tion in Ihcir scicniorics. during the confusion of the second 
taoe, Thoae who choose rather to form a general proposition 
than to examine it found it easier to say that the vassals did 
not possess than to diaicover how they came to pa'^sc^. Rut 
the jurisdictions do not owe their origin to usurpations; they 
are derived from tlie primitive csiablishmcnt. and not from its 
corruption. 

" He who kills a freeman/' says the law of the Bavarians, 
" shall pay a composition to his relatives if he has atiy; if not, 
be shall pay U to the duke, or to tlie person under whose pro- 
icafon he had put himself in his Hfciimc."' It is well known 
what it was to put one's self under the protection of another for 
a benefice- 

"He who had been robbed of his bondman/' says the law 
of (he Alemanit, " r.hall have recoume to the prince to whom the 
robber is subject; to the end that he may obtain a composi<- 
tion/V 

" If a cMmarius'' says the decree of Childebcrt, " finds a 
robber in another hundred than his own, of in the limits of our 
faithful vas^^als, and does not drive him out. he shall be answt^r- 
ablc for the robber, or purge himself by oath/'ff Tliere was. 
therefore, a difference between the district of the a^fraani and 
that of the vassats. 

«t ill* vuh cnnttrntl«ne Immviniatl* 

buiit He qu^6u* ilclicnl naJllliirq tj^ 

iTk- ill. tbji|h xiL., Lliijfiiibrwk'a 

fTiu ft). 

jr In th* yvar ^. nn% ii *n4 IJ. 

cmilDii qf Ihc Captfu1«Ti<« lay nulaiim. 
|h tQr '* P«H OQnHilinne <ohvtnif u( li 

ttcnU fixrtt er Invrnrrii, vet In ijnTUii*- 



k Xt ii a^Sdnd to the lav of Ihir Ha- 
TUluiii u-U H. Sec a\ni itie jil mt. 
LMadvmbnieli'* rihrjon, p, 441. *' lri> 
brml* ffRimuiq iubcnUuin ui ul hnbc 

tut •cc^nijc cjxrtjiTi itniitiAn. tt ip r'nk 
lamn qui hnbifanl \n ip»i> ccdckMB 
•t poa4. tim in iKcumU qtiam *t in 
nbiT«aULi varum. 

< In rh« year ^. *'tn tynmlo spud 
Cftttaiiiciim. An. 4. cdjliob of &fl,]ij»ku>, 
P' ^ 

4it9 Ih4 1*lidt fTTLifcn by ih4 hith- 
<m uttmhlrd »t Rhrimiij m th« yrtit 
IdL an- y, lit tUt Capunlkvita. Ka^imuj't 
•dnion. p. loC '^ Si^ut illr rei tt 
lunllaltit in qiiabd* vlvunt dir^ci, lt« 



etctltHAfn nijnjni* axp*lE<f* paiuai4t« 

«tA convictua raddat latioDaok ttc 



906 



MONTESQl'lEl 



This dcci^ of Chilitebcrt A cxpl^itu llic conslitution of 
Clothariu» uf t]ic satiic year, which being ^vcn for Uie «ame 
occasion and on the same matter differs only in the terins ; the 
constitution calling m truste what by the decree is styled in 
trrtnitiis MfUum ni>strorurtt, Mes»icur« liignon and Ducange, 
who pretend tliat m trusts signified another king's desm*sne, 
arc mistaken in their cnnji'ctDre.t 

Pepin, Kinj?^ of It^tly, in a constitution that had been marTe 
la ivell for tlic Franks as for the Lombards^ after imposing 
penalties un the counts and other royal officers for prevarica- 
tions or delays in the administration of justice, ordains that if 
it happens that a Frank or a Lombard, possessed of a fief, is 
unwilling to administer justice, the judge to whose district he 
belongs shall suspend the exercise of bis fief, and in the mean- 
time, either the judge or his commissary shall administer jus- 
lice* 

It appears by a Capitulary of Charlemagne,' that the kings 
did not levy ihe freda in all place*. Another Capitulary of the 
5amc prince 5how» tlic feudal laws'" and feudal court to have 
been already established. Another of Louis ihc Debonnaire, 
ordains, tliat when a pernon possessed of a ficf docs not admin- 
irtcr justice," or hinders it from being administered, ilic king's 
commissaries shall live in his house at discretion, till justice be 
administered. 1 sliall likewise quote two Capitularies of 
Charles the Bald, onr of the year 86i ; o wh^re we find the par- 
tictdar jurisdictions established, with judges and subordinate 
officers : and the other of the year 864,^ where he makes a dis- 

mThr aftioncl qI Ihe ytv Sij. Bmlo 

n Capittiltrr (juinTun annl flio^ irt. 
91, Rdtiviiu'* r>1i(W. n, 6ty ** tJt 
UE^iL^umiiut miui. aui vprtcopun. tntt 

pr'rliium invcn^rml. <]uj juftxiim Fa- 
cerf nnhiii rrl WLihibuJL de ifnlui rehv* 
vivinf iibiEiaiki in fo loco JulUju 

«> KitiL:ium in Cinijjvi iti llahiaitt*, 

foni- ii- r>. m, " tminflitUijnf »dv*c»lu* 
pro ommhiEiL i|f »ur arlvncMinn* . , , 
m foRVfnifniF m cum ininlclerUTihiu 

(rA hunc hinnum nnnlnJTil IfCliN 
. . . CHititfe* ■■ 

J'H.<]Jrluni Pi>trr]*r. art- iR, Italunat'i 
lUon. lorn. i\. p. iKi- " Si in fikcum 
noHntm v«l m ijiumcuncjuc immuni- 



lamrti prarifiiiiii nihj] Tontc* ctulctincloi 
■ ilT ii nrT<ipJ|ii^Tit lD'Tni>'na tiiuin coni' 
prrhfn<)cn(. inTr^Eram vihi comitoiUi- 
nnrm MT^fiinf. QitnA ^i in IiiihK 
fnrmJtur, mnlirrarm cDmiKiKEtnitiJi 
iMiUlt nilqiiiral, rt mpJtal* *"iK>t ■ 
Itiroiif/' arTL a «iiH )- 
i Sh the Glomr/ on lb* won 

f iBHTWd fo Ih* bw oi ths 1-om- 
budi, bdok It- UK hi- »c ik n ii 

UIUI. p, yu. Hft- TO, 

Jt " Kt ii fEimilAn Francn* nut I»nvO' 
hlftJiiB hftbrrnA l>mFficii]Ri iUBtiiiBm 
ficrpA Tiolufril, ill* iudBt in cujtii 

ficiurti ■uuTii, intcfi«», dum iw>c ml 

llic himc lAfr cif iTi« l^mlibfEJi^ book 
H- tiT. £t, ICC. i. ^liTcti reljkte* lo thf 
C«pltu!uT of Oiirlcnucae of ihc y«u 
779. *rt, H. 



mem tui ftljcujui pm^ntii pntnc»tfai 
vd propncUtcRi coofogoritr* •Go^ 




THE SPIRIT OF LAWS 



107 



tinction between hb own seigniories and those of private per- 
sons. 

\Vc have not the original grants of the fiefs, because they were 
rstablislied by the partition which i« known I0 have bcc^n made 
among the conquerors. It cannot, therefore, be proved by 
original contracts, that the jurisdictions were at first annexed 
to the fiefs : but if in the formularies of the confirmations, or of 
the translations of tbo&e ficf.^ in perpetuity, wc find, as already 
has been observed, that the jurisdiction was there established ; 
ihifi judiciary right must certainly have been inherent in the 
fief and one of its chief privilcjires. 

We have a far greater number of records that establish the 
patrimonial jurisdiction of the clergy in their districts, tlian 
there arc to prove tliat of the benefices or fiefs of the feudal 
lords ; for which two reasons may be assigned. The first, that 
most of the record* now extant were preserved or collected by 
ihe inonk^, for the U5C of their monasteries. The second, that 
the patrimony of the several churches having been formed by 
particular grants^ and by a kind of derogation from the order 
tstablished, tliey were obliged to have charters granted to 
Ihem ; whereas the concessions made to the feudal lords being 
eonsequenoes of the political order, they had no occasion to 
demand, and much less to preserve, a particular charter, Kay 
the kings were oftentimes satisfied with making a simple de- 
livery with the sceptre, as appears from the '' Life of St. Maur," 

But the third formulary of Marculfus sufficiently proves that 
the privileges of immunity, and consequently that of jurisdic- 
lion. were common to the clergy and the laity, since it is made 
tor both.ff The same may be taid of the constitution of Clo- 
tharius II-'' 



2j.-^G^ncrat Idea of ihc 'AhhS rf« Do^s Book on ihe Establish* 
mail of the Prtrnch Monarchy in Caul 

Before I finish this book, it will not be improper to write a 
tew strictures on the Abb^ du Bos's performance, because my 
notions arc perpetually contrary to his ; and if he has hit on the 
truth I mn^K have mi.iacd it. 






r 1 huve q1rf4i!r q"* 



hplBCcpi vet po- 



»s 



MONTESQUIEU 



TTii< performance has irapo**d upon a great many bccaust 
it is penned willi arl ; because the pi^int in question tft con* 
sLantly supposed ; because tbc more it is deficient in proofs the 
more it abounds in firohabihttcis: and. in fine, because an in- 
finite number uf conjcciurca arc laid doA-n as principles, and 
thei^ee other conjectures are inferred as consequences. The 
reader lorjj^cts he has been doubting; in order to begin to believe. 
And as u prodigious fund of erudition is interspersed, not in 
the system but around it, the mind is taken up with the append- 
ages, and neglects the principal. Besides, sucli a vast muliiiude 
of researches hardly permit one to imagine that nothing has 
been found ; the Len^h of the way makes us think that we have 
arrived at our journey's end. 

But when wc examine the matter iJioroughly wc find an im- 
menite colossus with earthen feet; and Jl ia l)ie earthen feet 
that render llie colossus inimcn»c. If the Abbe du Bos'& s>^ 
tcm had been vrcll grounded, he would noi have been obliged 
to write three tedious volumes to prove it ; he would hare 
foumi everything within hi* subject, and without wandering 
on every side in quest of what was extremely foreign to it ; even 
reason itself wouM have umJertaken to range thi* tr the same 
chain u-iih the other truths. Our history and laws would have 
toM him. Do not take so much trouble, we shall be your 

vouchers. 

■ 

S4,_TAr samt SubjM continued, RHIection on thf main Pari 
of iht System 

The Abbe du Bos endeavors by all means to explode the 
opinion tltat the Franks made the conquest of Gaul Accord- 
ing to his system our kings were invited by the people, and 
only substituted themselves in the place and succeeded to the 
rights of the Koman emperor*. 

Tills preten^i^Hi cannot be applied to the time when Ctovis, 
upon his entering Gaul, took and plundered the towns i neitlier 
is it applicable to the period when he defeated Syagrius, the 
Roman commander, and conquered the country which he held ; 
it cnn, tlicrefore, be referred only Jo the period when Clovis^ 
already master of a great part of Gaul by open force, was called 
by the choice and affection of the people to the sovereignty 
over tlw rest. And it is not enough that Oovis was received, he 



I 
I 



THE SPIRIT OF LAWS 



909 



must have been calkd; the Abb^ Ou Bos muxt prove thai the 
people chose rather to live uudcr ClovU than under the doniina*- 
lion o( the Rumana or under their own laws. Now the Ro- 
mans belonging to that part oE Oaiil not >ct invaded by the 
barbarians were, according to this author^ of two sorts: the 
firai were of the Arniorican confederacy, who had driven away 
ihc Emperor's officer:? in order to defend themselves again« 
the barba--iun>, and to be ^uvcnicd by their uwn law»; the 
second were subject to the Konian officers. Now, docs Uic 
abbe produce any convincing proof* thut the Rom^n-s who 
were stit) subject to tlte empire, called in ClovJs? Not one. 
Doc« h« pr^vG that the republic of the Arnioricans invited 
Qovit; or even concluded any treaty with him? Not at a\L 
So far from being able to tell us the fate of thi^ republic he 
cannot even k> niuch as prove its existence: and. notwitli* 
standing, he pretends to trace it from the time of Ilonoritia to 
the conquest of Clovis, notwithstanding; he relates with most 
admirable exactness fill the events of those times ; still this re- 
pubUc remains invisible in ancient author*. For there is a wide 
difference between provinf: by a passage of Zosimus i that un* 
dcr the Emperor Honorin5» the conniiy of Annorica i and the 
other provinces of Gaul revolted and formed a kind of republic, 
and showing us thai notwithstanding the dilferent pacifica- 
tions of Gaul, the Armorlcam formed always a particular re* 
public, which continued till tlie conquest of Govis; and yet 
t)ib i» what he sliould have demonstrated by strong and sub- 
stantial proots, in order to c»tdbhj»h hh 5)stem> For wlicn we 
behold a conqueror entering a country, and subduing a great 
part of it by force and open violence, and soon &ftcr find the 
whole country subdued, widiout :iny mention in history of the 
manner of its being effected, we have sufficient reason to be- 
lieve thai the affair eiidfd an it hei^an. 

When we find he has mistaken tins point, it is easy to per- 
ceive that his whole system falls to the ^onnd ; and as often 
as he infers a consequence from those principlcft that Gaul was 
not concjucrcd by the Franks* but that the Franks were invited 
by the Romans, we may safely deny it. 

This author proves his prlndple by the Roman dii^itics with 



J Bbt- lib. vL 

VOL. ii.— u 



que Gflltiarain provjodv/*— Ibid. 



UOHtESQUIEU 



wViich Oovis wai invented : he tmist* Hial Clovis siit eeede<! to 
Childcric his father in the office of magtster miiiti^. But thejic 
two offices are merely of his own creation. St. Remigius's letter 
to Ciovi5, on vrhich he fi^rourds his opinion, is only a congratu- 
btion upon his accession to the crown.M When the intent of a 
writing is so well known why should we give it another turn? 

Oovis. towards the end of the reign, was made Consul by 
the Emperor An^t^sius: but what right could he receive from 
an authority thai lasted only one year? it is very probable, 
says our author, that in the same diploma the Emperor Anas- 
tasiufi made Clovis I'roconsui- And, 1 say, it is very probable 
he did not. Wiih regard to a fact for which there Is no founda- 
tion the authority uf him who denies is equal to that of him 
who alTirtiia. But I liave also a reason for denying it. Gregory 
of Tours, who nicntiona the consitlatc, says never a word con- 
cerning the proeonsulate. And even tins proconsulate could 
have lasted only about six months. Oovis died a year and a 
half after he was eieated Conxul ; and we cannot pretend to 
make the proconsulate an hereditary office. In fine, when the 
consulate, and, if you will, the proconsulate, were conferred 
upon him, he waii already master of the monarchy, an<l all his 
rights were established. 

The second proof alleged by the Abbe du Bos \& the rcnun- 
ciatioi made by the Emperor Jii^tirian, in favor of the chil- 
dren and grandchildren of Clovis, of all the rights of the em- 
pire over Gaul. I could say a great deal concerning this renun- 
ciation. We may judge of the regard shown to it by the kings 
of Che Franks, from the manner in which they performed the 
conditions of it. Besides, the kings of the Franks were masters 
and peaceable sovereigns of Gaul ; Justinian had not one foot 
of ground in that country; the Western Empire had been de- 
stroyed a long time bcfoL-e, and ihc Eastern Empire had no 
right to Gaul, but as representing the Emperor of the West. 
These were rights upon rights; the monarchy of the Franks 
w&» already founded : the regiikticn of Ihcir establishment 
was made; the reciprocal rights of the pen;onji .ind of the dif- 
ferent nations who lived in the monarchy were admitted, the 
laws of each nation were given and even reduced to writing^, 

hTcdl iL book HL cbap. itOL ih jg*^ 



THE SPIRIT OF LAWS 



Ut 



t 



What, iher<*ff>re. could that fofeign renunciaiion avail to a gov- 
ernment alrcatlx cslabli^htrd? 

What can the abbe mcaii by making such a parade of tlie 
decUmations o( all tho^c bishops, who, amidst the confusion 
and total subversion of the slate, endeavor to ilalter the con* 
qoeror? What else is implied by flattering; but the weakness 
of him who i* obliged to flatter? What do rhetoric and poetry 
prove but the use of those very arts? Is it possible to help 
being surprised al Gregory of Tours, who, after nientioiiiiig 
the assassinations commilled hy Clovis, says, that God laid 
his enemies every day at his feel, because he walked in his 
ways? Vkltc doubts but the clergy were glad of Clovis's con- 
TCTSion. and ih^it ihey evt-n reaped great aOvatitages from ii? 
But who doubts at the ^ainv Uitkc that ibe people e?cpcr!i:uccd 
all the miseries of conquest and thai the Ri>man Government 
robmitted to tliat of the Franks? ITic Franks were neither 
willing nor able to make a total change ; and few conquerors 
were ever seized with sd great a degree of madness. But to 
render all the Abbe dr Bns's conscfiuence* tnie, they must 
not only have made no change among the Romans, but they 
must even have changed themselves. 

I could undertake to prove, by following this aullior's 
method, that the Greeks never conquered Persia. I should set 
out with mentioning tlie treaties which some of their cities con- 
cluded with the Persians ; I should mention the Greeks who 
were in Persian pay. as the Franks were in the pay of the Ro- 
mans. And if Alexander entered the Persian territories, be- 
sieged, took, ard destroyed the city of Tyre, it was only a par- 
ticular affair like that of Syagrius. But, behold the Jewish 
poniifTgoes forth to meet him. Listen to the oracle of Jupiter 
Amnion. Recollect liow be had been prcilieled at Gordium, 
See wliat a number of towns crowd, as it were, to submit to 
him; and bow all the satraps and Krandcrs come to pay him 
obeisance. He put on the Persian dress ; Ihia is Clovis's con- 
tubr robe. Docs not Darius offer bim one-half of his king- 
dom? Is not Darius assassinated like a tyrant? Do not the 
mother and wife of Daritis weep at the denth of Alexander? 
Were Qnintiiis Curlius, Arrian, or Phiiarch, Alexander's eon* 
temporaries? Has not the invention of printmg afforded us 




ttfl 



MONTESQUIEU 



gTxal light which those authors wanted ? ^ Such U the history 
of the '* EiiUbli^hmeiit of ihc French Monarchy in GauK" 



2S-— 0/ the Fftnch Nobility 

The Abb£ du Bos maintains, that at the commencement of 
our monarchy there was only one orJer of cUucns aniong llic 
Fr&nlcs. This asAcriion, so injunous to the noble blood of our 
principal families, h equally affronting to the three great houses 
which successively governed (bis realm. The origin of thdr 
grandeur would not, therefore, have been lost in the obitnirity 
of time. History might point out the ages when tlicy were 
ple^jeian families; and lo make Chtlderic. Pepin, and Hugh 
Capet gentlemen, we should be obliged to trace their pcdifrrcc 
among the Romans or Saxons, that is, among ihe conquered 
nations. 

TItis author grounds his opinion on llie Salic Iaw,w By 
that law> he says, it plainly appears that there were not two dif- 
ferent ordets of cilizenii among the Franks: it allowed a com* 
position of two hundred sous for the murder of any Frank 
whatsoever ; Jf but among the Romans it distinguished the 
king's guest, for wliosc death it gave a compoMtion of three 
Imtidred sous, from the Roman propnetor to whom k granted 
a huiulred, and from the Roman trn>utary to whom it gcive only 
a composition of forty-five. And as Ihc difference of ihc com- 
positions formed the principal distinction, lie concludes that 
there was but one order of citizens among the Franks, and ihiee 
among the Rom an s. 

It is astonishing that his very mistake diJ not set him right. 
And, indeed, it wouM have been very extraordinary that the 
Roman nobility who lived under the domination of the Franks 
should have h^d a larger composition, and been persons of 
much greater importance than ihc most illustrious among the 
Franks, and their greatest generals. What probability is there, 
that the conquering nation should have so little respect for 
themselves, and so great a regard for the conquered people? 
Besides, our author quotes the laws of other barbarous nations 
which prove that they had different orders of citizens. Now it 

ti Svff ifaff prtliTninufT diicDur*e of the 
AbM du Ba*. 

BfSfP Ihf " Etrabli'hwnl of llie 
Pr<ncli MonnKbri" v«L- HJ- book VL 



I 



rHt dirn [He iii^ liitc of itiis Uv, 
Atid Ihc Uvr sf ihfi RipuAilaak, tltk j 

and ^& 



THE SPIRIT OF LAWS a 13 

would be a matter of astonishment that this gcnrrrai rule should 
have failed only smoiig the Franks. Hence he viiight Vi h»vc 
conclucled dlhcr tliai he OiU noi rightly unUcisLancI or tliat he 
misapplied the passagts of the Salic law, wliicli i» actually the 
case. 

Upon opening iliis law, wo lind that the composition for the 
death of ati antru^tio^ that Ik, of the kinj^s vaj«al. was six 
hundred sous; and that for the death of a Roman, who was the 
king's guei;t> wa« only three hunc^re<t.« We find there likcA^ige 
that the composition a for the death of an ordinary Fr:*nk wns 
two hundred sous ;^ 2nd (or the death of an ordirary Roman, 
was only one hundred.^ For the death of a Roman tributary ,J 
who was a kind of bondman or frecd-nian, ihcy paid a composi- 
tion o( forty-five sous: but I shall take no notice of this, any 
more than of the eomposition for the murder of a Frank bond- 
man or of a Frank frccd-man, because this third order of per- 
sons i% out of the question. 

What docs our author do? He i« «iuite lileni with respect 
to the first order oi persons among the Franks, that is the ar* 
tide relating to the antrustios; an<l alterward^s upon compar- 
ing the ordinary Frank, for whose death they paid a composi* 
lion of two hundred »ou», with thcise whom he distinguishes 
under tliree orders among the Romans, and for who» draili 
they paid didcrenl eompoFiiions, he finds that there waa only 
one order of citizens among the Franks^ and that there were 
three among the Romans. 

At the abbe is of opinion that there was only one order of 
citizens smoiig the Frnnkft, it would have heen lucky for him 
that there had been only one order also among the Bnrgun- 
diani. because their kingdom constituted ore of the principal 
branches of our monarchy. But in their code* we find three 
aorts of compositians, one for the Burgundians or Roman 
nohility, the other for the Burgundians or Romans of a mid- 
dling condition, and the third for those of a lower rank in both 
nations' He has not quoted this law. 

* " Out in (nirte ilominlcl vn." Ill m S.iHc I**, ih 44< b^ & 

u. tec- 4. And ihii rdatFi to \ht ijrh n lt»'l.» irc- 4- 

fOfnmlnf lit ^Urv'nUm, " i\r^ if«ls fr lbl<!., *«ct, i-J, 

ArtiriHiluiir/' Sfp %\to iliiT iLitf ifi. ol t JhL<l., uc. is» 

Ihe Sillc Uw. Mct- i tad a. and ilic d ]bu\.. lec. 7. 

iiU* yn uiit Thi« tjiv of Ihv K^piPBrtDm. f " M i^ui*. iru^l^tKr <a«ii, <}tn(fm 

lit u. ind tht CAfrirulirr o\ DiAflc* opifituil Jturfuadlioni vH Roinaiict 

iQt Bald. " apo<1 f-irtiiiDun," tn ihc noblU ncuiKru. lolidoi Tlc^fiti uuin- 




914 




MONTESQUIEU 



It is Tcr/ cxtraonltrury to sec in what manner he evades 
tho»e pas&agcs which press liitn hard on all »cles.^ IE you 
apeak to him of Ihe grandees, lords, and ihe nobility, these, he 
#ayi, arc mere fji&tinctions of respect, an<I not of order; they 
ate things oi courtesy, and not legal privileges; or else, be 
says, those people belonged to the king's ronncil; nay, they 
poftsibly might be Rnm:m^ : but atiU there was only one orrler 
of citizens anion;; the Franks. On the other hand, if you speak 
to him of some Franks of an iulerior rank^ he says they are 
bondmen ; and thus he interprets the decree of Childchcrt. 
But I must stop here a litllc, to iiiquirc further into thi» decree. 
Our author has rendered it famous by availing himself of it in 
order to prove Iwo things: the one that all the compo^ieiors 
we meet with in the laws of the barbarian* were only civil lines 
added lo corporal punishments, which entirely subverts all the 
ancient records;* the other, that all freemen were judged di- 
rectly and immediately by the king," which is contradicted by 
an InAniie number of passages and authorities informing us of 
the judiciary order of tho^c timcM 

Tills decree, which was made in an assembly of the nation^^ 
ssys. t^at if the Judge finds a nolorious robber, he must com- 
n.and him to be lied» in order lo be carried before the king, 
si Prancus /urrri; but if he is a weaker person (drbiJi&r pcrscna)^ 
he shall l>e h:inged on the spot. According to the Abh^ du 
Eos, Fraticu^ is a freeman, dtbilwr Pfrsofux is a hordman. I 
shall defer entering for a moment into the signilicaiion of the 
word froncus, and begin wilh examining wtiat can be under- 
tioo<l hy these words, " a weaker person/' In all languages 
whatsoever, every comparison necessarily supposes three 
terms, the greatest, the less degree, and the least. If none were 
here meant but freemen and bondmen, they would have said 
*'a bondman," and not "a man of less power." Therefore, 



prrtnniK mflVRuJi, iim Burtuniliniiibiii 
Otftin iConum^ li draa excukauh tueriT. 
d«c«m volidi* eonpoaatur: Av infrnori- 
tm fvt^vtt**, <|uLnq(ic toiMik/' ahl t. 

Sand y of lit ^ of the Uw of the 

/ ''^ |;>i»ii]t>ho«tt tfi ih* Prrncli Hon' 
4i^hr/' n4. ^. tHwk vl. tihApt, It. 
■ltd t. 

IHidn Tul. J, cb*p' v-J'P' J^B "111 jJb 
Ibid. voL ^ bow VL diip. n. pp. 
trr ud JD& 



i Ibtd. p. ^30, and ia lb* loUowlav 
c^haMtr, pp. jio aAd jjBh 

J Sec fhc jfrli book ol Ihti ««rlEf 
chfcn. 4; «Dd tli« jitl IkhAl <lh*^ L 

t ' liaquc colonia e^nirrall «t ftA 
fcannjifittiui. vt udw^Im|UC ImJii 

ciiam »uam atnbv1«t «t IpEvm llswv 
luciii : lu HI wi rnncu* fu«tli 9i^ 
noiTfsm prvtvntiam dJr1(at«r£ M ^ 
dfbilioT prr»um runti. tn >oeo pfiste* 
tur/'— Capiiulv)*, «f B«luihi>'i edfaii^ 
tola L p. i» 



m 



THE SPIRIT OF LAWS 915 

dASior prrsona docs not iigniiy a bondman, but a person of a 
loperior cordiiion to u liondman. Upon ihis Atipposiiion, 
Froncus cannot mean a freeman, bui a powerful man ; and this 
woril is taken here in that accepution, because among the 
Franks there were atwa>a men who had ^rciiicr power ihan 
others in the stale, and it was more diflicnit (or the judge or 
count 10 chastise them. Tliis construction agrees very well 
with manv Capitularies J where wc find the cases in which the 
criminals were to be carried before the king, and those in which 
it was otherwise. 

It is mentioned in (he " T.ife of lj>ui» the Debonnaire," "■ 
written by Tegan, Ihat the bishop* were the principal cause ol 
the humihatiiDn of that Emperor, especially those w!io had heen 
bondmen and such as were born amon^ the barbarians. Tegan 
tbtis addresses Hebo, whom this prince had drawn from the 
slate of servitude, and made Archbishop of Rhcims: ** What 
recompense did the Emperor receive from you for so many 
benefits? He made yoa a freeman, but did not ennoble yon, 
because he could not give you nobility alter having given you 
your liberty."'" 

This passage which proves so strongly the two orders of 
citizens does not at all confound the Abb^ du Bos. He answers 
thus:<^ "The meaning of this passage is not that Louis tlie 
Debonnaire, was incapable of Iniroducing Hebo into the order 
of the nobility. Hebo, as Archbishop of Rheiuis, must liave 
been of the first order, superior to that of the nobility-" I leave 
lh« reader to judge whcihcr this be not the meaning of that 
passage; I leave him to judge whether chcrc be any question 
here concerning a precedence of the clergy over the nobility. 
"Till* passage proves only," continues the same wriler,^ " that 
the frcc-born tubject* were qualified a* noblemen ; in the com- 
mon acceptation, noblemen and men who are (rce-born have 
(or this lone Itme sie-nificd the same thine/' Whall because 
some of our burghers have lately assumed the quality of noble- 
men, shall a passage of the " Life of Louij. the Debonnaire " be 
applied to this sort of people? " And, perhaps," continues lie 

'&*# th* jfth bqnk at thii v-^rk. qucd impotarbil* «tl poii IJb*H4<4ni," 

chip, 20; atiA Ibc |(*( hatil. chap. S. — [bid- 

•■ ChtjK^ ^iii^ wnd hIiv- # " EttftbUihmtnr a1 ilia Franch %Xon- 

m"0 quilMn rrtriimfniianrm TvddS'^ Archsr.*' vol. j. hotk Vt. cbip. jt. p. 

lU*lI «U I4ffi( 1* hbrruA, dHi aobi)*(n» jtd- 

P Jbid. p, JZ& 



tiC 



UONTESQUIEU 



stilljV" Hebo had not been a bonclnun anion^ the Franks, but 
among ilic Saxons, or 6ome oilier Gcrnian pation, where itw 
p<;uplc were divided into several orders/' Thcn» because of the 
Abbe du Bos's " perhaps," tbcre must have been no tiobUity 
among the nation of I)k Franks. Bin lie never applied a '* per- 
hapit '' so hsi4]y. We have seen that Tegan distinguishes the 
bitliopfl/ vrho had opposed Louis the Deboonaife, some of 
whom tud been honflmen, and others of a bnrharottt nation. 
Hebo belonged to the foniier and noT to the latter. Be^ktes. I 
do not see how a bondmstn. such as Hebo, can be said to have 
been a Saxon or a German; a bondman has no family, and 
consequently no nation. Loui^ the Dcbonnaire manumitted 
Hebo; and as bondmen after their iiianumi&^ion embraced the 
law of their master* Hebo Imd become a Frank, and not a 
Saxon or German. 

1 have been hitherto acting offensively ; it is now time to de- 
fend myscif. U will be objected to mc, that^ indeed, the body 
of the antnijiios formed a di&lmct order m the state from 
that of the freemen; but as tlie fiefs were a[ first precarious, 
and afterwards for life, this could not form 3 nobleness of de- 
scent, since tbe privikge^ were not aortexed lo an heretlitary 
iief. Tliis b the objection whkh induced M. de Valois to tliiiik 
that there was only one order of citizens among the Franks ; an 
opinion which the Abhc du Bos has borrowed of him, and 
which he has abiEolulely spoiled with so many bad arj^umcnts. 
Be that as it may. it is not the Abbe du Bos that could make 
this obJectionH For after having given three orders *rf Roman 
nobility, and the quality of the king's gtiesl for the first, he 
could not pretend to say that this title was a greater tnark of 
a noble descent than that of antrmtio. But I must give a 
direct answer. The antmstios or trusty men were not such 
because they were possessed of a ficf, hut that they had a del 
given them because they were antruMtos or trusty men. The 
reader may please to recollect what has been said in the begin- 
ning of this book. They had not at that time, as ihcy had after- 
wards, the same fief: but if they had not that they bad an* 
other, because the fiefs were given at their birth, and because 



ftrcbt." vot J. bc^oh VI, chtp. I v. p, |ift- 
r''OfnoM ipticojn molevTl fncrunt 



coiidfllon? )i»non1'>i b^brbiL cum hi* 

^:i| <K tnrtjjtnt oananilktii ma hoc lat- 
glvtn. ondueil %mn"^" Dv t«*tlft 
udoviCl riu" cip^ xLiM- *itd JuiWs 



THE SPIRIT OF LAWS zij 

they were often granted in the assemblies of the nation, and, 
in fine J because as it was the interest of the nobility to receive 
them it was likewise the king's interest to grant them. These 
families were distinguished by their dignity of trusty men, and 
by the privilege of being qualified to swear allegiance for a fieL 
In the following book* I shall demonstrate how from the cir- 
cumstances of the time there were freemen who were permitted 
to enjoy this great privilege, and consequently to enter into the 
order of nobility. This was not the case at the time of Gon- 
tram, and his nephew Childebert; but so it was at the time of 
Oiarlemagne. But though in that prince's reign the freemen 
were not incapable of possessing fiefs, yet it appears, by the 
above-cited passage of Tegan, that the emancipated serfs were 
absolutely excluded. Will the Abbe du Bos, who carries us to 
Turkey to give us an idea of the ancient French nobility;* 
will he, I say, pretend that they ever complained among the 
Turks of the elevation of people of low birth to the honors and 
dignities of the state, as they complained under Louis the De- 
bonnaire and Charles the Bald? There was no complaint of 
that kind under Charlemagne, because this prince always dis- 
tinguished the ancient from the new families ; which Louis 
the Debonnaire and Charles the Bald did not. 

The public should not forget the obligation it owes to the 
Abbe du Bos for several excellent performances. It is by 
these works, and not by his history of the establishment of the 
French monarchy, we ought to judge of his merit. He com- 
mitted very great mistakes, because he had more in view the 
Count of Boulainvillicrs's work than his own subject. 

From all these strictures I shall draw only one reflection: 
if so great a man was mistaken how cautiously ought I to tread ? 

fChap. M. ircbTf*' voL 3, tKiok VI, cbip. Iv. p* 

t " E»ubiJshineDt of the French moe^ ju. 



BOOK xxxr 



THEORY OF THE FEUDAL UVWS AMONG THE 
FRANKS, IN THE RELATION THEY BEAR TO 
THE REVOLUTIONS OF THEIR MONARCHY 



I, — Changes in the Offices and in the Fiefs 

THE counts at fiist were scot into Utcir iJbtncts only for 
a year; but they »oon piarchascd the coniinuation of 
their offices. Of this we have an example in the reign 
of Oovis's grandchildren. A person turned Pconius was count 
in the city of Auxerre : a he sent his son Mummotus with money 
to Gontram, <o pre^'sil upon him to continue him in his em- 
ployment : the son (^vc the money for liimseU, and ohtained 
the father's place. The kings had already begun to spoil their 
own (avors. 

Tlioutrh by the laws of the kingdom the 6e£s were precarious, 
yet they were neither given nor taken away in a capricious and 
arbitrary manner; nay, they were generally one of the prin- 
cipal subjects debated in the national af^emblies. It is natural, 
however, to imagire (hat comiption crept into this as well as 
the other case; and that the possession of the liefs, like that 
of the counties, wa* continued for morey. 

I shall show in the course of this book,^ that, independently 
of the grants which the princes tnade for a certain ttoie* there 
were others in perpetuity. The court wanted to revoke the 
former grants; this occasioned a general discontent in the 
nation* and was scon followed by that famous revolution in 
French hiitory, wliose first epoch was the amaalng spectacle 
of the execution of Brunehaiit 

Tliat thi* *[ueen, who was daughter, alster, and mother of 
so many kings, a queen to this very day celebrated for public 
monuments wonhy of a Roman sdile or proconsul bom with 

a Gr*«ai> Af Tmir^ book IV, A^p. itllL iCtiath f» 

tlS 



-^ 



THE SPIRIT OF TJ\WS 



31$ 



an admirable genius foraflairs, and endowed with qualities £0 
Jong respccled, sliould sec herself of a sudden exposed lo so 
slow, so ignominiouH urid cruel a tonufc.c by a king whose 
authority was but indifferently established in the nation.f' 
«-ould appear very extraordinary, had *hc not incurred that 
nation'^ displeasure for sonic particular cau^c. C1othanu» re- 
proached her with the murder of ten kings; biil two of them 
Iw had ptit to death himself; the death of sLOme of die others 
was owing to chance, or to the villainy of anoiher queen;' 
and a nation thai hatl pernutted FredcgHfla to dio in her bed,/ 
tbat had even opposed the punishment of her flagiiioiis crime*, 
ouj^ht to liavc been very different with respect to those ol 
Brunehaul, 

She was put upon a camel, and led ignotiiinioutily throu|vh 
the amy; a certain sign (hat she had given f^cat offence lo 
those troops. Frcdcgarius relates, that Protarius^ Brune- 
haul's favorilc, stripped the lords of their properly, and filled 
the exchequer with the plunder; that he humbled the nobil- 
ity, and that no person could be sure of continuing in any office 
or employment. The amiy conspired against him, and he was 
stabbed in his tent; but Brunehaut either by revenging his 
death, or by pursuing the >aHie plan,A bccanc every day more 
odious to the nation.^^ 

Ootharius, ambitious of reigning alone, inflamed moreover 
m-ith the most furious revenge, and sure of perishing if Brunc- 
haul's children got the tipper hand, entered into a conspiracy 
against himself ; and whether it was owing to ignorance, or to 
tbe necessity of hh oirrnmiilance*, he became Bninehaut's 
accuser, and made a terrible example of that princess. 

Warnacharius had been the very soul of the conspiracy 
formed against Br;mchaul. Being at that time Mayor of Diir- 
ffundy, he made Ootharius consent thai he should not be dis- 
placed while he lived.; By this step the mayor could no longer 



xHi. 

rfrinihanm 11- »n ol Clillpeflt »n<l 
the imhet of Uiiobfrr. 

f_FrvcUEJiriU«'« " Clironicle."* th^Kt. 

/ S<p Cttkoty of TouFi, iior,y yiil. 

cun, Kftxi- 
t^' Kkvk illi ftiLi coMri per*on«i 

1cD> implcrc . . , ul aullkif ffptnrt- 



TiiT qui fff^um tintm trrlournl r-^rul^ 
1*1 •dFH mere. ""Fred eg- "'Chfofl. CJip* 
XBVM- in llie yrJf fa*, 

J Uu'l. cip. i\i-. in tbp ycftr fiij. 
^* nnrgundlv ['aronei. um cfiii»co]>i 
quBm t-vteri LeUi1e«, timcnUi iTfunp- 
clilMnn <t odUiffl in cum hatiraiei, 
(oniiUum Jmeniei." etc 

« tbiiJ. tap, ill,, ID Ihc jeu 615. 
" ^frtmenio « Clcptl^fio ■cc*ph* ne 
unniinm vlic tux ivmpohl^ua dc^nde* 




f» 



MONTESQUIEU 



Iw in Ihc Nim* case as the French lord* before thdt period ; 
and this authority began to render itself indepcndcm of the 
regal dignity. 

It was Brunehaul's unhappy rcprency which had exasper- 
ated the nation. So long 3£ thr law^ sub^stcd in th^ir full 

Tce, no one cotild grumble at having been deprived of a fief, 
since ihe law did not bestow il upon him in perpetuity. But 
when fids came to be accjuired by avarice, by bad practices and 
coTTOpiion. they complaineti of being divested, by trreKidar 
mean«, of thing* that had been irregularly acquired. Perhaps 
if the public good had been the motive of the rcYocalton of 
those grants, nothing would have been said; but they pre- 
tended a regard for order while they were openly abetting the 
principles of corruption ; the fiscal rights were claimed in 
order to lavish the public treasure : and grants were no longer 
the reward or the encourageincnt of services. Brunehaut, 
from a corrupt spirit, wanted tu refurni the ^ibttsesof the ancient 
corriiplioii. Her caprices were not owing lu weakness, the 
vassaU and the great officers, thinking thcmiehca in danger, 
prevented their own by her ruin, 

Wc arc fflr from having all the recordi; of the tranaactionn of 
those cbys; and the writers of chronicles, who understood 
very nearly as much of the history of their time as our peasants 
know of ours, are extremely barren. Yet we have a constitu- 
tion of Clotharius. given in the Council of Paris.* for the refor- 
mation of ahuses.' which shows that this prince put a stop to 
ihe complaints that had occasioned the revolution. On the one 
hand, he confirms all the grants that had been made or con- 
firmed by the ktrgs Iiis pre<JecessoTS ; "^ and on the other, he 
ordains that whatever had been taken fron: liis vassals should 
be restored to them.'" 

Thin wa.s not the only concession the king made in that 
council ; he enjoined that whatever had been innovated, in op- 
position lo the privileges of the clergy, should be redressed ;0 
and he moderated the inflocnce erf the court in the election of 



k Scpoit time «h« Bmiufciul'i etcco- 
tiu, fn th« year Aii. S«i BmluKtiu'a 
caMfoa of xUt Ct,pUn\itrt€i. p- it. 

iQnr fr-ntra micnii nniiiitm act! 

twrtal divmitat. D^nimaiai, [IjapcHur- 
rimtfl, ChritUi ptdUblc, |wr hwiu* 



daw/'— IbiJ. *rt. lA^ 

M IbLd. 4rt. 16. 

nlbuj, tit. fT. 

d " El quod per atlBHtf* «4 ft0« Dffl^ 
trrmintom <|| v«1 dehllU p4ry*liM»ttf 



THE SPIRIT OF UIWS 



«ffl 



lnthopft> He even reformed the fiscal atTaira, ordaininf: Oiai 
all the n«w censuses should be abotUhc^d,? and lliat they should 
not levy any toll established since the deaths of Gonlranir 
Sigebcit, and Chilp<rric;r that it, he abolished t^hatcver had 
been done rltiring fhe regencies o\ Fredegpnda and Bninc' 
haoL He forbade the driving of his cattle to grate in private 
people's gTOundu : j and wc shall prcscnrly see that ihe refurma- 
tiOD was fitiU more general, so as lo extend mxn to civil affairs. 

3, — How the Civil Govemmmi twu reformed 

Hitherto the nation had given marksof impatience and levity 
with regani to the choice or conduct of her masters ; she had 
regulated Ihctr differences and obliged ihctn to come lo an 
agreement among themselves- But now she did what before 
was fjuitc unejcamplcd ; she cast her eyes on her actual situa- 
Uoo, examined the laws coolly, provided against Ihcir insiifG* 
ciency, repressed violence^ and moderated the regal power. 

The bold and insolent regencies of Fredegonda and Brtine- 
haut had less stirpriscci than roused the nation. I'redcgonda 
had defended her horrid cruellies, her poisoning* and as^s- 
sinations by a rcpeiitton of the same crimes ; and had behaved 
in such a manner iUat her uulr^t^cit were r;tthcr uf a private 
than public raturc, I'Vcdcg^onda did more mischief: Brunc- 
haut threatened marc. In thia criniit the n;Ltion was not sat* 
islied with rectifying the feudal syticm; she was also deter- 
mined to Mcurc her civil government. For the latter waa 
rather more corrupt than the former; a corruption the more 
dangeroiLS as it was more invHerate, and connected rather with 
the abuse of manners than with that of laws. 

The history of Gregory of Tours exhibits, on the one hand, 
a fierce and barbarous nation ; and on the other, kings remark- 
able for the same ferocity of temper Tbosc princes were 
bloody, iniquitous, and cruel, because such was the character 
of the whole nation. If Oiristianity appeared sometimes to 
fiohcn their manners, it was only by the circumstances of ter- 
ror with which this religion alarniii the sinner ; the Church sup- 

l^lu Df. vpiBcaciixIerTiJCDl*. jti loco pvt mFrhtim penoos d doctrinv 
mi>u« ^itl « mtri>nAlli«iio *H^ifu«4 orittii^ur/'- tbid. vi- u 
oebM cum proifinciailbuSi % dm «t «" El ub1cuiiiqti« cctwu* nuvu* Lmpi* 

himi. p«« ordlnatioTKin pHncZpf* ovdi' rlMd. art. «. 

ntltiri V4l «tn* »E <J« palatLg ^lls^^u'- ' Ibid, fttl. 9%- 




MONTESQUIEU 

ported herself against (hem by the miraculous operations o( her 
saint*. The kingt would not commit sacrilege, becatisie they 
dreaded the ptini<ihmm1s inRicted on that species of g^ilt: 
but, this excepted, tither in the riot t>f ()assion or in the cool- 
ness of deliberation, tlicy perpetrated the most horrid crimes 
ind barbarities where divine vengeance did not Appear so tm- 
mediatcly to overtake the criminal The Franks, as I have al- 
ready observed, bore wiili cruel kings, because they were of 
the same disposition themselves ; they were not shocked at the 
imqiiily and extortions of their princes, because this was the 
national characteristic. There had been many Jaws estab- 
listted, but it was usual for the king to defeat tlicm all, hy a kind 
of letter called precepts/ which rendered them of no effect ; they 
were somewhat similar to the rescripts of the Roman em- 
pcrors i whether it be thai our kings borrowed ibis linage from 
those princes, or whetlicr it was owing to their own natural 
temper- Wc sec in Gregory of Tours, that they perpetrated 
murder in cool btood. and put the accused to death unheard; 
how they gave precepts for illicit marriagcfi ; * for transferring 
luccessions; for depriving relatives ol their right: ard, in 
fine, marrying consecrated vir^ns. Tliey did not, indeed, as- 
sume the whole legislative power, but they dispensed with the 
execution of the laws. 

Ooiharius's constitution redressed all these grievances; no 
one could any longer be condemned without beirg heard: t* 
relatives were made to succeed, according to the order estab* 
lished by law ; ^ all precepts for marrjing religious women 
were declared null;' and those who had obtained and made 
use of them were severely punished. Wc might know perhaps 
more exactly his determinations with regard to these precepts, 
if the thirteenth and the next two articles of this itecree had 
not been lost through the injury of lime, Wc have only ihe 
first words of this^ thirteenth article, ordaining that the precepts 
shall be observed, which cannot be understood of those he lud 
just abolished by the uimc law. We have anotlicr constitution 



f They wrtc drdm wliich (he Irlng 

tent 10 ilie ludeei to do or to iolef«ie 
ibliui mttnry to Uw- 

■ See (Jrtfforj of Tourt, book iV. p, 
«T, Both flUf hiifonr an-! ihe cSir^ern 
tft halt or Ibii; and ihf victeni of Lbeie 
ibiuc* AppMr* «!«p«dft!]x in C!mhi'> 



rTu«*# cofitttfbfJoPj irittrltd fa the *ijl. 
lloD of tTi« Ciplfbioiiei made Ut rcForm 
Iheni- l!A[ufri)ft'K odtliOQ, p. f. 
V An. ^L 



THE SPIRIT OF LAWS ^^wj 

hy the £ani« pHnccp* which U in relation to his decree, and 
correcU to the f^mc manner every article of the abuses of the 
prcccplfi- 

Tnie it is, that Hahizius finding this constitution without 
date, and without the name of the place where it was given, 
attributes it to Cbiliarius I. But I say it belongs to Clotharius 
!I, for three reasons: I, It says, that the king will preserve 
the ininiunitie& (jrantcd to the churches by his father and grand- 
father,' What immunities could the churches receive from 
Childeric, grandfather of Clotharius I, who was not a Chris- 
tian, and who lived even before the foundation of the mon* 
arehy? But if wc attribute this decree to Clotharius II we shall 
find his grandfather to have been this very Clotharius 1 who 
made immense donations ro the Church, with a view cf expiat- 
ing the murder of his son Crainne, whom he had oidcrcd to be 
bunied, loj^ether wiili his wife and cliildreii. 

X The abuses redressed by this constitution were still sub- 
sisting after the death of Clotharius I and were cvcti carried to 
their highest extravagance during the weak reign of Gontram, 
the cniel administration of Chifperic, and the execrable regen- 
cies of Fredegonda and Brunehaut, Now, can we imagine 
that the nation would have home with grievances so solemnly 
pTX)scribed, without complaining of their continual repetition? 
Can we imagine she would not have taken ibe same step as she 
did aftensards under Childcric 11,3 when, upon a repetition of 
the old grievances, she pressed him to ordain that law and cus- 
toms in regard to judicial proceedings should be compEied with 
I a« formerly?* 

In fine, as this constitution was made to redress grievances, 
it cannot relate to Clothanus I, sitice there were no complaints 
of that kind in his reign, and his authority was perfectly estab- 
Hshed throughout the kingdom, especially at the tine in which 
ihey place this consiiiuticn ; whereas it agrees extremely well 
with the cvcnis that happened during the reign of Clotharius 
II, which produced a revolution in the political slate of the 
kingdom. History must be illustrated by the laws, and the 
laws by history- 

irlo Bilmiui'i cdrlioD ot tli« Capifo- lo pcrff^rm any (unfijan in the tarH' 

luic^ iam. u fi^ J. lory, and wrrc rquiva1«(t1 hf thf cr«c> 

r In Ihr f<vti:*diTiff boak 1 hiva m'J« tivn or jtraM of a A«f- 

nrfiUun of Uif*c, Intmunitiei. which n Hv hcfan ta r«ign lawirdfl iht j^tt 

wt* ■vftfiit of judiriflt riflhti. ■n'! «on' 6yx 

Uiatc prohJbHiom lo Ibv n^iBl iuilMc* b Stx tlic " Life of Sl^ Lcgcr" 




I 



*t4 



MONTESQUIEU 



3- — Authority of Ike Mayors of ihs Pdate 

I noticed tliat Clollisrius II li&tj promised not to deprive 
W^nmcharius of hb cuajor's pUcc duiing life; a revolution 
productive of Another effect* Before xhsx time the mayor was 
the King's officer, but now he became the officer of ilie people ; 
he was cho£cn before by the King, and now by the nation. Be- 
fore the revolution Prolariu* had been made mayor by Theo* 
doric. and Landcric by Fredegonda;* but after that the 
mayors ^ were chosen by the nation.' 

Wc mu&l not, therefore, confound, as some authors have 
done, these mayors of the palaco will) stich as were pOJS*esie<l of 
this dignity before the death of Dninchaut ; the King's mayors 
with those of the kingdoin. We %ec. by the hw of the Bm^un- 
diana that among them the office of mayor was not one of the 
most respectable in the st^itc ; f nor was it one of the most etni' 
neiit under the first kings of the Kranlcs-jr 

Clolharius removed the apprehensions of those who were 
possessed of employments and fiefs ; and when, after the death 
of Warnacharius,A he awketl the lords assembled at Troycs, 
who is it they would put in bis place, they cried out they would 
choose no one. but Miing for his favor committed themselves 
entirely tnto his hands, 

Dagobcrt reunited the whole monarchy in the same manner 
a:; hi* father; the nation had a thorough confidence in him, 
and appointcfl no mayor. This pHnce, finJtng himself at lib- 
erty and elated by his victories, resumed Bruneham'* plan. 
Hut he succeeded so ill. that the vassals of Aiistrasia let them- 
selves be beaten by the Sclavoiians. and returned liomc: so 
that the marches of Austrasia were left a prey to the barbar^ 
!an*.< 



Fnocdrum, 






Jubrtitt." elC' - FfciJcKPriuh cUAp. 
»nii.. Ill UlE |f«r 6u4. 
^"Oe»L« rcfuw ¥t% 

t Gh Prcil«:||«rma'« ** CI'T'^htrl*, 
d»p» Ut., in ihc ytu «j6i, and 

In Ihe jrtf 6iiS. flflfl chop. cv.. In fhf 

EffinlurJ, " Lrfr ol Onrkmiant,' 
vhifj vlvili " G«>la f*tf"m Ftoofi- 
tum " clmt). kIv. 

/ Krr iTtr Uw f4 tht BMttfVfii1l«i« In 
prvfui ind ihf Hnnd luppltmrru Id 
i!t-i Itw, III ij 

( S*e Grttfory ci Taun, biM>k IX' 



H " Eo mno- ClotAnui cum pr«Fcnibvi 

fl Iciiiiilfui Durirun'IiiB Tric«Manj» eoh- 
uni^tlur. cum corum «HrT kolliciiui #1 
I«Uvrt| Jan. Wftrii4cl>«FLo di>n»*i.«|iuin 
n «|ui hfiHorlA cndum lublimirc: ikI 

Quiquim lactic miiorTm JomAi dJcrra, 
nci* tr*l4Ain oTiDinr ;i«lcn'«t. ci<m ti%^ 
tmniegcjc'" — FfcJra*r^^*i " Chn>n» 
iflr." pMp, M"., in l1i< yt%r &iC^ 

i^'liiam victorkm Qunm V^ciitt tnn- 
<r* l^fBn4t>4 invrufrvnt. Don laAluin 
SclannoTUin fnnitiKto obilnuii, ^aitBTum 
ft^mtntBliv Ai'«ri«inrmfL *\wrn iv ««■- 
itfb«ni cum Di^obrrio i^jJfiim inm^ 

1h 1h* ytir ^gx 



THE SPIRIT OF LAWS 



"S 



He drtCTTnincd then to make an offer lo the AustrasUns of 
resigning that country, together with a provincial treasure, 
to his son Sigcbcrt, and to put the government ol the kingdom 
and of the pahce into the liand$ of Cunibert« BUhop of Co* 
k>gne, and of the Duke Adalgi^usi. Frt-dcganu^ doe^ not 
enter into the particufars of the conventions then made; bat 
the King confirmed them all by charters, and Austrasia was 
immediately secured from danger./ 

Dagobert, finding him^H near his end, recommended his 
wife Nentechildifi and his son Clovis to the care of ^ga. The 
va«saU of Ncviiria and Burgundy cliose this young prince for 
ilwir kjDg> Ais^ and Nonlcchildia had the government ol 
,the palaee:' they re*lored whatever Dagohert had taken ;m 
and complaints cca£ed in Ncusiria and Burgundy, as they had 
ceased in Auairaaia. 

After the death of -tga. Queen Ncntcchildts engaged the 
lords of Burgundy to choose Floachatus for their mayors 
The latter despatched letters to the bishops and chief lords of 
the Kingdom of Burgundy, by which he promised to preserve 
their honors and dignities forever, that is, during life.o He 
confirmed his word by oath. This is the period at which the 
author of the Treatise on the Mayors of the Palace fixes the 
admin isiratjon of the kinf^dom by those ofTicers.p 

FredcgariuA, being a Curgundian, has entered into a more 
minute detail as lo what concerns the mayors ol Bui^undy at 
the time of the revolution of which we are speaking than with 
regard to the mayors of Australia and Neustria. Ilut the con- 
ventions made in Burgundy were, for the very same reasons, 
agreed to in Neustrla and Austrasia, 

The nation thought it safer tti lodge the power in the hand« 
of 3 mayor whom ihc chose herself, and to whom she might 
prescribe conditions, than in those of a king whose power 
was hereditary. 



Vlfti^a* UTllirer (^tftamtt aotcuntar." 

l«n» ,. In itir yeir fiji. 
Ir Frcrl^riftw*'! "' Oiftwi^elf,'* chip. 

■ Ibid- <Mp. liiT., En FhF jttt 6yj. 
Hlb^' ctik(K UmU.. ia thtfcmttUt. 
• Ibid <Ap- IukU. " Floachtiui 
Vou 11^1$ 



cunciJi dacJbui ■ ngno Burtuodiit, i«u 

vt pvnttfi'ribiia, r>rr vpTtrf^lt* ciijiih << 
MCrun^orii flrniivit unlcu^rjur ffadum 

qvl full ninu Darobtftl mclrti rtB^t. 

rum dccidtn« prr miJoT^m domQi, 
c<tfiif orjtairt"— " Dc Uajohbu* D<^ 




t26 



UOKTESQUieU 



4^0f thf Genius of the Nation in regard to Iht May^s 

A i^vernnient in which a nation that had aa hereditary king 
chose a person lo exercise tlie repral authority seems very ex* 
traorrfinary ; but, independently of the circumstances of the 
times, I apprehend that the notions of the Pranks in this respect 
were derived from a remote source. 

The Franks were descended from the Germans, of wliom 
Tacitus says fl that in Ihe choice of their King they were deter- 
mined by his noble extraction, and in that of their leader, by 
his valor. This gives us an idea of the kings of the first race, 
and of the mayors of the palace; the former were herediury^ 
tJie latter elective. 

. No doubt but those princes who stood up in the national 
assembly and offered ihcnisclvcs as the conductors of a public 
enterprise to such as were willing to follow them, united gen- 
erally in their own person both the power of the mayor and 
the king'* authority. By the splendor of their descent they had 
attained the regal dignity: and ihcir military abilities having 
recommended them to the command of armie)", they rose to the 
power of mayor. By the reeal dignify our first kings presided 
in the courts and assemblies, and enacted laws with the na- 
tional consent: by the dignity of duke or leader, Ihcy under- 
took expeditions and commanded the armies. 

In order to be acquainted with the genius of the pnmiiive 
Franlts in this respect, we have only lo cast an eye on the con- 
duct of Argobastcs,*^ a Frank by nation, on whom Valentinian 
had conferred the command of the army. He confined the 
Emperor to his own palace; where lie would suffer nobody to 
speak to him, concerning cither civil or mitltary afTAirs. Argo- 
bastcs did at that time v^hat was afterwards practi^e^ by the 
Pepins. 

S-—ln what Manner the Mayors obtointd the Command of tJu 

Amiiet 

So long as the kings commanded their armies in person the 
nation never thought of choosing a leader. Govts and his four 
sons were at the head of the Franks, and led them on through 






THE SPIRIT OF LAWS 



13J 



^ ferie« of victon«, TheoUaW, »on of Theodobcrt, a young. 
w«alc, and sickly priticc, was tlic first of our kings who con- 
fined himseU to 1m paUctJ H« refused to undertake an ex- 
p^liTion into Ilaly against Narscs. and had tlic mortificatton 
o( seeing the Fninks choose for ibemschcs two cliieU, who 
led Uiem ai^inst the encmy.l Of the four sons of Clotharius 
I, Gontrain wat the IcaM fond of commanding his armies ;h 
the other kin^ followed this example ; and> in order to intrust 
the command wiihotii danj^er into otitcr hands, they conferred 
it u|>on several chiefs or dukes.t' 

Innumerable were the inconveniences which thence arose; 
all discipline was losi» ito one would any longer obey. 'Hie 
armies were dreadful only to their own country; they were 
laden Willi 5poiU before they li»d rcachcdthc enemy. Of these 
mbcrlcs wc ha\e ft very lively picture in Gregory of Tours.w 
"llow shill wc be al>lt- to obtain a victory," said Gontrcm^ 
" we who do not so much as keep what our ancestors aequired ? 
Our nation is no longer the iame. . . ." Strange that it 
should be on the decline so early as the reign of CiovU's grand* 
children I 

It was, tlicrefore. natural they should determine at la^t upon 
an only tluke. a duke invested with iin authority over this 
prodigious multitude of feudal lords and vassaU. who had now 
become strangerti to their own engagements; a duke who was 
to establish the military discipline, and to put himself at the 
head of a nation unhappily practised in making war against 
itself, lliis power was conferred on the mayors of the palace. 

Ttkc original function of the mayors of the palace was the 
management of the king's household. They had afterwards, 
in conjunction witli other ofljcers, the political government of 
Gcfs; and at length they obuin^ the sole dispoml of Iheuijr 
They had aUo the ailministration of nulitfiry afTairs, and the 



t 



iln Ihc ftat ifh 

mHu id fee* ipvTHFu minimf 7»]nf«hal 
bvlli r«n* ^1* ••.r^rmi'i's inj^iiini " — ■ 
Ai^tUff, book I G"jo»7 fl^ Tourt. 

C& iv: «W ^i. 

aContntfi oM nnt rten march ainunti 
vho vtylffl hinwf&f an-n pI 
■ad oUim^ bii Htrar* ol 

-01, 

\tnct tKf fli* numlm of tv*nly. 

VlII, chjjN Jtrm. mnd 
[. chftp- iii- DA«(ifKrt. wbo 




the i^mp K^lt^v. 4r>J trrn* ajiaioai tk« 
r.ticnn* tffn <]imM ami «vrfil roiint* 
wtm h«il nr. -Jul.** "vpf lliern.— Fndi- 
e%ini*'t " Chronicle." rhnpi. lutvlii-, iA 

awOrrtwrr of TnUM. hool VIII- chip* 
nv . and bonk X. chAp. ill. Ihld. b«fe 
Vllt. chip, u«- 

X t bid. 

jSfff the ■KTnd tn;>pl«rn«irl to th' 
l^v of ihr lliirffiindiinf. tit, 1^ and 
r-rcffdrr of T^un, mmr IX. ch*Pi 




st8 



MONTESQUIEU 



command o( llic armies; crcploj-mciits necessarily connected 
wilii t!ic other two. In tho^e days it was much more difficult 
lo raise than to command the armies ; and who but the dis- 
penser of favors could have this authority ? In IhU martial and 
indcpcndcnl nation, it was prudent lo invite rather than lo 
compel: prudent to give away or to promise the fief* that 
■hoiild hap|>cn to be vacant by the death of the possessor ; pru- 
dent in fine to reward continually, and to raise a jealousy with 
regard to preference*. It was, ihcreforc. nghi that the pc^^on 
wlio had ihc siipciinlcndeacc of the paUce should also be gen- 
eral of the army, 

6^^€Con4 EfQck cf th^ HumUialion of our Kings ef Iht first 

RqC€ 

After ihc execution of Brunchaut the mayors were admlrt- 
Utratora of the kingdom under the sovereigns ; and though 
Ihey had the conduct of the war, the kings were always at th« 
head of the armies, while the mayor and tl^c nation fought 
under their comnuind. But the victory of Duke Pepin over 
Throdoric and his mayor' completed the degradation of our 
princes: A and that which Charles Marlel obtained over CbiU 
pcric and Iiis Mayor Rainfroy confirmed it.* Austrasia tri- 
umphed twice over Neustria atid Burgundy ; and tlie mayor- 
alty of Australia being annexed as it were to the family of the 
Pepins, this mayoralty and family became greatly superior to 
all the rest, Tlic conquerors were then afraid Icsi some person 
of credit should seize the king's person, in order to excite dis* 
turbances< For this reason they kept them in the royal palace 
as In a kind of prison, and once a year showed them to the 
pcojile,' Tlierc they made ordinances, but these were such as 
were dictated by the mayor ; d ihey answered amt>assa<]ors, hut 
the mayor made the answers. This is the time mcnltc^ncd by 
hEstorians of the government of the mayors over the kings 
whom they held in subjection.' 

§ Sh tti« " Annala of U<er. yttrt 

mr ind «8a 

« " tlU< qul^em itomini fcrim i™- 
Ih'*"^'* «iic-— " Ail flail uf Utu," yo* 

f^Mrmque lUL rrtMUm tub <ua 
i^Gt difOdkO Ceatulcoai,'* Ub. », 



" at mpoiiM qii> cnt «doctiJt rd 

t " ADfhfc!» o( Meu.'" wrao *qi. " A* 
nc pfinopiiDt I'lppiDi iDpff Tbco4i>ri- 

Cm . . . 'Annkli' o| Fold, or of 
iirlthuh npptftfli du FnuMorM 
oUlnuLi Rnin nwKoivo pa 



THE SPIRIT OF LAWS 



flS9 



Tbt eKtravagant passion of the nation for Pepin's family 
went so Jarthdl they chose one of fiifi grandsons, who was yet 
an inbnT, for mayor ; / and put him over one Dagobert, thai 
is one phantom over another, 

J, — 0/ the great Offices and Fiefs under the Mayors of the 

Pahc€ 

The mayors of the palace were little disposed to establish the 
imcenain tenure of place--* and offices ; for» indeed, ihcy ruled 
only by the protection which in this respect ihcy granted to the 
Dobiliiy. Hence the great ofHccs continued to be given (or life, 
and this usage was every day more firmly established. 

But I have some particular reflections to make here in re- 
spect of fiefs: I do not question but most of them became 
hereditary from this time. 

In the treaty of Andcli^jr Gontram and his nephew Childe- 
bcrl engage to maintnin the donations made to the vassals 
and churches by the kin^ their predecessors; and leave is 
given to the wives, daughters, and widows of kings to dispose 
by will, and in perpetuity, of whatever they hold of the ex- 
chequer,* 

Marculfus wrote his formtilartes at the time of the mayors.l 
We find several in which the kings make donations both to the 
person and to his heirs;; and as the formularies represent the 
common actions of life, they prove thai part of the tiefs had 
become hereditary towards the end of the first race. Tliey were 
lar from having in those days the idea of an unalienable de- 
mesne; thi& h a modem things which they knew neither in 
theory nor practice. 

In proof hereof we shall presently produce po&itive facts; 
and if we can point out a time in which there were no longer 
any benefices for the army, nor any funds for its support, we 
must certainly conclude that the ancient benefices had be<?ii 

f*^ pMhve ThcudoiMui fiUua eju* 

mm pr*4l'<i<^ r«fr* Dta-S'beno, mtt\^*' 
domui piTatti ciTvciui cft'' The 
" AiaonjnvbAui CAniinuvtor ** cf Ff«dv- 
nnv4 in (he jftr ;i4< ^^^^ «lv. 

* C»l»<1 l>* f'T^^ofy &i Tffiirt^ book 
IX. Sfc ilto ihe Edict of Clotluului 

A " Ul p( quM at a^kt fisral4but Vfl 

■Mcfebut Itlttr {rr^viiILn (»r>i ftrbitrii 
V voJUQUK J«C«rc »Ut CUiquam COO- 



con«rvtlur." 

■ Sk Ibv *|tb and the ^lh oi i)je ^ril 
book, 

f S?e lb« ttlh (orfnuli ol (h# tint 
book, whhch i> tquafty ■pplioble lo 
the n>d e<iif*-t if Even dirccl Ln rer- 
peiuity. oT ai'tn it ftrnt ni i broefice, 

Bb lllo tut a fiftci> noftro furl jjoneui.*' 
See ftlio the i?lb rormuli, ibid. 




9JO 




MONTKSQUTEU 



alienated. The time I mean U that of Charles Martel, who 
founded sonic new hcfs, which wc should carcfuUy dUtinguith 
trom those of the earlier date< 

When tfic kings txrg'an to make grants in perpetuity, either 
through the torrupti^^n which crept into tiic govtmrocm or 
hy reason of Uie coiulituiiuii jl^clf^ whicli cuiuiiiually ubligcd 
tho9c princes to conier rewards, it was natural they shouk) 
begin with giving the perpetuity of the fiefa, rather than of 
the counties. For to deprive themselves of tome acres of lanJ 
was no great matter; but Eo rerounee the right of disposing 
of the great offices was divesting themselves of their very 
power 

8. — In wJwt Manner the AUodicl EstaUs were changed into 

PUfs 

The manner of changing an 3lk)dial estate into a fief may be 
seen in a formulary of Marculfus> The owner of the land gave 
it to the king, who restored it to the donor by way of usufruct, 
or benefice, and then the donor nominated his heirs to the 
king. 

In order to find out the reasons which induced them thus 
to change tlie nature of the allodia^ 1 must trace the source of 
Ihe ancient privUc^ci of our nobility, a nobility which for 
these eleven centuries has l>cci: enveloped wiih dust, with 
blood, and with the marks of toil. 

They who wcic seiiwl of fieft* enjoyed very great advantages. 
The couiposiiioa for ihc injuries dene them was greater than 
that of freemen. It appcaid by the forroulanes of Marcutfus 
tliat it wa* a privilege belonging to a king's vassal, that who- 
ever killed him tliould pay a composition of six hundred sous. 
Tliiis privilege was established by the Salic law,' and by that 
of the Ripuannntt ; m ;in(I while ihcM lwr> hws ordained a rom- 
poMtion of six hundred sous for the murder of a king s vassal, 
ihey gave but two hundred sous for the murder of a person 
freebom. if he was a Frank or barbarian, or a man living under 
the Salic law: "and only a hundred for a Roman. 

This wa^ not the only privilege bclonpig to the king's vas- 



i 



Jfit 44' 5^ aW MA. ^ MCfl. 1 ud 



■ ^*r i1«n thr 1" ^ *h^ 11Jpii*fl4«ia, 

lit. r* «ad tb« Salio law, tit 41, aniL 




THE SPIRIT OF LAWS 



«3» 



lali. Wc ouglil to know tlijit when a iiun waa sumixboncd iu 
oiMin« And did not make hLs appearance nor obey tbc judge's 
orderSr I>c was called before the king;" ftnd U he pcruitcd in 
liis contumacy, he was excluded from the royal protection,^ 
and no one wax allowed to entertain him, nor wen to give 
hini a morsel of bread. Now, if he wa» a penon of an ordinary 
condition, his ^Do<b were conlncatcd; 4 biTi il he was the king's 
vuflal, they vrere not-' The first hy hU coniimiacy wn* deemnl 
suffidcntly convicted of the crinic^ the second was not : the 
former for the smallest crimea was oblijfed to undcrii:o ilie trial 
bj boiling water,' the latter was condemned to this trial only 
in the case of murder' In fine, the king'i vasjia] coutd not be 
compelled to swear in court against another vassal-H These 
privileges were continually increasincr, and the Capitulary of 
Carloman does this honor to the king's vassals, that they 
should not be obliged to swear in person, but only by tlie 
month of their own v^t^^lSHf Moreover, when a person, hav- 
ing these honors, did not repair to the army, his punishment 
was lo abMatn from flesh-meat and wine as lung as he had been 
absent from the service; but a freeman'*' who ncKlccted to 
CoUow his count was fined sixty sousj'^ and wits reduced to a 
state of servitude till he had paid it. 

It is very natural, therefore, to believe that tliose l^ranles 
who were not the king's vassals, and much more the Romans, 
became fond of rnTcring into the state of vaj^sakge : and that 
they might not be deprived of their demesnes, they devised 
the usage of giving their aitotiium to the king, of receiving it 
from him afterwards as a fief, and of nominating their heirs. 
Tilts usage was continued, and took place especially during the 
times of confusion under the second race, when every man be- 
ing in want of a protector was desirous of incorporating him- 
self with the other lords, and of entering, as it were, into the 
feudal monarchy, because the political no longer cxistcd,y 

This contiriied under the third race, as we find by several 



SaIec Uv, tifL S9 And 7^ 

fi " Kitrt itrmDnem recti." — SlllQ 

law. tiCi, *fi and ;&. 
g>aik fun. tu, ^ ho. u 
ribii!, tif. A *H. I. 

ffbld. til. 7*, wc, I, 
■ IbHL til' 70. K9* & 



« " ADud venSt fulAiIuim,"' In ilie 
year 1X3. irtt. 4 mn'l ir. 

wCApiiuUry uf Uurlcmignc; ie the 
jrnr fn. tn% t and ^ 

jT " Mcfitianffum " 

y'^ Nan kTiClrrini rctlqatt hiticijitiiil*" 

Sri LambcTr d'Ardrea ia Uugiam* oa 
I wort -ai&d*" 




»St 



MONTESQUIEU 



cheers;' whether they gave their aUcdium, and resumed it 
by the same act ; or whether it was declared an ailodmmt and 
afterwATiLs acknowledged as a &cf. These were called fieEs of 
rcsuinptton. 

