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PART  OF  A   COLUMN  OF  GUTENBERG'S  BIBLE. 

A  comparison  with  the  Wiirzburg  Missal,  which  is  now  in  the  British  Museum, 
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script. It  was  not  till  after  the  issue  of  many  smaller  essays  that  the  first  printed 
Bible  was  at  last  completed.  This  event  probably  took  place  in  the  year  1455,  if 
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1456,  or  beginning  of  1457,  if  published  by  Fust,  as  there  is  a  copy  in  the  Biblio- 
theque  Nationale  in  which  a  manuscript  note  indicates  that  the  two  volumes  were 
illuminated  and  bound  by  Henry  Albech,  alias  Cremer,  vicar  of  the  Collegiate 
Church  of  St.  Stephen,  at  Mayence,  in  1457.  The  work  which  thus  at  last  appeared 
to  crown  all  Gutenberg's  labors  with  eventual  success  is  a  most  wonderful  monument 
of  art,  especially  as  being  the  first  attempt  at  printing  on  a  large  scale.  Guten- 
berg's Bible  is  printed  in  two  columns  with  spaces  left  for  the  headings,  to  be  filled 
by  the  rubricator,  and  also  for  large  initials.  Each  column  contains  forty-two  lines, 
which  distinguishes  this  edition  from  the  editions  printed  soon  afterward,  which 
were,  respectively,  of  thirty-six  and  forty-five  lines  per  column.  Both  of  these  later 
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•jrf 


POOU30CKXXJOOUUUUU 


THE  SPIRIT  OF  LAWS 


BARON  DE  MONTESQUIEU 

(CHARLES  DE  SECONDAT) 

INCLUDING  D'ALEMBERT'S  ANALYSIS  OF  THE  WORK 

TRANSLATED   FROM  THE   FRENCH    BY 
THOMAS  NUGENT,  LL.D. 

WITH  A  SPECIAL  INTRODUCTION  BY 
HON.  FREDERIC  R.  COUDERT,  J.U.D.,  LL.D. 

REVISED  EDITION 
VOLUME  11 


JC 


M74 


COPYRIGHT,  1900, 
BY  THE  COLONIAL  PRESS. 


ILLUSTRATIONS 

FACING  PAGE 

SPECIMEN  COLUMN  OF  GUTENBERG'S  BIBLE          .          Frontispiece 

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THE  LAOCOON 80 

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EARLY  VENETIAN  PRINTING 170 

Fac-simile  example  of  a  page  of  Music   printed  in  1523 


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  kind,a  and  gods  above; 
Parent  of  Rome,  propitious  Queen  of  Love ; 
******** 

For  when  the  rising  spring  adorns  the  mead, 

And  a  new  scene  of  nature  stands  display'd; 

When  teeming  buds,  and  cheerful  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  flood : 

All  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'ry  plain, 

The  leafy  forest,  and  the  liquid  main, 

Extends  thy  uncontroll'd  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. 

a  Dryden's  "  Lucr^ce." 
VOL.  II.— I  I 


2  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  b  mentioned  by  Pom- 
ponius  Mela  c  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.d 

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- 
sejyes. 

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  obligation  remains,  finds  a  thousand 
obstacles  from  shame,  remorse,  and  constraint  of  her  sex  and 
ic  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  Children 

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- 

b  The  Garamantes.  e  For  this  reason,  among  nations  that 

c  Lib.  I.  cap.  viii.  have  slaves,  the  child  almost  always  fol- 

d "  Pater    est    quern  nuptiae    demon-        lows    the    station    or    condition    of    the 

strant."  mother. 


THE   SPIRIT   OF   LAWS  3 

ience  established  at  Formosa/  where  the  husband  enters  into 
the  family  of  the  wife. 

This  law,  which  fixes  the  family  in  a  succession  of  persons 
of  the  same  sex,  greatly  contributes,  independently  of  the  first 
motives,  to  the  propagation  of  the  human  species.  The  family  is 
a  kind  of  property :  a  man  who  has  children  of  a  sex  which  does 
not  perpetuate  it  is  never  satisfied  if  he  has  not  those  who  can 
render  it  perpetual. 

Names,  whereby  men  acquire  an  idea  of  a  thing  which  one 
would  imagine  ought  not  to  perish,  are  extremely  proper  to  in- 
spire every  family  with  a  desire  of  extending  its  duration.  There 
are  people  among  whom  names  distinguish  families:  there  are 
others  where  they  only  distinguish  persons:  the  latter  have  not 
the  same  advantage  as  the  former. 

5. — Of  the  several  Orders  of  lawful  Wives 

Laws  and  religion  sometimes  establish  many  kinds  of  civil 
/-conjunctions ;  and  this  is  the  case  among  the  Mahommedans, 
where  there  are  several  orders  of  wives,  the  children  of  whom 
\^re  distinguished  by  being  born  in  the  house,  by  civil  contracts, 
or  even  by  the  slavery  of  the  mother,  and  the  subsequent  ac- 
knowledgment of  the  father. 

It  would  be  contrary  to  reason  that  the  law  should  stigmatize 
the  children  for  what  it  approved  in  the  father.  All  these  chil- 
dren ought,  therefore,  to  succeed,  at  least  if  some  particular 
reason  does  not  oppose  it,  as  in  Japan,  where  none  inherit  but 
the  children  of  the  wife  given  by  the  Emperor.  Their  policy  de- 
mands that  the  gifts  of  the  Emperor  should  not  be  too  much  di- 
vided, because  they  subject  them  to  a  kind  of  service,  like  that 
of  our  ancient  fiefs. 

There  are  countries  where  a  wife  of  the  second  rank  enjoys 
nearly  the  same  honors  in  a  family  as  in  our  part  of  the  world 
are  granted  to  an  only  consort :  there  the  children  of  concubines 
are  deemed  to  belong  to  the  first  or  principal  wife.  Thus  it  is 
also  established  in  China.  Filial  respect,^  and  the  ceremony  of 
deep  mourning,  are  not  due  to  the  natural  mother,  but  to  her 
appointed  by  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  Halde,  torn.  i.  p.  165.  g  Ibid.  torn.  ii.  p.  129. 


4  MONTESQUIEU 

to  legitimatize  the  children  of  concubines  must  be  considered 
as  an  act  of  violence,  as  the  bulk  of  the  nation  would  be  stigma- 
tized by  such  a  decree.  Neither  is  there  any  regulation  in  those 
countries  with  regard  to  children  born  in  adultery.  The  recluse 
lives  of  women,  the  locks,  the  inclosures,  and  the  eunuchs  ren- 
der all  infidelity  to  their  husbands  so  difficult,  that  the  law  judges 
it  impossible.  Besides,  the  same  sword  would  exterminate  the 
mother  and  the  child. 

6. — Of  Bastards  in  different  Governments 

They  have  therefore  no  such  thing  as  bastards  where  polyg- 
amy is  permitted;  this  disgrace  is  known  only  in  countries  in 
which  a  man  is  allowed  to  marry  but  one  wife.  Here  they  were 
obliged  to  stamp  a  mark  of  infamy  upon  concubinage,  and  con- 
sequently they  were  under  a  necessity  of  stigmatizing  the  issue 
of  such  unlawful  conjunctions. 

In  republics,  where  it  is  necessary  that  there  should  be  the 
purest  morals,  bastards  ought  to  be  more  degraded  than  in  mon- 
archies. 

The  laws  made  against  them  at  Rome  were  perhaps  too  severe; 
but  as  the  ancient  institutions  laid  all  the  citizens  under  a  neces- 
sity of  marrying,  and  as  marriages  were  also  softened  by  the 
permission  to  repudiate  or  make  a  divorce,  nothing  but  an  ex- 
treme corruption  of  manners  could  lead  them  to  concubinage. 

It  is  observable  that  as  the  quality  of  a  citizen  was  a  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  thing 
itself  and  to  the  honesty  of  marriage  than  to  the  particular  con- 
stitution of  the  republic.  Thus  the  people  have  sometimes  ad- 
mitted bastards  into  the  number  of  citizens,  in  order  to  increase 
their  power  in  opposition  to  the  great.fc  Thus  the  Athenians 
exclude  bastards  from  the  privilege  of  being  citizens,  that  they 
might  possess  a  greater  share  of  the  corn  sent  them  by  the  King 
of  Egypt.  In  fine,  Aristotle  informs  us  that  in  many  cities  where 
there  was  not  a  sufficient  number  of  citizens,  their  bastards  suc- 
ceeded to  their  possessions;  and  that  when  there  was  a  proper 
number,  they  did  not  inherit.* 

A  Aristotle,  "  Polit."  lib.  VI.  cap.  iv.  ilbid.  lib.  III.  cap.  iii. 


THE   SPIRIT   OF  LAWS  5 

7. — Of  the  Father's  Consent  to  Marriage 

The  consent  of  fathers  is  founded  on  their  authority ;  that  is, 
on  the  right  of  property.  It  is  also  founded  on  their  love,  on 
their  reason,  and  on  the  uncertainty  of  that  of  their  children, 
whom  youth  confines  in  a  state  of  ignorance  and  passion  in  a 
state  of  ebriety. 

In  the  small  republics,  or  singular  institutions  already  men- 
tioned, they  might  have  laws  which  gave  to  magistrates  that 
right  of  inspection  over  the  marriages  of  the  children  of  citizens 
which  nature  had  already  given  to  fathers.  The  love  of  the 
public  might  there  equal  or  surpass  all  other  love.  Thus  Plato 
would  have  marriages  regulated  by  the  magistrates:  this  the 
Lacedaemonian  magistrates  performed. 

But  in  common  institutions,  fathers  have  the  disposal  of  their 
children  in  marriage:  their  prudence  in  this  respect  is  always 
supposed  to  be  superior  to  that  of  a  stranger.  Nature  gives  to 
fathers  a  desire  of  procuring  successors  to  their  children,  when 
they  have  almost  lost  the  desire  of  enjoyment  themselves.  In 
the  several  degrees  of  progeniture,  they  see  themselves  insensi- 
bly advancing  to  a  kind  of  immortality.  But  what  must  be  done, 
if  oppression  and  avarice  arise  to  such  a  height  as  to  usurp  all  the 
authority  of  fathers?  Let  us  hear  what  Thomas  Gage  says  in 
regard  to  the  conduct  of  the  Spaniards  in  the  West  Indies.y 

"  According  to  the  number  of  the  sons  and  daughters  that  are 
marriageable,  the  father's  tribute  is  raised  and  increased,  until 
they  provide  husbands  and  wives  for  their  sons  and  daughters, 
who,  as  soon  as  they  are  married,  are  charged  with  tribute; 
which,  that  it  may  increase,  they  will  suffer  none  above  fifteen 
years  of  age  to  live  unmarried.  Nay,  the  set  time  of  marriage 
appointed  for  the  Indians  is  at  fourteen  years  for  the  man,  and 
thirteen  for  the  woman;  alleging  that  they  are  sooner  ripe  for 
the  fruit  of  wedlock,  and  sooner  ripe  in  knowledge  and  malice, 
and  strength  for  work  and  service,  than  any  other  people.  Nay, 
sometimes  they  force  those  to  marry  who  are  scarcely  twelve  and 
thirteen  years  of  age,  if  they  find  them  well-limbed  and  strong 
in  body,  explaining  a  point  of  one  of  the  canons,  which  alloweth 
fourteen  and  fifteen  years,  Nisi  malitia  suppleat  atatem" 

He  saw  a  list  of  these  taken.    It  was,  says  he,  a  most  shameful 

j  "A  New  Survey  of  the  West  Indies,"  by  Thomas  Gage,  p.  345,  3d  edit. 


6  MONTESQUIEU 

affair.    Thus  in  an  action  which  ought  to  be  the  most  free,  the 
Indians  are  the  greatest  slaves. 

8. — The  same  Subject  continued 

In  England  the  law  is  frequently  abused  by  the  daughters 
marrying  according  to  their  own  fancy  without  consulting  their 
parents.  This  custom  is,  I  am  apt  to  imagine,  more  tolerated 
there  than  anywhere  else  from  a  consideration  that  as  the  laws 
have  not  established  a  monastic  celibacy,  the  daughters  have  no 
other  state  to  choose  but  that  of  marriage,  and  this  they  cannot 
refuse.  In  France,  on  the  contrary,  young  women  have  always 
the  resource  of  celibacy;  and  therefore  the  law  which  ordains 
that  they  shall  wait  for  the  consent  of  their  fathers  may  be  more 
agreeable.  In  this  light  the  custom  of  Italy  and  Spain  must  be 
less  rational;  convents  are  there  established,  and  yet  they  may 
marry  without  the  consent  of  their  fathers. 

9. — Of  young  Women 

Young  women  who  are  conducted  by  marriage  alone  to  lib- 
erty and  pleasure,  who  have  a  mind  which  dares  not  think,  a 
heart  which  dares  not  feel,  eyes  which  dare  not  see,  ears  which 
dare  not  hear,  who  appear  only  to  show  themselves  silly,  con- 
demned without  intermission  to  trifles  and  precepts,  have  suf- 
ficient inducements  to  lead  them  on  to  marriage :  it  is  the  young 
men  that  want  to  be  encouraged. 

10. — What  it  is  that  determines  Marriage 
Wherever  a  place  is  found  in  which  two  persons  can  live  com- 
modiously,  there  they  enter  into  marriage.    Nature  has  a  suf- 
ficient propensity  to  it,  when  unrestrained  by  the  difficulty  of 
subsistence. 

A  rising  people  increase  and  multiply  extremely.  This  is  be- 
cause with  them  it  would  be  a  great  inconvenience  to  live  in 
celibacy;  and  none  to  have  many  children.  The  contrary  of 
which  is  the  case  when  a  nation  is  formed. 

ii. — Of  the  Severity  of  Government 

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


THE   SPIRIT   OF  LAWS  7 

offspring,  who  even  in  their  infancy  are  the  instruments  of  this 
art.  These  people  multiply  in  a  rich  or  superstitious  country, 
because  they  do  not  support  the  burden  of  society,  but  are  them- 
selves the  burden.  But  men  who  are  poor,  only  because  they 
live  under  a  severe  government;  who  regard  their  fields  less  as 
the  source  of  their  subsistence  than  as  a  cause  of  vexation ;  these 
men,  I  say,  have  few  children:  they  have  not  even  subsistence 
for  themselves.  How  then  can  they  think  of  dividing  it?  They 
are  unable  to  take  care  of  their  own  persons  when  they  are  sick. 
How  then  can  they  attend  to  the  wants  of  creatures  whose  in- 
fancy is  a  continual  sickness? 

It  is  pretended  by^some  who  are  apt  to  talk  of  things  which 
they  have  never  examined  that  the  greater  the  poverty  of  the 
subjects,  the  more  numerous  their  families :  that  the  more  they 
are  loaded  with  taxes,  the  more  industriously  they  endeavor  to 
put  themselves  in  a  station  in  which  they  will  be  able  to  pay 
them :  two  sophisms,  which  have  always  destroyed  and  will 
forever  be  the  destruction  of  monarchies. 

The  severity  of  government  may  be  carried  to  such  an  extreme 
as  to  make  the  natural  sentiments  destructive  of  the  natural  senti- 
ments themselves.  Would  the  women  of  America  have  refused 
to  bear  children  had  their  masters  been  less  cruel  ?  k 

12. — Of  the  Number  of  Males  and  Females  in  different 
Countries 

I  have  already  observed  that  there  are  born  in  Europe  rather 
more  boys  than  girls.a  It  has  been  remarked  that  in  Japan  there 
are  born  rather  more  girls  than  boys :  b  all  things  compared, 
there  must  be  more  fruitful  women  in  Japan  than  in  Europe, 
and  consequently  it  must  be  more  populous. 

We  are  informed  that  at  Bantam  there  are  ten  girls  to  one 
boy.c  A  disproportion  like  this  must  cause  the  number  of  fami- 
lies there  to  be  to  the  number  of  those  of  other  climates  as  I  to 
5/^2,  which  is  a  prodigious  difference.  Their  families  may  be 
much  larger  indeed;  but  there  must  be  few  men  in  circumstances 
sufficient  to  provide  for  so  large  a  family. 

k  "A  New  Survey  of  the  West  Indies,"  c  "  Collection    of    Voyages    that    con- 

by  Thomas  Gage,  p.  97,  sd  edit.  tributed    to    the    establishment    of    the 

a  Book  XVI.  chap.  iv.  East  India  Company,"  vol.  i.  p.  347. 

b  See  Kempfer,  who  gives  a  computa- 
tion of  the  people  of  Meaco. 


8  MONTESQUIEU 

13. — Of  Seaport  Towns 

In  seaport  towns,  where  men  expose  themselves  to  a  thousand 
dangers,  and  go  abroad  to  live  or  die  in  distant  climates,  there 
are  fewer  men  than  women :  and  yet  we  see  more  children  there 
than  in  other  places.  This  proceeds  from  the  greater  ease  with 
which  they  procure  the  means  of  subsistence.  Perhaps  even 
the  oily  parts  of  fish  are  more  proper  to  furnish  that  matter 
which  contributes  to  generation.  This  may  be  one  of 
the  causes  of  the  infinite  number  of  people  in  Japan  d  and  China/ 
where  they  live  almost  wholly  on  fish.f  If  this  be  the  case,  cer- 
tain monastic  rules,  which  oblige  the  monks  to  live  on  fish,  must 
be  contrary  to  the  spirit  of  the  legislator  himself. 

14. — Of  the  Productions  of  the  Earth  which  require  a  greater 
or  less  Number  of  Men 

Pasture-lands  are  but  little  peopled,  because  they  find  employ- 
ment only  for  a  few.  Corn-lands  employ  a  great  many  men, 
and  vineyards  infinitely  more. 

It  has  been  a  frequent  complaint  in  England/  that  the  increase 
of  pasture-land  diminished  the  inhabitants ;  and  it  has  been  ob- 
served in  France  that  the  prodigious  number  of  vineyards  is  one 
of  the  great  causes  of  the  multitude  of  people. 

Those  countries  where  coal-pits  furnish  a  proper  substance 
for  fuel  have  this  advantage  over  others,  that  not  having  the 
same  occasion  for  forests,  the  lands  may  be  cultivated. 

In  countries  productive  of  rice,  they  are  at  vast  pains  in  water- 
ing the  land:  a  great  number  of  men  must  therefore  be  em- 
ployed. Besides,  there  is  less  land  required  to  furnish  subsist- 
ence for  a  family  than  in  those  which  produce  other  kinds  of 
grain.  In  fine,  the  land  which  is  elsewhere  employed  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. 

d  Japan  is  composed  of  a  number  of  their  corn,    enclosed  their  estates;   the 

isles,  where  there  are  many  banks,  and  commons,  ready  to  perish  with  hunger, 

the  sea  is  there  extremely  full  of  fish.  rose    up    in    arms;    they    insisted    on    a 

e  China  abounds  in  rivers.  division   of  the   lands:   the   young  king 

f  See  Du  Halde,  torn.  ii.  pp.  139-142.  even  wrote  on  this  subject.    And  procla- 

g  The  greatest  number  of  the  proprie-  mations   were   made   against   those   who 

tors  of  land,  says  Bishop  Burnet,  finding  enclosed   their   lands. — "  Abridgment   of 

more  profit  in  selling  their  wool  than  the  History  of  the  Reformation." 