Tlib tJuL'3 not imply that ilio&c who were seized of ftcfs ad* 
lUhiiMcrcd them as a prudent father of a family would ^ for 
though the freemen grew dcsiroua o£ being po^csscd of fiefs, 
yet they managed this son of estates as usufructs are managed 
in our cby«. This is what induced Charlemagne, ttie most 
vigilant and considerate prince we ever had, to make a great 
many re^ilaiJon^ in order to hinder the fiefs from hein^ de- 
meaned in favor of allodial estates^a It proves only that in hift 
time moiil Ijeitefice* were but for life, and consequently that 
ihcy took more care of the freehol<ls than of the benefices ; and 
yet for all t]iat they did not choose rather to be the king's 
vassals than freemen. Tlicy might have reasons for disposing 
of some particular part of a tief, but they were not willing to be 
Gripped of their dignity likewise. 

] know, likewise, that Charlemagne laments in a certain 
Capitulary, that :n some places there were people who gave 
away their licfs in property, and redeemed them afterwards in 
Ihe same iiunncr.fr But I do not say that they were not (under 
of ihc property than of the usufruct ; I mean only, that w]»en 
they couM convert an allodium into a fief, which was to descend 
to their heirs, as is the caae of the formulary above mentioned, 
they had very great advantages in doing it. 

9- — How the Church Lands were Convtrtcd into Fiefs 

The me of the fiscal lands should have been only to serve 
as a donation by which x\\t kings were to encourage Ihc Franks 
to undertak'^ new expeditions, and by which on the other hand 
these fiscal lands were increased. This, as I have already ob* 
ser\'ed, was the spirit of the nation ; hut these donaficns tonk 
another turn. There is still extant a speech of Chi!peric,c 
grandson of Clovis, in which he complains that almost all these 

t See ih'i*c qiii^teil by Diicina^, in 
tin wori] " aloilii," onj thoit trro^IucrJ 
hf UiTTmJ, m hii tfMtinr of fclindi*! 
l^ntls [I' i^t and ih< Mluwinjr. 

dSrccnd CapiluUry of she ¥«f Jfa* 
•rt. 10; u>4 Ibt ^Ti Ciftliulary oT ftic 
Mr aoOp iri^ j: ifat m Cipitul^rr. 
'' IncmTanai." ut. ««; ibt ^ih t'^piiu- 



ivy fif ihe j«r r;^, an. ^^ ||i« C*- 

DiluUfT nl lAUii iFie Ploui, bt lbs 

rar &>»» art. i, 
^Tb» Afth d ih« n*r inA. an & 
fin Crcc«y o| Tovo. book VL 

chap. Kl¥i» 



THE SPIRIT OF L.^WS 



•M 



bnds bad bcCTi alrr^y given away to the Church. " Our ex- 
chequer," says he, " is impoverished, and our riches arc trans- 
ferred to the clergy ;rf none reign now but the bishops, who 
lire in grandeur while wc arc quite eclipsed." 

This was the reason that the mayonL, who dunt not stuck 
the Jords, stripped tltc churches: and one of the motives al- 
leged by Pepin for entering Neustria' was, hts having been 
invited ihiihcr by thr clergy, lo pui tt stop to the encroachments 
ol the kin^, thai i*, of the mayors, who dci>rircd llx: Church 
oi all her possessions. 

The mayofs of Austruia, that is the lamtly of the Pep^ns* 
had behaved tovi^ords the clergy with more moderation than 
lliose of Kectfitria and Burgundy, This is evident from our 
chronicles/ in which wc see the monks perpeiually extolling 
the devotion and tiberaltty of the Pepins. They themselves had 
been possessed of the first places in the Church. " One crow 
docs not pull out the eyes of another;" as Cbilperic said to 
the bishops^ 

Pepin subdued Ncustria and Burgundy; but as his pretence 
(or destroying ihc mayors and kings was the grievances of the 
clergy, he could not strip the latter without acting ineon- 
siiteiitly with his cause, and showing that he made a jest of the 
nation. However, the con^juest ol two great kingdoms and 
the destruction of the opposite parly afforded him sufTicLent 
means of jiaiisfying his generals. 

Pepin made hiiuself masier of the monarchy by protecting 
the clergy; his son, Charles Martcl, could not maintain his 
power but by oppressing them. This prince, finding that part 
of the regal and 6scal lands had been given either for life, or 
in perpeliiicy, to the nobility^ and thai the Church by receiving 
both from rich ami poor had acquired a great part even of the 
allodial estates, he resolved to strip the clergy ; and as the fiefs 
of the first (livipion were no longer in being, he fonned a 
!;ecoiid.A He took for himsctf and for his officers the church 




/Thlf 1i wlitt Inrluced ^Im to annnl 

Itie mLmnxnrt mmli In Imur til the 
dcTET. and rvrn xbt d^niitnn* o( bis 

■nd rvm mnH» npw fJona^kint— Gr«g' 
«iy <-■! lViir>« hn^h Vtr chaft, xH. 

# See Ihf " Ainati ni yXftt." ytar 
fflfr " Rji4iicT ifTipflmli (|u<r<lit AAccr- 

dotuib ct KfTorum D<i, quj oic *<piu« 



idlenint ut pro itbUiia loIuiM p»trl- 
t See the " AnntAt oF Hrix." 

" Karolui plufim* furi KclnlliHw 

deinde mililibm <tiipet1tril/' *^" Ex 
dfiimic-t CrnlulcQjl," lib, IL 



i 



aM 



MONTESQUIEU 



iuids and the churches tbernMlvcs; thus he remedied an ovil 
which differed from ordinary diseases, as its extremity rcn- 
(ieretl it the more easy to cure, 

lO. — Riches of the Clergy 

So great were tlic donationa made to the clergy that under 
the three mces of our pnnccv they itiuvi h-ive scversil timca 
received tlie full property of all the laiidi of the kingilom. 
Out if our kings, the nobility, and the people found the vray of 
givinp them all their estates, they found slso the method of 
getting ihotn back again. The «piril o( devotion estahtiehed 
a prreat immtier of churches under the first race : but the mil- 
itar>' spirit was thr causo of their lieing ^v^'n away afteru-ards 
to the aoldiery, who divided them among their children. What 
a number of lards must have then been taken from the clerk's 
tnaisallaf llic kinj;* of the second race opened their hands, 
and made new dctnalions to them; but the Nonnaiu, who 
came afterwards, plundered and ravaged all before them, 
wreakinjj their veng:eancc chiefly on tlie priests and monks, 
and devoting every religious house to destruction. For ihey 
charged those eccleeiasttes with the destruction of their idols, 
and with all the oppressive measures of Charlemagne by which 
tliey tiad been suece*sively o)>l)ged to take shelter in the Norili- 
These were animosiiics which the space of forty or fifty ycara 
had ncl been able to ob1itcr;itc, Ici tliis situation wlut losses 
must the clergy have sustained! There iverc hardly ccclesias- 
Ijcfi loft to demand the estates of which thoy had hccn deprived. 
There remained, therefore, for the religious piety of the third 
race, foundations enough to make, and land^ to bestow. Th« 
opinions which were spread abroad and believed in those days 
would have deprived the laity of all their estates, if they had 
been but virtuous enough. But if the clergy were actuated by 
ambition, the laity were not without theirs; if d>'ins persons 
jpive their estates to the Church, their heirs would fain resume 
them. We meet with continual quarrtls between the lords and 
the bishops, the gentlemen and the abbots: and the clergy 
mt3»t have been ver>- hard pressed, since they were obhged to 
put themselves under the protection of ccrlain lords, who 
granted them a momentary defence, and afterwards joined 
their oppressors. 






THE SPIRIT OF L.^WS 



•« 



But a better admlnUtralion having been cstabliih^ under 
iht Uiird race gave the ckrgy leave to augnwnt ihcir possca- 
sioQs; when Mtc CalvmU'U aiaried up, and having plundered 
the churches, ihcy turned all the ucrcd plate into specie. How 
could ttie clergy be .sure of their estates, when they were not 
even safe in their pcrwjn*? Tlicjr were debating on con-* 
tTx>veT9i«l >ubjeet» while their arcluvcs were in Haoie^. Wliat 
did it avail them to demand back of an impoverUhcd nobility 
those e5tatC9 which were no longer in pos^esaion ol tlic Uttcr^ 
but had been conveyed into other Hands by different niott- 
gagei? The clergy have been long acquiring, and have ulten 
refunded, and still there is no end of iheir :icqiiisiiion5. 

llj^Statc of Europe at the Time of Charles At artel 

Charles Martel who undertook to strip the clergy, found 
himself in a most happy situation. He was both feared and 
bek>ved by the soldier}', he worked for them, having the pre- 
text of his wars against the Saracens. He was hated, indeed, 
by the clergy, but he had no need of their assislanccj The 
Tope, to whom he was nece^^ary, stretched out his arms to hini< 
Everyone knows the famous embassy he received Eroin Greg- 
ory II I J These two powers were sirlciiy united, because they 
could not do without each other : the I'opc stood in need of the 
Frank» tu a^^int him a^iunat tiic LvtnbarJs and the Greeks; 
Charles Martcl bad occasion for the PopCi to humble the 
Greeks, to cmbarroA^ the Lombar<U, to make himadf more rc- 
spcciable at home, an^l to guarartcc the titles whleh he had, 
and chu:>e which he or his children might take. It was im- 
poifiibTe, therefore, for his enterprise to miscarry. 

St. Rucherius, Bi&liop of Orleans, had a vision which fnght- 
ened all the princes of ihat time, I shall produce on this occa- 
■tcn the letter wriiicn by the bishops aiscmbled at Rhcimt to 
Louis, King of Germany, who had invaded the territories of 
Charles the Uald ; ^ because it will give ua an insight into ihe 
situation of things in those times, and the temper of the peo- 
ple. Tlicy say.' " 'ITial St. Euchcrius, having been liiiatched up 

irt-' -" Annnlii of M«t*." T«ir uu 



ISf« Ifacr " AttnalA of Mcfi." 

/" Pjii»lcnlam o*»"1"'. Hf'frtfTA Unmn' 
liflrjfT) iiHncipum, tiU prJT'lrtBi prw- ^ .- - 
■hT ^rppf.fiin mt>*f3t, etHnA kmb 1 Annn 9a. " afiiiH _ 

flfpmlnntlnnp. t^ iriacn ilrfmiinrHm rl i Ibid, p- u^ 

hindam clcmmnim convcricn yoEui^ 






■mm " J 



as6 



MONTESQUIEU 



into heaven, saw Charles Martel tormented in the bottom of 
hell by order ol the saints, who arc to sit with Christ at the last 
judgment; ihsti he had lieeii condemned lo thi& punishment 
before h» time, for having stripped the Church of her posses- 
aioiis uid tJicrcby charged himbel! with the Mn» uf all thoM: 
who founded the«e livings; that King Pepin held a council 
upon ibis occasion, and had ordered aU the church lands he 
could recover to be restored; that a£ he could get back only 
a part of them, because of his dispute* with Vaifre^ Duke of 
Aquitainc, he issued letters called prccaria m for the rcmamder, 
and made a. law thai the laity should pay a If^nth part of the 
church lands they possessed, and twelve deniers for each 
house ; that Charlemaene did not 'give the church lands away ; 
on the contrary, that he published a Capitulary, by which he 
engaged both (or himself and for his successors never to make 
any such grant; thai all they say is committed to writing, and 
that a great many of Ihcm heard ihe whole related by Louis 
the Debonnaire, the father of those two kings." 

King Pepin's regulation, mentioned by the bishops, was 
made in the Council held at Lcptines." The Church found 
this advantage in it, that such as had received those Uinds held 
(hem no longer but in a precarious manner; and, moreover, 
that she received the tithe or tenth part, and twelve deniers for 
every house tliat luLd belonged to her. But tlii^ was only a pal- 
liative, and did not remove the disorder. 

N«y. it met with opposition, and Pepin was obliged to make 
another Capitular)'," in which he enjoins those who held any 
of tho«e benefices to pay this tithe and duty, and even to keep 
up the houses belonging to the bishopric or monastery, under 
the petiahy of forfeiting those possessions. Charlemagne re- 
newed the regulations of Pcpin.P 

Tliat part of the same letter which says that Charlemagne 
promised both for himself and for his successors never to divide 



M " Pnearifl, naoA nrcciliol alcnriuo 
C0«ea<tiEurj" uy C'v?vi. in lii« no|«i 
upon Itio nrtt " Boot «f FieU." I find 
In * diproma of KiriH Pepin, Ailed I^o 
third ytn of bin rritn. ihm thia I'Hncf 
vsi qoi ih4 &nT w(ii> HiibtuMd iha^a 
"prcciru*'; he etir* cpii^ made by the 
Mijvr Etaroin. >hd continued tftm bia 
limi. Sf« lh« diialntna of iTip kinf^t ^n 
tb* stb t**n# of ih* '■ UraiorikUt fl! 
Fnoce" bx Uic Bacdiclini. ui. 6 



B In The irnr 743* •<« lh» ^ booir «f 
thfl Cfcpiiulftrj<a. irl- j, lUltulut'i *4i- 

tioit, p Rjt, 

p "fhai of Met*. \n the yf9 rjtl, AM. 4, 
pSrt hin ('»pEiul«rr, in |h4 tmt Saj, 

■tiirn nt Woiin": BaJn"iui"» adm^n. p, 

CAQlrtfT, and iHat of Frtnkf-^rt, m iH* 
yv9T j^j p. at^. BTl 14, in irlatJon to 
1h« rapairinit « iha houMi: and that ol 
Uic year fts^ p- 3JL 



THE SPIRIT OF LAWS 



■37 



sgain the church lards among ihc soMiery is agreeable to Xht 
Capitulary of ihh prince, given at Aix-ia-Chapcllc in the year 
S03. with a view of removing the apprehensions of the clergy 
upon ihis subject. But the donations already tnadc were still 
in forces The bUhop« very justly add, that Louis the Debon- 
nairc followed the example of Charlemagne, and did not give 
away the church lamis to the solOtcry. 

And yet the oM abuses were carried to such a pitch, that the 
laiiy under the children of Loui$ the Debonnairc preferred 
ecclesiastics to benefices, or turned them out of their livings ^ 
without the consent of the bishops. The benefice) were divided 
among tJic next licir^.J and when tliey were held in an Indecent 
manner the bishops had no other remedy left than to remove 
riie relics.' 

By the Capitulary of Coinpiegne>i it h enacted that the 
king's commissary shall have a right to visit every monastery, 
together with the bishop, l>y the consent and in presence of the 
peru>n who holds it :f and this shows that the abuse was gen* 
eral. 

Not that there were laws wanting for the restitution of the 
church-lands. The Pope having reprimanded the bishops for 
their neglect in regard to the re-establishment of the monas- 
teries, they wrote to Charles the Bald, that they were not af- 
fected by this reproach, because they were not culpable ;w 
and they reminded him of what had been promised, reiolvedp 
and decreed in so many national assemblies. In point of face 
they quoted nine. 

Still they went on disputing; tiU the Normans came and 
tn^de them all agree, 

\2.—EsiabIiihmfnt of the Tithes 

The regulations made under King Pepin had given the 
Church rather hopes of relief than effectually relieved her ; and 
as Charles Martel found all the landed estates of the kingdom 

MnA Jj¥ me tapiiuUry of Pepm, Kinij 
*it lT4Tr, whfTT ir iaY9 ihit ihe Emjr 
Mould eive The nmattm*-* in fief (o 
thme Who iTiulrl vwcjr alWEiencr fof 
fipfn i( ii jidJrd to ?ht !»» nrilie Lom- 
bird^ honk HI, 111 J. 9tc. jn; itkI la 
Ihe Sajic Uv>, Collrcdcn of Pp^in't 
b«« rn EchiH. pr Tfls^ tit- »6v art, 4- 

f Src iTie cun«tEtuTi(>n oE L^tluriiiji I, 
Ift the law of tbc Lombu-d*. Ixwk III. 



I lliid- arc- 44- 

/ IbiJ, 

B <:iv<n the ^Ih rnr of rh* r<<ien rtl 
Oiarlet ihc BjU. in Tlie rnr *^ B«- 
lufiuA'i (rtiTinn, t*. aoi- 

i< " Ctjfn cunitliQ ct ftiotcnvD tpiJEia 
tjtil IflCJifi f»iin*(-" 

II"" Co(H:iMuHi Aptid Boncrilpm." th* 
i^th vnr ol Ch4rlc-4 the R«U. In (h« 



i 



t3« 



MONTESQtHEU 



in the band* of the clergy, Giartema^e found all the church 
landfi in the hands of ih<? soldier/. The latter could not be com- 
pelled to frttofe ft voluntary donation : and the drcum^tances 
of that time rendered the thing atill more impracticablf than it 
seemed to be o! its own nahuc. On the other hand. Christian- 
ity ou^ht not to have been lost for want of ministers, churches, 
and instruction. -r 

This wa* the reason of Charlemagne's establishing the 
tlthesj a new kind ot property which had this advantage in 
lavor of the clergy, that as they were Riven particularly lo the 
Church, it was easier tn process o( time to know when they 
were usurped. 

Some have attempted to make this Institution of a still re- 
moter date, but the authorities they produce seem rather, I 
think, to pfovc the contrary. The cou^iiiutJon uf Clothanus 
>ay?t « only, that ihc>' shall not raise certain tithes on church- 
lands ; tf so fair then was the Church from exacting tithes at that 
time, that it« v/hclc pretension was to be exempted from pay- 
ing them. The nec^md council of Macon,6 which was held io 
585, and ordains the paytnenl of tithes, says, indeed, that they 
were paid in ancient lime*, but it says also that the custom of 
paying them was then abolished. 

No one qiic*tion» but that the cler^ opened the Bible be- 
fore CharicniagTic*3 lime, and preached the gifts and offering 
of Leriticu*. Bui I say, that before that prince's reign, though 
the tiihes might have been preached, ihey were never estab* 
lished, 

1 noticed that the regulations made under King Pepin had 
cled those who were seized of church latKl* in fief to the 
ient of tithes, and to the repairing of the churches. It was 



#bl Ibc tAvlt wtft wh^€h broke o«l 
ihn* cf OiHlr« Mvtfl. th* Un4> 



at tbr Ihn* cf OiHlr« Mvtfl. th* I. .. 



ver* Hh to/hm tf *t1I h ihtr ooufa, 

•ay* iW "* Lir« 4( nimE^luB.' Surliu, 

loffii I- P' tn- 

j Law ot lh< L<3ml4rdBt tt-nli HI- 
lit- L Hc^ t xnd I. 

M It Li that DD which I turc dcacanifa 
in tht 41I1 chapta oJ lh)< baoV. and 
whtcb it 14 be lirvnd 1a B«1u«<uj'« «4i- 
llom ol llic Cjipifuliriu, Cdiil I- art. ti* 
p, ft 

tr' Afnjia n ptacviria. t<\ AtcinaA 
PQffco ni qi fCClMu coandiaiu. Ji» al 



avEor aui drcinutor In rcbui aMJaaig 
nullu* mtcotAi." Tbe CA[ȣiuSfery ot 
CKii-LMQUlU In 1ll« jmt to*. Ha^uiiiia'a 
vdliloti. p. jjd. •jn»in» rBlmiietjr wrll 
what la niMIK try Uhx tm ol t'ttht fri>ni 

thahui; It wai The lilhc <il the iviiar 
wbkh ««r« put into Ot% Lum'i lur«ii 
lo lantni aiM CbarkflUffu vnjoi&a bia 
Mm 14 pv ^ *■ *H> •■ «■» P^*>- 
Dit. In otiUr to vt AH cxampti: n U 

plala thM ibLi m%^ « ri^bt «< Kirnio^ 

or r>c<AonT, 

antiquonxiii G&Ulai optll JMSW 9m 



THE SPIRIT OP LAWS 



»S9 



1 grcMi deal to intlucc by a law, whose equity could not be dis- 
puted, the prtiicipal men of the nation to scE the example. 

Charlcma^e <iid more; and wc! find by the Capitulary de 
yUlist that he obliged hU own deme&nes to the payment of 
the tithes ; this was a MiJ] more atriking example. 

But the commonaliy arc rarely intlucnccd by example to 
sacrifice their inicrestfi. The Synod of Trankfort furnished 
Ihem with a more cogent motive to pay the titties.^' A Capitti- 
\iLry w?£ made in thai Synod, wherein it is said, that in the last 
famine the »p]kc» of con) were £ound to contain no >^cd,' tlic 
infernal «piritA having^ devoured it all, and that tliose spirits 
had been heard to reproach ihem with not havintr pofd the 
tithes: in conseq^icnce of which it was ordained thai all lho»e 
who were «dzj^cl nf church UnHn (hnuld pay the tithr^e; atid 
the next consequence wa£ that the obligation evtcnded to all. 

Charlemagne's project did not succeed at first, for it seemed 
too heavy a burden,' The payment of the tithes aoion^ the 
Jews was connected with the plan of the foundation of their 
republic; but here it was a burden quite independent of the 
other charges of the eslablishnient of the monarchy. We find 
by the regulations added to the law of the Lombards^ the dif- 
ficulty there was in cauiring tlie tithes to be accepted by the civil 
laws; and as for the opposition they met with before they were 
admitted by the ccclesiasllc laws, we may easily judge of it 
from the different canotis of the councils. 

The people consented at 1cn|!;ih to pay the tithes, upon condi-* 
tion tliat they might have the power of redeeming ihem. This 
the constitution of Louis the Debonnairj,^ and that of the Em- 
peror Lothanua, his son, would not allow.' 

The law* of Charlemagne, in regard to the establishment of 
:jthe£, were a work of necessity, not of superstition — a work, in 
short, in which religion only was concerned^ 

His ^mous division of the tithes into four parts, for the r>e<- 

f Art- S« BUufiv'* tditton, p- n*. It S*q, fitliiTLot'i vdTiIori. v, (HA; acttlnx 
rf ivAd wuivi ChMtitaantiQ, In chc 



nflDto culm JMklmti* In 
•ooa quo ill* villdn Iamc4 irrtp'lC. 
cbuHirc vKcuria BtitiunAa « dEniualbtL* 
dcvoraliL ■* vn«i *ipri>hntioni» audf- 
u»," <Ec-— BoluiiuA't edition, p- jfif. 

/ Sh amonc tfie rcit tba CapFtql'Oi' 
w Louif the Deboniuii«i in thi jttt 



thtte wbo. tu ftvujij pftvinit tiffici ucji- 
]fci4d 14 culdvate th« lindii, etc., urt. 
J. " N«nii quidem el ^treifliiiu aMt ^ 
■«nEti>r n»i«r *f not rrtqutolvr +n ill- 
vcnii placilli Admonllioneiu frfiniiit^'' 

f Anaonit <-ih^r», Th«( of Lf/iTiirfBib 
bonk 111. til. 3. <hip. vi. 

k In (he x^if 1^ Hi. Ti In tJ*Ui«Tii>» 
lorn, L f>. U^, 

I In ib« l&w o4 ih* Lomtvd'. luok 
III- tit. 3, ^ec. t 




J40 



UOKTESQUIEU 



pairing c{ the churches, for lh« poor, (or (he bUIiop, and for 
the clcr^', manifestly provcslhat he wished to give the Church 
that fbccd and permanent status wlucli she had lost. 

HU will shows thit he w^ desirous of repairing the mis-* 
chief done by his grandbther, Charles Marteli He tnade 
three equal shares of his movable goods ; two of these he would 
have divided each into one-aiid*twcnly parts, for the one-and- 
twenty metro{>olitan sees of his empire; each part was to be 
subdivided between the metropolian and the de|>endent 
Msliopficft. The reniainin^ tliird he di^iriliuted ieieo four 
pans; one he gave to bis children and grandchildren, another 
was added to the two-third» alre^dv be<iucaihcd, and the other 
two wtrc assigned to charitable uses. It se^rms a^ if he looked 
upon the immen» donation he wat making to the Church less 
as a religious act than as a political distribution. 

13.— 0/ the EkcHcn of Bishops end Abbots 

A* the Church had grovp-n poor, the kings resigned the right 
of nominaling to bishoprics and other ecclesiastic benefices,J^ 
The princes gave themselves less trouble about the ecclesiastic 
ministers; and the candidates were less solicitous in applying 
to their authorities. Thus the Church received a kind of com- 
pensatio;i for the possessions she had lost. 

Hence, if Louis the Debonnairc left the people of Rome in 
possession of the right of choosing their popes, it was owing 
to the general spirit that prevailed in his time ; ' he behaved in 
the same manner to the see of Rome as to other bishoprics. 

14. — Of the Fiefs of Charles Martd 

I shall not pretend to determine whether Charles MarteU 
in giving the church lands in fief, made a gram of them for life 
or in perpetuity. All I know is, that under Charlemagne"* 
and Lotharius I n there were possessions of that kind which 
descended to the next heirs, and were divided among them. 



/ Tt i« A k1n4 of codicil t^Foduccll t>j 
Effliybird. *m! Jiffccent fnm fhc will 

* Sec ilir Ctphulary of Clifeflvmauii* 
ta the re«r Soj. *n, 3^ BAlmini'i vdi- 
tpWm ^ Wi »IH iTrt B4Ecl uf L<-utf ihe 



fThSi 11 mtnilonctl In ihe ItmiOua 
t±nt>Ti. " «iJfo LmJ^ivicu"/' which in i 

tion, p Ml. in ihe rc»f Bit. 

■* <^l ft()ve*ii hy liki <flpilu1ary. \ti the 
ytat 9ftu ut- t7> ia H«luiiu>. torn. L 

code u( Hie U^m^ud*. buvk tit. lU. 



THE SPIRIT OF LAWS 



•41 



I 6iid^ mortovcr, ihat ooe part of them wu given as oOddia, 
and the other as fief&.« 

I noticed that the proprietors ot the aUcdta were subject to 
service all the same as the possessors of the fiefs. T1ii», with- 
out doubt, was parJy the reason that Charles Martcl made 
grants of aUodial lands as well as ot iicb. 

15. — Tfu ^me Subject continued 

We must observe, that the ficfs having been changed into 
church lands, and these again into fiefs, they borrowed some- 
thing of each other. Thus the church lands had tlie privileges 
of fiefs and these had the privileges of church lands. Such 
were the honorarj- rights of churches, which began at that 
tinted And as those rights have ever been annexed to the 
judiciary power, in preference to what is still called the fief, 
it follows thftt the pstrimoniat jurisdictions were established at 
the same time as those very rights. 



16. 



'onfusion cf the Royalty and Mayoraity. The Second 
Race 

The connection of my subject has made mc invert the order 
ot time, fio as to s^ieak of Charlemagne before I had mentioned 
the famous epoch of the translation of the crown to the Carlo- 
vin^ians under King Pepin ; a revolution which, conlrary to the 
nature of ordinary events, is more remarked perhaps in our 
days than when it happened. 

The kings had no authority : they had only an empty name. 
The regit title was hereditary, and that of mayor clcirtive. 
Though it was latterly in the power of the mayors to place any 
of The Merovingians on the throne, ihcy had not yet taken a 
king of another family; and the ancient law which fixed the 
crown in a particular family was not vet erased from the hearts 
of the Franks. Tlie king's person was almost unknown in 
the monarchy; but royalty was not. Pepin, son of Charlea 

Sec Jhf abfvt coniillufion. kn^ Ihc 
Capaulurr ot Chtrlct Tbr t1j|1<l. jq iliv 

Eur B46. chip n^ " in VJEJa Spinuco." 
i*tiULiuB'a CO J I ion, torq, U. p- ji, anil 
iTikt of Th« rfar i^ cihap", ill ifi^t v., 
in ihc STtiod cl Soi'fli'n*, Balitj^u*'* 
rdtfion. tpTTi. il, n, t^- anil Xhut oi Ihe 
y>» S}4- " npunl AlllnLnckiqi," chap. 1. 
Btlutivi'* tdirion. tocn^ Ij. p, ;o. S«e 
Vol. ir— 16 



tMtitnv, '_' Invert 1 *nnT," firtt- 44 toil ^A- 



p 6e< ill* r*nitiil»rirv toMi w. ftpB. 
44. And the Edf«l of I*litei In ihe y^At 



06^1 art*. ^ ao^ >, ^htrt wr Aa'I lh« 
honorary ricbit nf ihf \of6\ ftuMtvhed. 
Lfi ittv •am* manntr t» f^ajr «■ «t ihU 



*i 



MOKTESOUIGU 



Htftd. lluDgbl it wodU be proper lo cooloirad thofie hro 
titles, A coohsioa wfiidi voold teive it a vioai poant whether 
the new royalty was hrTt:<Iitary or not ; and this wz& sufficitnt 
(or him vho to the regal dignity hM4 jtmed a grfat power. Ttte 
mayor'fi Kutbority was then bleodcd with that of the king. In 
the mtxtare of these two authorities a kind of recooeUiation was 
made : the mayor had been elective, and the king hereditary ; 
the crown at the banning ot the second race was elective, 
becatisc the people chose ; it was hcrcditaryi because they al- 
ways chose in the same family -« 

Fatlicr \c Coinic, m spite of the authority of all ancienl rec- 
ords,'' dcni» ihAi the Pope authanzcd this great change, and 
one of hi> fciiMjn!! i> that he would ha^'c committed an injus- 
dcc'' A fine thing to tee a historian judge of ttiat which men 
have done by that which they ought to have done; by thia 
mode nf rrauming vie fihntdil ha%'e no more htstory. 

Be that as it may. it is very certain that immediately after 
Duke Pepin's victory, the Merovingians ceased to be the reign- 
ing bmily. When his gratidson, Pepin, was crowned king, 
it was only one ceremony more, and one phantom less ; he 
acquired nothing thereby but the royal ornaments ; there was 
no change made in the nation. 

This I have said in order to 6x the moment of the revolution, 
that we may not be mi»taken in looking ujxjn that as a revoiu- 
lioD which was only a consequence of it 

When Hugh Capet was crowned king at the tMginntng oE 
the third race, there was a much greater change, because the 
kingtium pajwed From a slate of anarchy to some kind of gov- 
ernment; but when Pepin took the crown iheie was ucdy a 
transition from one government to another, which was iden- 
tical. 

When Pepin was crowned Icing there was only a change of 
name ; but when Hugh Capet was crowne<l there w^s a change 
in (hr naitirr ol thr thing, becatise by unitirg a great fief to the 
crown the anarchy ceased. 



• S*« tbf win ot OiHltowffiif, and 
IW HMSm wiuk Lodi lilt M>oii- 
pwr* mu* ie bit chndrM m ttr av 

3 of th* fUt— ^M W QvitttV. 






'The Monrvfivt " Clmmick "* Eo 
tht vcir Mj; kod " Chro>i& CeoMl- in 
Oil Ttar & 

I " PStMltn ()u« poiA nppini aonan 
wogfiau en. PQu'ntl >c «»|C!|A|« 
ZichJiric Mpv plvrimuoi •«t*r«M«r.*' 
—f" EmntoMiv ApwIs cI tbf Frmtv 
lom. SL ^ si^ 



I 



THE SPIRIT OF LAWS 143 

When Pepin was crowned the title of king was united to the 
highest ofhce ; when Hugh Capet was crowned it was annexed 
to the greatest fief. 

17. — A particular Circumstance in the Election of the Kings of 
the Second Race 

We find hy the formulary of Pepin'fi coronation that Charles 
and Carloman were also anointed/ and blessed, and that the 
French nobitity bound themselves, on pain of interdiction and 
excommunication, never to choose a prince of another family.** 

It appears by the wIUb of Charlemagne and Louis the De- 
bonnaire, that the Franks made a choice among the king's 
children^ which agrees with the above-mentioned clause. And 
when the empire was transferred from Charlemagne's family, 
the election, which before had been restricted and conditional, 
became pure and simple, so that the ancient constitution wai 
departed from. 

Pepin, perceiving himself near his end, assembled the lords, 
both temporal and spiritual, at St. Denis, and divided his king- 
dom between his two sons, Charles and Carloman.v We have 
not the acts of this assembly, but we find what was there trans- 
acted in the author of the ancient historical collection, pub- 
lished by Canisius, and in the writer of the Annals of Mctz.tv 
according to the observation of Baluiius.-r Here I meet with 
two things in some measure contradictory ; that he made this 
division with the consent of the nobility, and afterwards that 
he made it by his paternal authority. This proves what 1 said, 
that the people's right in the second race was to choose in the 
same family; it was, properly speaking, rather a right of ex- 
clusion than that of election. 

This kind of elective right is confirmed by the records of the 
second race. Such is this Capitulary of the division of the 
empire made by Charlemagne among his three children, in 
which, after settling their shares, he says,y " That if one of the 
three brothers happens to have a son, such as the people shall 

fVijl. Sth of Ehp " Hisloriain ol tin ihe Tear 76B. 

Ffance " by ihf R*ncdictin5, p. 9. tc Tom. \l " iHlionji MnliQum." 

n" Vt unquam dc allcriui Idmbit x Edilioq of Ihc Capitulanci, lonL L 

regern in ttvo pr^^umani cliacre led nc p. jftS- 

ipHtum." Vol. 5ih of the " HiilctrUni y In ih« i*t Opitularjr of the yat 

of Fraacc/' p, ib M B«lu«iii«'> •dilioo. p. ^jg* vt. §. 



UONTESQUIEU 



te willing to choose as a fit person to succeed to h 
kingdom, hit unckt shall content lo it." 

This same regnUlion is to be met with in the partition which 
Lotii« th^ Del)onn;iirc made among his three children, Pepin, 
l^iiU, and Charles, in the year 837, at t!ie assenibl> of Aix-la* 
Chapellc:' and likewise in another partition, made twenty 
years bclore, by the same Emperor, in (avor of Lotharius, 
Pepin, and Loui*,a We may likewise see the oath which 
Louis the Stammerer took at Compicgnc at his coronation; 
'* I, Louis, by the divine mercy> and the people's election, ap- 
pointed king, do promise . . ."^ What I say is confirmed 
by the acts of the Council of Valence, held in the year 890, 
lor the election of Louis, son of Boson, to the kingdom of 
ArlM,f Louis was ihcre elected, and the principal rca&on they 
gave for choosing him is that he was of the imperial family ,<* 
Uiat Charles the Fat had conferred uptjn him the dignity of 
king, and lliat the Emperor Arnold had invested him by the 
sceptre, and by the mini,%try of his amhassadorsn The kingdom 
cS Aries, like ihc other dismembered or dependent kingdoms 
of Charlemagne, wa* elective and hereditary. 

T 8. — Chart em agne 

Charlemagne's intention "was to restrain the power of th« 
nobility within proper bounds, and to hinder them from op' 
prcf^ing the freemen and the elerg)'. He balanced the several 
orders of the state, and remained perfect maUer of them all. 
Tlie whole was unitefl by the strength of his genius. He led the 
nobility continually from ore expedition to another, giving 
theni no time to form conspiracies, but employing them en- 
tirely in the e:<eciUion of his designs. The empire was sup- 
ported by the greatness of its chief; the prince was great, but 
the man was grealen The kings, his children, were his first 
subjects, the instruments of his pow<r and patterns of obedi- 
ence. He made admirable laws; and, what is more, he took 
care lo see them executed. His genius diffused itself through 

tin Onlcliil, *'ConBtil. trap^Iil." uniar itvttr in loco fraHi « filU lo^- 
lam. H. p. 14. pi»i." 

o_B*Iii!iu*i ediHon. p, ^74, art. 14. U Cipitultry of »**« y«r t77- B»l«- 

lacllhnui filiiM «Ut[ti«it. tion InUf «k fin F*lhcr libbt'* " Cotinci^f," 

pOttfltBR \\>t% dividnfiir. ••J |v>iru< torn- tjc- c"l. 414: in J Id DumoAl'c 
populiu pftrilcf con«nipas. bnvm vx ii« " Corji, Dlplomit. lom. IL trt. J/L 




THE SPIRIT OF LAWS 



"45 



every pari of the empire. Wc find ia ihia prince's laws a com- 
prcheuMve spirit of foresight, and a certain force which carries 
all before it. All pretexts for cvutliitg the duties arc removcdj 
neglects are corrected, abu&cs reformed or prevented.' He 
knew how to punish, but he understood much better how to 
pardon, lie was great m his designs, and simple in the execu- 
tion of thenu No prince ever possessed io a higher degree iho 
art of performing the greatest things with ease, and itie most 
difficult with expedition, Ho was continually visiting the sev- 
era! parts of his vast empire, and made them feci the weight 
cl bin hand wherever it fell- New difficulties sprang up on 
every side, and on every side he removed ihem. Never prince 
had more resolution in facing dangers; never prince knew 
better how to avoid them. He mocked all manner of perils, and 
particularly those to which great conquerors are generally 
subject, namely, conspiracies. This wonderful prince was ex- 
tremely moderate, of a very mild character, plain and simple in 
his behavior. He loved to converse freely with the lords of 
his court. He indulged, perhaps, loo much his passion for the 
(air sex ; a failing, however, which in a prince who always gov- 
erned by himself, and who spent his life in a continual series 
of toils, may merit some allowance. He was wonderfully exact 
in his expenses, administering his demesnes with prudence, at- 
tention, and economy- A father might learn from his laws how 
to govern hi* family ; aitd we find in his Capitularies the pure 
and sacred source whence he derived his riches/ I shall add 
Only one word more: he gave orders that the eggs in the bar- 
Ions on his demesnes, and the superfluous garden-stuff, should 
be sold 18 he distributed among his people all the riches of the 
Lombards, and the immense treasures of those Huns that had 
plundered the whole world, 

19, — The same Subject continued 

Charlemagne and his immediate successors were afraid lest 
those whom they placed in distant parts should be inclined to 
revolt, and thought they should find more docility among the 

#S« fell 5rl C*pituUry of the v*»r (he y«r floo: hi« »d CapiiuTiry oit the 



hi. 0. ^6. ITtf, T» t, I, 4^ *i. 6. 7^ »ni1 

B; ind the nf CipUuIarr oi sX\e vfnr 

Of (he rt«r Bu. p. 444. arli^ « tnd u, 

/See Ibe " Ctpitulferr dc ViUif*' In 



Tvar'0iiH n\%- 6 ind I4; ant] 1I1C Slh 
baijlf ofiht Cipiidfuiti, ati. jo^ 

r"C4pliiil. dc Villit,'^ an, 55, 5« 
thii triiole Cftplfulirr. whfcti It ■ mti> 
iFrt>i?c4 of f]niden»i ffooil admlaJnrk* 
Uon, And ccopomr. 




ui 



MONTKSQUIEU 



clcrgj-. For this reason they c^rctcd a great number o( bi»hop- 
ri» in Germany and endowed tbcm with very large fic(&> It 
appears by Bome chartcra that the cl&uscs containing the pre- 
rogatives of those iiefa^ were not diiTerent from such as were 
commonfy in5erted In those grttnlsj' though at present we find 
ihe jirinripAl ccr1e«n.<(ticx o£ Gc^miAny invef^led with a sovereign 
power. Be that as it may, ihcie were some of the conirivance* 
they used against the Saxons. That which they could not 
expect from the indolence or supincne»« of vassaU they thought 
they ought to expect from the sedulous ailcntion of a bii;hop. 
BcMdc:!, a vansal of that kind, f^r from making it^ of the con- 
quered people against them, would rather stand in need of their 
assistance to suppon themselves against their own people^ 

SOj—Lotiis the Dfhomwiri 

\Vhcn Augustus Caesar was in Egypt he ordered Alexan- 
ders tomb to be opened : and upon their asking him whether 
he was willing they should open the lomSs of the Ptolemies, be 
made answer that he wanted to see the king, and not the dead. 
Thus, in the history of the sccord race, wc arc continually 
looking for Pepin and Charlemagne ; wc want to see the kings, 
and not tlic dead. 

A prince who was the sport of his passions, and a dupe even 
to his virtues: a prince who never understood rightly either h!s 
own strength or weakness; a prince who was incapable of mak* 
big himself either feared or beloved; a prince, in fine, who with 
lew vices in his hean had all manner of defects in his under* 
standing, took the reins of the empire into his hands which lud 
been held by Charlemagne. 

At a lime wtten the whole world h In tears for the deaili of Itis 
lather, at a time of Mirprisc and alarm, when the snbjcct^ of that 
extensive empire all call upon Ch^rlct and fin<l bim no more; 
at a time when he i& advancing with all expedition to lalcc posses* 
sion oC his father's tlirone, he sends some tmsty officers before 
htm in order to sdzc the persons of those who bad contributed 
to the irregular conduct of hi* wirters. This step was prodnctive 




the Brr^bii]it>fPt)c ^i Urnnvn, in the 



iKrtnf jy lie 

iM mSA SSx 

ccaocralofl Uin in ta« pnccwf boafc 



V^n^'i hidfM ti%\nM rAW4ni 
iTTtTtory TO ocinuid ihf i 
Olh«T dlltkn. t biTf Hid ■ 



THE SPIRIT OT LAWS 



847 



cf Uk mo5t terrible caU5irr^]ieA.; It Wfis imprudent and ptt* 
cipitaie. He began with pnnishlnp domestic crimes before he 
reached (he palace; an*! with alienating the minds of his subjects 
before he ascended (he throne, 

Hi& nephew, Dertiartl^ ^^ng of Ttaily, hiiviiig conif to implore 
his cleTnency, he ordered his eyes Xo be put cut, which proved 
the cause of that priiicc*» death a few dap after, nnd created 
Loids A great many cncniicfi. His apprchciiBion of the conae- 
quetiee induced him to shut hit; brother* up in a monastery; by 
which means the number of hi* elicmica incrcaacd. These two 
1a«l trons;ECtii'infi were afterwards laid t^) He rhsrge ir a jndfcial 
marner> and his aceuaers did not fail to tell bhu that he had 
violated hi« oath and the solemn promises which he had made to 
his father on the day of his coronatioti.' 

After the death of the Hmpress Hermengarde, by whom he 
had three children, he married Judith, and bad a son by that 
princes; but soon mixing allthe indulgence of and J husband, 
with all the weakness of an old king, he tlung his family into a 
disorder whieb was followed by the rlownfall of the monarchy. 

He wascontitiualiy altering the partitions he had made atnong 
his children. And yet these partitions had been confirmed each 
in their turn by his uwn oath, and by those of his children and 
the nobihly. Thi^ was as if he wanted to try the fidelity of his 
subjects; it was endeavoring by confusion, scruples, and equivo- 
cation, topufdc their obedicnec; it was confounding the differ- 
ent nghis of those princes, and rendering ihcir titles dubious, 
especially at a time when th^^re were but few fortresses, and when 
the principal bi^lwark of authority was the fealty sworn and ac- 
cepted- 

Tlie Emperor's children, in order to preserve their shares, 
courted the clergVtand granted thetn privileges till then unheard. 
These privileges were specious; and the clergy in return were 
made to warrant the revolution in favor of those princes. Ago- 
bard ™ represents to Louis the Dcbonnaire as having sent 
Lotharins to Rome, in order to have him declared emperor; and 
that he had made a division of his dominions among his children, 

J Tjie inonrmoat lut^or ^f ttse " I,ift 
a LOiUif thr D«bonnair</ in nu< 
«hHiw'< Coll«ribn. Tnm- ii. ii, »^, 

*S» bU T*<»t ind the circnnwnn^i 
of hli d«iK>iiIioti. in Duchcinc'i ColLct Duchftmr. lom- il. p* aT& 
tbn, toniH li p^ iu. m b«c hii Intfen. 





44$ 



MONTESQUIEU 



after having consulted heaven by tbrrt^ djiys' fasting and praying, 
Wli3t defence could such a weak prince make against Uie attack 
of 5upcr£tiiion? It is easy to perceive the shock which the su- 
preme authority must have twice'received from his imprison- 
ment, and from his public penance; they would fain degrade the 
king, and they degraded the regal dignity. 

We find difliciilly at first in conceiving how a prince who was 
possessed of several good iiualitics, who had some krowlcdge, 
who had a natural disposition to virtue, and who. in short, was 
the son of Charlemnfine, could have such a number of enemies," 
so impetuous and implacable as even to insult him in his humili- 
ation and to be determined upon his ruin; and, indeed, tbey 
would liave utterly completed it, if his children, who in the main 
were more honest than they, h;td been steady in thcii design, and 
could have agreed among themselves. 

si.'—Tkc seme Subject continued 

The strength and solidity for which the kingdom was im- 
dcbtcd to Charlemagne still sn^sisled imder Louis the Dcbon- 
tiatre, in such a degree as enabled the stale to support its gran- 
deur and to command re*pect from foreign nations, Theprincc'i 
understanding was weak, but the nation was warlike. His au- 
thority declined at home, though there seemed to be no diminu- 
tiun of power abroad. 

Charles Marlcl, repin, and Charlemagne were in succession 
rulers of the monarchy, Tlic Qtai £aucrcd the avarice of the 
soldiers: the other two that of the clergy. Louis the Dcbon- 
nalrc, displeased both. 

In the French constittJtion, the whole power of the slate wa» 
lodged in the hands of the king, the nobility, and clergy. Charles 
Martel, Pepin^ and Cliarlemagne joined sometimes iheir interest 
with one of those parties to check the other and generally with 
both; but Louis the Dcbonnairc could gain the affection of 
neither. He disobliged the bi.shops by publishing regulations 
which had the air of severity, because he carried things to a 
greater length than was agreeable to their inclination. Very 
good laws may be ill-timed. The bishops tn those days, being 



^ 



I 



iiS« lilt trifti and rhf timimvrancM 
of hi! dcg»BiIlLiii m [>t)clitf«ai'« CQJt*& 

wtttlcb tr> Tcflui; "Tula cnllB «dLQ 



chtue, iDin. tk. p. jtr* 



THE SPI 



VttS 



MJ 



acctutomci) iv tiikc Llic ficrld against ihc Saracens and tbc Saxons^ 
bad very little of tlic ^ptrii of rcUgion.^ On the other hand, as 
he had no longer any confidence in the nobilily, he promoted 
mean peoplej* turning the nobles out of their employments at 
court to make room for strangers and tipatart^.Q By thi> meant 
die afFection of the two great hodies of the nobility and clergy 
were aliimaied from (heir prince, the consefjuence of which was a 
loUl desertion. 

Z2, — The same Subject continued 

But iMliat chiefly contributed to weaken the monarchy was the 
extravagance of this prince in alienating the crown demesnes,*" 
And here it iy ilaii wc ought to listen to the account of Nitard, 
one of our most judicious historians, a grandson of Charlei:iagnc, 
strongly attached to Louis the Dehonnaire, and who wrote hU 
history by order of Charles the Bald, 

He Kiy#, " that one Adelhard for some lime gained such an 
ascendant over the Emperor, that this prince conformed to hig 
will in evcrytliing; that al the instigation cf this favorite he had 
granied the crown lands to everybody tliat asked lliem,^ by 
which means the state was mined." ' Thus he did the same mis- 
chief ihfouRhout the empire, as I observed he had done in Aqui- 
Uinc ; « the former Charlemagne redressed, but the latter was past 
all remedy. 

The slate was reduced to the same debility in which Charles 
Martcl found it upon his accession to the mayoralty; and so 
desperate were its circumstances that no exertion of authority 
was any longer capable of saving it. 

The ireastiry was so e.\liaustcd that In ihe reign of Charles the 
BaJd, no one could continue in his employment^ nor be safe in 
his person without paying for it.f When they had it in their 
}>owcr to destroy the Norman*, they took money to let them 
escape: v and the first adWec which Hinemar gives to Louis the 



0The tnooTinoui luttior of ihr " Life 
Ol Leu it ilxz VibannniTt," in Du- 
ChHoea CollecUon, tom. H. p. K^- 

f Tejifti fciyi Ihat whu •eldom hup' 
Vtifi uiuTFr CliBrtcinaifTV wa^ « cgm- 
mon jiriclicc under Loutv 

V ficiriic T]r«irou> to cbsck ihH nabillly. 
hr prumuted one BernoH io ih« place 
of i-NtiiibcrUini by which tb« arnt 

lord* ivert c»tper«icd la the liLchtBt 
t" VeTIa) Tftiat qur cmnt 9u1 tt tv\ 

■I t<il«Vt> rt-llllViUA Akitfl Utdiltil COB 'n 



hoc diu ("Tiport"— Tcgia, " d» GHtli 

j"Htnc lihrmvn,. hinc public* iq 
pri>piili uitbuA dlitribucre ^uuit"— 
Nilaid. Ub, Iv, '■ pri>p* linrni." 

r *' Rcmpubltcam peniius annuLlflvli." 
— It»id. 

oSf* book XXX' chip. I J. 

t Kincnur. J?t i. t9 t'Ovia tie SUtn^ 
n?rer, 

b Sc« Ihe IrafEmeat q1 Ibe " Chiotiiclc 
ot tb? Monaftery ol &l Scrciui ol Afr 
fleri," In DuchctDCi tviti, ij- p. 0tt- 




*50 



WONTESQUIEU 



Stammerer b to aak of the a»rmbfy of the nation a flufficicnl 
atlowartcc to dclrAy the cxponstcit of hin household. 



ai-^THc samr Subject eontinHtd 

The clerjo' Iiad reason to rt'pcnt the protection Uicy had 
granted to the chiMrcii of T-oiiis the Dehonnalre. TIHs ptHnce, 
aj> T have already observed, had never givtrn any of the church 
lands by prect-pls li* ihc laity;* but \l was iioi Vixi^ before Lo- 
Uiarhii^ ill It^ly, and Pepin iti Aciuitaine. quitted Charlcmagne'a 
plan, and resumed thnt of Charles Marteh The eterfi^y had re- 
eourse to the Emperor against hit; ehildren, but they themselves 
had weakened the authority lo wUieh they appealed. In Aqui- 
taine »ome condescension was shown, but none in Italy. 

The civil war* with which the life of Loui* the Debonnaire 
had been embroiled wxrre the seed of those which followed his 
death. The three brothers, Loibantis, Louts, and Charles en- 
deavored each to bring over the nobility to (heir party and to 
make tht*m their iooIsl. To mch as were wiUin){ therefore to foU 
low them thev granted ehurcb land:* by precepts; so that to gain 
the nobilitj, the)' sacrificed the clcrRy. 

We find in the Capiliilaricfi y that those princes were obli^d to 
yield to the importunity of demands, ard that what they would 
not often ha\T? freely granted was extorted from thcmr we find 
that the clerp^ tliuuKht theniaclve« more oppressed i)y the nobil- 
ity llian by the kings, It appears that Cliarlea the Bak],^ became 
the grcnteat enemy of the pairiniony of the clergy, whether he 
w^as most inccnsrd ag:li^^t then for having; degraded his father 
on their account, or whether he waa the most timorous. Be 
Ihat as it may, we meet with eontimial qnarrels in the Capituln- 
rieSppberwcen the clergy who demandi-^ their ejitalcs and the no- 
had *«> Ih* kiqff »j(A^a>t the faitliot>i^ 
inn^rthiicS lliot he rk|r<l]cil (hem from 
tho AB»m|jty ■ h ftw ,j\ the cinon* 
cntcTctt m ouncii wrrc (iickcd oui, inJ 
iS# prrT^r** w**# t.-.lrl ibor rh»« wn 
Ihr nnlr c^nrt vhlch ihtuM be ob- 

«afiM br r«fuiifi1. St< nrrt k\ »\. ABd 
n. ^t* kiflHT. lU* l#ri«' wh-rh '>ir bftli- 
cpi 4ikFinMfd *t Hbtimi vtdtc in (he 
yrnr 'cK Ia ldiil«, Klfi^ of G«fi«4af. 
■ntl the Edict of riitt*, la th« ytM 

d Sr iRd wrr CiiiUulnjr in the r^v 
&*, ," in VilJ» .Spmikro.'^ S« klan ihp 
Cjipliiilvy ol Ihe MMmbljr jMrld *'«pud 



*S*« wSal th« blthopa ■» In tb« 

S*D<^d a1 ibc Tf ^. " ipuil Teudcnii 

^Sec Ihfl S);Tiail in (he Jttx S45.J 
"•pud T«iidani> wi!l»m." »ft<- | >nd 

^ which Civet ft TEry end d^icripijon 
«d Vbinn; ■■ ftl>n. that of the tame 
yf«f, htlJ at the imltcrt 0I Verne*, an. 

ibc UFTte )^ar, artv «, j. and 6l and 
(lie Cai^iIuUiy in " \"il!a SpjimiiEu " in. 
th« v«T S^t iTt. ff, and rhc Ittter whicS 

K' e bfthtrot Hi*«rTkbl<-J al Ithrlnii vrrotf; 
VC^H 10 Lauift, Kiae of Ucmunr. 
in, a 

tS«c ihi CapltDlarr in ''Villa Spmi^ 
lutoi*' la the ytu M Tl» nobilliy 



M«naiv " In ihc tat 



■ft 4, 





THE SPmiT OF LAWS 



»5' 



bflitjr whn n'fiiftrri or defcrrcfl to tettore thwn; anH thr king? 
acting as mcdiatord. 

The liuiation of affain at that time is a si>ccUc1c really de- 
sen-infc of pity. While Louis the Uebonnairc m»Ae immense 
donations oul of hi» <leine»nes to the clei^-, his children dis- 
tributed llie ehurch Jands among the lait>', TFie same pritKe 
with one liand fotinJe<i ti€w abl>cyj and despoiled old ones. The 
eierg)' had no fixed state; one moment they were jihmclcred, 
another they received satislaetion; but the crown was cominually 
losing. 

T<ward i!ie close of ihe reign of Oiarles the Bald, and from 
that time forward, iheic was an md of the disputes of the cltrgy 
and l^ity, ajiitciuinn tlicitr^tituiiuti of church Lands, Tile bUh- 
vya, indctrd, brcatlird out still a few si^lis la llit-ir ruiionM ranees 
to Charles the Bald, which wc find in the Capitulary of tlie year 
856. and in the letter they wrote to Louis, King of Germany, tn 
the year 85R:* but they propo»icd things, nnd chalkngcd prom> 
isec, so often eluded, tliat we plainly »ee they had no longer any 
bopc« of obtaining their dcMrc. 

AH that could be rxpei-t^-d then was tn repair in g^ipral the 
injuries done both to cliurch and state.c The kings engaged not 
todeprivctlie nobility of their freemen, and not to give away any 
more clnirch lands by preccpls,*^ so that the intcrerts of the 
clergy and nobilily seemed then to be tirited. 

The dreadful dqirc^lations of the Normans, as I have already 
observed, contributed greatly to put an end to those quarrels. 

The autliorily of our kin^ diminisbing erery day, both for 
Uie reasons already given atid those which 1 shall mention here* 
after, they imagined they had no better Tejwiirce left, than to 
resign themselves Into the handit of the clergy. But theeccleGias* 
tic3 had weakened the power of the kings, and these had dimim 
Ished die influence of the ecclesiastics. 

In vain dul Ch^rk.^ ilic Bald and his Micce.^^ri call in the 



Vhty hkd hten jXrmnH^ ^f imrlrr l>^uEi 

Ba Dtlmftn**" Sr« ntiH-^ rhr rsinTiL- 
ry or| the ynr "^1. " ft[;m! Minnitn ," 
trt*- 4 anif ?, wIikIi tf<tniirin< Ih* nnhn- 
fij Mid r1*ri(T in ihtir ■*>pral v<***<"v 
■Jetit, %ni Thnt " apikH Itrmi'iliim/' In 
Iht T«i' ^^. which Ai 4 ronton 11 Tfliii-t 
ai the bitbopj lo Ih* Kinc, tircaiiw the 
erili, ilrct to many Iiwi, hjirl nui been 
redffiK^l^ and, in 6m, m I(M«t which 



ih« biahvpt Mwmblcd M Rhcimi wratt 
mof . »rl. B. 

It \tf H. 

tSff thf Cipltutity ot the r**! Sv. 
tint A an^i r 
riCharlt* Ih^ BiM. in ihf SrnsH cJ 

the Mihrjpi nrti tn tMUf Any mow pft- 

apiK rrlaJInE to churtli Inndt.^' Capif^ 
ny of ihf jt^r ^. ui. 11, BaIuiLiu** 



15* 



MONTESQUIEU 



Church to support the £tate, and to prevent Its ruin; in vain did 
they make luc of the respect which the commonahy had fof that 
body/ to maintain that which they should also have for thnr 
prince; ' in vain Hrd ihey endeavor lo give an authority lo their 
laws by that oi the canons; in vatn did they join the ecclesiastic 
with the civil punishments; I in vain to counterbalance the au- 
thority odhecoum did they give to each bishop the title ot their 
commissary in the several provinces;* it was impossible to re- 
pair the mischief they had done; and a terrible misfortune which 
I shall presently mention proved the ruin of the monarchy. 

34, — TfKil the Pr€<mcn were rendered capable of holding Fiefs 

I said that the freemen were led against the enemy by their 
count, and the vassals by iheir lord. This was the reason that 
the several orders of the slate balanced each o:hcr, and though 
the ktng'ft vas^saJs had other vassals under them, yet they might 
be overawed by the count who was at the head of all the freemen 
of the monarchy. 

The freemen were not allowed at first to do homage for a fief; 
but in process of time tim was permitted: 1 and 1 find that this 
change was made during the prriod that elapsed from the reign 
of Contram to that of Charlenugne. This I prove by the com- 
parison which may be tnade between the Treaty of Andely,/ by 
Gontram, ChiMehert, and Queen Rnmehaut, and the partition 
made by Qiarlcmagnc among his children, as well as a like par- 
tition by Louis the Del>onnaire> These three acts contain 
nearly the same rcgulatiors vnXh rcRard to the vassals; and as 
they determine the very same points, under almost the same 
circumstances, the spirit as well as the letter of those three 
Irealtes in this respect are very much alike. 



_#St« the CiyjltulMv oi CharlM tlw 

Sap 

" Vti 

,- j*f S . - - - 

m«: loif I Ductit nor i<i b? mpellrd the 

rum (nknt^tB**^- in nvrni itiini vontvcn- 
ivii, fl oui ihrnni Dfi ivnt dicii, in 

IlllhuB rifiift lari^'I, *I |l>r qilAt tut 
ffctfciil judicii. (tucmiTTi paifmia c*i> 

Ribiirrt fui putiua ct in prsKBti aua 

/S<c the Cuilnlitry ol Chirlti ihs 
Bjiirf. "At r4niiKn/' in ibfr yftp *j?, 
Bftluiiu'i rditbn, loa. iL p. 6S^ *cCL 
t, ^ jt 4t «ut 7' 



SO, vt- ji *' Vtntlon. wTiom 1 fndd* 

DO t DUCti 



^rt. 4, and ihc CapituluT uT Lsuta 



t Sc« Itie Sjnod cpif FUf» in tH« ytu 

K- : ■-■ - 

<Bij, *n"- • »nd J 

* C'«piIvUry ol the yt*r ^j6, un^tr 
Oiftrl** »h- NaMh '-in T^/midQ Poab' 

a^t* kvhjit hAi l>f*n abitI ■fr«dd)r. 
nnnk XXX,. Uil chAp[Fr tuwirdi the 

I In the r«u s^. \n Crvrt^r ol Tonri, 
bonk I*, 

•h«11 Kf^fnh marr ilLfTiitp> *^f ihA«f fttir- 

liiiona; ind ibt noiti in «bj<h tb«7 an 
<)urii*(l 



THE SPIRIT OF LAWS 



»SJ 



But as lo what concerns ihc frccfncn there is a vital difference 
The Treaty of Andely docs not say that they might do homa^ 
ioT a 6ef; whereas we find in the divisions oF Charlemagne and 
Louis the Debonnaire, express clauses to empower them to do 
homage. This shows that a new nf;igc had bet^n inlrodnced 
after the treaty of AndeJy. whereby the freemen had become 
capable of this great privilege. 

ThUniu^t have happened when Charles MarteK after dlstribut- 
uig the church lands to his soldiers, partly in lief, and partly as 
ollodia, maJe a kind of revoKilion in ihe feu<lal laws. I: is very 
probable that the nobihty who were seized already ol fieis found 
a greater advantage in rectiving the new grants as alUuUc: and 
that the freemen thought themselves happy in accepting them as 
fiefs. 



Tile FaiNCii^AL Cause of the Humiliation op the 
Secokd Race 

25- — Changes in the Allodia 

ChaHemagne in the partition' memioncd in ihe preceding 
chapter ordained, that after his death the vassals belongirg to 
each king should be permitted to receive benefices in their own 
sovereign's cioniinion, and not in those of another;"! whereas 
they may keep iheir allodial estates in any of their dominions.^ 
But he add3,tJ that every freeman might, after the death of his 
lord, do homage in any of the three kingdoms be pleased, as well 
as he Ihal never had been subject to a lord. We fmd the «amc 
regulations in the partition which Louis the JJcbonnaire made 
among his children in the year S17. 

But though the freemen had done homage for a fief, yet the 
count's militia was net thereby weakened: the freeman wa« still 
obliged to contrib^tte for his allodium^ and to get people ready 
for the service belonging to it. at the projiortion of one nian to 
four manors; or else to procure a man that should do the duty 
of the lief in his stead. And when some abuses had been intro- 



Pepin, ind i«uuii, it U <}uotrii by 
Coliltil. «a(l by BaIuiIui. lom. ik p. 

4JQ- 

■I All' IX. ti, uj, whirls t> Asr«(«blf 
U> Uic Trejitif *( Andcly. in Gregofy ol 
Tourk. tjuuk IX, 

■ Art- lOj And ihpf* li no mFiitian 
nrndc vt ih.i% Lu ibe TmE} dI Aailely. 



aXn B«lufliiv lom. 1. p. 114. " Liccn- 
liam hibtai uDU«aubi)uc IIW homo 
qiiJ Knlnrum non fuibuvxil. calcuniqiic 
« hit ttibat Iritribm Tolami, nt com- 

made by ihr tnmt Emperor, tn tht ytu 
^7, «(t, «, BaIuw'* cditAn, V- Odd 




MONTESQUIEU 



duccd upon this head they were rcdrcucd, as appears by the 
consul it II tioni of Oiarleniagnc^ and by Out of Pepin, K>ng of 
Italy, which r>cplain rach othcr.4 

The remark made by hi&lorbns thai the battle of Fontenay 
was Uie mil) of tlie monarchy b very true; but I beg leave to 
cast an eye on the unhappy conaequetKCS of that day. 

Some lime after the battle, the three brothers, Lotharius, 
Loui£« and Charles made a treaty/ wherein I find some clauses 
which must have altered the whole political system of the French 
govenunenl. 

In the declaration' which Charles made 1o the people of the 
pan of the treaty relating to them, he »y» that every trccman 
might choote whom he pleased for his lord*' whether the king 
or any of the notjtLily. Before this treaty the freeman might do 
homage for a fief; but his cUodium &till conuimed under the 
immediate power of tlic King, that is, under ihc cotint's juri&dic- 
lion; and he depended on the lord to whom he vov^ed fealty, 
only on Qccount of the ^cf which he had obtained. After that 
treaty every freeman Imd a right to subject big alladium to the 
Kjh^, or to any other lort!, aji he thought proper. The quc8tioo 
IS not in regard to those wlio pnt themselvr* nnder the protection 
of Anoihrr for a fief, hni to Mich as changed their allodial into a 
feudal land, and withdrew themselves, as it were, from the civil 
jurisdiction to enter imder the |)ower of the King, or of the lord 
whom they ihoiiffht proper to choose. 

Thus it was, that those who formerly were only under ilie 
King's power, as freemen under the count, became insensibly 
Taasals one of another, since every freeman migtit choose wtiom 
he pleased for his lord, the King or any of the nobility. 

2: Jf a man changed an estate winch he possessed in perpetu- 
ity into a ficf^ this new fief could no longer be only Cor hfe. 
Hence we see, a sliort time after, a general law for giving the 
fiefs to the children of the present possessor: v it was made by 
Charles the Bald, one of the three contracting princes. 

t In rhc vor Nil, riluilun'v rdltlon. of the Lomfauda, tnott IH, lit, fh 

torn- L p, 4%. M\%. y and E, apii l)ut aI chan, il 

lh< j%i KiA Ibiit, ^. «ts ul' >■ " (-H fin ihd rc»r tc^i <|UQlfid b^ Aub«rl 

omnit Jihtr hnmo qui <t^i«of imiMoB 1« Mir^ ina Balufitia^ lom. IL IMB« 4I1 

bmfCcW. hihvt. tpH M pr>p4r«T, ft 
ipK ui tiDktrRi p«'«i «»v« cum •ffoion 



. p«'cti - - - 
VDO," clf- S#c ali4 itif Cat-ituUrf ol 
the rcAr £07, Unluiiua'* btttUa. I4fn. L 

Vui tbc jrcu j%^ InHctcd la tk4 lav 



chap, iL 

* In iha 
1b Mirt, aud . _. . . 

" Coqi<niuB aituil Slcfm^ni.'' 

t" Vt unuaquia^ur Ubar hOMO lii 
noftra Rvno Hniomn qimn wl u t m 
■B Bobia cl la nosina nd^llbiu Acctpltf," 
MrL a> of Ihc Dednikm nt CI1A1V4. 

n Capllvlafv W iIk year Irr, \it. u. 



THE SPIRIT OF LAWS 

What hts been saitl concerning ilic liberty every freeman had 
in the monarchy, after the ircaty of ihc three brothers, of chooi- 
big whom he {^leased for hU lorJ, the King or any of the nobilily, 
IB confirmed by the acis subsequent to that time. 

In the rfign of Charlemagne.tf when ihe vas&al had received a 
present of a lord, were il worth only a sou, he could not after- 
wards quit him. But under Charles the Bald, the vassals mieht 
follow what was agreeable to (heir interests or their inclination 
with entire safety ;tu and to strongly does this prince explain 
himself on the subject that seems rather to encourage them in 
the enjoyment of :1ns lilicrty than to rcitrain it. In Charle- 
magne's lime, benefices were ratlicr personal than real; after- 
wards they became ratlier real than per:k)nal. 



26,'-Changcs in the Fiefs 

The same changes happened in the fiefs as in the allodia. We 
find hy the Capiinbry of (■omi>teane^ tinder King Pepin, that 
thoie who had received a benefice from the Kine: gave a part of 
this benefice to dilTerent bondmen; but these parts were not 
diftlinct from the whole. The King revoked them when he re* 
vokcd the whole; ^ndatthe death of the King's vassal the rear- 
vassal bst also his rear-fief; and a new beneficiary succeeded, 
who likewise eMabhslied new rcar-va^sals, Thu$ it was the 
person and not the rcar-fici that depended on the fief; on the 
one haiid» the rear-vassal returned to the King because he was 
not lied forever to the vassal; and the icar-ficf returned also to 
the King, because il was (he fief itself and not a dependence of it. 

Such was the rear- vassalage, while the fiefs were during pleas- 
arc; and such w;i) it al^u wliilc they were for life. This was al- 
tered when the fiefs descended to the next heirs, and the rcar- 
ficCs the same. That which was held before immediately of the 
King was held now mediately; and the regal power wa* thrown 

AfH. ft Had ia. " Vfjvd C4ti»i>tucQ<" 
'* ffimiflttr cl H« nrmtri* vaikaIJir 



iici- 

cnijatn nt," eit, Itilfe tdpitulaty rv- 
latrt (9 Hoibrr of Ihc nnic y»r. »nd 

« lilt UKLV plucc, 4rL- S- 

fCapltulnrv uf J^■X'tl-ChApF11c, in 
tht jrue 01J. iitl- e6. " i|UuJ nullum 
tniortni tuum dimiltJtl pcal qumii Ad 

And Ihtf Tq^HluluT of P<pjn, in the 

dS« (tic Capitulary de Oriiioco. ia 



Hitilan. lun. W. D. «). to wbicb thr 
King. toj«ih« wifb Ifie lord* *pirtttjil 
■ml umtiural, iitcrJ lo iti\9: '' Ei m 
uliijEfii dr vnbiA talLi «ft cut tutu tcnio- 
TatuB n^n i>l.»cft, r( WW fim\il4l ui ad 
nlium ivnicirrni m«f1ut fttiitn 4cl ilium 
■miiUrc i>i]»M. vrnkvi tJ Itlufii. C( IpkC 
imnquino rt padA^o «ninii> Aonn il!i 
cDRimcaTum . , , *i uuvrl Drm 11 IJ 
cupicr^ ft i4 Jlium >tfi1ai«m adfiiare 
poincru. p*clnf< hRlK4l.'' 



dS« (tic capitulary de Oriiioco. ia fin th« rear TSti ■"- ^i UcIuiluS^ 

)h< rt^r fi|b. pttB- lo and 14, tiAluiius't fdilit'n, p. iBi, 




»5<S 



MONTESQUIEU 



back, as it were, one degree, somttimei two; and oftentimes 
more. 

We find in the books of ficfsj that though the king's vassals 
might give away in ReF, that is, in rcar-ficf, to the king, yet these 
rear-vassah, or petty vavassors could not give also in fief; so 
that whatever they had given, they inight always resume. Be* 
tides, a grant of that kind did not descend to the children like the 
iieb, because it was not supposed to have been made according 
to the feudal laws. 