THE   SPIRIT   OF  LAWS  9 

15. — Of  the  Number  of  Inhabitants  with  relation  to  the  Arts 

When  there  is  an  agrarian  law,  and  the  lands  are  equally  di- 
vided, the  country  may  be  extremely  well  peopled,  though  there 
are  but  few  arts ;  because  every  citizen  receives  from  the  cultiva- 
tion of  his  land  whatever  is  necessary  for  his  subsistence,  and  all 
the  citizens  together  consume  all  the  fruits  of  the  earth.  Thus 
it  was  in  some  republics. 

In  our  present  situation,  in  which  lands  are  unequally  dis- 
tributed, they  produce  much  more  than  those  who  cultivate  them 
are  able  to  consume;  if  the  arts,  therefore,  should  be  neglected, 
and  nothing  minded  but  agriculture,  the  country  could  not  be 
peopled.  Those  who  cultivate,  or  employ  others  to  cultivate, 
having  corn  to  spare,  nothing  would  engage  them  to  work  the 
following  year;  the  fruits  of  the  earth  would  not  be  consumed 
by  the  indolent ;  for  these  would  have  nothing  with  which  they 
could  purchase  them.  It  is  necessary,  then,  that  the  arts 
should  be  established,  in  order  that  the  produce  of  the  land 
may  be  consumed  by  the  laborer  and  the  artificer.  In  a  word, 
it  is  now  proper  that  many  should  cultivate  much  more  than  i$ 
necessary  for  their  own  use.  For  this  purpose  they  must  have 
a  desire  of  enjoying  superfluities;  and  these  they  can  receive  only 
from  the  artificer. 

The  machines  designed  to  abridge  art  are  not  always  useful. 
If  a  piece  of  workmanship  is  of  a  moderate  price,  such  as  is 
equally  agreeable  to  the  maker  and  the  buyer,  those  machines 
which  would  render  the  manufacture  more  simple,  or,  in  other 
words,  diminish  the  number  of  workmen,  would  be  pernicious. 
And  if  water-mills  were  not  everywhere  established,  I  should  not 
have  believed  them  so  useful  as  is  pretended,  because  they  have 
deprived  an  infinite  multitude  of  their  employment,  a  vast  num- 
ber of  persons  of  the  use  of  water,  and  great  part  of  the  land  of 
its  fertility. 

16. — The  Concern  of  the  Legislator  in  the  Propagation  of  the 

Species 

Regulations  on  the  number  of  citizens  depend  greatly  on  cir- 
cumstances. There  are  countries  in  which  nature  does  all ;  the 
legislator  then  has  nothing  to  do.  What  need  is  there  of  induc- 
ing men  by  laws  to  propagation  when  a  fruitful  climate  yields  a 


10  MONTESQUIEU 

sufficient  number  of  inhabitants?  Sometimes  the  climate  is  more 
favorable  than  the  soil;  the  people  multiply,  and  are  destroyed 
by  famine :  this  is  the  case  of  China.  Hence  a  father  sells  his 
daughters  and  exposes  his  children.  In  Tonquin,/*  the  same 
causes  produce  the  same  effects;  so  we  need  not,  like  the  Ara- 
bian travellers  mentioned  by  Renaudot,  search  for  the  origin  of 
this  in  their  sentiments  on  the  metempsychosis.* 

For  the  same  reason,  the  religion  of  the  isle  of  Formosa  does 
not  suffer  the  women  to  bring  their  children  into  the  world  till 
they  are  thirty-five  years  of  age: ;  the  priestess,  before  this  age, 
by  bruising  the  belly  procures  abortion. 

17. — Of  Greece  and  the  Number  of  its  Inhabitants 

That  effect  which  in  certain  countries  of  the  East  springs  from 
physical  causes  was  produced  in  Greece  by  the  nature  of  the 
government.  The  Greeks  were  a  great  nation,  composed  of  cit- 
ies, each  of  which  had  a  distinct  government  and  separate  laws. 
They  had  no  more  the  spirit  of  conquest  and  ambition  than  those 
of  Switzerland,  Holland,  and  Germany  have  at  this  day.  In 
every  republic  the  legislator  had  in  view  the  happiness  of  the  citi- 
zens at  home,  and  their  power  abroad,  lest  it  should  prove  inferior 
to  that  of  the  neighboring  cities.^  Thus,  with  the  enjoyment  of 
a  small  territory  and  great  happiness,  it  was  easy  for  the  number 
of  the  citizens  to  increase  to  such  a  degree  as  to  become  burden- 
some. This  obliged  them  incessantly  to  send  out  colonies,/  and, 
as  the  Swiss  do  now,  to  let  their  men  out  to  war.  Nothing  was 
neglected  that  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.  The  Lacedaemonians  were  fed 
by  the  Helotes,  the  Cretans  by  the  Periecians,  and  the  Thessa- 
lians  by  the  Penestes.  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  necessary  to  limit  the  number  of  regular  troops:  now 

h  Dampier's  "  Voyages,"  vol.  ii.  p.  41.  k  In  valor,  discipline,  and  military  ex- 

*  Ibid.  p.  167.  ercises. 

;  See  the  "  Collection  of  Voyages  that  /  The   Gauls,   who  were   in   the   same 
contributed  to  the  establishment  of  the  circumstances,  acted  in  the  same  man- 
East   India  Company,"  vol.   i.   part  I.  ner. 
pp.  182,  188. 


THE   SPIRIT   OF   LAWS  n 

the  Lacedaemonians  were  an  army  maintained  by  the  peas- 
ants: it  was  proper,  therefore,  that  this  army  should  be  limited; 
without  this  the  freemen,  who  had  all  the  advantages  of  society, 
would  increase  beyond  number,  and  the  laborers  be  overloaded. 

The  politics  of  the  Greeks  were  particularly  employed  in  regu- 
lating the  number  of  citizens.  Plato  fixes  them  at  five  thousand 
and  forty,"*  and  he  would  have  them  stop  or  encourage  propaga- 
tion, as  was  most  convenient,  by  honors,  shame,  and  the  advice  of 
the  old  men;  he  would  even  regulate  the  number  of  marriages 
in  such  a  manner  that  the  republic  might  be  recruited  without 
being  overcharged.** 

If  the  laws  of  a  country,  says  Aristotle,  forbid  the  exposing  of 
children,  the  number  of  those  brought  forth  ought  to  be  limited^ 
If  they  have  more  than  the  number  prescribed  by  law,  he  advises 
to  make  the  women  miscarry  before  the  fetus  be  formed./' 

The  same  author  mentions  the  infamous  means  made  use  of 
by  the  Cretans  to  prevent  their  having  too  great  a  number  of 
children — a  proceeding  too  indecent  to  repeat. 

There  are  places,  says  Aristotle  again,?  where  the  laws  give 
the  privilege  of  being  citizens  to  strangers,  or  to  bastards,  or  to 
those  whose  mothers  only  are  citizens ;  but  as  soon  as  they  have 
a  sufficient  number  of  people  this  privilege  ceases.  The  savages 
of  Canada  burn  their  prisoners ;  but  when  they  have  empty  cot- 
tages to  give  them,  they  receive  them  into  their  nation. 

Sir  William  Petty,  in  his  calculations,  supposes  that  a  man  in 
England  is  worth  what  he  would  sell  for  at  Algiers.^  This  can 
be  true  only  with  respect  to  England.  There  are  countries 
where  a  man  is  worth  nothing;  there  are  others  where  he  is 
worth  less  than  nothing. 

18. — Of  the  State  and  Number  of  People  before  the  Romans 
Italy,  Sicily,  Asia  Minor,  Gaul,  and  Germany  were  nearly  in 
the  same  state  as  Greece;  full  of  small  nations  that  abounded 
with  inhabitants,  they  had  no  need  of  laws  to  increase  their  num- 
ber. 

19. — Of  the  Depopulation  of  the  Globe 

All  these  little  republics  were  swallowed  up  in  a  large  one, 
and  the  globe  insensibly  became  depopulated:  in  order  to  be 

m  "  Repub."  lib.  V.  p  Ibid. 

n  Ibid.  q  Ibid.  lib.  III.  cap.  iii. 

o  "  Polit."  lib.  VII.  cap.  xvi.  r  Sixty  pounds  sterling. 


12  MONTESQUIEU 

convinced  of  this,  we  need  only  consider  the  state  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  the  war,  after  having  been  so  often  defeated. 
There  must  have  been  formerly  an  infinite  number  of  people  in 
those  countries,  which  at  present  would  be  little  better  than  a 
desert,  were  it  not  for  a  few  soldiers  and  Roman  slaves." 

"  The  Oracles  have  ceased,"  says  Plutarch,  "  because  the 
places  where  they  spoke  are  destroyed.  At  present  we  can 
scarcely  find  in  Greece  three  thousand  men  fit  to  bear  arms." 

"  I  shall  not  describe,"  says  Strabo,*  "-Epirus  and  the  adjacent 
places,  because  these  countries  are  entirely  deserted.  This  de- 
population, which  began  long  ago,  still  continues;  so  that  the 
Roman  soldiers  encamp  in  the  houses  they  have  abandoned." 
We  find  the  cause  of  this  in  Polybius,  who  says  that  Paulus 
/Emilius,  after  his  victory,  destroyed  seventy  cities  of  Epirus,  and 
carried  away  a  hundred  and  fifty  thousand  slaves. 

20. — That  the  Romans  were  under  the  Necessity  of  making 
Laws  to  encourage  the  Propagation  of  the  Species 

The  Romans,  by  destroying  others,  were  themselves  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. 

I  shall  not  here  speak  of  the  attention  with  which  they  applied 
themselves  to  procure  citizens  in  the  room  of  those  they  lost," 
of  the  associations  they  entered  into,  the  privileges  they  be- 
stowed, and  of  that  immense  nursery  of  citizens,  their  slaves.  I 
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  respect  cannot  be  a  matter 
of  indifference. 

21. — Of  the  Laws  of  the  Romans  relating  to  the  Propagation 
of  the  Species 

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

s  Lib.  VI.  siderations  on  the   Causes  of  the   Rise 

t  Lib.  VII.  p.  496.  and   Declension  of  the   Roman   Grand- 

«  I  have  treated  of  this  in  the  "  Con-        eur." 


THE   SPIRIT   OF  LAWS  13 

regulations  on  this  subject,  as  Augustus  says  in  his  speech  re- 
lated by  Dio.z> 

Dionysius  Halicarnassus  «;  cannot  believe  that  after  the  death 
of  three  hundred  and  five  of  the  Fabii,  exterminated  by  the 
Veientes,  there  remained  no  more  of  this  family  than  one  single 
child;  because  the  ancient  law,  which  obliged  every  citizen  to 
marry  and  to  educate  all  his  children,  was  still  in  force.* 

Independently  of  the  laws,  the  Censors  had  a  particular  eye 
upon  marriages,  and  according  to  the  exigencies  of  the  republic 
engaged  them  to  it  by  shame  and  by  punishments.? 

The  corruption  of  manners  that  began  to  take  place  contrib- 
uted vastly  to  disgust  the  citizens  with  marriage,  which  was  pain- 
ful to  those  who  had  no  taste  for  the  pleasures  of  innocence.  This 
is  the  purport  of  that  speech  which  Metellus  Numidicus,  when  he 
was  censor,  made  to  the  people :  z  "If  it  were  possible  for  us  to 
do  without  wives,  we  should  deliver  ourselves  from  this  evil :  but 
as  nature  has  ordained  that  we  cannot  live  very  happily  with 
them,  nor  subsist  without  them,  we  ought  to  have  more  rej 
Jx>  pur  own  preservation  than  to  transient  gratifications." 

The  corruption  of  manners  destroyed  the  censorship,  which 
was  itself  established  to  destroy  the  corruption  of  manners :  for 
when  this  depravation  became  general,  the  Censor  lost  his 
powers 

Civil  discords,  triumvirates,  and  proscriptions  weakened  Rome 
more  than  any  war  she  had  hitherto  engaged  in.  They  left  but 
few  citizens,**  and  the  greatest  part  of  them  unmarried.  To  rem- 
edy this  last  evil,  Caesar  and  Augustus  re-established  the  censor- 
ship, and  would  even  be  censors  themselves.^  Caesar  gave  re- 
wards to  those  who  had  many  children.**  All  women  under  forty- 
five  years  of  age  who  had  neither  husband  nor  children  were  for- 
bidden to  wear  jewels  or  to  ride  in  litters;  e  an  excellent  method 
thus  to  attack  celibacy  by  the  power  of  vanity.  The  laws  of  Au- 
gustus were  more  pressing:  f  he  imposed  new  penalties  on  such 

t/Lib.  LVI.  made  a  survey  of  the  Roman  citizens, 

w  Lib.  II.  found    there    were    no    more    than    one 

x  In  the  year  of  Rome  277.  hundred    and    fifty    thousand    heads    of 

y  See  what  was  done  in  this  respect  in  families.— Florus's  "  Epitome  of  Livy," 

T.  Livy,  lib.  XLV. ;  the  "  Epitome  "  of  I7th  decad. 

T.  Livy,  Hb.   LIX. ;  Aulus  Gellius,  lib.  c  See  Dio,  lib.  XLIIL,  and  Xiphilinus 

I.  cap.  vi.;  Valerius  Maximus,  lib.   II.  in  "August." 

cap.  xix.  <fDio,  lib.  XLIIL;  Suetonius,  "Life 

z  It  is  in  Aulus  Gellius,  lib.  I.  cap.  vi.  of  Caesar,"  chap.   xx. :  Appian.  lib.  II. 

a  See  what   I   have   said   in  book  V.  of  the  "  Civil  War." 

chap.  xix.  e  Eusebius,  in  his  "  Chronicle." 

b  Caesar,  after  the  Civil  War,  having  /  Dio,  lib.  LIV. 


I4  MONTESQUIEU 

as  were  not  married,^  and  increased  the  rewards  both  of  those 
who  were  married  and  of  those  who  had  children.  Tacitus  calls 
these  Julian  laws ;  h  to  all  appearance  they  were  founded  on  the 
ancient  regulations  made  by  the  Senate,  the  people,  and  the 
Censors. 

The  law  of  Augustus  met  with  innumerable  obstacles,  and 
thirty-four  years  after  it  had  been  made  the  Roman  knights  in- 
sisted on  its  being  abolished.*  He  placed  on  one  side  such  as 
were  married,  and  on  the  other  side  those  who  were  not :  these 
last  appeared  by  far  the  greatest  number ;  upon  which  the  citi- 
zens were  astonished  and  confounded.  Augustus,  with  the  grav- 
ity of  the  ancient  censors,  addressed  them  in  this  manner : — / 

"  While  sickness  and  war  snatch  away  so  many  citizens,  what 
must  become  of  this  state  if  marriages  are  no  longer  contracted? 
The  city  does  not  consist  of  houses,  of  porticos,  of  public  places, 
but  of  inhabitants.  You  do  not  see  men  like  those  mentioned 
in  Fable  starting  out  of  the  earth  to  take  care  of  your  affairs. 
Your  celibacy  is  not  owing  to  the  desire  of  living  alone;  for 
none  of  you  eats  or  sleeps  by  himself.  You  only  seek  to  enjoy 
irregularities  undisturbed.  Do  you  cite  the  example  of  the  Ves- 
tal Virgins?  If  you  preserve  not  the  laws  of  chastity,  you  ought 
to  be  punished  like  them.  You  are  equally  bad  citizens,  whether 
your  example  has  an  influence  on  the  rest  of  the  world,  or 
whether  it  be  disregarded.  My  only  view  is  the  perpetuity  of 
the  republic.  I  have  increased  the  penalties  of  those  who  have 
disobeyed;  and  with  respect  to  rewards,  they  are  such  as  I  do 
not  know  whether  virtue  has  ever  received  greater.  For  less 
will  a  thousand  men  expose  life  itself;  and  yet  will  not  these 
engage  you  to  take  a  wife  and  provide  for  children?  " 

He  made  a  law,  which  was  called  after  his  name,  Julia  and 
Papia  Poppsea,  from  the  names  of  the  Consuls  for  part  of  that 
year.fe  The  greatness  of  the  evil  appeared  even  in  their  being 
elected:  Dio  tells  us  that  they  were  not  married,  and  that  they 
had  no  children./ 

This  decree  of  Augustus  was  properly  a  code  of  laws,  and  a 
systematic  body  of  all  the  regulations  that  could  be  made  on  this 

g  In  the  year  of  Rome  736.  ;  I  have  abridged  this  speech,  which 

«  "  Julias  rogationes."— "  AnnaL"  lib.        is  of  tedious  length;  it  is  to  be  found  in 

III.  Dio,  lib.  LVI. 

i  In  the  year  of  Rome  762.— Dio.  lib.          k  Marcus  Papius  Mutilus  and  Q.  Pop- 

LVI.  pxus  Sabinus.— Dio,  lib.  LVI. 

I  Ibid. 


THE   SPIRIT   OF   LAWS  15 

subject.  The  Julian  laws  were  incorporated  in  it,  and  received 
greater  strength.^  It  was  so  extensive  in  its  use,  and  had  an  in- 
fluence on  so  many  things,  that  it  formed  the  finest  part  of  the 
civil  law  of  the  Romans. 

We  find  parts  of  it  dispersed  in  the  precious  fragments  of  Ul- 
pian,w  in  the  Laws  of  the  Digest,  collected  from  authors  who 
wrote  on  the  Papian  laws,  in  the  historians  and  others  who  have 
cited  them,  in  the  Theodosian  code  which  abolished  them,  and 
in  the  works  of  the  fathers,  who  have  censured  them,  without 
doubt  from  a  laudable  zeal  for  the  things  of  the  other  life,  but 
with  very  little  knowledge  of  the  affairs  of  this. 
'These  laws  had  many  heads/?  of  which  we  know  thirty-five. 
But  to  return  to  my  subject  as  speedily  as  possible,  I  shall  begin 
with  that  head  which  Aulus  Gellius  informs  us  was  the  seventh, 
and  relates  to  the  honors  and  rewards  granted  by  that  law./* 

The  Romans,  who  for  the  most  part  sprang  from  the  cities  ot 
the  Latins,  which  were  Lacedaemonian  colonies,^  and  had  re- 
ceived a  part  of  their  laws  even  from  those  cities/  had,  like  the 
Lacedaemonians,  such  veneration  for  old  age  as  to  give  it  all 
honor  and  precedence.  When  the  republic  wanted  citizens,  she 
granted  to  marriage  and  to  a  number  of  children  the  privileges 
which  had  been  given  to  age.-?  She  granted  some  to  marriage 
alone,  independently  of  the  children  which  might  spring  from  it : 
this  was  called  the  right  of  husbands.  She  gave  others  to  those 
who  had  any  children,  and  larger  still  to  those  who  had  three 
children.  These  three  things  must  not  be  confounded.  These 
last  had  those  privileges  which  married  men  constantly  enjoyed; 
as,  for  example,  a  particular  place  in  the  theatre ;  *  they  had  those 
which  could  only  be  enjoyed  by  men  who  had  children,  and 
which  none  could  deprive  them  of  but  such  as  had  a  greater 
number. 

These  privileges  were  very  extensive.  The  married  men  who 
had  the  most  children  were  always  preferred,  whether  in  the  pur- 
suit or  in  the  exercise  of  honors."  The  Consul  who  had  the  most 

IK  The  i4th  title  of  the  "  Fragments  of  r  The    deputies    of    Rome,    who    were 

XJlpian  "  distinguishes  very  rightly  be-  sent  to  search  into  the  laws  of  Greece, 

tween  the  Julian  and  the  Papian  law.  went   to   Athens,    and   to   the   cities   of 

«  James  Godfrey  has  made  a  collection  Italy, 

of  these.  s  Aulus  Gellius,  lib.  II.  cap.  xv. 

o  The  35th  is  cited  in  the  igth  law  ff.  t  Suetonius,  in  "  Augusto,"  cap.  xliv. 

*'  de  ritu  nuptiarum."  « Tacitus,     lib.     II. :     "  Ut     numerus 

p  Lib.  II.  cap.  xv.  liberorum     in     candidatis     praepolleret, 

q  Dionysius  Halicarnassus.  quod  lex  jubebat." 


!6  MONTESQUIEU 

numerous  offspring  was  the  first  who  received  the  fasces  ;v  he 
had  his  choice  of  the  provinces:  *>  the  Senator  who  had  most  chil- 
dren had  his  name  written  first  in  the  catalogue  of  Senators,  and 
was  the  first  in  giving  his  opinion  in  the  Senate.*  They  might 
even  stand  sooner  than  ordinary  for  an  office,  because  every  child 
gave  a  dispensation  of  a  year.y  If  an  inhabitant  of  Rome  had 
three  children,  he  was  exempted  from  all  troublesome  offices.^ 
The  free-born  women  who  had  three  children,  and  the  freed- 
women  who  had  four,  passed  out  of  that  perpetual  tutelage  a  in 
which  they  had  been  held  by  the  ancient  laws  of  Rome.& 

As  they  had  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;  d  and  those  who,  being  married, 
had  no  children,  could  receive  only  half.*  The  Romans,  says 
Plutarch,  marry  only  to  be  heirs,  and  not  to  have  them/ 

The  advantages  which  a  man  and  his  wife  might  receive  from 
each  other  by  will  were  limited  by  law.£  If  they  had  children  of 
each  other,  they  might  receive  the  whole  ;  if  not,  they  could  re- 
ceive only  a  tenth  part  of  the  succession  on  the  account  of  mar- 
riage ;  and  if  they  had  any  children  by  a  former  venter,  as  many 
tenths  as  they  had  children. 

If  a  husband  absented  himself  from  his  wife  on  any  other 
cause  than  the  affairs  of  the  republic,  he  could  not  inherit  from 


The  law  gave  to  a  surviving  husband  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 

v  Aulus  Gellius,  lib.  II.  cap.  xv.  f  "  Moral   Works,"   "  Of  the   love   of 

w  Tacitus,  "  Annal."  lib.  XV.  Fathers  towards  their  Children." 

x  See  Law  6,  sec.  5,  "  de  Decurion."  g  See  a  more  particular  account  of  this 

y  See  Law  2  ff.  "  de  minorib."  in  the  "  Frag,  of  Ulpian,"  tit.  15  and  16. 

z  Law  ist  and  2d  ff.  "  de  vacatione  et  h  Ibid.  tit.  16,  sec.  i. 

excusat.  munerum."  *  Ibid.  tit.  14.    It  seems  the  first  Julian 

a  "  Frag,  of  Ulpian,"  tit.  29,  sec.  3.  laws  allowed  three  years.  —  "  Speech  of 

b  Plutarch,  "  Life  of  Numa."  Augustus,"   in   Dio,    lib.    LVI.  ;    Sueto- 

c  See  the  "  Fragments  of  Ulpian,"  tit.  nius,   "  Life  of  Augustus,"  cap.   xxxiv. 

14,  15,  16,  17,  and  18,  which  compose  one  Other  Julian  laws  granted  but  one  year: 

of  the  most  valuable  pieces  of  the  an-  the   Papian   law   gave   two.—"  Frag,    of 

cient  civil  law  of  the  Romans.  Ulpian,  '  tit.   14.     These  laws  were  not 

dSozom.  lib.  I.  cap.  ix.     They  could  agreeable     to     the     people;     Augustus. 

receive  from  their  relatives.—"  Frag,  of  therefore,      softened      or     strengthened 

Ulpian,"  tit.  16,  sec.   i.  them  as  they  were  more  or  less  disposed 

e  Ibid.  ;    and    leg.    unic.    cod.    Theod.  to  comply  with  them. 

"  de  Infirm,  pcenis  caelib.  et  orbit."  /  This  was  the  35th  head  of  the  Papian 

Jaw.-—Leg.  19  ff.  "  de  ritu  nuptiarum." 


THE   SPIRIT  OF  LAWS  17 

be  deferred  for  more  than  two  years :  k  and  as  they  could  not 
marry  a  girl  till  she  was  twelve  years  old,  they  could  not  be  be- 
trothed to  her  till  she  was  ten.  The  law  would  not  suffer  them  to 
trifle  to  no  purpose;  /  and  under  a  pretence  of  being  betrothed, 
to  enjoy  the  privileges  of  married  men. 

It  was  contrary  to  law  for  a  man  of  sixty  to  marry  a  woman 
of  fifty  .w  As  they  had  given  great  privileges  to  married  men, 
the  law  would  not  suffer  them  to  enter  into  useless  marriages. 
For  the  same  reason,  the  Calvisian  senatus-consultum  declared 
the  marriage  of  a  woman  above  fifty  with  a  man  less  than  sixty 
to  be  unequal :  n  so  that  a  woman  of  fifty  years  of  age  could  not 
marry  without  incurring  the  penalties  of  these  laws.  Tiberius 
added  to  the  rigor  of  the  Papian  law,o  and  prohibited"men  of 
^ixty  from  marrying  women  under  fifty:  so  that^jnaiL-Qf  sixty  ^ 
not  marrymany^jyase  whatsoever,  without  incurring  the 
penalty.T3uf  Claudius  abrogated  this  law  made  under  Tiberius.^ 

All'tfiese  regulations  were  more  conformable  to  the  climate  of 
Italy  than  to  that  of  the  North,  where  a  man  of  sixty  years  of  age 
has  still  a  considerable  degree  of  strength,  and  where  women  of 
fifty  are  not  always  past  child-bearing. 

That  they  might  not  be  unnecessarily  limited  in  the  choice 
they  were  to  make,  Augustus  permitted  all  the  free-born  citizens 
who  were  not  senators  Q  to  marry  freed-women.r  The  Papian 
law  forbade  the  Senators  marrying  freed-women,^  or  those  who 
had  been  brought  up  to  the  stage ;  and  from  the  time  of  Ulpian/ 
free-born  persons  were  forbidden  to  marry  women  who  had  led 
a  disorderly  life,  who  had  played  in  the  theatre,  or  who  had  been 
condemned  by  a  public  sentence.  This  must  have  been  estab- 
lished by  a  decree  of  the  Senate.  During  the  time  of  the  republic 
they  had  never  made  laws  like  these,  because  the  Censors  cor- 
rected this  kind  of  disorders  as  soon  as  they  arose,  or  else  pre- 
vented their  rising. 

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

k  See  Dio,  lib.  LIV.,  anno  736;  Sue-  p  Ibid.  "  Life  of  Claudius,"  cap.  xxiii., 
tonius,  in  "  Octavio,"  cap.  xxxiv.  and  the  "  Frag,  of  Ulpian,"  tit.  16,  sec.  3. 

/  Dio,  lib.  LIV. ;  and  in  the  same  Dio,  q  Dio,  lib.  LIV. ;  "  Frag,  of  Ulpian/' 

the  "  Speech  of  Augustus,"  lib.  LVI.  tit.  13. 

m  "  Frag,  of  Ulpian,"  tit.  16,  and  the  r  "  Augustus's    speech,"    in    Dio,    lib. 

37th  law.  cod.  "  de  nuptiis."  LVI. 

n  Ibid.  tit.  16,  sec.  3.  s  "  Frag,    of   Ulpian,"   cap.    xiii.,   and 

o  See    Suetonius    in    "  Claudio,"    cap.        the  44th  law  ff.  "  de  ritu  nuptiarum." 

t  Ibid.  tit.  13  and  16. 
u  See  Law  i,  in  cod.  "  de  natur.  lib.** 

VOL.  II.— a 


1 8  MONTESQUIEU 

such  as  had  a  considerable  rank  in  the  state,  without  mentioning 
persons  in  an  inferior  station:  this  constituted  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  Constantine,^  and  per- 
mitted all  sorts  of  persons  to  contract  these  marriages;  and  thus 
we  have  acquired  so  fatal  a  liberty. 

It  is  evident  that  the  penalties  inflicted  on  such  as  married 
contrary  to  the  prohibition  of  the  law  were  the  same  as  those 
inflicted  on  persons  who  did  not  marry.  These  marriages  did  not 
give  them  any  civil  advantage ;  w  for  the  dowry  x  was  confiscated 
after  the  death  of  the  wife.y 

Augustus  having  adjudged  the  succession  and  legacies  of  those 
whom  these  laws  had  declared  incapable  to  the  public  treasury ,s 
they  had  the  appearance  rather  of  fiscal  than  of  political  and 
civil  laws.  The  disgust  they  had  already  conceived  at  a  burden 
which  appeared  too  heavy  was  increased  by  their  seeing  them- 
selves a  continual  prey  to  the  avidity  of  the  treasury.  On  this 
account,  it  became  necessary,  under  Tiberius,  that  these  laws 
should  be  softened ;  a  that  Nero  should  lessen  the  rewards  given 
out  of  the  treasury  to  the  informers;  b  that  Trajan  should  put  a 
stop  to  their  plundering  \c  that  Severus  should  also  moderate 
these  laws ;  d  and  that  the  civilians  should  consider  them  as  odi- 
ous, and  in  all  their  decisions  deviate  from  the  literal  rigor. 

Besides,  the  emperors  enervated  these  laws  e  by  the  privileges 
they  granted  of  the  rights  of  husbands,  of  children,  and  of  three 
children.  More  than  this,  they  gave  particular  persons  a  dis- 
pensation from  the  penalties  of  these  laws/  But  the  regulations 
established  for  the  public  utility  seemed  incapable  of  admitting  an 
alleviation. 

It  was  highly  reasonable  that  they  should  grant  the  rights  of 

v  "  Novell."  177.  five  years  for  the  males,  and  to  twenty 

w  Law  37  ff.  tl  de  operib.  libertorum,"  for  the  females,  the  time  fixed  by  the 

sec.  7;  "  Frag,  of  Ulpian,"  tit.  16.  sec.  2.  Fapian  law,  as  we  see  by  comparing  the 

x  Frag,  of  Ulpian/'  tit.  16,  sec.  2.  "  Frag,   of   Ulpian,"  tit.    16,   with   what 

y  See  book  XXVI.  chap.  xiii.  Tertullian  says,  "  Apol."  cap.  iv. 

2  Except    in    certain    cases.      See   the  e  P.  Scipio,  the  Censor,  complains,  in 

"  Frag,  of  Ulpian,"  tit.  18,  and  the  only  his  speech  to  the  people,  of  the  abuses 

law  in  cod.  "  de  Caduc.  tollend."  which  were  already  introduced,  that  they 

a  "  Relatum  de  moderanda  Papia  Pop-  received  the  same  privileges  for  adopted 

paea."— Tacit.  "  Annal."  lib.  III.  p.  117.  as  for  natural  children.— Aulus  Gellius, 

b  He  reduced  them  to  the  fourth  part.  lib.  V.  cap.  xix. 

—Suetonius,  in  "  Nerone,"  cap.  x.  f  See  the  3ist  law  ff.  "  de  ritu  nuptia- 

c  See  Pliny's  "  Panegyric."  rum." 

d  Severus   extended   even   to   twenty- 


THE   SPIRIT   OF  LAWS  19 

children  to  the  yestals,g  whom  religion  retained  in  a  necessary 
virginity;  they  gave,  in  the  same  manner,  the  privilege  of  mar- 
ried men  to  soldiers,**  because  they  could  not  marry.  It  was  cus- 
tomary to  exempt  the  emperors  from  the  constraint  of  certain 
civil  laws.  Thus  Augustus  was  freed  from  the  constraint  of  the 
law  which  limited  the  power  of  enfranchising,*'  and  of  that  which 
set  bounds  to  the  right  of  bequeathing  by  testament./  These 
were  only  particular  cases ;  but,  at  last,  dispensations  were  given 
without  discretion,  and  the  rule  itself  became  no  more  than  an 
exception. 

The  sects  of  philosophers  had  already  introduced  in  the  empire 
a  disposition  that  estranged  them  from  business — a  disposition 
which  could  not  gain  ground  in  the  time  of  the  republic,^  when 
everybody  was  employed  in  the  arts  of  war  and  peace.  Hence 
arose  an  idea  of  perfection,  as  connected  with  a  life  of  speculation ; 
hence  an  estrangement  from  the  cares  and  embarrassments  of  a 
family.  The  Christian  religion  coming  after  this  philosophy 
fixed,  if  I  may  make  use  of  the  expression,  the  ideas  which  that 
had  only  prepared. 

Christianity  stamped  its  character  on  jurisprudence;  for  em- 
pire has  eVer  a  connection  with  the  priesthood.  This  is  visible 
from  the  Theodosian  code,  which  is  only  a  collection  of  the  de- 
crees of  the  Christian  emperors. 

A  panegyrist  of  Constantine  I  said  to  that  emperor,  "  Your 
laws  were  made  only  to  correct  vice  and  to  regulate  manners: 
you  have  stripped  the  ancient  laws  of  that  artifice  which  seemed 
to  have  no  other  aim  than  to  lay  snares  for  simplicity." 

It  is  certain  that  the  alterations  made  by  Constantine  took  their 
rise  either  from  sentiments  relating  to  the  establishment  of  Chris- 
tianity, or  from  ideas  conceived  of  its  perfection.  From  the  first 
proceeded  those  laws  which  gave  such  authority  to  bishops,  and 
which  have  been  the  foundation  of  the  ecclesiastical  jurisdiction; 
hence  those  laws  which  weakened  paternal  authority ,w  by  depriv- 
ing the  father  of  his  property  in  the  possessions  of  his  children. 

g  Augustus   in   the   Papian   law  gave  /  Dio,  lib.  LV. 

them  the  privilege  of  mothers.    See  Dio,  k  See,  in  Cicero's  "  Offices,"  his  sen- 
lib.    LXVI.     Numa   had  granted   them  timents  on  the  spirit  of  speculation, 
the  ancient  privilege  of  women  who  had  /  Nazarius,    "  in    panegyrico    Constan- 
three   children;    that   is,    of   having   no  tini,"  anno  321. 
guardian.— Plutarch,  "  Life  of  Numa."  m  See  Laws  i,  2,  3,  in  the  Theodosian 

h  This  was  granted  them  by  Claudius.  code  "  de  bonis  maternis,"  "  maternique 

—Dio,  lib.  LX.  generis,"  etc.,  and  the  only  law  in  the 

*  Leg.    apud   eum,    ft.   "  de   manumis-  same  code,  "  de  bonis  quae  filiis  famil. 

sionib?'  sec.  i.  acquiruntur." 


20  MONTESQUIEU 

To  extend  a  new  religion,  they  were  obliged  to  take  away  the 
dependence  of  children,  who  are  always  least  attached  to  what  is 
already  established. 

The  laws  made  with  a  view  to  Christian  perfection  were  more 
particularly  those  by  which  the  penalties  of  the  Papian  laws  were 
abolished  ;w  the  unmarried  were  equally  exempted  from  them, 
with  those  who,  being  married,  had  no  children. 

"  These  laws  were  established/'  says  an  ecclesiastical  histo- 
rian/* "  as  if  the  multiplication  of  the  human  species  was  an  ef- 
fect of  our  care;  instead  of  being  sensible  that  the  number  is 
increased  or  diminished,  according  to  the  order  of  Providence." 

Principles  of  religion  have  had  an  extraordinary  influence  on 
the  propagation  of  the  human  species.  Sometimes  they  have 
promoted  it,  as  among  the  Jews,  the  Mahommedans,  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  incessantly  preached  continency;  a  virtue 
the  more  perfect  because  in  its  own  nature  it  can  be  practised  but 
by  very  few. 

Constantine  had  not  taken  away  the  decimal  laws  which 
granted  a  greater  extent  to  the  donations  between  man  and  wife, 
in  proportion  to  the  number  of  their  children.  Theodosius,  the 
younger,  abrogated  even  these  laws./* 

Justinian  declared  all  those  marriages  valid  which  had  been 
prohibited  by  the  Papian  laws.9  These  laws  require  people  to 
marry  again:  Justinian  granted  privileges  to  those  who  did  not 
marry  again.r 

By  the  ancient  institutions,  the  natural  right  which  everyone 
had  to  marry  and  beget  children  could  not  be  taken  away.  Thus 
when  they  received  a  legacy ,s  on  condition  of  not  marrying,  or 
when  a  patron  made  his  freed-man  swear  t  that  he  would  neither 
marry  nor  beget  children,  the  Papian  law  annulled  both  the  con- 
dition and  the  oath."  The  clauses  on  continuing  in  widowhood 
established  among  us  contradict  the  ancient  law,  and  descend 
from  the  constitutions  of  the  emperors,  founded  on  ideas  of  per- 
fection. 

n  Leg.  unic.  cod.  Theod.  "  de  Infirm.  r  *'  Novell."  127,  cap.  iii. ;  "  Novell." 

pcen.  cselib.  et  orbit."  118,  cap.  v. 

o  Sozomenus,  p.  27.  s  Leg.  54  ff.  "  de  condit.  et  demonst." 

p  Leg.  2  and  3,  cod.  Theod.  "  de  jur.  /  Leg.  5,  sec.  4,  "  de  jure  patronatus." 

liber."  «  Paul,  in  his  "  Sentences,"  lib.  III. 

q  Leg.  Sancimus,  cod.  "  de  nuptiis."  tit.  4,  sec.  15. 