If WM! compare the situation in which the rear-vassalage was 
at the time when Ihe ti^-o Milanese Senaturs wrote tho&e buoks, 
with \v1mt it was umlcr King Fcpin, wt: shall fmd tlidt tlic rc^r- 
ficfa preserved their primitive nature longer than ihc fiefs.* 

But when those Senators wrote, such general exceptions had 
been made to this rule as had almost abolished it. For if a per- 
son who liad received a fief of a rear-vassal happened to follow 
him upon an expedition to Rome, he was entitled lo all the priv- 
ileges of a vassal.*" In like manner, if he had given money to the 
rear-vassal to obtain the licf, the latter could rot take it from him, 
nor hinder him from transmitting it to his son, liU he returned 
him his money : in fine, thii^ rule was no longer observed by the 
Senate of Milan.^ 

27. — Another change which happened in ihe Fiefs 

In Charlema^e's time they were obliged/ imder great penal- 
ties, lo repair to the general mectirg in case of any war what- 
soever; they admitted of no excuses, and if the count exempted 
anyone he was liable himself lo be punished. But the treaty of 
the three brothers*^ made a rcslrictron upon this head which 
rescued the nobihty, as it were, out of the Kinp's hands, tiiey 
were no longer obliged to serve him in time of war; except when 
the war was defensive.^ In others, they were at liberty to follow 
their lord, or to m:nd their own business. This treaty relates to 
another/ concluded five years befoie between tlie two brotliers. 



y Book I. clisp^ T' 

« Al Icitt m Iwj ftnd Gtmanr^ 

{Book I- c( ficitk, chap, L 
Ibid. 
fCtpituUnr of the Yr*r Sol* ut. X 

J " Ai>^id Nfannfm, lit th« T^u Sl7. 
Bilwiui* cditloa. p^ 4'- 
r"Vo[ninii« ut ciBJuKumqu« oixtrotn 



hr>nf> in cujuicumQMt rt^no fit. c^an 

ulil'TMiSui, pRir4?. niii i«lin ftcnL tn- 
»fl*io Qunm Lintus-cTi dicafil* qwA 
AbiiT. fccidcritp til f>rfinik t>i>P^>'ii* iM'v* 
fcirni Ad fltm rcT<cLlcai1jun cirnoiuniTvr 
pct»f." wt. n. ihii. p. t* 

ilui, Oti^tuU^e*, torn. S. p^ j^ 



I 



* 



THE SPIRIT OF LAWS 



w 



Charles l!ic Dald and I^tiU, King of Ctrmanjr, by which ihcK 
princes release ihcir va»»Ab from &crvmg them in ^ar, in eaao 
they «houtd attempt hostilities against each other; an agree- 
ment which the t\^'0 princes confirmed by oath, and at tbe same 
lime marfc their ftrmie* swear to it. 

The death of z hundred rhoiuand French, at the battle r>f Fon< 
tcnay, m^dc the remains of the nobility imagine that by flie 
private quarrel* of their kings about llicir rcsfjcctivc shares, 
tbeir whole body wovld be exterminated, and that the ambition 
and jealousy of those prince* wonW end in the destruction of all 
the best families of the kingdom, A law was therefore passed^ 
that the nobililY should not be obliged to serve their princes in 
var unless it w^s to defoid the slate against a foreign invasion. 
This taw obtained lot several 2^cs^g 



3& — Changes whUh happened in the greet Offices, and in 
the Fiefs 

The many chanf^en introduced into the fiefs in particular case?^ 
seemed to spread ^o widely as to be productive of general cor<> 
nation. I nodced that in the beginning several fiefs had been 
alienated in perpetuity; but those were particular cases, and tb« 
fiefs m general preserved their nature: so that if the crown lost 
some fiefs it substituted others in their stead, I observed, like- 
wise, tliat the cfown had never alienated the great offices in per- 
pctuity> 

But Charles the Bald made a general regulation, which equally 
affected the great offices and the ficfSn He ordained, in his Capit- 
ularies, that the counties should be given to the children of the 
count, and that this regulation should al^o take place in respect 
to the fiefs.> 

We shall see presently that this regulation received a wider ex- 
tension, insomuch that tlic great offices and fiefs went even to 
(fistant reltitivcs- Tlience tl followefl that mo&t of the lords who 
before chis time had held iniTOcdiaiely of the Crown held now 



rS*e ih« lavf of Ciiy, Ktne of ih» 

Roman I, Jinionf ihtt*t whicn w*rc 

tb* Ldmbardi, TiL 6. ttc. ^ !□ Bdurd' 
tk Sdiiae auiL^jEt i^rcri^iiil itifel tlic 
COUBtT at Trmloutv hid httO R^VrC 
mwmy bf Charln MuTcl. tn-1 i>4Vw] \ty 
inlienUnec Aown io HArm^J, the lirt 
CQunf» bm. il ihii br true. iL wk& Dviof 

Vol. II.— ij 



Id ■oidv rlmimiiuiref wTiifh mlahl 
h»v< been in in-luc*incni la dioo»e Uib 
Count* *.'i Toul i«)H- rrv'iik tmong ili« 

• Stv hi^ C«|>il<«1*'r ol lite YvV 9j7t 

KunP Tli'ii rikplfuUfy l>tar> r(T«li<Hi 

IO MUlhet of Vat ume jnvr «nd plicc; 




»s« 



MONTESQUIEU 



mediately. Those counts who formerly administered justice to 
Uie King s plocita, and wlio led the freemen against the enemy, 
found themselves situated between the King and his freemen; 
;md the King^s power was removed further off anothrr degree. 

Ag:ain» it appears from the Capitulariosj that the coitnb had 
be;iefice£ annexed to their counties, and vassaU under thcRL 
When the counties became hereditary, the counts vas^Is were 
no longer the iinmediaie vasi>aU of the kin}:; ^^^ the benefices 
annexed to the counties were no longer the king's benefices; 
the counts grew powerful because tlie vassals whom they had at* 
ready under them enabled them to procure others. 

In order to be convinced liow much the monarchy was there- 
by tvcakencd towards the end of the second race we have only to 
ca*i an eye on what happened at the bcpnning of the third, 
when the riuhiplieity of rear-fiefs flung the great vassals into 
despair. 

It was a custon^ of the kingdom ^ that when the elder brothers 
had given aliana to their younger brothers the latter paid hom- 
age to the elder; so that thos? shares were held of the lovd para- 
mount only as a rcar-fief. PhtUp Augustus, the Duke of Bur* 
gundy, the Counts of Nevers, Boulogne, St. Paul, Dampicrre. 
anfl i^fhcr Inrds declared I that henceforward, whether the fieft 
were divided by succession or otherwise, the whole should be 
always of the same lord, without any intermediation* Tliis or- 
dinance was not generally followed; for, as 1 have elsewhere 
obiiervcd, it was intpossible to make (general ordinances at tliat 
time; but many of our customs were regulated by them. 



• 2Q.~0f the Nature of the Fiefs after the Reign of 
Charles the Baid 

We liave observed that Charles the Bald ordained that when 
the posfies«or of a great office or nl % fiel left a son at his deatll, 
the office or fief should devolve to him. It wniifd hr* a diffimlt 
matter to trace the progress cf the abuses which thence rcsultctl. 
and of the extension given to that law in each country. I find 



> Th« iKlr.> C*pL*i<l«rr of t"^* r**' ^^^. 
ait. 7. «od (hal of lh« y«T Pfr;, an. t. 

Inc Cftpiti]1aHri> book j, «rl. uj. and 
|h# f^Hp.mliiry nf lh« yfMW 8Ao. 4ft t^ 
«nd that «E th« ytu ^, mil IJ. lUlu- 
tliii'* tuition. 



"ol Ihe KUira% tii Frnlvrit" book II. 
I Set il]« ordininc* of Philip Aun^ 
tJfln. 



THE SPIRIT OF LAWS 



159 



in the boolc^ ol ficr5,m ihai towards die bcginomg of the rdgn o[ 
the Emperor Conrad 11 the ficfs situated in his dominions did not 
descend Lo the gran<IchiMicti ; they descended only to one of the 
last fraMcssor's children, who had been dioscn by the lord;" 
thus the fiefs were given by a kind of elcctioiij which the lord 
made among the children* 

In the seventeenth chapter of this book wc have expbined in 
what manner the crown wa* in some rcsp«!ts elective, and in 
Others hercflitary under the second race. It was hereditary, be- 
cause the kin^'i were always t^iken from that family, and because 
the children succeeded: it was elective, by reason lliat tlie people 
diose from amon^ the children. As thiiiffR proceed step by 
step, and one political law has constantly some relation to 
another political law, the same .spirit was followed in the suc- 
ccEsion of fiefs, as had been obscn^ed in the succession to the 
crown.0 Tiins the fiefa were transmitted to the children by the 
right of succe^ion. as well as of election; and each hcf became 
both elective and hereditary, tike the erown- 

This right of election P in the person of the lord was not sub- 
sisting at the lime of the atithors? of the book of ficfs^ that is, 
in the reign of the Emperor Fredcricl; I. 



30.— r/itf same Subject continued 

It is mentioiied in the books of fiefs, tliat when the Emperor 
Conrad set out for Rome, the vassals in his service presented 
a petition to htm that he would please to make a law that the fiefs 
whicb descended to the children should descend also to the 
grandchildren: and that he whose brother died without legiti- 
mate heirs might succeed to the fief w^hich Iiad belonged to their 
common fathers This was granted. 

In ihc same place it is said (and we arc to remember that those 
writers lived at the time of the Emperor PrcdcncK I) J " tliat 
the ancient jurists had always been of opinion ' that the succe»* 

fidietntirr, i^itum »t ■ flE|e][biji c)ui 

StottinlE^^ k. hnc rutm id nrpotei *x 

ffrtUt imc If^iiimn hvrvde deluncio In 
brnrficin riTi'.d forufji rATfti fiiit. "Oe- 

CcdaT-'*— Rni>t r ill licfi, llr, I. 



mFpok T, tit I. 

• " Sic iin^B^f inm p«, nt id filin* 
dtVPhlrtl m qufm D'^mimu hoc vcHcl 

bcnf-ficl'ii" confirm.ir* " — f liid. 
At Iraat in Italy und r>crislfi7- 
*"Oii'>d hM+r Ha itnhjlihim Mt, ul 

of the hti%. iif I. 
«Gcru-du4 N^g«r >nd Antiertaa dc 

r'^Cnm vtro Crandui Ronua pio- 



■ Tiijai hai pMvwl \t tJitttratW welt 

t Sciendum t9t Qllnd bfneficiudl 

ftdvrnicnT^a tK liTcrr. uliri (ni»« pt 

irucls non progrvdJtUT tuacetiionc ■> 




MONTESQUIEU 



siou cpf 6c(5 m a collateral line did oot extend further tfian to 
brothers -germ An, though of late it wa,i carried as far as the sev- 
entli degree, and by the uew code they had extended it in a di- 
rect line lit in^ftrinm." It is thtu that Conrad's law was insensi- 
bly cxtef ided. 

AH thc5<r things !>emg suppo£e?d, the bart pt^msal of the tiifl- 
tory of Fratifc i* .sufficient to demonstrate ihai the "perpeniiiy of 
fiefs was established earlier in this kingdom than in Germany. 
To^-ards the commencement of the reign of the Emperor Con* 
rad If in 1024, things were upon the same tooting still in Ger- 
many, as they had been in France during the reign of Charles 
the Bald, who died in 877. But such were the changes made in 
this kingdom after the reign of Charles the Bald, that Cliarlcs the 
Simple found himself unable to di.KpulG with a foreign house 
his incontestable rights Co the empire ; and, in fine, that in Hugh 
Capet's time the reigning family, stripped of all its demesnes, 
was no longer in a condition to maintain the crown. 

The weak understanding of Charles the Bald produced an 
equal weakness iu the French monarchy. But as hi& brother, 
Louis, King of Germany, and sonic of that princes successors 
were men of better parts, their government preserved its vigor 
much longer 

But what do T say? Perhaps the phle!gmatic constitution, and, 
if I dare use the exprefsion, th<? immutabilily of spirit peculiar 
to the German nation made a longer ctand than the volatile tem- 
per of the French against that disposition of things, which per- 
petuated the fiefs by a natural tendency, in families. 

Besides, the Kingdom of Germany wa* not laid waste and an- 
nihilated, as it were, like that of France, by that particular kind 
of war with which it had been harassed by tlie Normans and 
Saracens. There were less riches in Germany, fewer cities to 
plunder, less extent of coa*t to seour, more marslies to get over, 
more forest to penetrate. As the dominions of those princes 
were less in danger of being ravaged and torn to pieces they 
had less need of their vassals and consertuently less dependence 
on them. And in all probabihty. if the cirperors of Germany 
had not been obliged to be crowned at Rome, and to make con- 






culi* rlcicFnTlrniiSttv novo jure io Is> 
ntiUaa enteadiiur-"— Ibid. 



THE SPIRIT or LAWS 



>6i 



and PxprHTlinns into Tialy, the fitfs would have pr«M*vecl their 
primitive nature ntuch longer in that country. 

31, — In ivhai Manner the Empire tvos transferred from the 
Pamity of CImrUmagne 

The empire, which, in prejudice to the branch of Charles the 
BaW, had been already given to the bastard line of Louis, King 
of Germany,** was transferred to a forcitfn house by tJie tieclion 
of Conrad, Duke of Franconia, in 912. The reigning branch in 
France being hardly able to contest a few villages was much less 
in a situation to contest the empire. Wc have an agreement en- 
tered into between Charles the Simple, and the Emperor Henry 
!, who had succeeded to Conrad. It is called the Compact of 
Bonn-f These two prii:ces met in a vessel which bad been placed 
in the middle of the Rhine, and swore eternal friendihip. They 
used on this occasion an excellent middle term, Charles took 
the title of King of West France, and Henry thai of King of East 
France. Oiarks contracted with the King of Gcimany, and not 
with tlie Enipcroi, 

32,— /ff what Manner the Cr<nvn of France lijas transferred 
to the House of Hugh Capet 

The inheritance of the licfs, end the general establishment of 
roar-fiefs, extinguished the political and formed a feudal govern- 
ment. Instead of that prodigious niuUitiide of vassals who were 
formerly under the king, there were now a few only, on whom 
the others depended. TIic kings had scarcely any longer a di- 
rect authority; a power which was to pais through so many 
other and through such great powers either stopped or was b&t 
before it reached its term. Those great vassals would no longer 
obey; ard they even made use of their rear-vassals to withdraw 
thdr obedience. The kings, deprived of their demesnes and re- 
duced to the cities of Rheims and Laon were left exposed to 
their mercy; the tree stretched out its branches too far, and the 
head was withered. The kingdom found itself without a de* 
mesne, as the empire is at present. The crown was, thcrtifore, 
given to one of the most potent vas^ls. 

The Normans ravaged the kingdom; they sailed in open boats 



■ Amalil and hli son Lmiit IV. 

V In ihfr yrar ^A, quoioi by Auberl 



le Mire. "Cod- doiailoaum plamm," 
chaii. 3L]Rii, 




90» 



MONTESQUIEU 



or flmd] vcMcb, cntewd thr mrttiih* of riv<*rs, and laM the coun- 
tiy w^xe on boih sidr5. The cilies of Orleans and P.-iri* put a 
stop to those p^Iiiniterers* so that they coald not advance farther, 
either on the Seine, or on the Loirc.tt' Hugh Capet, who was 
master of those cities, held in his hands the two keys ol the un- 
happy T^mains of the kingdom; the croiA-n was conferred upon 
him as tlie only person able to defend it It is thus the empire 
was ahcnvards given to a family whose dominions fonn so strong 
3 barrier against the Turks. 

The empire went from Charlemagne'* family at a time ivlien 
the iubcritancc of liefs was established only as a mere conde- 
scendence. It even appears that this inheritance obtained much 
later among the Oennans than among the French; j whidi was 
the reason that the empire, considered as a fief, was elective. On 
the coiurar\, when the crown of France went from the family of 
Charlemagne, the iicfs were rc-ally hcreditar)- in ihi» kingdom; 
and the crown, as a great fief, was also hereditary. 

But it is very wrong to refer to the very moment of this revo- 
lution all the changcji which happen^. eith« brfore or after- 
wards. Tlie whole was reduced to two events; the reigning 
family changed, and the crown was united to a great 6ef. 



I 

4 



33. — Si>fnff Consfquffnctt of \he PerpeHttty of Fufs 

From the perpetuity of fiefs it followed, that the right of senior- 
ity or primogeniture was established among the French. This 
right was quite unknown under the first race;y the croun was 
divided among ihc brothers, the allodia were nharcd in the same 
manner; and as llic fiefs, whether precarious or for life, were nut 
an object of succession, there could be no partition in regard to 
ihof^e tenures. 

Under the second race, the title of Kmperor, which Louis the 
Debotmasre enjoyed, and with which he honored hit eldest son, 
Lotharius. made \\m think of giving this prircc a kind of su- 
periority over his younger brothers. Tlie two kings were obliged 
to wait upon the Emperor every year, to carry him present-?, and 
to receive much greater from him; they were also to consult 



th* 



"«( 877. "*p\iA CaH^i- 

'tnmilanrr ft| f'irl». S», 

rnlei on Eba i^ire, in 



rSee th« Sitlic f^v. and \\it Urn of 






m Iha |i|l« </i "^ 



THE SPIRIT OF LAWS 



'Cj 



with him upon common affairs,^ Tlits is what inspired Lotharius 
with those pretences which met with such bad success. Wlien 
Agobard wrote in favor of this prince.0 he alleged the Emperor's 
own tmention, who had asf^ociated Lolharius with the empire 
afccT he had consuhed the Almighty by a three days' (ast, by tlw 
celebration of the holy niystcricB, and by prayers and almsgiving; 
afterthcnationliadswomallei^ancc to him which they could not 
refuse without perjuring themselves; and after he had sent Lo- 
thahus to Komc to be confirmed by the I'opc. Upon all this he 
lays a stress, and not upon his right of primogeniture. He says, 
ipdecd, that the Emperor had dcMgtied a partition amcng the 
younger biotlier^, and tliat he h^d gtvcii thcr preference to the 
elder; but saying he had preferred the dder was saying at the 
ume time that he might have given the preference to his younger 
brotliers. 

But a* soon as the fiefs became hereditary, the right of senior- 
ity was established in the feudal succession; and for the «ame 
reason in that of the crown, which was the great fief. The an- 
cient taw of partitions was no longer snbfiisting; the fiefs being 
charged with a service, the possessor must have been enahkd to 
discharge it. The law of primogeniture was established, and the 
rif;ht of the feudal law was superior to that of the political or civil 
irstitution. 

As the fiefs descended to the children of the possessor, the 
lords lost the liberty of disposing of them; and. in order to in- 
demnify themselves, they established what they called the right 
of redemption, whereof rjcrtion is made in cur customs, which 
tt first was paid in a direct line, and by usage came afterwards 
10 be paid only in a collateral line. 

The ficfs were soon rendered transferable to strai^gers as a 
patrimonial estate. This gave rise to the right of lords dues, 
which were established almost throughout the kingdom. These 
rights were arbitrary in the beginning; but when the practice of 
granting such permissions became general they were fixed in 
every district, 

Therightcfredeniption wastobepaidat every change of heir^ 
and at first was paid ev<n in a direct Hne.fr The most general 



t S*« th* CftpiTulary of tlie y*»f »iT, 

«ycfa Gonciifih the first ^tLtlJIion m^de 



?rt hit tm f«tt«n bpoa thf< tub- 
fcrt, ihe (lEle of one of which it " d« 

hT^rt the orilLmncr of Philip Ati- 
(uilut. >n thtf ycEtf I9vg» on tba l*fL 




z64 



MONTESgmEU 



custom had fixed it to one year's income, TTiis was burdensome 
anci inconvenient lo the vassal, and affected in sonie iiiea»ure the 
fief iuelf It was often agreed in the act of homage that the 
lord should no longer demand more than a certain sum of 
money for the redemption, which, by the changes incident to 
money, became afterward:^ of no manner of tmpoHance.^ Tinjs 
the right of redemption is in our clays reduced almost to noth- 
ing, nhile that of the lord's <iue5 is continued in its full extent 
As this right cona-rrcd neither the vassal nor his heJrs, hut was 
a fortuitous cast: which no one wa:^ ubiiged lu foresee or expect^ 
these stipulations were not made, and they continued to pay a 
certain part of the price. 

Whcti the fiefs were for h'fe, they could not give a part of a 
fief to hold in perpetuity s.s a rear-ficf; for it would have been 
absurd that a person who had only the usufruct of a thing should 
difipose of the properly of it. But wh^n they became perpetual, 
this was permitted,'' with some restrictions made by the customSp 
which was what tliey call dismembering their ficf.' 

The perpetuity of fetidal tenures having established the right 
of redemption, the daughters were rendered capable of succeed- 
ing to a fief, in default of male issue. For when the lord gave 
the fief to his daughter, he multiplied the cases of his right of re- 
demption, Iwcause the husband was obliged to pay il as well as 
the wife.' This regulation could not take place in regard to the 
crown, for as it was not held of anyone there could he no right of 
redemption over it. 

The daughter of William V, Count of TouloiLse, did not suc- 
ceed to the county. But Eleanor succeeded to Aquitainc, and 
Matil<la to Noniiand> ; and the light of tlie succession of lecnale^ 
»cenicd so well established in those 6sty», that Louis the Young, 
after his divorce from Eleanor^ made no difficulty m restoring 
Guiennc to her. But as these two loft instances followed close 
on the first, the general law by which the women were called to 
thcsuccestionof fiefi murt havcbefn introduced much later into 
the county of Toulouse than into the other prnvincei^ of France.! 



t Wc find *e*trftl of tht** conv^otloM 
1a Vti« ch^nrr*. u tn (he rcf iiter bi>i]k 
nl VFcrfAmf. inJ that of ihe o'3i>py (n 
St. frtf^nn in ruitoii, of wliich Mr, 

dHw xhrf »uld not iL>riiJiEf luc 
Ma: ihM u, tboliAh a ponE»D ol It 



fTlirr flifd ihe poniMi vUch Owy 

CoulJ diBmeniber- 

fThii viat ihv rMKin ihit tht l«rda 
obUflfd ilic wldoi' to fnirry «r«ttL 

f Mn^t «r the er<^i Umil^fi KlA ihelf 

tli« Jjunillo of BtrrL 



I 



THE SPIHIT OF LAWS 



t«9 



The constitution o( Kvcral kingdoms o( Europe bas been di- 
rected by the stale oi feudal tenures al the time when those king- 
doms were ioimded. The women succeeded neither to tlie crown 
of Fnncc nor to the empire, because at the foundation of those 
two monarchies they were incapable of succeeding to ticfs. But 
they succeeded in kingdoms whose foundation was posterior to 
that of the perpetuity cf the 6efs. such as those founded by the 
Normans, those by iZie conquests trtade on the Moors, and others, 
in fine, which were be^und die limits of Gvmiany, and in later 
times received in sonic measure a «>ceond birth b^' tlic estab- 
li»Iiinent of Chmtianity, 

When these fiefs were at will, they were given to sueh as were 
capable of doing service for them, and, tliercforc, were never be- 
stowed on minors; but when they became perpetual, tlie lord* 
look the fief into their own hands, till the pupil came of age, 
diher to increase their own emoluments, or to train ihc ward to 
the use of arms.A This is what our customs c^ll " the guardian- 
ship of a jioblenian's children," which is founded on principles 
different from those of tutelage, and is entirely a distinct thing 
fromit 

When the fiefs were for lifc» it was customary to vow feahy for 
a fid; and the real delivery, which was made by a sceptre, con- 
firmed the fief, as it is now confirmed by homage. We do not 
find that the counts, or even the king's commissaries, received 
the homage in the provinces: nor is this ceremony to be met 
with in the commissions of those officers which have been hand- 
ed down to us in the Capitularies. They sometimes, indeed, 
made all the king's subjccis lake an oath of allegiance; i but so 
far W35 thia oath fium being of the same nature as the service 
afterwards csUblishcd by the name of homage, that iL was only a 
ceremony, of less solemnity, occasionally used, either before or 
after that aet of obeisancci in short, it was quite a distinct thing 
from homage./ 



h We «ee in the CipEtulif)- cl ihe ytftf 
tiT, " aiitKi Cv^iiactiin," Jirt. .1. n>|u- 
aiut'i rdiiiLin. lom. it. p. tin. ihc mo 
mrnt ID which (he kinui ctuic-i (he 
ficli tf> be ■dffliiiiBiirca iu unicr la 
pTtiervc ibrm f<>r ihc mln«r»i an e«- 
•ni[>Le loiluwrd by the iurJi* tad wliirh 

6 Rye ri>c 1" *hat ve have nienEiOMd 
r ihe ftAinc (if " [he KimrU^AQiMp ol 11 
noblnnan'v ehiMrfn-" 

iWe hnil ih« ruiiiiula ihtrfof In ihe 
•flCond Capitutory at Ibc yctr So^ brv 



OThfTl- 

t M, 6^J C«njr« in lh« word " 1ia- 
minium," p. uttji. and in iht wotJ 
" ftdctiTAi, ■ p. 4J4. cf!t» th* chincrt i-pI 
ihe tnL-Jml hnm^iirrt nhrre t^«t^ itl(' 
IcirJicci arc laufnJ, and 1 qrral numhrt 
<pf »uthoriiiti wiiich mny w urn. In 
piyliiK hoinafTV. The VB>ul put hi4 haful 
on !hjil [if hii loM. ind took hj» <^ath; 
tlic oBi]i (if \<rit-\M waK mmte hf nwrnt' 
Inn CO Ihc t^%yv\u. Tli« bonugc w»i 




366 



MONTESQUIEU 



Tlie counts and the king's commissaries further made those 
\-assals who»o fidelity was suspected giv^ occasionally a security, 
which was called firmitas,^ but this security could not be an hom- 
age since kings gave it lo each other.' 

And ihough the Abbot Suger '" makes mention of a chair of 
Dagobcrl, in which according to the te&timony of antiquity, the 
king* of France were accustomed to receive the homage of the 
nobility, tt is plain that he expresses himself agreeably to the 
ideas and language of hU own time. 

When ihe fiefs descended to the heirs, the acknowledgment of 
th<- vassal, which ai fii&t wa5 only an occasional atfrvicc, becsune 
a K^giilar duty. It was performed in a more splendid manner^ 
and attcLidcd with more formalities, because it was to be a per- 
petual memorial of the reciprocal duties ol the lord and \-assal. 

I should be apt to think that homages began to be established 
under King Pepin, which i* the time I mentioned that several 
benefices were given in perpetuity, but I should rot think thus 
without caution^ and only upon a supposition that ihe authors of 
the ancient annals of the Franks were not ignorant pretenders," 
who in describing the feahy professed by Tassillon, Duke of 
Bavaria, to King Pepin, spoke according lo the usages of ihcir 
own time.o 

34.— T/if sam^ Subject conlinucd 

When tlie fiefs were either precarious or for life tliey seldom 
bore a relation to any other than the political laws; for which 
reuMJii iu the civil tnslitutions of those times tliere is very little 
mention made of the laws of 6cfs. But when they became heredi- 
tary, when there w^s a power of giving* selling, and be<^ueathtng 
tiirm, they bore a relation both to the political and the civil laws. 
The fief considered as an obligation of perfcrmiug military ser- 
Tiee, depended on the political law; considered as a kind of 
commercial property, it depended on the civil law. Tins gave 
rise to the civil regulations concerning fcitdal tenures. 



fitoilknff, None but ihe lurd ^ju]i1 r<- 

nke 1b« oaUi of fdlty— S« UTTkTuti, 
K«^ «i. v. f«>ih fttiJ homiLae, ihat \^ 
Mwjtr tad boniuc^ 

* CiOlLulBriet ofCturlra the BaM 10 
Ihf TV4' iVPb "poll rcdilum 1 CunUu- 
tnliliTiO ■ft' J. UiiliuiuVl editi&SL p> 

Tlt>ld. Ml. I. 



■ Anna m. chlifh nvii. 
1 " TjAimilo vcnil in TunticD K tntt^ 
rn«i<lan*. per muflu* ucniBCBia jurivit 

rum EiiJifiu* iiTiEiunrrik c1 ^dchi&lml 
pcomiiil r*iti Fi|>j»mo."' One ^jrviiU 
Ih^ok TlkAt h«Fe vAt an honuge ahJ i« 
oolh ul fetUr- Sec the note j, prccr^ 



i 

I 



THE SPIRIT OF LAWS 367 

When the fiefs became hereditary, the law relating to the order 
of succession must have been in relation to the perpetuity of fiefs. 
Hence this rule of the French law, " estates of inheritance do not 
ascend," P was established in spite of the Roman and Salic Iaws,g 
It was necessary that semce should be paid for the fief; but a 
grandfather or a great-uncle would have been too old to per- 
form any service; this rule thus held good at first only in regard 
to the feudal tenures, as we learn from Boutillier,'' 

When the fiefs became hereditary, the lords who were to see 
that service was paid for the fief, insisted that the females who 
were to succeed to the feudal estate, and I fancy sometimes the 
males, should not marry without their consent; insomuch that 
the marriage contracts became in respect to the nobility both of 
a feudal and a civil regulation.' In an act of this kind under the 
lord's inspection, regulations were made for the succession, with 
the view that the heirs might pay service for the fief: hence none 
but the nobility at first had the liberty of disposing of successions 
by marriage contract, as Boyer ' and Aufrerius « have observed. 

It is needless to mention that the power of redemption founded 
on the old right of the relatives, a mystery of our ancient French 
jurisprudence I have not time to unravel, could not take place 
with regard to the fiefs till they became perpetual. 

Italiam, Italiam v 

I finish my treatise of fiefs at a period where most authors 
commence theirs* 

p Book IV. *' de feudii." liL 59. of m fief ilull ^Tt iccariCr to (he lord, 

f In tfae litJe of " allodLa." tfamt the 1I14II not be married withaut 

r"Si>mfne Runle," book I. tit. j6, hli conienL 

p. M7. f Decision t;;. No- 8 and 304; and 

J According to an ordinance of St. No, j8, 

Louii, in tht ^tar 134^ to settle the win Cafiell- Thtil. decision 45^ 

cuitoms of Anjou and M^ine; thoie v** Mocid," Mb. HL 1. $2^ 
who afaall have the care of the heireM 



INDEX 



AtMiiani, tevvrB knl of Ilic. i1. A* 
AbbotiMlii bi^Mtik. Elcutan <4. H. Mt> 
AccyptficM In di£Fcrvii( Buvdnineiau, 

L to 
iome nvitiiriRM furliiciitBr ^»d*n' 
tkiQ And pruJ^nc*. i. 1B7 
Acciuen, fAtar, branded ■! Rooio, *, in 

ActioQi. let (i^m oJ, how Imro^fuccd, 

i. 76 
Ad(i>liun ttrnunir the Ccrmint, i^ jSg 

ho cliiMrca 'jf (lie chiUm ol ber 
bvfeliHBd. ii. to 
condetiia<!d lu ihc vrdcfti by w*ter 
»inanfi tht Camiftn*. ii- mi 
AduUenr. jiublic Accuuiiifmh i>L undrr 
the Romui I1W. ItA btQcfit^JKl 4I' 
(cert, i- 4S, fi>j 
law «l lh4 X]aiHo(1i>. ti. 7^ 
why dillercnlCy rciiuidctl tr the bus- 
bind Hid is ih« wifr, ii. £s 
Ail]rmj3iilcvi, wlky tiidrcd Irvni dulh^ L 

'^ 

AiritA. >lAla 0I propEe cf, L jjj 

Th* eirciiii of, l J4JJ 

Hanrio't vOjratftfiy 1, jji, ^ 
Affnhiir*], Icitft of, ii B*. 00 
Agtti'ivi Uk* r«)nircltd by Cicero ti 

urjuiit, it. ?) 
AffLCuIiurc « invilf (irriffuion among 
Ihf r.rfrku i. iH 

honarril in China ind P<nia» L ^37 
AlcibivdcH, itrtinr (if, '%. 43 
Alcnunk, U*t of iHe. i. jp^ 144 
Akiindcr, bin carvrr. 1- m 

ei^ni[>*riMn brtwcca him ood Cvht, 

hi! etrn<juc*it. L 141 
ironical rrcnnrk*, IL Jit 
AleiAndcr VI divLiIet tb< itvw vorlda 
bfiwrm rhv $r>Aniflrda and (Tic 
l*vnu(uc*p. L Vij 
r«1ut 



olhn vanoni r«1uH to «bidc by 



AJrandria. irjundtiioa of. t 



AlTrtdial land*. I»v rvUjmi fi>> L jflj 
ho* cUiinffid iPtf) EiirrH, U. JJO 
tttalrx, ii. 1^ 

ArnbAAkiduTi, rcaton lor tbt prtfBfg w 

Americi. iliic^rftry of, i, M 
iu cf>nM(|urtirr«. i jW 
cunuij(iencc« m ^pjfn^ L J70 
«oil 01 It* TiroJucrii«nt«. i. in 
Lu populdUinraa, I, j^ 
Anphictyo*. )4« of. ooi pnidfAl, iL i«| 
Amymonvt. thr invipoiiafft^ Miaffjt 

mtu* anodi ibc GvldkAi. L ijt 
AnMita^ hi* ckMCftcy • nUolw. L 



Att««tor^ rvltfiuW B^OB*' «f 0itf. Ji- 

AnoivMia, • p«i«d'>« <>( lite, •. jr 

had nnl a cJcat idea ol pioturchy. 

C4min?rr« of Ihe. L $u 
Anlu4 Aifitlu» t^'i<-i)l» Jiii dfeU|(hlfr 
Ilia tole hcjr and fx«LilFii-. 11^ S9 

V'rrri vHnrtuutTv »«> ihka AAfd^ ii- 
»7 
Annmtftnlt. {>»hlk, ,*#br (h*T ftOVlv* 

tprciat brotcctk>n. I. jm 
A rkfi n7iTt»ii>i Mltfi^ L #u 
Anihri>poiibAfL. ihe. I. jja 
ArirL(kti<r. hi* vvlinc law, I tf 
Antrut(io». or voHAit. ii, iga 

rbtir prop*flr. If io» 

comjjoi^T[4n lor ib« dcitlh oL }!■ 'IJ 
Apftnl «- dfflBiiH oi iiull««h iL i^^i 

Apptfil of falte JuditniFtit, il I'l 

condeiDoed 6y Sl Loub, 11, iJ| 

it* danffrr. 1£ 116 

rccnirki, ii- ijA 
A:>piii4 f1i* drcrpttir. t. fti 
ArfthiK tnd (he liMiot, comowrtt of 

the Rnniani with, 1- U9 
Ar^bfli. 1ib«F|) uf ibe. i, 179 

annual t*u*-f, ii 1? 

in H«rbiry. crdrr of vuectuloa 
anrnnd ihr. il, n« 

drink ol ihr« i. lA 
Arco[iinii. thr. id membtrf cbown Car 
life. 1- 4« 

riftitiplea of Ut bidffnienri^ i. 70 

a coun nnpeii, 1. 77 
Arrive*, (Tuelly of the. I, >4. At 
Ariqna, n dri^ti TPaum^ i, j|i 
Ar4ii4Vipoi' aiecdo'f ol. f. jjy 
Arixuicntj. jtt cnnaitruhoo, L 11 

nhij^n oi, i. 13 

tho fjcti and ib« «or«t klndi of. 

I, If 
vlnuf nnc ibkoltitcly nquiilt* Id 






diiofdcf, 



luo priatiiiAl boiucp 
comjpHos of lu prlacTpltf. L lu 



\ntHfliifj tj^MotnKf, L i» 



ArliiaderauK the ^t*ni 



UB^ L 



f41 

ArlcioiU, on dernocTBtlc co«dllutb«^ 



atrU4 10 tb« Mva, 



S69 



on ■***^^^UL 

hi* ^IHoiopi^ ctfrirf 

on tbr numhrf «f cbtUfCV. IL II 
rvmait om. iL rj^ 
An«jifnti iTutt All hi« aumn lo 
dcatli. L di 



M 



>70 



MONTESgUIEU 



AiilTi! 



Artluni lilUe «tt««cncd in the Creek 

Artt. nmnb«r ol inbibiuaii wiih rdt- 

iion to lb^ II. 
A>i4, clinuu U,L lU 

CQnMqncaoti moTiliig ihentrom, i 

4 cauncrj' ol Brm cmptrn, t. jSS 

AtK-mblift, publtc. tixeit autaotr yrhj 

/ilicuiaoii Hie, lenient to that «1atc*. 

I- 4M 

corai*«Kv ol ilic. L .tjo 
Athenluu 4ni] L*c«i]TiiiuDl*aik ibe^ 

ci»tr»Ecd, L M 
Atbciu, division ol ihv peujjic liy So^ 
kHi I. JJ 
»£in*rj tiftiwili vt. i. «i 
nutitt* U« at. L 4) 
AihlftU MtB' ihrii tciidciKj. L ^ 
Atbvilpip ualuppy itite of tbc Ynca, 

il. /ft 
AtUiuder, bklU of, Jn Kncbnd, L 19); 

Augv*tuip uflencc civcn by, Fu (he R& 

eibotu Ihem tu qivhaicc, iL i) 
hi* Uw «n £uc<f»'icn and Ic^cica, 

ti' iS 
thi* lojiencd hj aucccfdins tin' 

[■cnrt, it. tS 
hiB r*lo*rn», 11, J7 
AdIui Fulviu* put to duib t>y hil 

Aannjtt^hf. upng of, li. >t 
Au4trU, ittt^vnt a tli< llvuse vf. L 
367 

ItAdrian*. hurriil eailom of the, ■up' 
prcixd hj Alchfrnder. i- 1^ 

lUrlJa, Ihr liWer monnrHitii of. i. 3^4 
fijmlkcr. 111* £4tn>, I. ^7 

n'saUncr llir utiitc cna^ d^iw from 

fUnWnji>t, PhiHp II nf Spain, i, jUr 

|lAfb*riAnA. commrrM ttf tba Roamt 
with. L JiM 
Liv» af Iht, kll prrMiul, tL m 

how ih«e Iau4 (ftniF to b« loir, 
il. -u 
Barbiroufl nations, vtTiy Mill/ Con- 

rvvolutton of ifarlr lawv U, T04 

Ardhi in. iL. 6j 
Binl, th« 'n>i»ror> tnc4inhitlf«ii1 con 

ffucE ol, 1, 90 
B*trtrd» in Aiffrrwnt c<TvnTVi«iil^ tl 4 

<1i*ibiltrie» of, IK 4 
TtiaV'^B tH< nnix vetpon ■llwra ■<> 

Tklliint, IK tIJ 

Bayltf. Mr., iputdon ol. IL jy 

fennlTirr, 11. ji 
fieaupniriQir. tsia era. tK i» 

Btattti. hiitc rYLHfty ehiHren. U. f 
Befieire, ihe PrtKidtRt Ac hi" rejlly 10 

Louli xin. i. 7I 

B^nffif'', wlui, it. 9)1 
fiB-ur<K Kinji of It«Iyp bli tutbtroo* 
iraBliBatt iL 047 



Biihopi ucmpl Ifom mDJUry wrvlRb 

J I. 191 
Ihtir cumplnmu on ilir vubjtd. H. 

eleftton ol» ii. 240 
mini] m^n, finmic lucipAcily al. «t 

Huiitc, ii- (ft? 
lllc«f, *c*le at ct-Hoineautlon lof, ii. irj 
Uundrnrn. wbfA cnfrutlaitcd. ti, lit 

nifd 14 tbe ccniua. iL t«r 
l3o>. Abbe du, biv fttuncul ta«ofU*p U. 
90^ lA lA/, 190. loj 
geaeru ides of lii> boob, on the m* 
ubIlstainiQi vt 1&C i-^rcnch mona^ 
cliy in UauT. li, a? 
Iroafca] r«EDark» on tl. tl, Jii 
BoulAiTiirilljefiv an error qf ih« Coiim 

dr. h, ir^ 
BrtAkini: on the wbr<K imr^Tducboo ol 

tire [luniiljineul 1^1, u Hj 
Hmther and >ii(cr, mamagt ot, why 

pu nulled, li, ;q 

Ufothcra ind »»teri in lav. marnac* 
of. ii J I 
why pcFmilUd in lomt rouiattl«. 11 

Itrunehaul, n^ulion of. Ji, tl% 

thai <>E ETian, 1- s 
Bur^undtaa*. Ikva ol ibr, li, M. «/ 

Cicittr, ODfl£B£BiiQn cd food* ioirvdu^cd 

biB i*w aitlaiil bokrdLng iq«b«y, U, 

hi* a«oHni of Ihg Ccrman*. ii. i^ti 

Ma 
CalvlntAtk, f*v4KV> ol Ihc. iL t^ 
Cambjfn, avatli bimiclf of (hit vnper> 

tlllion k4 Ibc Eaypliana, li, 44 
Canon law. the, not applicabit to cMI 

<ao>». iL A* 
Cape ol Good Hope dmiblcd by Ihe 

Ca^iFt, »u]{b, bcco(nf< kins ^( PnnMi 

CapiuL ol Aft cmpin; cbolot of the, L 

Capllal cTtBWJi, ibe r>n1y tiro tmonf Ihe 
GerfnutiA, Il ijfi 

Ca{»ilBl*rJe* (dr Oipitulilofiej), Ihd* 

C4fibii^. flrirniriit^rt nf. i. jj 

praiBvd t>7 ArifllATlf b« » wtU-nf*- 

liird republiC| J- iig 
dinMoclAfia in. L ijt 
1I1C anuto, 1. 177 

tkitAorilLniLrT p<^1iry nf. I )ti. jtt 
voytflra of ItBRnn, 1. jn, ijf 
Carrhafmitn*, fbtir l-ntcwttlmih Xo ll>a- 
nibal, i- it 
AtfBprllM In ttktfldAA lb* AacrMr* 

of cbiEdrfrt h/ *Irlnn, i. tjy 
ihMf liimim aftrT^mpnl*. i j(i 
Carvilink Kiiira. thr cw d. 1, ^j 
Ca«pi»b ^fA, Eifilr Vrrndm l.i iK# tft- 

ciffiti, i, uft 
Cauitrri^fpi. Il-mil^ tfni t« main 1 

urn t<-in«nr m the. f. iju 
Calhnllc Mlfli'^n, ibr nvntt aCTNAble 
tti A mooirchy, tl- jn 
gnl ol Iti bfljfvcri,. ij^t oate. II is 
C«liiHcy, r«n«ntfi(it on, h, ti. j«. 4I 
Ccuon., uo^tT wbai Eowrnffieaii aeo> 

«iMary, 1. ^ 
CefiBorihlp. the Komao. L 119; II. 14 



INDEX 



ffl 



Cmini. the. ■monr Tlie larbanDiiftH ^^- 

mncd onlr "n ibe ^nn^TTktn hiiiJ not 
on ihe ^fmeti, ii. jUr 
C*rM. CjflliaeiniaDB fiFfltrnienfi m iu 

»V 1- JS" 
ChainilaaTTimliui ivosciibu Iht Roman 

law. ii, im 
Champtont m irifal tlutls^ ii, ii^ note 
ChuElcmjifinr. hm CftfitiilAhek, ■)- tQJ 

Wt in([> n«ft«ct, ii. laj 

Ua promttc » lo church Und^ iL 

r^iaMihJirs tllb«^ it. t^j 

hi* giro (n ihr HTgT, U, JJ9 

rr^tiami ih« nobit>iir, IL J44 

bi"hi:ir^TKi Jn (^?Tiiuny. |l. 146 
tiow (h<- cmpitri WAV Lnntttfircd 
from M4 lamilr. Ik, jAj 
CtiarkH ihc llak), tdici of. ii. OH 

calla on thr chufch 10 tupporl the 

Minvl, «A opprcsKT ol the clerETi 

(t»« of Bufopt in hU lim«, U. jjs 

hi* ftrlH, n, iicf 
Chafka M, Amf^oic of. I go 

Lbarln VI Jj csuki loul lutiomi to be 
»ducEd iQ whilna, 11, 154 

Chirki IX. why d«lArcd of aE« •! 
fraDTfean. It, 1A7 

Charlci XII of Sweden, taecdotc cf, 

hi I chanrltr, L 14T 
U]i«rinJ4r«» hi* prvltfrenc? for poverlf, 

i. 109 
CbBJoncl4» Arm tkttljIIftlitO priLaUIr* 
■ntnM fafie wttnetKt. I. 1B4 

Chlldrea uiualTy loll&w (he conditbn 
vt Ihtir Iflhrr* ■■- 7 
llmlUtloQ of iti? number of, ii, 11 
cxMtiaf vl, Uomtn [iqUcy- rcgBrd' 

laf. lI- 'I 

sot i^nnkcd br ^^ Gn-mfni. li- u 
obliged to protide lor IhcLf lithrfi 
M Aihca», eaccpl la ctrttJn casct, 
U. 61 
Chlnjk, Ki^uiy »f, 1. *9 

II4 liul con sequence. L tVf 

dieted by oilier irAvtlleri, 1. "j 
vi»<]i>ni «f ill anoenl vaperort, i 
*?' 

«im< 'if if* l«^4Uiar«. t- ^1 

Chfiitifln^ty, *. JO J 
f4lr<m*l 4iiltii>rify. i- v>j 
explftnttion ol a pArad^^iL. L^ ^ 
•'n.'«>«<'*n '« »He throne, m- iu 

Cln'^ilry, rkie of. ii. 110 

CI*oire, aiiArftC* by, I. u 

Chrlttianity- aim 011 (mp^tible lo b« 
nCHbliMbed In Chink. 1. ptt 



«n enemy lo dP»pe(k povfr. if. 
ha« et(flbll»hed ft law 01 nilton 



U 



Ifi riferl Oft the Romftn {uriipm- 
denee. il- id 

Church Undi, bow GoAvericd into neli, 
iL aat 



neuliTcd by CIothaiiiiB II, ii. m 
CiCfffi no i-'-frH «iillr«tfF. 1. it 

on the- Ronian irtbuae*. 1. J7 

pn Tthrrni* iiT*c:htit^ i. 17J 

on conimfrcc, L jiB 

or) uiriry. 1, jiiB. 401 
C:iloni»n ijdi«oni> ilie. i. rji 
ClDclnUAl^^ frFtYftili over the iribimH. 

CuKj'UAn. M, lie. diuird wlih ft^cb 

trntDHp k. 191 
Civil Euvfmrieai in Fnnce, tt^ntm^, 

II- UT 

liv anions The TirlAfi. and The 

IkCtimn noltoai. l At 
cofTPci* fiSe rdiEioniL, ii, j? 
Jiifi applkable to nuiilert of cuon 

law. li. &4 
u»r to the law of natioiu. If. 77 
ClotHTncy of the pripce. i. qjl «t 

vt(n«iJincf fl mitttke. i. m 
ClorvT. power ai ihr, i1in«eroiit in ■ 

rvpubhC) but Eavor^blc to mgji' 

arehy, 1, i« 
• birrier ■B»Lai( atbUnty powfr, 

1- ift 
lhc*r aiiiliorlij' under ThF firti nca 

of the I'rjnkifth kings, i^ ^ 
In 9 free iiatr. L 31J 
bounds 10 be $<x lo iheir richer ii. 



rlchet of irie. ii- »>« 
iBVnred by PcpLn, b 



hkf fon. it. JJ4 



but oppruacd bj 
lUp ii. jjs 



hi bet, ^t. iij 
Cliin^Lr. law* in relulon lu, I. ut 

e1\ec(4 ol cold •od warm, i. au, au 

agrkullurt. I. «j6 
in<ink4<y, i. jjO 
BObtiety, I. uy 

cTlmale ot En^laad, L iji 
leeniB to pffH^Jbe the bonnJii oJ 
reTiBJoni. \\. 43 
Clothartuk 11, lim^f iin^KiJ an cjinpv^ 
liiiom lor DlTencci by^ ti- iw 
hJ« c-iiiff tniimi^ ji. tit 
Ctovii. Mnfluinary lemfirr of, t. ago 
Co*l pUfi, tdvkrtitcv of. li. 8 
Coin. denavBieDr of, under Ihe Romftd 
*Htp*rfin. \. j^ 
covins trealfd if hish treatoo, L 

101 

dftcmcfy of ihe art. L JT5. »<*»« 
Cold. elTeet <it, on nua. i. xri 

Colofiiea^ irode ot hov ncu^'ted, L 
CohinibtiK. Chnpitnphrr. hii dl«cciiry of 

ConimefcP to b* cjirriefl on by tbr ecm- 

mimirr. not hy iiii1lvi<1tuU. i. jft 

[hniittHt la corrtijit ihe ■ixe. i, uS 
r^rh>ddfn to Iht VenelUn nohl^v 

In bf mItriiFil in monareblea. 1. m 
Knfieni the mjhnneM, i- ]i4 



In diflcrem 



j^ivemmfal*. i- jiS 
eConoiUICJil Oimmefc*. I- IJO 
rijimple of Mara' i lie 1, i, j^q 
Holland. EnjrUn'T. I. ^uo 
rcHtrainu and prohiblUOEUt i ^t 
buki. L Ml 




nt 



MONTESQUIEU 



Codnm^fH. (r» porta Bud IrfivdoiB «1 

noblci iboun oM mm la, i ^ 
lo whftf naliaaa eMBncroc Im prrju. 

dj Elf-rTTk<.'T lirTwcfTt aRc^riiF aikI rioiU 

nu, i, lAl 
•fifif th* cluirucrioa al Ihc WdAern 

brc4ki thruDKri tbc bubtrivn ol 
Kurnit«. i- JAJ 
C«n]i4Tiiiin9. MficrwDfitt vbuiU iL 1^ 
Cfiittiiiat\tina int nmrilcf* it> tcdr. iL Dl 

Ucnit imrn**c4 by QolluiiUiL |L 199 

ConHjiinii ni fJiiMrcn. iL t 

the U^n rticViilnit. I. j^ 
cmmcnl^ but rn nu oititn^ i vj 

iiici4a cI iLuliuB with tac Con- 
quered* i. »» _ ^ 

tomr Kflva]iu|[e« ol u« conquered. 
L 136 

conqumi mt(I< b/ • republic and 
by 1 mnnarcbr. t. ijo 

■CT wfUixta ttl pniCTTLof • tow 
qunt. i- t^A 

11i« iLonua irw^ L 147 
Conr^ilp ihv impcmr hi» Uv ai to Gat. 

other l«w» ol hi*, iL 19. «s 

iJUrH, an iniircAiuit. i. tf 
CooiLiliv the Rijfiian, k I7J 
CoiKimplaiicni it* cili:ti» u. 4f 
ContlMQcr. public L ifli 
CB|lMffe M pnj^HiinuJ t^Ihc t9 wtet, 

CortHb, wQHBCvn of- i »•* . 
CorUtiUi^ unLMBsnomt d1, M* wult, 

I- «M I'l 
ConiHAuilv^^ Om. i. SI 

VOUOT. Lvrd <4, bii. KfOirk mi th« £«£- 

^Uh. J. Ml 
CoUiiCct« niard by tn^DftrT ol ■an. 

CoupM And duJtCT. ii t^ 

Ci>ur«c* a' lb* Kaxbaw ix«r*'v. L f^ 

mdtk fobUe. MOTiBarr to br mppgn- 

*d, t- Hd 
CMtb iifitfultf Itudtotinn li^ L ifd 

Invp of «uniry hk L !■? 

OilJi^n* hit MA** of homr, I. 51 

Olm*!, lour «art> ot. L tBf 

t«<in«b^f, Li, ^ 
OvmaraJt aharaa(*r <rf, •, » 

CrOH, Judsmeni of, iL 115 

Cr»n at IVanH ^anat M rtd tft tlif 

Cip«l4W IL J«* 
Cmui1'«> lb*, hfintf th« Upncr to Cu' 

Cultt¥iflMi, h*4», bt p^Tn^fWcio Co thf 
Cyrm. « liv or. L u* 



l^t^nbfn, *^(gn cl. It ■!« 
D^nu'i ii«nd> kn cxpcaiiLon lo Ihc 
Induf, L J4t 

DauffbMn, rubu <d. Uh (• 
DobtonL orw U«t iri mpeft of. L jbo 
Al Rone, L jDi 

Debt*. puljUe. L 194 

pAiiticnt oE. i. j4< 

DdvjQtis** ol ■ etnktD]; IgiiiC L tB$ 
"Dctrmuvilt. Cruelly nf itifii Iih-^. L Nj 

DccreU^v iu^iciiry iomu barrov^ 

frt'TTl Ihf, ll. t^j 

List 
leliiiv* foicVp L ID 
DeTonEan«v th« oldctt FrcAcb Uw 

wTiier. ii, ui 
D«to*i ruta ol. L j$t 
Ucuieine. ut cruwu kodiu It t4 

fhouJd nol be Alicrublc, ii. u 
Ucinociicy. lore ol ihc rtptibbc (ii a. L 

f«i«»lity. L 4$ 

equflillx may Tie lupprcticd in. for 

tbc Asod of Ike ibif. 1- Jt 
methodt ol lAtorux^ ibc deinacniic 

prineipl«> L o. %7. aotc 
Il» corropuoEU 1. 109 
rrw^b «l Sinna^ 1. in 
enirtiw e^uMCy, L 111 
eacrupUciA ol tbc pooplc. i ni 
Dcpoiinry of ibe lain ueenaarr^ In a 

aioiianliy, L v? 
(lie ptluve* council unfc for l^c 

office, i- i? 
aol hnuvu lu dopacjc f uTviubtm, 

I- tH 
Dc»puik> itoT cr niw— >, nliiJoii ot Mva 

10 ibt D«tun oL L 18 
■ vUitf t4*cnilBl. L la 
00 crrat ihw* of proliitr ni iiaiin 

L 19 
hoflor ao4 Bhdc principle, t ri 
fnt isk« ki pbi4<, L trw sr 

t(!uCAlti:>11, L i2 

■n vmblvH ofoifln, L 57 

partiir» «4 t 4«podc nu>niiTbr» *■ 58 

si ■ dvipafic nallc, il> iOMCiir'Lly 

and mlBcnr. i. u. 6) 

>niniunkArK-a « bh* 



pretfOCf. L fi« 



r^v«& b «4. 



Conupilon of iTa prindplv, L t9d 
Ma dlMBacl-Tv pruirti-tira^ L ict 
hov it providtt fur lu KCiwUjr, L 

Cooqucil made; I. u? 

*4.-T|iv Biuiliuie ol bbrrtr ptaprr. L 

#5 
Ibe lajTf # euf bk to be licM, k au 
cnaLovt and oMontrav L jo; 

Diflalora ■( Bbmb, i, m 

cn«ted by iha aemtct, L 17a 

J>Ev«rt«. fervtblth iL ^ 
Bed repudlaebin, L >d» 
■inofttt lb* SeiHfn, L atft 

nnotrine*. uje or abuM cU li- j9 

lyOlK-Jrucl y. iVincr. pitl tu dc«lb far 
diifeipeclfu? wurcfk. i, im 

Dog w tic go^a^nn^ttiT. iia ifUBvncr on 
the politicals L ^« 
IrlbunaJ, tfic^ amoar Ibo FomaiEi. 



1u ^L 



INDEX 



•73 



Domrttk Bprnnmai, nvlvcd by Tlb^ 

Dorir. ViAcaunt. hjjt reply |« ChvE« 

IX About ihc Uugucnoifv ^ Ji 
I^owfisft of w^mrn, i. 104, 105 
Uiciaim Uanjaa put Id JciLlf l«r a, L 

£«sr. prtodplB od vhicb lti« monlft <il 
IDC, mrc fouDdcil. I, t^t 
dOBiotic Kvvcrnmrnl. 1, j^ 
people or Use, lieticvc itl rcUifiou 
miliflcrcol. ii, ij 
EftfUra co\xaint>, t^ute ol Uir inimii- 
IftbilKy u( ihcir nunii<r» tud cUf 

Etx^aiJMic mill Iffmpuira] JuritilJOioa 
Duji «ii<1 fdlui vl tlic iL £4B 

io iiiviiAii.bi<t, L JV, ju 

to « deipotic 24vemiTi«t« i ^ 

dIfTeiciiif bciw«<ii Uic cfltcu of Ml- 

ciml aad niudcfo. 1- u 
til 4 r<t'u(jUi.i«i tut-ErriiiktnL i' IJ 

n>pic<t bji Ihc Je*i, i- uq 
not ■ ^>Hfik-firri.«M] pivp^v, 1. uC 
tnde hiih InJia, i j6[ 
EUMJon «l lit9l»"i-> hnj Abf>o(AH U. 140 
of the kln^i o( ihr ucuiid French 
riM*, it. #tj 
Empire of Chvtciuftnc* bow broken 

u(^ 11. 1^ 
Emplovoicnu, public, L (^ 

dMtiun into v>vil *ad aHlllnry, L tfl 
Hic of. L 69 
Knfflan<|, fUv fuidicn ol fuhn in, L n 

ih« ciftmftiv. i. a^i 
C(inim«rt:t. i. jjo 

complaiDl oTElie diminution of popo' 

r»Tt'*rt. fi. & 

law <rlib r«|unl t« witnc^M*. H 
(«] 

Eofflitii, the itepi lakcn by, lo fam 

thrlf Ttbrrtr. i. 17 
ibtir faUflrc t« citiblUh a 4«moo- 

rtr pronctieu to tuitide:. I, ^t 
', the rcftl kinut of St^tta, 1- u 
II on rlchei. t. tij 
nUot. their rule at lo eamni'FC^ 
^ - Jfi 

CqualilT. h<fV olAblilJiRl ta ■ dcmoc' 
racy, L 4J 
rriie, n&l utrrmc i- 111 
EjChrftasc. tnd ihij^wficki, rSJkuIoua 
f]j(1it!i i?\. iheiT uriiiin. l ji9j 

KitencB^ [hv. iLji 

-E<iabTE*1im«ir nfiht Frcndi Monarehr- 
Ste Uoi, Ar>b^ du 

Stfabpia. inOucncc cd Cbriiirjanltr in. 

It, JQ 

Ei»cb(fiui. Sr, vlskin ol, it m 
£unuchf intrusl«d vllb Uie mi^fmcy 
[fi TonquJo, L i|g 

hive WlTM, f, AM 

Europe, iu riaJta of modcnU exitott 

comcQucnce ni thm, i. 369 
channel ifi ihs numLicr ol iu Inbubl- 

unli. ii. 7^ 
EokIdg Mad CaBpijtu icai, project for 

JoiR^nir th4, L 331 




Bxchanf r. niiap:« At TfotUnd, t jVi. 
jBj and nijic 
• contiraLDt «q deiputic po*«r. i. 

SxcluBLon from the laccfaiim I0 ifa< 

EiKurWo power, Ibe, ili iuactioo«, i. 

BI J<oniC. 1. 171 

KadU drjir i vpl uf licr <ftLal« bjr ihe 
Vocontan lav. li. W 

t'alcidUn lnv. itB imipuMV IL lO 
''alse re]i(i4>ni *uniclifnu convctvd bv 

Firmera of ib« re«eoue«« i. jv 
r»ihTf, IxJ* fviLKBi iQ tniurU^c. oa 
wnil FouFidcd. ii. « 
Ob1tci0» k"">ii|; lUt RortiBBBt So Cl^t 

bli lUuKhid a inamatfl ponioa. 
ii. 16 

Se* l'ir«rnal Authontr 

Fvar, «iiHB fnukkjod lo at*oelald« I- 4 

the f up purl ol dnpotic ffnvcm' 
mrntt, 1, «t 
Female hUfcetbion. tiuhl of. mtabJiihcd 

Fertile couoitju, monarchy faTorvd. L 

Feitivali. {ncbOVenEcDce o| loo maiijr, 
it 4f 

Teuiial 1av». li, tji 

Jordi. or vrtu^lB. il, lyi 

lorda Itrl in th* ^fltd hf lh# IfliU. 

Irtti ihrCr i^haIi and r«amM4ls 
wfib them, ii- tot 
Ficf>v feudal, m firtt i^rrfinnuii anil r«. 
■iTinaMe it will. ii. 101 and oolc 
at lenirlb uivm iat Uir. Ij, igr ^id 

note 
cbAntfrH in Ib^ Mr ««. ^. jf* 
ibHr njilnrr aftervaf^l. iL jfl 
ttimr (nR4#gu«Bc«* o| lh«ir pcrpan^ 

iry, li s6i 
of rr« II in pi ion, II. ffi 
Fire oTdeal by. tL iic 
Pirvarm*. btannc n'. a captial rrJinf at 

\ *cict. II- 7Q 
Firflt ra^e of Prrnch kfnp reform the 
SaEic and Ripuarian lava. tL ^ 
ihttr hvmOiatlvn. U. uS 
Fiical, i^aodii, whaE, il' IQB 

Flaadm. Earl <d, bli dii[»ute with tb« 
pcop)* of Otnnt. li. ijj 
Joan, Coumeu 01, cbjc cf. i)» t^ 

Sow 
licfplea of. dra« a frfehfful pon- 
raentc from a aacred doctriM, 
10 and nore 
FootniH. battJc ol. II- «M 
Force, offenilfe. i. tis 
FormoB. ntarrkaB* cii«lon <il, IL a 
anolber eoBtom of, U- i» 
iinflUlai bcfkel of. II, 3^ 
France, ii* capita bapiMly filaced. L ISA 
cauBC ol itt tncreate in portr. I. 3M 
oopalatiovk. IL fj and note 
Law wlib Tcrard 10 wltaeaata, IL 

lAo. tti ana nole 
and recftvera nod ihtevea. IL i5a 
the fiT\i roce ol kiof*. IL 53 
The lecond race. IL att 
tbc mayor ol the palaae, IL ad 




>74 



MONTESQUIEU 



FfULCP. Ihv crown tnaslEtrcd to tbt 
l^ranke, ihf cliangr in their cuitaiiLi in 

1*1 or ft dALlflMcfm, t. Jll# 

f«iEa1 omimrnia irnnng th«-. l it6 
iVAmur* ^f <^* Wmfl*. L «i4 
whto in<7 brcAirif i^t ace, h j4^ 
ihrir A*n|u*ikUT ivmpvr. i. j^b 

0^4 f*«iilal tairi, lL Iff 

<onquHi> of Ibf. il, 174 

USflH pfttd hjr lh« iuifTiBnt and 

GavU, it* 1H4 
4n >nclprl uA4g«^ H- 10A 

In fn^or ol The jutSC*. il «>l 

■ iirii-f Ipir l>i« proc^'llod. II. ME 

not l<vt«d cicn~*hi7rr, ii- Joft 

rfnitervd »pib]« ol holding ficfn, li, 

Free PAiiori*. ihvif chArtctctuim. i. ii> 

VMUP. th^ wlir nfl«P dnvrn oul of 

OTlfflii ii^d r«vn1uticrfiPi nl the civil 

lawi Ariionr Itiem, li. 01 
PHiUnh » *»"» «i »h*, ti. lob 
Frusalltv tumtihrnvj nutiakrn kr avA' 

r'ccp 1, it 
Fim«r«li, cKMniive. to ba dJACOurura, 

Gabinlan l«w. tht, L 4n 

itt nrovtuoni, 1, 40t 
Gtgv. Thoman, nn the :>paniafd> in Ihf 

Wekt IndLci. tl } 
iHLUntry, npirii oK >i»L* ktiowD to ihff 

Ancient), ii. i» 
GiAflEi. 1.1 n<ii1 ring tba vfrlnn o< 1fa< 

wjrcfk of the, II 3& 
Giul invBiIe*! by (<«rTi]in Milnni, II, 174 
the Huiiuni iberc not reduced to 

lUwery. i1- 1;^ 
GnU Soqlb, indeppndcTK of tbe Vial- 

BOlli^ ll- ICO and cot* 
Giurt. Ittw* of Lfae. tL 4J 
Gclon. Kiae of Srracuie, ht» mny *Jib 

ihc Ciir1h»cio{*ai. 1- ijr 
(iCiMV*. ■ilmjfBblr law erf, I. jzi 
Ccnoi. Hjink uf Si- Gcorae at. 1. 15 

■ct of uidemulry. i. ij« 
Cnmini. the ihfferenl ch«r«eier of Ihdr 

C;rur'> fl<!«jiini i>l ibcinH ii- ifJ 

pcccnnt nl Ticilui. i. lit, iflii» JS(. 






Globt. deiKpulmiim bi thep i1. 11 

Bitaafe lo tCMitdr tbc. 11. m 
Cold CmiT. 001 viailed by [b« Cutht- 

Ciniftnt, L ^J 

Gold tnd lilver. qiuintlif of, i. J77 

Gcod lubjecci not oecdunlir food mtn, 

ColbSc Kbverqmcni the bc^t »|i<cicB of 

(onaftrttitioP. 1. i<j 
Gottia ia Spain. Ibrir law* rrn'^^iiS 

■Utcv i. (41 

S« Alko Viu|«lht 



Govtrnm»l. iho kind ot. mott con* 
|araiflb]< to luiiuFc. J. a 
diilerrncc bBtwr«ti the n«tm« and 

doTEICltiC. i- ^X) 

GDT«rnjncni»« Ihrcs apvciu ol, I. 
5<« ,J)<«tK>[ic CovcrnmrfK. lfona^ 
c bi c al Govcfiuncai, |I«jfubli4:Au 

Crudhl. ih*, ch»n^ tkc Kuoiftii coawti- 

tulroh, i, 17 J 
Grind S«ifinli>r. *hy h^ld !■/ (b« c*JIa 
not oblijirij 10 keep hU trurd» L jti 
Qfeeian klnjrs, crtmrn^rot t-f iW, ». 3*4 
(jfHce, atxd t)]c number oi JU lobjibi- 
iJkAtft, iL 14 
binc> of (b« heroic limti nl, L 164 
Grv«k colcDiu nut ihvt«thl by Alca- 
aoder, i. 156 
inasUfnBt^ #mb*rra4Bfnral cf tbe. 
^ i. Jl 

GrF«ka, rifflfffiir>nt en totnt iaatir^ionA 
ol Ibc, i, 34 
In ifihAt eaif« nf avf^ife. i- if 
comnirm ol ibe, i. jji 
roniratt ol Ibe AneJMii ^nd thr mo*!. 
tin, L tt 
GrfRnTy in, U\t embatiy lo Charlei 

SiUn«U ii JU 
HotriliantliiD. niri oj. i. yn 
(-undcbAld, Xing, of UuriuadT, «niri*« 
lav of. ii. «a 
other Uwv of. II. M. no 
Cymriic art. tu rclaiii.a to mllitaty tf- 
lairt. 1, ir; »ad noiv 
lt« eifcci on the fnaunen, S. 30, 11; 

Raonl^al, complilnu o4 tfa« CacibA- 
giniani a^Ltiil, 1, u 
hit o[iponefits« L i^Q 
llannon the oppon«Dl ol iXanaibal, L 

ti^yigcK cd, 1, ut, 4^ 
UajringloO) hit defectlre Idc* of lib* 

eiEiy, I, ibJ; iL r» 
Habo, a ilavt. made Archblthap of 

KbctiDA. n. J15 
Kdoics. wrc»li«l condiiic-n of the, L 

n^arr 11, of Tnoct, nnrtatonabk U« 

of, 11, GO 
Hearv Vlll. liu pbniciuii in duiccr 
irom bin lav ol Di|b ire«oa< i. jgj 
prtfK how c««4«an*d by. L jdj 
hDBplisb d rn rtiyrt, n, J5 
tawi of hk» conirary lo itie la*» ol 
(uiuri. li- ^ 
RcTcdiUrr anrvtiHracr }nd« tc oEt- 

■Jirch^, I, iij 
Hicb iTcuofi. irlviat acti trtaE^ a^ in 
Cbinji, i, lOQ 
and and«r ibe RonuA cmprror*. L 

I^E 

nimiko ttnt tn tnakc a Kttkmail in 

Ibf CftitklcridcA, ). j^ 

Uolibr* noi corrvci in hit Me» fpf tbc 

iiALit^al *ut« ^t iin«nlt>n<i, I. « 
HoLland. the republic of. i. irj 

ill ^o*'»ftiTH«, i. s*» 

coune o( exchange- \. jBi, Hole 
llotii*^ vl va>^lh i' 145, Mi 
Hvncti nien nut lavoied by Caidlnal 

Ale belt eu, i^ n 
IToooratT ritfli^ ol ehiircbn. H. ift 
Honor tb« Bpriay of m«Ure^i<a] gtrf* 

eramenf. L 14 



INDEX 



«75 



Uodor. noi ibe principle oi a dcrpatio 

OIK, U #$ 

III luprrmv law, i. p 

ftDionc Xhe rrrrniDiii^ ii. iiS 

law of t^ifi ILuigundiani* i' 317 
IToaptlal*. U- jj 

llucdrtdf* viialiUiLlimtiii ol, ii, tgi 
lloKfaft^n n&bilJty. canduci «f lb*, ttt 

ihv HciUAt 0I Auirn*. i- ti^ 

ImniAruElif <i( (h« couT. ihe dactfida (il 
the. IL, J9 

Incfii. IL. ;o 

IntlJank, c<»nAd<nci in rhr tic^^la thnvn 
In thr lawB uf the. I' 234 

leniranfe at lUt tenmcn. I jQfi 
ibvir abtiiurncc (ram a»b a«t un- 
r#itnnAtkIr, ti 4J 
Indivt. comrnvrCF ai i^e. i. jji 

Uofnan (nde with, i, j^ 

Iodiv»dJ4l, prr<tpfriy of rhe. irnt t> (uf- 

Irr lof iht puhlic eoi^H, i*_ jj 
laduiiry, fncoiifaiicmrtii oU *■ »;. jt?:! 
Inlflrmfrt. honors paid to, andrr Ti- 
bfnu^ ttiKKt ill cffrrt. i. 114 and 
nole 
Ifkhabiunta, t«vs in rdarion to the num- 
ber oL 1, 40J 
lahrriUncf. cuiioiD of dnpotJe sovvm- 
mtnd. I. S9 
Frvnch Uir oN II, ^67 
InqbiiiliioQ, (he, i»»ii|iporuble undtr 
tit eovvmmrnlq, ii. C? 
bad til orium in ihe Uwi of tli« 
Ni'lslffolh*^ li> 10 
Inqulfiiiof ». a |«w'i tpmoniinncf wLlh 

the, ll ^ 
Ittlereit and uBurv confounded, I. ^ 
inivrcil. how Ifjwrrrd, i^ j;>l 
kndlna «n. L J96 
varuxi* raic* ol, Mnong ihv Ha- 

Iflih linen mannlJieititP. tAp. t >j7 

iroquoEi. liv of njiliors among thv» I, 5 
juac AngfJuB. hiB clrmrucy 4 mWJitt. 

lilandert. londTivH of. f(kt lihtrir. i- J?j 
lUlUn lepubJioi, no f«l llbcrly In. T 

Italy, b*d ^wi !□ sonw parti of, L. ^3 

I*ni«s r. cpI ArmgoQ, fiumpiiiarjr Invri of, 

Jat4ii. miufficlcncy ol the lavt of the. 

ihHf tinitrtjr, L S6 

Uieir (JircuHou hindtitd thereby* I. 

iocfccaicy uf (bcir punlshninitsl. 14) 
(he I*w» »cH>te DO cunfidence fo Ine 

pevpl<» i. »,ij 
thr llsfiBtlan rcHftbn. why to odioua 
that. '.'- iC 
l«iGirt«. coirrtc nf lh«, ctmflKtd, I- US 
Jcalaiiijr, two xlnilk ul, i- 1^? 
jvnfhii Khftn, hin cunivrnpl lor 

)Mji»», thfif mle in PafanuaT, i. jj 
4w. a, tiA rcmoQiCraafC whh th« to 
qutniori, ii- S4 



J 



Jctn, the, uorUr Ahituenm. i. j4 
jupcr*tiu<iti of ihc. It 04 
pcrucutiuD of tbe, i. jC^, 3A3 and 

Ool* 

Invent IctEert dI tuehan^f. i- 3OS 
binithcd lioRL Rififiio. |. w 
Juhn. Km^T. bin tyranny tu ihf Jewt, i. 