THE   SPIRIT   OF   LAWS  21 

There  is  no  law  that  contains  an  express  abrogation  of  the 
privileges  and  honors  which  the  Romans  had  granted  to  mar- 
riages, and  to  a  number  of  children.  But  where  celibacy  had  the 
pre-eminence,  marriage  could  not  be  held  in  honor;  and  since 
they  could  oblige  the  officers  of  the  public  revenue  to  renounce 
so  many  advantages  by  the  abolition  of  the  penalties,  it  is  easy  to 
perceive  that  with  yet  greater  ease  they  might  put  a  stop  to  the 
rewards. 

The  same  spiritual  reason  which  had  permitted  celibacy  soon 
imposed  it  even  as  necessary.  God  forbid  that  I  should  here 
speak  against  celibacy  as  adopted  by  religion;  but  who  can  be 
silent,  when  it  is  built  on  libertinism:  when  the  two  sexes,  cor- 
rupting each  other  even  by  the  natural  sensations  themselves, 
fly  from  a  union  which  ought  to  make  them  better,  to  live  in  that 
which  always  renders  them  worse? 

It  is  a  rule  drawn  from  nature,  that  the  more  the  number  of 
marriages  is  diminished,  the  more  corrupt  are  those  who  have 
entered  into  that  state;  the  fewer  married  men,  the  less  fidelity  is 
there  in  marriage;  as  when  there  are  more  thieves,  more  thefts 
are  committed. 

22. — Of  the  Exposing  of  Children 

The  Roman  policy  was  very  good  in  respect  to  the  exposing 
of  children.  Romulus,  says  Dionysius  Halicarnassus,^  laid  the 
citizens  under  an  obligation  to  educate  all  their  male  children, 
and  the  eldest  of  their  daughters.  If  the  infants  were  deformed 
and  monstrous,  he  permitted  the  exposing  them,  after  having 
shown  them  to  five  of  their  nearest  neighbors. 

Romulus  did  not  suffer  them  to  kill  any  infants  under  three 
years  old :  w  by  which  means  he  reconciled  the  law  that  gave  to 
fathers  the  right  over  their  children  of  life  and  death  with  that 
which  prohibited  their  being  exposed. 

We  find  also  in  Dionysius  Halicarnassus  x  that  the  law  which 
obliged  the  citizens  to  marry,  and  to  educate  all  their  children, 
was  in  force  in  the  277th  year  of  Rome ;  we  see  that  custom  had 
restrained  the  law  of  Romulus  which  permitted  them  to  expose 
their  younger  daughters. 

We  have  no  knowledge  of  what  the  law  of  the  Twelve  Tables 
(made  in  the  year  of  Rome  301)  appointed  with  respect  to  the  ex- 

v"  Antiquities  of  Rome,"  lib.  II.          wlbid.          *Lib.  IX. 


22  MONTESQUIEU 

posing  of  children,  except  from  a  passage  of  Cicero,?  who,  speak- 
ing of  the  office  of  tribune  of  the  people,  says  that  soon  after  its 
birth,  like  the  monstrous  infant  of  the  law  of  the  Twelve  Tables, 
it  was  stifled;  the  infant  that  was  not  monstrous  was  therefore 
preserved,  and  the  law  of  the  Twelve  Tables  made  no  alteration 
in  the  preceding  institutions. 

"  The  Germans,"  says  Tacitus/  "  never  expose  their  children ; 
among  them  the  best  manners  have  more  force  than  in  other 
places  the  best  laws."  The  Romans  had  therefore  laws  against 
this  custom,  and  yet  they  did  not  follow  them.  We  find  no  Ro- 
man law  that  permitted  the  exposing  of  children ;  a  this  was, 
without  doubt,  an  abuse  introduced  towards  the  decline  of  the  re- 
public, when  luxury  robbed  them  of  their  freedom,  when  wealth 
divided  was  called  poverty,  when  the  father  believed  that  all  was 
lost  which  he  gave  to  his  family,  and  when  this  family  was  dis- 
tinct from  his  property. 


23. — Of  the  State  of  the  World  after  the  Destruction  of  the 

Romans 

The  regulations  made  by  the  Romans  to  increase  the  number 
of  their  citizens  had  their  effect  while  the  republic  in  the  full 
vigor  of  her  constitution  had  nothing  to  repair  but  the  losses  she 
sustained  by  her  courage,  by  her  intrepidity,  by  her  firmness,  her 
love  of  glory  and  of  virtue.  But  soon  the  wisest  laws  could  not 
re-establish  what  a  dying  republic,  what  a  general  anarchy,  what 
a  military  government,  what  a  rigid  empire,  what  a  proud  des- 
potic power,  what  a  feeble  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, the  Getes,  the  Saracens  and  Tartars  by  turns  harassed 
them ;  and  soon  the  barbarians  had  none  to  destroy  but  barbar- 
ians. Thus,  in  fabulous  times,  after  the  inundations  and  the  del- 
uge, there  arose  out  of  the  earth  armed  men,  who  exterminated 
one  another. 

yLib.  III.  "de  legib."  the  Digest:  the  title  of  the  Code  says 

g "  De  Moribus  Germanorum."  nothing    of    it,    any    more    than    the 

a  There  is  no  title  on  this  subject  in       "  Novels." 


THE   SPIRIT   OF   LAWS 


23 


24. — The  Changes  which  happened  in  Europe  with  regard  to 
the  Number  of  the  Inhabitants 

In  the  state  Europe  was  in  one  would  not  imagine  it  possible 
for  it  to  be  retrieved,  especially  when  under  Charlemagne  it 
formed  only  one  vast  empire.  But  by  the  nature  of  government 
at  that  time  it  became  divided  into  an  infinite  number  of  petty 
sovereignties,  and  as  the  lord  or  sovereign,  who  resided  in  his 
village  or  city,  was  neither  great,  rich,  powerful,  nor  even  safe 
but  by  the  number  of  his  subjects,  everyone  employed  himself 
with  a  singular  attention  to  make  his  little  country  flourish.  This 
succeeded  in  such  a  manner  that  notwithstanding  the  irregular- 
ities of  government,  the  want  of  that  knowledge  which  has  since 
been  acquired  in  commerce,  and  the  numerous  wars  and  dis- 
orders incessantly  arising,  most  countries  of  Europe  were  better 
peopled  in  those  days  than  they  are  even  at  present. 

I  have  not  time  to  treat  fully  of  this  subject,  but  I  shall  cite 
the  prodigious  armies  engaged  in  the  crusades,  composed  of  men 
of  all  countries.  Puffendorf  says  that  in  the  reign  of  Charles  IX 
there  were  in  France  twenty  millions  of  men.& 

It  is  the  perpetual  reunion  of  many  little  states  that  has  pro- 
duced this  diminution.  Formerly,  every  village  of  France  was  a 
capital;  there  is  at  present  only  one  large  one.  Every  part  of 
the  state  was  a  centre  of  power;  at  present  all  has  a  relation  to 
one  centre,  and  this  centre  is  in  some  measure  the  state  itself. 

25. — The  same  Subject  continued 

Europe,  it  is  true,  has  for  these  two  ages  past  greatly  increased 
its  navigation ;  this  has  both  procured  and  deprived  it  of  inhabi- 
tants. Holland  sends  every  year  a  great  number  of  mariners  to 
the  Indies,  of  whom  not  above  two-thirds  return ;  the  rest  either 
perish  or  settle  in  the  Indies.  The  same  thing  must  happen  to 
every  other  nation  concerned  in  that  trade. 

We  must  not  judge  of  Europe  as  of  a  particular  state  engaged 
alone  in  an  extensive  navigation.  This  state  would  increase  in 
people,  because  all  the  neighboring  nations  would  endeavor  to 
have  a  share  in  this  commerce,  and  mariners  would  arrive  from 

b  **  Introduction  to  the  History  of  Eu-  France  was  never  so  populous  as  at  that 

rope,"  chap.  v.  of  France.    This  is  ob-  time,  she  did  not  possess  twenty  mill- 

viously    a     numerical     blunder,     since,  ions. — Voltaire, 
according  to  the   Census  of   1751,   and 


24  MONTESQUIEU 

all  parts.     Europe,  separated  from  the  rest  of  the  world  by  relig- 
ion^ by  vast  seas  and  deserts,  cannot  be  repaired  in  this  manner. 

26. — Consequences 

From  all  this  we  may  conclude  that  Europe  is  at  present  in  a 
condition  to  require  laws  to  be  made  in  favor  of  the  propagation 
of  the  human  species.  The  politics  of  the  ancient  Greeks  inces- 
santly complain  of  the  inconveniences  attending  a  republic,  from 
the  excessive  number  of  citizens ;  but  the  politics  of  this  age  call 
upon  us  to  take  proper  means  to  increase  ours. 

27. — Of  the  Law  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.^  But  it  is 
not  sufficient  to  reward  prodigies.  In  order  to  communicate  a 
general  spirit,  which  leads  to  the  propagation  of  the  species,  it  is 
necessary  for  us  to  establish,  like  the  Romans,  general  rewards, 
or  general  penalties. 

28. — By  what  Means  we  may  remedy  a  Depopulation 

When  a  state  is  depopulated  by  particular  accidents,  by  wars, 
pestilence,  or  famine,  there  are  still  resources  left.  The  men  who 
remain  may  preserve  the  spirit  of  industry ;  they  may  seek  to  re- 
pair their  misfortunes,  and  calamity  itself  may  make  them  be- 
come more  industrious.  This  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;  born  in  misery  and  weakness,  in  vio- 
lence or  under  the  influence  of  a  wicked  administration,  they  see 
themselves  destroyed,  and  frequently  without  perceiving  the 
cause  of  their  destruction.  Of  this  we  have  a  melancholy  proof 
in  the  countries  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-establish  a  state  thus  depopulated.  There  is  not  time  for  this  ; 
men  in  their  solitude  are  without  courage  or  industry.  With 
land  sufficient  to  nourish  a  nation,  they  have  scarcely  enough  to 

c  Mahommedan  countries  surround  it  d  The  edict  pf  1666  in  favor  of  mar- 

alrnost  on  every  side.  ' 


THE   SPIRIT   OF   LAWS  25 

nourish  a  family.  The  common  people  have  not  even  a  property 
in  the  miseries  of  the  country,  that  is,  in  the  fallows  with  which 
it  abounds.  The  clergy,  the  prince,  the  cities,  the  great  men,  i 
and  some  of  the  principal  citizens  insensibly  become  proprietors 
of  all  the  land  which  lies  uncultivated;  the  families  who  are 
ruined  have  left  their  fields,  and  the  laboring  man  is  destitute. 

In  this  situation  they  should  take  the  same  measures  through- 
out the  whole  extent  of  the  empire  which  the  Romans  took  in  a 
part  of  theirs;  they  should  practise  in  their  distress  what  these 
observed  in  the  midst  of  plenty;  that  is,  they  should  distribute 
land  to  all  the  families  who  are  in  want,  and  procure  them  ma- 
terials for  clearing  and  cultivating  it.  This  distribution  ought  to 
be  continued  so  long  as  there  is  a  man  to  receive  it,  and  in  such  a 
manner  as  not  to  lose  a  moment  that  can  be  industriously  em- 
ployed. 

29. — Of  Hospitals 

A  man  is  not  poor  because  he  has  nothing,  but  because  he  does 
not  work.  The  man  who  without  any  degree  of  wealth  has  an 
employment  is  as  much  at  his  ease  as  he  who  without  labor  has 
an  income  of  a  hundred  crowns  a  year.  He  who  has  no  sub- 
stance, and  yet  has  a  trade,  is  not  poorer  than  he  who,  possessing 
ten  acres  of  land,  is  obliged  to  cultivate  it  for  his  subsistence. 
The  mechanic  who  gives  his  art  as  an  inheritance  to  his  children 
has  left  them  a  fortune,  which  is  multiplied  in  proportion  to  their 
number.  It  is  not  so  with  him  who,  having  ten  acres  of  land, 
divides  it  among  his  children. 

In  trading  countries,  where  many  men  have  no  other  subsist- 
ence but  from  the  arts,  the  state  is  frequently  obliged  to  supply 
the  necessities  of  the  aged,  the  sick,  and  the  orphan.  A  well- 
regulated  government  draws  this  support  from  the  arts  them- 
selves. It  gives  to  some  such  employment  as  they  are  capable  of 
performing;  others  are  taught  to  work,  and  this  teaching  of  it- 
self becomes  an  employment. 

The  alms  given  to  a  naked  man  in  the  street  do  not  fulfil  the 
obligations  of  the  state,  which  owes  to  every  citizen  a  certain  sub- 
sistence, a  proper  nourishment,  convenient  clothing,  and  a  kind 
of  life  not  incompatible  with  health. 

Aurengzebe,  being  asked  why  he  did  not  build  hospitals,  said, 
"  I  will  make  my  empire  so  rich  that  there  shall  be  no  need  of 


26  MONTESQUIEU 

hospitals."  e  He  ought  to  have  said,  I  will  begin  by  rendering 
my  empire  rich,  and  then  I  will  build  hospitals. 

The  riches  of  the  state  suppose  great  industry.  Amidst  the 
numerous  branches  of  trade  it  is  impossible  but  that  some  must 
suffer,  and  consequently  the  mechanics  must  be  in  a  momentary 
necessity. 

Whenever  this  happens,  the  state  is  obliged  to  lend  them  a 
ready  assistance,  whether  it  be  to  prevent  the  sufferings  of  the 
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  poverty  springs  from  the 
general  calamity,  and  is,  if  I  may  so  express  myself,  the  general 
calamity  itself.  All  the  hospitals  in  the  world  cannot  cure  this 
private  poverty;  on  the  contrary,  the  spirit  of  indolence,  which 
it  constantly  inspires,  increases  the  general  and  consequently  the 
private  misery. 

Henry  VIII/  resolving  to  reform  the  Church  of  England, 
ruined  the  monks,  of  themselves  a  lazy  set  of  people,  that  en- 
couraged laziness  in  others,  because,  as  they  practised  hospitality, 
an  infinite  number  of  idle  persons,  gentlemen  and  citizens,  spent 
their  lives  in  running  from  convent  to  convent.  He  demolished 
even  the  hospitals,  in  which  the  lower  people  found  subsistence, 
as  the  gentlemen  did  theirs  in  the  monasteries.  Since  these 
changes,  the  spirit  of  trade  and  industry  has  been  established  in 
England. 

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

I  have  observed  that  wealthy  nations  have  need  of  hospitals, 
because  fortune  subjects  them  to  a  thousand  accidents;  but  it  is 
plain  that  transient  assistances  are  much  better  than  perpetual 
foundations.  The  evil  is  momentary;  it  is  necessary,  therefore, 
that  the  succor  should  be  of  the  same  nature,  and  that  it  be  ap- 
plied to  particular  accidents. 

e  See    Sir   John    Chardin's    "  Travels          /  See  Burnet's  "  History  of  the  Refer- 
through  Persia,"  vol.  viii.  mation." 


BOOK  XXIV 

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

i. — Of  Religion  in  General 

AS  amidst  several  degrees  of  darkness  we  may  form  a 
judgment  of  those  which  are  the  least  thick,  and  among 
precipices  which  are  the  least  deep,  so  we  may  search 
among  false  religions  for  those  that  are  most  conformable  to 
the  welfare  of  society ;  for  those  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, 
in  relation  only  to  the  good  they  produce  in  civil  society, 
whether  I  speak  of  that  which  has  its  root  in  heaven,  or  of  those 
which  spring  from  the  earth. 

As  in  this  work  I  am  not  a  divine  but  a  political  writer,  I 
may  here  advance  things  which  are  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  person  of  the  least  degree 
of  impartiality  must  see  that  I  have  never  pretended  to  make 
its  interests  submit  to  those  of  a  political  nature,  but  rather  to 
unite  them;  now,  in  order  to  unite,  it  is  necessary  that  we 
should  know  them. 

The  Christian  religion,  which  ordains  that  men  should  love 
each  other,  would,  without  doubt,  have  every  nation  blest  with 
the  best  civil,  the  best  political  laws;  because  these,  next  to 
this  religion,  are  the  greatest  good  that  men  can  give  and 
receive. 

^2. — 'A  Paradox  of  Mr.  Bayle's 

Mr.  Bayle  has  pretended  to  prove  a  that  it  is  better  to  be  an 
atheist  than  an  idolater;  that  is,  in  other  words,  that  it  is  less 

a  "  Thoughts  on  the  Comet." 
27 


28  MONTESQUIEU 

dangerous  to  have  no  religion  at  all  than  a  bad  one.  "  I  had 
rather,"  said  he,  "  it  should  be  said  of  me  that  I  had  no  existence 
than  that  I  am  a  villain."  This  is  only  a  sophism  founded  on 
this,  that  it  is  of  no  importance  to  the  human  race  to  believe 
that  a  certain  man  exists,  whereas  it  is  extremely  useful  for 
them  to  believe  the  existence  of  a  God.  From  the  idea  of  his 
non-existence  immediately  follows  that  of  our  independence; 
or,  if  we  cannot  conceive  this  idea,  that  of  disobedience.  To 
say  that  religion  is  not  a  restraining  motive,  because  it  does  not 
always  restrain,  is  equally  absurd  as  to  say  that  the  civil  laws 
are  not  a  restraining  motive.  It  is  a  false  way  of  reasoning 
against  religion  to  collect,  in  a  large  work,  a  long  detail  of  the 
evils  it  has  produced,  if  we  do  not  give  at  the  same  time  an  enu- 
meration of  the  advantages  which  have  flowed  from  it.  Were 
I  to  relate  all  the  evils  that  have  arisen  in  the  world  from  civil 
laws,  from  monarchy,  and  from  republican  government,  I 
might  tell  of  frightful  things.  Were  it  of  no  advantage  for  sub- 
jects to  have  religion,  it  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  loves  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  is  like  the  savage  beast  that 
growls  and  bites  the  chain  which  prevents  his  flying  on  those 
who  come  near  him.  He  who  has  no  religion  at  all  is  that  terri- 
ble animal  who  perceives  his  liberty  only  when  he  tears  in  pieces 
and  when  he  devours. 

The  question  is  not  to  know  whether  it  would  be  better  that 
a  certain  man  or  a  certain  people  had  no  religion  than  to  abuse 
what  they  have,  but  to  know  what  is  the  least  evil,  that  religion 
be  sometimes  abused,  or  that  there  be  no  such  restraint  as 
religion  on  mankind. 