Jud^ the (irince miy bt a. in dttpotic 

i' 77. 7« 
Jvdd**> whan th«y cvflfal tc dvLcmine 

tjccording to lh« ffiprctd Jnllcr ol 

iho law, I. 7- 
how cbohcn al R^mr, L 117 
JudKmvnl, dill«(*nf nioJsa of paaaln^, 

^" 73 
Jndlelal fanhAlA, hnv th« euitom 

gftiopd (Ttjund, ii- ni 
Judierarr i>Avrr*, by whAin M ht «if 
«rcl>ed, i. 1^ 
at Rump, I- 174 
Julian, 111 judged Pdict of, i- J?fl 
r«iTninpnit4iion fd, IL jj 
law, rt^e. iii fjurpotp. 1, 104. roc, loA 
oihrr lawa nf ihe tamr mast, ii. 1^ 
JuriadJction, ho» rurrviied by tbe feu- 
dal rih^Hi» d. i4f. 100 
Ihv tredum, 11. m^ 
Mtrlmonul, In PrwiM. tli orlffln. 

n- dOJ 
<r\ Ihe cbur^bea. kjh, »j 
JuritdkLionB. (hf varioxjih wh«a tKib* 
llabfd. ii »« 
uKtiotp Mlrcvdrnt lo pn^iiivf liw, I. j 
uttlntin abragaiei the marriait lav ol 
Inniuminr. ii. iK » 
hlf Uw ol di^oree. ii. 66 
riidhlLilirii a new rigtil of *iiec«>* 

BJon, IJ, 41 
di*covrry ni hu Dlgnl) ll, i«) 

KlDff^ court in Kranee. why no appeal 
from. h. IJ4 
ntjali. prLvtleffet of the. iv jji 
Klagi of the heKric Itmet 'd Grvvee, i. 

of R«mc, their aovernnimt, i- 166 
tiKir law> cruel, I. fj 
KnisM*^ Ihc Roman. 1 middle ordri 
unlilng th« pvopie lo ilie mtaTe. 1. 
W« 

I.4Ge<lKniori.1»nt» Ibcfr public Uacmbllea, 
i' 9 
Vhcir liw«- I- 11 

obliged to BUbiTilt m the Macedo- 
niana- i^ SS- ^^e Sparis 
LAndk dlltctriii waj« 01 dividing the, 

11- irs 

api>)i<ai{<jn of the Vlaf^lh law*, 
ii- iy* 
TrfW ill ifTneral ij^frned. L A 
Lvti. civil, defined, i- 6 

air*oii|E ihe T«iiui aod Ocrmu 
oaliijn. %. Si 
Law, irulilic, delined. f, 4 

thia not applicable 1^ the clril law, 

nuy become deiiructfve to 1 atatCi 
ll, jfi 
Law, pnweeifingi at, how ihey hKamt 
«c«ret. ii. ijS 

Laflr. Mr,, a promoiar of arbiirsr) 
tK»»«r. 1- tj 

lawi, dcfinilioia of, I, t 




i7« 



MONTESQUIEU 



Lairi. tfacfr nlitloD Co dUfrmC brintK 
I. t 

vt tuElvni, L ft 

ctyil. i. ^ ji 

crinmiiii, 1. J3 

ia nlaiioQ to nusnun and cn«i<nni» 

L JD4 
lb«ir «4«el oa ntloiu) ch«r«c(er, l. 

•hould b« nnctir, ii- ite 
Diqilx ovt to b« Bubilet iL tU 

■hould not bt DC«dJ«i*1y aJtvrcd, ii. 

bHl nMthwt sd ^Imi^a H. i«9 

idta of ODi(onnii7, il iCg 

41vic« and humtiw Ii. SB 

ifell Inio divnaa f^i H»nE ol irritlnK. 

Ul 104 
(ii*f4'in« taSu ihsjr plBtw* IL 104 
Ol iii>m«dJc naitona, i. sjt 

tl'lit pahlicftl fll4t<, I- J77 
Ihc KKrfd, «l Rrjjn4. i. t4>9 
Lft£4). -Iwilii, (LAiao' for* LI. iia 
iLftfd in ntf of driH. li^ iii 

«Ode of Uvi, 11, IM 

boviid* prrvcnb*^ lo tb« nutom, 

comtMti of on* of iba partln of « 

mmb» ''f one of Ihc partift and 
on* nl *h* Inrd* pora, iL ivi 
L4:gl«lati» bodr vhouJd «atcnoI« fr^ 
^iimiljr. I- t^ 
Itt poirtra, i. i» 
HiW<r ■! Roinr, I, 171 
LtRiiUiar, t^ril ol a. il, isfl 

laivf »itF-irm|T/ ff>n*rapjr 10 liii 

vltvi. ii. 157 
law* retMy "o. t*. fj:^ 
l^nciei at Lmacinaiy If^liUEon. 11, 

T.*ndins hy conind. 1. jq: 

I^pTtmy. lAirt in nljiffun IOl i U0 
jeiid«^ or <»h1i, U. i^ 
L^viia,. Ilfnrdi<:1i, c^rntuml. il toi 
Lihtniui on a law of 1^f Aih«nlan», I. 9 

LihfflWt BR'! |K»ci*^ i-B[riial puniibmeat 

Liljcriy. diffrrcM liKnificaiiotis of the 
vaia^ i. 140 
ia whal it cuniiiia. {. i^a 
how wroktnfd jn monarchlrf, L bdi 

tUUh. irhai:, n, m 
smbardi. kv orcTif, coacrrniOB mTci, 

Lhe Hooiaa liw aUo knpt tii 

Lonff robe, diBdllX Of tbe. tn Kraocc, I- 

1^1, luffncc tif. i. fi 
Ltiuli ilie DcEponnairt, hiJ imrment 
of Ihr SKCOD*, L IJfi 
bia barliaritr to M« tift>1itw. il. 117 
tilt vcakncM RgttTdlni lita lunlljr. 

IL aid 
alleiiAltfl fhf rtown dcnttinei. tl- uo 
Lduif. St., hit «icn* ai jieal u t lav 
flirer, L iM. norc 
■bollabci Judicbl fomhati, ii^ ijj 
tiia lattilotiona UU Inio obJivton, tL 
>*• 



Louia XT!!, anWdte Af. L Jfl 

CvRKDlJ IL> 111? Ilkytty Of iM ft^ 

jiTuci in (lie tiu|< cp[ Ibrir con^ivr- 
■iL>ii. I. £ja 
l^ui« XtV, (nndcar of France utHJer, 
L iji 
gnn rcnrdi Inr Icrfc tunilica, IL 

Lovt of eonnlrj pcculUr to d^ow 

in CrIcv 1. 116 

I,uci^ bjid linvR <d office al, L ij 

LujEurTr in proportHm lo tbe inequity 
(fl forlunc*, I. 9i 
in tovna. 1. « >nd nolc 
in Ctujui, III ijii^ b1T<cI*. L to 
RonuD lawi aniAiL i- ivo 

Ionian rcpiibJiCn inc, 1. i^ 

LyviitifiK teniubB on (bf \twt of, L j|, 

hO. Ttnn c<>n]parvd vrifa him. L jf 

LjdUna, the, conquered \if CfftM, t. 

L}Mnacr, anecdote ol, 1. ft| 

Uachia^vl on <hc Loa» of libtity of Flor- 

remark on, i\. i» 
MuhiAvTj. Id atjn-ldfl« labor not »1w«y« 

UHCfJ. tin 9 
Mifi-Jc, fhi'K* of, L- ttj 
MaB^vt'taif. a viilgl4, noly tdltcd <0 1 

■f«dpoitc monjkr^iy,. 1. fh 
MiihomnK^nB, ibt fxitiiy qI ttatir ci>n' 

Mibomet, hia prohibttinn of *in«, L aaS 
hit dJ>«?i^nn «■ «' wii-fa. I. tf^ 
tb« BOO of MirlTriB, L 17 

14lla«», fury c^ fli* |i#niht» af. n. j> 
Malea. Cape, dancer cd III naviEaKrOt 

t ^ 
Males and fcmalet. number cL In differ- 

frtf ff'*«nfT»t4, ti. 7 
Man ai a ph^ical and ai an intellifcnt 

beinv, «. I 
In a Biate of naturr. I 3 
Minkind, grnerki *[iirtt af, I. au 

fthuiild be ubxrvrd hf Ivi^lJlton^ 

■- 30J 

Muinm And euitomt of a miion. nalv 
ral niunii ul clianinnir. i- x^ 

taMtUn «! hime Wiilaiorii L jbo 
Marcultiu hii dure. U. W 

hit formularicip il J:^ 
Mirriavc. ii. r 

aeveral ordni of lavful wItc*. U- 3 

father'* coiuent tOy iL < 

the K^man lAKa, EL 11 

lo be retiilaifd by the tiril lav, ii 
*7 

the Pi^iAA !■«. II. 6a 

nurriiBo beTwecD feJMhrea, IL €B 

ErJhibiiiofl*. iL yn 
i*« ai AibeoB and at Sparu, L 43. 

at^f^me. L ^ 

rcitrietlona. 1, ei 
MuTkd men, TiFjvileRH ot, amonE (be 

Rf^AaDi, iL I! 
Maneillej. amount fjf dowjiea 0ied Ui 
i. tQ7, Ti'itr 
U% commcrcr, F. v? 
malrjr wilh Turllinii*. 1. w 
Manjaa put lo death lor a^rcan, L 

m 



4 
4 



INDEX 



*77 



MourCcr, iht cmpcrar, liis clfmency « 

Hixicnioii*, crucFiy of , L 99 

Ihvir Authority, ii. ui 

III* lilH a|, 'l«rlve<| Fr^ra tha Qw 

aunt. ii. 2^ 

ilvir ofl^n^l lun^riofi*, H. try 
grcai omcc» And fiefb under ihcA, 

BciJG the ihrone, i'l^ 1^1. Sec frincc 

C44i»i4cred a holy ciiy. ii. 37 

M«Ul>, dlscovcrr ol, \. rj^, noit 
Mrl«m|i^(hii4iv Ihr 'Ir^rrfinr of. 11. 4a 
M«lliift hunpnuA. punL»bmcnf oL h SB 
MiUUtv not lo »jc i'liaed wirh ciril rm" 
plojmcnt, I- M 
' id-vife. (Ivrn tf'rii cf. Ii. tOiJ* 
double ttrvtcc. tL igj 
Miniilrfi noF tu lit *t ludscji in mun- 
uchk»* 1. r9 
cl reliaion lo lie hon>5«J, ii, *r 
HiAofliri IDPS. ftmcng (be Koouai. 1, 

Minup lavi of . 1. ^ 
MiihrldftreA* bi* *ccui«iion of the Rci- 
min i>rr><!ODiuti. l l^l 
hill richo, i- ^sfi 

□Qt to be ibockcd ta iiuniilicDciit. 1, 

lUuiUTchicMl frnvcniiiicTit. relMioc of 
1a*i 10 the n&turc ol, j, 15 
• dcpOftiliry qE Lhc lawb necRiarr. 
i. t} 

na icrut than of prohif jr nqdirvd, 

iu wtnt, hnw tupplitil. 1, 34 

Ijkwt in rrliLiii-PTi ta th« pnitciplr, 1. 5] 
th( Mccuiivc power, \. «4 
<t)mi[>iiiiii of itii pftndplc. L lu 
im dJatiOcElvc jfrcpcrllo. i- 13D 
how it prctvidtf« fjr its teciiritj', i. 

tho Ancimiv batl no dear ids« of 
monnrchr. i- tu 

tibpftr- how wwktned, i. x» 

lAannrr of rivrrmfitf, 1- m^ 

tht prince slianld bv vaiy of acc«BBi 

bit niann«T«. (. tos 
Monir^bf, naltjmiJDii of, In KnglAnd, 

MonAttfilcB, (I- H* 

Uonej fhould b« banlihfd h<m\ «ini]1 

It* 1UC A proof cf ctvMititlon. T 277 

•nd othen «ho know iit vie. t 

Uwi In reUlEon to tbc Die ot. L 374 
HiuFc or, I. 375 , , , , , 

Boedi or cbnitfii uHd mitraa 01. 



Wr*f rr 



rronedinn ol (hu Komiins. I. ^ftj 
IfOTWOOOB. iheit VK in uicieDt tiiugt. 



Uooletquiru (Iho autbor}^ ^tMctnctits 

at, ahplatn*'! or «%«ntj'avt'tf-lt i. 
S, 1^ lo, )[>, 17> >>> i5. '^ r^ ^. 

ij> M- J'h 4». 4j, **. t>- sj- 'H»P :«. 
S, i^. i«, III. I**. «S. JJS. *3*. 

.. '(^ ''K' ^" *"' '^^i '■ 'A- ^ 
Mote, Sir ThoDiBi, remirk on, u. iy> 
MortniAtfi, I«n4t o< lr*r<ncn clunKnl 
iaiOi. II, iBi 

Movable citccd, ihe rw ficb?*, ^^ i^ 
M^ird", rfimpnariinn lOT. in Ifae Sklie 

MutLCi ibe DiAnncri A<]ftened Qy, L jv 

Nairet. ■ ciislom of tlie, i. h* 

NilebFi. (1ct|iDtifem i:>f ihr fbiel of tbe^ 
I- i79 

NATioni. Uw of. L J, 6 

pfltcf d thrLiiiflfiliy on^ ii. ^ 
eivil law iiul iii»[ktiatb1t. »i- 76 

Nature, 1dw« oL 1. 3 

Ibe charge olitn a t^ltimny, L if^ 
NatJMiUon, »JEU? EflccfB ul an eiiun> 
slHe. \. ^» 

lurtbcr remdrka on. i, IJ7 
Nc^roei, See Slavery. Nciro 
Netu, iinpTactiL:iililc pmicd of, I. am 
New world*. eHcci oE tlieif discovery 

on Earope, i. y(6 
I4oL>L]ity euenTUi 10 a manftrcby, i, 16 

ready In defend (be thrttad. 1. rtft 

ahould not encifff ia commvrer, i. 

Ihc Krtnch, tL »ij 

ffornuita, rntav?* nf (^'< '■*■ 'U^ 3,17' ^i 

OAlh, effprt of an, amend (be tCacnana, 

only rcHBrdcd by a reUsican pcojilsi 

i. ioi 
reRirded ii ^tcrileicioua by tbc Bur- 
atind1«na, l\. tio 
Ofjcdimcv. dilftifnce of. to mudertle 
Bi]<J dci|>u(lt: K<>vcrmiicBl^ i. *J 
tii the yf>tinj( lc> (he oM, L 4ft 
Offcfiiivc Jurvc, L i}j 
office, forced dccepUnce of, I. 6t 
OflScet, irrcat cliaiiirc* in lite holalOK of, 

it JST 
Old ajie, (eveinme ul lh< Rvtnana (ur, 

Opplan Uw. lite, I. iu4 

nv^ki^L, al the clamor of the vrom- 
to, i. 19A 

8rehoinenu», cummrr^e of, i. jjo, ui 
Edcsl. or trijil by bcHlinii wnUi. i^ 109 
Order of tbinHi. lawt in relation lo the, 

OatracJani dinlin^t'uhhed from hanLtb- 

boiv ii fell into diaujic. il. yj 
where uxd, Il t^i 
Oxua, course of, cbanuettr i- m 

Pllaee, Tnayiiri ol the, if, aty 
uiiirp Che ibrDOC, ii. jAi 

Pai^rf r^1^ney. I, 371 
P4pL*n 1a«f^ Ihn. if. ^. *? 
PnniHu:^. thf nmeff. i- ^t 
Paraauay LindDr tH« J#Biiir«, L jj 
ParUom^nl. tli* French, il, M7 

br^^'in'c B rtm.«f1 h<i4y, tl. i^i 
Panhiaa empire, the, \. ^ 




ns 



MONTESQUIEU 



iD>u(m of, 1' 4ft. tiai< 



i- MJ 
riuurch. hit dcfiniCJon ctf Itw, L 1 

oa the CaLiHiuii tcdjiKiii, i. 471 

the loiurrvction tn, i- itA 
woulJ Ik bc4t<( qA mtbout 



hiatfv ol Rome, i, iw 
humblod by Strviu* TnLliu, i t«S 
iVfu, rcJigion cJ. ii- ^ 
Pdnu Uvi rtapwunf fcUBtOD to Ih 

BvoiJed. iL u 

I'mn, Mr-^ * rul LycuF^ut, ^ J5 
I'topid, ibf ovvvirfieA ia » ilcmocTArf. 
i- 9 
wall quiOifi«d to «)ioo*t (bejr ddIb' 

iilcix i. JO 
but nnT to eirrciac ihalharity Iheni' 
Htvei. t, to 

uitK i- t^ 
nnf fclirars (ir'(u»cl for lh* recrp- 
tion ol ibf beil lftir». i- ^ 

(if jUKlict, II- JoA 
fiYnrn ih* ri^fp-. li. jji, iijA 
diriitn hji kiitri^^oiu bviacea bi* 

fWK«lir)ii, i>hiluJrti|>faic ide« of, Li^ IQ 

( hrTRiiiniir ff^vci li^cc cd ir, ii. so 
r«riftmitf ol fi<i*. sumc coflsenuencea 

oi Int. ii. >Cd 
Fcrtia. onlcc» oC U« kln|f« Irrcvocabkp 

ilm VIM CEieni • »urcie o4 wukncH. 

an cxcfLlrar ctiiuini io. b wA 

■c-phi (pf, ilcihroncd bdCftVK he h^d 
Ufh ti>o apifins ol blcMhl. j. ^ 
PcrtUiiH. the. avrrtc to OivljiAlivQ, L 

a illvo bul tifcful iluclnac uf tbc» 

PcKr the Cur, hit mode of dcalmjf 
wiih prtiuoni, i, 304 
hit I"/ (if Uiu. i Jo> 
hit tunitiruvr Uwb. l ^ 
fhtlCM of QiAlcrdon. hih pivi tu ttO'^ 

dirr all furitioe* cijtu.1. i, 44 
Phihp tl, hja pfoicrJpti<m of Ihe Prince 

ol Oruite. tj. i«B 
PhiloCKicaKa oblige* ib< Ijcedfrm&n- 
luia 10 chtPjfe Ihcir ipiiiiuiJom, 

Pbtffi^cliiiiA, tuinmcf^F uf ibe. L yjfi 

circumnAVfitai* Afria, i, >v) 
PbylncEc* tetiniHcbvd lur bm CTurltjrp 

i ^ 
PbjrticiHji*^ nrjmBn, Ibw ropcctlnn, li' 
if>4 
iHii Mi'ttble Id modern (JmOH if< t&l 

Fl'tTt. edict off ilk pu'iHAc, ii. w lion, ii. ir. 1^ 

tfljiuc ihc, liDTV rC|t«nJ<d by tlic TuiVa, _ Frcti<:b kwk, it, «4 



meicc, E- pv 
Poluv. n-ffulitiDO* dI ih*. tL. fift 
Foliteneu, i[K r<4l oritfin, l jo 

fiomia. A^Adcialcd «nEb ■ftp|[rar7 
po*er. ii. jjt 
Folitiol titwEty in tclatian I0 lh« libtnr 

uf tUc huljjccl, i. il^i 
Fotytfiniy <cAti<iar*^ ia tlulf. n jm 
Bjiulilr oi treatmcDt id <U( of 

manjr wivck. i >u 
leptTMlitm of women ttota men, L 

PoDtjficjIc, the, tn dnv^lic |i>vtrD> 

Pupr; ftEccrlcite of 4. l iS 
rflitm, firctjon of Ibt, il, sjo 
fupulaiEon in rcUtir^n lo the nmoft of 

KniKiKfffncf. i, JTi 
POifdiLo Uw. ill ptjrpuri. L ffl 
Porli, urtAi food in bot «auntrT«t. IL 

4f 

Forfururfte. lh«ir diwovcriei tn ihe 
E4rt. i. j» 

iheir rentrLclLO'nt 00 Indc conliaucJ 
bj (he iJulch. 1. 36A 
Poteriy, 1*0 bindfe of. i- jir 

idlencfct in rtil eauK. jE, lu 
Pnelorm, the Kurn^n i. ^ i(j6 
Vi«ttpt% ol iht t riEik liifl^ik i^ ^^i 
Pru<n[v VUtu uo, L 61 

flir Kuftiin law. i, jab 
Price i>f (hinitt, bow fixtd, Ev ^ 
pride ihc xjurce of poUleor*^ i^ 30 
FrimunFrtLEure. riaht dL btncftfl lo u 

aiiiiucracy, i. ^ 
Prinrr. c^entcncr in ihe. I, 01 

ibould noi cngiige U coamiace, f. 

Problem, L ;^?3 

Procufitik, hxi accounl of tbo couii of 

Jt>ilin»n. t. TV 
Pnxlucijonk lii the rarth In relation lo 

Probibiiion of mairia^ bctvHa cob' 

lini-Mrriiiall, *J^ ^ 

PrnoE by witn«^it9, ii. ijj 
PrvpBNKiiuti ^f lilt bptcic*. CDncnn ct 
the lefliiiljLtti'e in (he, ii. ^ 
IliniuiiDii vf the numbci qI cbildreD, 

ii. II 
the Ronuia Iit«rt iDCCurasc popub' 



rialo on muBic i, ^ 
on pr<>rnti. I- 65 
on (luMI^ iinf loymcnr, i. C^ 
on 0cca»*nnti^ i. So 
on ih4 jfo4a, II. yn^ ji 
on viiindr, IL 1^9 

rifbritnt optblc ol off^cf bi Rnmr, i. 

their powtr >i]cnicni?d by Smiut 

obtain <he pover of uyiaf tha p«lri- 
tiantt 1. ■*» 

PlibUdu. i. ir^ 



Pratcripticm, unrler the Iriumvin. i. rm 
PtDicctitor, pubUc not known in t^ily 
timr^ li, (40 

Proetiitinon cootrvy 10 proi»^lidn, 

t\. J 
Proifauni ffflitfinn, the, mort ijt^Mble 

10 II r'i>*it»rk. ii. 3a 

Public cretlil, nctfHtrf lo be aupfiorted. 

. '; *^. 

^?bK I. i9* , 

th^^p Enfinnvanlwi^**, I. jf4 

iii]4'«ni-nB*a a| ■ finWiAg hittd. U J^ 
nvtauei, ihr, I, aaj 



INDEX 



•T9 



rubltcant, the. si Ibc Koci^a ccnjiLrei 

I. 4*9 

TiibliVh Ruiliui, nohte condud oL i- in 

in didrrinl fovtfniDcnls t- %i 
updcr Ihr 4ncienl Prpiich taw*, t. R3 

pciv/ei of puniihnicliti, i, Kj 

ttir R.^tnan Iiwt. i. H^, Itu 

divviinD of puniilinjcnu into cIamu, 

jUAl propociion bvlwrfn puc^Ah- 

inoni4 and frimti^ L A>. oo 
pecuniary and corponi pUDiilimtfiUv 

t. #1 
U» ol rfiiatlJliotit i. ^ 
partnfi puniihed lot ibt ciimci of 

(heir cnkldrcn:. L. 91 
PrrtneM, ancJcat gold ftnd «ilver miau. 

■' »« 

QlUMt<iri M Rofn«. i t0l 

£ick. Ibe, net ■ nKHitEiTi L 9t 

(fftrkctioni 00 ill eobplormc^'X* 1- Ot 

ind note 
uud 111 Ff«nc<> but not lo EacliaiJ* 

a, i&i 

KijfUiDp bfld iCDurc ol ofKce at. i. ij 

KcAf-«d»A]i. ii- 1^ 

Hxttivti and IhL^f, punlshmRll ol» tl- 
161 
the t^rench law, tt. rfii 
viewfe of ihc civiliatu, ii^ i6a 

KvcciAiiitilbuip tfLiquiluus Uw ol. Ii. 60 
brMKcri^o (h< Rdinan law^ ii. tm 

Kea Sen. liic, ul th^ incrmu, t, J49 

Rr^al Idwk ol Ruene. xltt^r crurliy. j. S7 
Kfctirert. public ibcir oritfm, h- ijs 
Rc'j«<ti'>iL, puwTTt ol, shauTd belong to 
Ihe prople, and nui the power ol 

Heligjun. ]|9 mfluencc on dcapotie gov- 

Frnmenia, i. s'J 
Ihe U*3 in rcUrion to, ii, f? 
ibc tlmscian ind tlic MuliammerUn. 

what guvFriimenU nmtt atTttiWc 

10, li. fV 
laura uf pezlccliop, il ja 
invruL lA<vt. jL jj 
ill influence an civil tava, ii. 35 
iti muyftui t'3 tbf aiAie, ii. y6 
immi3ttiM\y tA fhc aoul, ii. jg 
thuuld nof iiikpizc ■vciiitfO lO Ut^" 

ihjnic bm vice, ti. 41 
IiXmI liiw*. ii. 4C 
Gttemal jiutilj^. ii, 4 J 
relijfiotii icnirmcfiEi. i[. 4] 
the ^umlificalf, ii, Jl 

tolcMiLioll, iL ^1 

cIiHntcinff a lefiition, ii- ss 

ptnal Iawt, lj. 95 

pinpairarinn uf Feiiifiun, ii. tsj 

tu tuKij cfennol rrirulaiB tnq ctvtl 

law. ii, 61, «. *7h fa 
Rfpr^arnTntirci of (Tic pCCTpt^. T. tu 
Kepulat^ran tfdTCfnuifni cljvideif^ inlo 

i|cii>ocraEJC and trillDCTStic. i- B 
fc]ucaTii>n in 1, i, 55 
Ut iliKfincfivc T»iv>|>*rti<^, f. tv> 

bow ti piuvidca loT 't\i atfcly. L ttS 



Rfpublmn aovcramcaL cenfcdermrv 

fcpuhlioa, 1. 1^ 
too aoircra in puniihing bieli tre^ 

*an. i. igr 
luipcnuicn nf Liberty. L m 
l*wt lBvorabt« (o (he Kbtrly cl tha 

aubjecl, 1, 199 

Revublici, I'mk. two ac^ni of. L 46 
Ktcpiiili^ilion, ■- t6a 

Uler leuLftlalion, i. yoG 

iCeultaEiun. Uw of, j. ^ 

amnnji »h* Armhi, imJ ihe GdrBUn«t 
II- jj 
RbodrA, la* of, rvip«crlTig debloji, 1. 

Muijui4 ftt. propotrt Id opan iSa 

Pjicnfan (ninet. i. 3^ 
RicMlfu. Cardmol. «n hont»t mnii, i.14 
Ills tdvice ti hinEt, t, (5 
rc^urjri loa muca fur tbem anil 

(heir minialrrs. 1, 56 
reifufda an oJitnce aaainj^r himnetf 

aa hitfh (reason. 1. e«i 
on CQRiptalnli agalnal minjilert. iL 

Ripuanan Franki prcterre Ihcir own 
CUalomi. 11. 9J 
himpUciTv o( their liwB, iu u 
Koblfer/, See Thefi 
Roiaan law, how loti in aome countriM 
and preacrret] in Dihcra. ii- i>6 
kerfiv itA gtound in Uie duncitac of 

the l^mbinlH^ li. tot 
how IokE in Spitn, ii. lai 
why II icil itiio dliu», ii- itj 
III revival, ij. 140 
Rdmam. ihe. Lheir bjewa o| ntaririiDV 
attakr* and ol commerce, i. ^y 
I heir pri>f eciingi wjth mpect to 

in(>ney. L. j3g 
cbaage the valae ot their fpecie. L 

procvrtlinaa In ibe ttme of tfaE cca- 

peroM . i Ml 
UbUry. L Mif 
maiTlBffe Itwi. Ii. it. ti 
lawi r.<rtocroaLoa. iL ji 
not in a ataie of aerviluile amoos 

ihc c^nquerort of (laul. ii. 177 
Rone, on« principal eauie ul ber falTi 

diviiioin ol Ibe people by Serriua 

TullfUt. J, IV 

the fcntle, I- u. ia 

pf^jrel vi ^rTla, 17 to 

paternal auihofitr, L 40 and note 

lit Half aa au uiflwaiic republic, 

L SI 
Ibe I'iburlft, j. )j 

act Forn of actiona at, i. 76 

the kmfi. I i«« 

Dew diurihution ol power on Ibcir 
fall, i- <«« 

govcrninenl ol Ihe province*, 3. 1S0 

Covtrnnieiil of the Itinjra of. l. 16^ 
Romulut. hia lawi revartlinK thildren. 

ii± ti 
Roricon. hia iHrlii, ii, t«_ and n<ite 
Kulharit. him law coneernina lepert, i. 

inere^Be [be «inipoailiooa lor 
waundi. ii- 107 
Raiifan pov^mmenl, 1(1 end#fly*>ra to 
temper it* af biirary power. L 50 




aSo 



UOHTESQUIEU 






ln>lanc* <if rnla^rnt'lrij 1*4!, 



pwniAticatfiu for. 









[iptLOiu i 



.T[|_ 



SaLloTB, civil ihllptLOlU among, U. 0O 



thrt Uwfs IL 



do not »Ql«r*i« torponl ptipiih- 
mcnlty ilk 94 

liVK of tlir Vt«igcihA «nij Bui- 

»ni iIlq Kipuanaa Fruilc*, it. tetf. 

Slfic bw. tl« purrmfrf. I. ifli, fill 
Sflltp Uodi. not tttif^ I iA( 

UiTT, ijifltrcni lTi>m ibore ol other 

why ibvy Icll mto dilute, IL itA 
Sii}! uKd la Abyubik u nuincT» I' >T4- 

Suumitu. tbdr orUln. I, loS 
nwttnt cutlom of ihr. l i<yr 

~ dBhaSoa. nfuial oT. IL igH mj nnir 

~i|« nna Mrbuon* nttions, dilfrr- 

«no* bctwwn* ». «fi 

SAngni nitiiral liinidtcx of, u 4 

SajbOQi^ Ihfir U«4liFi*ni by Char]?- 

magnc, and hy L>odi« the LltfboQ' 

SniTifn, Liitt* cvtcvmtd by tht ttom^fia, 

iL mpulouinnt fil, IL 8 
<rid n» of PrcncJi ktngi. li. 241 
coQfvilon o4 ihc rgyallj »nd nayor- 

ilty, U. ut 
«Lccdon of thF kingB, II. a^j 
Ihcir tiumillKiion, tt> prluc^pfll cauM, 

II, iK3 
TK?ir fall. iL jflf 

»fl«urUB Xtntor, project ol, i. jus 
Scmirsmlt, irwurff of. i, U4 
Sciulf, |>«WR ol Ihc. at AlhtQj, I. ij 

»I IConiv, I. 1 1, 14 

clfctfd for liff. L4a 

JIA ppir)T, I- 9t 

Ai (arthi^v. I, lyi 

Servliuttc, ilgmpailc. 1, jr^l 
pofillcil 1. J64 

Sctvlua 'l>illku», fill <]ivlilo4i df tfa« p«a- 

alltn Ibe coatlltutlon of Rome, I. 



t:s 



ipartlEavm; 



dl*^. 



hliTand tim, II. 8j 

4MO(ll(f, L 4 
latQutlitir In vArlnUi «llniAl«*. t^ «) 
Scvt^liui kfccn pOMetilon ol Fkdia. 1 

11, m 

ScKiui l^'duwat. IthtHl »4idti0l 0^ li- 
ft 
Sh>1i Ka'fir. liU oonqutfll of iha Wotful, 

tiATDwv. thtit M«» ol happliie»*i ^ us 
fl*ni», ■!« 0i*rTL*« to vut >l»f^. i 44 
9mr. Ita pfwofUoaaie raiue 10 cop- 

5lnVliia 'inidrwnitigei ef» 1. sps 
SUiiii OvIntoB 4«^nd l« revive ffi# 
[luSlic ■ecuiaUoa of tdvltov. L io« 



Slavary, moit lolenble in dopotie 

oriEJn nf the ti)tM ^ ultrcry anonfl 

ih< RtJitiitii ciTitiBnt. i. a^ 
clhct I't'ittm. I- i)J. Jjft 

itu< (^rigm cl Ihc tight. I- qB 
uBfll<«B In KiirL-hpr (. a^n 
«cT«ml kind> nr^uvrTjH L j^i 

diriRrr from the multilud* of ■]*¥«■, 

«,rin<d^»lAvri, i. m} 

jir«v3iirinn4 iiani rn rn^^ttcral* gn'*' 

pt%K\i<ii of ibp Komiiiiiv i. n$ 
iwulatiani bciwtvD roaiitrt lod 

fkkvn. I. mO 
«um3chJBCRifnt», i u? 

OMKitlc ilitvcrv JndrCKndentIr o| 

polygamy. I, fjM 
QC^ro qu«iUoD of lis fftvlulnctt. L 

■rffumenli It-r ibt practlH* I- Jjo 
SlavTi^ infianrTiiBcmcni of, I- a^y 

Uilnacblied lo accuu thcif omter^ 

wir of tht. one of ^li 9u>f«. L itv 

Snhr>f-Tlr, l.iWH rclATing tn, 1. 1^ 
boftiblc lempM, *fleci of a. *. *ol 
Sod, naiutr oi ibc, lu rd«iion I4 the 

lavi. K f?] 
ISoIdtrr^H hnnun. Ih«lr tnivilcgra, U. IV 
Solomon, ili« fleets oL T 5)6 

thvir irdioui voyagf. 1. jj; 
Solcm. iLii ilkvliion ol ilit pcoj^lti, i 11, 
4|. riH-irr 
hif imcnJmcnt of fhe tufTrace. L u 
hit Ijiw <kT lEihrrtt^nrr. ( ij 
hii mlci (or iLc Couft ol Artopuu^ 

Ih 7? 
bii law foii rhr dcbron. i. » 

Soul. tmrnijnalliT gf tbv. lh« dortrInQ 
lalicly undtriEootlt IL j^ 

SogiTi ind nntth, difercDc* of thvlr 
want I, kr jjj 

Southern lut^^ink. coiDrad^clIoo in ihv 

tVMiper* ol IODIC. L ti* 
Spain, ntbct vl. In Anckat llmtt, 1. 

rl^^* drawn twvta Amttii:^. i, jifijf 

SpftpUrda, ihtir clureeitr. I. »^ 

ihclr ar^uiBcni fof «n«tAvln^ tbc 

Indiana, I ij« 
nol rcslljr cnrtthvd \fjr d*>icav«fjr of 

the Nw Wofid, I. 3?j- 373 
ihrlr ccnducl in ilit Wr«( tlifi^tt 

U, S 
and Chmaa*. chancUr ol i)»#, L jv* 
SpaiiLsh cn^n^rchy, putiCDl«r cue at 

ihf. i. ij< 
bvbaroot U» of the. 4 314 

Span*. Ih* pulilid •«aiinliU«t M, I, 

abnflai4d i>y PhllO^»maii, L u« 

nofv 
marrlaH* Ih** ■!* L 4J 
a ftriiifif Jiw. f. Sf 
Spvfch**, indl«cr*«t. punlihmeal «a, L 

1^ 
Slalt tniiilaWora ■! Vf«t«L I- i«. t». 

^i^^Ert. vrr of ih*. 11 u 
Subordination (4 live cihi«a to th* mH' 

itltalf, i. 40 

Subildlta. SvtTuc* 



4 



INDEX 



aSi 



Sab4lirulioii. fHv Rniruii tad iTw Frvnfh 

Uv ot Li. 159 

ihc Uonun t:iwi on. it, Si, «i 
Suffr^KCp iwu luDdi ol. t- II 

ofleu ftivcik lor rnojify. 1, u 
^ictdff >■■<! 10 be Thr r<tn«r4tu'nf( of ft 

d^iFcraptr, in linfflin'J, 1, Jji 

incienl Idwi atfiinil. U. iw 
Sulun. vhf he] a noi bound bj hu 
wcril, L j& 

hit flmirn on mticrkTonc. ■■ w 

(ruciiy m iTie aJminiiitrBikuD d (up 
lice. J. Hi 
SunpiuifT lAwi ta a dcmocncy. I- 96 

m u vLiiocruT. L 97 

ki ft moflATchr. I- 0?, fifl 

In what f4>rs uhIuI ih«re, t, 99 

ftinoiiK ibc Komjiai, L iO« 
SnpfrtttTion, [howcr ol, 1, t^ 

luxury ofj ii, £0 
Sweden. nimplQftTy Iftm ol. 1. gg 

ibeii objc«t| I- vg 
5ylli. rrnirrt of rrsinriftg Komdo llb«ny 
■icrlbrd lu. i. jit 

mftlK» The Lornflian laws, L W 
5jrxftf^u», ill cufrupliun ftod miicry, L 
111. II J 

«iir»cjara tU il. i)8 
SjFrkBin iiinjp. o^minMcc of ihf, Ih 345 

Tkdiuii OD the iiiJinnFfi ol iTic Ger- 
tnin>i> i, i&i, (fill, tfi. d4, 31^: il. 
I Iff. 11B 

TftrquiUn 'ulc ot 1. 167 

l^UF*. rlTn^T of ihclr coiiCLUVit*, 1. itt 

their icTvJiudc* i- Jd?. m 
Jaw ljI nuitLiiiB amoiis mem, I. jAd 
ejv]] Ea#. i. cHi 
ilrAfi^r law* uf xht, iL js 
Tuo in v&rioua guvTroinroia, 1, n?, 

on Und, L tio 

vn iiivf khan iliac ii 'it 
ft bid imiiotu I- *it 
Dufthi (v be liiiltl, i. Jrj 

rrUiiun bcivrecn inc wcigbr of lax« 
Ulil IJlicd/. Lh di4 

incrtftse of Eft<«t, 1. »4k f IS 
oppTVAiive faiiet *tl ibe Cr^efc cm- 

pcror*H i. ttf 
mvTitpti'v^ i J 18 
qtt«»tlon of Uvyinif Ukc«, i, >i4 

Bpnc tc*ie<i on lh< Land* vi ihf twr- 

bftfiftBi in Gftulp ii- iflt 
trftaiient Ux «i l1i« Ronifin* ibcre, 

il. iSl, 
■•■ri paid by (b« Romani >nd Cvuli 
in llic munari:by ul Ibc Frmnki^ 
ii. i&t 
TemplM. if, 46 

b«cc-mc tnnclu^rEci, ii. 47 
TrtUnietjL Ste Will 

Theljifit, ihtir horribtt da»ifa (4 toftn 
thr inirtHcrt of Ihcir yotitb, 1, jg 
Tbvff, v^fiuitP lawH aiiBin't, ti. tOj 

Ihc law ul the Twvtvc T»h1<a. Ii. lA^ 
ThcubAld, Km* cil ihd Frank*, hm 

wtflknri*. li- ssj 
Throdorir, Kina uf IfsJ/, hi« ipirjf and 

poJkx "' ^ro 
ThrDdn>iitn ftidi-, thi*. il* loliir*. ii, ig 
rheopbitui. ftnccdclc of. L j^ 
Thefiphramiiii on mtivic. i, )?. ift 



TTiAiight^ piintiHpi'Hf. I. iQj 
Tkti«nut, lyrinniCAl proCTcdinKi gJ. i, 

Tiihvtn ntftbfjihmcnl of. IL tj; 

Ioltrilton m poif>l of rvljgioti, ]l. 11 
curMmcnU, m, i» 
Tilde, Sf ( nnimtrp* 
Trvavurv, thp k.inK~«. lU iM 
Tr|Alh Sro Jui]fmp<ii <Jril«1 
TnbuiMl*. (hanflt t>l, on ih« rvrivftl 0I 

(he Kf.MiiAD \aw^ li. 140 
TTlbuii«i> |]i? prrfcncn of Ihe RomftD 

Tribuif, «iicinfrii(»(it from. In Chlnft, i 

Triumviri, ihr Roman, lh*ir bftrbftrou* 

proifF^ptioai. i. iqH 
Tfoopt, diigmi^nution of. in Kuropr, 

111 ««■! tllfdt, L jrr 
Tmlb in tnnvrtaotmn tiifi VftlUfd lOT tt> 

€un uke. i. jo 
'i^rhpr. Icwiuiu tpKdiJy dKid«d In. 1 

dftn<«t oJ « liUfflou* dk*poilllon to, 

I'uicl^ET, 9rr tiuftrdtftnahip 

Tvelve Tibki, Uw m id cftpLUl Cftdvi, 

bt to tucRilion. [i. Gl 

at (o hfinbip, ii. b 

kt (■> iht#«e«. Uh rftft 
Tynnnj, L jfl] 
Tyre, commerce of, 1. 31S 

111 ft«ttle■l)F^1^ I, ^ 

Vinry lottildden by the tft«> of Ut- 
homei. I. yft$ 
nurltlinr, k. J96 
ftini>ng iht kfrnftni, i. )o6 

Vi,lrtiiQ low. lit purport, 1, Bj 
Vjikiir, Ihe DuLr dc [U. E'TaI ut, f. 

Viuib*. II king oE the VaritVliia. U. 101 

ind note 
V«ii(l) 4fid pride uf lullunth 1. «vs 
VftttAli^e, (lie oriifin of, 4L. i^j 
V«»*li>, v^riouilj' iitmrd ill Ihe be/- 
birlAn I1WV ii. 190 

l-rivitrifV* --I Tbr ktMK- ■■■ '^ 
VcnrEidnjt, ihfir |f*i«irnofiy. I, gj 

L]i(i( Trudr i«i|b lltc l^aftl, ir fiC 
Venice. Hate inquisiiori) I. 14. 51. 151, 

*lMom of ill rovtrnmeni. I. m. note 
it* law* ttcaiuff hcridilur ftrivloc 

racy, i^ itj. noie 
dilTi'r*nt I'ibbnali. i, i<j 
Verrci. currupt fonduci olT il' I7 
V*»«li. FjuLlJ and burden vft E. jj9 
Veitil virtmi, privileeci sranted (o Ehe, 

ii. iS 
Villftrtffc. Ukm on people in » iiate 

«f7 1 »4 
VillftiBA ftllowed 10 uic only Ihe bjtiton 
in i'lftl due'*, ii- >iS 

Vine* in CftuI, vhy rooted up by Do- 

miliin, i. 3*9 
Vifffinift, t'Asedy of, 1. Saw i?i 
Virltifl cucnrial in a populir thiiiv i- 
», ji _ 
fh* prinrriiTfi of 1 manarcbint gov 

cmincni, i- jj 
pnlilicml :ind privnlr. di'linruJilied, 

1- '^ 
in a paliViral utafe, 1- jp 




at 



MONTESQUIEU 



ViiiaiiHi, ro^Mini «< t^ in fmr ctf 



7. >l7« 
tbcv^^n Aev-ttwnldoX br the 

ridictaMi lam t^i^tut tfae Jcv% u. 

VocoouB !■«, iu pcoTiAkmi, iL 6l tt 

htm trt4td, iL 87 

fattt isiD duoae, iL pa 
Voln MJinkr ol the aaaeaiM nord- 

Voltaire; murk oc a sobilitT br, L t& 

BDtC 

«■ hcnon aad distiiictioii^ i h, 

■DtC 

on Aldbt*dc«, L 4J 
«■ Montaqnin'B pflMic cniplor- 
BOM, L «9 

Wtf , not the dMnnl itite of mankiod, 
L 4 

Gosmciica vdcb idcd confre^ite is 

MKWt7. t J 

tb* rvht to WBce wir, l 133 
WamAChKrios, ouror ol the patace, iL 
■19 
hii dfth, iL B4 
Water, the goddwd drink of the Aiaba, 

L alt 
W«ahb> fictiticmj aad repreicntaiiTC, i 

Win, mnrer of makiiv a, iL Bj 
bov i&ad« at Rome. ii. ^4 

Wiac; tiae of, vh7 forbiddea by Utr 
hooet, L a^ 

Witchcraft, chirgea ol, L iS 



Wituftij diflcrent luue recardiiic ia 

Eocland aad io Fraiice, ii. itii 
ID 1^^ docls, iL U4 
proof bj, iL lu 
Wiwo, plmalitj «. L 251 

vercnJ ordcn of lawful, iL 3 
Womeo, their otatc in diflctest fov- 

cnuDoiu. L IU 
tbe domcatic tribunal ■"■^^^ the 

Romuui L iQj 
cnrdiasUiip. L 105 
pani^bmeim for iocoattocnce. L id4 
dowriei and noptial adnniagn, C 

105 
female adminictratioD, L »■ 
in hot and in tenpcrate climate^ 

difference of their stale, L 151 
their mannen preicrvcd hj confute 

raenl in Turkey, i- JS7 
their depraTitr in Africa. L k? 
HKcravon of, under the KoraaA 

lawa. iL E5. e? 
not allowed the va^er of battle, ii. 

WonfaLp, oirnul* iti influence on re- 
ligion, Li' 46 
iti nuirnificmce, ii. 46 
it* pmiiT- "' 47 
Writing, lawi fall into dinK from want 
<a writing, li 104 

XenopboDr lactatiTe atli contrmned by, 
aa imwoHfaj of ■ free nun, i. jB 
hia Banquet qoDted, L 109 

Zozimai, hii account of tbe court ol 
Arcadiai, L 79 



/ 




T?TT-TT7rii.T7 'IjF^Z^.r^-.'^riil-Z^P^WW 




THE WORLDS 
GREAT CLASSICS 




Timothy Dwight, D.D. LLD 
Richard Henuy5toddabd 
Arthvr Richmond Marsh. A.B. 
Pavlvan Dyke.D.D. 

JvLiAN Hawthorne 

^, _. «j 



•ILLVJTTtATtD WITH- NEARLY TWO- 
■MN'NDREDPHOTOCRAVVaES' ETCH- 
INGS COlOtttiD-Pl-ATESAND-FVLL- 
PAQt PCHOTWrTi OF-CR EATAVTIIOftS- 

Clahence Cook ■ Art Editor. 




BBB 



"■■"""" 



•TH E COLON lAL • PRE55 

•NEW YORK =4oMDCCCXClX 



f 



( 





; .* 



-is 



PH^siC>ANnPlU!Tll\S ; i 





^r.EcnoN A\r -:nhh?ta\ce ■ to 
?"^{.:t:civ_ scoe"^" 



WAITER BAC-EHOT 






urrj^: i::-:-:\ 



■ 1 1 TUt _ Z\ ^ / 



w 



\ L 



hv THE COLONIAL PRESS. 



SPECIAL INTRODUCTION 



WALTER BAGEHOT was bom at Langport, Somer- 
setshire, February 3, 1826, and died March 24, 1877- 
His father \tas the managing director of Stuckey's 
Banking Company ; his mother was Miss Stuckey, a woman of 
bri!hant parts. At University College, London, he received 
the bachelor's degree in 1846, with a mathematical scholarship; 
and the Master^s degree in 1848, with the gold medal in Moral 
Philosophy. After studying law in the chambers of Mr. Jus^ 
(ice Quain and Vice-Chancellor Sir Charles Hall, he went to 
France before the coup d'etat in 1851. His letters to the 
Inquirer at this time created an exasperated interest, due 
to an original and cynical point of view opposed to that gen- 
erally held by the public. In 1858 he married the daughter of 
Mr. James Wilson, then editor of the Economist, which 
proved the beginning of nineteen years of a happy married 
life. The death of Mr. Wilson^ two years later, placed Walter 
Bagehot in the editorial chair of the Economist, where he 
continued to his death. His uncle, Mr. Vincent Stuckey, once 
connected with the Treasury, and also private secretary to Mr. 
Huskisson, early stimulated the ability of his nephew for prac- 
tical finance \ but, of course, the greatest influence of this kind 
came from his position as editor of the most important financial 
journal of the world. In this latter work he was brought into 
close intimacy with the ruling politicians of the day, and with 
the great commercial interests of Great Britain. 

In Walter Bagehot was found the unusual combination of 
logical accuracy with practical common-sense which so pre- 
eminently characterized Adam Smith, and which made the 
former almost the equal in power and economic insight of the fa- 
mous Scotchman. The evolutionary studies of Darwin and Wal- 
lace^ moreover, led him to co-ordinate the results of science not 

iii 



fv 



BAGEHOT 



only wtih ccgnufnics t>m with the MuOy of governnicnt. In- 
deed, iljL-rc Lh iiiucIi tn the tnlllLant gcncr^iliuuoQs of Bagchol 
which recalls the work of Sir Henry Maine m )urinpru4ciicc. 
In »on)« important points the Iwo men were much alike; each 
h^d a witic range <3f viv^ion^ And each had an honc^^t ref^pcct for 
facls^ Bagehot, however, was led into a more active and prac- 
tical life, while hU rjtialtlit-H aL'so litted him for the %Uuly of 
theory antl the principles underlying itic modem complex 
political and economic system. He also resembled Sir Henry 
Maine in the nicety and justice of his historical sense. Few 
men have equalled him iu the power to f^rasp at the csfientiaU 
and to avoid tJie hindering; details of institutions. With 
Bagehot it was more than training; it was an inspiration. 

A sound intnd in a aound body, oveiilowing with Mipcr- 
abundant spirits* diitinclly jwwerful and original, buoyant, 
vivacious, ^wift, he finely illustrated in a way his own evotu* 
tionary doctrine. With a deep substratum of English con- 
Acrvalisiu anJ practical sense, powerfully alTccteci by the 
Englisli *' cake of custom/' yet ui his originality, hi?t imagina- 
tion, his da^dir and intellectual fertility, he had the tendency to 
variation which modified elenK^ntal qualities and produced a 
very unup^ual type of the Anglo-Saxon. Steeped early in lift in 
theology, philosophy, and poctry» lie was yet hehl in by his 
Engti^ good judgmait. his ability to see both sides of a matter, 
and by a practical knowledge of men and of the actual world of 
hnsfness. This «yuipathy, as Mr. Ilutlon exprcstrs it, " with 
the works of high imagination, and his clear insight into that 
busy life which docs not and cannot take note of works of 
high imagination, and wliicb would not do the work it docs if 
tt could,'* was the secret of ht^ great power as an economist. 
This was apparent in other and small ways, as when he was 
drawn by liis Itktng for the discourse of Crahb Robinson to go 
to his breakfasts, where absenl-mindctlncss of the host led to 
much omission of the elements of the meal, but which Bagehot 
eharactcristically met by breakfasting before he started out. 
A reserved man Ik- was. yet with a saving ^racc of humor. 
Slavery in early communities h almost justified by his remark 
thai " the patriarcliN Abraham, Isaac, and Jacob cotild not have 
luid the steady ciihn which marks them, if Ihey bad thnnsclvca 
been teased and hnrrieil about their flocks and herds," TIksc, 
according to Bagehot, should be tended by slavca. It was his 



SriiCIAL INTRODUCTION v' 

tm^Lgin^ition which nol only Icavoncd hf» inlcrprcttttion of eco- 
nomic life, biii also jxaiclratod his superb *tyk. 

There was nothing fragile about his mental operations Hi« 
robust cotirage mude it t^^nty £r>r him to rub the English con- 
sciousness the wrong way in his audacious letters defending 
Louis NajKjkon's coup d'Hat, a* well a* to pillory English 
dcnscncss by saying " in real sound stupidity, the English peo- 
ple are unrivalled: you'll hear more wil and Ixrller wit in an 
Irish street row than would keep Wesimmstcr Hall In humor 
for five weeks." 

A c«n*tiu frctrdoin fmni sentitiK-nt, which kepi him froni 
sympathy with the "struggle for cxifltciice."was, while » defect, 
also a source of his iwwer in the search for truth. He could 
not have done Toynbcc's work ; but tlie Toynljec type could not 
have done Bagehoi's work. The quahty of mind which 
brought him into close contact wiLh Arthur Hugh Clougli, was 
the realization of the difficuhy of finding the truth, fn CTou^^h's 
" ruinous force of the will " to persuade ua of illuiiions which 
please us, Mr. Hutton finds that which might almost be taken 
as the motto of " Physics and Politics,'* Holding that^ under 
the impulse of earlier ages, men are too much disposed to dan- 
gerous energy, in this hook he has tried to show how, in our 
complex modem exislencc, discussion, which will point out 
difiiculties. will restrain the excess of practical activity. He 
ficcms to have liad the present hour in view when he opposes 
expansion, on the principle that the practical energy of our 
Western peoples '* is far in a<Ivance of the kiiowli<lgc that 
would enable them to turn that energy to good accounl." By 
suspending action until judgment was more matured, he hoped 
that i\\t calibre of the Knglish mind, conscience, and taste 
would be generally raised. The brilliant applications of science 
to politics in this book, together with his " English ConstJia- 
lion," made the chief foundations of Biigehot's rqmtation. 

His " Lombard Street/' attO his " Pustulates of Political 
Econoiny,*' brilliant though they may be. a* hints of what he 
might Iiavc done in Economies, are dctatchcd studies, far re- 
moved from the systematic character of his political writing. 

The scope of his intcllerluaT aetiviJy may he seen in the 
following list of his writings! 

" Letters on the Coup d Etat of 1851/* written to the /»• 



< 




vi BAGEHOT 

quirer, reprinted in the first volume of " Literary Studies " ; 
" Parliamentary Refonn," reprinted from the National Review, 
1858; "History of the Unrcformed Parliament/' from the 
Notional Review; " Estimates of Some Englishmen and Scotch- 
men," 1858, reprinted from Prospective and the National Re- 
view — long out of print; articles in London Economist, 1860- 
1877; " The English Constitution," 1867; " International Coin- 
age/' 1869 ;" Physics and Politics," 1872;** Lombard Street, a 
Description of the Money Market/' 1873; " Postulates of Po- 
litical Economy/' and other articles from the Fortnightly Re- 
view, 1876 — see "Economic Studies"; *'On the Depreciation 
of Silver/' 1877; and the three following, all edited by R. H, 
Hutton: " Literary Studies/' two volumes, 1879; " Economic 
Studies/' 1880; *' Biographical Studies/' i88i. 



CONTENTS 

WAoa 

L The Preliminary Age < i 

II. The Use of Conflict , 26 

III. Nation-making 51 

IV, Nation-making 70 

V. The Age of Discussion 96 

VL Verified Progress Politicallv Considered 137 



PHYSICS AND POLITICS 



i\ 




CHAPTER I 

THE PRELIMINARY AGE 
pATt X 

ONE peculiarity of this age is the sudden acquisition of 
much physical knowledge. There is scarcely a de- 
partment of science or art which is the s^me, or at all 
the same, as it was fifty years ago. A new world of inventions 
•^^1 railways and of telegraphs — has grown up around us 
which we cactnot help seeing i a new world of ideas is In the 
air and affects us» though we do not sec it. A fuU estimate 
of these effect* would require a great book, and I am sttrc I 
could not write it ; but I think I may usefully, in a lew pupen, 
fthow how, upon one or two great points, the new ideas arc 
modifying two old sciencei; — politicn and political economy. 
Even upon the-s<^ points my ide-Ts iTiast he incomplelo, for the 
fiiibjcct is novel ; but. at any rate, I may suggest some conclu- 
sions, and so show what is lequisite even if I do not supply iL 

If wc wanted to describe one of the most marked results, 
perhaps the most marked result, of late Hiought. wc should 
say that by it cvcrj-lhing is made " an antiquity/' When, in 
former limes, our ancestors thought of an antiquarian, they 
described him as occupied with coins, and ntcdals, and Druids* 
stones: these were then the characleristic records of (he de- 
cipherable past, and it was with these that decipherers busied 
themselves. But now there are other relics ; indeed, all matter 
is become such. Science tries to find In each bit of earth the 
record of the causes which nia^lc it precisely what it is; those 
forces have left their trace, she knows, as much as the tact and 
hand of the artist left tlictr mark on a classical gem. It would 



4 



BAGEHOT 



be ttdsoot (and k » not in mj waj) to rvckoo 19 tbe tnganoos 
ycttioninc^ by whkfa geology Im iB»d« pan of tb« urth, At 
kaM, UH part of its Ule; ftnd tbe Ju«ms wocld have beei 
ftj ai im h— if physiology md coocbology and a h updr ed 
iOCTcci bad HOC hn^n^ht their aid. Sodi nfbt i di ary 
. are lo t)» dectpfacf tr oi the present day what oM tan- 
EoaeawcrelotbeantMrnanrof ocberdays; tbeycOQstnie tor 
Wan cbc words arbkb be dtscorer*. tluy ghre a ricbscss and a 
Imlb-like complejity to tbe pklore whidt be paints, even in 
cases where the particular detail ihcy tctl is oot oitich- But 
wba^ here ooncems mc is that man himseU has, to the eje <A 
idencc, become "an antiquiiy/' She tries to read, is bepn- 
inn^ to read, knows sbe ought to read, in the fra.nic ofl each man 
the rtiuU of a whole history of all ha tife, of what be is and 
what makes him so,— of all his forefathers, of what they were 
and of what made them so. Each nenre ha& a soft of incmory 
of iu past life, b trained or Dot tnlncd, dulled or quickened, 
as the COK may be ; each feature u shaped and characterized, 
or left toQ«e ai>d meaningless, as may happen; each hand is 
marked with iti tndc and life, fttibdved to what it works in;— 
if we could but see it. 

It may be answiTcd that tn thts there is nothing new: that 
we always knew hnw much a man'* past moflitied a man'* 
future : that wc all knew how much a man b af>t to be like his 
ancestors; that ihe exi^stencc of national character is the 
greatest commonplace in the world: that when a philosopher 
cannot account for anything in any other manner, he boldly 
vcribes it to an occult quality in some race. Rut what physi- 
cal science does is, not to discover the hereditary element, but 
to, render it distinct, — to (nve us an accurate conception of 
what we may expect, and a pood account of the evidence by 
which we are led to expect it. Let us see what thai science 
teaches on the subject : and, as far as may be, T will f^ive it in 
the word« of those who have made it a professional stmly, ^oih 
that I may be more sure to state it rightly and Ttvidir, and 
because — as I am about to apply lhc:se ])rinctplcs to Tsut)iecis 
which arc my own pursuit — T would nuhcr liave it quile clear 
that I have not made my premises to suit my own conclusions. 
is^l, then, as respects the individual, we k;am a^ follows: 
•*E\cn while the cerebral hemispheres are entire, and in 



PHYSICS AND POLITICS 



full possession of their powers^ the brain pvts rise to actions 
wliicli arc os con^plctely rcHcx as iho&c of the spinal cord. 

" When ihe eyelids wmk at a flash of light, or a thre^tcficd 
blow, a reflex action takes place, in which the afferent D«rvc» 
arc the opti:!^ the efferent, the fnctiiiL Whi^ a lurl smell causes 
A grimace, there is a reflex action through the *aine motor 
nerve, while the olfactory nerves cotistilittc the afferent chan- 
nels. In these cases, therefore, reflex action must he effected 
through the brain, all the nerves involved being cerebral. 

*' When the whole body stalls at a loud noise, the afTcrcnt 
auditory nerve gives rise to an impulse which passes to the 
medulla oblongata, and thence affects the great majority of 
the motor nerves of the body, 

" It may be said that these arc mere mechanical actions, 
and have nothing to do with the acts which we associate with 
hitelligcncc. But let us consider what takes place in such an 
act as reading aluud. In this case, the whole attention of the 
mind is, or ought to be, bent upon the subject*matter uf the 
book ; while a multitude of most delicate muscular actions arc 
going on, of which the reader is not in the slightest degree 
aware. Thus the book is held in the hand, at the right dis- 
tance from the «yc* ; the eyes are moved, from side to <idc» 
over the lines, and up and dnwn the pages» Further, the most 
delicately adjusted and rapid movements of the muscles of the 
lips, tongue, and throat, of laryngeal and respiratory muscles, 
arc involved in the produclion of speech. Perhaps the reader 
is standing up and accompanying the lecture with appropriate 
gestureji. And yet every one of these muscular acts may be 
performed with utter unconsciousness, on his part, of anything 
but the flense of the words in the book, in other words, they 
are reflex acts. 

''The reflex actions proper to the spinal cord itself are 
natural, and arc involved in the structure of the cord and the 
propenies of its constituents. By the help of the brain we 
may acquire an affinity of artificial reflex actions. That Is to 
aayi an action may rci|iiirc all our attention and all our volition 
for its first, or second, or third performance, but by frequent 
repetition it becomes, in a manner, part of our organization, 
and IS performed wiihout volition, or even consciousness. 

" As everyone knows, it takes a soldier a very long lime to 





BAGEHOT 



DB ^"^ — lO 



fisr 

ol ' mackn ' « tbr ntMK tbc Wfd of 
Bcx. alur a time, the •oond of the woni gms hsetotbe att» 
wlKda-tlMMUnbcAiDkBgofitoriiot Tbentsastorr, 
vUdi k crtdible cnoofh, dw^ik k iBiT Bot be tree, of 1 prac- 
tical jolttr. wfeOp secsne a 4fiicbwgc4 vctcm cg ry i ng hone 
•adde&lr caBed oof 'AttetfioBr wfanpy » the 
Dfmptt Ub bsods aony ido loit bs biqUimi 
»d potaiocf in the gutter. The dnl! h»d beei fooe Afoofh, 
mad ks effects bad becocnc anbodkd ia the fBan's ncrron 
MnKtnrc 

" Tbe powihilily of all edncacioo (o< which oiiliW7 drii is 
onljr <Poe p ar tici ila r kxm} i» based opon the e m ietic e oC tUs 
povcr wt^fa the Dervoof syvtcra pocscsscs, of of^antsng coih 
idoa* actioru into n>ore or leu uticoo&doai, or reflex, opeiB- 
lioa*. It tnay be bid down a^ a ruk, that if aajr two nkental 
■tatea be calkd op together, or n j a cecawcp. with Aac fre- 
qococy and vividneu, the >iabseqiKiit prodactioo of the ooc 
of than will titfice to cafl tip the other, and that whether we 
deitrc it or not." * 

The body of the aecomplUhed man hu ihci becocne by 
training different from what it once wis, and difierent frooi 
that of tlie rude man ; it is charged with stored virtue and ac* 
quired Uculty which come away from it tincocsckKtUy. 

Again, as to race, another authonly leaches :^^ Man's 
life truly represent* 2 progressive devcl<^rtnent of the nervous 
system, none the less so because tt takes place out of the vromb 
instead of in tt. The regular transmutation of moiiocs which 
are at firsi volttotary into secondary automatic tnotiona, as 
Hartley calls than, is dtte to a gtadually eSeded organiaaeiGa : 
and we may rest assured of tfais^ that co*ordinate activity il* 
ways testifies to storcd-up power* either innate or acquired. 

" TTic way in whivh au acijuired faculty of the parent animal 
U sometimes distinctly tran&miited to the progeny as a herit- 
age, instinct, or Innate cndawmcnt, furnishes a striking con- 
finn&tion of the foregoing observations. Power that has been 
U1>DnDu&Iy acquired and stored up as statical in one generation 
manifestly in nuch case becomes the inborn faculty of the next; 
and the development takes plare in accordance with that Uw 
• Hiix!ey'« " Et«m«ntary Phyuologj." pp. 384^3^6. 



4 



PHYSICS AND POLITICS 

of increasing specialty and complocity of adaptation to external 
nature which is traceable through the animal l<itigdotn ; or, in 
other words, that law of progress from the general to the 
special in development which the appearance of nerve force 
amongst naVural forces and the complexity of the ner\-oitB 
system of man both illustrate- As the vital force gathers up, 
as it were, into itself inferior forces, and might be said to be a 
development of them, or, as in the appearance of nerve force, 
simpler and more general forces are gathered up and con- 
centrated in a more special and complex mode of energy; so 
again a further sp^rdalizatlon takes place in the development 
ol the nervous system, whether watched through generations 
or through individual life. It is not by limiting our observa- 
tjoos to the life of the individual, however, who is but a link 
in the chain of organic beings connecting the past with the 
future, that we shall come at the full truth ; the present in* 
dividual is the inevitable consequence of his antecedenU ui 
the past, and in the cxamiiiation of these alone do wc arrive 
at the adequate explanation of him. It behooves us, then, hav' 
ing found any faculty to be innate, not to rest content there, 
but steadily to follow backwards the line of causation, and thus 
to display, if possible, its manner of origin. This is the more 
necessary with the lower animals, where so much is innate." • 

The special laws of inheritance are indeed as yet unknown. 
All which is clear, and all which is to my purpose is, ihai there 
is a tendency, a probability, greater or less according to cir- 
cumstances, but always considerable, that the descendants of 
cultivated parents will have, by born nervous organization, a 
greater aptitude for cultivation than the descendants of such 
as are not cultivated; and that this tendency augments, in 
some enhanced ratio, for many generations. ^^ 

I do not think any who do not acquire — and it takes a hardly 
effort to acquire — this notion of a transmitted nerve element 
will ever understand "the connective tissue" of civilization^ 
Wc have here the continuous force which binds age to age. 
which enables each to begin with some improvement on the 
last, if the last did itself improve; which makes each civilisa- 
tion not a set of detached dots, but a line of color, surely en- 
hancing shade by shade. There is, by this doctrine, a physical 

• Maudslcy on the " Physiology and Pathology of ihc Mind," p. 73. 





BAGEHOT 



cause of improvement from generation to generation: and no 
itnagioation which h.is aiiprchentJed it can forget it ; but unlcsa 
you appreciate that cause in ii£ subtle materialism, unlets you 
sec it, as it were, phying upim the ncr\'« of men, and, age after 
age, m;iking nicer music from finer chords, you cannot com- 
prehend the principle of inheritance cither in its mystery or its 

Yhcse principles are quite independent of any theory as to 
the nainrc of matter^ or the nature of mind- They are as true 
upon the theory that mind acts on matter — though separate 
and ahogcthcr different from it — as upon the theory of Bishop 
Berkeley that there is no matter, but only mind; or upon the 
contrary theory — that there is no mind, but only matter; or 
upon the yet subtler theory now often held— that both mind 
ard matter are different modifications of some one iertium 
quid, &(jmc hidden thing ur furce. All these theorii^ admit 
—indeed tlicy arc but various theories to account for — the 
fact that whnt we call matter has consevjuences in what we 
call niind^ and that what wo call mind produces results in 
what we call matter; and the doctnneg I quote assume only 
that. Our mind in some strange W2y acta on our nerves, and 
our nerve* tr Kome equally Kirange way store up the coni^e- 
quenccs, and somehow the result, as a rule and commonly 
enough, goes down to cur descendants: these primitive facts 
all theories admit, and all of them labor to explain. 

Nor hav<e the»e plain principles any relation to the old diffi* 
culties of necessity and freewill. Every Freewillist holds that 
the special force of free volition is applied to the pre-existing 
forces of our corporeal structure ; he docs not consider it as 
an agency acting in vacvot hut as an agency acting upon other 
agencies. Every Freewillist holds that, upon the whole, H 
you strengthen the motive in a given direction, mankind tend 
more to act in thai direction. Better motives— belter im- 
pulses, ratho^'M.'omc from a good hody: worse ntotive* 
or worse impulses come from a bad body. A Freewillist may 
admit as much as a Necessarian that .-tuch improved conditions 
tend to improve human action, and that dctenorated conditions 
tend to <leprave human action. No Freewillist ever expect* 
as much from St. Giles's as he expects from Belgravia: he 
, an hereditary nervous; s)-stem as a ffahtm for the will. 




PHVSICS AND POLITICS j 

though he holds the will to be an extraordinary ineoming 
'* fiomclhing.'* No doubt the modern doctrine cA the " Con- 
servation of Force." if applied to drcisioR, is inconsUtcnt with 
freer will ; if you hold that force " is never lost or gained/' you 
cannot hold Hut there is a real gain— a sort of new creation 
oE it in free volition. But I have nothing to do here with the 
universal '' Conservation of Force," The conception of the 
nervous organs ^ stores of wtll-madc power docs not raise 
or need so vast a discussion. 

Still less nre these principles to be confounded with Mr. 
Uiicklc'e idea that material forces have been the main-springs 
of progress, and moral causes secondary, and, in comparison, 
not to be thought of. On the contrary, moral causes are the 
Jirst here. It is the action of the will that causes the uncon- 
scious habit, it i» the continual ellort of the beginning that 
creates the hoarded energy of the end ; if is the silent toil ol 
the first generation that becomes the tr&nsmitted Rptitudc of 
the next. Here physical causes do not create the moral, but 
nioral create the physical ; here the beginning is by the higher 
enerfcy, the con«ervalion and propagation only by the lower. 
But we thus perceive how a science of history is possible, at 
Mr Buckle said — a science to teach the laws of tendencies-* 
created by the mind* and transmitted by the bady— which act 
upon and incline the will of man from age to age. 