To  diminish  the  horror  of  atheism,  they  lay  too  much  to  the 
charge  of  idolatry.  It  is  far  from  being  true  that  when  the 
ancients  raised  altars  to  a  particular  vice,  they  intended  to  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  Lacedae- 
monians. They  had  deities  to  whom  they  prayed  not  to  inspire 


THE   SPIRIT   OF  LAWS  29 

them  with  guilt;  and  others  whom  they  besought  to  shield 
them  from  it. 

3. — That  a  moderate  Government  is  most  agreeable  to  the 
.,  Christian  Religion,  and  a  despotic  Government  to  the  Ma- 
hommedan 

The  Christian  religion  is  a  stranger  to  mere  despotic  power. 
The  mildness  so  frequently  recommended  in  the  gospel  is  in- 
compatible with  the  despotic  rage  with  which  a  prince  punishes 
his  subjects,  and  exercises  himself  in  cruelty. 

As  this  religion  forbids  the  plurality  of  wives,  its  princes  are 
less  confined,  less  concealed  from  their  subjects,  and  conse- 
quently have  more  humanity :  they  are  more  disposed  to  be  di- 
rected by  laws,  and  more  capable  of  perceiving  that  they  cannot 
do  whatever  they  please. 

While  the  Mahommedan  princes  incessantly  give  or  receive 
death,  the  religion  of  the  Christians  renders  their  princes  less 
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  view  the  felicity 
of  the  other  life,  continues  the  happiness  of  this ! 

It  is  the  Christian  religion  that,  in  spite  of  the  extent  of  the 
empire  and  the  influence  of  the  climate,  has  hindered  despotic 
power  from  being  established  in  Ethiopia,  and  has  carried  into 
the  heart  of  Africa  the  manners  and  laws  of  Europe. 

The  heir  to  the  Empire  of  Ethiopia  &  enjoys  a  principality 
and  gives  to  other  subjects  an  example  of  love  and  obedience. 
Not  far  thence  may  we  see  the  Mahommedan  shutting  up  the 
children  of  the  King  of  Sennar,  at  whose  death  the  Council 
sends  to  murder  them,  in  favor  of  the  prince  who  mounts  the 
throne. 

Let  us  set  before  our  eyes,  on  the  one  hand,  the  continual 
massacres  of  the  kings  and  generals  of  the  Greeks  and  Romans, 
and,  on  the  other,  the  destruction  of  people  and  cities  by  those 
famous  conquerors  Timur  Beg  and  Jenghiz  Khan,  who  ravaged 
Asia,  and  we  shall  see  that  we  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. 

b "  Description  of  Ethiopia,"  by   M.  Ponce,  Physician.    "  Collection  of  Edi- 
fying Letters.'* 


30  MONTESQUIEU 

It  is  owing  to  this  law  of  nations  that  among  us  victory 
leaves  these  great  advantages  to  the  conquered,  life,  liberty, 
laws,  wealth,  and  always  religion,  when  the  conqueror  is  not 
blind  to  his  own  interest. 

We  may  truly  say  that  the  people  of  Europe  are  not  at  present 
more  disunited  than  the  people  and  the  armies,  or  even  the 
armies  among  themselves  were,  under  the  Roman  Empire 
when  it  had  become  a  despotic  and  military  government.  On 
the  one  hand,  the  armies  engaged  in  war  against  each  other, 
and,  on  the  other,  they  pillaged  the  cities,  and  divided  or  con- 
fiscated the  lands. 

4. — Consequences  from  the  Character  of  the  Christian  Religion, 
and  that  of  the  Mahommedan 

From  the  characters  of  the  Christian  and  Mahommedan  re- 
ligions, we  ought,  without  any  further  examination,  to  embrace 
the  one  and  reject  the  other :  for  it  is  much  easier  to  prove  that 
religion  ought  to  humanize  the  manners  of  men  than  that  any 
particular  religion  is  true. 

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

The  history  of  Sabbaco/  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 
Egypt.  He  judged  that  the  gods  were  displeased  at  his  being 
on  the  throne,  since  they  commanded  him  to  commit  an  action 
contrary  to  their  ordinary  pleasure ;  and,  therefore,  he  retired 
into  Ethopia. 

V5. — That  the  Catholic  Religion  is  most  agreeable  to  a  Monarchy, 
and  the  Protestant  to  a  Republic 

When  a  religion  is  introduced  and  fixed  in  a  state,  it  is  com- 
monly such  as  is  most  suitable  to  the  plan  of  government  there 
established;  for  those  who  receive  it,  and  those  who  are  the 
cause  of  its  being  received,  have  scarcely  any  other  idea  of  pol- 
icy than  that  of  the  state  in  which  they  were  born. 

When  the  Christian  religion,  two  centuries  ago,  became  un* 

e  See  "  Diodorus,"  lib.  II. 


THE   SPIRIT   OF   LAWS  31 

happily  divided  into  Catholic  and  Protestant,  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  of  the  north  have,  and  will 
forever  have,  a  spirit  of  liberty  and  independence,  which  the 
people  of  the  south  have  not ;  and,  therefore,  a  religion  which 
has  no  visible  head  is  more  agreeable  to  the  independence  of  the 
climate  than  that  which  has  one. 

In  the  countries  themselves  where  the  Protestant  religion 
became  established,  the  revolutions  were  made  pursuant  to  the 
several  plans  of  political  government.  Luther  having  great 
princes  on  his  side  would  never  have  been  able  to  make  them 
relish  an  ecclesiastical  authority  that  had  no  exterior  pre-emi- 
nence ;  while  Calvin,  having  to  do  with  people  who  lived  under 
republican  governments,  or  with  obscure  citizens  in  mon- 
archies, might  very  well  avoid  establishing  dignities  and  prefer- 
ments. 

Each  of  these  two  religions  was  believed  to  be  perfect ;  the 
Calvinist  judging  his  most  conformable  to  what  Christ  had 
said,  and  the  Lutheran  to  what  the  Apostles  had  practised. 

6. — Another  of  Mr.  Bayle's  Paradoxes 

Mr.  Bayle,  after  having  abused  all  religions,  endeavors  to 
sully  Christianity:  he  boldly  asserts  that  true  Christians  can- 
not form  a  government  of  any  duration.  Why  not  ?  Citizens 
of  this  profession  being  infinitely  enlightened  with  respect  to 
the  various  duties  of  life,  and  having  the  warmest  zeal  to  fulfil 
them,  must  be  perfectly  sensible  of  the  rights  of  natural  defence. 
The  more  they  believe  themselves  indebted  to  religion,  the 
more  they  would  think  due  to  their  country.  The  principles  of 
Christianity,  deeply  engraved  on  the  heart,  would  be  infinitely 
more  powerful  than  the  false  honor  of  monarchies,  than  the 
humane  virtues  of  republics,  or  the  servile  fear  of  despotic 
states. 

It  is  astonishing  that  this  great  man  should  not  be  able  to 
distinguish  between  the  orders  for  the  establishment  of  Chris- 
tianity and  Christianity  itself ;  and  that  he  should  be  liable  to 
be  charged  with  not  knowing  the  spirit  of  his  own  religion. 
When  the  legislator,  instead  of  laws,  has  given  counsels,  this  is 


3a  MONTESQUIEU 

because  he  knew  that  if  these  counsels  were  ordained  as  laws 
they  would  be  contrary  to  the  spirit  of  the  laws  themselves. 

7. — Of  the  Laws  of  Perfection  in  Religion 

Human  laws,  made  to  direct  the  will,  ought  to  give  precepts, 
and  not  counsels ;  religion,  made  to  influence  the  heart,  should 
give  many  counsels,  and  few  precepts. 

When,  for  instance,  it  gives  rules,  not  for  what  is  good,  but 
for  what  is  better ;  not  to  direct  to  what  is  right,  but  to  what 
is  perfect;  it  is  expedient  that  these  should  be  counsels,  and 
not  laws :  for  perfection  can  have  no  relation  to  the  universal- 
ity of  men  or  things.  Besides,  if  these  were  laws,  there  would 
be  a  necessity  for  an  infinite  number  of  others,  to  make  people 
observe  the  first.  Celibacy  was  advised  by  Christianity ;  when 
they  made  it  a  law  in  respect  to~a  certain  order  of  men,  it  be- 
came necessary  to  make  new  ones  every  day,  in  order  to  oblige 
those  men  to  observe  it.d  The  legislator  wearied  himself,  and  he 
wearied  society,  to  make  men  execute  by  precept  what  those 
who  love  perfection  would  have  executed  as  counsel. 

8. — Of  the  Connection  between  the  moral  Laws  and  those  of 

Religion 

In  a  country  so  unfortunate  as  to  have  a  religion  that  God 
has  not  revealed,  it  is  necessary  for  it  to  be  agreeable  to  moral- 
ity; because  even  a  false  religion  is  the  best  security  we  can 
have  of  the  probity  of  men. 

The  principal  points  of  religion  of  the  inhabitants  of  Pegu  e 
are  not  to  commit  murder,  not  to  steal,  to  avoid  uncleanliness, 
not  to  give  the  least  uneasiness  to  their  neighbor,  but  to  do 
him,  on  the  contrary,  all  the  good  in  their  power.  With  these 
rules  they  think  they  should  be  saved  in  any  religion  whatso- 
ever. Hence  it  proceeds  that  those  people,  though  poor  and 
proud,  behave  with  gentleness  and  compassion  to  the  unhappy. 

9. — Of  the  Essenes 

The  Essenes  f  made  a  vow  to  observe  justice  to  mankind,  to 
do  no  ill  to  any  person,  upon  whatsoever  account,  to  keep 
faith  with  all  the  world,  to  hate  injustice,  to  command  with 

d  Dupin's   "  Ecclesiastical  Library  of       tributed  to  the  establishment  of  the  East 
the  6th  century,"  vol.  v.  India  Company,"  vol.  Hi.  part  I.  p.  36. 

e  "  Collection    of    Voyages    that    con-  f  "  History  of  the  Jews,"  by  Prideaux. 


THE   SPIRIT  OF  LAWS  33 

modesty,  always  to  side  with  truth,  and  to  fly  from  all  unlaw- 
ful gain. 

io.— Of  the  Sect  of  Stoics 

The  several  sects  of  philosophy  among  the  ancients  were  a 
species  of  religion.  Never  were  any  principles  more  worthy 
of  human  nature,  and  more  proper  to  form  the  good  man,  than 
those  of  the  Stoics ;  and  if  I  could  for  a  moment  cease  to  think 
that  I  am  a  Christian,  I  should  not  be  able  to  hinder  myself 
from  ranking  the  destruction  of  the  sect  of  Zeno  among  the 
misfortunes  that  have  befallen  the  human  race. 

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

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

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

While  the  Stoics  looked  upon  riches,  human  grandeur,  grief, 
disquietudes,  and  pleasures  as  vanity,  they  were  entirely  em- 
ployed in  laboring  for  the  happiness  of  mankind,  and  in  exer- 
cising the  duties  of  society.  It  seems  as  if  they  regarded  that 
sacred  spirit,  which  they  believed  to  dwell  within  them,  as  a 
kind  of  favorable  providence  watchful  over  the  human  race. 

Born  for  society,  they  all  believed  that  it  was  their  destiny 
to  labor  for  it ;  with  so  much  the  less  fatigue,  their  rewards 
were  all  within  themselves.  Happy  by  their  philosophy  alone, 
it  seemed  as  if  only  the  happiness  of  others  could  increase 
theirs, 

ii. — Of  Contemplation 

Men  being  made  to  preserve,  to  nourish,  to  clothe  them- 
selves, and  do  all  the  actions  of  society,  religion  ought  not  to 
give  them  too  contemplative  a  life.g 

The  Mahommedans  become  speculative  by  habit;  they  pray 
five  times  a  day,  and  each  time  they  are  obliged  to  cast  behind 
them  everything  which  has  any  concern  with  this  world :  this 

g  This  is  the  inconvenience  of  the  doctrine  of  Foe  and  Laockium. 
VOL.  II.—  3 


34  MONTESQUIEU 

forms  them  for  speculation.  Add  to  this  that  indifference  for 
all  things  which  is  inspired  by  the  doctrine  of  unalterable  fate. 

If  other  causes  besides  these  concur  to  disengage  their  affec- 
tions; for  instance,  if  the  severity  of  the  government,  if  the 
laws  concerning  the  property  of  land,  give  them  a  precarious 
spirit — all  is  lost. 

The  religion  of  the  Gaurs  formerly  rendered  Persia  a  flour- 
ishing kingdom ;  it  corrected  the  bad  effects  of  despotic  power. 
The  same  empire  is  now  destroyed  by  the  Mahommedan  religion. 

12. — Of  Penances 

Penances  ought  to  be  joined  with  the  idea  of  labor,  not  with 
that  of  idleness ;  with  the  idea  of  good,  not  with  that  of  super- 
eminence  ;  with  the  idea  of  frugality,  not  with  that  of  avarice. 

13. — Of  inexpiable  Crimes 

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

The  Pagan  religion,  indeed,  which  prohibited  only  some  of 
the  grosser  crimes,  and  which  stopped  the  hand  but  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  thoughts  and  desires ;  which  holds  us 
not  by  a  few  chains  but  by  an  infinite  number  of  threads ;  which, 
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  judge  and  the  criminal  a  greater  mediator,  be- 
tween the  just  and  the  mediator  a  great  judge — a  religion  like 
this  ought  not  to  have  inexpiable  crimes.  But  while  it  gives 
fear  and  hope  to  all,  it  makes  us  sufficiently  sensible  that 
though  there  is  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 

h  Lib.  II.  of  "  Laws."  quod  expiari  potent  ptiblici  sacerdotes 

f  "  Sacrum    commissum,    quod    neque        expianto." 
expiari  poterit,   impie  commissum   ett; 


THE  SPIRIT  OF  LAWS  35 

uneasiness  on  account  of  ancient  debts,  from  which  we  are 
never  entirely  free,  ought  to  make  us  afraid  of  contracting  new 
ones,  of  filling  up  the  measure,  and  going  even  to  that  point 
where  paternal  goodness  is  limited. 

14. — In  what  Manner  Religion  has  an  Influence  on  Civil  Laws 

As  both  religion  and  the  civil  laws  ought  to  have  a  peculiar 
tendency  to  render  men  good  citizens,  it  is  evident  that  when 
one  of  these  deviates  from  this  end,  the  tendency  of  the  other 
ought  to  be  strengthened.  The  less  severity  there  is  in  religion, 
the  more  there  ought  to  be  in  the  civil  laws. 

Thus  the  reigning  religion  of  Japan  having  few  doctrines, 
and  proposing  neither  future  rewards  nor  punishments,  the 
laws  to  supply  these  defects  have  been  made  with  the  spirit  of 
severity,  and  are  executed  with  an  extraordinary  punctuality. 

When  the  doctrine  of  necessity  is  established  by  religion, 
the  penalties  of  the  laws  ought  to  be  more  severe,  and  the 
magistrate  more  vigilant;  to  the  end  that  men  who  would 
otherwise  become  abandoned  might  be  determined  by  these 
motives;  but  it  is  quite  otherwise  where  religion  has  estab- 
lished the  doctrine  of  liberty. 

From  the  inactivity  of  the  soul  springs  the  Mahommedan  doc- 
trine of  predestination,  and  from  this  doctrine  of  predestination 
;  springs  the  inactivity  of  the  soul.  This,  they  say,  is  in  the  de- 
crees of  God ;  they  must,  therefore,  indulge  their  repose.  In 
a  case  like  this  the  magistrate  ought  to  waken  by  the  laws  those 
who  are  lulled  asleep  by  religion. 

When  religion  condemns  things  which  the  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  between  both. 

Thus  the  Tartars  under  Jenghiz  Khan,/  among  whom  it 
was  a  sin  and  even  a  capi  :al  crime  to  put  a  knife  in  the  fire, 
to  lean  against  a  whip,  to  strike  a  horse  with  the  bridle,  to  break 
one  bone  with  another,  did  not  believe  it  to  be  any  sin  to  break 
their  word,  to  seize  upon  another  man's  goods,  to  do  an  injury 
to  a  person,  or  to  commit  murder.  In  a  word,  laws  which  ren- 

j  See    the    relation    written    by    John  Duplan  Carpin,  sent  to  Tartary  by  Pope 
Innocent  IV  in  the  year  1246. 


36  MONTESQUIEU 

der  that  necessary  which  is  only  indifferent  have  this  inconven- 
ience, that  they  make  those  things  indifferent  which  are  abso- 
lutely necessary. 

The  people  of  Formosa  believe  k  that  there  is  a  kind  of  hell, 
but  it  is  to  punish  those  who  at  certain  seasons  have  not  gone 
naked,  who  have  dressed  in  calico  and  not  in  silk,  who  have 
presumed  to  look  for  oysters,  or  who  have  undertaken  any 
business  without  consulting  the  song  of  birds ;  whilst  drunken- 
ness and  debauchery  are  not  regarded  as  crimes.  They  believe 
even  that  the  debauches  of  their  children  are  agreeable  to  their 
gods. 

When  religion  absolves  the  mind  by  a  thing  merely  acci- 
dental, it  loses  its  greatest  influence  on  mankind.  The  people 
of  India  believe  that  the  waters  of  the  Ganges  have  a  sanctify- 
ing virtue./  Those  who  die  on  its  banks  are  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  for  this  reason 
the  ashes  of  the  dead  are  sent  from  the  most  distant  places 
to  be  thrown  into  this  river.  Little  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  hope 
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  are  above  the  power  of  the  legis- 
lator ;  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  moment  to  begin 
his  happiness? 

15. — How  false  Religions  are  sometimes  corrected  by  the  Civil 

Laws 

Simplicity,  superstition,  or  a  respect  for  antiquity  have  some- 
times established  mysteries  or  ceremonies  shocking  to  modes- 
ty :  of  this  the  world  has  furnished  numerous  examples.  Aris- 
totle saysw  that  in  this  case  the  law  permits  the  fathers  of 
families  to  repair  to  the  temple  to  celebrate  these  mysteries  for 

k  "  Collection   of   Voyages    that    Con-  / "  Edifying  Letters,"  collect.   15. 

tributed  to  the  establishment  of  the  East  m  "  Polit."  lib.  VII.  cap.  xvii. 

India  Company,"  vol.  v.  p.  192. 


THE  SPIRIT  OF  LAWS  37 

their  wives  and  children.    How  admirable  the  civil  law  which 
in  spite  of  religion  preserves  the  manners  untainted ! 

Augustus  w  excluded  the  youth  of  either  sex  from  assisting 
at  any  nocturnal  ceremony,  unless  accompanied  by  a  more 
aged  relative ;  and  when  he  revived  the  Lupercalia,  he  would 
not  allow  the  young  men  to  run  naked. 

16. — How  the  Laws  of  Religion  correct  the  Inconveniences  of 
a  political  Constitution 

On  the  other  hand,  religion  may  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  of  the  state  to 
remain  always  quiet.  Among  the  Greeks,  the  Eleans,  as 
priests  of  Apollo,  lived  always  in  peace.  In  Japan,o  the  city 
of  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  foreigners,  has  always  in  its  own  bosom  a 
trade  which  war  cannot  ruin. 

In  kingdoms  where  wars  are  not  entered  upon  by  a  general 
consent,  and  where  the  laws  have  not  pointed  out  any  means 
either  of  terminating  or  preventing  them,  religion  establishes 
times  of  peace,  or  cessation  from  hostilities,  that  the  people  may 
be  able  to  sow  their  corn  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  im- 
piety./' In  former  times,  when  every  lord  in  France  declared 
war  or  peace,  religion  granted  a  truce,  which  was  to  take  place 
at  certain  seasons. 

17. — The  same  Subject  continued 

When  a  state  has  many  causes  for  hatred,  religion  ought 
to  produce  many  ways  of  reconciliation.  The  Arabs,  a  people 
addicted  to  robbery,  are  frequently  guilty  of  doing  injury  and 
injustice.  Mahomet  enacted  this  law : Q  "If  any  one  forgives 

n  Suetonius,  in  "  Augusto,"  cap.  xxxi.  p  See  Prideaux,  "  Life  of  Mahomet," 

o  "  Collection  of  Voyages  made  to  es-  p.    64. 

tablish  an  India  Company,"  vol.  iv.  p.  q  Koran,   book    I.,   chapter   "  of   the 

127.  Cow." 


38  MONTESQUIEU 

the  blood  of  his  brother/  he  may  pursue  the  malefactor  for 
damages  and  interest;  but  he  who  shall  injure  the  wicked, 
after  having  received  satisfaction,  shall,  in  the  day  of  judgment, 
suffer  the  most  grievous  torments." 

The  Germans  inherited  the  hatred  and  enmity  of  their  near 
relatives :  but  these  were  not  eternal.  Homicide  was  expiated 
by  giving  a  certain  number  of  cattle,  and  all  the  family  re- 
ceived satisfaction :  a  thing  extremely  useful,  says  Tacitus,  be- 
cause enmities  are  most  dangerous  among  a  free  people.*  I 
believe,  indeed,  that  their  ministers  of  religion,  who  were  held 
by  them  in  so  much  credit,  were  concerned  in  these  reconcilia- 
tions. 

Among  the  inhabitants  of  Malacca,*  where  no  form  of  recon- 
ciliation is  established,  he  who  has  committed  murder,  certain 
of  being  assassinated  by  the  relatives  or  friends  of  the  deceased, 
abandons  himself  to  fury,  and  wounds  or  kills  all  he  meets. 

1 8. — How  the  Laws  of  Religion  have  the  Effect  of  Civil  Laws 
The  first  Greeks  were  small  nations,  frequently  dispersed, 
pirates  at  sea,  unjust  on  land,  without  government  and  with- 
out laws.  The  mighty  actions  of  Hercules  and  Theseus  let  us 
see  the  state  of  that  rising  people.  What  could  religion  do 
more  to  inspire  them  with  horror  against  murder?  It  de- 
clared that  the  man  who  had  been  murdered  was  enraged 
against  the  assassin,  that  he  would  possess  his  mind  with  ter- 
ror and  trouble,  and  oblige  him  to  yield  to  him  the  places  he 
had  frequented  when  alive."  They  could  not  touch  the  crim- 
inal, nor  converse  with  him,  without  being  defiled:  a  the  mur- 
derer was  to  be  expelled  the  city,  and  an  expiation  made  for 
the  crimed 

19. — That  it  is  not  so  much  the  Truth  or  Falsity  of  a  Doctrine 
which  renders  it  useful  or  pernicious  to  Men  in  civil  Govern- 
ment, as  the  Use  or  Abuse  of  it 

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

r  On  renouncing  the  law  of  retaliation.  and  what  he  says  of  the  people  of  Ma- 

s  "  De  Moribus  Germanorum."  cassar. 

t  "  Collection    of    Voyages    that    con-  «  Plato,  of  "  Laws,"  lib.  IX. 

tributed  to  the  establishment  of  the  East  a  Tragedy  of  "  OZdipus  Coloneus." 

India   Company,"  vol.  vii.   p.  303.     See  6  Plato,  of  "  Laws,"  lib.  IX. 

also  "  Memoirs  "  of  the  C.  de  Forbin, 


THE  SPIRIT  OF  LAWS 


39 


tne  principles  of  society;  and  on  the  contrary,  doctrines  the 
most  false  may  be  attended  with  excellent  consequences,  when 
contrived  so  as  to  be  connected  with  these  principles. 

The  religion  of  Confucius  disowns  the  immortality  of  the 
soul :  and  the  sect  of  Zeno  did  not  believe  it.  These  two  sects 
have  drawn  from  their  bad  principles  consequences,  not  just 
indeed,  but  most  admirable  as  to  their  influence  on  society. 
Those  of  the  religion  of  Tao,  and  of  Foe/  believe  the  immor- 
tality of  the  soul ;  but  from  this  sacred  doctrine  they  draw  the 
most  frightful  consequences. 

The  doctrine  of  the  immortality  of  the  soul  falsely  under- 
stood has,  almost  in  every  part  of  the  globe  and  in  every  age, 
engaged  women,  slaves,  subjects,  friends,  to  murder  them- 
selves, that  they  might  go  and  serve  in  the  other  world  the  ob- 
ject of  their  respect  or  love  in  this.  Thus  it  was  in  the  West 
Indies ;  thus  it  was  among  the  Danes ;  d  thus  it  is  at  present  in 
Japan/  in  Macassar/  and  many  other  places. 

These  customs  do  not  so  directly  proceed  from  the  doctrine 
of  the  immortality  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  same  wants,  the 
same  sentiments,  the  same  passions.  In  this  point  of  view, 
the  doctrine  of  the  immortality  of  the  soul  has  a  prodigious 
effect  on  mankind ;  because  the  idea  of  only  a  simple  change 
of  habitation  is  more  within  the  reach  of  the  human  under- 
standing, and  more  adapted  to  flatter  the  heart,  than  the  idea 
of  a  new  modification. 

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

c  A  Chinese  philosopher  reasons  thus  passion  and  affection   so   necessary  for 

against  the  doctrine  of  Foe:  "  It  is  said,  its  preservation;  hence  the  disciples  of 

in  a  book  of  that  sect,  that  the  body  is  Foe    kill    themselves    by    thousands."— 

our  dwelling-place  and  the  soul  the  im-  "  Work   of  an   ancient    Chinese   philos- 

mortal  guest  which  lodges  there;  but  if  opher,"  in  the  Collection  of  Du  Halde, 

the  bodies  of  our  relatives  are  only  a  vol.  iii.  p.  52. 

lodging,    it   is   natural   to   regard    them  d  See    Tho.    Bartholin's    "  Antiquities 

with  the  same  contempt  we  should  feel  of  the  Danes." 

for  a  structure  of  earth  and  dirt.    Is  not  e  "  An    Account    of    Japan,"    in    the 

this  endeavoring  to  tear  from  the  heart  "  Collection  of  Voyages  that  contributed 

the  virtue  of  love  to  one's  own  parents?  to  establish  an  East  India  Company." 

This  leads  us  even  to  neglect  the  care  /  Forbin's  "  Memoirs." 
of  the  body,  and  to  refuse  it  the  com- 


40  MONTESQUIEU 

which  we  have  already  experienced  or  known:  thus  every 
article,  even  the  resurrection  of  the  body,  leads  us  to  spiritual 
ideas. 

20. — The  same  Subject  continued 

The  sacred  books  g  of  the  ancient  Persians  say,  "  If  you 
would  be  holy  instruct  your  children,  because  all  the  good  ac- 
tions which  they  perform  will  be  imputed  to  you."  They  ad- 
vise them  to  marry  betimes,  because  children  at  the  day  of 
judgment  will  be  as  a  bridge,  over  which  those  who  have  none 
cannot  pass.  These  doctrines  were  false,  but  extremely  use- 
ful. 

21. — Of  the  Metempsychosis 

The  doctrine  of  the  immortality  of  the  soul  is  divided  into 
three  branches — that  of  pure  immortality,  that  of  a  simple 
change  of  habitation,  and  that  of  a  metempsychosis,  that  is,  the 
system  of  the  Christians,  that  of  the  Scythians,  and  that  of  the 
Indians.  We  have  just  been  speaking  of  the  first  two,  and  I 
shall  say  of  the  last,  that  as  it  has  been  well  or  ill  explained, 
it  has  had  good  or  bad  effects.  As  it  inspires  men  with  a  cer- 
tain horror  against  bloodshed,  very  few  murders  are  committed 
in  the  Indies ;  and  though  they  seldom  punish  with  death,  yet 
they  enjoy  a  perfect  tranquillity. 

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

22. — That  it  is  dangerous  for  Religion  to  inspire  an  Aversion 
for  Things  in  themselves  indifferent 

A  kind  of  honor  established  in  the  Indies  by  the  prejudices 
of  religion  has  made  the  several  tribes  conceive  an  aversion 
against  each  other.  This  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  connected  with  a  certain  aver- 
sion for  other  men,  very  different  from  those  sentiments  which 
naturally  arise  from  difference  of  rank ;  which  among  us  com- 
prehends a  love  for  inferiors. 

*  Mr.  Hyde. 


THE  SPIRIT  OF  LAWS  41 

The  laws  of  religion  should  never  inspire  an  aversion  to 
anything  but  vice,  and  above  all  they  should  never  estrange 
man  from  a  love  and  tenderness  for  his  own  species. 

The  Mahommedan  and  Indian  religions  embrace  an  infinite 
number  of  people;  the  Indians  hate  the  Mahommedans,  because 
they  eat  cows;  the  Mahommedans  detest  the  Indians  because 
they  eat  hogs. 

23. — Of  Festivals 

When  religion  appoints  a  cessation  from  labor  it  ought  to 
have  greater  regard  to  the  necessities  of  mankind  than  to  the 
grandeur  of  the  being  it  designs  to  honor. 

Athens  was  subject  to  great  inconveniences  from  the  exces- 
sive number  of  its  festivals.^  These  powerful  people,  to  whose 
decision  all  the  cities  of  Greece  came  to  submit  their  quarrels, 
could  not  have  time  to  despatch  such  a  multiplicity  of  affairs. 

When  Constantine  ordained  that  the  people  should  rest  on 
the  Sabbath,  he  made  this  decree  for  the  cities,*'  and  not  for  the 
inhabitants  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, 
the  number  of  festivals  ought  to  be  relative  to  this  very  com- 
merce. Protestant  and  Catholic  countries  are  situated  in  such 
a  manner  that  there  is  more  need  of  labor  in  the  former  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  of  delicate  fruits,  the  barbarians  easily  find 
necessaries,  and,  therefore,  spend  much  time  in  diversions. 
The  Indians  of  colder  countries  have  not  so  much  leisure,  be- 
ing obliged  to  fish  and  hunt  continually ;  hence  they  have  less 
music,  dancing,  and  festivals.  If  a  new  religion  should  be 
established  among  these  people,  it  ought  to  have  regard  to  this 
in  the  institution  of  festivals. 

h  Xenophon    "  on    the    Republic    of  j  The  Catholics  lie  more  towards  tb». 

Athens."  south,  and  the  Protestants  towards  thrt 

t  Leg.  3,  cod.  "  de  Feriis."    This  law  north, 

was  doubtless  made  only  for  the  Pagans.  k  Dampier's  *'  Voyages,"  vol.  ii. 


42  MONTESQUIEU 

24. — Of  the  local  Laws  of  Religion 

There  are  many  local  laws  in  various  religions ;  and  when 
Montezuma  with  so  much  obstinacy  insisted  that  the  religion 
of  the  Spaniards  was  good  for  their  country,  and  his  for  Mex- 
ico, he  did  not  assert  an  absurdity ;  because,  in  fact,  legislators 
could  never  help  having  a  regard  to  what  nature  had  estab- 
lished before  them. 

The  opinion  of  the  metempsychosis  is  adapted  to  the  climate 
of  the  Indies.  An  excessive  heat  burns  up  all  the  country :  / 
they  can  breed  but  very  few  cattle ;  they  are  always  in  danger 
of  wanting  them  for  tillage ;  their  black  cattle  multiply  but  in- 
differently ;  m  and  they  are  subject  to  many  distempers.  A  law 
of  religion  which  preserves  them  is,  therefore,  more  suitable  to 
the  policy  of  the  country. 

While  the  meadows  are  scorched,  rice  and  pulse,  by  the  as- 
sistance of  water,  are  brought  to  perfection ;  a  law  of  religion 
which  permits  only  this  kind  of  nourishment  must,  therefore, 
be  extremely  useful  to  men  in  those  climates. 

The  flesh  of  cattle  in  that  country  is  insipid,«  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  Indies  not  unreasonable. 

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

25. — The  Inconvenience  of  transplanting  a  Religion  from  one 
Country  to  another 

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

<:  The  nog,"  says  Mr.  de  Boulainvilliers,/>  "  must  be  very 
scarce  in  Arabia,  where  there  are  almost  no  woods,  and  hardly 
anything  fit  for  the  nourishment  of  these  animals;  besides, 
the  saltness  of  the  water  and  food  renders  the  people  most  sus- 
ceptible of  cutaneous  disorders."  This  local  law  could  not  be 

/  See  Bernier's  "  Travels,"  vol.  ii.  p.  n  Bernier's  "  Travels,"  vol.  ii.  p.  187. 

137-  o  Euripides,  in  "  Athenseus,"  lib.  IL 

m  "  Edifying  Letters,"  Col.  12,  p.  95.  p  "  Life  of  Mahomet." 


THE  SPIRIT  OF  LAWS  43 

good  in  other  countries,?  where  the  hog  is  almost  a  universal, 
and  in  some  sort  a  necessary,  nourishment. 

I  shall  here  make  a  reflection.  Sanctorius  has  observed 
that  pork  transpires  but  little/  and  that  this  kind  of  meat 
greatly  hinders  the  transpiration  of  other  food;  he  has  found 
that  this  diminution  amounts  to  a  third.-*  Besides,  it  is  known 
that  the  want  of  transpiration  forms  or  increases  the  disorders 
of  the  skin.  The  feeding  on  pork  ought  rather  to  be  prohibited 
in  climates  where  the  people  are  subject  to  these  disorders,  as 
in  Palestine,  Arabia,  Egypt,  and  Libya. 

26. — The  same  Subject  continued 

Sir  John  Chardin  says  *  that  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  rivers  was  not,  therefore,  attended  with  any  inconvenience 
in  this  country,  though  it  would  have  ruined  the  trade  of  an- 
other. 

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

When  a  religion  adapted  to  the  climate  of  one  country 
clashes  too  much  with  the  climate  of  another  it  cannot  be  there 
established ;  and  whenever  it  has  been  introduced  it  has  been 
afterwards  discarded.  It  seems  to  all  human  appearance  as  if 
the  climate  had  prescribed  the  bounds  of  the  Christian  and  the 
Mahommedan  religions. 

It  follows  hence,  that  it  is  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 
mortification  in  general  and  not  a  certain  kind  of  mortification. 
Christianity  is  full  of  good  sense ;  abstinence  is  of  divine  insti- 
tution ;  but  a  particular  kind  of  abstinence  is  ordained  by  hu- 
man authority,  and,  therefore,  may  be  changed. 

q  As  in  China.  s  Ibid. 

r  "  Medicina  Statica,"  sect.  3,  aphor.  t  "  Travels  into  Persia,"  voL  ii. 

«3-  «Bernier's  "Travels,"  vol.  ii. 


D 


BOOK  XXV 

OF   LAWS   IN   RELATION   TO   THE    ESTABLISH- 
MENT   OF    RELIGION    AND    ITS    EXTERNAL 

POLITY 

i. — Of  Religious  Sentiments 

*np*  HE  pious  man  and  the  atheist  always  talk  of  religion ; 
the  one  speaks  of  what  he  loves,  and  the  other  of  what 
he  fears. 

2. — Of  the  Motives  of  Attachment  to  different  Religions 

The  different  religions  of  the  world  do  not  give  to  those  who 
profess  them  equal  motives  of  attachment ;  this  depends  great- 
ly on  the  manner  in  which  they  agree  with  the  turn  of  thought 
and  perceptions  of  mankind. 

We  are  extremely  addicted  to  idolatry,  and  yet  have  no  great 
inclination  for  the  religion  of  idolaters ;  we  are  not  very  fond 
of  spiritual  ideas,  and  yet  are  most  attached  to  those  religions 
which  teach  us  to  adore  a  spiritual  being.  This  proceeds  from 
the  satisfaction  we  find  in  ourselves  at  having  been  so  intel- 
ligent as  to  choose  a  religion  which  raises  the  deity  from  that 
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. 

When  with  a  doctrine  that  gives  us  the  idea  of  a  spiritual 
supreme  being  we  can  still  join  those  of  a  sensible  nature  and 
admit  them  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 
sense.  Thus  the  Catholics,  who  have  more  of  this  kind  of  wor- 
ship than  the  Protestants,  are  more  attached  to  their  religion 
than  the  Protestants  are  to  theirs,  and  more  zealous  for  its 
propagation. 

44 


THE  SPIRIT  OF  LAWS  45 

When  the  people  of  Ephesus  were  informed  that  the  fathers 
of  the  council  had  declared  they  might  call  the  Virgin  Mary 
the  Mother  of  God,  they  were  transported  with  joy,  they  kissed 
the  hands  of  the  bishops,  they  embraced  their  knees,  and  the 
whole  city  resounded  with  acclamations.** 

When  an  intellectual  religion  superadds  a  choice  made  by 
the  deity,  and  a  preference  for  those  who  profess  it  over  those 
who  do  not,  this  greatly  attaches  us  to  religion.  The  Ma- 
hommedans  would  not  be  such  good  Mussulmans  if,  on  the  one 
hand,  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  they  are  the 
objects  of  his  preference. 

A  religion  burdened  with  many  ceremonies  &  attaches  us  to 
j  it  more  strongly  than  that  which  has  a  fewer  number.  We 
have  an  extreme  propensity  to  things  in  which  we  are  con- 
tinually employed :  witness  the  obstinate  prejudices  of  the  Ma- 
hommedans  and  the  Jews,c  and  the  readiness  with  which  barbar- 
ous and  savage  nations  change  their  religion,  who,  as  they  are 
employed  entirely  in  hunting  or  war,  have  but  few  religious^ 
ceremonies. 