Part n 

But how do these principles change the philosophy of our 
politics? 1 think in many ways; and first, in one particularly. 
Fohltcal economy is ihc most systematized and most accurate 
part of political philosophy; and yet, by the help of what ha» 
been laid down, 1 think we may travel back to a sort of *' pr^ 
economic age/* when the very assumptions of political econ- 
omy did not exist, when its precepts would have been ruinous, 
and when the very contrary precepts were retjuisite and wise. 

For this purpose I do not need to deal with the dim ages 
which ethnology just reveals to us— with the s-tone age» and 
the flint implements, and the refuse-heaps. The time to which 
I would go back 15 only that jtist before the dawn of history- 
coeval with the da^^-^, perhaps, it would be right to say— for 





BACEHOT 



the fint hirtorim n» nch a statr of society, thoush tliey ; 



otbcr and coore jdfaaced suits, too: a period of whidi «« 
have distinct dcscrrptioRs f rom ey«-wttiKsses. and of whidi 
the traces and conaeqncficcs aboond m the oldac law. ** The 
effect,*' ujs Stf Henry llabe, the gttalest of odT Gmg jorists 
the oiiljr oo^ perfaapf, whose writn^ are io kecpcng mdi 
our best philosophy — " of the endeoce derired from compor- 
attre jurisprudence b to cstabUsfa that view of the primeiral 
eoiiditioo ol the human race which is known aa the Patnarchat 
Theory, There is no doubc, of course, that this theory was 
origioally based on the Scriptural history of the Hebrew 
pacri^rch^ in Luwcr Asia ; tut, as has tfcct explained already, 
its cunncction with Scripture rather militated ihau otherwise 
against its reception as a complete theoiy, since the majority 
of the in^^uirers who till recently addressed themselves with 
most earnestness to the colligation of social phenomena, were 
either influenced by the strongest prejudice a^inst Hebrew 
antiqmties or by the strongest desire to consiruet tfaetr system 
without the assistance of rcllgioiis records. Even now there 
is perhaps a disposition to undervalue these accounts, or rather 
to decline f^eneralizing from them, as forming part of the tra* 
ditions of a Semitic people. It is to be noted, however, that 
the legal testimony comw nearly exclusively from the insti- 
tutions of societies belonging to the Indo-European stock, 
the Romans, Hindoos, and Sclavonians supplying the greater 
put of it ; and indeed the dtfhailty. at the present stage of the 
tnqniry, is to know where to stop, to say ot what races of men 
ft is not allowatilc to lay down that the society in which they 
are united was originally organized on the patriarchal model 
The chief lineaments of such a society, as collected from the 
early chapters in Genesis, I need not attempt to depict with 
any minuteness, both because they arc familiar to most of as 
from our earliest childhood, and because, from the intcresi 
once attaching to the controversy which takes its n:tme from 
the debate between Locke and Filmer, they fill a whole chapter, 
though not a very profitable one. in English literature- The 
points which lie on the surface of the htstnry are the^:— The 
eldest male parent — the eldest ;iscen<iant — is absolutely su- 
preme in hb household. His dominion extends to life and 
death, and is as unqualified over his children and their bouses 



4 



H 



PHYSICS AND POLITICS 

as over his skvea ; indeed the relations of fionship and serfdom 
appear to differ in little beyond the higher capacity which the 
child in blood pos«es£e$ of becomirg one day the head of a 
family himself. Tlie flocks and herds of the children are the 
flocks and herds of the father, and the possessions of the 
parent, which he holds in 3 representative rather than in 2. 
proprietary character, are equally divided at his death among 
hh descendants in the first degree, the eldest £on sometimes 
receiving a double shore under the name of birthright, but 
more generally endowed with no hereditary advantaj^ beyond 
an honorary precedence, A less obvious inference from the 
Scriptural accounts is that they seem to plant us on the traces 
of the breach which is first elTected in the empire of the parent 
The families of Jacob and Esau separate and form two nations ; 
but the families of Jacob's children hold together and become 
a people. This looks like the iinniaturc germ of a state or 
commonwealth, and of an order of rights superior to the 
claims of family relation, 

" If I were attempting for the more special purposes of the 
jurist to express compendiously the characteriuics of the sit- 
uation in which mankind disclose themselves at the dawn of 
their history, I should be satisfied to quote a few verses from 
the * Odyssee ' of Homer :^ 

" They have neither assemblies for consultation nor ihemisUs. 
but everyone exercises jurisdiction over his wives and his 
children, and they pay no regard to one another" 

And this description of the beginnings of history i* con* 
firmed by wliat may be called the last lesson of pre-historic 
ethnology. Perhaps it is the most v^thiablc, as it is clearly 
the most sure result of that science, that it has dispelled the 
dreams of other days as to a primitive high civili;cation. His- 
tor}" catches man as he emerges from the patriarchal slate: 
ethnology showa how he lived, grew, ami improved in that 
state. The conclusive arguments against the imagined origi- 
nal civilization are indeed plain to everyone. Nothing is more 
intelligible than a moral deterioration of mankind — nothing 



M 



BAGEHOT 



ihio an aesthetic deeradation — nothiofr tlian a poStksI de^ 
dition. Bui you caniK>t imagine; nankind pvinpttp the pUia 
utetuilfl of personal comfort, if tbe>' once knew them ; still less 
can you imagine them giving up good weapons — jaj- bows 
and arrows — if they once knew tbenu Yei U tJicrc were a 
primitive Hviltaation these things mtist have been forgotten, 
for tribes can be found in crety ikgree of ignorance^ and every 
grade of knowledge is to poQcry, as to the metals, as to the 
means of camion, as to the iostniments of war And what ia 
more, these fa\'ages have not £ulcd from stupidity ; they are^ 
in various degrees of originality, inventive about these matters. 
You cannot trace the roots of an okl perfect ATstctn variously 
maimed and vaHously dying; yon cannot find it. as you find 
the trace of the Latin language in the median'al diatects. On { 
the contrary-, you find it beginning— at new scientific dis- 
coveries and inventions now begin — hn-c a littte ai>d there a 
little, the same thing half-done in various half-ways, and sa | 
as no one who knew the l>e*t way would ever have begun. 
An idea used to pre^-all that bows and arrows were tlic " primi* 
live weapc-ns " — the weapons of universal sa^-agrs ; but modern 
acience has made a table/ and some savages have them and 
aome have not, and some have substitutes of one sort and 
some have 5ubst]ti:te^ of another — several of these substitutes 
being like llic " b:x)mcraiig," so much tncrc difficult to hit 
on or to use than the bow, as well as so much less effectual. < 
And not only may the miscellaneous races of the world be 
justly described as t>eing upon various ed^ of trdtistrial civ- 
ihzatfon, approaching ii by various sides, and falling short 
of it in various particulars, but the moment they see the real 
thing they know how to use it as well, or better, tlian civilixed 
man. The South American uses the horse which the Eu- 
ropean brought better than the Etu-opcan. Many races use 
the rifle— 4he especial and very complicated weapon of civilixed 
fnan^bctter, upon an avM-age. than he can use it. TJie savage 
with simple lool^— too!* he appnrut/^i^is like n child, quick 
to team, not like an old man, who has once forgotten and who 
cannot acquire ai^ain. Again, if there hid been an excellent 
aboriginal civilization in Auslralta and America, where, botan- 

* See the v«nr cairvful t^ble »nd ddmirabU ilf«cusUo& in Sir }6^ 
LubbDc^s " Pfe-HJstof le Time^" 



PHYSICS AND POLITICS 



ft 



bts and zoologists a»k, arc its vestiges? If these savages 
did care to cultivate wheat, where is the wild wheat ^nc 
which their abandoned culture must have left? If they did 
g^vc up using good domestic animals, what has become of 
the wild ones which would, according to all natural laws, have 
sprung up out of them? This murh is certain, that th<» do 
mestic animals of Europe Iiave, since what may be called the 
discovery of the world during the last hundred years, run up 
and down it. The English rat — not the plcasantest of our 
domestic creatures — has gone cven-where; to Australia, to 
New Zealand, to America: nothing but a complicated rat- 
miracle could ever root him out Nor could a common force 
expel the horse from South --Vmerica since the Spaniards took 
him thither; it we did not know the contrary we should sup- 
pose him a principal aboriginal animal Where then, so to 
say, arc the rats and horses of the primitive civilization ? Not 
only can we not find them, hut zoological science tells ns that 
they never existed, for the '* feebly pronounced," the in- 
cffcclual, marsupials of Australia and New Zealand could 
never have survived a competition with better creatures, such 
SIS that by which they are now perishing, 

W€ catch then a first glimpee of patriarchal man, not with 
any industrial relics of a primitive rivilization, but with some 
gradually learnt knowledge of the simpler art*, with some 
tamed animals and some little knowledge of the course of 
nature as far as it tells upon the seasons and affects the con- 
dition of simple tribes. This is what, according to ethnology, 
we slionid expect the first historic man to be, and this is what 
we in fact find him. But what was his mind; how arc we to 
describe that? 

I hch'cve the general description in which Sir John Lubbocic 
sums up his estimate of the savage mind suits the patriarchal 
mind. " Savages," he says, " unite the character of childhood 
with the passions and strength of men." And if we open the 
first record of the pa^n world — the poems of Homer — how 
much do we find ihaC suits tins description better tlian any 
other. Civilization has Indeed ah'eady gone forward age^ be- 
yond the time at which any such description is complete. Man, 
in Homer, is as goo<l at oniiorj-, Mr. GlaflMone seems to say, 
as he has ever been, and, much as that means, other and better 




BAGEHOT 



things might bo addc^ to it. But after all, how mnch of the 
" vplcnflid ravage " thcrt U in Achilla, and how much of t]i« 
"spoikd diild sulking in his tent-" Imprvfi^bility and ex- 
citability are Xht mam charaeteriftics of the oI<lc<t Girrk 
history, and if w^ turn to the east, the " simple and violent '* 
vroiid, as Mr. Kin^ake calls it, of the first times mceu us 
every momcnL 

Anil this is precisely what wc should expect. An " inherited 
drill/' science says, "makes tnodcm nations what the^r are; 
their bom $tn:ct«re bears the trace of the laws of their fathers ;" 
but the ancient nations came into no such inheritance; they 
were the descendants of people who did what was right in 
their own eyes; they wcie born to no tutored habits, no pre- 
servative bonds, and therefore ihcy were at the mercy of every 
impulse and blown by every passion. 

The condition of the primitive man, if we conceive of him 
rightly, is» in several respects, different kom any we know. 
We unconsciously a^sitmr around u- the existence of a great 
misccHaneous social machine working to our handie, ard not 
only supplying our wants, but even telling and deciding when 
those want* ihall come. No one can now wiihotit difficulty 
conceive how people got on before there were clocks and 
watches: as Sir G. Lewis said, "it takes a vigorous effort of 
the ima^natton " to realize a period when it was a serious 
di6icu!ty to know the hour of day. And much more is it 
difficult to fancy the unstable minds of such men as neither 
knew nature, which is the clock-work of material civiliiration, 
nor possessed a polity^ which is a kind of clock-work to moral 
civiliiation. They never could have known what to expect; 
the whole habit of steady but varied anticipation, which makes 
our minds what they arc, must have been wholly foreign to 
theirs. 

Again, T at least cannot call up to myself t!>e loose con- 
ceptions (as they munt have been) of moraU which then existed. 
If we set aside all the clement derived from law and polity 
which mns through our eurrcnt moral notions, I hardly know 
what we shall have left, Tlie residuum was somehow, and tn 
stome vagiie way, intelligible to the ante-political man, hut it 
must have Heen nnc^rtain, wavering, and unfit tn be depended 
upon- In the best cases it existed much as the vague feeling 



PHYSICS AND POLITICS 



<3 



of beauty now exists in niinds sensitive but untaught; a still 
stnall voice o( unccrtaia mcaninjir; sn unknown somcihing 
modifying cverytliing else, anO higher lliaii anything else, )<:t 
in lorm so indiatinct that wlicii you looked For it It was gcue — 
or if ttiis be tliouglii the delicate fiction of a later fancy^ then 
morality was at least to be found in the wild ^ipoains of ** wild 
justice," half punishment, half outrage— but anyhow, being un- 
fixed by steady law, it was intermittent, vague, and hard for us 
Id ifiiagine. Everybody who has studied mathcrnatica knows 
how many shadowy difficulties he seemed to have before lie 
understood the problem, and how impossible it was when 
once the demonstration had flashed upon him, ever to com- 
prehend those indistinct difficulties nsraiii, or to call up the 
mental confusion that admitted them. So in these days, when 
we cannot by any effort drive out of our inintis the notion o( 
law, we cannot ima^jinc the mind of one who had never known 
it, and who could not by any cffott liavc conceived it. 

Again, the primitive man could not have imagined what 
wc mean by a nation. We on the other hand cannot imagine 
those to whom it is a difiiculty ; " wc know what it is when 
you do not asU us/" but we cannot very quickly explain or 
define It. But so much as this is plain, a nation means a tike 
bu<ly of men, because of that likaic-ss capable of acting to* 
gethcr. and because of that likeness inclined to obey similar 
rules; and even this Homer's Cyclops — used onJy to sparse 
human beings— coiUd not have conceived. 

To sum up, taw — figid, definite, concise law — is the primary 
want of early mankind; that which they need above anything 
else, that which is requisite before they can pain anything 
else. But it i^ their greatest difficulty, as well as their fiTSt 
requisite: the thing most out of (heir reach, as well as that 
most beneficial to them if they reach it. In later ages many 
races have gained much of this discipline ciuickly, though 
painfully; a loose set of scattered clans has been often and 
often forced to substantial settlement by a rigid conqueror; 
the Romans did half the work for above half Europe, But 
where could the first ages find Romans or a conqueror? Men 
conquer by the power of government, and it was exactly gov- 
ernment which then was not. The first ascent of civilization 
was at a steep gradient, though when now we look down upon 
it, it seems almost nothing. 




KAGEHOT 



Part in 

How tfcc itq> from poGtj lo no poUtf was made disrinc^ 
Kaiary doo not record — on thb point Scr Hcmy Maine has 
drsvn a moac uitcrc»mij: concla^oa bom his pccoUtr Madka: 

** It would br," be tclb m, *'a rcf^ simple "t*"!*^ mi 
tbeorigia ofiodcty U wecoold boaea ccoerd oondnsioo on 
the hint hiniulie'! ts by ^e Scriptural example akcadjr ad- 
verted to, and could iuppofte that eommanitBes began to exist 
wberever a iamily hdd together imtcad of sgpariling at the 
drsifa of ttft patriarchal chieftaiit. lo nxnt of tbe Gfcrt states 
and in Rome there loncT remaiticd tbe vestiges of an asceodm^ 
icrica of groups oat oi which the Mate was at fint coosiitmed. 
Tbe family, boose, and tribe of the Romans majr be taken as 
a tjrpe of ihem, aad they are so dcacribcd to us that we can 
icarcely belp concdving tbem as a system o( coocenthc drdes 
which have gndually expanded from the same point. The 
elementary group b the family, connected by common subjec- 
tion to the hig^idt male ascendant. The aggregation of 
families forms the gtns^ or hou^. Tbe a^^e^tion of houses 
makes the tribe, 'llie aggregation of tribes consiiitncs the 
cutnnioiinGillb. Arc wc al litieil)' to folluw the^c iiidicatiuiii, 
and to lay down ihat the conmioiivreallh is a collectioii of 
persons nnltcd by common dc5ccnt front the progenitor of an 
ori|s:inal family? Of this we may at least be certain, that all 
ancient societies regarded themsdves as having proceeded 
from one original stock, and even labored under an incapacity 
for comprehenHing any rea*;rin except this for (hHr holding 
toffelher in political union. The history of political ideas 
begins, in fact, with the assumption that kinfihip in blood 15 the 
sole ponible (rround of coinmumty in political funaions; nor 
is there any of those subversions of fcclinjir. which wc term 
emphatically revolutions, so startling and so complete as the 
cliarge which is accomplished when some other principle — - 
such as that, for instance, of local contipuit}' — est.ib1ishes itself 
for the first time as the basis of common political action." 

If this theory were true, the origin of politics would not 
seemagrratchan^'c, or, in early days, be really a great change, 
Tlie primacy of the elder brother, in iritscs castinlly cohesive, 
would be slight; it would be the beginning of much, but it 



PHYSICS AM! 



»S 



would be nothing in itscUj il woulil Ik — to lake an illustration 
from the opposite end of the political series — it would be like 
the headship of a weak jtarliamentary leader over adherents 
^vho way divide from him in a moment; it was the germ of 
sovereignty, — it was hardly yet sovereignly itself. 

1 do not m>self believe that the suggestion of Sir Henry 
Maine — for he does not, it will he ^een, offer it a$ a confident 
theory — is an adequate account of the true origin of politics- 
I shall in a subsequent essay show that there are, as it seems 
to me, abundant evidences of a time still older than that which 
he ipeaki of. But tlie theory of Sir Henry Maine serves my 
present purpose well. It describes, and truly describes^ a kind 
of Ufe antecedent to our present politics, and tlie cotichision 
1 have dr^wn from it will be strengthened, not weakened, when 
we come to examine and deal with an age yet older, and a social 
bond far more rudimentary. 

But wlien once polities were begun, there is no difficulty in^ 
explaining why they lasted. Whatever may be said against 
the principle of "natural selection" in other departments^ 
there is no doubt of its predonn nance in early human history. 
Tlie strongest killed out the weakest, as they could. And I 
need not pause to prove that any form of polity is more efHcient 
than none; that an aggregate of faniilies owning even a slip- 
pery allegiance to a single head would be sure to have the 
better of a set of families acknowledging no obedience to any- 
one, but scattering loose about the world and fighting where 
they stood. Homer's Cyclops would be powerless against the 
feeblest band: so far from its bein^ singular that we find ro 
other record of that state of man, so unstable and sure to perish 
was it that we should rather wonder at even a single vestige 
lasting down to the age when for picturesquencss it became^/' 
valuable in poetry. ^ 

But. thoufih the origin of polity is dubious, wc arc upon the 
ffrra firma of actual records when we speak of th« preservation 
of polities. Perhaps every young Englishman who comes 
now-a-days to Aristotle or Plato is stnick with their con- 
servatism: fresh from the liberal doctrines of the present age, 
he wonders at finding in those retognijcd teachers so much 
contrary teaching. They both — unlike a* they are — hold with 
Xcnophon — so unlike both — that man b the " hardest of all 



U 




BAGEHOT 






Ol Ffalo il oiigfal in<f«ed be pbticiblj 
, ol an iat tti riiFe philosophy, being '* the 
haw cocnmonljr brcn pron« to ron- 
t: bttt Aristotk, the founder of the 
w y tttawt pkAoKifbr. oacfat. according to that doctrine, to 
Iaw been « hbcni, tf tntooe ever wu i UbcnL Id fact, both 
q| |feM» VKB lived wfaea nscn had not " bad tunc to (ot^ " 
Un Mkidlk* oi govcnuDcnL We hive forsottcn them al- 
t04?Hhef. We reckon, as the basb of our culttux. upon an 
tiMiMiH oi orler, of tacit obedience, of prescfiptive govern- 
MSty^ which tbeM philosophers hoped to get as a principal 
ffiuM ol their cxiltnre. We take wiihoui thought a« a datum 
vrhKl Ihev hunted as a qutrsitum. 

In eviv tinier the tjuantiiy of govemmem b mccb more 
tniponani thAii it» ({ualiiy. What you want i« a comprehensive 
rule binding men t(>j^cthcr, iiukmg thcra do much the same 
thingv telling them what to expect of each other— lashloning 
tlwm alike, ami keeping ibem so. Wliat ihU rule is doe:t not 
niAlier to much. A goorl nilo is better ihsn z bad one, but 
any rule is^ 1>etter than none: while, for reasons which a jurist 
wtll appreciate, none can be very good. But to ^in that nile, 
what may be called the impressive elements of a polit>' are 
Inconipanbly more important than its useful elements^ How 
lo get the obedience o( tnen i» ihc hard problem ; what you do 
wilh that obedience is less critical. 

To gain ihal obedience, the primary condition is the identity 
—not the tmton, bat the sameness— of what we now call 
Church and State. Dr. Arnold, fresh from the study of Greek 
thought and Koman history, used to preach that this identity 
was file great cure for the misguided modern world. But he 
upoke to ears filled with other sounds and minds filled with 
ulhcr thou^hu, and they hardly knew his meaning, much less 
heeded il. BhI though the teaching was wrong for the modem 
age to which it was applied, it was excellent for the old world 
from which it was learnt. What is there requisite is a single 
govemmeni^-call il Church or Stale, as you Mice — regulating 
ihe whole* of hum:in Iifi*, No division of power is then en- 
durahle without dangci^— probably without destruction : the 
priest tnunt not teach one thing and the King another: King 
must be priest, and prophet King: the two muM say the same, 




PHYSICS AND POLITICS 



«l 



becaust iticy arc ihc same. The idea o( diffdwcc between 
spiritual pcnaltioic ami legal peiialtiet must never be aw^ikened. 
lnd<red, early Greek thought or early Roman thought would 
never have comprchemie*! it. Then" was a kind of niugli 
]>iiblic opinion and there were rough, very rough, hands which 
acted on it Wc now ulk of political penalties and ecclesiastic 
cal prohibition, and the social censure, but they were all one 
then. Nothing is very like those old communities now, but 
perhaps a " trades union " is as near as most tliinfi^; to work 
cheap is thought to be a " wicked " thing, and so some Broad- 
bead pul8 it down. 

The object of such organizations is to create what may be 
called a cake of custom. All the actions of life arc to he sub- 
mitted to a single rule for a single object; that gradually 
cieaietl the "hereditary drill" which science teacher to be 
c^iscDtial, and whkh the early instinct of men saw to be 
easential, too. That ibta r^j^imt forbids free thought is not 
an evil; or rather, though an evil, it h the necessary basis for 
the grcaleitl good; it b necessary for making the mouUl of 
civilization, and hardening the soft fibre of early man. 

The Br*t recorded history of the Aryan race shows every- 
where a King, a council, and, a,< the ner(^*iT!y of early contlictn 
required, the King in much prominence and with much power. 
That there could be in such ages anything like an Oriental 
flospotism, or a Cxsarcan despotism, was impossible ; the 
0]itAi<le extra-political army which maintains them could no* 
exist when the tribe wa& the nation, and when all the men in 
the tribe were warriors. Hence, in the lime of Homer, in 
the first times of Rome, in the first times of ancient Germany, 
the King is the tiiosl visil)le part of the polity, because for 
momentary wcKare he is the most useful. The close oligarchy, 
the pairictaie, which alone could know the fixed law, alone 
could apply the lixed law, which was recogndzed as the author- 
ized custotlian of the fixed law, liad then sole comTnand over 
the primary social want. It alone knew the code of drill; It 
alone waa obeyed; it alone cotild drill. Mr. Grote ha.t ad* 
mirably descriljed the rise of the primitive oligarchies upon 
the face of the first monarchy, but perhaps beeause he so much 
loveft historie Athens he has not sympatliiied with pre-histoHc 



I* ftAGEHOT 

Atfw»fl<t. fl« hafl noc shown us Ac ocef of a fticd life when 
All (•!*• wftA imAxH tifc. 

fr wMiM be Achfif>{boyiiih to oq>Eam it lengtii bow wdl the 
fWfr SpTfat fffpiiWicii, the tw> winning repnbEics ol the ancient 
W'WM, wnly^y these concLusiona, Rome and Sparta were 
4fil1in|if arHtcwrraciei, an^ scicceeded because they wcr« such. 
Arh^n* wa.* in/lef:^I of another and hi^ier order; ai least to ns 
^r»tfni^tM m/ylernfl who know her and have been tanght hy 
hfr. fSiit to the " fhilistinea " of those days Athens was of a 
Pfwrr iffA^f. She waA beaten ; she lost the great visible game 
whi^h '%% M that Khort-sightcd contemporaries know. She was 
fhf Kfrtt " (rcf lailitre " oi the ancient world. She began^ she 
Hnmmnr^<\t fhr ff^Kxl things that were to come; but she was 
iijtf Wfflk to i\\%\j\zy and enjoy them; she was trodden down 
liy thoftr /rf roftmcr make and better trained frame. 

Mow rnitfh these principles are confirmed by Jewish history 
\n ii\f^\in\%. There was doubtless much else in Jewish history 
' — wh'ilr rlrinenU with which I am not here concerned. But 
m\ tiitic h Is plntn. The Jews were in the beginning the most 
llllAtAl'lr ii( iiatloitH : they were submitted to their law, and they 
mmr out Ihr most stable of nations. Their polity was indeed 
ilffcH'tlvc in unily» After Ihcy asked for a King the spiritual 
mid thr ncculftr powers {as we should speak) were never at 
|irm-i', nnd nrvcr agreed. And the ten tribes who lapsed from 
\\w\\ hiw tnrltrtl nwjiy into the neighboring nations. Jeroboam 
h(|it broil I'ttllnl ihe "first liberal;'* and, religion apart, there 
U n lUvniihiK <" ^^^^ phrase. He began to break up the binding 
pMlilv \\\\W\\ wrt!» what men wanted in that age, though ea^er 
tiihl iuvviilive minds always dislike it. But the Jews who 
rtdhrioil ivi their Inw l^ccamc the Jews of the day, a nation of 
A Hnn 9t\ if ever there was one. 

h i« i-tMintH^tevI with this fixity that jurists tell us that the 
title " v^^utirt^t " i!« hantly to be discovered in the oldest law_ 
\\\ tiusU^rn d^vs. in oiviHrcil i.lays« men*s choice tietermines 
tKs*ih flll Ih^^v do. Uut in early limes that choice determine 
*v'^(>vt\ <tn\t1nu^. The pxiiding rule wa$ the Jaw of s:ar-.is- 
K\vi\Ns^ WAS K^m to a place in the o>mn:uni:y : l- :har 
I^UvV hv' h^J to stA\ : in that p!ace he foi:nd certa:Ti ^v.:r.t< wht.^'t 
\\^ hrtd tv* tutrix A«vl wh;ch ^rre all h; needed to :h:r.k :i. 7~-^ 



PHYSICS AND POLITICS 



■9 



n« of cualom caught men in distinct spots, and kept each 
where he stood, X^^ 

Wliat arc called in European politics the principles o( 1789 \ 
are therefore iiKonsJslciil with tlie early world ; they are fitted 
only to [he new world in which society has pone through its 
early task; when the inherited organization is already con- 
firmed and fixed; wlicn the soft minds and strong- pu&ions 
of youthful nations are fixed and guided by hard transnUttcd 
instinct*. _ Till then not equality before the law is necessary 
but inequahly, for what is most wanted is an elevated ^litf 
who know the law: not a good fpvernment seeking the hap* 
piness of its subjects, bur a dif^iiified and overawing govcmmcnl 
getting its subjects to obey: not a good law, but a compre- 
hensive law binding all life to one routine. Later arc the ages 
of freedom; first arc the ages of servitude- In 17R9, when 
the great men of the Constituent Assembly looked on the 
long pasrt, they hardly saw anything In it which could be 
praised or admired or imitated : all deemed a blunder — a com- 
p\cx error to be got rid of as soon as might be. But (hat error 
had made themselves. On their very physical organij:alion 
the ^crcdila^y mark of old limes was fixed; their brains were 
hardened and their nerves were steadied by tlie transmitted 
results of tedious usages. The ages of monotony had their 
use, for tbey trained men for ages when they need not be 
monotonous. 

Part IV 

But even yet we have not realized the full benefit of those 
early poUties and those early laws. They not only " bound 
up " men in groups, not only impressed un men a certain set 
of common usages, l>ut often, at least in aji indirect way, sug- 
gested, if I may use the e^pre&sion, national character. 

We cannot yet explain — I am sure, at least, I cannot attempt 
to explain — all the singular phenomena of national character: 
how completely and perfectly they seem to be at first framed; 
how slowly, how gradually they can alone be altered, if they 
can be altered at all. But there is one analogous faet which 
may help us to see, at least dimly, how such phenomena are 
caused. There is a character of ages, as well as of nations: 
and as we have full histories of many such periods, we can 



i 




lO 



BAGEHOT 



examine exactly when anfl how tli<^ mctitftl pcctiUanty of each 
began, ajnl sUo exactly \vhcn and how that mental peculiarity 
passed away. Wc have an idea of Queen Anne's lime, for 
example, or of Queen Elizabeth's time, or Ctcorj^c Hs time; 
or afc^in of the age of LouU X IV*, or Louis XV. or the French 
Revolution; an idea more or le&s accurate in proporlion as 
wc &tudy« but probably even in t)ie minds who know these 
ages best and moat minutely, more fipecial. more Mmple, more 
unitiuc than the truth was. We llirow aside too much, in 
rnakittg up our images of eras, that whicli ts common to alt 
eras. The English character was much the same in many 
great reapecls xtx Ch;mcef'> lituc U3 it wa» in Elix^iticth'tt time 
or Aiinc'h lime, or as it i* now. But some qu^ilitic* were 
added to this common dement in one era and some in another ; 
some f|uaHticA accmcd to overshadow and eclipse ii in one era, 
and others in another Wc overlook and half forget the con- 
ittant while we see and watch the variable. But — for that is 
the present point — why is there ihi* variable? Everynne must, 
I think, have been puzzled about ti. Suddenly, in a quiet time 
— say. in Queen Anne's time — arises a special literature, a 
marked variety of human expression, pervading whal is then 
written and peculiar to it: surely this is singfular. 

The true explanation is, I think, something like this. One 
considerable writer gets a sort of start because what he writes 
is somewhat more — only a httlc more very often, as I believe 
— congenial to the minds around him than arty other sort- 
This writer is very often not the one whom posterity rcmcmlicrs 
—not the one who carries the style of the age farthest towards 
its ideal type, and pvcs it its cliarm and its perfection. Tt was 
not Addisun whu began the essay-writing uf Queen Anne's 
time, but Steele; it was the vigorous forward man who struck 
out the rough notion, though it was the wise and meditative 
man who improved upon il and elaborated tt. and whom po?* 
tcrity reads. Some strong writer, or group of writers, thus 
seise on the public mind, and a curious process soon assimilates 
other writers in appearance (o them. To fiome extent, no 
doubt this asftimilation is effected by a process most intelligible, 
and not at all curious— the process of conscious imitation; A 
sees that B's style of writing answers, and he imitates it. But 
definitely aimed mimicry like this is always rare ; original men 





PHYSICS AND POLITICS 



11 



who like iheJr own thoughts <Io not willinjfly clothe them in 
wor«l£ ihcy feet ihcy borrow. No man, indeed, can think lo 
nitu-h purpose when he is sludying to write a style not his own. 
After all, very few men are at all equal to the steady Inhor. the 
stupid and inislaken lahor mostly, of making a style. Most 
men catch the words that are in the sdr, and the rhythm which 
comes to them they do not know from whence: an uncon- 
sicioua imitation determines their words, and makes them say 
what of thcmsdves they would never have thought of saying. 
Iiveryone who has written in more than one newspaper knows 
how invariably his style catches the tone ol each paper while 
he h VkThm^ for it, and changes to the tone cE another when 
in turn he bc^ns to write for thai. He probably would rather 
write the traditional style to which the readers of the jotirnal 
arc used, bnt he dues not set liiinself to copy it; he would liavc 
to foree lumsclf in order not lo write tt if that wa» what he 
wanted. Exactly in this wny, ju$t as a writer for a journal 
without a distinctly framed purpose pives the readers of the 
journal the sort of words and ihc *iort of thoughts they are us^hI 
lo— so, on a larger scale, the writers of an age, without thinking 
of it, give to the readers of the age the sort of words and the 
sort of thoughts— the special literature, in fact — whicli llio*c 
readers like and pri2e. And not only does the writer, without 
thinking, choose the aort of jitylc and meaning which are most 
iw vogue, but the writer is himself chosen. A writer does not 
begin to write in the iiaditional rhythm of an age unless he 
fccis, or fancies he feels, a sort of aptitude for writing it, any 
more than a writer trie* to write in a journal in which the style 
h uncongenial or impossible to him- Indeed, if he mistakes 
he is soon weeded out ; the editor rejects, the age will not read 
his compositions. How painfully this traditional style cramps 
great writers whom it hap|)ens not to suit is curiously seen in 
Wordswoith, who was bolJ enough to break through it. and, 
at the risk of corlcmporary neglect, to frame a style of his 
own. But he did so knowingly, and he did so with an effort. 
" It is supposed," he says. " that by the act of writing in verse 
an author makcR a forma! enpagement that he wi!l gratify cer- 
tain known habits of association : that hr not only then apprise^i 
the reader tliat certain classes of ideas :*nd expresaions will he 
found in his hnok, but that others will be carefully eschewed- 



t 





&AG£HOT 



Tli^ expotifnt or symbol hM forth by iro^rical langua^ must, 
tn different agt* of litfraturc^ have excited very /liffcrcnt *rx- 
pectatioiu; foo* example, in the afre of Cattillus. Terence, or 
Lucretius, anO that of Statius or CtaudUn; and in our own 
country, in the a|:c of Jjhakcspeare and Beaumont and inclcher. 
and that of Donne and Cowley, or Pope." And then, in a kind 
of vexed way, Wordsworth goes on to explain that he himself 
can't and ivon't do what 15 expected from him. hiil that he will 
write hii own word*, and only his own words, A strict, I was 
going to say a Puritan, f^cnius will act thuH, bul most men 
of genius are susceptible and vcr&atile, and fall into the style 
of ihrir age. Oac very tinapt al the a^imiUting proce^, but 
on thai account the wore cunous about ii, says:— 

"How wc 
Track a livelong day, great heaven, and watch our shadows 1 
What OUT siudows K<in« forM)otl>. we wilt our^lvet br. 
Do 1 look like tbil 7 You ihlnk mc iImi : ilirii I am Ih^it.'* 

What writers arc expected to write, ibey write: or else they 
do not write at all ; but, like the writer of these lines, stop dls^ 
couragcd, live disheartened, and die leavinfi fracnients which 
their friends treasure, but which a rushing world never heeds. 
The nonconformist writers arc ncKlecled, the conformist 
writers are encouraged, wnlil perhaps on a sudden the fa^^hion 
shift*. And as with the writers, so in a less degree vfixh read- 
ers. Many men — most men— get to like or think they like 
that which is ever before them, and which those around them 
like, ami which received opinion says they ouf;iit to like? or 
if their minds arc too marked and oddly made to get into the 
mould, they give ui> reading altogether, or read old books and 
foreign books, formed under another code and appealing to a 
different lastc. The principle of " climtruition," the " use and 
diftUdc " of oTganj which naturfilifits speak of, works here. 
What ia used strengthens ; what i* disus^ed weakens : " to those 
who have, more is given ;" and so a sort of style settles upon 
an age. and imprintinpr itself more than anything el&e in men's 
memories becomes all that is thought of about it, 

I believe that what wc call national character arose in very 
mtjch the same way. At first at sort of "chance predomi- 
nance *' made a moftel, and then invincible attraction, the 



PHYSICS AND POLITICS 



H 



zcssity which rules all but the strongest men to imilatc what 
htiurti tlitrir trvcs, and tu be wliat thvy arc expected tu lie, 
tuouMcd men hy that inodcK Tliis h, 1 thinlv, the very process 
by wliicli rew national characters are being made in our own 
time. In America and iu Australia a new rnodlBcation of what 
wc call Anglo-SaxonUm is growing, A sort of type of char- 
acter arose from the diffieulties of colonial life — the difiiculty of 
struggling wiih the wilderness; and this type has givrti its 
shape to the mass of characters because the mass of charaeteM 
have miconsciously imitated it Many of the American char- 
acteristics are plainly useful in such a life^ and coiiseciueiit on 
wch a life» The eager restlessness, the highly stmitg nervous 
organization, are useful in continual struggle, and also arc 
promoted by it. These traits seem to be arising in Australia^ 
too, and wherever else the English race is placed in like cir- 
cumstances. But even in Ihese useful particulars the innate 
tendency of the human mind to become like what is around it. 
has effected much ; a sluggish Englishman will often catch the 
eager American look in a few years: an Irishman or even a 
Gernjan will catch it, too, even in all Enghsh particulars. And 
as to a hundred minor points — in so many that go to mark the 
typical Yankee — usefulnt-ss has haf) no share either in tlieir 
oiigiu VT their propagation. The accident uf some jiredurui- 
nfint person possessing them set the fashion, and it has been 
imitated to this day. Anybody who )n<|uire,i will find even in 
England, and even in these days of assimilation, parish pccti- 
tisrities which arose, no doubt, from some old ai^cident, and 
have been heedfully preserved by ciistomary copying. A 
national character is but the successful parish character; just 
as the national speech is but the succcsshd parish dialect, the 
dialect* that is, of tlie district which came to be more — in many 
cases bnt a little more — influential than other districts* and so 
set its yoke on books and on society. 

I could enlarge much on this, for I believe this tineonscious 
imitation to be the principal force in the making of national 
characters; but I have already said more about it than 1 need 
Everybody who weighs even half these arguments will admit 
that it is a gfeat force in the mailer, a principal agency to be 
acknowledged and watched ; and lor my present purpose I want 
no more. I have only to show the efficacy of the tight early 




M 



BAGEHOT 



polity (so to speak) and the strict early law on ihc creation 
of coHJOiaK' characters, Tlicsc settled the predominant i>]>€, 
«ct up a Mjrt U ittudcl, made a sort of idol ; ihi» was worshipped* 
copied, and observed, Croni aU manner o£ mingled fcclinj^, 
but mo«t o( all because ii was the *' thing to do/' ihc then ac- 
cepted form of human action. When once the predominant 
type was dcEcrmincd, the copying propensity of man did the 
re^t. The tra<Ittian a^cribirg Spartan legislation to Lyciar^s 
was literaJIy tmfrue, but its ipirit was quite true. In the f>rigin 
of states strong and cagtr individuals got hold of small knots 
uf men. and made (or ihem a fashion which they were attached 
to and kept. 

It is only nfkr duly apprehending the silent manner in 
which national charaacrs thu* fomi themselves, iIlii \\c can 
rightly appreciate the dislike which old Governments had to 
trade, llierc must have been something peculiar about it* 
(or ll:e best philosophers, Plato ard AristcJtlc, shared it. They 
regarded commerce as the source of corruption as naturally 
as a modem economist considers it the spring ol industry, and 
aJI tlic old Government* acted in this respect ujjon the phi- 
losophers' maxims. " Well," said Dr, Arnold, speaking ironi- 
cally and in the spirit oi modern limes — "Well, indeed, might 
the policy of Ihc old pncst-iioblcs of Egj'pl and India endeavor 
to divert their people from becoming familiar with the sea, 
and represent the occupation of a seaman as incompatible with 
the purity of the highest castes^ The ac^ deserved to be hated 
by the old aristocracies, inasmuch at it has been the mightiei;! 
initrnnipnt in the civilization of mankind.*' Out the otd 
oligarchies had their own work, as we now know, flicy were 
imposing a fa^hinninc yoke; they were making the human na- 
ttirc which after times employ. They were at their labors ; we 
have entered into thej-e bbors. And to the unconscious imi- 
tation which was their principal tool, no impediment was so 
formidable as foreign intercourse. Men imitate what is before 
their eyes» it it is before their eyes alone, but they do not imitate 
it if it is only one among many present things^K>ne cotnpelilor 
among others, alt of which are cqiial and some of which seem 
better, "Whoever speaks two languages is a rascal." says 
the sa>'ing, and it rightly represents the feeling of primitive 
communities when tlie sudilen impact of tKw tl)Onghts and 



PHYSICS AND POLITICS 



H 



new examples breaks dc^wn the compact despotism of the 
single consccratcti code, aii<l te;ive% pHut;t an^ impressible man 
— :iudi aft he then is — to follow hh uuptcaAani will vviihcut 
distinct guidance by hereditary morality and hercditar>' re* 
ligion. The old oUjyarchiea wanted to keep tlicir type perfect, 
and for that end they were right not to allow foreigners Co 
touch it. 

" UL^tindions of race/' says Arnold himself elsewhere in a 
remarkable ejtsay — for it was his la*t on Greek history, his 
farewell words on a lonji favorite subject — " were nol of that 
odious and fantastic character which they have been in modem 
times ; they imph'ed real differences of the most important kind, 
religious and moral" And after exemplifying this at length 
he goes on^ " It is not then to be wondered at that Thucydides, 
when speaking of a city founded jointly by lonians and 
Dorians, should have thought it right to add ' that the pre- 
vailing institutioiis of the two were Ionian/ for according as 
they were derived from one or the other the prevailing type 
would be different. And therefore the mixture of persons of 
different race in the same comraon wealth, unless one race liad 
a complete ascendancy, tended to confuse all the relations of 
human lifc^ and all men's notions of right and ^vrong; or by 
compelling men to tolerate in so near a relation as that oF 
fellow-eiiizens' differences upon the main points of human life, 
led to a general carelessness and scepticism, and encouraged 
the notion that right and wrong had no real existence, btit 
were mere creatures of human opinion/' But if this he so, 
the oligarcliica were right. Commerce brings Ibis mingling 
of ideas, this breaking down of old creeds, and brings it in- 
evitably. It is now-a-daya its ereatesi good that it docs so; 
the change is what we call " enlargement of mind/* But in 
early times Providence " iet apart the nations/' and it is not 
till the frame of their morals is set by long ages of transmitted 
discipline, that such enlargement can be borne. The ages of 
isolation had their use, tor they trained men for ages when 
they were not to be isolated. 




CHAPTER 11 



T 



THE USE OF CONFUCT 
Pirtl 
HE diffoTiKc bctmcm progrcsacm and s a tJ o na r j fe- 

ooe of tbcgrcai Kcms which »ckocc has jct to pene- 
trate." 1 un vurc I do not prctcod that I can cctmpletcly pcnc* 
umCc it : but ji un<ic>ubtc4iy Menu lo me thai the problcto U ott 
tlie verge of solution, and that scientific succc%fta tn kindred 
fiddft by aaftlog^ suggest some pfinctples which wholly rrmove 
many of its diftculttt^. and indicate the ^rt of way in which 
iboK which remain may hereafter be removed too. 

But what is the problem? Common English. I might per^ 
hapQi say conimon civiUzed thou^t, ii^orcs it Our habitual 
instnictoti. our ordinary conversation, our inevitable and in* 
eradicabic prejudices, tend to make us think that " Progress ** 
is the norma] fact in human sociei)', tlie fact which we should 
expect to see, the fact which wc should be surprised if we did 
not see. But history refutes tlus. The ancients had no con* 
ceplion of progress : they did not so much as reject the idea; 
they did not even entertain the idea. Oriental natk»n$ are Just 
tlic same now. Since history began tlicy have a1wa>~s t>eeu 
what they are. Savage^ again, do not improve ; they liardly 
Bccm to luvc the basis on wbjcli to build, much lesj the ma- 
terial to put up anything worth having. Only a few nations, 
and thc4e of European origin, advance ; and yet these think — 
seem irreiistibly compcQed to thtnk — such advance lo be in- 
evitable, natural, and demat Why ihen is this great con- 
irant? 

Before wc can answer, wc mnsi invertiErate more accuralelj". 
No dotibt histor)- shows that most nations are stationary now: ! 
but it affords reason to think that all nations once advanced. 

a6 



PHYSICS AND POLITICS 



Their prt^grt's* was arrested at various points; but nowhere, 
probably not even in the hill tribes of IiKlia, not even in the 
Andaman IsJanders, not even in the savagte of Terra del 
Fucgo, do we find men who have not goi some way. They 
have made iheir Uttic progress in a htindrcd differoni ways; 
they have iramed with infinite aistduity a hundred curious 
habits; they have, so to say, screwed themselves into the un- 
comfortable corners of a complex life, whtdi i$ odd and dreary, 
but yet is possible. And ihe corners are never the same in any 
two parts of the world. Our record begins whh a thousand 
unchanging edifices, but it shows traces of previous building. 
In historic limes there has been hltle prioress; in pre-historic 
limes there must have been much. 

In solving, or trying to solve, the question, we must take 
notice of this rcniarkatile difTcrencc, and explain it, too. or else 
we may be sure our principles arc utterly incomplete, and per- 
haps altoj^thcr unsound. Dut what then is that solutioi), or 
what arc the principles which lends towards it? Three laws, 
or approximate Iaw«, may, I think, be laid down, with only 
one of which I can deal in this paper, but all tliree of which it 
will be best to stale, that h may be seen what I am aiming at. 

Fir*it, In every particular state of the world, those n;ittons 
which are strongest tend to prevail over the others: and in 
certain marked peculiarities the strongest tend to be the bcst- 

Sccondly. Williin every particular nation the type or types 
of character then and there mt>it attractive tend to prevail ; 
and tlic most attraciivc, though with exceptions, is what we 
call the best character. 

Tliirdly, Neither of these competitions is in most historic 
conditions intensified by extrinsic forces, but in some condi* 
lions, such as those now prevailing in the most inHuential part 
of the world, both are so intensified, 

Tlie*e are the nort of doctrines with which, under the name 
of " natural selection " in physical science, wc have become 
familiar; and a^ every great scienlilic conception tends to ad- 
vance its boundaries and to be of use in solving problems not 
thought of when it wai; «larted, %o here, what was put forward 
for mere animal history may^ with a change of form, but an 
identical essence, be applied to human histor>\ 

At first some objection was raised to the principle of " nat- 



i8 



BAGEHOT 



ural felc<tion " in phyitcal ^rncf tipon rvl^ioas gromvU ; n 
wai to be expected that so active an idea and so bnr^ a shift- 
ing of tboagbi would seem to impcri] much whkb men valued. 
But tn this, as in other cases, the objection is. I think, passing 
away; the new principle is more mt^d lo be fauJ lo mere oat- 
works of religion. Dot to rclipon itsell At all e^-cnts, to tfac 
sort of appIicatioD here made of it, which only amounts to 
searching out and following up an anak>g>' suf^estcd by it, 
there is plainly no objection. Everyone now admits that hu- 
man history is guided by certain laws, and all that is here aimed 
at IS 10 indicate, in a more or less distina way an infinitesimally 
small portion of such laws. 

1~lic discusajun of these three prindplcs camiot be kept quite 
apart except by pedantry; but it is alinoet exclusively with 
the fiii(-*that of the competition between nation <ancl nation, 
or tribe and tribe (for 1 must use tho^ words in their largest 
sense, and so as to include ever}- cohering aggre^pte of human 
beings) — that I can deal now ; ard even as to that I can but 
set dtjwn a few principal considerations. 

The pfop^ds of the military art i^ the most conspicuous. I 
wat about to say the most showy, fact in human history. 
Ancient civilization may be compared with modern in many 
respects, and plausible arguments constnicled to show that it 
is better; but you cannot compare llie two in military power, 
NapoteoQ could indisputably have conquered Alexander; our 
Indian army would not think much of the Retreat of the Ten 
Thousand* And 1 suppose the improvement ha^ be«n con- 
tinuous : I have not the slightest pretence to special knowl- 
edge ; but, looking at the mere surface of the ^cis, it seems 
likely that tlte aggregate battle array, so to say, of mankind, 
the fighting force of the human race, has constantly arxl in- 
variably f^TOWJi. It is true that the ancient civilization lon^ 
resisted the " barbariam;," and was tben destroyed by the bar- 
barians. But the barbarians had improved. " By degrees," 
aay* a mo*t accomplii^hrd writrr/ *' barbarian merccQariea 
came lo form the largest, or at least the most effective, part of 
the Roman armies. The body-giiard of Augustus had been 
so composed; the prctorinns were generally elected from the 
braveit h-ontier troops, most of them Germans/" " Thus." he 
continues, " in mauy ways was the old antagoiusm broken 

•Wr Dryce, 



PHYSICS AND POLITICS 



»» 



down, Komans admltling barbariajis to rank and oITlcc; barv 
b^rians catching something of the manners and culture of their 
neighbors. Aod thus, wlicn ihc final movement came, tli« 
Teutonic tribes slowly established themselves throtiph the 
provinces^ knowing something of the system to which they 
came, and not nnwilltng to be considered its members/' Tak- 
ing friend and foe toqeiher, it may be doubled whether Ihc 
fighting capacity cf the two anries was not as great at last, 
when the Empire fell, as ever it was in the long period while 
the Empire prevailed. During the Middle Ages the combin- 
ing power of men often failed; in a divided time you cannot 
collect as many soldiers as in a concentntted lime. But this 
difficulty is politica], not military. If you added up the many 
little hosts of any century of separation, they would perhaps 
be found equal or greater than ihe single host, or the fewer 
hosts, of previous centuries which were more united. Taken 
as a whole, and allowing for possible exceptions, the aj^c- 
gaic fighting power of mankind has grown immensely, and has 
been growing continuously since wc knew anything about it. 

Again, ibis force has tended to concentrate itself more and 
more in certain groups which wc call " civilized nalions," The 
literati of the last century were forever in fear of a new conquest 
ol the barbarians, but only becavtse their imagination was over* 
shadowed and frightened by the old conquests. A very little 
consideration would have shown them that, since the monopoly 
of military inventions by cultivated states, real and effective 
military power lends to confine itself to those states. The bar- 
barians arc no longer so much as vanquished competitors; 
tbey have ceased to compete at afl> 

The military vices, too, of civilization seem to decline just 
as its military strength augments. Somehow or other civiliza- 
tion does not make men effeminate or unwarlike now as it once 
did- There is an improvement in our fibre — moral, if not 
physical- In ancient times city people could not be got to fight 
— seemingly could not figlit; they lost their menial courage, 
perhaps their bodily nerve. But now-a-days in all coimtries 
the great cities could ponr out multitudes wanting nothing but 
practice to make good soldiers, and abounding in bravery and 
vigor. This was so in America; it was so in Prussia; and it 
would be so in England too, Tlic breed o( ancient times was 




3» 



BAGEHOT 



impairM for war hy trade and luxury, bat ihc moiwri 
U noi fo impaired, 

A curious hct indiGilcs the same thin^ probablj, if not cer- 
tainly. Savat:cH wimc away before modern dvitization; they 
s^tm to have held their ground before the ancient. There i^ no 
lament in any cUs^ical writer (or the barbarians, llie New 
2^Unders say that the land will depart from their children; 
the Australians arc vanishing ; the Tasmanians have vanished. 
If anything like tTiis had happened in antiquity, the clasncal 
moralists would have been sure to muse over it ; for it is just 
the large solemn kind of fact that suited them. On the con* 
irary, in Gaul, in Spain, in Sicily — everywhere that wc know 
of — tite barbarian endured the cont;tct of the Kuman, and liie 
Roman allied himself to the barbarian. Modem adence ex- 
plains the wa-tting away o( savage men ; it sayft that wc have 
diseases which vre can bear, though they cana>ot. and that they 
di«; away before them as our fatted and protected cattle died 
out before the rinderpest, which i* innocuous, in compan&on, 
to the hardy cattle of the steppes. Savages in ihe ftrsX year of the 
Christian era were pretty much what they were in the eighteen- 
hundredth: and iftheyslood the contact of ancient civilized men, 
and cannot stand ours, it follows that our race is prefltiniabty 
tougher than the ancient; for wc have to bear, and do bear, 
the aecds of greater diseases than those the ancients carried 
wilh them. We may use, perhaps, the unvarying savage as a 
metre to gauge the vigor of the constitutions to whose cotitact 
be is exposed. 

Particular consequences may be dubious, but as to the maia 
fact there is no doubt: the military strength of man has been 
flowing from the earliest time known to our hi&tc»ry, straight 
on till now. And we must not look at times known by written 
records only ; wc must travel back to older Ages, known to tis 
only by what lawyers call real evi<Ience — the e%'idence of things* 
Before hisior>' began, there was at least as much progress in 
the military art as there has been since. The Roman le^on- 
aries or Homeric Greeks were about as superior to the men of 
the shell mounds and the flint implements as we ire superior 
to them. There has been a constant acquisition of mih;ary 
strength by raan since wc know anything of him, dther by the 
documents he has composed or the indications be has left. 




PHYSICS a! 



ITICS 



31 



The caiue of itiis milttary growth is v^ry jilaiih The slrong- 
csl n^ioii has alwavs been conquering the weaker ; aomcUmes 
even subduing it, but always prevailing over it. Every intel- 
lectual gain, so to ^cak, tliat a nation poascsacd vras in the ear- 
liest times made use of — ^was invested and taken out — in war; 
all else pcriiihcd. Each nation tried constantly to be the 
stronger, and so made or copied the best weapons; by con- 
scious and unconscious tmitntion each nation fonned a type of 
character suitable to war and conquest. Conquest improved 
mankind by the intermixture of sirength; the armed truce, 
which was then called peace, improved them by the competi- 
tion of training and the <;onseqaent creation of new power. 
Since the long-headed men first drove the short-headed men 
out o( the best land in Europe, all European history has been 
the history of the superposition of the more military races over 
the less mititfiry — of the efforts, sometimes successful, some- 
times unsuccessful, of each race to get more military; and so 
the art of war hns constantly improved. 

But why is one naliuii stronger thau another? In tlie an* 
swcr to that, I believe, lien the key to the principal progress of 
early civilisation, and to some of tJie progress of all civilization. 
Tlie answer is that there are very advantages — some «m&ll and 
some great — every one of which tends to make the nation 
which has it superior to the nation which has it not : that many 
of these advantages can be imparled to lubjngated races, or 
imitated by competing races ; and that, though some of thece 
advantag^es may be perishable or inimitable, yet, on the whole, 
the energy of civilization grows by the coalescence of strengths 
and by the competition of strcnj^hs. 

Part n 

By far the grealeM advantage is that on which I observed be* 
fore — that to which 1 drew aU the attention I was able by mak- 
ing the first of these essays an essay on the Preliminary Age, 
The first thing to acquire is, if I may so express it. the legal 
fibre; a polity first — what son of polity is Immatcricd ; a law 
first — what kind of law is secondary ; a person or set of persona 
to pay deference to — though who he is, or they arc, by com- 
parison scarcely sign! lies. 

" There is," it has been said, " hardly any exa^erating the 




3» 



BAGEHOT 



difference between eivilizcd and iincivUieed men; It is greater 
than the difTerenec- between a tame ;ind a wild animal/' becAUSc 
man can improve more. But the difference at first was gained 
in mnrh tlic snnie way. The tamfng {if animals as it now goes 
on among savage nations, and as travellers who h^ve seen it 
describe it, li a kind of selection. The most wild are killed 
whirn (cod is wanted, and the mo>it lame and easy to mana^ 
kept, because they arc more agreeable to human indolence, 
and so the keeper likes them best. Captain Gahon, who has 
often seen strange scenes of ravage and of animal life, had bet- 
ter describe the process;— ''The irrcclaimably wild members 
of every flock would escape and be utterly lot ; the wilder of 
those that remained would assuredly be selected for slaughter 
whenever it was necessary tliat one of the Hock should be killed. 
The tamest calllc — lliOKe which seldom ran away, thai kept the 
llucks to^etlier, and lho»c which led tlicni homeward — would 
be preserved alive longer Ihiin any of the ethers. It U, there- 
fore, thcic that chiefly become the parents of fitock and be- 
queath their domestic aptitudes lo the future herd, i have con- 
«t;uitly witnessed this process of selection among the pastoral 
savages of South Africa. I believe it to be a very important 
one on account nf its rigor and its regularity, ft miitt have ex- 
i*fe»l from the earliest times, and have been in conlinuaii<« 
operation, generation after (generation, down to the present 
day/' • 

Man, being the strongest of all animals, differs from the 
rest; he was obliged to be his own domesticator ; he had to 
tame himself. And the way in which it happened was. that the 
most obedient, the tamest tribes are, at the first stage in the 
real struggle of life, the strongest and the conquerors. All arc 
very wild then : the animal vigor, the savage virtue of the race 
has died out in none, and all have enough of It. But what 
makes one tribe— one inciptcnl tribe, imc bit of a tribc-^to dif- 
fer frum another is their relative faculty of coherence. The 
slightest symptom of legal development, the least indication 
of a military bcn<l, is then cnoiiph to turn the scale. The com* 
pact tribes win, and the compact tribej; are the tamest- Civili- 
xatton begins, because the beginning of civilization is a mili* 
tary advantage, 

* Ethnological Society'* TnnMcffafit. vol. iii. p. IS7, 



PHYSICS AND POLITICS 

Probably if we had historic record* of the ante-historic ape» 
— if fiome superhuman power had £Ct down the thoughts and 
actions of men ages hefore tliey could *et (hem down for ihem- 
srlvc5 — wc should know that this first ftcp in civilisation was 
the hardest step. But when wc cone to hiatory as it is, we 
arc more struck with the difficulty of the next step. All 
the absolutely incoherent men— all the " Cyclops "—have been 
cleared away long before there was an authentic account 
of them. And the least coherent only remain in the "pro- 
tected " parts of the world, as wc may call them. Ordinary 
civilization hegin±i near the Mediterranean S(^a; the best, 
doubtless, of the ante-historic civilizations were not far off. 
From this cciUrc the conqucriug swami — for such it is — has 
^own and grown ; has widened its subject territories steadily, 
thouRh not equably, age by age. Bui geography long dtfted it. 
An Atlantic Ocean, a Pacific Ocean, an Auatralian Ocean, an 
unapproachable interior Alrica, an inaccessible and unie^ir-* 
able Iiill India, were beyond its range* In Btich remote places 
there was no real compctilion, and on them inferior half-com- 
bined men continued to exifit. But in the regions of rivaby — 
the regions where the better man pressed upon tlie worse man 
— such half-made associations could no: last. They died out, 
and history did not begin till after they were tronc. Tlie great 
difficulty which history records is not that of the iirst step, but 
that of the second step. What is most evident b not the diffi- 
culty of getting a fixed law, but getting out of a fixed law ; not 
of cementing {;ils upon a former occasion I phrased il) a cake of 
custom, but of breaking the cake of custom ; not of making the 
first proser\'ative habit, btt of breaking through it, and reach- 
mg something better. 

This is the precise case with the whole family of arrested 
civilizations. A large part, a very large part, of the world 
seems to be ready to advance to something good— to have pre- 
pared all the mean^ to advance to something good, — and then 
to have stopped, and not advanced. India, Japan, China, al- 
most every sort of Oriental civilization, though differing in 
nearly all other things, are in this alike. They look as if they 
bad paused when there was no reason for paiKing — when a 
mere observer from without would say they were likely not to 
pause. 




u 



BACEHOT 



The reason is that on!y ihos^ nations can proffreM which 
preserve and me the (umlameiital peculiarity wbtch was 
ffivcn by nature to man's organism as to all other organ- 
isms. By law of which we know no reason, but which U 
among ihc first by which Providence guides and governs the 
world, there i* a tendency in descendants to be like their pro- 
genitors, and yet a tendency also in descendants to differ from 
(heir progenitors. Tlie work of ralure in making generations 
is a patchwork — part resemblance, pari contrast. In certain 
respects each bom generation is not like the tasi born ; and in 
ccnain other respects it Is like the last. But the peculiarity 
of arrevLcd civili^atian Lt tu kill out VjtricLtca at birtli afano»t; 
that ia, in early childhood, and before they can develop. The 
fixed custom which public opinion alone tolerates is imposed 
on an minds, whether it suits them or not. In that ca^c the 
community feel that this custom is the only shelter from t>:ire 
tyranny, and xhp only security for what they value. Most 
Oriental cotnmunities live on land which in theory is the prop- 
erty of a despotic sovereign, and neither they nor their families 
could have the elements of decent existence unless they held 
the land upon some sort of fixed terms. Land in that state 
of society is (for all but a petty skilled minority) a necessary of 
life, and all the unincreaGable land being occupied, a man who 
is turned out of hia holding is turned out of this world, and 
must die. And our notion of written teases is as out of place 
in a world without writit^ and without reading as a House of 
Commons among Andaman Islanders. Only one check, one 
sole shield for life and good, Is then possible — usage. And it 
is but too plain how in such places and periods men cling to 
customs because customs alone stand between them am! star* 
vation. 

A still more powerful cause co-operated, if a cause more' 
powerful can be imagined. Drydcn had a dream of an early 
age, " when wild in woods the noble savage ran; *' but " when 
Ion** m wnodfi the cringing «vage cr<?pt *' would have been 
more like all we know of that e^rly, bare, painful period- Not 
only had they no comfort, no convenience, not the very begin* 
nings of ati epicurean life, hut their mind within was as pain* 
ful to them as the world uHthout. It was full of fear. So far 
as the vestiges inform us, they were afraid of everything; 



PHYSICS AND POLITICS 



35 



they wtTc afraid ot ammala, of certain attacks by near tribe*, 
and of possible inroads from far tribes. But. above all things, 
they were frightened of " the world ; " the spectacle of nature 
filled them with awe and dread. They fancied there were 
powers beliind i: which must be plea&ed, ^ooihcd, flattered, and 
this very often in a number of hideous ways. Wc have loo 
many such religions, even among races of great ciiUivatior. 
Men change their religions more slowly than they change any- 
thing else ; and accordinglj we have religions " of the ages " — 
(it IB Mr, Jowelt who so calls them) — of the "ages before 
morality ; " of ages of which the civil life, the common maxims* 
and all the secular thoughts have long been dead. " Every 
reader of the classics," said Dr. Johnson, " finds their mythol- 
ogy tedious." In that old world, which is 50 like our modern 
world in so many things, so much more like than many Ear 
more recent, or some that live beside us, there t» a part in 
which we seem to have no Icindrcd, which wc stare at, of which 
we cannot think liow it could be credible, or how it catnc to be 
thought of. Tills is the archaic part of that very world which 
we look at as so ancient: an " antiquity " which descended to 
them, hardly altered, i>erhaps» from times long antecedent, 
which were as unintelligible lo them as to us, or more so. How 
this terrible religion — for such it was in all living detail, though 
wc make, and the ancients then made, an artistic use of the 
more attractive bits of it — weighed on man. the great poem of 
Lucretius, the most of a ninetcctUli century poem of any in 
antiquity, brings before us with a feeling so vivid as to be al- 
most a feeling of our own, Yel the classical religion is a mild 
and tender specimen of the preserved religions. To get at the 
worst, you should look where the destroying competition has 
been least — at America, where sectional civilization was rare, 
and a pervading coercive civitiration did not exist; at such 
religions as those of the Aitecs. 

At first sight it seems impossible to imagine what conceiv- 
able function such awful religions can perform in the economy 
of the world. And no one can fully explain them. But one use 
they assuredly had! they fixed the yoke of custom thoroughly 
on mankind. They were the prime agents of the era. They 
put upon a fixed law a sanction so fearful that no one could 
dream of not conforming to it. 



36 



BAGBHOT 



Nfl one ivi!l tfver cfimj>r<>hcnfl the arrested civiltrationa lin^ 
less he sees the strict tlilcinma of early society. Either men 
had no law at all. and lived in confused tribes, hardly hanjzine 
toE^her, or they had to obtain a fixed law by processes of in* 
credible diHiculty. Those who surmoiiiucd that dij!kulty soon 
destroyed alt tliose that lay in their way who did not. And then 
ihcy themselves were caught in their own yoke. The custom- 
ary discipline, which conld only be imposed on any early men 
by terrible mnctions. cominued with those sanctiom. and killed 
out of tbe whole society the propensities to vamtion which arc 
the principle of proj^ress. 

Experiaicc show* how incredibly difTiciill it is to get men 
really to encourage the principle of oii^iLiality* They will ad- 
mit it in theory, but in pncttce the old error — the error which 
arrested a hundred civilizations— returns a^in. Men are too 
fond of their own life, too ereduloiu; of the eomplelencss of 
their own ideas, loo angry nt the pain of new thoughts, to be 
able to hear easily with a rhangin^ existence; nr eUr, having' 
new ideaa, they want to enforce them on mankind — to make 
th;;m heard, and admitted, and obeyed before, in simple com- 
petition wilh other ideas, they would ever be so naturally. At 
this very moment there arc the most rigid Comtiits teaching 
that wc oupht to be ^vemcd by a hierarchy — a combination 
of savant orthodox in science. Yet who can dotibt that Comic 
would have been hanged by his own hierarchy; that his fssor 
fnatiTivl, which was in fact troubled by the " theologiars and 
metaphysicians " of the Polytechnic School, would have been 
more impeded by the ^vemment he wanted to make? And 
then the j^ccular Camtjsts, Mr* Harrison and Mr. Bcesly, who 
want to " Frenchify the Engliah i nsiitu lions " — thai is, to in- 
troduce here an imitation of the Napoleonic system, a dictator- 
ship founded on the proletariat — who can doubt that if both 
these clever writers liad been real Frenchmen they would have 
been irascible anti-Bonapartists, and have been sent to Cayenne 
long ere now? The with nf the*e writer* i* very naturaL They 
want to " organize society." to erect a despot who will do what 
they like, and work out their ideaii; but any despot will do 
what he himself likes, and will root out new ideas ninety-nine 
times for once that he introduces them. 

Agauif side by side with these Comtists, and warring with 



Physics and politics 

them — ai leaiit with one of ihcm — is Mr. Arnold, whose poems 
Vft know by heart, and who h^is. as much as any living english- 
man, the genuine literary impulse ; and yet even he >SAnt» to 
put a yoke upon ms — and, wor&e than a political yol^e, an aca- 
demic yoke, a yoke upon our mind* and our styles, He^ too, 
asks us to iiTiitaie France; and what else can we say than 
what the twn most thorough Frenchmen of the last age did 
say? — "Dans Us corps d talent. mdU distinction ne fail om- 
brage, si ce n'csl Pas crlle dii tal^it. Un due el pair honore 
lAcad^mic franccise, ^ui ne veut point de BoiUau. refuse la 
Bruyirc, fait attetidrf Voltaire, mais re^oit tout d'abvrd Chape* 
tain et Conrart. De nihtie nous vcyons d t'Acadhnie Grecqua 
U vicomte tnvitt, Cordi repoussl, iorsque Jormard y cutrc comme 
dans un mouHn." Thus speaks Paul-LoLis Courier In his own 
brief inimitable prose. And a still greater writer — a real French* 
man, it ever there was one, and (what many critics wotild have 
denied to be possible ) a great poet by rceson of his most French 
cliaracteristlcs — BSranger, tells tis in verac: — 

" Je croyais voir !e pr^aidrnt 
Fairr biilkr^n r^pondint 
Que Tot vicnt de perdre un grand hommc ; 
Que mo^ Ji: le vaux, Dicu satt coiitme- 
>>f lift cc pr^iidmt sum fngon * 
Ke perore id quVn chanson; 
Toujour^ trop tot %a har^nfuc est finie. 
Kon, non, ce ti'cst point eommc k VAcadftnie, 
Ce n'est point commc \ VAttt(\imk, 

" Admia cnHn. attrai-jc alor^. 
Pom toul cfcpth, IVspril d<r corps? 
l\ rend le bon J*n4, qitoi qii'on di^e, 
Sohdaire dc U sottiac; 
Mai^v dan* votre society, 
L'cvprit de corps, c'ett \t gafttf. 
Cct «£prit \i rcgn? ian» lyrzante. 
Non. non, ce n'e*t point comme h VAcidhnlc; 
Cc n"e*t point comrac i rAcadimJe/' 

Aftyluni^ of common-place, he hints^ academics must ever 
be. But that sentence is too harsh; the true one is — the 
acadcmiea are asylums of the ideas and the tastes of the last 
a^. " By tlie time," I have heard a moat eminent man of sd- 

• D^iactfierv. 




3» 



BAGEHOT 



€nce obfi*?rv*», "by tht^ tim^ a man of science attains eminence 
on any Kuhiw-I^ ht' htt'onie-t a nuisance iipcin il, hcransc he is 
sure lo retain cTrors which were in voffue wheo he was youni;, 
bill which the new race liave refilled/' These arc the sort of 
ideaji which find their home in academies, and out of thetr dig- 
nified windows pooh-pooh new things, 

I may seem to have wandered far from early society, but I 
have not wandered, The true scientific method is to explain 
the past by the present — what we sec by wliai we do not sec. 
We can only comprehend why ^o many nations have not 
varied, when we sec how hateful variation ts ; how everybody 
turns againM it ; how not only the conservatives of speculation 
try to root ic out, but the very innovators invent moit rigid 
machines for crushing the " monsiro»itics and anomalies" — 
the new forms, out of which, by coinpclition and tri.-il, the best 
ii to be selected for the future. 'Ilic point 1 am bringing out 
14 simple: — one most important prercquiMte of a prevailing 
nation is tliat it should have [>^:i:ted out of the first stage of 
civilization into Ihc^ second stage — out of the stage where per* 
manence is most wanted into that where variability ia moit 
wanted ; and yon eannot comprehend why progress is so slow 
till you see how hard the mou obstinate tendencies of human 
nature make that step to mankind. 

Of course the nation we are supposing; must keep the virtues 
of its first stage as it passes into the after stage, else it will be 
trodden out ; it will have lost the savage virtues in getting the 
beginning of ifie civihEc<] virtues; and the savage virtues 
which tend to war arc the daily bread of human nature. Car- 
Ivle said, in his graphic way, "The iihimate question between 
every two htman beings is. * Can 1 kill thee, or canst thou kill 
me?'" History is strewn with the wrecks of nations which 
have gained a little progrcssivcneas at the coat of a great deal 
of hard manliness, and have thus prepared themselves for de- 
struction as soon as (he movements of llic world gave a chance 
(or it. But thc^c nations have come out of the " pre-economic 
stage *' loo soon : they have been put to learn while yet only 
too apt to unlearn. Sueh ca*efi do not vitiate, they confirm, the 
principle — that a nation which has just gained vanabtlitj- with- 
nnt losing legality has a singular likelihood to be a prevalent 
nation. 