Men  are  extremely  inclined  to  the  passions  of  hope  and  fear ; 

;  a  religion,  therefore,  that  had  neither  a  heaven  nor  a  hell,  could 

i  hardly  please  them.    This  is  proved  by  the  ease  with  which 

foreign  religions  have  been  established  in  Japan,  and  the  zeal 

and  fondness  with  which  they  were  received.** 

In  order  to  raise  an  attachment  to  religion  it  is  necessary 
that  it  should  inculcate  pure  morals.  Men  who  are  knaves  by 
retail  are  extremely  honest  in  the  gross ;  they  love  morality. 


And  were  I  not  treating  of  so  grave  a  subject  I  should  say 
that  this  appears  remarkably  evident  in  our  theatres:  we  are 
sure  of  pleasing  the  people  by  sentiments  avowed  by  morality ; 
we  are  sure  of  shocking  them  by  those  it  disapproves. 

When  external  worship  is  attended  with  great  magnificence 

a  St.   Cyril's  "  Letter."  of  Voyages  that  contributed  to  the  es- 
b  This  does  not  contradict  what  I  hare  tablishment    9!    an    East    India    Corn- 
said  in  the  last  chapter  of  the  preceding  pany,"  vol.  iii.  p.  201,  on  the  Moors  of 
book:   I   here  speak  of  the  motives  of  Bavaria;     and     Father    Labat    on    the 
attachment  of  religion,  and  there  of  the  "  Mahommedan  Negroes,"  etc. 
means  of  rendering  it  more  general.  rf  The    Christian    and    the    Indian   re- 
c  This  has  been  remarked  all  over  the  ligions :  these  have  a  hell  and  a  para- 
world.    See,  as  to  the  Turks,  the  "  Mis-  disc,  which  the  religion  of  Sintos  has 
•ions  of  the  Levant  ";  the  "  Collection  not. 


46  MONTESQUIEU 

it  flatters  our  minds  and  strongly  attaches  us  to  religion.  The 
riches  of  temples  and  those  of  the  clergy  greatly  affect  us. 
Thus  even  the  misery  of  the  people  is  a  motive  that  renders 
them  fond  of  a  religion  which  has  served  as  a  pretext  to  those 
who  were  the  cause  of  their  misery. 

3.— Of  Temples 

Almost  all  civilized  nations  dwell  in  houses ;  hence  naturally 
arose  the  idea  of  building  a  house  for  God  in  which  they  might 
adore  and  seek  him,  amidst  all  their  hopes  and  fears. 

And,  indeed,  nothing  is  more  comfortable  to  mankind  than 
a  place  in  which  they  may  find  the  deity  peculiarly  present, 
and  where  they  may  assemble  together  to  confess  their  weak- 
ness, and  tell  their  griefs. 

But  this  natural  idea  never  occurred  to  any  but  such  as  culti- 
vated the  land ;  those  who  have  no  houses  for  themselves  were 
never  known  to  build  temples. 

This  was  the  cause  that  made  Jenghiz  Khan  discover  such  a 
prodigious  contempt  for  mosques. £  This  prince  examined  the 
Mahomedans ;  f  he  approved  of  all  their  doctrines,  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. 

Those  people  who  have  no  temples  have  but  a  small  attach- 
ment to  their  own  religion.  This  is  the  reason  why  the  Tar- 
tars have  in  all  times  given  so  great  a  toleration ;  g  why  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  their  own  religion  ;  why, 
since  our  missionaries  have  built  churches  in  Paraguay,  the 
natives  of  that  country  have  become  so  zealous  for  ours. 

As  the  deity  is  the  refuge  of  the  unhappy,  and  none  are  more 
unhappy  than  criminals,  men  have  been  naturally  led  to  think 
temples  an  asylum  for  those  wretches./*  This  idea  appeared 
still  more  natural  to  the  Greeks,  where  murderers,  chased  from 

e  Entering  the  mosque  of  Bochara,  he  g  This  disposition  of  mind  has  been 
took  the  Koran,  and  threw  it  under  his  communicated  to  the  Japanese,  who,  as 
horse  s  feet.—"  Hist,  of  the  Tartars,"  p.  it  may  be  easily  proved,  derive  their 
273'  origin  from  the  Tartars. 

f  Ibid.  p.  342.  h  See  Chardin,  "  Persia,"  vol.  ii.  31, 

edit,  of  1735. 


THE   SPIRIT   OF   LAWS  47 

their  city  and  the  presence  of  men,  seemed  to  have  no  houses 
but  the  temples,  nor  other  protectors  than  the  gods. 

At  first  these  were  only  designed  for  involuntary  homicides ; 
but  when  the  people  made  them  a  sanctuary  for  those  who  had 
committed  great  crimes  they  fell  into  a  gross  contradiction. 
If  they  had  offended  men  they  had  much  greater  reason  to 
believe  they  had  offended  the  gods. 

These  asylums  multiplied  in  Greece.  The  temples,  says 
Tacitus,*  were  filled  with  insolvent  debtors  and  wicked  slaves ; 
the  magistrate  found  it  difficult  to  exercise  his  office ;  the  peo- 
ple protected  the  crimes  of  men  as  the  ceremonies  of  the  gods ; 
at  length  the  Senate  was  obliged  to  retrench  a  great  number  of 
them. 

The  laws  of  Moses  were  perfectly  wise.  The  man  who  in- 
voluntarily killed  another  was  innocent ;  but  he  was  obliged  to 
be  taken  away  from  before  the  eyes  of  the  relatives  of  the  de- 
ceased. Moses,  therefore,  appointed  an  asylum  for  such  un- 
fortunate people./  The  perpetrators  of  great  crimes  deserved 
not  a  place  of  safety,  and  they  had  none:  k  the  Jews  had  only 
a  portable  tabernacle,  which  continually  changed  its  place; 
this  excluded  the  idea  of  a  sanctuary.  It  is  true  that  they  had 
afterwards  a  temple;  but  the  criminals  who  would  resort 
thither  from  all  parts  might  disturb  the  divine  service.  If  per- 
sons who  had  committed  manslaughter  had  been  driven  out  of 
the  country,  as  was  customary  among  the  Greeks,  they  had 
reason  to  fear  that  they  would  worship  strange  gods.  All  these 
considerations  made  them  establish  cities  of  safety,  where  they 
might  stay  till  the  death  of  the  high-priest. 

4. — Of  the  Ministers  of  Religion 

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

The  natural  desire  of  pleasing  the  deity  multiplied 


it  followed,  that  men  employecfin  agriculture 
became  incapable  of  observing  them  all  and  of  filling  up  the 
number. 

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

t :"  Annal."  lib.  II.  k  Ibid. 

j  Numb.  xxxv.  / "  De  Abstinentia  animal."  II.  5. 


48  MONTESQUIEU 

came  necessary  that  they  should  have  ministers  to  take  care 
of  them ;  in  the  same  manner  as  every  citizen  took  care  of  his 
house  and  domestic  affairs.  Hence  the  people  who  have  no 
priests  are  commonly  barbarians;  such  were  formerly  the 
Pedalians,w*  and  such  are  still  the  Wolgusky.w 

Men  consecrated  to  the  deity  ought  to  be  honored,  especially 
among  people  who  have  formed  an  idea  of  a  personal  purity 
necessary  to  approach  the  places  most  agreeable  to  the  gods, 
and  for  the  performance  of  particular  ceremonies. 

The  worship  of  the  gods  requiring  a  continual  application, 
most  nations  were  led  to  consider  the  clergy  as  a  separate 
body.  Thus,  among  the  Egyptians,  the  Jews,  and  the  Per- 
sians^ they  consecrated  to  the  deity  certain  families  who  per- 
formed and  perpetuated  the  service.  There  have  been  even 
religions  which  have  not  only  estranged  ecclesiastics  from 
business,  but  have  also  taken,  away  the  embarrassments  of  a 
family ;  and  this  is  the  practice  of  the  principal  branch  of  Chris- 
tianity. 

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

By  the  nature  of  the  human  understanding  we  love  in  re- 
i  ligion  everything  which  carries  the  idea  of  difficulty;  as  in 
point  of  morality  we  have  a  speculative  fondness  for  everything 
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  be  attended  with  the  most  fatal  con- 
sequences. In  the  southern  countries  of  Europe,  where,  by 
the  nature  of  the  climate,  the  law  of  celibacy  is  more  difficult  to 
observe,  it  has  been  retained ;  in  those  of  the  north,  where  the 
passions  are  less  lively,  it  has  been  banished.  Further,  in 
countries  where  there  are  but  few  inhabitants  it  has  been  ad- 
mitted ;  in  those  that  are  vastly  populous  it  has  been  rejected. 
It  is  obvious  that  these  reflections  relate  only  to  the  too  great 
extension  of  celibacy,  and  not  to  celibacy  itself. 

m  Lilius  Giraldus,  p.  726.  Ides,  in  the  "  Collection  of  Travels  to 

n  A   people   of   Siberia.     See  the  ac-        the  North,"  vol.  viii. 
count   given  by   Mr.    Everard   Ysbrant  o  Mr.  Hyde. 


THE   SPIRIT   OF   LAWS 


49 


5. — Of  the  Bounds  which  the  Laws  ought  to  prescribe  to  the 
Riches  of  the  Clergy 

As  particular  families  may  be  extinct,  their  wealth  cannot 
be  a  perpetual  inheritance.  The  clergy  is  a  family  which  cannot 
be  extinct ;  wealth  is,  therefore,  fixed  to  it  forever,  and  cannot 
go  out  of  it. 

Particular  families  may  increase;  it  is  necessary  then  that 
their  wealth  should  also  increase.  The  clergy  is  a  family  which 
ought  not  to  increase ;  their  wealth  ought  then  to  be  limited. 

We  have  retained  the  regulations  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  acquire. 

These  endless  acquisitions  appear  to  the  people  su  unrea- 
sonable that  he  who  should  speak  in  their  defence  would  be 
regarded  as  an  idiot. 

The  civil  laws  find  sometimes  many  difficulties  in  altering 
established  abuses,  because  they  are  connected  with  things 
worthy  of  respect ;  in  this  case  an  indirect  proceeding  would 
be  a  greater  proof  of  the  wisdom  of  the  legislator  than  another 
which  struck  directly  at  the  thing  itself.  Instead  of  prohibiting 
the  acquisitions  of  the  clergy  we  should  seek  to  give  them  a 
distaste  for  them ;  to  leave  them  the  right  and  to  take  away  the 
deed. 

In  some  countries  of  Europe,  a  respect  for  the  privileges 
of  the  nobility  has  established  in  their  favor  a  right  of  indem- 
nity over  immovable  goods  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  prevails,  the 
clergy  have  seized  upon  everything.  In  Aragon,  where  there 
is  some  right  of  amortization,  they  have  obtained  less;  in 
France,  where  this  right  and  that  of  indemnity  are  established, 
they  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,  then,  increase  these 
rights,  and  put  a  stop  to  the  mortmain. 

Render  the  ancient  and  necessary  patrimony  of  the  clergy 

VOL.  II.— 4 


50  MONTESQUIEU 

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

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

They  still  remember  in  Rome  a  certain  memorial  sent  thither 
on  some  disputes  with  the  clergy,  in  which  was  this  maxim: 
"  The  clergy  ought  to  contribute  to  the  expenses  of  the  state, 
let  the  Old  Testament  say  what  it  will."  They  concluded  from 
this  passage  that  the  author  of  this  memorial  was  better  versed 
in  the  language  of  the  tax-gatherers,  than  in  that  of  religion. 

6. — Of  Monasteries 

The  least  degree  of  common  sense  will  let  us  see  that  bodies 
designed  for  a  perpetual  continuance  should  not  be  allowed  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. 

7. — Of  the  Luxury  of  Superstition 

"  Those  are  guilty  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  fine,  who  think  that  they  can  easily  appease  them  by 
sacrifices :  three  opinions  equally  pernicious."  Plato  has  here 
said  all  that  the  clearest  light  of  nature  has  ever  been  able  to 
say  in  point  of  religion.  The  magnificence  of  external  worship 
has  a  principal  connection  with  the  institution  of  the  state.  In 
good  republics,  they  have  curbed  not  only  the  luxury  of  vanity, 
but  even  that  of  superstition.  They  have  introduced  frugal 
laws  into  religion.  Of  this  number  are  many  of  the  laws  of 
Solon ;  many  of  those  of  Plato  on  funerals,  adopted  by  Cicero ; 
and,  in  fine,  some  of  the  laws  of  Numa  on  sacrifices.? 

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

P ;'  Of  Laws,"  book  X.  words  from  Plato  ("  Laws,"  book  XII.). 

a     Rogum     vino     ne     respergito."—  —Ed. 

Law  of  the  Twelve  Tables."  s  Plutarch  attributes  this  beautiful  idea 

r  Cicero     derives     these     appropriate  to  Lycurgus.— Ed. 


THE   SPIRIT   OF   LAWS  51 

The  desire  of  man  to  pay  his  worship  to  the  deity  is  very 
different  from  the  magnificence  of  this  worship.  Let  us  not 
offer  our  treasures  to  him  if  we  are  not  proud  of  showing  that 
we  esteem  what  he  would  have  us  despise. 

"  What  must  the  gods  think  of  the  gifts  of  the  impious,"  said 
the  admirable  Plato,  "  when  a  good  man  would  blush  to  receive 
presents  from  a  villain  ?  " 

Religion  ought  not,  under  the  pretence  of  gifts,  to  draw  from 
the  people  what  the  necessity  of  the  state  has  left  them  ;  but  as 
Plato  says/  "  The  chaste  and  the  pious  ought  to  offer  gifts 
which  resemble  themselves." 

Nor  is  it  proper  for  religion  to  encourage  expensive  funerals. 
I  What  is  there  more  natural  than  to  take  away  the  difference 
'  of  fortune  in  a  circumstance  and  in  the  very  moment  which 
equals  all  fortunes  ? 

8.— Of  the  Pontificate 

When  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  orders  of  the  state  cannot  be 
kept  too  distinct,  and  where  all  powers  ought  not  to  be  lodged 
in  the  same  person,  it  is  proper  that  the  pontificate  be  distinct 
from  the  empire.  The  same  necessity  is  not  to  be  met  with  in 
a  despotic  government,  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 
laws  themselves,  as  dependent  on  his  own  will.  To  prevent  this 
inconvenience,  there  ought  to  be  monuments  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 ; 
but  there  are  books  in  the  hands  of  everybody  to  which  he 
himself  must  conform.  In  vain  a  certain  emperor  attempted 
to  abolish  them ;  they  triumphed  over  tyranny. 

***9. — Of  Toleration  in  point  of  Religion 

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

* "  On  Laws,"  book  II. 


52  MONTESQUIEU 

When  the  legislator  has  believed  it  a  duty  to  permit  the  ex- 
ercise of  many  religions,  it  is  necessary  that  he  should  enforce 
also  a  toleration  among  these  religions  themselves.  It  is  a  prin- 
ciple that  every  religion  which  is  persecuted  becomes  itself 
persecuting;  for  as  soon  as  by  some  accidental  turn  it  arises 
from  persecution,  it  attacks  the  religion  which  persecuted  it; 
not  as  religion,  but  as  tyranny. 

It  is  necessary,  then,  that  the  laws  require  from  the  several 
religions,  not  only  that  they  shall  not  embroil  the  state,  but 
that  they  shall  not  raise  disturbances  among  themselves.  A 
citizen  does  not  fulfil  the  laws  by  not  disturbing  the  govern- 
ment; it  is  requisite  that  he  should  not  trouble  any  citizen 
whomsoever. 

ID. — The  same  Subject  continued 

As  there  are  scarcely  any  but  persecuting  religions  that  have 
an  extraordinary  zeal  for  being  established  in  other  places  (be- 
cause a  religion  that  can  tolerate  others  seldom  thinks  of  its 
own  propagation),  it  must,  therefore,  be  a  very  good  civil  law, 
when  the  state  is  already  satisfied  with  the  established  religion, 
not  to  suffer  the  tstablishment  of  another.** 

This  is  then  a  fundamental  principle  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. 

ii. — Of  changing  a  Religion 

A  prince  who  undertakes  to  destroy  or  to  change  the  es- 
tablished 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  that  a  state  cannot 
change  its  religion,  manners,  and  customs  in  an  instant,  and 
with  the  same  rapidity  as  the  prince  publishes  the  ordinance 
which  establishes  a  new  religion. 

Besides,  the  ancient  religion  is  connected  with  the  constitu- 

« I    do    not   mean    to    speak   in   this  the  end  of  the  preceding  chapter,  and 

chapter  of  the   Christian  religion;   for,  the  "  Defence  of  the  Spirit  of  Laws," 

as  I  have  elsewhere  observed,  the  Chris-  part  II. 
tfen  religion  is  our  chief  blessing.    See 


THE   SPIRIT   OF   LAWS  53 

tion  of  the  kingdom  and  the  new  one  is  not ;  the  former  agrees 
with  the  climate  and  very  often  the  new  one  is  opposed  to  it. 
Moreover,  the  citizens  become  disgusted  with  their  laws,  and 
look  upon  the  government  already  established  with  contempt ; 
they  conceive  a  jealousy  against  the  two  religions,  instead  of 
a  firm  belief  in  one ;  in  a  word,  these  innovations  give  to  the 
state,  at  least  for  some  time,  both  bad  citizens  and  bad  be- 
lievers. 

12. — Of  penal  Laws 

Penal  laws  ought  to  be  avoided  in  respect  to  religion:  they 
imprint  fear,  it  is  true;  but  as  religion  has  also  penal  laws 
which  inspire  the  same  passion,  the  one  is  effaced  by  the  other, 
and  between  these  two  different  kinds  of  fear  the  mind  becomes 
hardened. 

The  threatenings  of  religion  are  so  terrible,  and  its  promises 
so  great,  that  when  they  actuate  the  mind,  whatever  efforts  the 
magistrate  may  use  to  oblige  us  to  renounce  it,  he  seems  to 
leave  us  nothing  when  he  deprives  us  of  the  exercise  of  our 
religion,  and  to  bereave  us  of  nothing  when  we  are  allowed  to 
profess  it. 

It  is  not,  therefore,  by  filling  the  soul  with  the  idea  of  this 
great  object,  by  hastening  her  approach  to  that  critical  moment 
in  which  it  ought  to  be  of  the  highest  importance,  that  religion 
can  be  most  successfully  attacked :  a  more  certain  way  is,  to 
tempt  her  by  favors,  by  the  conveniences  of  life,  by  hopes  of 
fortune;  not  by  that  which  revives,  but  by  that  which  ex- 
tinguishes the  sense  of  her  duty;  not  by  that  which  shocks 
her,  but  by  that  which  throws  her  into  indifference  at  the  time 
when  other  passions  actuate  the  mind,  and  those  which  religion 
inspires  are  hushed  into  silence.  As  a  general  rule  in  changing 
a  religion  the  invitations  should  be  much  stronger  than  the 
penalties. 