■ 




PHYSICS AND POLITK 



39 



No naltoQ admits of an abstract dcGuilioti ; all nations arc 
l>c!ngs of many qualities and many sides; no historical event 
exactly illustrates any one principle ; every cause is intertwined 
and surrounded with a hundred others. The best liittory 15 
but like the art of Rembrandt ; it casts a vivid light on certain 
selected catiseK^ on those which were best and greatest ; It 
leaves all the rest in shadow and unseen. To make a ^iti^le 
nation illustrate a principle, you must cxag^ratc much and 
you muit omit much. But, not forgetting tliis caution, did not 
Rome — the prevalent nation in the ancient world — gain her 
predominance by the principle on which I have dwelt? In 
the thick crust of her legality there was hidden a little seed of 
adaptiveness. Even in her law itself no one can fail to sec that, 
binding as was tlie liabit cf obedience^ coercive as use and wont 
at first seem, a hidden impuLse of extrication did manage, in 
some queer way, to change tlie substance while conforming 
to the accidents — to do what was wanted for the new time wliile 
seeming lo do only what was directed by the old time. And 
the moral of thctr whole history !» the aaiue: each Roman 
generation, so far as wc know, differs a little — and in the best 
times often but a very little — from its ]j rede c ess or.i. And, 
therefore, the history is so continuous as it goes, though ils 
two ends are so unlike. The history of many nations i^ like 
the stage of the English drama! one scene is succeeded on a 
sudden by a scene i^uite different, — s. cottage by a palace, find 
a windmill by a fortress. But the history of Rome changes as 
a good diorama changes; while you look, yoti hardly see it 
alter; each moment is hardly different from the last moment; 
yet at the close the metamorphosis is complete, and scarcely 
anything is as it began. Just so in the history o( the great pre- 
vailing city: you begin with a town and you end with an em- 
pirc^ and this by unmarked stages. So shrouded, so shicMcd, 
in the coarse fibre of other qualities was Ihe delicate principle oi 
progress, that it never failed, and it was never broken. 

One standing instance, no doubt, shows thai the union of 
progrcsMveness and legality does not secure supremacy in war 
The Jewish nation has its type of progress in tlie prophets, 
aide by side with its type of permanence in the law and Lc%'itcs, 
more distinct than any other ancient people. Nowhere in com- 
mon history do we see the two forces — both so necessary and 




BAGEHOT 



bolh lo danperotis— io 



/ 



\ 



1 and so intense: Judxa 
in inward thought, jiisl as Rofnc changed in exterior powerJ 
Eath change wa8 continuoti^, gradual, and ^ood. In early 
times every sort of advantage tends to become a military ad-i 
vantage; such is the l>»t way, then, to keep it alive. But tlid 
Jewish advantage never did so; beginning in reUgion, cmi-^ 
trary to a thousand amlogiesi, it remained religious. For that 
we care (or them ; Irom that have issued endless consequences^ 
But 1 cannot deal with such matters here, nor are they to my 
purpose. As respects this essay, Judxa is an example of comi 
bified variability and legality not li^vcsting itscU in warltka 
power, and so perishing at last, btit bc<]tieaihing nevenhelcss 4 
legacy ol the combination in imperishable mental cSects. 

It may be objected that this principle is like sayii^ tlial mcd 
walk v^hcn they do walk, and sit when they do sit. The prob<] 
km it, why do men progress? And tlie answer au^cstcd 
seems to be that they progress when they Have a certain suffi-^ 
cient amount of vnrtAbiltty in ihetr nature. This seems to bo 
the old style of explanation hy oeeult qualities. It scemi 1ik4 
sa>-ing that opium M;n<U men to sleep because it has a toporifie 
virtue, and bread feeds because it has an alimentary qualityj 
But the explanation is not so absurd. It says: " The begin- 
nirg of ctviHzation is marked by an intense legality; that lei 
gality is the very condition ol its existence, the bond which liea 
it together; bat that legahty — that tendency to impose a set- 
tled customary yoke upon all men and all actions — if it goefl 
on, kills out the variability implanted by nature, and makes| 
riilTerent men and different ages fac-^imilcs of other men ancf 
other ages, as we sec them so often. Progress is only possibh^ 
in those happy cases where the force of legality has gone hi] 
enough to bind the nation t<^ethcr, but nut far trncugh to kil| 
out all varieties and destroy natures perpetual tendency ta 
ehtnge." The point of the ^lution is not the invention of aa 
imaginary agency, but an assignment of comparative magni-^ 
tude to two known agendes. 



PHYSICS AND POLITICS 



4t 



Part HI 

Tills a<lvaFitapp is one of the greatesi In early civilixsHon — 
one of tike facts which ^ivc a decbive lurn to the battle of nations; 
but there arc many olhere. A hlilc perfection in poUtical ins-ti- 
tutions may do it. Travellers have noticed that among savage 
tribes those seemed to answer best in which tlie monarchical 
power was most predomirant, and those worst in which tlic " rule 
of many " was in its vigor. So long as war i^ the ntain bus^tness 
of nations, temporary despotism — despotism during the cam- 
paign — is mdispensablc. Macaulay justly said that many an 
army has prospered under a had commander, but no anny has 
ever prospered under a '" debating society; " ihal luany-heudcil 
mou±iter i^ then fatal. Despotism grow:> in the first societies, 
just as democracy grows in more modem societies; it i» the 
government answering the primary need, and congenial to llic 
whole fipirit of the time, Dut despotism is unfavorable to the 
principle of variabilityj a» all history shows. It tenda to keep 
men in the customary stage of civilisation; its very fitness for 
that age unfit* it for the next. Il prevent* men from passing into 
the first age cf progress — the very slow and very gradually im- 
proving age. Some ''standing system " of semi-free discussion 
isasnccessary to break the thick cruiit of custom and begin prog- 
ress as il is in later ages tocarry on progress when begun ; proba* 
bly it t& even more necessary. And in the most progrcsiivc 
races we find it, I have spoken already of the Jewish prophets, 
tlic life of that nation, and the principle of all its growth. But 
a still more progressive race — thai by which secular civilization 
was once created, by which it is now mainly administered — had a 
still better instrument of progression. " In the very earliest 
glimpses." says Mr Freeman, " of Teutonic political life wc find 
the nioiiiircliic, the aristocratic^ and the democratic elements al* 
ready clearly marked. There arc leaders with or wlUtout llic 
royal title; there arc men of nohlc birth, v/hose noble birth (in 
whatever the original nobility may have consisted) entitles them 
to a pre-emintncc in every way ; but beyond these there is a free 
and armed people, in whom it is clear that die ultimate sovereign* 
ty resides. Small matters are decided by the chiefs aJone; great 
matterfi are submitted by the chiefs to the assembled nation. 



BAGEUOT 



Such a system is far more than Teutonic ; il ift a common Aryan ^ 
poftses«iofi; it is the conslituiion of the l-Ionicric AchaLans on; 
earth and o( the Homeric god* on 01ympii!4>" Ftrliap^, and 
indeed prtjbably, this constitution may be that of the primitive 
tribe which Romans left to gu one w;iy, and Greeks to go an- 
other, and Tetitons to go a third. The tribe took it with tbcm, as | 
the English take the common law with them, because it was the 
one kind of polity which ihcy could concdvc and act upon; or 
it may be tluit the emigrants from the primiiivc Aryan Mock 
only took with them a good aptitude — an excellent political nat- 
ure, which Mmilar circumstances in distant countries were after- 
wards to develop into like forms. But anyhow it is impossibfc 
not to trace tlic supremacy of Teutons, Greeks, aiid Romans in 
part to their common form of govcinment. The contests of the < 
assembly cherished the principle of c!iaii|;e; the iiinucnce of the ' 
ciders insured Mrdatencss and preserved the mould of thought;, 
and, in the best cases, military discipline was not impaired by 
freedom, though military intelligence was enhanced with the 
general inlelUgenee, A Roman army was a free body, at its 
own choice governed by a peremptory despotism. , 

Tlie mixture of races was often an advantage, too. Much as 
tlic old world believed in pure blood, it liad very little of it- - 
Most liiiloric nations conquered pre-historic nations, and though 
ihcy massacred many, they did not massacre all. They enshved 
thi* subject men, and they married the subject women* Ko , 
doubt the whole bond of early society was the bond of descent; , 
no doubt it w3v essential to the notions of a new nation that it ' 
should have had common ancestors; tlic modem idea that vidn- i 
ity of habitation is the natural cement of civil union wotjld have 
been repelled as an impiety if it could have been conceived as aii 
idea. But by one of those legal fictions which Sir Henry Maine 
describes so wdl, primitive nations contrived to do what they 
found convenient, as well as to adhere to what they fancied to be 
riglit. When they did not beget they adopted; they solemnly 
made Ijelieve that new persons were descended from the old 
fttock, though eveTy1>ody knew that in flesh and blood they were 
not. They made an ariifieial unity in dtfatill of a real unitv; 
and* what it is not easy to understand now% the sacred sentiment 
requiring unity of race was somehow satisfied: what was made , 
did as well as what was bom. Nations with these sort of max* 



PHYSICS AND POLITICS 



imd :irc not likely (o hnvc uniiy of race in the modem $<?nsc, and 
as a physiologist understamb it. What &ort» of unions improve 
the breed, and which are worse ih^Ji both the faihcr-race and the 
mother, it is not very <*asy lo say, Tlie subjcci was reviewed by 
&{. Quatrefages in an cbboraic report upou the occasion of the 
French Exhibilion, of all things in the world. M. Quatrcfagcs 
quotes from another writer the f>hr3se that South America ib a 
great laboratory of cxpcrimcjils in the mixture of races, and re- 
views the different results which different cases have shown. In 
South Carolina the mulatto race is not very prohfic. whereas in 
Louisiana and Kb^ida it decJde4l)y h io. In Jamaica and in Java 
tJie mulatto cannot reproduce itself after the third generation; 
but on the continent of America, as everybody kuow», the mixe<l 
race 15 now must numerous, and ^rcads generation after genera- 
tion without inipediinciit, Eijuaily various hkewi>e in various 
cases has been Uic fate of tlic mixed race between die while man 
and the native American; somctinics it proiipcrs, sometimes it 
[ails. And M. Qualrcisgcs concludes his description thus: 
*' £ji acc^piant comt'te i-rax^s tonias t^s ohs^n-'aliony ^ui ten- 
dfHt d fairr admfttrt qn'ii en Sfra aulrcifunt dans Us tocaitt^s 
doni i'ai ^<iHr plus haut, quclU t^Jt la conclusion H tircr rf/ fatts 
Q^^i fat s^mtiablesl' Evidcmtnmt, on est oblige de rccon* 
itaitrc que le dcvtloppanent dc la race mulilre est fitv^mi, 
retardc. ou tmpcciU par des circonstaH€es h«d€s; en d'autrcs 
icrrjtcs, qu'ti d^p^nd dcs induetucs cxercccs par f^nsembU t/« 
conditions d'exlsUncc. par Ic miticu" By which I trndcrstand 
liiin to mean that the mixture of race sometimes brings out 
ft form of character better suited than either parent form to the 
place and time; that in sucli cartes, by a kind tjf natural selec- 
tion, it dominates over both parents, and perhaps supplants 
botlir wbereas hi otJier cases the mixed race is not as good then 
and there as other parent forms, and then it passes away soon 
and uC itself. 

Early in history the continual mixtures by con^^ucst were ja^t 
so many experiments in mixing races as arc going on in South 
America now. New races waod«Ted into new districts, and 
half killed, half mixed with llic oJd races. And thr rcwdt was 
douUless as various and as diHiriilt to account for tlien as now; 
sometimes thr rrowing answered, sometimes it failed. But when 
the mixture was at its best it mil** have excelled both parents in 



44 



BAGCUOT 



thai of ivhtcli 50 much h3& ht*cn said: th^t is, vsriability. ani 
consc<iucntiy progress ivcn ess. There is more life in mixed na- 
tions. France, for uiiitance, b justly said to be the mean teim 
between the Lstin and the German races. A Norman, as you 
may &cc by looking al him, is of the north; a Proven*;al is o( the 
south, of all that there is most southern. You have in France 
Latin, Celtic, German, compounded in an infinite number of pro- 
portions: one as she is in feeling, she is variom not only in the 
past history of her various provinces, but in their present lempCT' 
aments. Like the Iri^h element and the Scotch element in the 
English House of Commons, the variety of French races con- 
tribute* to the play of the polity ; it gives a chance for ftitmg new 
things which oEhcrwisc there would not be. And early races 
roust have wanted mixing more tliati modern racesw It b said, 
in answer lo the Jewish boast that *' their race still prospers, 
thongli it is seattered and breeds in-ajiJ-iii," ** Vou prosper be- 
cause you art so scattered ; by acclimatisatioB in various regions 
)^ur nation has acquired sin^u]:U' elements^ of variety; it con- 
tains within itseU the principle of vanabilily which oilier nations 
must seek by intermarriage." In the beginning of things there 
was certainly no cosmopolitan race like the Jews ; each race was 
a sort of " parish race/' narrow in thought and bounded in 
rangCf and it wanted mixing accordingly. 

But the mixture of races has a singular danger as well as a 
Angular advantage in the early world, Wc know now the Anglo<> 
Indian suspicion or contempt for " half-castes." The tmion ot 
the Englishman and the Hindoo produces something not only 
between races, but between morahties. They have no inherited 
creed or plain place in the world; they have none of the fixed 
traditional senriTiteiUs which are the stays of human nature. In 
llic early world many mixtures iiiusi have wrought many ruiru; 
they must have destroyed what they could not replace — an in- 
bred principle of discipline ard of order. But if these unions 
of lUces did not work thtis ; if, for example, the two racc^ were so 
near akin that their morals united as well as their breeds, if one 
race by its great numbers and prepotent organisation so pre- 
sided over the other as to take tt up and ;4«<iimilate it, and leave 
no separate remains oE it, then the admixture was invaluable. It 
added to the probability of variability, and therefore of improve- 
ment; and if that imprcvcmcnt even in part look the military 



PHYSICS AND POLITICS 



4S 



line, it might give Ihe mixed and amclioraied slate a study ad- 
vantage in the battle of nations, and a grcau-r chance of lasting 
in the world. 

Another mode in which one state acquires a supcrjQrity over 
competing states i5 hy provisional iiutitution.\ if 1 m;iy so call 
Ehcm. The most imponaiil cf these — slavery — arises oul of the 
same early contiuest as ihe mixture of races. A fbvein nn unas- 
similated, an undigested atom; something which is in the body 
politic, Stit yet is hardly part of iL Slavery, loo, ha* a had name 
in the later world, and very juslly. We ccinnect it with gangs in 
chains, with laws which keep men ignorant, wilh laws that hin- 
der families. But the evils which wc have endured from slavery 
in recent ages must not blind ns to, or make h> t<»rgel, (lie great 
services that slavery rendered in early ages. There 15 a wonder- 
ful presumption in its favor; it is one of the institutions whkh, 
at a certain stage of growth, all nations in all countries choose 
asddttveto. "Slavery," says Aristotle, "exists by the law of 
nature/' meaning that it was everywhere to be Jound — was a ru- 
dimentary imiver*al point of polity, " Tlierc are very many 
English colonies/" said Edward Gibbon Wakefield, as late as 
1848, "' who would keep slaves at once if wc would let them/' 
and he was speaking net only uf old colomcsi trained in sTuveryr 
and raised upon the products of it, but likewise of new colonies 
started hy freemen, and which ought, one would think, to wish 
to eontain freemen only, But Wakefield knew what he was say- 
ing; he wa£ a careful observer of rough societies, and he had 
watched the mindi of men in ihrm. He haH seen that leisure is 
the great need of early sociciteSn and slaves only can give men 
leisure. All freemen in new countries must be pretty equal; 
everyone has labor, and everyone has land; capital, at least in 
agricultural countries (for pastoral coiiniries arc very different), 
is of little tise; it cannot hire labor; the laborers go aiul work 
for themselves. There is a story often told of a great English 
capitalist who went out to Australia with a shipload of laborers 
and a carriage; his plan was that the laborers shonld build a 
house for him, and that he would keep his carriage, just as in 
England, But (so the story goes) he had 10 :ry to live in his 
carriage, for his laborers left him, and went away to work for 
themselves. 

In such couuuic^ there can be few gentlemen and no ladies^ 



POLITICS 



47 



wtien »omc kUicI of uior^l quality ^Jvci ^otn^ aiich giiiiu War 
both ncodfl and generates certain virtues; net the higheM, but 
what may be ca11<:<1 the prclimbary virtuea^aa valor, veracity, the 
BpiHt of obedience, the habit o1 di.^ipline< Any of theste, and o( 
Others like them, when pouessed by a nation, and no niatier 
hotv generfited, will give them a mihtary advantage, and make 
them more likely lo slay in the race of nations. The Roinans 
probably had as tnuch of these efficacious viruies as any race ot 
the ancient world. — perhaps as much as any race in the modern 
world too. And the success of the nations which possess these 
irartial virtues has been the great means hy which their con- 
tinuance has been secured in the workl, and the destruction of 
the opposite vices insured also. Conquest is the missionary of 
valor, and the hard impact of military virtues beats meanness out 
of the wurld. 

In the last century it would have sounded strange to speak, 
as I am going (o *peak, of the military advaniage of religion. 
Such an idea would have been opposed to niUng prejudices, and 
would hardly have escapc^d philosophical ridicule. But the no- 
tJun in but a commonplace in our day» for a man of (genius has 
made it hij own. Mr, Carljle's books arc deformed by phrases 
Ukc " irfimtics " and " verities," and altoKtlher arc full of faults, 
which attract the very yoimg, and deter all ihai are older. In 
spite of his great gentua, after a long life of writing, it is a qnes- 
tion still whether even a single work of his can take a lasting 
place in high literature. There Is a want of sanity in their man- 
ner which throws a suspicion on their substance flhoueh it ts 
often profound) ; ard he brandishes one or iwo fallacies, of which 
he has himself a high notion, but which plain people will always 
detect and deride. But whatever may be the fate of his fame, 
Mr. Carlyle has laughl the present generation many le&sons, and 
one of these is thai *' God-fearing " armies are the best armies. 
Before this lime people laughed at Cromwcirs saying, " Trust in 
God, ard keep yotir powder dry/' But we now know that the 
trust was of as much use as tlit? powder, if not of more. Htat 
high concentration of steady feeling makes men dare everything 
and do anything. 

This subject would ran to an infinite exteitl U anyone were 
eompcttnt to handle it. Those kinds of morals and ihal kind uf 
religion which tend to make tlic fim^est and most e^ccCuol 



4a 



BAGEHOT 



cliiracto arc wrc to prevail, alt ebe being the eamc; and crcedtl 
or tysient tbAt conduce to a soft, limp mtrid tend to perisli, ex-j 
c^ Bome hard extrin»ic iarct Wrep thtm alive, Tbu* Epicur«an-( 
ism never prospered at Rome, hut Stniciim did: the Miff, f^erious 
character of the great prevailing nation was attracted by what 
seemed a confirininf; creed, ;itKl deterred by what looked like a 
relaxing creed. The inspiriting doctrines tcU upon the ardent 
chAracter, aud so eonfirnictl ils cntr^y. Strong belieJ^ win 
strong men. and then m^ke them stron^CT. Such is no doubt 
one cause why monotheism tends to prevail over polytheism; it 
produces a higher, steadier character, cahitcd and concentrated 
by a great single object ; il is not conhjsed by competing ntes, or 
disiractcd by miscellaneous deities. Polytheism is religion in 
commission, jiiid it is weak accordingly. But il will be jsaid the 
Jews, who were nionotheist, were conquered by the Romans, 
who were polythdst. Yes, it must be answered, because the 
Romans had other gifts; the)' had a capacity for politics^ a habic 
of discipline, and of these the Jew* had not the least. The rclig- 
iouft advantage was an advantage, but it was counter- weighed. 

No one should be surjirised at the prominence given to war. 
We are dealing with early ages; nation-making is the occupa- 
tion of man in these ages, and it is war that makes nations. Na- 
tioti-changing comes afterwards, and is mostly effected by peace- 
ful revolution, though even then war, too. plays its part. The 
idea of an indestnictJble nation is a modern idea; in early ages 
all nations were destructible, atid the further we go back the 
more incess:inl was the work of destruction. The internal deco- 
ration of natiofis is a sort of secondary process, which succeeds 
when the main forces that create nations have principally done 
their work. Wc have here been concerned with the political 
scaffolding ; it will be the task of other papers to trace tlie proc- 
ess of political finishing and building. The nicer play of finer 
forces may then rei^uire mure pleasing thoughts than the fierce 
fight) of early ages can ever suggest. It belongs to t!ic idea of 
progress that beginnings can never seem attractive lo those who 
live far on; the price of improvement is that the unimproved 
will always look degraded. 

But how far are the strongest nattona really the bej;t nations? 
how far is excellence in war a criterion cf other excellence? T 
cannot answer this now fully, liut three or four considerations are 




PHYSICS AND POLITICS 



49 



» 



War, as I Imvr saul, noiirisW* the " prdiminary " 
this is almost as mucli as {o say that there arc virtues 
which it docji not nourish. All which may be callcfl "grace'* 
AS well ns virtue it docs not nourish: humanity, charity, a nice 
sense of the rights of others, it ctMainly does not foMer The 
inseTisihtlity to human suffering, which is so strikinii; a fact in the 
world as it stood when history first reveals it, h doublleas due to 
the wariike origin of the old civilisation. Bred in war, and 
nursed in war, it could not revolt from tlie things of war, and 
one of the principal of these is huni2,n pain. Since war has 
ceased to be the moving force in the world, men have become 
more tender one to another, and shrink from what they used to 
infiicl wiihort canng; ;ind this not so mucli because meii aie 
improved (whic!i iiia> or may not be in various caset). but be- 
cause they have no longer the daily habtt of war — have no longer 
fcniied their notions upon war, and therefore are guided by 
thoughli; and Feelings which soldiers as suc)i — soldiers educated 
simply by their Trade — are too hard to understand. 

Very like this h the contenipl for physic-al wealcnes^ and for 
women which marks early society too, Tlie non-combatant pop- 
ulation is sure to fare ill during the ages of combat. But these 
defects, too, are cured or lessened : women have now marvellous 
means of winning their way in the world; and mird without 
muscle has far greater force than muscle Arithout mind. These 
are some of the after-changes in the Interior of nations, of which 
the causes must be scrutinized, and 1 now mention them only to 
bring out how many softer gtowtbs have now half-hidden the 
old and harsh civiti^tion which war made. 

But it is very dubious whether the spirit of war does not still 
color our morality far too much. Metaphors from law ajid mcia* 
phors from war make most of our current moral phrases, aud a 
nice examination would easily explain thai both rather viltalc 
what both often illustrate. The military habit makes man think 
far too much of definite action, and far too little of brooding 
meditation. Life is rot a set campaign, hut an irregular work, 
and the main forces in it are not overt resolutions, hut latent and 
haU-in voluntary promptincs- Tlie miMake of militaf>' ethiM is 
to exaggerate the conception of discipline, and so to present the 
moral force of the will in a barer form than it ever ought to take. 



CHOICE BXAMPLES OF EARLV PRtNTINO AND 
ENGPAMNG. 

Fac-Mmfte-s fi^KYi Hvt and Qirloits Bootes ' 



PA^T OF A PAGE S/:/.£CT£D PROM POST Af/D 
SCHOEFPER^S SECOXD PSALTER. 

Tfi; ilcoMvc 'Dccns AnO ra{Mi5 toW i>l lite flrv pfWvd JSaIic* ' ;. 



CHAPTER 111 

NATION-MAKING 

IN the lifit e^ny I cndeAvcred to show ilint in the earTr »^ 
of man — the " fighling age " I called ii — there was a con- 
siderable, though not certain, tendency tovrard* progrett. 
The best nations conquered the worst ; by the possession of one 
advantage or another the best competitor overcame the hiferior 
competitor &d long a^ there was continual fighting there was 
a likelihood of iripiovement in niArtJal virlties, and in early 
times many virtues are really " martial " — that is, lend to stie- 
cess in war— which in Inter time* we do not think of so calling, 
because the orit;ina1 usefulness is hid by their later usefulness. 
We judge of Ihem by the prc*ent effects, not by their firrt, 
TIjc love of law, for example, is a virtue which no one now 
would call martial yet in early times it disciplined nations, and 
the disciplined nations won. The f^h of "conservative in- 
novation" — the gift of matching new fnslittitions to old — is 
not now-a-fiay6 a warlike virtue, jet the Roman* nwcd much 
of their Auceest to it. Alone among ancient national they had 
the deference to usage whtch combines nations* and the partial 
permission of selected change which improves nations; and 
therefore they succeeded. Just so in most cases, all through 
the earliest times, martial merit is a token of real merit r the 
nation that wins is the nation that ought to win. The simple 
virtues of such ages mostly make a man a soldier if they make 
him anything. No doubt the brute force of numhcr may be 
too potent even then (as so often it is aftenvardii) : civilixation 
may be thrown back by the conquest of many very nide men 
over a few less rude nten. Hut the first elements of civilization 
are great militar>' advantages, and. roughly, ft (s a rule of the 
first times that you can inftr mrrii from conquest, and tliat 
progress is prutuuied by llie coiupetitive examination of con- 
stant war. 

ST 



5* BAGEHOT 

This principle explain* at once why the " protectee! " regions 
oi (he world — tlic inicrior of continenis like Africa, mitlying 
islaatls like Aui^tralia or New Zealan<i— arc of necessity back* 
ward. They arc slill in the preparatory school; they have not 
been taken on class by class, as No. II, being a little better^ 
routed and elTaced No. I ; and as No. Ill, being a little better 
still, routed and effaced No. II. And it explains why Western 
Europe was early in advance of other countries* because there 
the contest of races was exceedingly severe. Unlike moit re- 
gions, it was a templing part of the world, and yet not a 
corrupting part; those who did not possess it wanted it, and 
those who liad it, not l>eing enervated, could struggle hard to 
keep it. The cotiilici of nations is at fir^t a main force Id tbe 
iEnprovcment of nations. 

But wliat are nations? Wliat arc these groups which arc 
so familiar to us, and yet, if wc atop to think, so slrangc ; which 
are as old as history; which Herodotus found in almost aa 
great numbers and with quite a« marked distinction} aft we see 
them now? What breaks llie human race up into fragment* 
fto unlike one another, and yet each in its interior so monoto- 
nous? The question is most puzding, though the fact is so 
familiar, and I would rot venture to say that I can answer tt 
complclclyt though I can advance some considerations which, 
as it seems to me, go a certain way towards answ^ering it. Per- 
haps these same considerations throw some light, too, on the 
further and still more interesting question why some few na* 
lions progress, and why the greater part do not> 

Of course at lirst all such distinctions of nation and natioti 
were explaine<] by original diversity of racen They arc dis- 
similar, it was said, because tliey were created dissimilar But 
in most cases this easy supposition will not do its work. You 
Liinnot (consistently with plain facts) imagine enough original 
races to ma1<e it tenable. Some half-do^cn or more great fam- 
ilies of men may or may not liavc been descended from separate 
Jirst stocks, but sub- varieties have certainly not so descended. 
You may argue, rightly or wrongly, that all Aryan nations are 
of a single or peculiar origin, jnst as it was long believed that 
all Greek -speaking nations were of one such stock. But you 
will not be listened to if you say that there were one Adam 
and Eve for Sparta, and another Adam and Eve for Athens, 





PHYSICS AND POI 



S3 



All Greeks arc evidently of one origin, bul witliiu the limitA 
of the Greek family, as of all other families, there is some con- 
trast-maltmg force whieli eauaes city to be unlike city, and tribe 
unhke tribe. 

Certainly, too, nadon* did not originate by simple natural 
sekctic^n, as wild varieties of animals (1 do not 9p«ak now of 
species) no doubt arise hi raturt-. Natural fielcrlion tnean^ 
the preservation of those individuals which struggle bent with 
the forces that oppose llieir race. But you could not show 
that the natural obstacles opposing Imman life much differed 
between Sparta and Athens, or indeed between Rome and 
Athens; and yet Spartatts, Athenians, and Romans difFcr es- 
sentially. Old writers fancied (and it was a very natural idea) 
that the direct effect of climate, or rather of land, sea, and air, 
and the sum total of physical conditions varied man from man, 
dniJ changed race to race. But experience refutes this. The 
English immigrant lives in the same climate as the Australian 
or Tasmanian, but he has not become like those races; nor 
will a thousand years, in most respects, make him like them. 
The Papuan and the Malay, as Mr. Wallace finds, Uve now, and 
have lived for ages, side by side in the same tropical regions, 
with every sort of diversity. Even in animals his researches 
show, as by an object-lesson, that the direct efficacy of physical 
conditions is overrated, "Borneo," he says, "closely le- 
semble^ New Guinea, not only in its v»st size and freedom from 
volcanoes, but in its variety of geological structure, its uni- 
formity of climate, and the general aspect of the forest vegeta- 
tion that clothes its surface. The Moluccas arc the counterpart 
of the Philippines in their volcanic slniclurc. their extreme 
fertility, their luxuriant forests, And th^ir frequent earthqtiakes ; 
and Bali, with the east end of Java, has a climate almost as 
arid as that of Timor. Yet between these corre.sponding 
groups of islands, constructed, as it were, after the same pat< 
tern, subjected to the same climate, and bathed by the same 
oceans, there exists the E^^atest possible contrast, when we 
compare their animal protlucrions. Nowhere does the ancient 
doctrine — that dilTerences or similarities in the various forms 
of life that inhabit different countries are due to corresponding 
physical dilTcrences or similarities In the couritries themselves 
—meet with so direct and palpable a contradiction. Borneo 



54 



BAGEHOT 



and New Guinea, as alike physically as two distinct coontf 
can be, arc :K>oIogicsi]]/ a& wide as the poles asunder; whi)€ 
Auttralii, with iti dry winds, lis open ptaios, its stony deserts^ 
aiid its temperate climate, yet proHnces birdi ard f]tudrupedfl 
which are closHy related to those iiiTiabiiin]? the hot. damp] 
laxufiaDt forests which everywhere clothe the plains and movn-l 
tains of New Guinea." Tlial is, we have like living ihing* in 
the most dissitmlar situations, and uahke living thinffs in the 
most similar ones< And thoogti some of Mr WaRaoe'^ 
speculations on tthnolo^ may be doubtful, no one doubts 
that in the archi;)eUgo he h^ sttiilied i^o well, as ofien else- 
where in the world, though rarely with such marked emphasis^ 
wc find !tke men in contrasted places, and unlike men in rc^ 
sembling places. Climate is clearly not the force which makes 
naiionH, for it does not always make them, and ihey are oftrd 
made wiihout it. 

The problem of " nation-making " — lliat is. the exptanatioa 
of the origin of nations such as we now $cc thein. and such s4 
in historical time* ihcy have always been — cannot, as it scem^ 
to me, be solved without separating it into two : one, tlie mate* 
ing of broadly mnrked races, such as the ncgrn or the red man 
or the European; and the second, tlial of making the minor 
diRtinctiom;, such as the diMinrtion between Spartan and Aihe^ 
nian, or between Scotchman and Englishman. Nations. M 
wc sec them, arc (if my arguments prove Iruc) the produce of 
two great forces: one (he race-makinc force which, whate\-ei 
it was, acted ir anlic|uity, and has now wholly, or ahnost, given 
over acting: atid the other the nation-making force, properlf 
ao called, which is acting now as much as it ever acted, anq 
creating as mtich as it ever created. 

The strongest bght on the great caiues which have formed 
and arc forming nations U thrown by the smaller causes which 
are altering nations, llie way in which nations change, gern 
eratton after generation, is exceedingly curbtis, and the change 
occasionally happens when it is very hard lo account for. Some- 
thing seems to *teal over -lOcicty. say of the Regcocy lime aa 
compared with (hat of the present Queen, If we read of 1if« 
at Windsor (at the cottage now pulled down), or of Bond 
Street as it was in the days of the Loungers (an extinct rnee)j 
or of St. James's Street a« it wss when Mr Fox and his party 



PHYSICS AND POLITICS 



Si 



tried to ni^kc *' p^jlillcal capital " out of the diMipAtion of an 
licir apparait, wc »cciii to be reading not of the places wc ttnow 
to wcUt but ol very dutant and unlike localities. Or let any- 
one thitik ho\v Iit11« i» the external change in Kngland between 
the age of Eli/abetli and the age of Anne compared with the 
national change. How few were the aherations in phyitical 
condition, how iew (if any) tlic scientific inventions affct!ting 
human Itfc which ihe later jicriod poR^essed, but the earli^ diO 
not ! How hard it is to say what has caused the change in the 
people 1 And yet how total is the contrast, at leatrt at first 
»glitl In passing from Bacon to Afldtsoni from Shakespeare 
lo Pope, we seem to pass into a new world. 

In itK- first of tJie^^.' e«say« I spoke of the mode in whidi 
the literary change happens, and i rccnr to it because, litera- 
ture heing narrower and more deliniie than hfe, a change in 
the less serves as a model and illiutration of the diangc in the 
greater Some writer, as wa^ explained, not necessarily a very 
excellent writer or a remembered one, hie on somethini; which 
suited the public taste : he went on writing, and others imilated 
hini, sind they so accustomed their reader!^ to that style tlial 
they woulJ hear nolhitig ehe. Those readers who did not 
like it were driven to the works of other ages and other coun- 
tries — had to c!e»pi»e Ihe " trash of the day," £u they would 
call it. The age of Anne patnr>nized Steele, the beginner of the 
euay, and Adfliscm it^t perfeder, and it ne.^lt-rtLHl writings in 
a wholly discordant bey. I have heard that the founder of 
the "Times" wa* a*ked Iiow all the articles in the "Times" 
came to ^ecm to be written by one man. and that he replied, 
*' Oh, there is always some one best contributor, and all the 
rest copy." And this is douhllcss the true accourt of the man- 
ner in which a certain trade-mark, a curious and indefinable 
unity, settles on every newspaper. Perhaps it would be pos- 
sible to name the men who a few years since created the " Sat- 
urday Review " style, now imitated hy another and a yoitng«r 
race, but when the style of a periodical is once formed, the 
eontimiance of it is preserved by a much more despotic im* 
pulse than the tendency to imiiatton,*— by the sclf-imcrest of 
the edittjT, who acts as triLstec, tf T may ^ly Mt, for the sub* 
sciiUers. Tl»c regular buyers of a pcriodiceJ waiit to read 
what they have Ikcu used to read — the same sort cf thought. 












J ^.*.-^ 



K'f',r' *\."::.. '.7 "*:.*'. \':Trr.%r. '..■:.! tt v£;n» ar.i the coctHnc will 



PHYSICS AND POLITICS 

not spread. I do not want to mustralc this matter from rtli^- 
ioua history, Cor 1 should be led far from my purpose, and after 
all I can but teach the commonplace that it is the life of teachers 
which i« catching, not their tcnct£< And again, in political 
matters, how qnickly a leading statesman cui change the tone 
of the community ! Wt anr most of U5 earnest with Mr Glad» 
stone; we were most of us not so earnest in the lime of Lord 
Falmcrstcn. The change is what every one fecU, though no 
one can define it- Each predominant mind calU out a cor- 
j"csponding sentiment in the country: most feel it a little. 
Those who fetl it much express it much; those who feel it ex- 
cessively express it excessively; those who di&sent are silent* 
or unheard. 

After such great matters as religion and politics, it may 
fteem trifling to ilhistrate the subject from little boys. But it 
is not infling:. The banc of philosophy is pomposity; people 
will not see that small things arc the miniatures of greater, and 
it seems a lo&s of abstract dignity to freshen their minds by 
object lessons from what they know. But every boardiug- 
achool changes as a nation dianges. Most of us may remem- 
ber thinking, " How odd il is that this ' half ' should be so un- 
like last * half:' now we never go out of bounds, last half we 
xvere always going: now we play rounders, then we played 
prisoner's base;" and so through all the easy Itfe of that time. 
In fact, «ome ruling spirits, some one or two ascendant boy>, 
had left» one or two others had come ; ami so all was changed. 
The models were changed, and the copies changed ; a different 
thing was praised, and a difTcrcnt thing bullied, A cunous 
case of the same tendency was noticed to me only lately. A 
frier^d of mine — a Liberal Conservative — addressed a meeting 
of workingmen at Leedi, and was much pleniied at finding his 
characteristic, and perhaps refined points, both apprehended 
and applauded. " But then,*' as he narrated, ''up rose a 
blatant Radical who said the vcr>' opposite things, and the 
workingmen cheered him, too, and <]utte equally/* He was 
puzzled to account for so rapid a change. But the mass of 
the meeting was no doubt nearly neutral, and, if set gc^ngi 
quite ready lo applaud any good words without much thinking. 
Tlic ringleaders changed. The radical tailor stane<3 the radi- 
cal cheer ; the more moderate shoemaker started the moderate 




BAGEHOT 



cheer; and the ^cat bulk followed suit. OnJy t 

<AS^ wer« stieat, and an it>±oIutc contract wa» in tea tniiui^ 

pmcRtcd by the same denicnts. 

Tht- intih U tliat the properuity of man to imitate what' 
before bim b one of the strongest parts of his nature. Al 
one sign of it is the gfrcat pain which wc feel when oar bntt 
tioa his been unsuccessful. There i$ a cynica] doctrine tli 
most ami wotdd rather be accused of wickedness than ] 
gpucUme, And this is but another way of laying that the b) 
copying; of predominant manners is felt to be more of a dis^rsi 
than ruininon considerittion woul<l account for m being, stn 
gaucherU in all but extravagant cases is not an oSence again 
rchgkm or morals^ but is «>mply bad imitatton. 

We must not think that this imitatioit is voluntaiy, or em 
conidous. On the contrary, it tiat iti scat n&aiiily in very d 
scure pans of the mind, whose notions, so far from ha\i| 
been consciuufJy pmduccd. are hanUy fdt to exist; so t 
hotw beiiiff cuncetvcd bcfureJund, are not even felt at tlie ttu] 
llic main scat of the imitative part of our nature is our bclsi 
and the causes predisposing us to believe this, or disanclini^ 
us to believe that, arc amonf^ the obscurest parts of our oatui 
But OS to the itnitaiivc future of crcctultty ihcrc can be no dotil 
In " Hothen " there is a capital description of how eirer>- sq 
of European resident in the Ea^t. even the i;hrewd merdia 
and " the po£t -captain/' with hi^ hrif^ht. wnWefnl eyes of co4 
mercc, cotncs soon to believe in witchcraft, and to assure yo 
in contidenre, that ttiere "really is something; in it'* He h 
never seen anythiuj; cnnvincinj; himBcU, but he has seen thq 
who have seen those who have seen those who have seen. ] 
fact, he has lived in an atmosphere of infectious belief, and ] 
has inhaled it. Scarcely any one can help yielding to the cQ 
rent infatuations of his sect or party- For a short lime — il 
eome fortnight — ^hc is resolute: he argues and objects; bt 
day by day, the poison thrives, and reason wanes. What ] 
hears from his friends, what he reads in the party organ, pfi 
duces its effect. The plain, palpable conclusion which evfl 
one around hina l>eVieves has an influence ytA greater and nm 
subtle; that conchiaioti sccnn so solid and unmistakable; t 
own good argumcnis get daily more and m>ore I" 



PHYSICS AND POLITICS 



Soon the gravest sage fthart* the folly of the part/ with which 
he acts, and the sect wilh which he worships. 

In true metaphysics I believe ihat, contrary to common 
opinion, unbelief far oflener neeils a reason and rrqiiircs an 
effort than belief. Naturally, and ii man were made according 
to the pattern of the lojjician*, he would say, '' When I see a 
valid argument 1 will believe, and till I see such arf^ument I 
will not believe." Bnl, in fad, ever^- idea vividly before U6 
fioon appears to us to be true, unless wc keep up our percep- 
tions of th<! arguments which prove it untrue, and voluntarily 
coerce our minds to remember its falsehood, " All clear ideas 
arc true," was tor ages a philosophical maxim, and though no 
mnxiiii can be more unsound, none can be more exactly con-* 
formablc to ordinary human nature. The child resolutely ac- 
cepts t;very idea which pa»«e» through its brain as tnic; it has 
no disttinct conception of an idea which is strong, brigitt, and 
permanent, but which is false, too. The mere presentation of 
an idea, unlesa we arc careful about it, or unless there is within 
some unusual rcsUtancc, makea us believe it ; and this is why 
the belief of others adds to our belief so quickly, for no ideas 
Bccm so very clear as Those inculcated on us from every side. 

The fi:rave part of mankind are quite as liable to the-'W imi- 
tated beliefs as the frivolous part. The belief of the money- 
market, which i* mainly composed of fixave people, i* as imita- 
tive as any belief. You will find one day everyone enterpris- 
ing, enthusiastic, vij^orous. eager to Iniy, and cap^r to order: 
in a week or so you will find almost the whole society depressed, 
anxious, and wanting to sell. If you examine the reasons for 
the activity, or for the inactivity, or for the change, you will 
hardly be able to trace them at all, and as far as you can trace 
them, they arc of little force. In fact, these opinions were not 
formed by reason, hut by mlmfcTy. Something happened that 
looked a Utile good, on which eager, sanguine men talked 
loudly, and cummtni pcuplc c-mghi their tone. A little while 
afterwards, and when people were Eircd of talking this, some- 
thing also happened looking a little bad, on which the dismal, 
anxious people began, and all the rest followed their words. 
And in both cases an avowed dissentient ie set down as 
"erotchety/' " If you want/' said Swift, " to gain the reputa- 
tion of a sensible man, you fthculd be of the opinion of the 



6q 



BAGEUOT 



person with wlwm Utv the lime beinjT y^^ Are convfrfting." 
There is much q\ii€l intellectual persecution among: " reason- 
able" men; a cautious person hesitates before lie telU thei 
anything new, for if lie ccts a name for sueh thinijfs he will be 
called " flighty/' and in times o( dccUion he will not be attended 
to. 

In this way the infection of imitation catches men in their 
most inward and intellectual part— their creed. But it also 
invades men — by the most bodily part of the mind— so to spealc, 
— the link between soul and body — the manner. No one need* 
lo have this explained ; we all know how a kind of subtle in- 
fluence make& us imitate or try to imitate the manner of those 
around us. To conform to the fashion of Rome — whatever 
the fashion may be, and whatever Rome vrc may for tlic tjmc 
be ai — IS among the most obvioua needs of human nature. Gut 
what is not so obviouii, though at: certain, is that tbe influence 
of the imitation goes deep as well as extends wide. ''The 
matter/' as Wordsworth *ay«, "of style very much comes ot;t 
of the manner" ff yoti will endeavor to write an imttAtiotl 
of the thoughts of Swift in a copy of the style of Addison, yon 
will find that not only b it hard to write Addison's style, from 
its intrinsic excellence, but also that ihe more you approach 
to it the more you lose the thouijlit of Swift. The ea^er pal-, 
sion of the meaning beats upon the mitd drapery of the words. 
So you could not express the plain thoaf*bts of an Englislimaii 
in the grand manner of a Spaniard. Insen&ibly, anJ as by a 
sort of magic, the kind of manner which a man catches eats 
into him, and makes him in the end what at first he only seems. 

TWs is the principal mode in which the greatest minds of 
an age produce their effect. They set the tone which others 
take, and the fashion which ollicrs use. There is an odd idea 
that those who take what U called a " sclentirtc view " of his- 
tory need rate lightly the influence of individual character. It 
would be as reasonable to say that those who lake a scientific 
vvew of nature need think little of the influence of the sun. On 
the scientific view a great man is a great new cause (com- 
pounded or not out of other catise*, for 1 ^o not here, or else- 
where in these papers, raise the question of free-will), hut. any- 
how, new in all its effects, and all its results- Great modds 



1 



PHYSICS AND POLITICS 



6t 



for good anfl €vit somrttmes appear among iHMt, who follow 
them cither to improvcm^^nt or fkgraciation, 

I am, I know, ver? long and tedious in setting out thiit: but 
I want to bring home to others what every new observation 
of sociel> brings more and more freshly to myself — that this 
unconscious imitation and encovrageinent of appreciated char- 
acter, and this c<iually unconscious shrinking from and perse* 
cution of disliked character, is the main force which moulds 
and fashions men in society as we now see it. Soon I shall try 
to show that the more acknowledged causes, such as chani^e 
of chmate, alteration of political institutions, progress ol 
science, act principally through this cause: that they change 
the object of imitation and the object of avoidance, and so work 
their effect- But first I must speak of the origin of nations— 
of nation-making as one may call it — the proper subject oF 
this paper. 

The process of nation-making is one of which wc have ob- 
vious examples in the most recent times, and which is goirg 
on now. The most simple example is the foimtlalion of the 
first State of America, say New England, which has such a 
marked and such a deep national character. A great number 
of persons agreeing in fundamental disposition, agreeing in 
religion, agreeing in politics, form a separate settlement : they 
exaggerate their own disposition, teach their own creed, set 
Dp their (avorile government; they discourage all other dis- 
positions, persecute other beliefs, forbid other forms or habits 
cf government. Of course a nation so made will have a sep- 
arate stamp and mark. The original settlers began of one 
type; they sedulously imitated it; and (though other causes 
have intervened and disturbed it) the necessary operation of 
the principles of inheritance has transmitted many original 
trails still unaltered, and has left an entire New England char- 
acter — in no respect unaffected by its first character. 

This case is well known, but it Is not so that the same process, 
in a weaker shape, is going on in America now. Congeniality 
cf sentiment is a reason of sclct^tlon and a bond of cohesion 
in llie " West " at present. Competent observers say that 
townships grow up there by each place taking its own religion, 
its own manners, and its own ways. Those who have the»c 
morals and that religion go to that place, and slay there; and 



PHYSICS AND POLITICS 



63 



propensity to innfation is among civilized men, we must coa- 
ccive it as an impulse 01 which Oicir riimU have t»ccn partially 
<icaiiclc(J. Like the far-seeing sight, the infallible hearing, the 
magical scent of the savage^ it 19 a half-lost power. It was 
strongest in ancient times, and h strongest in uncivilized re- 
gions. 

Thi* extreme propensity lo imitation is one great rcafion ot 
the amazing sameness which every observer noticG:> in savage 
nations. When you have seen one Fucgiaii, you Ii^ive seen all 
Fuegi^ms — one Ta^manian, all Tasmanians. The higher aav- 
agea, ae the New Zealanders, are less uniform ; they have more 
of the varied and compact structure of civilixed nations, bccaui« 
in other respects they are more civilised. They have greater 
menial capacity — larger storea of inward thought. But mtich 
of the same mcnolonoufi nature cittigrs to them, too. A savage 
tribe resembles a herd of gTtfgarions beasts; where the leader 
goes they go, too : they copy blindly his habits, and thus soon 
become that which he already is. For not only the tendency, 
but also the power to imitate, is stronger in savages than civil- 
ised men. Savages copy <]iiicker, and they copy bcllcr Cliil- 
drcn, in the same tvay, are bom mimics; they cannot help imi- 
tating whal comes before them. There i* nothing in ihcir 
minds to resist the propensity to copy, Kvery educated man 
has a large inward supply of ideas to which he can retire, and 
in which he can escape from or alleviate unpleasant outward 
objects. But d savage or a child hai no resource. The ex- 
ternal movements before it arc its very life; it lives by wlial it 
sees and hears. Uneducated people in civilixcd nations have 
vcstigcji of the same condition. If you send a housemaid and 
a philosopher to Si foreign country of which neither know* the 
hngimgc. the chances are that the housemaid will catch it be- 
fore the philosopher. He has something else to do ; he can livn 
in hfn own thniiGrht«- Put unless she can imitate the utterances, 
she it loftl : Abe has no hfc till she can join in the chatter of the 
kitchen. The propensity to mimicry, and the power erf 
mimicry, are mostly strongest in those who have least ab- 
stract minds. The most wonderful examples of imitation in 
the world arc perhaps the imitations of civilized men by sav- 
ages in the use of martial weapons. They learn the knack, as 
q>ortsmcn call it. with inconceivable rapidity. A North Amer* 



f^ 





as wBf 

vtAasdie 

% mr die povcr of IdD- 




nd. indeed, of ill 

ctjL-7 X> ar-iffn^ =ai »^ ir s; one ir ba xation derate 
i-^-iir TIE a; ^arsff'TD? rag j ng aPL noprs adKsrtnbc Voy 

& imnE^imcitt from dK 
injtr viic ms old, or began 
via: vx^ itrm JT mr^Lizrr iinis one i£ cobTvaied cocmtries 
vT "Tspr-: iazr i»ersrtt as ttstw^-^i*: ail7 irr ^b own adioos, 
so: ar n.i: Nfli;^^ rr TimiL ;e Kitrv^i^. ^ac Ac nttsoooduct 
:x nittrrv =xr rcrn^ £:'mt nt tSttt. Gxnt xms b an iiKlmdital 
laitr. rncs^mfTT re m:«r= muc Jeieviu^ id ilv dbooscr. But 
It ^ETri %^T^ T*E «^ ;c Tus jnasii^c of ^s rihe b cooceiTed to 
=;ti-f &I z-tk r-i>: rm»^tt=% ir :^ sai£ cs pen£ir god, to cx- 
p-"tsr il li*; r^::^ rr T^i^stttc* r-:nr ten^ Tbcre is do " Hmit* 
ci tihiiiri ' :r t&- >nJirciL itcinfis :!C liac tnne. The early 
rr^ ;x str»,Tt is i TTth£:i>^TC? wrme^im. zm «)tkli a rash mem- 
*-cr bt a *:3i5;rE nrcwc^ -axy Irini: loc nnn. If the state is 
ccocerr^ tirrs. rrusr^ont beranes wk^cd. A pcnnittcd 
C'fv-jn.^r. frjcr rV rT.T^ ?c rt r r-£ nr^aaar** becomes simply 
:.^">. I: ii I s*r^,fj^ -.- rV; h£rnirr>fs? zc d>e greatest namber 
It i& i^*j.^ft-:r£: .^r»; '.T>^^"?r;itl Jrr £ r^roenis pleastirc or a 
5:'^r:i «>.-—, :.- !v--t-^ t^rrfSV x^~ imrtrimble calamity upon 
e'.;. No or^f ^-r." ::>rr ^rr^irrsriDi rrf= Athenian history who 
ionr?:s :h:? :c« o: :b- .^Ji vrc^^L t5so:u:b Athens was, in com- 
parison w::h oib^T^ i n6:<;il i^i soeTOca! place, ready for 
new i-icw<, arrd fr^^^ rtve: c*!i prfj^^i^ces. XNTien the street 
na!ucs cf Her:*:e* w^rrr rr^n^la:^ iH ihe Athenians were fright- 
ened and iuriou? : ih^y ihor j:*:: iha: ihey should all be ruined 
because some one haJ rrunlari?^ a g^'s image, and so o£Fended 
him. Almost ever>' <Iftail of lite in the classical times — the 
times when real histon- opens — was invested with a religious 
sanction : a sacreJ ritua! rei^latevl human action ; whether it 
was called '* law *" or not, much of it v^^as older than the word 
" law ;" it was part of an ancient usag-c conceived as emanating 
from a superhuman authority, and not to be transgressed with- 
out risk of punishment by more than mortal power. There 



PHYSICS AND POLITICS 



was 5uch a sdidarite then between citiiens ihat each might be 
led to |><!riccuco ihe oilier for fear vf harm lo himself. 

It may l>c said that these two tendencies q( the tmrly worW^ 
that to persecution and that to Itiulation'-^nust conflict; that 
the imitative Impul&e would lead men to eopy what is dcw» 
and that persecution by traditional habit would prevent their 
copying it. But In practice tlie two tendencies eo-opcTatc. 
There is a strong tendency to copy the most common thing, 
and that common thmg is the oM habit DaiJy imitation la 
far oftenest a conservative force, for the Tno*t frequent models 
are andenl. Of course, however, something' new 15 necessary 
for every man and for every nation. We may viti&h, if we 
please, that to-morrow shall be like to-day, but it will not be 
like it. New forces will impinge upon tis ; new wind, new rain, 
and the light of another sun ; and we must alter to meet them. 
But the persecuting habit and the imitative combine to injure 
that the new thinj^ shall be in the old fashion; it must be an 
■Iteration, but it shall contain as little of variety as possible* 
The imitaiive impnise tends to this, because men most easily 
imitate what their minds are best prepared for, — what is like 
the old, yet with the inevitable minimum of alteration; vrbat 
Utrows tliem least out uf the old path, and puzzles least tlieir 
minds- The doctrine of development means tliis, — that in 
imavo:dable changes men like the new doctrine which is mort 
of a "preservative addition " to their old doctrines. The imi- 
tative and the persecuting tendencies make all change in early 
nations a kind of selective conservatism, for the most part 
keeping whst is old, hut annexing some new but like practice 
^an additional turret in the old style. 

It 15 this process of adding^ suitable things and reiecting 
discordant thinjrs which has raised those scenes of strange 
manners which in every part of the world puzzle the civilize*! 
men who come upon them first. Like the old head-dress of 
mountain villages, they make the traveller think not so much 
whether they are good or whether they are l>ad, as wonder 
how anyone cOLild have come to think of them : to re^rd 
them as " motutrositics,'' whieh only some wild abnormal in- 
teUecl could have hit upon. And wild and abnormal indeed 
would be that intellect if it were a single one at all. But in 
faa such manners arc the growth of ages, like Roman law or 

s 



66 



BAGEHOT 



the British constitution- Mo one mui->no one gnicratiOQ — 
coufd have thought of them,— only a verier ol genn-ations 
trained in the habits of the last and wanting something akin 
to rach habit.<t, rouM have devised them. Savages pet their 
fovoriie habits, so to say. and preserre them as they do their 
lavorjte animab ; ages are rc<iuircd, but at last a national char^ 
actcr is formed by the confluence of corfi:cniaI attractions and 
accordant detestations. 

Another cause helps. In early states of civilizalion there 
is a great oiorlaliiy of infant life, and this is a kind of selection 
in itsell — the child most lit to be a good Spartan is moat likely 
to survive a Spartan childhood. Ihe habits of the tribe are 
cnfcKed on the diild; if he is able to catch and copy them he 
lives; if he cannot he dies. The imitation which assimilates 
early nations continues through life, bm it begins with suitable 
forms and acts on picked specimens. 1 suppose, too, that 
there in a kbid of parental selection operating in the s^mc way 
and probably tending to keep alive the sanic individuals. Hiose 
children which gratified their fathers and mothers mo«t would 
be most tenderly treated by them, and have the beat chance to 
live, and as a rough rule their favorites wotild be the children 
of moat " promise," that is to say. those who seemed most likely 
to be a credit to the tribe according to the kadtrg tribal man* 
ners and the existing tribal tastes. The most gratifying child 
would be tbc best looked after, and the most gratifying would 
be the best specimen of the standard then and there raised up. 

Even sOt I think there will be a disinclination to attribute so 
marked, fixed, almost physical a thing as national character 
to causes so evanescent as the imitation of appreciated habit 
and the persecution of detested habit. But, after all. national 
character is but a name for a collection of babits more or less 
universal. And this fmllrtlion and this persecution In long 
generations have vast phyMcal effects. The mind of the parent 
(as wr speak) pawe$ somehow to ihc l>udy uf the child. The 
transmitted " eomclbing " is more affected by habits than it 
is by anything else. In time an ingrained type is sure to be 
formed, and sure to be passed on if only the causes I have 
specified be fully in action and without impediment. 

As I have said, I am not explaining the origin of races, but 
of nations, or, if you like, of tribe*. T fully admit that no imi- 



PHYSICS AND POLITICS 



«J 



taiion of predominant manner, or prohibitions of detested 
nuL^ncr:^, will of themselves account for the troadcst contrasts 
oC huniAti iiMurCn Such means wuulO no more make a Nc^o 
out of a Brahmin, or a Red-man out of an Enc:)iabn:an, tban 
wa.shfng would change the ^pots of a leopard or the color of 
an Ethiopi^tn, Some more potent cauGes muat co-operate, or 
we should not liikvc the«e cnormouR diverfittiet. The minor 
causes I deal with made Greek to differ from GreeV, but they 
did not make the Greek race. We cannot precisely mark the 
limit, but a limit there clearly h. 

If we look at the earliest monuments of the human race, 
ire find these race*character* as decided as the race-characters 
now. The earliest paintings or sculpture* we anywhere have 
give us ihe present contrasts of dissimilar typca as strongly 
as present observation. Within historical memory no such 
differences have been created as those between Negro and 
Greek, between Papuan and Red Indian, between Esquimaux 
and Goth, We slart with cardinal diversities; we trace only 
minor modifications, and wc only sec minor modifications. 
And it h very hard to see how any number of such modifica- 
ttons could change man as lie is in one race-type to man as he 
ia in some other. Of this there are but two explanations; one, 
that theie great types were originally separate creations, as 
they fitand — that the Negro was made so, an*! the Greek made 
so. But this easy hypothesis of special creation has been 
tried so often, and has broken down so very often, that in no 
cj**e, prnbably, do any great nmnher of careful infjiTirers very 
firmly believe It. They may accept it provisionally, as the best 
hypothesis at present, but they feel abotJt it as they cannot 
help feelinu as to an army which has always been beaten ; 
howevei strong it seems, they think it wtU be beaten again. 
What the other explanation is exactly I cannot pretend to say. 
Possibly as yet the data for a confident opinion are not before 
Ds. But by far the most plausible suggestion is that of Mr. 
Wallace, that these race-marks are living records of a time 
when the intellect of man was not as able as it is now to adapt 
his life and habits to cliange of region ; that consequently early 
mortality in the first wanderers was beyond conception great ; 
that only those (so to say) haphazard indiviiluals throve who 
were born with a protected nature — that is^ a nature suited Co 




BACEHOT 



ttic climate and the couniry, fitted to u^c its advantages, 
shicldcii from it9 natural diAcaSd. According to Mr. Wallace, 
tlic Negro U ihc remnant of ihc one variety of man who witlioul 
more acIaptivene^K than th<-n existed could live in interior 
Africa. Immigranu died off till the^ produced him or some- 
thing like him, and so of the Eftqiiimaux or the American. 

Any protective habit also struck om in such a time would 
have a far greater effect than it could atteru-ards. A gregarious 
tribe, whose leader was id some tmitable respects adapted to] 
the rtruggle (or life^ and which copied its leader, would have 
an enormous advantage in the struggle for lile. It would be 
sure to win and live, for it would be coliercnt and adapted, 
whereas, in comparison, competing tribes would be incoherent 
tnd unadapted. And I suppose that in early limes, when 
those iKKlics did not already contain the records and the traces 
of endless generations, any new habii would more ea.Mly fix 
its mark on the hcriublc elemmt, and would be transmitted 
mure easily and mure certttinly. In ^ucli an agc^ n^n lieing 
softer and more pliable^ deeper race-marks would be more 
easily inseribcd and would be more likely to continue legible. 

But I have no prirtcticc to spcalc on such matters ; this paper* 
as I liave so often explaimrd, deuU with nation -rt^iking and not 
wfth rare-making. I assume a world of marked vsrtetic^ of ' 
man, and only w;tnt to show how ]cf« marked contrasts would ' 
probably and naturally arise in each. Given large homo ' 
gcneous pof>ijlaiiorJs, some Negro, some Mongolian, some 
Aryan, I have tried lo prove how small contrasting groups 
wouM certainly spring up within each — some to last and some 
lo perish. These are the eddies in each race-stream which 
vary its suKace, and arc sure to last till some new force changes 
Ihc current- These minor varieties, too, would be infinitely 
compounded, not only with those ol the same race, but with 
those ol otliers. Since Ihc beginning of man, stream has been 
s thousand dmcs poured Imo Mream — quick tmo sluggish, 
dark into pidc — and eddies <md waters have taken new shapes ' 
and new colors, alFedcd by what went before, but not re- 
sembling it. And then on the fresh mass, the old forces o(j| 
composition and elimination again beg^n to act, and create 1 
over the new surface another world. " Motley was the wear '* '' 
of the world when Herodotus first looked on it and described 



PHYSICS AND POLITICS 



69 



it CO us, and tluij, as it seeing to mc, were its varying colon 
produced. 

1( it be (houg?it that I have madt out that thcM forces of 
imitation aod diniinalion be th<; main ones, or even at all 
]>ou'erfuI oncSj in the formation of national character^ it will 
ioltvw that the effect of ordinary ageacies upon that characfer 
wilt be more ea^y to understand than it often ^eenia and ia put 
down in boolcs. We gtt a notion that a change of government 
or a change of climate acts equally on the man of a nation, 
and so arc we puzzled — at leasts I have been puzzled — to con- 
ceive how tt acts. But such changes do not at first act equally 
on all people in the nation. On many, for a very tong time, 
they do not act at all But they bring out new qualities, and 
advcrtiBc the effects of new habits. A change of climate, siy 
from a depressing to an invigorating one, so acts. Everybody 
(eels it a little, but the most active feci it exceedingly. They 
labor and prosper, and their prosperity invites imitation. Just 
50 with the contrary change, from an animating to a relixing 
place, — the naturally lazy look so happy as they do nothitig, 
thai the naturally active arc corrupted. The effect of any con* 
ftiderahle change on a nation is thus an intensifying and ac- 
cumulating effect With its maximum poi*'ct it acts on some 
prepared and congrnial iiidtviduaU; in tficni it i^ seen to pro- 
duce allractivc rcsdts, and then the habits creating those re- 
sults arc copied far and wide. And, an I believe, >t h in this 
simple but not quite obvious way, that the process of progreas 
and of degradation may generally be iteen to run. 



CHAFTEH IV 

5ATI05«£AKISG 

ALLdiflones a* m die primiilvc mas nmA be very imca^ 
faiff, Gf^uttniff die doctrine ai cvdndou to be rme, "i^yg 
onift be hdd co h^ve a commoo ancesmr with die rest at 
die Pnmatea;. But dim we do oot know whar dieir .-mnmiTw 
Aiccstor was lUcc ^evcrwearetohaveadi^mcrcancepiiaaac 
fasm, it can only be aoer long^ jears a£ nm i r e researches and die 
bfaonons accnmolatiQii of m^rmr^a\9 icamely die be^mmn^ ut 
wfaidi now exxsta- Bat vfrncr has zireadv done samoiiing iar 
110.. Ic cannot yet teH as cur &r^ ance5ror. but it can leH as mncix 
of an ancestor very bi^ op tadie line of t^t^vt^rrr We cannct g^ 
Ae teast idea Cevea npon die foil assampdon of die dieory of 
evolution) of the first man; bet we can get a very ODlerable idea. 
of the Paub^jrc-bistoric man, if I may ao aay — of man as be ex- 
isted v>me abort dmc I'aa wc now reckon abortnesst. Kune ten 
thousand y-^ar^* before histcry be^^an, IzTe£i:;j:irGra -rhcse 
^ntfT.es^ ^rA rtilig'cr.ce can har'ilv be acrpassed — :^ir J-zhn Lnb- 
bock ar.d \fr. Tvlor are rhe chieb airccaj liieir — cave collected 
30 much and explained 3<i sincb diat diev ba^c lefc a siriy vivji 
result- 
That Tf-^'ilz U. or s*?(rms to rne to be. if I rr-ay scm it up in mv 
own w^.rdi, tbat :h<* modem pre-h'Utcric iren — those ci whoci 
we have collected so many remains, and to whom are ■!::« the 
ancient. --.tzAn^t customs of historical nations I'd-.e fossil Cuistoms, 
we m-tfh* call them, for verj- often rhey are stnck" by themselves 
in real rivil;xa!:on, ard have no more pan in it than the fossils in 
the 5urroi;ndinff !itrataj — pre-hi^toric men in this ^ense were 
""Wvaif^q 'Aifhout the fixed habits of savages:" that is. that, like 
Mvafij'^^, fhey had itron^ passions and weak reason: that, like 
wvajfe*, fh'7 f>referred short spasms of greedy pleasure to mild 
and ^'('laMe enjoyment; that, like sat-ages. they could not post- 
pone the prei^ent to the future; that, like savages, their ingrainei/ 

70 



PHVSICS AND POLITICS 



£«ti£e of moraliry was, to say the best of it, nidimentaTy and de* 
(ective, Bui that, unlike present savages, ihey Jiad not complex 
cttstoms and singular customs, odd and M^^tningly incxplioablc 
niles g^ding all human life. And die reasons for thcs^ con- 
clusions as to a race too ancient to leave a history, but not too 
ancient to liave left mcmonalSt are briefly these: — Fii^t, that we 
cannol imagines strcnK reason without attainments; and. plain- 
ly, pre-htstonc men had i>ot attainments. The)' would never 
have lost tbcm if they had. It is utterly incredible that whole 
races of men in iht most distant parts of the world (capable of 
counting, for they quickly learn to count) shoald have lost the 
art of counting, it they had e\'er possessed it. It is incredible 
that whole races could lose the elements of common sense, the 
ekineniary knowledge as to tilings material and things mental — 
the Bcnjaniin Franklin phlkteopby — if tlity had ever known it. 
Without *omc data the rcasonmf faculties of man cannot work. 
Aa tx>rd Bacon said, the mind of man must '* work upon MufT/* 
And in the ab^nce of the common knowledge which (rains us in 
the elements of reason as far as we are trained* they had no 
" stuff." Even, therefore, if ihe^r passions were not absolutely 
stronger tlian ours, relatively they were stronger, for their rea- 
lon was weaker than our reason. Again, it is certain that races 
of men capable of postponing the present to the future (even if 
such races were conceivable without an educated reason) would 
have had so huge an advantage in the struggles of nations, that 
DO others would have st:rvived them. A single Australian tribe 
(really capable of such a habit, and realty practising it) wtMild 
have conquered all Australia almost as the English have con- 
quered it. Suppose a race of long-headed Scotchmen, even as 
ignorant as the Australians, and they would have got from 
Torres to Bass*s Straits, no matter how fierce was the resistance 
of the other Australians. The whole territory would have been 
lheir:t. an;l tlieifs only. We cannot Imagine hinumerable race^ 
to liavc lo«t, if thcT had once had it, the most useful of all habit» 
of mind — the habit which woul<I most insure their victory in the 
ince&sant contests w*hich, ever since they began, men have car- 
ried on with one another and with nature, the habit, which In 
historical times h&s above any oiher received for its pouession 
the victory in thrvtr roniesift. Thirdly, wV may he sure that the 
morality of pre-ltistoric man was as imperfect and as mdimentary 



7« 



BACEHOT 



athiirawHL Tlie tame fort of argameiits ^>ply to a self-rc- ' 
fCniBaifffBorafity of ahj^ rypeaaapplytoaaeitJcd postpooc- 
mcnt of the pnseot to the htturt apon frr^junda recantmended 
fay ar]pum«nt Bo<h are so invoivvd in cfifficolt intcDcclnal iikss 
(aod a h^k fnonlity the man of tbc mo) tbat it ts all bot ia* 
pOMible to concdvc their exifltacc among people who coold not 
coom more than five — who had only tbc groncst and f^^iptrff 
lonnft ol language — who had oo kind of •mrmag ac naxfio^^ 
who, ai it baa betu roughly ujd. had " no poa and oo pans*— 
who could tndcvd make a fire, bot who could hardly do mf 
Itiiag ctoe— who could haidlj command nature any Emtbtr, Ex- 
actly abo tike a ahrewd f2i-&tghietlnc3&, a sound owrality ixti ele* 
nKntiry tiatuaction^ i> br loo useful a gi£t to the homan race 
cYcr to have been tfaorougbly lo^i when they had ooce attained 
iL But innuroenblc vav^es have \ou all but completely many 
of the mora! nile« moft conducive to tribal weHire, Ther« afe 
many navagex who can hardly be «ajd to care for human tife — 
who have fcarcdy the family feelings — who are eager to kill all 
old people (their own parents iochided) as toon as they get old 
and become a bcrden — wiio have scarcely the sense of truth-* 
who, probably from a constant tradition of terror, wish to con* 
ceal everyihif^, and would (as observers say) " ratlier tie than 
not "—whose Mcaa of marriage arc so vague axKl sl^ht that tbc 
Idea, " contimntal marriage" (in whkh all the women of the 
tribe are common to all the tnen. and them only), has been in- 
vented to denote it Now if wc consider how cohesive and bow 
fortifying to human societies are the love of truth, and the tore 
of parent!^, and a stable marriage tie, bow sure such feelings 
would be to make a tribe wtiich }KJue%»ed ihem wl>u(ly and sooti 
victorious over tribes which were destiiulc of them, wc ihM be- 
gin to comprehend ho^' unlikely it U that va^t masses of tribes 
throughout the worid should have lost a]] these moral hdps to 
conquest, not to speak of others. If any reasoning is safe as to 
prc-lujatoric man. the reason which imputes to him a deficient 
tense of morah u safe. For all the argitmmis suggested by all our 
ble researches converge upon it. ard concur in teaching it. 

Kcir on this point does the case rest wholly on recent invevti- 
gations. Many years ago Mr. jowetl said ttiat the classical re- 
ligions bore relics of the "ages before morality." And this is 
oi^y one of Kveral cases in which that great thinker has proved 



PHYSICS AND POLITICS 



33 



by a cliance expression that he had exbAMSted impiMiding con* 
troversicfi ye^rs before they arrived, and liatJ jicrccivcd more or 
less tbe conclusion ai which the disputants would arrive long 
before the public issue was joined. Tlierc i* no other explana* 
tion of such religions ihan this. We have but to open Mr. Glad- 
stone's ■* Homer " in order to sec with Eiow intense an antipathy 
a really moral age would regard the gods and goddesses of 
Homer; how inconceivable it is that a really moral age should 
first have invented and then bowed down before them; how 
plain it is (wheii once explained) that they arc antiquities, like 
an Enghsh court-suit, or a stone-sacrificial knik, for no one 
would use &uch things as implements of ceremony, except those 
who had inherited them from a past age, when tltcre was noth- 
ing belter. 

Nor is there arytliing inconsistent with our present moral 
theories of whatever kind in so thinking about our ancestors. 
The intuitive theory of morality, which would be that naturally 
most opposed to it, has lately taken a new development. It is 
not now maintained that all men have the same amoimt of con- 
science. Indeed, only a most shallow disputant who did not 
understand cvea the plainest facts of human nature could ever 
liave mainlained it; if men differ in anything they difTer in the 
fineness and the delicacy of tlieir moral intuitions, however we 
may suppose those feelings to have been acquired. We need 
not go as far as savages to leam that lesson; we need only talk 
to the English poor or to our own servants, and we shall be 
taught it very completely. The lower classes in civilized coun- 
tries, like all classes in uncivilized countries, are clearly wanting 
in the nicer part of tho.'^e feelings which, taken together, we c^ll 
the sense of morality. AH this an inluilionist who knows his 
case will now admit, but he will add that, though the amount o( 
the moral sense may and docs differ in different persons, yet that 
as far as it goes tt in alike in all. He likens it to the intuition oi 
number, in which some savages arc so defective that they can- 
not really and easily count more than three. Yet afi far as three 
his intuitions are the same a^^ those of civilized people, Un- 
questionably if there are intuitions at all, the primary truths nf 
number are such. There is a felt necessity in them if in any- 
thing, and it would be pedantry to say that any proposition of 
morals was more certain than that five and five make ten. The 



PHYSICS AND POLITICS 



stnnge prejudices; his feehngs are fri^hiened by a thcusan<l 
cruel stiperstitions. The whole mind of a modem eavagc is, 
50 to say, tattooed over wttli iTion«1rouft images : tliere is not a 
smooth place anywhere about it. Hut tlicre is no reason to sup- 
pose the minds of pre-historic men to be so cut and marked: 
on the contrary, the creation of these habits, these superstitions, 
these prejudices, must have taken ages. In ]m nature, it may 
be said, prc-historic man was the same as a modern savapc; il b 
only in his acquisition that he was different, 

it may be objected that if man was developed out of any kind 
of animal (and this is the doctrine of evolution tvliich, if it be not 
proved conclusively, has great probability and great scientific 
analogy in its favor} he would necesf^arily at lirst possess animal 
instincts; that these would onJy gradu^illy be lost; that In the 
meamiiiic iliey would serve as a protection and an aid, and that 
pre-hisioric men, therefore, would have important helps and 
fecHuga which existing savages have not. And probably o( the 
first men, the first beings worthy to be so called, this was true: 
they had. or may have had, ccnain remnants of instincts: which 
aided them in the struggle of existence, and as reason gradually 
came these initinots may have n-aned away. Some intiincts 
certainly do wane when the intellect is applied steadily to their 
subject-matter The curious" eountinfif boys," the ariihmctical 
prodigies, who can work by a strange innate faculty the moat 
wonderful sums, lose tliat faculty, always partially, sometimes 
completely, if they are taught to reckon by rule like the rest of 
mankind. In like niannef I have heard it said that a man could 
soon reason himself out of the instinct of decencyjf he would only 
take pains and work hard enough. And perhaps other primitive 
instincts may have in like manner passed away. But this docs 
not affect my argument. I am only saying that these injcincti, 
if ihcy ever existed, did pass away — that there was a period. 
probably an tmnicnM^ petiod as we reckon time in human tiis- 
tor)', when prc-historic men lived much as savages live now, 
without any important aids and helps, 

Tlie proofs of this are to be found in the great works of Sir 
John Lubbock ard Mr Tylor, of which I just now «poke. I can 
only bring out two ni them here. First, it is plain lliat the first 
pre-historic men had the flint tools which the lowest savages use, 
and we can trace a regtilar improvement in the finish and in the 



BAGEHOT 



cfficicncv of tlicTr simple instruments correifKsnding to that 
which we 8«e sd tliis day iii the upward iraiiKition from the lo^veet 
savages to Ihe highest- Now it is not conceivable that a race ol 
being* with valuable Inatifirts supporting their existence and 
supplying their wants would ne«i these simple tools- They arc 
exactly those needed by very poor people who have no instincts, 
and those were used by such, for savages are liic poorest of the 
poor. It would be very strange if these same utemiW, no more no 
less, were used by beings whose discerning instincts made ihem 
in comparison altogether rich. Such fi being would know how to 
manage without ^uch things, or if it wanted any, would know 
how to make better. 

And, secondly, on the moral side we know that the pre-historic 
age was one of much license, and the proof h that in that age 
descent was reckoned through the female only, just as it is 
among the lowest savages. " Matcrrliy," It has been said, "* is 
a matter of fact, paternity is a matter of opinion ; " and this not 
very refined exprcMioii exactly conveys the ctJiiiiection uf the 
lower humcin societies- In alt slave-owning commumties— in 
Rome formerly^ and in Virginia yesterday — such was the ac* 
ceptcd nile of law: the child kept the condition of the moUier, 
whatever that condition was: nobody inquired us to the father; 
the law, once for all, assumed that he cout<l not be ascertained. 
Of couriie no remains exist which prove this or anything else 
about the morality of pre-historic man; and morality can only 
be described by rernaini amounting to a history. But one o( the 
axioms of pre-historic invcsiigatior binds us to accept this as the 
morality of the pre-historic race* if we receive that axiom. It is 
plain that the wide-spread absence of a characteristic which 
greatly aids the possessor in the conflicts between race and race 
probably indicates that the primary race did not possess that 
C[ualttyH If onc-amicd people existed almost everywhere in every 
continent ; if people were foimd in every intermediate stage, some 
whh !he mere germ of the second arm, some with the second 
arm. half-grown, some with it nearly complete; we sliould then 
arj^uc — " the first race cannot have had Iwo amis, because men 
have always been fighting, and aa two antiA are a great advantage 
in lighting, one armed and half-armed people wxiuld immc<iiately 
have been killed off the earth; they never could have attained 
any numbers. A diffused deficiency in a warlike power b the 



n 
4 



PHYSICS AND POLITICS 



»J 



best attainable evidence that tlic prc-hUtoric men did not possess 
that power/' U ihts axiom be leceived it is palpably applicable 
to Uic marriage-bond of primitive r^e». A cohesive " family " 
i£ the best gvrm for a campaigning nation. In a Roman family 
ihc boys, from ilie liniv- of Uitir birih, were bred to a domestic 
despotism, which well prepared ihcm for a subjection in after 
life to a military dl^dpUne, a military drill, and a military Jojiot* 
i»ui. They were rca<1y Ut obey tlicir gcncriab because ihcy were 
compelled to obey their fathers; they concpiercd the world in 
manhood because ae children they were brcti in homer, where the 
tradition oi passionate valor wrtft steadied by tlie l&abit of im- 
placable order. And nolliiiig of this is possible in looftcly-bound 
family gronpu (if ihey can he railed families at all) where llie 
father is more or Icsa uneertain, where descent is not traced 
through him, where, that h, properly doe* not come from him. 
where such properly as he has passes to his sure relations — to 
bis sister's children. An ill-knit nation which does not reco^ufe 
paternity as a iei^al relation, would be conquered like a mob by 
any other nation which hsd a veAligt or a beginning of the 
patria poffstas. If, therefore, all the first men had the strict 
morality of families, they would no more have permitted the 
rise of semi-moral nations an>'whcre in the world than the Ro- 
mans would have penniUel tliem to arise in llaly. I hey would 
have conquered, killed, and plundered them before they became 
nations; and yet semi-moral nations exist all over ibe world. 

It will be said that this argument proves too much. For it 
proves that not only the somewhai-bcforc-lmtory men. but the 
at>solu1cly first men, could not bavc bad close family instincts, 
and yet if they were like most tliough not all of the animals near- 
est to nun they had such instincts. There is a great story of 
some African chief wbo exprewed hi* d(i^J6t at adhering to one 
«ife, by uying it was " like the monkeys." The semi-bnital 
ancestors of man. if they existed* had very likely an insTinet of 
con^lancy which the African cliief, and others like hJni, bad lost. 
How. then, if it was so beneficial, could they ever lose it? The 
answer is plain: they cmild lose it il ihey had it as an irrational 
propensity and habit, aod not as a moral and rational feeling. 
When reason came* it wmild weaken that halrit like all other 
irrattonal habits. And reason is a force of such infinite vigor — 
a victory-making aj^cnt of such incomparable cfHcicncy — that its 



T« 



lACEHOT 






continually diminisliing valuable Instincts will not tnaner if it 
grows itself stcu^til/ al) ibc wIiilc. The strongest compctuor 
wtna ID both titc di^H wc ^rc tougining ; in tltc Erat, a race with 
intelligent rcafroti, but withool bUod instinct, beats a race wiih 
that instinct but without that reft»o<i; in t]i« M^cond, a race with 
reason and high moral fcirling beats a racv wiih reason but with- 
out high moral feeling. And the two are palpably confil^tent 

There U every reason, therefore, to suppose pre-hiatoric man 
to be deficient in much of sexnal morality, as wc regard rbftt 
morality. A» lo the detail of *• primitive marriage " or '* no mar- 
riage." for that is pretty much what it comes to, there is of course 
much room for discussion. Botli Mr. M'Qennan and Sir Jotio 
Lubbock arc too accomplished reasoncrs ani] too careful tnvctti 
gators 10 whh corclu^u^is so complex and rclined as thdrs to 
accepted all in a mass, besides that on some cridcal points 
two dil7«r. But the main isnic is not dependent on nice 
mcnts. Upon broad grounds wc may believe that in pre-htstoric 
times men fought both to f^in andtokeeptherr wi%'cs: that the 
strongest man took the bcn wife away from the weaker man; 
and that if the wife was restive, did not like the change, her new 
husband beat her; that (as in Australia now) a pretty woman 
was sure to undergo many such changes, and her back to beai 
the marks of many such chastisements; lliat in the principal de- 
partmenl of human conduct (which is the mo« tangible and 
easily traced, and therefore the nioit obtainable spedmcn of the 
re«t) the mind« of pre-hisioric men u«re not so much immoral 
a* unmoral; they did not violate a rule of cortricncr, but ihey 
were somehow not sufficiently developed for them to fed on 
point any conscience, or for it to prescribe to them any rule^ 

The same argument applies to religion. There are. jnd 
many points of the gre«ile$t obscurity, both in the present savage 
religions ani in the scanty vestiges of pre-historic religion. But 
one point is clear. All savage religions arc full of superstitions 
founded on luck. Savages believe that castial omenji arc a sign 
of coming event*; that some trees are lucky, that some animaU 
arctucky.that someplaccs are lucky.that some indifferent actions 
— IndifTerent apparently ard indifferent really — are lucky, and so 
of others in each class, that they arc unlucky. Nor can a savage 
well distinguish Ijelween a tign vi "luck" or ill-luck, as we 
should say, and a deity wliich causes tlte good or the ill; the ia* 



Ihey 
iht"^ 



PHYS1C5 AND POLITICS 



19 



dicatii^ precedent and the causing being arc lo the savage mind 
much the »aine; a fitcadine«£ of head far beyond fta^^ges is rer 
quired constrfently to dUtii^cu^h them. And il is extremeLj nat- 
ural that rhcy should believe so. They are playing a game — the 
game of life — with no knowledge of its rdes. They have not an 
idea of the laws of nature; if they want to cure a man. they have 
no conception at all of true scientific remedies. If they try any- 
thing they iriisl lr>' ii tipon bare chaiKc. The moit useful mod- 
em remedies were often discovered in this bare, enipirical way. 
What could be more improbable — at least, for what could a pre- 
historic man have Ic^ ritcu a good rea&on — than that some 
mineral springs should stop rheumatic p^ns. or mineral springs 
make wounds heal quickly? And yet the chance knowledge of 
the marvellous effect of gifted springs is probably as ancient as 
any sound knowledge as to medicine whatever. No doabt it 
was mere casual luck at first that tried these springs and fuuiid 
dicn) answer. Somebody by acdileni tiied thcui and by that 
accident was instantly cured. The chance which happaly directed 
men in this one case, misdirected them in a thousand ca:9CS. 
Some expedition had answered when the resohilion lo undertake 
it was reiolred on under an ancient tree, and accordingly that 
tree became lucky and «cfed. Another expedition Jailed wh<*n 
a magpie crossed its path, ami a magpie was said to t>e unlucky. 
A serpent crossed the path of another expedition, and il fiad a 
marveUons victory, and accordingly the serpent became a sign 
of great luck (and what a savage cannol distinguish from it — a 
potent deity which makes luck). Ancient medicine is L^qually un- 
reasonable : as lalc down as the Middle Ages it was full of super- 
stitions founded on mere hick. The collection o! prescriptions 
published under the drection of the Master of the Rolls abounds 
in such fancies as we should call iheni. According to one of 
them, unless I forget, some disease — a fever, 1 ihink — \s sup- 
posed to be cured by placing the patient between two halves of a 
hare and a pigeon recently killed* Nothing can be plainer th^n 

• Readers of Scon's hit will remember tliat an admirer al hi* in hum- 
ble lift propoied lo e«fe him of inftamm»tjnn of fh^ howcl* l»v making 

him deep a whole niiEht on twelvt imooih atones, painfully collected by 
the admirer from twelve brook?, whrch wa*> it appeAred. a recipe of 

UiTtrripi trAi1itir>n:i1 power Scott gnviOy |i>ld Ihit propMer that he 

had mistaken ihr charm, and that the stones were of no virtue unkt« 
wrapped up in the petricoai oi a widow who never wished to marry 
RSain. anil at no ^u^ vidow fteem» to have been forthcoming, he 
escaped the remedy- 



BAGEHOT 



that there !s no ^ound tor this kind of treatment, and ih^ t' 
ideA of it arose out of a chance TiU, which came right and « 
cccdcd. There wftfiiiolliingM) absurd or %o contrary to comini 
■ense a» we are apt to iniaginc about it. The lying b<?i\veen t 
halves ol a hare or a pigeon was d priori, and to llic incxperieni 
mind, quite as likely to cure disease a» thf; drinking c< 
draughts of nasty mincraJ waicr. Both. &onicliow. were tried; 
both answered — that i:s, hodi were at the first time, or at some 
memonible time, followed \>y a remarkable recovery; and the 
only diffcrcTicc is. that the curative power of the mincra! is per- 
sjstCTit,an(l]^ppcn5 constantly; whereas, on an average of trial 
tae proximity of a hare or pigeon is found to have no effect, 
cures lake place as often in cases where it is not lrte«l ait in cases 
where it is. 'I'hc nature of minds which arc deeply en^ged in 
watching evenu of which ihey do not know the reaaon, is to 
sinjfic out sonic fabulous accompaniment or some wonderful 
series uf ^utfd luck ur bud Utck. ^ind to dread ever after that aC" 
coEiipanimcnL if it tjringt evil, and to love it and long for ii if it 
brings good. Ail savages arc in thiji poAitioHr nnd the fa^cinAting 
effect of »trikinf* accompaniments (in some single case) of runga* 
lar good Fortune and singular calamity, is one great source 
savage religions. 

GamhlrrK to this day are, with respect to the chanrr part 
llwif game, in much the same plight as savages with respect to^ 
the main events of their whole hve». And we well know hovr 
superstitious they all arc. To this day very sensible whist-playe 
have a certain belief — not, uf eonric, a fixed conviction, but still 
a certain impression — that there is " luck under a black deuce," 
and will half mutter K>me not very gentle nLik-diclicns if they 
ttirn up as a trump the four of cltibi, because it brings ill-luck, 
and is *' the d«virs bed*post." Of course grown-up gamblers 
have too much general knowledcc. too much orgamzecl com* 
mon sense, to prolong or cherish such ideas; they arc ashamed 
of entertaining them, though, nevertheless, they cannot entirely 
drive than out of their minds. But child -gamblers — a number 
of little boys set to play loo— are jusl in the position of savages^ i 
for their fancy if iitlll imprcf^blc, and tltc> have uot aa yet beci^^fl 
thoroughly subjected to the confuting CJcperiencc of the raf^l 
wxjrld; and child-gamblers have idolatries— at least I know Uiat 
year? ago a set of boy loo-players, of whom I was one, had con- 



PHYSICS AND POLITICS 



tt 



fiderab1« faith m a certain " pretty fish," which wa% larger an<! 
more nicely made than the otht-r H^h we had. Wr gave the best 
evidericc of our belief in its power to '* brinji: Ittck; " we fought 
for it (if our elders were out of the way); wc offered to buy >t 
with many other fish from the envied Iwldcr, and I am sure I 
have often cried bitterly if the chance of the Kame took it away 
irom me. Persons who stand up (or the digniiy of philosophy* 
if any £uch there still arc, will say that 1 ought not to mention 
this, because it seems trivial; hut the more modest spirit of mod- 
cm thought plainly leaches, if it teaches anything, the cardinal 
raluc of occ2Sicnai little facts. 1 do not hesitate to say that many 
learned and etaborate explanations of the toicm — the "" clan " 
deity — the beast or bird wlto in some supernatural wtiy. anendi 
to the dan and watcliea over It— do not seem to me to be nearly 
as akin to the reality as it works and lives among the lower raceSt 
aa the " pretty fish " of m)' early boyhood. And very naturally 
so» for a grave philo»oi>hcr ij; ^porated from primitive thought 
by the whole len(i:lh of human culture: but an tmpre^ible child 
is as near to, and its thoughts are as much tike, that thought as 
an)iliing can now he. 

Thc worst of these superstitions is that they arc easy to make 
and hard to destrcy, A sinsle run of luck has made the fortune 
of many a charm and many idols. I doubt if even a single run 
of luck be necessary. I am sure that if an cider boy said that 
" ihe pretty fish was lucky — of course it was," all the lesser boys 
would believe it, and in a week it would be an accepted idol. And 
1 suspect the Nestor of a savage iribe^the aged repository of 
giiiding experience— would have an equal power of creating 
superstitions. But if once created they are Ti\o%i difhcnlt to eradi- 
cate. If any one said that the amulet was of ccnain eificacy— 
that it always acted whenever it was applied — it would of course 
be very e»y to disprove; hut no one ever said that the " pretty 
fisl) " alway;? brought luck: it was only said that it did so on the 
whole, ard that if you had it you were more likely to be lucky 
than if you were without it. But it requires a long table of statis- 
tics of the results of games to disprove tbts thorouf^hly; and by 
the titne people can make tahir* they are already above tuch be- 
iith, and do n^t need to have them di^provefL Nor in many 
eases where omens or amulets are used would such tables be 
easy to make, ^r the dau could not be totind; and a rash at- 
6 









.7 J 



ll 



|#iiv,i-'.iiit; t)i'\ \u\i'Tlf,r ffiilitary a'lvar.rage, the sniall minoi 



PHYSICS AND POLITICS 



»3 



desmutc of tt wottM have been crushed out and destroyed. But, 
on ihe conirary, all over the world religions with omens once 
exisledjn moa they Mil! exUt; all savages have ihem, and deep 
in (he most ancient civilisations we find the plainest traces of 
Ihem. Unquestionably therefore iht pre-hisioric religion was 
like i]ut of savaf^cs — viz,, in this that it largely consisted in the 
watchinf; of omers and in the worship of lucky bedst» and things* 
which arc a sort of cmbocHcd and permanent omens. 

It may indeed be objected — an analogous objection was taken 
as to the ascertained moral deficiencies of pre-historic mankind 
— that if this religion of omens was so pernicious and so hkcly 
to ruin a race, no race would ever have acquired it. But it is 
only likely to ruin a race contending with another race othcnvise 
equal. The fancied discovery uf tliesc omen» — not an exlrava- 
gfiitt thing in ;m early agv, as I have tried to »how» not a whit 
then to be distinguished as improbable from the discovery of 
healing herbs or springs which prehistoric men also did discover 
— the discovery of omens was an act of reason ae far as it went. 
And if in reason the omen-finding race were superior to the 
races in conflict with ihem, the omen-finding race w<^uld wn, 
and we may conjecture that omen-finding races were thus 5ti- 
pcrioT since they won and prevailed in every latitude and in every 
zone- 
In all particulars therefore wc would keep to our formula, and 
say that pre-historic man was substantially a savage like pre:^ent 
savages, in morah. intellectual attainments, and in religion : but 
that he difFered in this from cur present savages, that he liad not 
had time to ingrain his nature so deeply with bad habits, and to 
impress bad beliefs so unalterably on his mind as they have. 
They have had ages to fix the stain or ihcmsclvcs, but primitive 
man was youngeranri had no such lime. 

I have eiaboraled the evidence for this conclusion at what 
may seem needless and tedious length, but I liavc done to on ac- 
count of its importance. If we iicccpt it, and if wc arc sure of it. 
it will help us to many moBt important conclusions. Some of 
these I have dwelt upon in previous papers, bnt I will set them 
down again. 

First, it will in part explain to us what the world was ahotjt, so 
to speak, before hbtory. Tl was making.so to say, the intellectual 
consistence — the connected and coherent habits, the preference 




34 



BAGBHOr 



of cquflblr to violent cnjoymctl, ihc atjidirig capacHy lo prcfcf " 
if re(|inrecl. Ihc future to ihe present, the mental prc-rcqiiisile» 
wilht>u( which civilization could rot begin to exiAl, and wilhotit 
which it would soc^n cease to exist even had h begun. The 
primitive man, like the pr«em savage, had not lliese pre-re<]- 
uiflites, but, unlike the present savage, he was capable of ac-j 
quiring them and of being trained in them, Eor hi^ nature waJi 
still soit and still impressible, and possibly, strange as it majr 
seem lo say, his outward circiimstancta were more favonihle lo 
an attainmem of civilization than those of our present savages. 
At any rate, the prc-liisturic times were tpent in making menl 
capable of wijiin^ a history, ami haviu||; Mjuietliini- io pat m it] 
when it is written, and \vc ean see how it was done. 

Two preliminary processes indeed there are wliieh seem ir 
«cru1nble< There was tome strange preliminary process byl 
which the main races of men were formed; tliev began to exiJit' 
vrry early, atirl rxrept by intrrniixinre no new ones have been 
formed since. It was a prnces* angularly active in e:irly agei, 
and singularly quiescent in later ages. Such diSercnccs as exist 
between the Aryan, the Turanian, the negro, the red man. and 
the Australian arc difrcrcnce:^ greater ahogethcr than any causes 
now active are capable of creating in present men, at t<^st in anjr 
way explicable by us, And there is, therefore, a strorg pre* 
sumption thac (ns great auttioritics now hold) these difTcrences 
were created before the nature of men, especially before the mind 
and the adaptive nature of men had taken their existing constitu- 
tion. And a KTond condition precedent of ciriliraiion seems, at 
least to mc. to have been equally inherited, if the doctrine of evo- 
lution be true, from »onic previuus state or condition. I at leait 
find it difficult to conceive of mcu, at all like the prevent men« 
unless existing in something like families, that is, in grouf: 
Avowedly connected^ at least on the mother'^ tnde, and probaUy^ 
always with a veMigc o( connection, more or less, on the bthcr'a 
s3de, and unless these groups were like many antiraU, grcgaiv 
on<i, under a leader more or Jess fixed. It is almost beyond im- 
agination how man, as we know man, could by any sort 
process have gained this step in civilizalicn. And it is a great' 
advantaf^e, to «iy the least of it. in the evolution ihcoi^- that it, 
enables us to remit this difficulty to a pre-existing period in nat 
lire, where other instincts and powers than our present ooes tnai 



PHYSICS AND POUTICS 



«S 



pillllpil hare come into p^^y, sru) where our imagimtion can 
Itsrdljr travel Al any rate, for the present 1 may a&smne the^ 
two siepfi in human progress ma^te, and these two conditions 
realized. 

The rest of the way, if wc grant these two conditions, is plainer. 
The first thing is the erection of wliat we may call a cu&tam-ni&k- 
ing power, that is, of an authority which can enforce a fixed rule 
of life, U'hich, hy means of thai hxed rule, can in some degree 
create a calculable future, which can make it rational to postpone 
present violent but montentary pleasure for future continual 
pleasure, because it insures, what else is not sure, that ti the 
sacrihce of what is in hand be made, enjoyment of the contingent 
expected rccompcn&c will be received. Of course I am not say- 
ing that we shall Tind in early society an> autlioricy of which 
these ^hall be the luutives. We mu&t have tiavcLkd ages (un- 
less all our evidence be wrong) from the first men before Uktc 
wasacocnprehenston of such motives. I only mean that ilkc first 
thing in early society ua« on auihority of who«c action thi% shall 
be tlie rtisult, little as it knew what it was doing, little as it would 
have cared if it had known. 

The conscion* end of early societies was not at all, or scarcely 
at all, the protection of hfc and property, as it was assumed to be 
by the e^htecnth-ccnlury theory of government. Even in early 
historical ages— in the youth of the human race, not its child- 
hood — such is not the nature of early states. Sir Henry Maine 
has taught us that the earliest subject o( junspnidcmre is not the 
separate property of the indiTidual, but t!ie common property of 
the family group; what we should call private properly hardly 
thencxi<'ted; orif it did, was so small as to be of no importance: 
it was like the things hitle children are now allowed to call their 
own, which they feel it very hard to have taken from them, but 
which they liave no real right to hold und keep. Such is our 
earliest property-law, and our earliest life-law is that the lives of 
all member* of the family group were at the mercy of the head 
of the group. As far as the individual goes, neither his goods 
nor his existence were protected at all. And thit may teach us 
thftt something else was lacked in early societies besides what in 
our societies we now think of. 

f do not think I put this too high when I say that a mo&i im- 
portant if not the most imporlant object of early legislation was 



86 



BAGEHOT 



thp mf€wc«m€n1 of lucky Hies. 1 do not liW ro ^y rcligioi: 
rites, because that would involve nie in a great controversy as to 
the power, or c^en the existence, of early religions, Bui there 
is no savage tribe without a notion of luck : and perhaps there b 
hardly any which has iiol a conception of hick for the tribe as a 
tribe, of which each member has not some such a behd tJiat hU 
own action or the action of ^ny other member of it — that he or 
the others doing anything which was unlucky or would bring 
a ■■ curse "—might catisc evil not only to hinuel), but to all the 
tribe afi well. I have said so much about *' luck " and about its 
naturalness before, that 1 ought to »ay nothing again. But 1 
mu^i add that the contagiousness of the idea of " luck " is re* 
niarkable* It does not ut at), like ihe nutioti oE desert, cleave to 
the doer. Tliere are people to this day who would itot permit in 
their house people to siX down thirteen to dinner. 7'hcy do no4 
expect any evil to themselves particularly for permitting it or 
sharing In it, but thty cannot get out of their head& the idea that 
some one or more of the number will come to harm if the thing 
is done. This is what Mr. Tylor calls survival in cidtwre. The 
faint belief En the eorporntf liability of these thirteen is the feeble 
relic and la5t dying reprewrriative of thai great prineiplc of eor- 
porate liability to good and ill fortune which has 611ed such an 
immense place in the world. 

The traces of it are endless. You can hardly take up tf book 
oftravels in rude rcfiiors without finding" I wanted to do so and 
60, But I was not pertniited, for the native* feared it might 
bring ill luck on the ' party,' or perhaps the tribe." Mr. Gallon, 
(or instance, could hardly feed his people. 11te Dainaras, he 
says, have numberless ^nperstitions about meat which arc very 
troublesome. In the first place, each tribe, or rather family, is 
prohibited from eating cattle of certain colors, savages "who 
come from the sun " esclicwmg sheep spotted in a particular way, 
which those "who come from the rain " have no objection to. 
" As." he saj'S, " there are five or six candas Or descents, and 1 
had men from mont of them with me, T could hardly kill a sheep 
that everybody wotild eat." and lie could not keep hb meat, for 
it had tohf given away b^eaiise it wa« commanded by oneatiper- 
stition, nor buy milk, the staple food of those parts, because rt 
was prohibited by another. And so on without end. Doing any- 
thing unlucky is in their idea what putting on something thai 



fvSICS AND POLItrC^S' 



87 



attracts the ckctric flitiiJ is in fact You cannot be- »un; that harm 
will not be done, DCt ooly to tbc person in fault, but tu thotic 
about him loo. As in the Scriptural plira^c, doing wliat is of 
evil omen i* " Hkc one that letteth out water/' He eannot tell 
what arc the consequences of his act. who will share them, or 
how they can be prevented. 

Jn The earliest historical nations I need not say that the cor- 
porate habilitie» of slates is to a modern student their most curi- 
ous feature. The behef is indeed raised far above the notion of 
mere " hick," because there is a distinct belief in gods or a god 
whom the act oflfends. But the indiscriminate character of the 
punishment slilt survives; not only the mutilator of the Hermae, 
but all the Athenians— not only the violator of the rites of the 
liona dec^ but all the Romans — are liable to the curse cngen- 
ciercd; and so all through ancient history. The strength of the 
corporate anxiety so created is known to every one, Not only 
was it greater than any anxiety at>out personal property, but it 
was immeasurably greater. Naturally, even reasonably we may 
say, it was greater. The dread of the powers of nature, or of the 
beings who rule thoar powers, U properly, tipoit grounds of rea* 
son. as much greater than ary other dread as the might of the 
powers of nature is superior to that of any otticr powers. If a 
tribe or a nation have, by a contagious fancy, come to believe 
that the doing of any one thing hy any number will be '* un- 
lucky/* tliat is, vi'ill bring an intense and vast liability on iheni all, 
then that tribe and that nation will prevent the doing oE that 
thing more than anything else. They will deal with the most 
cherished chief who even by chance should do it, as in a similar 
case the sailors dealt with Jonali. 

I do not of course mean that this strange condition of mind 
as it seems to us was the sole source of early customs. On the 
contrary, man might be described as a custom-making animal 
with more justice than by many of the short descriptions. In 
whatever way a man has done anything once, he has a tendency 
to do it again: if he has done it several times he has a great 
tendency so to do it, and what is more, he lias a great tendency 
to make others do it also. He transmits his formed customs to 
liis children by example and by teaching. This is true now of 
human nature, and will always be true, no doubt. But what is 
peculiar in early societies is that over most of these customs 



88 



BAGEHOT 



there grows i^ooncr ui Ut«T a ^emi-supcritatiiraJ sanction, Tbe 
whotc comnuinity is pofscsscd vritli the idea that if ihc primal 
usage? of the tribe be broken, harm un&pcakablc will happen in 
wayH you caimot think of, ftnd from gotirccii you cannot imagine. 
As pcopk now«a*<lay* believe that " murder will out/' and thai 
great crime will bring even an earthly ptinii;hm«^t. *o in earfy 
limes people hcltrved that for any bTcac}i of sacred ctislfim cer- 
laiti retribution would happen. To this day many scmi-civilizcd 
races have great difficulty in regarding: any arraneement as bind* 
ing and conclusive unless they can also manage to look at it as an 
inherited usage. Sir H. Maine, in his last work, gives a most 
curious case. The English Oovemmcnt in India has in many 
cases made new and great works ol irrigation, of which no an- 
cient Indian ( Jovcrnment ever thought; and it has generally left 
it tc ttie native village community to «ay what share each man 
of the village should have in the water: and the village autKori- 
ties have accordingly Inid clown a series of most mimite rules 
about it But the peculiarity ts ihai in no case do ihcse rules 
" purport to cmcinatc from the pcrvQual authority of their atJthor 
or authors, which re«l3 on grounds of reason, not on grounds 
of innocence and sanctity; nor do they assume to be dic- 
tated by a eeme of equity; there is always, I am assiu^d, a 
sort of fiction under which some customs as to the distribution 
cf water are utppoaed to have omanati^el fr^^m a remote antiquity, 
althonRh, in fjict» no such artifictal strpply had over been so much 
as thought of." So difticuU doe* this ancient race— like, proba- 
bly, in this respect so much of the ancient world — find il to ioi- 
aginc a rule which is obligatory, but not traditional. 

The ready fonnation of custom-makini; groups in early soci- 
ety mtist have been greatly helped by ihc easy divisions of that 
society. Much of the world — all Europe, for example — was then 
covered by the primeval forest: men had only con<]uered. and as 
yet conid only conquer, a lew plots and corners from il. These 
narrow spaces were soon exhausted, and if numbers grew some 
of the Tiew people must move, Accordin^y migrations were 
comlant. and were necessary. And these migrations were not 
like those of modem times. Tlierc was no such feeling as binds 
even Americans who hate, or speak as if they hated, the present 
political England— nevertheless to *' the old home." There was 
then no organised means of communication — no practical com* 



I 



lYSTC 



ID POLITi 



*9 



rnunicatton, we may say. between parLtxl members of tlie same 
group; ihoac who otKC went oul horn tUc pareni society went 
oat forever; they led no abiding remembrance, and they kept 
no abicling regard. Even the lofiguage of the parent tribe and 
ofthedcscendedlribewonlddiffer in a generation or two. There 
being no written literature and no spoken mCercoiir^e, thespeeeh 
of both woiilft vary (ihr 8prrch nf such rommimities is always 
varying), and would vary in different directions. One ict of 
causes, events, and associations would act on one, and another 
set on another; sectional differences would soon -irise, and, for 
speaking purposes, what philologists cat] a dialectical difFcrimce 
often amounts to real and total difference: no connected inter^ 
change of thought is possible any longer. Separate groups «oon 
"setup house: " the early societies be^n a new set ofcuslonH, 
acquire and keep a distinct and i^pccial *' luck/' 

If it were not for this facility of new formations, one good or 
bad custom wotild long since have "corrupted " the world; but 
even this would not liavc been enough but for those continual 
war», of which 1 have sjjoketi at such length in the essay on 
" The Use of Ccnllici ," that I need say nothing now. These are 
by their ineCv^^iant fracttire:» of old images, and by their constant 
infusion of new elements, the real regenerators of society. And 
whatever be the truth or faheliood of the genera! dtnlike to mixed 
and half-bred races, no such suspicion wa£ probably applicable 
to the early mixtures of priniiiive society. SnpiKising. as is 
likely, each great aboriginal race to have had its own quarter of 
ihe world (a quarter, as it would seem, corresponding to the 
special quarters in which plants and animals are divided), then 
the immense majority of the mixtures woidd be between men of 
difTcrcrt tribes but of the same stock, and this no one woukl 
object to, but everyone would praise. 

In general, too. the confjiierors would be belter than the con- 
quered (most merits in early society are more or less military 
merits), but they would not be very much better, for the lowest 
steps in the ladder of civilization are very steep, and the effort 
to mount them is slow and tedious. And this is probably the 
better if they arc to produce a good and qtiick effect in civilinng 
those they have conquered. The experience of the English in 
India shows — if it shows anything — that a highly civilized race 
tnay fail in producing a rapidly excellent effect on a less civilixed 



90 



BAOEHOT 



race, hccaiis^ it h loo good and too different. The two arc tJ 
en rapt^ort togecher; lh« merits of the one arc not the mi 
prized by the other; the manner-language of tlie one U not 
manner-lang»age of ihe other. The higher being U not and 
cannot be a model for the lower; Ite could not irould himself 
on it if he would, and would not if he couM. Conscquciiily, tlie 
two races have long lived loge:hcr, " near and ye: far off." daily 
seeing one another and daily imerchanging superficial thoughii, 
but in the depths of their mind sefraraied by a wholt- era of civili 
z^tion, and so affecting one another only a little in comparisoa 
with what might have been hoped. Btit in early societies there 
were no such grtat diflferenccs, and the rather superior conqueror 
must have easily improved the rather inferior conquered. 

It is in the intenor of thc^ cu&tomary groups that national 
characters arc fornLed Ai I wrote a whole tuiiy en tlic man* 
ner of this before, I cannot speak of it now. liy pro3cnbing non*- 
conformist members for generations, and cherishing and reward- 
ing conformist members, nonconformists become fewer vkI 
fewer, and confonniita nior^ aiid more. Most men mostly imi- 
tate what they see, and Ciitch the tone of wliai they hear, and *o 
a settled type — a persistent character — :s formed. Kor ia the 
process wholly mental I cannot agree, though the greatest ati< 
thoritici say it, that no " unconscious selection " has been at 
work at the breed of man- If neither that nor conscious selec- 
tion has been at work, how did there come to be these breeds, and 
such there are in the greatest numbers, though wc call lliem 
nations? In societies tj^rannically customary, uncongenial mind 
become hrst cowed, ttien melancholy, then out of health, and ai 
last die. A Shelley in New England cotiJd hardly have hved, 
and a race of Shelleys wculd have been tm[*o?!*iMe. Mr. Galtoo 
wishes that breeds of men should be created by matcliing men 
with marked characteri:s1ics with women of like characteristics. 
But surely this is what nature has been doing time out o£ min 
and most in the rudest nntions and hardcit times. Nature dis- 
heartened in each generation the ill-fitted members of each cus 
ternary group, fto deprived them of their full vigor, or, if th«y 
were weakly, killed ihem. The Spartan character w:!s formed be- 
cause none but people with a Spannn make of mind could endure 
a Spartan existence. The early Roman character was fo formed 
too. Perhaps all very marked national characters can be traced 



Q 

en 

m 



PHYSICS AND POLITICS 



9" 



back to a time of rigid and pcrv;kding di^ciptinc. In moctcm 
times, when society is more tolerant, new iiutiotia) cliaraclera are 
neither so strong, so feaiiirely, nor eo uniform. 

In this manner fociety was occupied in pre-hUtoric time«, — 
it is consifilent with and explicaSle by otir general principle as to 
savages, lliat society should for ages have been so occupied, 
Strange as that concUtsion jSh and incredible as it would be, if wc 
had not been laughl by experience to believe strange things. 

Secondly, this principle and this conception of pre-hisioric 
times explain to us the meaning and the origin of the oldest and 
Strange$.t of social anomahes — an anomaly which \$ among the 
first things history tells us — the existence of caste nations. Notli- 
ing is at first sight stranger than the a;&pect of those commLini< 
tics where several nations seem to be bound up together— 
where each is governed by its own rule of law, where no one 
pays any deference to tlie rule of law of any of the others. But 
if our principles be true, these arc ju^t the nations mo«i likely to 
la&t, which would have a special advaniage in early times, and 
would probably not only mtiintain themselves, but conquer and 
kill out others also^ Tlie characteristic necessity of early society 
aswehaveseen.isfilrict usage and binding coercive custom. But 
the obvious result and inevitable evil of that is monotony id 
society; no one can be much different from his fellows^ or can 
cultivate his difference. 

Such societies arc necessarily weak from the want of variety 
in their elements. But a caste nation is various and composite; 
and has in a mode suited to early societies the constant co-opera- 
tion of contrasted persons, which in a later age is one of the 
greatest triumphs of civilization. In a primitive age the division 
between the warrior caste and the priestly caste is especially 
advantageousn Little popular and little deserving to be popular 
now-a-days as are pric&tly hierarchies, most probably the be- 
ginnings of science were made In such, and were for ages trans- 
mitted in such. An intellectual class was in that age only pos3J- 
ble when it was protected by a notion thai whoever hiin them 
would certainly he punished by heaven. In this class apart eIis- 
coveiies were slowly made And some heginmng of mental dis- 
eipline was slowly mnturcd. But such a community is neces- 
sarily unwarlike, and the superstition which protects pHcsU 
from home murder will not aid them in conflict with the for* 



9» 



BAGEHOT 



dgncr. Few nations mind killing their enemies' priests, 
many prie«Uy civili»itiocs have perished without record bciore 
they well began. But «uch a civilixstion wilt not perUh if t 
warnor ca^te ii tacked on to it and is boand to defend it. On the 
contrary, such a civilization ^ill be un^aily likdy to live. The , 
bead of the sage will help the arm of the soldier. | 

Thst a nation divided intocaMe«must bea most diflfieult ihin^ 
to found i» plain. Probably it could only begin in a cotintry sev- 
eral times coTi<|ueTcd, and where the boundaries of each caste 
rudely coincided with the boundaries of certain sets of victors 
and vanquished. But, as we now fee. when founded it is a likely 
nation to last. A parti-colored community of many tribes and 
many usages is more likely to get on, and help itself, thin a 
nation of a single lineage and one monotonous rule. I say "at 
first/' because I apprehend thai in ilus case, as in so many 
uiher» in the puzzling history of progress, the very irstiiuUons 
which ntoa aid at step number one are precisely those which 
moM impede at step number two. The whole of a caste nation 
Is more various than the whole oF a non-caste ration, but each 
caste itself is more monotonous than anything is, or can l>e, 
in a non-caste n;it!on. Gradually a linbit of action anil type of 
mint] forces itself on each caslo, and il is Utile likely to be rid 
of it, for all who enter it are tniighl in one way and trained 
to the same employmcnL Several non-caste nations have siiil 
conlimied to progress. But all caste nations have stopped 
early, though some have lasted long. Each color in the si.igU' 
lar compo^tite of these tcsselated societies has an indelible and 
invariable shade, 

lliirdly. we J=ee why so few nations have made rapid advance, 
and how many have become stationary. It is in the process o( ^a 
becoming a nation^ and in order to become such, that they sub- ^| 
jccted themselves to the infiucnce which has made them station- ^^ 
ary. They could not beccnie a real nation without t>inding them- 
kIvcs by a fixed law and usage, and it is the fixity of that law 
and usage which fias kepi them as they wcie ever since I wrote 
a whole estay on this before, so I need say nothing now ; and I 
only name it because il is one of the most important conse- 
quencefL of this view of society, if rot in<jced the most important 

Again, we can thus explain one of the most curious facts of 
(he present world. " \!flrner,*' says a shrem*d observer, who has 
seen much of existing life. " manner gets rcgubrly worse as you 



4 



PHYSICS AND POLITICS 



9i 



go from the Eail (o Ihe West; it i* best in Asia, not so good in 
Europe, and altogether bad in the western stales of America." 
And the reason i.s this — ;in intiiosing manner is a digmficd Li»agCi 
which tends to preserve ilBcU and also atl other existing usagcv 
along with itself. It tends to ii^duce the obedience of mankind. 
One of the cleverest novcliata of the prcacnt day has a curious dis- 
sertation to settle why on the hunting-field, nnd in all collcetion* 
of m«n, some men " snub and some men get cnubbed : " and why 
tociety rccogni/eB in eaeh ease the ascendancy or the etibordma- 
tion aK if it was right. " It is not at all," Mr. Trnllope ftitly ex- 
plains, " rare ability which gains the aupremacy; very often the 
ill-treated man i» quite at clever as the man who Ul-tredts him. 
Nor docs it absolutely depend on wealth: for, though prcat 
wealth ift aInio»t always a protection from social ignominy, and 
will always insure a passive respect, it will not in a miscellaneous 
group of men of Itself gain an active power to snub others. 
Schoolboys, in the same way/* tlie novelist adds, '* let some boys 
have dominion, and make olher boys slaves." And he decides* 
no doubt truly, thai in each case " something in the manner or 
gait " of the supreme boy or man h»s much to do with it. On 
this account in early society a dignified manner is of essential 
imixjrtance; it is, then, not only an auxiliary mode of actjuinng 
respcLt, but a priitclpal mode. The competing inslituttcina which 
have now much siipcrncdcd it, had not then begun. Ancient in- 
stitutions or venerated laws did not then e^dst ; and the habitual 
ascendancy of grave manrer was a primary force in winning and 
calming mankind. To tins day it i* rare to find a ravage chief 
without it: and almost always tbry greatly excel in it. Only 
last year a rivl Indian chief cante from the prairiw to see Presi- 
dent Grant, and everybody declared that he had the best man* 
ners in Waslunijton, The secretaries and Iiead:* of departments 
seemed vulgar tohim; though, of course, intrinsically they were 
infinitely above him, for he was only " a plundering ra*cah" But 
an impressive manner had been a tradition in the societies in 
which he had lived, because it was of great value in those socie- 
ties; and it is not a tradition in America, lor nowhere is it less 
thought of, or of less use, than in a rough English colony; the 
essentials of civilization there depend on far diiTerent inlluences. 
And manner, being so useful attd so imponant. tisages and 
customs grow up to develop it Asiatic society Is full of «iicli 
tilings, if it should not rather be said to be composed of them. 



94 



BAGEH01 



" From the spirit and decision of a public envoy upon cere- 
monies and forms." says Sir John Malcolm, " the Pcr^iann very 
gaierally furiu tlicif opinion of Uic character of tlic ccuntry he 
repfcsciUs, This fact I httd rcid in book», and all I saw con- 
vinced me of its truth. Forlunately the Klchee had resided at 
some of the principal courts oE In<tia, whoM ucaget are very 
similar. He was, therefore, deeply versed in that important 
science denoniinated " Kaida-e-nishesl-oo-hcrkhist " (or the art 
of sitting and rising], in which is included a knowledge of the 
forms and manners of good society, and particularly those of 
Asiatic kings and their courts. 

" He was quite aware, on his first arrival in Persia, ol tlie con- 
sequence of every step he took an such delicate points; he was. 
therefore, anxious to fight all his battles regarding ceremonies 
before he came near the footstool of royalty. We were conse- 
quentlv plagued, from the moment we landed at Ambusheber. 
till wc reached Shiraz. with daily, aUnost hourly, drilling, that 
we might he perfect in our demeanor at all places, and under all 
circumstances. We were carefully instt^ctcd where to ride in a 
procession, where to stand or sil within door«, when to rise from 
our scats, how far to advance to meet a visitor, and to whjit pan 
of the tent or house wc were to follow him when he departed, if 
he was of sufficient rank to make us sdr a step* 

^' The re^uhlions of our ridings and Manding^, and movings 
and reseatingG, were, however, of comparatively le» importance 
than the time and manner of smoWing our KelUans and taking 
our coffee. It i* quite astonishing how much depends upon 
cofTce and tobacco in Persia. Men are gratified or offended, ac- 
cording; to the mode in which these favorite refreshments are 
offered, Vou welcome a visitor, or send him off, by the way in 
which you call for a pipe or a cup of coffee. Then you mark, in 
the roosl minute manner, every shade of attention and considera- 
tion, by the mode in which he is treated. If he be above you» 
you present these refreshments yourself, and do not partake til! 
commanded; if equal, you exchange pipes, and present him with 
ccflfee, taking the next cup yourself; if a liltle below you» and 
you wish to pay him attention, you leave him to ^moke his own 
pipCf hut the servant gives him, according to your condescending 
nod, the fir»t cup of coffee ; if much inferior, you keep your dia- 
tancc and maiDtaui your raidc, by taking the fir^l cup of coffee 



PHYSICS AND POLITICS 



9S 



yourself, and then directing the servant, by a wave of the hand, 
to help the g^ueat. 

" When a vi&itor arnve:^, the colTee and pipe arc called for to 
welcome him ; a second c^U For tliese ariicks announces that tic 
may depart; but thi» part of the ceremony varies according to 
the relative rank or intimacy of tiic parlies. 

" Tlieftc matters may appear light to those with whom observ- 
ances of thU character are habits, not rules; but in this country 
they are of primary con&idtratioiir a man's importance with him- 
self and with others depending on them." 

Jn ancient customary societies the influence of manner^ which 
is a primary influence, has been settled into rules, so that it may 
aid established usages ajid not thwart them — that it may, above 
all, augment tlie habit of going by aislom, and not break and 
weaken it. Every aid. as we have seen, was wanted to impose the 
yoke of custom u|x>n such societies; and impressing the power 
of manner to scrvtr then* was one of the greatest aid*. 

And lastly, wc now understand why order and civilization arc 
so unstable even u\ progressive communities. We see frequently 
in states what physiologists call " Atavism '*— the return, in part^ 
to the unstable nature of tlicir barbarous ancestors. Such scenes 
of craehy and horror as happened in the great J-reiich Revolu- 
tion, and as happen, more or less, in every ^rcat riot, have 
always been said to bring out a secret a»d suppressed side of hu- 
man nature; and we now see that they were the outl>rt:alc of in- 
herited passions long repressed by fixed custom, but starling into 
life as soon as that repression was catastrophically rem<jved, and 
when sudden choice was given. The irritability nf manVind, too, 
is only part of their imperfect, transitory civilization and of their 
original savage nature. They could not look steadily to a given 
end for an hour in their prc-historic state; and even now, when 
excited or when suddenly and wholly thrown out of their old 
grooves, they can scarcely do so. Even some very high races, 
as the French and the Irish, seem in troubled times hardly to be 
stable at all> but to be earned everywhere as the passions of the 
moment and the ideas generated at the hour may determine, 
Bul> thoroughly to deal with such phenomena as these, we must 
examine the mode in which national characters can be emanci- 
pated from the ruk of custom, and can be prepared for the use 
of choice. 



CHAPTER V 



THE AGE OF DISCUSSION 
Parti 

THE |;:rcatcsl living contrast is between the old Eastcni 
ancl customary civilizations and i!ic new Western and 
dianpcablc civilizations. A year or two ago an in- 
quiry was made of otir mo5t iniclltgent officers in the Hast* 
not as to whether the EngUsli Govcmmcnt were really doing 
good in the East, but as to whether the natives of India them- 
selves thought we were df^ng good ; to which, in a majoniy 
of ca^es^ the officers who were the best authority, answered 
thus : " Ko doubt you arc giving the Indians many great t>cne* 
fits: you give Ihcm continued peace, free trade, the right lo 
live as they like, »ul>jcit to the Uw» ; in thcte ]Kjitit?L ami others 
they are tar better off tlian they ever were ; but still they cannot 
make you out. What jxizzlfs them is yoar constant disposi' 
tion to change, or as yoti call it. improvement. Their own life 
in every detail Iwing regulated by ancient usage, they caniMM 
compfehend a poHcy which h always bringing something new; 
they do not a bit bclie\'e that ihc desire to make them com- 
forlablc and happy is the root of it ; they believe, on the con- 
trary, that you are aiming at something which they do not 
understand — that you mean lo ' take away their religion ; ' in 
a word, that the end and object of all these continual changes ia 
to make Indians not wli,H they are and what they like to be, 
but something new and different from what they are, and wimt 
they would not like to be." In the East, in a word, we arc at- 
tempting to put new wine into old bottles — to pour what wc 
can of a civiitzation whose spirit is progress into the form of 
a dvflizailon whose spirit Is fixity, and whether we shall sue* 
cecd or not is perhaps the most inlcrcsling inic^liuti in an age 
abounding aluiuot beyond cxaiiipte in questions of political 
interest. 



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97 



Hifitoricat inqLiries show ihM the ft^ting rif tHe Hindoos i> 
the old feeling, and that tKc feeling of the Englishman is a 
modem feelinfr. " Old law rests," as Sir Henry Maine puts it, 
*' not on contract but on status^" The life oJ ancient civiliza- 
tion, 9o far as kg^\ records go, rurs back to a time when every 
important panicular of life was settled by a usage wliich was 
social, political, and reHgiau5« a» we should now say, all in 
one— which those who obeyed it could no: have been able la 
analyze, for those distinctions had no place in their mind and 
lan^age, but whicli they felt to be a usage oi impcmhablc 
Import, and above all things to be kept unchanged. In former 
papers I have shown, ur at least tried to show, why ihcsc cus* 
toinary civilijuitiun^ were Oie only oiiea ivhich suiu'd an early 
aociety ; why^ so to say, they alone could have been first ; in 
what rruinncr they had in their very dtructure a dcciiivc ad- 
vantage over all ccmpetitors, Out now comes the further 
question: H fixtty \s an invariable ingredient in early civiliza- 
tions, how then did any civiliration become unfixed? No 
doubt most civilizations stuck where they first were ; no doubt 
we see now why stagnation is the rule of the world, and why 
progress is the very rare exception; but we do not Icam what 
it is which has caused progress in these few cases, or the ab- 
sence o( what ii is which has denied it in all others. 

To this question history gives a very clear and very remark* 
able answer It is that the change from the age of status to 
the age ol choice was firM made in states where the government 
was to a great and a growing extent a government by discus* 
sion, and where the subjects of that discussion were in some 
degree abstract, or, as wc should say, maners of principle- It 
was in the small republics oi Greece and Italy thai the chain of 
custom was first broken, " Liberty said. Let there l>c lighi, 
and, like a sunrise on the sea, Athens arose/* says Shelley, and 
his historical philosophy is in tlus case far more correct than 
U usu^l with him. A free state — a state \iith liberty — means 
a state, call it republic or call it monarchy, in which the sover- 
eign power is divided between many persons, and in which 
there i** a discussion among those persons. Of these the Greek 
republics were the first in history, if not in timc< and Athens 
was the greatest of those republics. 
After the event it is easy to »ec why the teaching o( history 



BAGEHOT 

should be this and nothing cUc. It is easy to 5ce why the com 
inon cJiscu&sion of common actions or common mtcrcsts 
should l>ccome the root of change and progress. In early 
society, originality in life was forbidden and repressed by ihe 
fixer] rule of life. It rnay not have been quite so much sa, 
in ancient Greece as in some other parts of the world. B: 
it was vcpy rnnch so even there. As a recent writer has we! 
said, " Law then presented itself to men's minds as soradhin; 
venerable and ujichaiij;;eab1e» as old as the city ; it had been de- 
livered by the founder himself, when he laid the walls of the 
city, and kindled its sacred iire." An ordinary matt who 
wished to strike out a new path, to begin a new and importai 
practice by himself, would have been peremptorily fequire<f 
to abandon his novelties on pain of death ; he was deviating, 
he would be told, from tlic ordinances imposed by the gods on 
bis nation, «tnd he must nut do so to please himsclL On the 
contrary, others were deeply interested in his actioux. If he 
disolicycd, the gods might inHtct grievous harm on all the 
pie as well as him. Bach partner in die most ancient kind 
partnerships was supposed to have tlie power of attracting 
wrath of the divinities on the entire firm, upon the othf^r part- 
ners fjuite as much a* upon hinuelf. Tlie <juaking by^t^nders 
in a superstitious age would soon have slain :in isolated bold 
man in the beginning of hi» innovations. What Macaulay 
so relied on as the incessant source of progress— the desire . 
of man to better his condition — was not then pcmiitted tOj^H 
work ; man was required to live as his ancestors had lived- ^^^ 

Still further away from those times were the " free thought " 
and the " advancing sciences *" of which we now hear so much. 
The fir»t and most natural subject upon which human thought 
concerns itself is religion; the ftrst wish of the half-emanci-^ 
paled thinker is to use his reason on tlie great problems of 
human destiny — to find out whence he came and wliithcr he 
goes, to form fur hiniself the niot^t rea^unable idea of God whir 
he can foriH. But. as Mr. Grotc happily said — " This is usually 
what ancient timc^ would not let a man do. IIi» grns or his 
^^T^ui required him to believe as they believed/' Toleration 
is of all ideas the most modem, because the notion that the bad 
religion of A cannot impair^ here or hereafter, the welfare of 
B, is. strangeto say, a modem idea. And the help of " science/ 



de 

i 

le- 

iie 
ho I 

m 
be 
ItU 

peo*H 

id o^M 

f>an-" 




PHYSICS AND POLITICS 



W 



^ 



at iTial stage of thought, h sliJ) more lu^tory. Physical sci- 
ence, as we conceive it — that is, the systematic invettigation 
of external nature in <lHail — di<l not then exist. A few iso- 
lated observalJons or surface things — a. half-correct calendar, 
secrets mainly of priestly invcmion, and in pricsily custody- 
were all tliai was then imagined ; the idea of using a settled 
study of nature as a basis for the discovery of new instruments 
and new things, did not then exist. It is indeed a modem idea, 
and is peculiar to a few European countries even yet. In the 
most intellectual city of the ancient world, in its most intcl-* 
lectual age, Socrates, it:« most intellectual inhabitant, discour- 
aged the study of physics because they engendered uncertainty, 
and did not augment human happiness. '1 he kind of knowl- 
edge which is most connected with human progress now was 
that Ic.Tsl connected wilH tt then. 

But a guvuiuuicnt by diacu^MOP, if it can be tjorne, at once 
breaks down the yoke of fixed cuMom. The idea of the two is 
inconsistent. As far as it goc», the mere putting up of a sub- 
ject to discussion, with the object of being guided l>y that dis- 
cussLon, is a clear admission that that subject is in no degree 
settled by estahlifihctl rule, and that men are free to choose 
in it. It is an a<hni*ston too that there is no sacred authority 
— no one transcendent and divinely appointed man wbom in 
that matter the community is bound to obey. And if a sinfi:Ie 
subject or group of subjects be once admitted to discussion, 
ere long the liahit of discussion comes to be established, the 
sacred charm ol use and wont to be dissolved. '* Democracy/' 
it has been said in modem times. " is like the grave : it takes, 
but it docs not give." The same is true of" rliscusston/* Once 
effectually submit a subject to that ordeal, and you car never 
withdraw it again ; you can never again clothe it with mystery, 
or fence it by consecration ; it remains forever open to free 
choice, and exposed to profane deliberation, 

Ttic only subjects which can be first submitted, or which till 
a very late age of civilisation can he submitted to discussion 
in the community, arc the questions involving the visible and 
pressing interests of the community ; they are political ques- 
tions of high and urgent import, If a nation has in any con- 
siderable degree gained the habit, and exhibited the capacity^ 
tc discuss these questions with freedom, and to decide them 



loo 



BAGEHDT 



with fltftcrrtirtu, fo arpiw' miirh on politics and noi to ^irpit 
ruinously, an enormous advance in ather kiiuh oE civilization 
may confidently be predicted for it. And the reason is a plain 
<ie(!uction from the principles whicli we have found to ^uide 
early civilization. The first prc-hisloric men w^ere passionate 
Sdivagcs, with ilie ^eatc^t difSciilty coerce<l into order and 
compressed inio a state. For ages were spent in beginning that 
order and Eouiiding that itatc ; the only sufficient and cfFcciual 
agent in so doing was consecrated custom ; but then that cu»* 
torn gathered over cvcr>l)iing, arrested all onward process, 
anJ stayed the originality ol mankind. If, therefore, a nation 
is able to gain the benefit of eustom without the evil — if after 
ages of waiting it can liavc urdcr and choice together — at once 
the fatal clog ift removed, and tlic ordinary springs of progress, 
as in a modern conin^unily we conceive them, bcg^o their eta** 
tic action. 

Di&cussion, too, has incentive? to progr<5S peculiar to itself. 
It gives a premium to iniclhgt^nce. To set out the arguments 
required to determine political action wilh such force and effect 
that they really shoiihl determine it, is a high and great exer- 
tion of intellect. Of course, all such arguments arc produced 
under conditions ; the argument abstractedly best is not necc^ 
sarily the winning argument. Political discussion must move 
those who have to act : it must be framed in the ideas, and be 
consonant with the precedent, of its 1ime> just as it must speak 
its language. But within these marked conditions good discus* 
sion is better than bad ; no people can bear a government of dis- 
cussion for a day, which does not, within the boundaries of its 
prejudices and its ideas, prefer good reasoning to bad reason- 
ing, sound argument to impound. A prize for argumentative 
mind is given in free states, to which no other states have 
anything to compare. 

Tolerance too ;» learned ir di.nciission, and, as history sJiows, 
is only so learned. In all customary societies htgotry is the ruin- 
ing principle. In rude places to thir> rl-iy any one who says 
anything new is looked on with suepicion. and is persecuted 
by opinir>n if not injitred by penalty. One of the grratest pains 
to human nature is the pain of a new idea. It is» as common 
people say. so " upsetting : *' it makes you think that, after all, 
your favorite notions may be wrong, your firmest beliefs UI* 



I 



PHYSICS AND POLITICS 



Wt 



f>andcd; it is certain that till now tlicrc wss no place allotted 
in your mind to th« new and Btartlmg inhabitant, and now 
thai it has eon<juercd an rnlrance, you do not at once see which 
of your old idea*t ii will or will not turn out, with whioh of them 
it can be reconciled, and with which it is at essential enmity. 
Naturally, therefore, ccmmoo men hate a new idea, and arc 
disposed more or less to ill-treat the ori^nal man who brings 
it. Even nations with long habiu of discussion arc intolerant 
enough. In Enf^land, where there is on the whole probably 
a freer discussion of a greater number of subjects than ever 
was before in the world, we know how much power bigotry 
retains. But discussJQn, to be successful, requires tolerance. 
It fails wherever, as in a brench political assembly, any one 
who hears anything wliicli he dislikes tries to howl it down. 
If wc know that a nation is capable of enduring continuous 
discusAion, we know ihat it is capable of practising wlih 
t^uaniniily cuutinuous tolerance. 

The power of a govcrnmcnl by discussion as an instrument 
of elevation plntnlj- depends — other things being equal — on the 
greatness or liuleness of the tliinf^s to be discussed. There 
arc periodf^ when great ideas are " in the air," and when, from 
some cause or other, even common person* seem to partake of 
an utTusnal elevation. The age of Eliatabeth in England was 
conspicuously such a time. The new idea of the Rrformation in 
religion, and the enlargement of the mtrnia mundi by the dis- 
covery of new and singular lands, taken together gave an im- 
pulse to thought which few, if any, ages can equal. The dis- 
cussion, though not wholly free, was yet far freer than in the 
average of ages and countries. Accordingly, every pursuit 
seemed to start fc»rward. Poetry, science, and architecture, 
different as they are. and removed as they all are at first sight 
lro<m i^ucli an innuence as discussion, were wudiU-nly started 
onward. Macanlay would have said you might rightly read 
the power of diseussion *' in the poetry of Shakespeare, In Hit 
prose of Bacon, in the odcls of Longleat, and the stalely pin- 
nacles of Burleigh/' This is. in truth, but another case of the 
principle of which I have had occasion to say so much as to the 
character of ages and countries. If any particular power is 
much prized tn an age, those poseessed of that power will be 
imitated; those deficient in that power will be despised. In 




BAGEHOT 



I 

4 



oonMquence an tanusual quantity of that power wtll be dc 
0|wd> and be conspicuous. Withm certain limitK vigorous ind 
elev^iretl thought was respected in Elizabeth's time, and, ihere^ 
fore, vigorous and elevated Ihiiiken* were many ; and the effect 
went far beyond tlie cause: It penetrated into physical science, 
(or which very few men cared : and it begsui a reform in philos- 
ophy to which almost all were then opposed. In a word, the 
temper of the age encouraged onginal;l)', and in consequence 
original men started into prominence, went hither and thither 
where they likeJ, arrived at goaU whicli the age never ex- 
pected, and so made it ever memorable. 

In this manner all the great movements of thought in 
ancient and modern times have been nearly connected in time 
whh government hy discu^sio^. Athens, Rome, the Italian 
rcpuhhcs of the Middle Ages, the communes and states-gen- 
eral of feudal Curopc, have all had a special and peculiar 
quickening influence, which they owed to their freedom, and 
which states withont that freedom have never communicated 
And it ha* been at ihe time of great epochs of thought — at ihc 
Feloponne^ian war, at the fall of the Roman Republic, at the 
Reformation, at the French Revolution — that such liberty of 
speaking and thinking have prodiiccd their full effect. 

It is on this account that the discussions of savage tribes 
have produced so liule effect in emancipating those tribes from 
their despotic cusloms. The oratory of the North American 
Indian — the first savage whose pectiliarities fixed themselvci 
in the public imagination — has become celebrated, and yet the 
North American Indians were scarcely, if at all, better orators 
lh:in many other savages. Almost all of the savages who have 
mcUed away l>efore the Englishman were better speakers llian ^j 
he is. But the oratory of the savages has led to nothing, and ^M 
was likely to lead to nothing. It is a ttiscmston not of prfn* ^t 
ciplcs, tut of undertakings ; its topics are whether ex)»edit]on 
A will answer, *nd should be undertaken: whether expedi- 
tion B will not answer, and should not l>c undertaken ; whether 
village A is the be*t village to plunder, or whether village E 
is a better Such discussions augment the vigor of language, 
encourage a debating facility, and develop those gifts of de* 
Rieanor and of geisture which excite the confidence oi the hear- 
ers- But they do not excite the speculative intellect, do act 



4 
4 



4 
4 



rSlCS AND POLITICS 



»i 



lead men to argue ^jieculative doctiincs, cr lo question ancient 
principles. Thcyf in some material respects, improve the sheep 
within the fold; but th«y do not help them or incline them to 
Uap out of the fold. 

The next question, therefore, it, Why did discussions in som^ 
cases relate to prolific idess, and u;hy did discns«ions in othi*r 
CMes rebie only to isolated tmnsat^lions? The repl> which 
history sue:G:csts is very clear and -cry remarkable. Some 
races of men at our earliest know]edi;fe of then) have already 
acquired the basis of a free constitution ; they have already the 
rudiments of a complex polity — a monarch, a senate, and a 
general meeting of citizens. The Greeks were one of those 
races, and it happened, as was natural, that there was in procef^s 
of lime a struggle, the earliest that we know of, between the 
aristocratical party, originally represented hy the Senate, and 
the popular party, represented hy the " general meeting." 
This is plainly a question of principle, and its being so has led 
to its history being written mere than two thousand years after- 
wards in a very remarkable manner. Some seventy years ago 
an English country gentleman named Mitford, who. like so 
nany of his age, had bctn terrified into aristocratic opinions by 
the first French Revolution, suddenly foimd that the history of 
the Peloponnesian War was the reflex of his own time. He 
took tip his Thucydides, and there he saw, as in a mirror, the 
progress and the strugi^les of his age. It required some fresh- 
ness ol mind to see this: at least, it had been hidden for many 
centtjrics. All the modem histories of Greece before Mitford 
had but the vaguest idea of it ; and not being a man of supreme 
originality, he would doubtless have had very little idea of it 
cither, except that the analogy oi what he saw helped him by a 
telling object-lesson to the understanding of what he read. 
Just as in every connlry of Europe in 1793 there were two tac- 
tions, one of the oM-world ariaiocracy, and the other oi the 
incoming democracy, just so there was in every city of ancient 
Greece, in the year 400 bx.. one party of the many and another 
of the few. This Mr, Milfwrd perceived, and being a strong 
ansCocrat. he wrote a "history," which is little except a party 
pamphlet* and which, it mtist be said, is even now readable on 
thai very account. The vigor of passion with which it wa» 
written puts life into the worde, and retains the attention of 




tftC 



' BAGEHOT 



the rcjidcr. And ihal ii not all. Mr, Groxt, the lir^^t ddiol 
whom wc have had lately to mourn, aUo nrco^inng the idcn 
tity bctw««n the struggles of Athcni; and Sparta and th« strug- 
gles of our modern world, and taking violently tbv contrary 
sid« to that of Mitfnrd, being :i« grent a democrat at Mitford 
waft an anstocrat, wrote a r<rply, far above Mitford's history in 
power and learning, bul bcin^ in iu niutn characteriMic almoit 
identical, beinir above all things a book oi vigorous poUtkal 
passion, written (or persons who care for politics, and not, a> 
almost all histories of antiquity arc and most be, the book of 
a man who cares for scholarship more tlian for anything che, 
written mainly, i( not exclusively, for scholars. And the cflcct 
of fundamental political discuii&ion was the same in ancient as 
in modern tintcs. The whc^lc customary ways of thought were 
at once shaken by it, and shaken not only in the closets 
philosophers, but in the common thought and daily busin 
of ordinary men. The " liberation vf humanity/' a» Goethe 
used to call it — the deliverance of men from the joke of in- 
herited UKftge, and of rigid, unqueittirjnable law — was begun 
Greece, and had many of its greatest effects, good and evil, 
Greece. It ifi just because of the analogy li^twccn the coi 
troversies oE that time and chose of our times that some one b, 
said, "Classical hif^inry ik a part of modem history; it 
mediaeval history only which is ancient " 

If there had been no discussion of principle in Greece, 
ably she would still have produced works of art. Homer con- 
tains no such discussion. The speeches in the '' Iliad,*' which 
Mr. Gladstone, the most competent ol living judges, maintains 
10 be the finest ever composed by man, arc not disctisstons oi 
principle. There is no more tendency in ihem to critical dis- 
<tuis]tion than there is to political economy. In Herodotus 
you have the beginning ol the age of discuwion. He bcloni 
In his estence to the age which is going out- He refers wi 
reverence to established ordinance and fixed religion, 
in his travels through Greece, he must have heard endless 
litical arguments^ and accordingly you can jind in his bo 
many incipient traces of abstract political disquisition. The 
discourses on democracy, anst^eraey, and monarchy, wliii 
he puts into the mouth of the Persian conspirators when 
monarchy was vaeant, have justly been called absurd. 



'M 





PHYSICS AND POLITICS 



ws 



speeches supposed lo have been apokcji by those persons. Xo 
Aaiaiie ever ihouf^ht of such tliinprs. Vou might as welt im- 
rn^nc Saut or David speaking chem as those to whom Herod- 
otui allributes Ihem, They arc Greek speeches, full of free 
Greek disctissfon, anrt stig^strH by the experienee, already 
considerable, of the Cireeks in the results of discussion. The 
age of debate is beginning, and even Herodotus, the It-asl of a 
wrangler of any man, and the n»ost of a sweei nnd simple nar- 
rator, felt the effect. When we come to Thuc>'dides. the results 
of di^ctis^'Lion are as full as ihey have ever been ; his light h 
pure," dry tiglili" free from the*' humors "of habit, and purged 
from consecratei.! usage. As Crole's history often reads like a 
report lo Parliament, so hall Thucydides reads like a speech, 
or materials for a speech, in the Athenian Assembly. Of later 
limes it is unneccssarA- to speak. Evcr>' page of Aristotle and 
Plato bears ample and indelible trace of the age of discussion 
in which ihcy lived; and thought cannot possibly be freer. 
The delivei^tnee of the spccululive tntcUecl fiom traditional 
and customary- authority was altogether complete. 

No doubt the " deiaehment" from prejudice, and the sub- 
jeetion to reason, which I ascribe to ancient Athena, only went 
down a very little way among the population of it. Two great 
classes of the pcopltr. the slaves and women, were almost ex* 
chided from such qualities; even the free population doubt- 
less contained a far greater proportion of very ijrnorant and 
ver>' superstiltous persotis than we are in the habit of imagin- 
ing. We fix our attention on the best specimens of Athenian 
culture — on the books which have descended to us, and we 
forget that the corporate action of the Athenian people at va- 
rious critical junctures exhibited the moM gross superstition. 
Slill, as far as the intcUcctnal and cultivated part of society is 
COACCrned, the triumph of reason was complete; the minds 
oftht highest philosophers were then as ready lo obey evidence 
and reason ns they hnve ever been since; probably they were 
more ready. The rule of custom over them at least had been 
wholly brukcn, and the primary conditions of intellectual prog* 
ress were in that respect satisfied. 

It may be said that I am j;;tvLng too much weight to the clas- 
sical idea of human development: that history contains the 
record of another progress as well; that In a certain sense 



1 



BAOEHOT 



there was pro^rcBn in Judaea as well as in Atbcrm. And ttn- 
c|ue«tionably llierc was progress, but it was only progrew upon 
a ^ngtc subject. II wc except religion and omit also all that 
the Jews hn*i Iwimed from foreigners, it may be doubted if 
there be much else new between ihe time of Samuel and that 
of Malachi. In religion there was process, but witliotit it there 
was not any. This was due to the cause ot that progress. All 
over antiquity, all over the East, and over other parts of the 
world which preserve more or less nearly their ancient condi- 
tion, there are two classes of relij^ious teachers — one, the 
priests, the inficntors ol past accredited inspiration ; the other, 
the prophet, the possessor of a like present inspiration. Cur-* 
tins describes the distinction well in relation to the condition 
o( Greece with which history first presents us: — 

"The mantle art i? an imdtution tolally different from the 
priesthood. It is based on the belief that the firods are in con- 
stant proximity to men, and in their govern meni of the world, 
which comprehends c^e^ything both £freat and small, will not 
disdain to manifest their will; nay, it seems necessary thai, 
whenever any hilch has arisen in the moral system of the liuntan 
world, this should also manifest ilsclf by some sign in the world 
of nature, if only mortals are able to understand and avail them- 
selves of these divine hints. 

" For this a Gpecial capacity is requisite; not a capacity 
which can be learn: like a human art or science, but rather a 
peculiar slate of grace in the case of single individuals and 
single families whose ears and eye^ are opened to the divine 
revelations, and who participate more largely than tie rest of 
mankind in the divine spirit. Accordingly it is their office and 
calling to assert themselves as organs of the di\ine will; they 
are justified in opposing their authority to c\'cry power of the 
world. On this head coiiflitts were unavoidable, and the rem* 
inisccnccs living in the Creek people, of the agency of a 
Tircsias and Calchas, prove how the Heroic kings experienced 
not only support and aid, but also opposition and violent pro- 
tests, from the months of the men of prophecy," 

In Judiip.i there wna exactly the same opposition as else- 
where. All that is new comes from the pro^ihcts; all which 
is old is retained by the priests. But the peculiarity of Jud»i— 
a peculiarity which I do not for a moment pretend that I can 



4 
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PHYSICS AND P0LTTEC5 



io| 



explain — U that the prophctk revelations are, taken as a whole, 
indisputably itnprovtTiient^; that they contAin, as time goes 
on, at each fiucctedinf; epoch, higher and better views of re- 
ligion. But the peculiarity h not to my preseui purpose. My 
point is that there is no such sprea-ding impetus in progress 
thu& caused as there is in progress caused by discussion. To 
receive a particular conclusion upon the ipse dixit, upon tlie 
accepted authority o( an admired instructor, is obviously not 
so vivifying to the argumentative and questioning intellect as 
to argue out conclusions for youriell. Accordingly the re- 
ligious progress caused by the prophets did not break down 
that ancient code of authoiit^itivc um^c. On Uw contrary, the 
two combined* In each goicratiou the conservative influaicc 
" built the acpulchrca " and accepted the teaching of past 
propbcta, even while it was slaying and pcreccuttng those who 
were livin|;. But discussion and custom carnot be thiu com- 
bined ; their " method/' as modern philosophers would say, is 
anUgortstic. Accordingly, the proRres* of the daftsical ntatet 
gradually awakened the whole intellect ; tliat of Judxa was 
partial and improved religion only. And, iheTcforc, in a history 
of intclkctual progress, the classical fiUs the superior and the 
Jewish the inferior place; just as in a special history of iheol* 
ogy only, the places of the two might be interchanged. 

A second experiment ha* been tried on the same subject- 
matter. The characteristic of the Middle Ages may be ap- 
proximately — iliough only approximately — described as a 
return to the period of authoritative usage and as the abandon- 
ment of the classical habit of independent and selfxhoosing 
thought. I <lo not for an instant mean that this is an exact 
description of tlic maiii medieval charactcrifitic ; nor can I 
di&cuss hovr far that characlcristk was an advance upon those 
of previous limes ; its fncntis say it is far better tlian the pc- 
euliarilics of the clasncal period; its enemies that it is far 
worse. But both friends anrl enemies will admit that the most 
marked feature nf the Middle Ages may roughly be (described 
as I have described it. And my point is that just as this 
medieval characteristic was that of a return to the essence of 
the customary epoch which had marked the prc-Athcnian 
times, so it was dissolved much in the same manner as the in- 
fluence of Athens, and other influences like it, cUim to have 
diisolved tliat customary epoch. 




ua 



BAGEUOT 



The principal aiQtnl in breaktoir ttp the penlslenl 
customs, which were so fix^d that they 5c<:mccl likely to last 
forever, or till some historical catastrophe overwhelmed tbcsn. 
wa( the popular element in the ancient polity which was every- 
where diffused in the Middle Ages, The Germanic tribes 
brought with them h'om (heir ancient ditelling-place a poGty 
containing, like the classical, a kmf?, a council, and a popular 
assembly; and wtierever they went, they carried these de- 
ments and varied them^ as force compelled or circumsuiKts 
required. A» far a» FiigUnO b coticerred, the excellent dis- 
Krtatiooa of Mr. Freeman and Mr. Stubb» have pruved tbJs 
tn the amplest manner, an<l brought it borne to persons w3io 
aumot claim to possess much aniiqturian learning. The hi»* 
tory oi the English ConMhution, as far as the world cares for 
it, is, in bet, tlic complex liistory of the popular element lo 
IhU anciont |>nlity, which wa% ftometimr^ weaker and *ome 
limes stronger, but which has never died ottt, lin« commonly 
pOMCSH'd Great though varying ix^wer. and is now enlirely 
predominant. The history oj this Krowtli is the history of tlie 
English people; and the discussions about this comtitutfon 
and the discussions within it, the controversies as to its stmc* 
ture and the controversies as to its true effects^ have maini 
trainee! the English political intellect, in so far as it i* trained.' 
But in much of Europe, and in Kngland particularly, the in- 
fluence ol religion has been very different from what it was in 
antiquity. It has been an influence of discussion. Since 
Luther's time there has been a conviction, more or less rooted, 
that a man may by un hilclleetLul proceaii think uut a religi 
for himself, and that, as tlic higliest of all duties, he ought 
do so. The influence of the political diacusaion, and t]ie in- 
fluence of the relif^ious discussion, have been so long and s>o 
firmly combined, and have no effectually enforced one another, 
(liat the old notions of loyalty, and f^^lry, and authority^ as they 
existed in the Middle Ages, have now over the !>rst minds 
most no effect. 

Il is true titat the influence of disctission is not the onljr] 
force which has produced this vast effect. Both in ancieni and 
in modem limes other forces co-operated with it. Trade, for 
example, is obviously a force which has done much to brinf^ 
men of different customs and different beliefs into close 



m 






PHYSICS AND rOLITICS 



109 



i lias thus aided to change tli<* cusiotns ami tlie b^ 
licfs of thcRi all. Colonizatioti \a aiirMher such inllucncc: it 
settles men among aborigines of alien race and usages, and it 
commonly compels the colonists not to be over-strict in the 
choice of their own elements ; they arc obliged lo coalesce with 
and " adopt " useful bands and useful men, ihough their an- 
cestral customs may not be identical, nay, though they may 
be. in fad, opposite to their own. In modern Europe, the ex- 
istence of a cosmopolite Church, claiming 10 be above nations^, 
and really extending through nations, and tlic scattered re- 
mains of Roman law and Roman civilization co-opcraicil wfih 
the liberaiing inllucncc of political discussion. And so did 
other causes also. Bui perhaps in no caw^ huvc ihcac sub- 
sidiary causes alone bcai able to generate intellectual freedom ; 
certainly in all the most r*;markable cases the infiuence of dia- 
enssion has presided at the creation of that freedom, and has 
been active and dominant in it. 

No doubt apparent rases of excrption may mMly be found. 
It may he said that in the Court of Atigmtus there was much 
general intellectual freedom, an almost entire detachment from 
ancient prejudice, but that there was no free political discus- 
sion at all. Rnt, (lien, ibeomawinits of that time were <lcnved 
from a time of great freedom : it was the republic which trained 
the men whom the empire ruled. The close congregation of 
most miscellaneous elements under the empire was, no doubt, 
of itself unfavorable lo inherited prejudice, and favorable to 
intellectuaf exenion* Vet, except in the iii&tance of the 
Church, which is a peculiar subject that requires a separate tlfs- 
cmsion, bow little was added to what rhe republic left I The 
power of free interchange of ideas being wanting, the idc^ 
themselves were l»arren. Also, no doubt, much intellectual 
freedom may emanate from countries of free political discus- 
sion, and penetrate to countries wht-re that discussion is lim- 
ited. Thus ihf^ irtcllectual freedom of Frarce in the ei)^hee<^nlh 
century was in great part owin^r to the proximity of and inces- 
caot intercourse with England and Holland. Voltaire resided 
urong us : and every pa^re of the " Esprit des Lois " proves 
how much Montesquieu learned from living here. But, of 
course, it was only pan o( the French culture which was so de- 
rived: the germ might be foreign, but the tissue was native. 



no 



BAGEIIOT 



And very naturally, for it wonM be absuni to call the annm 
fiz^^ a government without discussion : dtscusiiioii abounded 
there, only, by reason of the bad forra of the govcmtncnl, it 
was never sure xvitb case and certainty to affect political actioa 
The dcapotism "tempered by epigram/' was a pDvcmmcnt 
which permitted argument of licentious freedom witbin c1ud£- 
in^f limits, and which was ruled by that arf^mcnt spasmed' 
icall) and practically, though not in name or constMently. 

But though in the earliest ajicl in the latest time govcrnmenl 
by disctrssion bus been a principal organ for improvitig man- 
kind, yet» from its origin, it is a plant of singular delicacy. At 
fimt the chuiice> ure inudi ;l^ain^t lU liviuK^ In tlie btrpn- 
ning, llie inciiibeis ol a free state arc of neccfsity few- The 
C9icncc of it re<iiiircs that diacusaion »lialt be brought botne to 
tbo&c members. But in early time, when writing is difficult, 
reading rare, and Tepre«entation undiscovered, those who are 
to be guided by the discnsfiion must hear it with Ibeir own 
eant, nmst be brought face to face with the orator, and muu 
feci bis influence for themselves* The first tree states were 
little towns, sntaller than any potilical di%i<iion which wc now 
have, except the republic of Andorra, which is a sort of vestige 
of them. It 15 in the market-place of the country town, as we 
should now speaks an<l in petty matters concerning the market* 
town, tltatdiscui»ion hegan, and thitlicr all the long train of its 
consequences may be traced back. Some historical inquirer?, 
lilte myftell, can hardly look at such a place without some senti- 
mental nulling, poor ami trivial aii tlie thing seems. But such 
small towns arc very feeble, Numbers in the earliest wars, as 
in the lateM, are a main ^^iirce uf victory. And in early times 
one kind of atate is very common and is exceedingly numerous. 
In every qtiartcr of the globe we find great popiilntions com- 
pacted by traditional custom and consecrated seniimcnts, which 
are ruled by some soldier — generally some soldier of a foreign 
tribe, who hat conquered them, and, as it has been »aid, 
" vaulted on the back " of them, or whose ancestors have done 
so. These grent populations, ruled by A single w4II, have, 
doubtless, trodden down and destroyed innumerable little cities 
who were just beginning their freedom. 

In this way the Greek cities in Asia were subjected to the 
Persian power, and so ought the cities in Greece proper to have 



i 



4 





PHYSICS AND POLITICS 



tcon subjected also. Every schoolboy must have felt that 
rocliitij^ buX aiitanng foUy ati<l unmatchciJ mi^mana^ment 
saved Greece fruni conquciil botli in the lime of Xerxes and in 
tliat of DariuA, The fortunes of intellectual civilization were 
then at the oicrcy of what seems an insignificant probabitity. If 
die Persian leaders had only shown that dcccrt skill and ordi- 
nary military prudence which it wa^ likely they would show, 
Grecian freedom would have been at an end. Ath«ns> like ao 
many fnnian ctltei on the other si*l^ of the ^gean, would have 
been absorbed into a great de^poiism: all we now rememl)er 
her for we should not remember, for it would never have oc- 
eurred. Her citizens might have iHren iri^ciiious and imitative 
and clever; they could no( certainly have been (rcc and orisr- 
inal. Rome was prcscT\'c<l from subjection to a great empire 
by her (orttmate distance from one. The early wars of Rome 
arc with cities like Rome— about equal in siie, though inlerinr 
in valor It was only when she had coacjtiercd Italy that she 
began to measure herself against Asiatic dcspotiinn. She be* 
came great enough to l>eat them before she advanced hr 
enough to contend with them. But such great good fortune 
was and nimt be rare. Unnumbered little chies which might 
have rivalled Rome or Athens doubtless perished without a 
sign long before history was imagined. The small sixe and 
slight strengtli of early free states made them always liable 
to easy destruction. 

And their internal frailty is even greater- Aa soon as dis- 
cussion begins the «vagr propen^tie* of mrn hrraV forth; 
even in modem communities, where ihos^ propensities, tof>, 
have been weakened by ages of culture, and repressed by ages 
of obedience, as soon as a vital topic for discussion is welt 
started the keenest and most violent passions break forth. 
Easily destroyed as arc early free states by forces from without, 
they arc even more liable to destruction by forces from within. 

On this account such states are very rare in history. Upon 
the first view of the facts a speculation might even be set up 
that they were peculiar to a particular race. By far the most 
important free institutions, and the only ones which have left 
living representatives In the world, arc the offspring either of 
the first constitutions of the classical nati^^ns or of the fir^t 
constitution* of the Germanic nations. All living freedom runs 





ITS 



BAGEHOT 



back to ihem, ami those truths which at lini Aight would sccixi 
the whole of hUtorical freedom^ can be traced to them* And 
both the Germanic and the cla£»ical oation* Ixlong to what 
ethnologists call the Ar>-ati race. Plausibly it might be argued 
that the powrr of fr>rming frt^ 3;taE<'ft wa^ superior in and pe- 
culiar tn thai family of mankind. But unfortunately for thiii 
easy theory the facts are triconMstent with it. In the first place 
all the so-called Aryan race certainly is not free. The Eastern 
Aryans — those, for example* who speak languages derived 
from the Sanscrit — are amon^ the most slavish divisions of 
mankind. To offer the Bengalesc a free constitution, and to 
expect them to work one, would be the maximum of human 
foily. Tlicrc then must be something else besides Aryan de- 
scent which is necessary to fit men for discussion and Iraia 
ihcm for liberty; and, what is worse for the argument we are 
opposing, some non-Aryan races have been capable of free- 
dom. Carthage, for example, was a Semitic R-public, We do 
not know all the details of its couMtttition, but we know 
enough for our present purpose* We know that it was a f^ov- 
emment in which many proposers took part, and under which 
discussion was constant, active, and conchi^five. No doubt 
Tyre, the parent city of Carthage, the other colonies of T>Te 
besides Carthage, and the colonies of Carthage, were all as free 
as Carthajfe. We have thus a whole (jroup of ancient rcptiblict 
of non-Ar>'an race, and one which, being more ancient than the 
elasiical republics, could not have borrowed from or imitated 
them. So that the theory which would make government by 
discussion the exclusive patrimony of a single race of man- 
kind is on the face of it untenable. 

I am not prepared with any simple counter theory. I cannot 
profess to explain completely why a very small minimum o( 
mankind were, as long as we know of them, possessetl of a 
polity which as time went on suggested discussions of pdn* 
ciple, and why the great majority uf mankind had nutliing tike 
it. This is almost as hopeless as asking why Milton was a 
genius and why Bacon wav a philosopher. Indeed tt is the 
same, because the causes which give birth to the startUnj; 
varietiet of individual character, and those which give birth 
to similar varieties of national character, are, in fact, the same. 
I have, indeetl, endeavored to show that a tnarked t^^ie of in- 



4 

4 





PHYSICS AND POLITICS 



»"3 



dividual character once originating in a nation and once 
fttrongly preferred by it, is likely to be fixed on h and to lie 
permanent in it, from caiisrs which w^re stated. Granted the 
beginning of the type, wc may, I think, explain its develop- 
ment and aggravation ; but wc cannot in the least explain why 
Ihe incipient type of curious characters broke out, if ! may so 
say, in one place rather than in another. Climate and " phys- 
ical '* surroundings, tn the largest sense, have unquestionably 
much influence; they arc one factor in the cause, but they arc 
not the only factor; for we find most dissimilar races of men 
living in the same climate and alfected by the ^me surrovmd- 
ings> and wc have every reason to believe that those unhke 
races have so lived as neiglihor* for age^. The cause of types 
must be something outside the tribe acting on something with- 
in — something inherited by the tribe, Bui wliat that some- 
thing is I do not know that anyone can in the least explain. 

The following conditions miy, 1 thmk, be historically traced 
to the nation capable of a polity which sitggesEs principtes for 
discussion, and so leads to progress. First, the nation mniit 
possess the patria potestas in some form so marked as ro give 
family life <li£tinctness and precision, and to make a home edu- 
cation and a home discipline probable and possible. While 
descent is traced only through the mother, and white the family 
is therefore a vague entity, no progress to a high polity is pos- 
sible. Secondly, that polity would seem to have been created 
very gradually; by (he aggregation of families into clans or 
gniU'S, and oi clans into nations, and then again by the widen- 
ing of nations, so as to incltide circumjacent outsiders, as well 
as the first compact and sacred group—the number of parties 
to a discussion was at first augmented very slowly, Tliirdly, 
the number of " open " subjects — as we should say now-a-Uays 
— tliat is, of subjects on which public opinion was optional, and 
on which discussion was admitted, was at first very small Cus- 
tom ruled everything originally, and the area of free argument 
wa* enlarged but ver>* slowly. If I am at all right, that area 
could onl/ be enlarged thus slowly, for ciutom was in early 
day* the cement of society, and if you suddenly questioned such 
custom you would destroy society- Bttt though ihe ejcistencc 
of these conditions may be traced historically, and though the 
reason of them mav be explained philosophically, they do not 
S 



BAGEHOT 



completely Rolve the question why K>nic nations have the polity 
and some not ; on ttie contrary, they plainly leave a large 
" residual phenomenon " unexplained and unknown. 

Partn 

In ihU manner politics or discussion broke up the dd bo: 
of custom which were now alrangUng mankind^ though ihey 
had once aided and helped it. Out this is only one of the 
many gifts which those polities have conferred, are confcr- 
ring» and will confer to mankind. I am not f^oin^ to write 
an eiilogium on Ubcrty, but 1 wish to set down three points 
which have not been sufhcicntly noticeJ. 

Civilized ages inherit the human nature which was victorious 
In barbarous ages, and iliat naiurc is, in many napccis, not at 
all suited to civilized drcumaUnceji. A main and principal 
excellence in the early times of the human races is the hnpnlic 
to action. The problems before men are then plain and sim- 
ple. Tlic man who works hardest, the man who kilb the most 
deer, the man who catches the most fish — even later on, ihe 
man who tends the largest herds, or the man who till* the larg- 
esf field — is the man who succeed* ; the naiion which is quick* 
est to kill ilft enemies, or which kills most of its enemieit, is the 
nation which succee<Is. AH the inducements of early society 
tend to foster immediate action ; all its penalties (all on the 
man who pauses; the traditional wisdom of those times waft 
never weary of inculcating that '* delays are dangerous," and 
that the sluggish man — the man " who roasicth not that which 
he took in hunting" — will not prosper on ihc earth, and. in- 
deed, will very soon perish out of it. And in consequence an 
inabiUty to stay quiet, an irritable desire to act directly, is one 
of the most conspicttous failings of mankind. 

Pascal said that most of the evils of hfe arose from "man's 
being unable to sit still in a room " ; and though I do not go 
thst length, it is certain that we should have been a far wiser 
race than we arc if we had been readier to sit quiet — ^we shotdd 
have known much better ilic way tn which it was best to act 
when we came to act. The rise of physical science, the fir*l 
great body of practical truth provable to all men, exemplifies 
tills in tlie plainest way. If it had not been for quiet people. 




I 



I 

I 



PHYSICS AND POUTICS 



mio aat Will and etttdicd the sections of the cone, if other cjuict 
people had not sat still and sttidted the theory oi iniinitcsinials, 
or otht^r quiet people had not sal still and worked out the doc- 
trine of chances, the most ** dreamy moonshine," as the purely 
practice mijid would consider, of all human pursuits ; U *' idle 
star-gazers" bad not watched long and orefully the motions 
of the heavenly bodies — our modem astronomy would have 
been impossible, and without our astronomy " our sliips, our 
colonies, our seamen," all which makes modern hfc, modern life 
could not have cjcistcd. Ages of sedentary, quiet, thinking peo- 
ple were rccjuired before that noisy existence began> and with- 
out those pale preliminary sludcms it never could have been 
brought into beingf. And nine-tenths of modem science is in 
this respect the same : it is the produce of men whom their con- 
temporaries ilioug^ht dreamers — who were laughed at for car- 
ing for what did not concern ihem — who, as the proverb went, 
" walked into a well from looking at tlic stars " — who were be- 
lieved to be useless, if anyone could be such. And the con- 
elusion ij; plain that if there had been more such people, if the 
world had not laughed at those there were, if rather it had en- 
couraged them, there would have been a great accumulation 
nf pmved science ages before there was. It was the irritahle 
activity, the "wish to be doing something" that prevented it- 
Most men inherited a nature too eager and too restless to he 
quiet and find out things; and even worse — with their idle 
clamor lliey " disturbed the brooding hen/' they would not let 
thoae be quiet who wished to be so, and out of whose calm 
thought much good might have come forth. 

If we consider how much science has done and how much it 
is doing for mankind, and jf the over-aclivity of men is proved 
to be the cause why science came so late into the world, and is 
so small and scanty still, that will convince most people that 
our over-activity is a very great evil. But ibis is unly part* 
and perhaps not the greatest part of the harm that over-activ- 
ity does. As t have said, it is inherited from times when life 
was simple, objects were plain, and quick action generally led 
to desirable ends. If A kills B before B kills A, then A sur- 
vives, and the human race is a race of A's. Bui the issues of 
life are plain no longer. To act rightly in modem society r*» 
quires a great deal of previous study, a great deal of assimilated 





11$ 



BAGEUOT 



information, a gr^at d«al of Hharpened imr^n.-itton ; and these 
pre-rcqLt]«iics of sound action require much time, and, 1 was 
^oing to lay, much " tying in the sun," a long period oi " mere 
pa ssi veil ess." Even ihe art of killing one another, whieh at 
first particularly trained men to be <iuick, now requires them 
to be sk>w< A hasty ^ncral is the worst of generals iiow*a- 
days ; the bes^t i^ a son of Von Moltke, who is pa^^sivc if any 
man ever was passive; who is "siJent in seven lant^uaj^cs**; 
who possesses more and better accumulated information as 
lo the best way of killing people than an>x>nc who ever Uved. 
This man plays a restrained and considerate ^me of chess 
with his enemy. 1 wish the art of bcnchtinp men had kept pace 
wtlh the an of destroying Ihem ; for though war has become 
slow, philanthropy has remained hasty. The most nteUncholy 
of human redections perhaps, \s tliai, on the whole, it is a qi>es* 
tion whether the benevolence of mankind doc« most ^oud or 
harm. Great good, no doubt, philanthropy doe>, but then it 
also docs great evil. It augments so much vice, it multiplies 
ta much suffering, it bringjt to life «uch great populations to 
sufTer and to be vicious, that it is open lo argument whether 
it he or be not an evil to the worlrl, and th» h entirely because 
excellent people fancy that they can do much by rapid anion— 
that they will most benclit the world when they most relieve 
their own feelings ; that as soon as an evil is seen " something " 
ought to be done lo stay and prevent it. One may incline to 
hope that the balance of good over evil is in favor of benevo* 
lenee; one can hardly bear to think that it is not so; but any- 
how it is certain that there is a most heavy debit of evil, and that 
this burden might almost all have beeti spared us if philan- 
thropists as well as others had not inherited from their ba^ 
baroua forefathers a wild passion for instant action, | 

Even in commerce, which is now the main occupation dl 
mankind, and one in which there is a ready lea-l of success; and 
failure wanting in many higher pursuits, the s^nic di^pos]tkJn 
to excessive action is very apparent lo careful observers. Part 
of every mania is caused by the impossibility lo get people to 
confine ihemKoIves to the amount of business for which their 
capital i*. sufficient, and in which they can engage safely. In 
some degree, of course, this is caused by the wish fo get rich; 
but {n a considerable degree, loo. by the mere love of activity. 



PHYSICS AND POLITICS 



Wi 



Tlicrc U a grcaler propensity to action in such men than Ihcy 
have tht means of gralifying. Operations willi tlieir own cap- 
ita) will cnly occupy foor hours of the day^ and tlicy wish lo 
be active anti to be indusirtous for tight hours, and so ihcy 
arc mind. If they could only have sat idle the other four 
hours^ they wniiiri have been rich men. The amusements ot 
mankind, at least of the English part of mankind, leach llie 
same lesson. Our shooting, our hunting, our tTavclliug, our 
climbins: have become laborious pursuits. It is a common say- 
ing abroad that *' an Englishman's notion ol a holiday is a 
fatiguing journey"; and this is only another way of saying 
that the immense energy and activity which have given us 
our place in the world have in naiiy cases descended to those 
who do not find in modem htc any mode of using that activity, 
and of venting thai energy. 

Even the abstract speculations of mankind bear conspicuous 
traces o( the same excessive impulse. Hvery sort of philosophy 
has been syslematiEcd, and yet as these philDsoplucs utterly 
contradict one another, most ol them cannot be true- Un- 
proved abstract principles without number have been eagerly 
caught up by wnRuine men» and then carefully spun out into 
book^ and thoonrt, which were to cxptain the whole world. 
But the world goes clear again*! these abstractions, and it 
must do so, as they require it to go in antagonistic directions. 
The mass of a system attracts the young and itnpresses the un- 
wary : but cultivated people are very dubious about it. They 
are ready to receive hint^i and suggestions, and the smallest real 
tmth is ever welcome. Bin a large Ixiok of deductive philos- 
ophy IS much to be suspected. No doubt the deductions may 
be right; in most writers iJiey are so; but where did the 
premises come from? Who is sure that they are the whole 
tnitit, and nothing but the truth, of the matter in hand ? Who 
is not almost sure beforehand that they will contain a strange 
■■ mixture of truth and error, iind, therefore, that it will not be 
" worth while lo spend life in reasoning over their conse<|uenccs. 
In a word, the superfluous energy of mankind has flowed over 
into pbilosophy. and has worked into big systems what should 
have been left as little suggestions. 

And if the old systems of thought are not true as systems, 
I neilhrr i* the new revolt from them to be trasted in its whole 




BAGEHOT 



vigor. There i& the same original vice in that also. There u 
an excessive energy in rcvolulioiia if dterc ii such encr^- any- 
where. The pfls«ion for action i& quite as ready to puU ilowii 
as to build up ; probuhl/ it is more ready, for the task is easier: 

" Old things need not be thercrore iruc^ 
O bn>ilicr men. nor yet the new ; 
Ah, ^ill Awbilc ihc old thought retain. 
And y«t consider it nffUD. " 

Bttt thi<i h cxaclK what the human mind will not da 
will act somehow at once. It will rot " consider it a^n. 

But it will be said. What has government by discussion to do 
with these things? Will it prevent them, or even mitigate 
them? It can and docs do both in the very plainest way. If 
you want to stop imiant and immediate action, always make it 
a condition that the action shall not bc^n till a considerable 
rumber of person* have talked over it, and have agreed on iL 
If those persons be people of different temperaments, diffcrem 
ideas, and different educalions, you have an ainujst infallibl 
security that nothing, or ahnost nothing, will be done with e 
ec^sivc rnptdity. Each kind of persons will have its spok^ 
nian; each spokesman will have his cliaractcristic obj 
and each his charactertstie count er-proposiiion, and so in tbi 
end nothing will probably be done, or at least only the mtn-' 
imum which is plainly urgent. In many cases this delay may 
be dangerous: in many cases quick action will be preferable. 
A campai]^, as Macaulay well says, cannot be directed by a 
"debating society": and many other kinds of action also 
rec|uire a single and absolute general. But for the purpose 
row in hand — that of pres'enting hasty action, and insuring 
elaborate consideration — there is no device Tike a polity of 
discussion. 

Tlie enemies of this object — the people who want to 
quickly— see this very distinctly. They are forex'cr explaining 
that the present Is "an age of committees," that the commit-; 
ices do tYothing. iliat all evaporates in talk. Their great cncm 
is parliamentary government; (hey call it, after Mr. Carlylej 
the '* national palaver " ; they add up the hours that arc coi>^ 
sumed in it. and the speeches which arc made In it. and the 
sigh for a lime when England might again be niled, as It oi 




M 



i 



PHYSICS AND POLITICS 

tvas, by a Cromwetl — tliat i^^ when an eagL^r^ absolute ntan 
might tio exactly what other eager men wished, and do it im* 
mediatcty. AU thc^e invectives are peiperual and many-sided; 
ihry come from philosophers, each of whom wauls some new 
scheme tried; from philanlhropisls, wtio want some evil 
abated; from revolutionists, who want some old instttulioD 
destroyed ; from new craists. who want their new era started 
forthwith. And they all are tiisiinct admissions that a polity 
of discussion is the greatest hindrance to the inherited mis- 
take of human nature, to the desire to act promptly, which in a 
simple age is so excellent, but which in a later and complex 
time leads to k> much evih 

The same accusation against our age sometimes takes a 
more general formn It h alleged that our energies are dimin- 
ishing; tJiat ordinary aud average men have not the quick 
dctcnnination now-a-days which they used to have when the 
world was younger; that not only do not committees and 
parliaments act with rapid decisiveness, hut that no one now 
so acts. And I hope that in fact this is true, for aceordinj^ to 
me, it proves that the hereditary barharic impulse is decaying 
and dying out. So br from thinking the quality attrihmeii 
to us a defect. I wish that those who complain of it were far 
more right tban I much fear ihey arc. Still, certainly, eager 
and violent action is somewhat diminished, though only by a 
small fraction of what it oughi to be. And I believe that this 
is in great part due. in England at least, to our govemnicm 
by di^ussion, which has fostered a general intellcctuat tone, a 
diffused disposition to weigh evidence, a conviction that much 
may be said on every side of everything which the elder and 
more fanatic ages of the world wanted. This is the real reason 
why our energies seem so much less than those of our fathers. 
When we have a definite end in \*iew. which we know we want, 
and which we think we know how to obtain, we can act well 
enough. TItc campaigns of our soldiers aie as energetic as 
any campaigns ever were ; the speculations of our mercJiants 
have greater promptitude, greater audacity, greater vigor than 
any such speculations ever had before. In old times a few 
ideas got possession of men and communities, but this is hap* 
pily now possible no longer. We see bow incomplete these old 
ideas were; how almost by chance one seized on one nation. 




BAGEHOT 




and artotner on another ; liow often one set oF men Iiavc perse- 
cuted another set for opinions on subjects of which ndtho-, 
we tiow perceive, knew ^inything. It miglit be wdl if a greater 
iiiimbcr of effectual rlemonstraTions existed ainon^ mankind: 
but while no »uch demonstrations exist, and while the evidence 
which completely convinces one man seems to another triflini 
and insufBci^nt, let m reco^^nize tlie plain pusition of inevit- 
able doubt. Let us not be bij^ots with a driubt, and pertecu 
tors without a creed. We are beginning to see this, and wc 
railed at for so beginning. But it is a great benefit, and it is 
to the incessant prevalence of deteclive discussion that our 
doubts are due ; and much of that discussion is due to the long 
existence of a government requiring constant debates, writ- 
ten and oral 

Tliia i> one of the unrecognized beneiiu of free govcrnmem, 
one of the modes in which It counteracts tlie excessive inherited 
impulses of humanit)-. There is another also for ivliic!) it docs 
the same, but which I can only touch delicately, and ^^hkh Jit 
first sight will seem ridiciihnts. The most succcssfu! races, 
other thirgs being equal, are those which multiply the fa*l 
In the conflict* of mankind nnmhtrs have ever been a great 
power. The most nunierciui grotip has always had an 
van1afi:c over ihc less numeroiis, and the fastest breeding group 
has always tended to be the most numerous. In consequence, 
human nature has descended into a comparatively unconten- 
tious civilifatton, with a desire far in exce^^s of what is nceded|^H 
with a "felt want/' as political economists would say, alto-^^ 
gether greater tlian the " real want." A walk in London li 
all which is necessary to establish this, ''The great sin of 
great cities " is one vast evil consequent upon it. And who is 
to reckon up how much these words mean ? How many spotledj 
livc*^, how many broken heart.^, how many wasted bodies, how 
many mined minds, how much mii^cry pretending to be gay, 
liow much gaiety feeling itself to be ]]n>eTabtc, bow much 
after mental pain« how much eating and transmitted di«ca5f- 
And in the mor^l part of the world, bow many minds arc racked' 
by incessant anxiety, how many thoughtful imagtnattons 
which might have left something to mankind are debased to 
mean cares, how much c^try successive f^cneration sacrifiees 
to the next, how little does any of them make of itself in com- 



I 

I 

.11 «t 

ad. V 



PUYS1C5 AND POLITICS 



I 



I 
I 



paHson wilh what itiiglii be. And how ma«y Irclan<U have 
there been in the world where men would have been conti^nted 
and happy if they had only been fewer; how many more Ire- 
lands would there have been if the irtriisive nnmbcnt had not 
been kept down by tiifarticido and vice and misery. How 
painful h the conclusion that it is dubious whether all the ma- 
chines and inventions of mankind "have yet li^Eitened the 
day's labor of a human bcinj:;." They have enabled more peo- 
ple to exist, but the^e people v^ork just as hard and arc }Wt 

mean and miserable as the elder and the fewer. 

But it will be said of tlij$ passion just as it wa» said ol the 
pafLsion of activity. Granted that it is in excess, how can you 
say, how on earth can anyone say, that government by discus- 
sion can in any way cure or diminish it? Cure this evil that 
government certainly will not; but lend to diminish it — I 
think it does and may. To show that 1 am not Euaktii;* jneinUes 
to support a concIuMon zto abnormal, I will quote a passage 
from Mr. Spencer* the philosopher who has done most to ilJus- 
tratc Ibis subject : — 

*■ That future progress of civilization which the never-ceas- 
ing; pressure of population must pro<1uee, will be accompanied 
by an enhanced cost of Individuation, boih in structure and 
function; and more especially in nervous structure and fimc- 
lion. The peaceful struggle for existence in societies ever 
f^win^ more crowded and more complicated, must have for 
its concomitant an increase of the great nervous centres in 
mass, in complexity, in activity^ The larger body of emotion 
needed as a foumain of energy for men who have to hold their 
places and rear thdr families under the intcnsifyinf; competi- 
tion oi social life, is, other things equal, the correlalivc of 
hr|^ brain. Those higher feelings presupposed by the better 
self* reflation which, in a better society, can alone enable the 
individual t^ le^ve a persisient posterity, are, other things 
equal, the curielatives of a more complex brain; as are alsti 
those niorc numerous, more varied, more general, and more 
abstract ideas, which muM aUo become incrcn^ingly requisite 
lor successful life as society advances. And the genesis of this 
larger quantity of feeling and thought in a brain thus aug* 
mented in size and developed in structure is, other things 
equal, the correlative of a greater wear of nervous tisstie and 



Ill 



BAGEHOT 



greater convumptioti o( materjals lo r^aJr it. So that both tn 
original cost of construction and in sub^cqumt coat oi work- 
ing, titc nervous system aitist become a heavier tax on the 
organUni. Already the brain of the civilized man is larger 
by nearly thirty per cent, than the brain oE the savaffc. Al- 
ready, too, it presents an increased ]ietcrogeneity— especially 
in the distribution of its convolutions. And furtlier changes 
like these which liave taken pbce under the di^iplinv of civi* 
lizcd life, we infer will continae to take place. . * . Bui 
everywhere ard always, evolution is antagonistic to procrca* 
tivc dissoluticn. Wlielhcr it be in greater growth of the 
organs which subserve self-maiiitcnancc, whether it be in 
their addc<l complexity of Mructurc, or whether it be in tlicir 
higher activity, the abstraction of the required materials nn- 
pUcs a dintmished rotrve of materials (or Tace^niair.tenance, 
And we have «ccn reason to believe that Um anlaKoiii^in be- 
tween Individuation and Genesis become;} unusually marked 
where the nervous Aysteni is concerned, because of the costll* 
ncf.5 of nervous structure and function. In § 346 was pointed 
out the apparent connection between high eerebral develop- 
ment and prolonged d^lay of sexual maturity; and in §^ 366, 
367, the evidence went to show that where exfepiional frrtility 
exists there 15 sluggishness of micd. and that where there luu 
been during education excessive expenditure in mental ac- 
tion, there frequently follows a complclc or partial infertility. 
Hence the particular kind of further evolution which Man ii 
hereafter lo undergo is one which, more tTian any other, may 
be expected lo cause a decline in his power of reproduction/' 

This means that men who have to live an intellectual life, 
or who can be induced to lead one, will be likely not to have 
so many children as they would otherwise have had. In par* 
licnlar cases this may not be true; such men may even have 
many children — they tnay be men In all ways of unusual power 
and vigor. But they will not have their maximum of posterity 
—will not ha^^c so many as tliey woulil have had if they liad 
been careless or thoughtlesa men ; and so, upon an average, 
the issue of such intcllcctualized men will be IcM numeroua 
than those of the unintellecttuiL 

Now, stippoainj;: thi* phi1oM>ph]cal doctrine to be true— and 
the b«t philosophers, I think, believe it— lis application to tis« 



I 



I 




PHYSICS AND POUTICS 



1*3 



I 



case in liand Is plain. Notliing promotce intcll<*ct liltc inld- 
Icctual dii^cussion, :incl nothing promotcj; intellectual discuft- 
>ion »o much as government by discii^on. The perpetual at- 
mosphere of intellectnal inqnfry acts powei^iilly, a* everyone 
may see by looking about liJm in Lpondon. upon the constitu- 
tion both of men and women. There is only a certain quonium 
of power in each of our race; H it Koes in ont way it U spent^ 
and cannot go in another. The intellectual atmosphere ab- 
stracts strergth to intellectual matters; it tends to divert thai 
strength which the circumstances ol early society directed to 
the multiplication of numbers; and as a polity of discussion 
tends, above all things, to produce an tntcllecCual atmosphere, 
the two things which seemed so far off have been shown to be 
near, and free govcrnmem has, in a second c^se, been »howo 
to tend to cure an inhcriced excess of human nature. 

Lastly* a polity uf discussion not only leiuU to diminish 
our inherited defects, but also, in one case at least, to augmenl 
a heritable excellence. It tends to strengthen and increase a 
subtle quality or combination of qualities singularly useful in 
practical life — a quality which it is not easy to describe ex- 
actly, and the issues of which it would require not a remnant 
of an essay, but a whole r«ay to elucidate completely. This 
quality I call animated moderation. 

If anyone were asked to describe what it is which distin- 
gruishes the writings of a man of genius who Is also a great man 
of the world from all other writings, 1 think he would use 
these same words, "animated moderation/' He woidd say 
that such writings are never slow, are never excessive, arc 
never exaggerated; that they are always instinct with judg- 
ment, and yet that judgment is never a dull judgment; that 
they have as mudi spirit in them as would go to make a wild 
^vritcr, and yet that every line of them is the product of a 
sane and sound writer. The best and almost perfect instance 
of ibis in English b Scott. Homer was perfect In it, as far 
as we can judge; Shakespeare is often perfect in it for long 
together, though then^ from the defects of a bad educ^ti^n 
and a yjcious age, all at once he loses himself in excesses* 
Still, Homer, and Shakespeare at his best, and Scott, though 
in other respects so une^^ual to them, have this remarkable 
quality in common — this union of life with measure, of spirit 
with reasonableness. 




>»4 



BAGEHOT 



In actior it is equally thU quality in which the Englis;!i 
at leajit so I claim it for thcni— cxcol all other nations. There 
is an infinite deal to be laid a^in^t ua, and as wc arc unpopular 
with most others, and as wc are always grumbling at ourselves, 
there is no wAnt of people to say it. But, after all, in a certain 
sense, England ts a success in the world; her career has liad 
many faultft. bui still it has been a fine and winning career 
upon the whole. And this mi account of the exact poi^c^on 
of iUh particular (jualJty. What h the making of a succcA^ful 
merchant ? That he has plenty of energy, and yet that he doe* 
not go too far. And if you ask for a description ol a f^rcat 
practical ETiglishman, yon will be sure lo liavc this, or fiom«- 
thinR like it, " Oh, he has plenty of go in him : but he knowi 
when to pull up." lie may have all other defects in hitn : 
may he coarse, he may be illiicratc. he may he stupid to talk I 
still this irrcal union of spur and bridle, of energy and modera- 
tion, will remain to him. Probably he will hardly be able to 
explain why he stops when lie does stop, or why he continued 
to move as long as be, in fact, moved ; but still, as by a rough 
instinct, he pulls up pretty much where he should, though 
was goirg at such a pace before. 

There is no better example of this quality in English states- 
men than Lord Palmerston, Tlicre are, of course, many most 
serious accusations to be made against him. The sort of hom- 
age with which he vfA» regarded in the last years of his life has 
passed away; the spell is broken, and the magic cannot be 
again revived. Wc may think that his infonnation was meagre, 
that liis Imagination was narrow, that hh ^iims were short- 
sighted and fauhy- Bnt ihotigh wc may often object to his 
objects, we rarely find much to criticiice in his means. " He 
went," it has hem said, "with a great swing": hut he never 
tumbled over; he always managed to pnll up '' before th^re 
was any danger." He was an odd man to have tnbcrited 
Hampden's motto ; still, in fact» there was a great trace in bim 
of mrdiocria firrtia — as much, probably, as there could be in any* 
one of such great vivacity and buoyancy. 

It is plain that this is a quality which as much as. if not m' 
than, any other multiplies good results in practical life, 
enables men to sec what is good ; it gives them intellect enough 



ra- 
te 
,ed 



PHYSICS AND POUTICS 



i»5 



for suflficJenI jwrccplion; but U does not make men all tntd- 
lecl; it does not "sickly ihem oVr with ihc pale cart of 
thought " ; it enables them to do the good things they sec lo 
be f^ood, as well as to sec that they are ^ood. And it is plain 
tliat a government by popular discussion lends to produce 
this cjualit}'. A strongly idiosyncratic mind, violently disposed 
to extremes of opinion, is soon weeded out of political life, 
and a bodiless thinker, an incflfcciual scholar, cannot even live 
there Jor a day. A vigorous moderateness in initui and body 
i* the rule of a polity which works by dtsciisnon : and. upon 
the whoIe» it is the kind of temper most suited to the active 
life of Mich a being a^ nan in such a world as the present one. 

TIjcm! three great benefits of free government, tluntgli grejit, 
arc cntirdy secondary lo its continued usefulness in the mode 
in *i-hich it originally was useful. The first great benefit wa* 
llie deliverance of mankind from the superannuated yoke of 
customary law, by the gradual devclopmcni of an inquisitive 
originality. And it continues to produce that effect upon per- 
sons apparently far remote from it; influence, and on subjects 
with which it has nothing to do. Tlius Mr. Mundclla, a most 
experienced and capable judge, tells us that the English 
aniutn, though so much less »ober, less instructed, and less re- 
fined than the artisans of some other countries, is yet more 
inventive than any other artisan. The master will get more 
good su^estions from him than from any other. 

Again, upon plausible grounds — looking, for example, to 
the position of Locke and Newton in die science of the last 
century, and to that of Darwin in our own— it may be argued 
that there is some quality in English thought wliich makes 
them strike out as many, if not more, first-rate and original 
stiggeslions than nations of greater scientific culture and more 
dtiTused scientific interest. In both cases I believe the reason 
of the English originality to be thai government by discus- 
sion c|uickenB and enliveni thoutrht all through society: that 
it makes people thintc no barm may come of thinlciug; that in 
England thi* force has long l)een of>erating, and so it has 
developed more of all kinds of people ready to use their men- 
tal energy in their own way. and not ready lo use it in any 
Other way, than a despotic government. And so rare is great 




ti6 BAGEHOT 

on^nality among mankind, and so great are its fruits, that this 
one benefit of free government probably outweighs what arc 
in many cases its accessory evils. Of itself it justifies, or goes 
far to Justify, our saying with Montesquieu, " Whatever be the 
cost of this glorious liberty, we must be content to pay it to 
heaven." 



CHujLfc iiMMJ-LES or CXi'\:;)>.H^ 



A^flOBE A/fO HER DACGJiTER. 



IlK I 



•\ of ir'eQKiai j 



«>rii I 



':o, ■>||ji bill I'M lvnr1< 

iriii. 4 rd L' ' , f . 



Vfao iilAcvd rhcni is th« VkUii Medio. !; ^ ^ 

0tc Oflbi Ilk rk«f?fic& Tlif e™"f ^' t'~ 

Ui(j«n<4^«liemnv%ticti ih<ui tpcninrcu <4 ati nvrt rrvrnputicd Iron i.irr 





Ut t-Lf\i:ilU :>LUIJ rUJil: 



mOB£ AlTD JfER DAVCHTIiX. 



Ni 

jot! ' A R^me Tl*er "^t puiilnucil l"! ll« ■ 

af>. ','.■!-'- r , 

tt.' ■ ! 

ir. 




CHAPTER VI 

VERIFIABLE PROGRESS POLITICAU-Y CON- 
SIDERED 

THE original publication of these essays was interrupted 
by serious illness and by long consequent ill-health, and 
now that I am putting them together I wish to add an- 
other which shall shortly explain the main thread of the argu- 
ment which they contain. In doing so there is a risk of tedious 
repetition, but on a subject both obscure and important any de- 
fect is better than an appearance of vagueness. 

In a former essay I attempted to show that slighter causes 
than is commonly thought may change a nation from the station- 
ary to the progressive state of civilization, and from the station- 
ary to the degrading. Commonly the effect of the agent is 
looked on in the wrong way. It is considered as operating on 
every individual in the nation, and it is assumed^ or half as- 
sumed, that it is only the effect which the agent directly produces 
on everyone that need be considered* But besides this diffused 
effect of the first impact of the cause, there is a second effect, al- 
ways considerable, and commonly more potent — a new model in 
character is created for the nation; those characters which re- 
semble it are encouraged and multiplied; those contrasted with 
it are persecuted and made fewer. In a generation or two, the 
look of the nation becomes quite different; the characteristic 
men who stand out are different, the men imitated are different; 
the result of the imitation is different. A lazy nation may be 
changed into an industrious, a rich into a poor, a religious into 
a profane, as if by magic, if any single cause, though slight, or 
any combination of causes, however subtle, is strong enough to 
change the favorite and detested types of character. 

This principle will, I think, help us in trying to solve the 
question why so few nations have progressed, though to us prog- 
ress seems so nattiral— what is the cause or set of causes which 



Its 



BAGEHOT 



have prevented that progress id the vast majority of cases, znl 
produced it in iIjc l«l*k minority. Bui there is a preliminary 
clifTiculty: What is progress, and what is decline? Even in the 
animal world there is no applicable rule accepted by physiolo- 
gisls, which settles what £ninials are higher or lower than others; 
tlicre arc corLirovcrsics about iL Still more then in the more 
complex combinations and politics of human beings it is likely i 
to be hard to find an agreed criteHoa for saying which ration is 
before anolhiT, or wlmt age of a nation was inarcliiDg forward 
and which wa» bILing hack. Archbishop Manning would have 
one rule of progress and decline; Profeuor Kuxicy, in moat 
impon^int points^ (|uitc an oppoeitc rule; what one would set 
down at an advance the other would set down a^ a retreat. Each * 
has a distinct end which he wishes and a distinct calamity which 
he feart, hut Ihe desire of the mie ii: prelty near the f<rar of the 
other: books would not hold the controversy between litem. 
Again, in art. who is to settle what is advance and what decline? 
Would Mr. Ruskin agree with anyone else on this subject, 
would he even agree with himself, or couM any common inquirer i 
venture to say whether he was right or wrong? i 

I am afraid that I must, as Sir William Hamilton used to say, 
" truncatea problem which I cannot solve." I must decline to sit 
in judgment on disputed points of art, morals, or religion. But 
without so doing I tliink there is sxich a thing as " verifiable prog- 1 
ress," if we may say so; that is. progress which ninety-nine hun- 
dredths or more of mankind will admit lo be such, against which 
there ia iiu c»t^bliahed or organised u]>iJusitiun creed, and the 
objectors to which, essentially varjing in opinion theEi twelves, 
and believing one one thing and another the reverse, may be ] 
safely and altogether rejected. 

Let us consider in what a village of English colocists is su- 
perior to a tribe of Australian natives wlio roam about them. 
TndtF^lMifably in one, and thai a main sense^ they arc superior j 
Tliey can beat the Australians in war when they like: they can 
lake from them anything they like, and kill any of them they 
choose. As a rule, in all the outlying ;ind uncontested district* 
of the world, the aboriginal native lies at the mercy of the in- 
trading European. Nor is this all Indisputably in the English * 
village there are more means of happiness, a greater accumula- 
tion of the instruments of enjoyment, than in the Australian tribe. 




PHYSICS AND POLITICS 



IW 



TTk English Imvc all manner oi books, utenstU. and machines 
which the othtr* do not u-^c> value, or un<!crMan<l, And in addi- 
tion, and bcjond particular inventions, ihcrc is a general strength 
which is capable of being used in conquering a tliouNOnd difFicul- 
tic>, and i^ an abiding source of happinc&s, because those who 
possess it alway.t feel th^t they can use it. 

If we omit the higher but disputed topics of morale and relig- 
ion, we shall £nd, I think, that the plainer and agreed-on superior* 
itic* of the Engliihmeo are tht^se: first, that they have a greater 
command over the powers of n;»t«re upon (he whole. Though 
they may fall short of individual Auslmlians in certain feats of 
petiy skill, though they may not throw the boomerang as well, 
or light a fire willi carthsticks as well, yet on the whole, Iwenly 
Englishmen with their implements and skill can change the ma- 
terial world inimeasureably more than twenty Australians and 
their machines. Secondly, that this power is not external only; 
it is aho internal The English not only possess better machines 
for moving nature, but arc themselves better machines. Mr, 
Babbage taught us years ago that one great use of machinery 
was not to augment the force of man, but to register and regu- 
late the power of man ; and this in a thousand ways civilized mati 
can do, and is ready to do, better and more precisely than the 
barbarian. Tliirdly, civiti^ied man nut unly has greater powers 
over nature, but knows better bow to um: them, and by better 
I here mean belter for the health and comfort of his present body 
and mind. He can lay up for old age, which a ravage having no 
durable me^ns of sustenance cannot; he is ready to lay up be< 
cauM he can diiilinetly foresee the future, which the vague- 
mimled savage cannot: he is mainly desirous of gentle, conlin- 
s pleasure, whereas the Karbari:in likes wild excitement, and 
gs for stupefying repletion. Much, if not alK of these three 
ways may be summed up in Mr. Spencer's phrase, that progress 
is an increase of adaptation of man to his environmenl, that is, of 
hisintcmal powers and wishcE to his external tot and life. Some* 
thing of it too is expresned in the old pagan idea " metu sona in 
ccrpofT sano*' And I think this sort of progress may be fairly 
investigated quite separately, as it is progress in a sort of good 
everyone worth reckoning with admits and agrees in. No doubt 
there will remain people like the aged savage, who in his old 
age w*nt back to his savage tribe and said that he had " tried 




ija 



BAGEHOT 






dvifizatioa lor tony years and it was not wonh the irotible'* 
Bat wc need not ukc account of the nmukcn idcaa oi iia6t men 
and beucD fftcca. Od the whole the plaincff son of dTilizatioa^ 
tht fjoiplcr motal trajnbig, and the more clcmcntiry cducitico 
are pbin benefits. And though there may be doubt a« to the 
edges of ihe conception yet there ceftainly is a brond road of 
" verifiable progress '* which not only discoverers md admirers 
will like, but whkh all Ibosc who come opon it will u^e and 
value. 

Unless some land of absiracticn like this is made in the 
Ject the great pcoblan " What causes progress? " ft-Ul. I am con- 
fident, long remain unsolved. Unless we are content to tolte 
simple proUenu first, the whole hinory o( philosophy teaches 
that we shall never sohre hard problems This is the rnaxim of 
scientific humility »o ohen insisted on by the highest inquirers 
that, in investi^tions, as in life, those *' who exalt tbemsdvts 
shall t>e abased, and tltose who humble themselves shall be ex- 
alted; " and though wc may seem mean only to look for the 
laws o( plain comfort and simple present happiness, yet we most 
work out that simple case first, before we enooun'cr tlie incredi- 
bly harder additional difficuhics of the higher ait, morals, and 
religion. 

The difBculty of soK'ing the problem even thus linuted is ex- 
eeedinf;ly great. The roo6i palpable ficis are exactly the con 
trary to what wc Uiould expect. I^ord Macaulay tells as thati 
" In every experimental science there a a tendency towards per- 
fection. In every human twing there is a tendency to ameliorate 
his condition: *' and these two principles operating everywhere 
and alwa>'s, might well have been expected lo " carT^r maidciDd 
rapidly forward." Indeed, taking verifiable progress in the sense 
which has just been given to it, wc may say that nature gives 
a prize to every stngle step in It. Everyone that makes an in- 
vention that boxfits himsdi or those around him, is likely to be 
more comfortable himself and to be more req>ectcd by those 
around him. To produce new things *' serviceable to man's life 
and condticivc to man's estate," is, we should uy. likely to bring 
increased happmess to the prodtKcr* It often brings immense 
reward certainly now; a new fumi u( good steel pen, a way of 
riuihtiiK sontc kind of clotlies a liulc better or a little cheaper, 
have brought men great fortunes. And there is the same kind 



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^ Tl 



of prize for industrial improvement in ihc earliest times as in 
the Utc5t; though the IwiicGts mj obtainable in caily society are 
|Kx>r imlccil ill comparison Aitli those of advanced society. Nat- 
ure is Like a Achool master, at IcaM in this, she &vct her finest 
pnzett to her high and mo&t ifi^tructed eln&s». Still, even in the 
earliest ficcicty, nattirc helps those who can help themselves, and 
helps them \try much. 

AU this should have made the progress of mankind — progress 
at least in thij limhed sense— <^ceedingly common; but, in fact, 
anjr pfogrcss is extremely tare. As a rule (and as has been in- 
•isled on before) a stationary state is by far the most fre<jucnt 
condition of man, as lar as history describes that condition ; the 
progressive state is only a rare and an occa»loaal exception. 

Before history began tlicre must have been in the nation which 
writes it much progress; else there could have been do history. 
It is a great advance in civilixation to be able to describe the 
common lacts ol hfe, and perhaps, if we were to examine it, we 
should &nd thai it was at least an equal advance to wish to de* 
scribe them. But very few races have made this step of prog- 
rcs5; very few have been capable even of the meanest sort of 
history ; and as for writing such a history as that of Thucytlides, 
modpt nations coulJ as noon liavc constructed a planet. When 
history begins to record, she finds most of the races incapable of 
history, Arrested, unprogressive, and pretty much where they 
are now. 

\VIiy, then, have not the obvious and natural causes of prog- 
ress (as we should call them) produced tliose obvious and natunil 
efTccls? Why have tlie real fortunes of mankind been so different 
from the fortunes which wc should expect? This is the problem 
which in various fomi« I have taken up in these papers, and this 
is the outline of the solution which I have attempted to propose. 

The progrev* of man refiuires the co-operation of men for its 
icvelopment. That which any one mail or any one family could 
nt for themselves ia obviously exceedingly limited. And 
even if this were not true, isolated progress could never be 
traced. The rudest sort of co-operative society, the lowest tribe 
and the feeblest government, is so much stronger than isolated 
man. tliut isuIuIct] man (if he ever existed in any shape which 
could be called man), might very easily have cea>ed to exist- 
The 6rst principle of the subject is that man can only make prog- 




T^a 



BAGEHOT 



rc3»s in " GO'^pcmtivc grovps; '' I might say uibes and nations, 
but I use the leu cotimioii vronl because few people would at 
oiKC see that tribes and natiODS are co-operative ^roup^, ^nd 
that it U their being »o whieh makcA their value; that unless you 
can make a strong co-operative bond, your society will b< con- 
4|uered and kilTe<l out by lonie other society which ha» Euch a 
bond; and the second principle is that the members of *uch a 
group shoi])d be similar enough to one another to co-operate 
easily and readily togGther. The co-operation in all such casei 
depends on a felt union of heart and spirit ; and this is on\y feh 
when there is a great degree of rcaJ Ukcncss in mind and feelinjc. 
however that likeness may have been attained. 

This needful co-operation and this requisite likeness I believe 
to have been produced by one of the sirotigesl yokes (as we 
should think i( it were to be reimpoiied now) and the most terri- 
ble tyrannies ever known among men — Uic autltority of " ctis* 
tomary law." In its earlier siagc tlii^ i^ no pleasant power — no 
" rose-water " authority, as Carlylc would have called It — hut a 
stCTii, incc»anl, implacable rule. And the rule i» often of most 
childUh origin, beginning in a casual superstition or local acci- 
dent. "These people/' says Captain Pnlmcr of the Fiji, '* are 
very comervativc, A chief was one day going over a mountain- 
poth followed by a long string of hi* people, when he happened 
to litiimble and fall : all the re^t of the people immediately did the 
same except one man, who was set upon by ihe rc*t to know 
whether he considered himself better than the chief." What can 
be worse than a life regulated by that sort of obedience, and tliat 
sort of imitation? Tliis is, of course, a bad specimen, but the 
nature of customary law aft wc everywhere find it in its earliest 
stages is thai of coarse, casual, comprehensive usage, beginning, 
wc cannot tell how, deciding, we cannot tell why, but mling 
everyone in almost cverj' action with an inflexible grasp. 

The necessity of thus tombing co-operative groups by fixed 
customs explains the necessity of Isolation in early sockcy. Al 
a matter of tact all great nations have been prepared in privacy 
and In secret. They have been com|>o*ed far away from aB di*- 
traction. Greece, Rome, Judasa, were framed each by itself, and 
the antipathy of each to men of different riice and different ^eech 
IS one of their most marked peculiarities, and <^uiie their strong* 
est common property. And the instinct of early ^SBi^M ■ "ght 



PHYSICS AND POLITICS 



133 



guide for ihe needs ol early ag«». Intercourse with forcignws 
then broke down in states the Hxcd rules which were forming 
ihcir characters »o as to be a cau^ of wc&k tibrc of mind, oi de- 
stthory and unsettled action; the living spectacle of an admiacd 
unbelief destroys the binding authority of religious custom and 
^ snaps the social cord. 

Thus we iec tlie use of a sort of " preliminary '* age in socie- 
ties, when trade is bad because it prevents the separation of na- 
liofi3, becauffto it infuses distracting ideas among occupied com- 
muniti<;s, because it " brings alien mirds to alien shores." And 
fLs the trade which we now think of as an incalculable good U in 
thai age a formidable evil and deiinictive calamity: so war and 
conquest, which we commonly and justly see to be now evtU. 
are in that age often singular benefits and great advantages. It 
is only by the competition of customs that bad customs can be 
eliminated and good customs multiplied. Concjuest is the pre- 
mium given by nature to those national characters which their 
national customs have made most fit to win in war, and in many 
most material respects those winning characters are really the 
best characters. The characlcra which do win in war arc the 
diaraeters which we should wish to win in war. 

Similarly, the best institutions liavc a natural military advan- 
tage over bad institutions. The first great victory of civilization 
wa& the conquest of nations with ill-defined families liavmg IcKal 
descent through the mother only, by nations uf definite families 
tracing descent through the falhcr as welt a% the mother, or 
through the f,ither only. Such compact families are a much 
better basis for military discipline than the ill-botmd families 
' which indeed seem hardly to l>e families at all, where " paternity " 
is, for tribal purposes, an tmreenwni/ed idea, and where only the 
physical fact of '* maternity " is thotight to be certain enough to 
be the foundation of law or custom. The nations with a thor- 
otighly compacted family system have "possessed the earth," 
that is. they have tal<en all the finest districts in the most com- 
petcd-for parts; and the rations with loose systems have been 
merely left to mountain ranges and lonely islands. The family 
system and that in its highest form has been so exclusively the 
system of civilization that literature hardly recognizes any other, 
kuid that, if it were not for the living testimony of a great multi- 
lUlde of scattered communities which arc "fashioned after the 




t%4 



BACEHOT 



stniclure of the elder world/* wc should hardly admit the posu- 
bility of something so contrary lo a]l which wc tiave lived 
amongst and which we have been used to think oC AUer hucIi 
an example of the {[agmcutary nature of the evidence it is in 
comparison ca^y to believe that hundreds of »irangc institutions 
may have passed away and have Mt behind ihcni not only no 
memorial, but not even a trace or a vestige; to help the imagina- 
tion to 6giire what dicy were. 

1 cannot expand the ftubject, hut in the 9;ame way the better 
religions have had a great physical advantage, >f 1 mzy !uy lo, 
over the worse. They have given what I may call a confidence in 
the universe. The savage subjected to a mean superstition U 
afraid lo walk dimply abotit the world — he cannot do this because 
it h ominous, or he must do that because it is lucky, or he can* 
not do anything at all till the gods have spoken and given him 
leave to begin. But under the higher religions there is no simi- 
lar slavery and no similar terror The belief of the Greek 

the belief of the Roman that he was to trust in the gods oE Rome, 
(or those gods arc stronger than all others; the belief of Crom- 
wcirs suldirry that they were "to trust in God and keep ihdr 
puwdcr dry/* are great steps in upward progr«;ss, u^iiig progress 
in its narrowest sense. TTicy all enabled those who Ixlicvcd 
them '' to take the world as it comes,*' to be giiided by no unreal 
reason, and to be limited by no mystic scruple; whenever they 
found anything to do, to do it with their might. And more di- 
rectly what 1 may call the fortifying religions, that it to say, 
those which lay the plainest stress on the manly parts of morality 
— itpon valor, on truth and industrj' — have had phinly the mtwt 
obvious effect in strengthening the races which believed ihem. 
and in making those races the winning races. 

No doubt many sorts of primitive improvement are pernicious 
CO war; an exquisite sense of beauty, a love of meditation, a ten* 
dency lo cultivate the force of the mind at the expense of the 
force of the body, for example, help in their respective degrees 
to make men less warlike than they would otherwise be. But 
these arc the virtues of other ages. The first work of the tint 
ages is to bind men together in the strong bond of a rough, 
coarse, harsh cuslom; and the incessant conflict of nations ef* 



PHYSICS AND POLITICS 



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tlm Tti the best way. Every natinn is an "lierccUtary co- 
opemlive group," bound by a fixed custom: a»d out o( those 
groups those conquer which have the most bindiDg and most 
inrigorating cuslonis, and these 2re, as a rough rule, t!ie best 
customs. The majority of the " groups " which win and conquer 
arc better than the majorily of ihose which fail and perish, and 
thas the first world grew better and was improved, 

Tliis early customary world no doubt conlinued (or ages. Tlic 
first history delineates great monarchies, each composed of a 
htmdred customary groups, all of which believed themselves to 
be of enormous anviquUy, and all of which must have existed 
(or very many generations. The first historical world is not a 
new-looking thin^ but a very ancient, and according to principle 
it is necessary that it should exist for ages. 1( human nature was 
to be gradually improved, each generation mual be boni better 
tamed, more calm, more capable o( civilisation — in a word, more 
legal than the one before it, and such inherited improvements 
are always slow and diibious. Though a few gihod people may 
advance much, the mass of each generaiirm can improve but very 
little on the generation which preceded it; and even the slight 
improvement so gained is liable to be destro>ecI by some mys* 
terious atavism — some strange recurrence to a primitive pisl 
Long ages o( dreary monotcny are the first facts in the history 
of human communities, but those ages were not lost to man- 
lund, for it was then that was (ormed the comparatively gentle 
and guidable thing which we now call human nature. 

And indeed the greatest difficulty is not in preserving such a 
world but in ending it. We have brought in the yoke of custom 
to improve the world, and in the world the custom sticks. In a 
thousand cases — in tlie great majority of cases — the progress ol 
mankind has been arrested in this its earliest shape; it has been 
closely embalmed in a mummy-like imitation of its primitive 
existence. I have endeavored to show in what manner, and liow 
slowly, and in how few cases this yoke of custom was removed. 
It was " govemmcrt by discussion " which broke the bond of 
^■ges and set free the originality of mankind. Then, and then 
only, the motives which Lord Mncaulay counted on to secure 
the progress of mankind, in fact, begin to work ; then " the ten- 
dency in every man to ameliorate his condition " begins to be im- 
portant, because then man can alter his condition while before 



IS* 



BAGEHOT 



he i* pe^sied down by ancioii usage; tlicn the tendency in each 
mechanical art towards perfccUon bcpins to have force, because 
the ani*t Is at last allowed to seek perfection, alter having bctn 
forced for ages to move in the straight furrow of the old fixcd^ 
way. 1 

As soon as this great step upwards is once made, all or almost 
all the higher gifts atid graces of humatiity ha^^ a rapid and a» 
clc^iiite effect on " verifiable progress "— <Jn progress :n the nar^fl 
rowest, because in the most universally admitted sense of tlic 
term. Success in life, then, depends, as we liave seen, more than 
anything else uii *' atiiEiiatcrd moderation/' on a ceitain combina*fl 
tion of tfncr^y c^ mind and balance of mimlt hard to atlam and 
harder to keep. And this subtle excellence is aided by all the 
finer graces of humanity. It is a matter of comnion observation 
that, though often separated, fine taste and fine judgment go very 
much together, and riiprriahy that a man with groAS want of 
taste, tlioiigh he may act sensibly anH corrertly for a ivhife. is yet 
apt IQ break out. sooner or later, into gross practical error. In 
metaphysics, probably both taste and judgment involve what is 
termed " poise cf mind." that is the power of tnje pastiveness^ 
the faculty of" waiting "till the stream of impressiom, whether _ 
those of life or those of art, have done all thai they have to do, ■ 
and cut their full type plainly upon the mind. The ilUjudging 
and iheuntasteful are both over-eager; both move too quick and 
blur the image, in this way the union between a subtle sense ot 
beauty and a subtle discretion in conduct is a aaturaJ one. be* 
cause it rests on the common po,ssession of a fine power, though, 
in matter of fad, that union may be often di5turt>cd. A complex 
»ca of forces and passions troubles uK-n in life and action, which 
in the calmer region of art arc liardly to be felt at all. And, 
thercforCt the cultivation of a fine tasic 1end3 to promote the 
function of a fine judgment^ which is a main help in the complex 
world of civilized existence. Just so loo the manner in which 
the more delicate parts of rebgion daily work in prodncing that 
" moderation " which, upon the whole, and as a nile. is essential 
to long success, defining succewi even in its most narrow an'I 
mundane way. might be worked out in a hundrc<! cases, though 
it would not suit these pages. Many of the finer intellectual 
tastes have a similar restraining effect; they prevent, or tend to 
prevent, a greedy voracity after the good things of lifCt vbich 



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nukes both men and nalions ii excessive haste to be rich and 
famous, often m^kc^ ilictn do too much and do it ill, atij so often 
leaves lliem at ]asl without money and without respect. 

But there is no need to expand this further. ,Thc principle is 
plain that, though these belter and higher graces of humanity 
arc impcdimenls and encumbrances in the e^rly fighting pcriod> 
yet that in the later era they arc among the grealcsl helps and 
benefit!^, and ihac assoon as govcmmcnls by discussion have be- 
come ^tiun^ enough to secure a stable exJMence, and 35 soon as 
they hfivc l^rokcti the fixed rule of old custom, and have awak- 
ened the donrant inventiveness of men, then, for the iir^t time, 
almost ever}" p^rl of human nature begins to spring forward, and 
begins to contribute lis ^^uota even to the narrowest, even to 
" verifiable " progress^j And this is the true rea&on of all those 
panegyrics on liberty which are often so measured in expression 
but are in e-«cnce so true to life and nature. Liberty is (he 
Strengthening and developing power — the light and heat of 
political nature ; and when some *' Cscsarism ** exhibits ai it some- 
times will an originality of mind, it is only because it has man- 
aged 10 make its own the products of past free limes or neighlx)r- 
ing free counlries: and even that originaUiy is only brief and 
fraih and after a little while, when tested by a generation or two, 
in time of need it falls away. 

In a complele investigation of all the conditions of " verifiable 
progress," much else would have to be set out; for example, 
science has secrets of her own. Nature does not wear her most 
useful lessons on her sleeve ; she only yields her most productive 
secrets, those which yield ihc most wealth and the moat " fruit/' 
to those who have gone through a long process of preliminary 
abstraction. To make a person really understand the " laws of 
motion " is not easy, and to solve even simple problems in ab- 
stract dynamics is to most people exceedingly hard. And yet 
it It on ihete out -of- the- way investigations, so to speak, that the 
art of navigation, all physical astronomy, and all the theory of 
physical movements at least depend. But no nation would be- 
forehand have thought that in so ctirious a manner such great 
secrets were lo be discovered. And many nations, therefore, 
wMch get on the wrong track, may be distanced — supposing 
there to be no communication — by some nation not better than 
any of them which happens to stumble on the right track. If 




ijS BAGEHOT 

ibcTc were no " Bradshaw " and no one knew the time at which 
trauu started, a man who caaght the express would not be a 
wiser or a more busincs^lilce man than he who missed it, and yet 
be would arrive whole hours sooner at the capital both are go- 
ing to. And unless I misread the matter^ sncb was often the case 
with eaiiy knowledge. At any rate, before a complete theory of 
" verifiable prepress " conld be made, it would have to be settled 
whether this is so or not, and the conditicms of the development 
di physical science would have to be fully stated; obviously you 
cannot explain the development <A human comfort unless you 
know the way in which men lean and discover comfortable 
diiogs. Then again, for a complete discussion, whether of prog- 
ress or d^radation, a whole course of analysis is necessary as to 
the effect of natural agencies on manp and of change in those 
agencies^ But upon these I cannot touch; the only way to 
solve these great problems is to take them separately. I only 
profess to explain what seem to me the political pre-requisites of 
progress, and especially of early progress. I do this the rather 
because the subject is insufficiently examined, so that even if 
my views are found to be faulty, the discusuon upon them may 
bring out others which arc truer and better* 



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