The  temper  of  the  human  mind  has  appeared  even  in  the 
nature  of  punishments.  If  we  take  a  survey  of  the  persecutions 
in  Japan,^  we  shall  find  that  they  were  more  shocked  at  cruel 
torments  than  at  long  sufferings,  which  rather  weary  than 
affright,  which  are  the  more  difficult  to  surmount,  from  their 
appearing  less  difficult. 

v  In  the  "  Collection  of  Voyages  that  contributed  to  the  establishment  of  an 
East  India  Company,"  vol.  v. 


54  MONTESQUIEU 

In  a  word,  history  sufficiently  informs  us  that  penal  laws 
have  never  had  any  other  effect  than  to  destroy. 

13.  —  A  most  humble  Remonstrance  to  the  Inquisitors  of  Spain 
and  Portugal 

A  Jewess  of  eighteen  years  of  age,  who  was  burned  at  Lisbon  at 
the  last  auto-da-fe,  gave  occasion  to  the  following  little  piece, 
the  most  idle,  I  believe,  that  ever  was  written.  When  we  at- 
tempt to  prove  things  so  evident  we  are  sure  never  to  convince. 

The  author  declares,  that  though  a  Jew  he  has  a  respect  for 
the  Christian  religion  ;  and  that  he  should  be  glad  to  take  away 
from  the  princes  who  are  not  Christians  a  plausible  pretence 
for  persecuting  this  religion. 

"  You  complain,"  says  he  to  the  Inquisitors,  "  that  the  Em- 
peror of  Japan  caused  all  the  Christians  in  his  dominions  to 
be  burned  by  a  slow  fire.  But  he  will  answer,  we  treat  you  who 
do  not  believe  like  us,  as  you  yourselves  treat  those  who  do 
not  believe  like  you;  you  can  only  complain  of  your  weak- 
ness, which  has  hindered  you  from  exterminating  us,  and 
which  has  enabled  us  to  exterminate  you. 

"  But  it  must  be  confessed,  that  you  are  much  more  cruel 
than  this  emperor.  You  put  us  to  death  who  believe  only  what 
you  believe,  because  we  do  not  believe  all  that  you  believe. 
We  follow  a  religion,  which  you  yourselves  know  to  have  been 
formerly  dear  to  God.  We  think  that  God  loves  it  still,  and 
you  think  that  he  loves  it  no  more  :  and  because  you  judge 
thus,  you  make  those  suffer  by  sword  and  fire  who  hold  an 
error  so  pardonable  as  to  believe  that  God  still  loves  what  he 
once  loved.w 

"  If  you  are  cruel  to  us,  you  are  much  more  so  to  our  chil- 
dren; you  cause  them  to  be  burned  because  they  follow  the 
inspirations  given  them  by  those  whom  the  law  of  nature  and 
the  laws  of  all  nations  teach  them  to  regard  as  gods. 

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


source  of  the  blindness  of  the  of  the  decrees  of  God;  and  that  it  is  in 
Jews  is  their  not  perceiving  that  the  this  light  a  consequence  of  his  im- 
economy  of  the  gospel  is  in  the  order  mutability. 


THE  SPIRIT  OF  LAWS  55 

violence,  and  that  they  have  extended  their  religion  by  the 
sword ;  why  then  do  you  establish  yours  by  fire  ? 

"  When  you  would  bring  us  over  to  you,  we  object  to  a 
source  from  which  you  glory  to  have  descended.  You  reply 
to  us,  that  though  your  religion  is  new,  it  is  divine ;  and  you 
prove  it  from  its  growing  amidst  the  persecutions  of  pagans, 
and  when  watered  by  the  blood  of  your  martyrs ;  but  at  present 
you  play  the  part  of  the  Diocletians,  and  make  us  take  yours. 

"  We  conjure  you,  not  by  the  mighty  God  whom  both  you 
and  we  serve,  but  by  that  Christ,  who,  you  tell  us,  took  upon 
him  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  were  he  upon  earth.  You  would  have  us  become  Chris- 
tians, and  you  will  not  be  so  yourselves. 

"  But  if  you  will  not  be  Christians,  be  at  least  men ;  treat  us 
as  you  would,  if  having  only  the  weak  light  of  justice  which 
nature  bestows,  you  had  not  a  religion  to  conduct,  and  a  revela- 
tion to^  enlighten  you. 

"  If  Heaven  has  had  so  great  a  love  for  you  as  to  make  you 
$pe  the  truth,  you  have  received  a  singular  favor ;  but  is  it  for 
children  who  have  received  the  inheritance  of  their  father,  to 
hate  those  who  have  not  ? 

"  If  you  have  this  truth,  hide  it  not  from  us  by  the  manner 
in  which  you  propose  it.  The  characteristic  of  truth  is  its  tri- 
umph over  hearts  and  minds,  and  not  that  impotency  which 
you  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  your  Christ  is  the  son  of  God,  we  hope  he  will  reward  us  for 
being  so  unwilling  to  profane  his  mysteries;  and  we  believe 
that  the  God  whom  both  you  and  we  serve  will  not  punish  us 
for  having  suffered  death  for  a  religion  which  he  formerly  gave 
us,  only  because  we  believe  that  he  still  continues  to  give  it. 

"  You  live  in  an  age  in  which  the  light  of  nature  shines  more 
brightly  than  it  has  ever  done;  in  which  philosophy  has  en- 
lightened human  understandings;  in  which  the  morality  of 
your  gospel  has  been  better  known ;  in  which  the  respective 
rights  of  mankind  with  regard  to  each  other  and  the  empire 
which  one  conscience  has  over  another  are  best  understood. 
If  you  do  not,  therefore,  shake  off  your  ancient  prejudices, 


T) 


56  MONTESQUIEU 

which,  whilst  unregarded,  mingle  with  your  passions,  it  must 
be  confessed  that  you  are  incorrigible,  incapable  of  any  degree 
of  light  or  instruction ;  and  a  nation  must  be  very  unhappy 
that  gives  authority  to  such  men. 

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

"  It  is  necessary  that  we  should  warn  you  of  one  thing ;  that 
is,  if  any  one  in  times  to  come  shall  dare  to  assert,  that  in  the 
age  in  which  we  live,  the  people  of  Europe  were  civilized,  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  all  your  contemporaries." 

14. — Why  the  Christian  Religion  is  so  odious  in  Japan 

We  have  already  mentioned  the  perverse  temper  of  the  peo- 
ple of  Japan.*  The  magistrates  considered  the  firmness  which 
Christianity  inspires,  when  they  attempted  to  make  the  people 
renounce  their  faith,  as  in  itself  most  dangerous ;  they  fancied 
that  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- 
venge 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  their 
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 ;  between  the  civil  laws 
and  those  of  religion. 

*  Book  IV.  chap.  xxir. 


THE  SPIRIT  OF  LAWS  57 

15. — Of  the  Propagation  of  Religion 

All  the  people  of  the  East,  except  the  Mahommedans,  believe 
all  religions  in  themselves  indifferent.  They  fear  the  estab- 
lishment of  another  religion,  no  otherwise  than  as  a  change  in 
government.  Among  the  Japanese,  where  there  are  many 
sects,  and  where  the  state  has  had  for  so  long  a  time  an  eccle- 
siastical superior,  they  never  dispute  on  religion.?  It  is  the 
same  with  the  people  of  Siam.s  The  Calmucks  a  do  more,  they 
make  it  a  point  of  conscience  to  tolerate  every  species  of  re- 
ligion ;  at  Calicut  it  is  a  maxim  of  the  state,  that  every  religion 
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  customs,  will  have  all  the  success  to  which  its  holi- 
ness might  entitle  it.  This  is  more  particularly  true  in  great 
despotic  empires:  here  strangers  are  tolerated  at  first,  be- 
cause there  is  no  attention  given  to  what  does  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  communicates:  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  very  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 
distaste  for  religion  on  which  even  those  who  propose  it  are 
not  agreed. 

y  See  K^mpfer.  a  "  History  of  the  Tartars,"  part  V. 

a  Forbin's  "  Memoirs."  b  Pirard's  "  Travels,"  chap,  xxvii. 


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  laws;  by  the  law 
of  nature ;  by  the  divine  law,  which  is  that  of  religion ; 
by  ecclesiastical,  otherwise  called  canon  law,  which  is 
that  of  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  is  a  citizen ;  by  the  general  political  law,  which  relates  to 
that  human  wisdom  whence  all  societies  derive  their  origin]  by 
the  particular  political  law,  the  object  of  which  is  each  society;  by 
the  law  of  conquest  founded  on  this,  that  one  nation  has  been 
willing  and  able,  or  has  had  a  right  to  offer  violence  to  another; 
by  the  civil  law  of  every  society,  by  which  a  citizen  may  defend 
his  possessions  and  his  life  against  the  attacks  of  any  other  citi- 
zen; in  fine,  by  domestic  law,  which  proceeds  from  a  society's 
being  divided  into  several  families,  all  which  have  need  of  a  par- 
ticular government. 

There  are  therefore  different  orders  of  laws,  and  the  sublimity 
of  human  reason  consists  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. 

\»2. — Of  Laws  divine  and  human 

We  ought  not  to  decide  by  divine  laws  what  should  be  decided 
by  human  laws;  nor  determine  by  human  what  should  be  de- 
termined by  divine  laws. 

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

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

58 


THE  SPIRIT  OF  LAWS  59 

own  nature,  different  from  those  of  religion ;  this  is  an  important 
principle :  but  this  principle  is  itself  subject  to  others,  which  must 
be  inquired  into. 

1.  It  is  in  the  nature  of  human  laws  to  be  subject  to  all  the 
accidents  which  can  happen,  and  to  vary  in  proportion  as  the  will 
of  man  changes;  on  the  contrary,  by  the  nature  of  the  laws  of 
religion,  they  are  never  to  vary.    Human  laws  appoint  for  some 
good ;  those  of  religion  for  the  best :  good  may  have  another  ob- 
ject, because  there  are  many  kinds  of  good;  but  the  best  is  but 
one,  it  cannot  therefore  change.    We  may  alter  laws,  because 
they  are  reputed  no  more  than  good;  but  the  institutions  of  re- 
ligion are  always  supposed  to  be  the  best. 

2.  There  are  kingdoms  in  which  the  laws  are  of  no  value  as 
they  depend  only  on  the  capricious  and  fickle  humor  of  the  sov- 
ereign.   If  in  these  kingdoms  the  laws  of  religion  were  of  the 
same  nature  as  the  human  institutions,  the  laws  of  religion  too 
would  be  of  no  value.    It  is,  however,  necessary  to  the  society 
that  it  should  have  something  fixed;  and  it  is  religion  that  has 

J:his  stability. 

3.  The  influence  of  religion  proceeds  from  its  being  believed; 
that-of  Jiuman  laws  from  their  being  feared.    Antiquity  accords 
with  religion,  because  we  have  frequently  a  firmer  belief  in  things 
in  proportion  to  their  distance,  for  we  have  no  ideas  annexed  to 
them  drawn  from  those  times  which  can  contradict  them.    Hu- 
man laws,  on  the  contrary,  receive  advantage  from  their  novelty, 
which  implies  the  actual  and  particular  attention  of  the  legislator 
to  put  them  in  execution. 

3. — Of  civil  Laws  contrary  to  the  Law  of  Nature 

If  a  slave,  says  Plato,  defends  himself,  and  kills  a  freeman,  he 
ought  to  be  treated  as  a  parricide.o  This  is  a  civil  law  which 
punishes  self-defence,  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  condemnation,  it  is  necessary  that  the 
witnesses  should  know  whether  the  man  against  whom  they 
make  their  deposition  is  he  whom  they  accuse,  and  that  this  man 
be  at  liberty  to  say,  I  am  not  the  person  you  mean. 

The  law  passed  during  the  same  reign,  which  condemned 

a.  Lib.  IX.  "  OB  Laws." 


60  MONTESQUIEU 

every  woman,  who,  having  carried  on  a  criminal  commerce,  did 
not  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  II  which  condemned  the  woman  to  death 
who  lost  her  child,  in  case  she  did  not  make  known  her  pregnancy 
to  the  magistrate,  was  not  less  contrary  to  self-defence.  It  would 
have  been  sufficient  to  oblige  her  to  inform  one  of  her  nearest 
relatives,  who  might  watch  over  the  preservation  of  the  infant. 

What  other  information  could  she  give  in  this  situation,  so  tor- 
turing to  natural  modesty?  Education  has  heightened  the  no- 
tion of  preserving  that  modesty ;  and  in  those  critical  moments 
scarcely  has  she  any  idea  remaining  of  the  loss  of  life. 

There  has  been  much  talk  of  a  law  in  England,  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  gives 
maturity  to  the  understanding,  nor  to  that  in  which  she  gives 
maturity  to  the  body. 

Among  the  Romans,  a  father  might  oblige  his  daughter  to  re- 
pudiate her  husband,  though  he  himself  had  consented  to  the 
marriage.c  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  is  a  monstrous  separation.  In  short,  the 
power  of  divorce  can  be  given  only  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. — The  same  Subject  continued 

Gundebald,  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  slaves.^  This  was  contrary  to  nature:  a  wife  to  in- 
form against  her  husband !  a  son  to  accuse  his  father !  To  avenge 
one  criminal  action,  they  ordained  another  still  more  criminal. 

The  law  of  Recessuinthus  permits  the  children  of  the  adulter- 

b  Mr.  Bayle,  in  his  "  Criticism  on  the  c  See  Law  5,  in  the  code  "  de  repudiis 

History  of  Calvinism,"   speaks   of   this        et  judicio  de  moribus  sublato." 
law,  p.  263.  d  Law  of  the  Burgundians,  tit.  47. 


THE   SPIRIT   OF   LAWS  61 

ess,  or  those  of  her  husband,  to  accuse  her,  and  to  put  the  slaves 
of  the  house  to  the  torturer  How  iniquitous  the  law,  which,  to 
preserve  a  purity  of  morals,  overturns  nature,  the  origin,  the 
source  of  all  morality! 

With  pleasure  we  behold  in  our  theatres  a  young  hero  f  ex- 
press as  much  horror  against  the  discovery  of  his  mother-in-law's 
guilt,  as  against  the  guilt  itself.  In  his  surprise,  though  accused, 
judged,  condemned,  proscribed,  and  covered  with  infamy,  he 
scarcely  dares  to  reflect  on  the  abominable  blood  whence  Phaedra 
sprang;  he  abandons  the  most  tender  object,  all  that  is  most  dear, 
all  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  sounds,  that  inspires  us  with 
this  pleasure. 

5. — Cases,  in  which  we  may  judge  by  the  Principles  of  the  civil 
Law  in  limiting  the  Principles  of  the  Law  of  Nature 

An  Athenian  law  obliged  children  to  provide  for  their  fathers 
when  fallen  into  poverty ;  g  it  excepted  those  who  were  born  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  them  of 
their  reputation;  that  in  the  third,  he  had  rendered  insupportable 
a  life  which  had  no  means  of  subsistence.  The  law  suspended  the 
natural  obligation  of  children,  because  the  father  had  violated 
his;  it  looked  upon  the  father  and  the  son  as  no  more  than  two 
citizens,  and  determined  in  respect  to  them  only  from  civil  and 
political  views ;  ever  considering  that  a  good  republic  ought  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  has  left  the  son  in  ignorance  with  regard  to 
his  father,  or  that  in  which  she  even  seems  to  ordain  he  should 

e  In  the  code  of  the  Visigoths,  lib.  III.  g  Under  pain  of  infamy,  another  under 

tit.  4,  sec.  13.  pain  of  imprisonment. 

/  Hippolyte ;    see    the    "  Ph£dre  "    of  h  Plutarch,  "  Life  of  Solon." 

Racine,  act.  IV.  sc.  2.— Ed.  *  Ibid.,  and  Gallienus,  in  "  exhort,  ad 

art."  cap.  viii. 


62  MONTESQUIEU 

not  own  him;   but  it  cannot  be  approved  with  respect  to  the 
third,  where  the  father  had  only  violated  a  civil  institution. 

6. — That  the  Order  of  succession  or  Inheritance  depends  on 
the  Principles  of  political  or  civil  Law,  and  not  on  those  of 
the  Law  of  Nature 

The  Voconian  law  ordained  that  no  woman  should  be  left  heir- 
ess to  an  estate,  not  even  if  she  had  an  only  child.  Never  was 
there  a  law,  says  St.  Augustine,  more  unjust.;  A  formula  of  Mar- 
culfus  treats  that  custom  as  impious  which  deprives  daughters  of 
the  right  of  succeeding  to  the  estate  of  their  fathers.^  Justinian 
gives  the  appellation  of  barbarous  to  the  right  which  the  males 
had  formerly  of  succeeding  in  prejudice  to  the  daughters./  These 
notions  proceeded  from  their  having  considered  the  right  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  nature  ordains  that  fathers  shall  provide  for  their 
children ;  but  it  does  not  oblige  them  to  make  them  their  heirs. 
The  division  of  property,  the  laws  of  this  division,  and  the  succes- 
sion after  the  death  of  the  person  who  has  had  this  division  can 
be  regulated  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  sisters,  the  natural  children, 
the  other  relatives;  and,  in  their  default,  the  treasury  might 
share  the  inheritance  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  children  should  not.  If  they  were  willing  that  the  prince 
should  have  a  certain  degree  of  experience,  if  they  feared  his  be- 
ing too  young,  and  if  it  had  become  necessary  to  prevent  eunuchs 
from  placing  children  successively  on  the  throne,  they  might 
very  justly  establish  a  like  order  of  succession,  and  when  some 

;  "  De  Civitate  Dei,"  lib.  IV.  /"  Novell."  21. 

k  Lib.  II.  cap.  xii.  m  Lib.  II.  tit.  14,  sec.  6,  7,  and  8. 


THE  SPIRIT  OF  LAWS  63 

writers  have  treated  these  brothers  as  usurpers,  they  have  judged 
only  by  ideas  received  from  the  laws  of  their  own  countries.** 

According  to  the  custom  of  Numidia/>  Desalces,  brother  of 
Gala,  succeeded  to  the  kingdom,  not  Massinissa,  his  son.  And 
even  to  this  day,  among  the  Arabs  in  Barbary,  where  each  village 
has  its  chief,  they  adhere  to  this  ancient  custom,  by  choosing  the 
uncle,  or  some  other  relative  to  succeed./' 

There  are  monarchies  merely  elective;  and  since  it  is  evident 
that  the  order  of  succession  ought  to  be  derived  from  the  political 
or  civil  laws,  it  is  for  these  to  decide  in  what  cases  it  is  agreeable 
to  reason  that  the  succession  be  granted  to  children,  and  in  what 
cases  it  ought  to  be  given  to  others. 

In  countries  where  polygamy  is  established,  the  prince  has 
many  children;  and  the  number  of  them  is  much  greater  in 
some  of  these  countries  than  in  others.  There  are  states  q  where 
it  is  impossible  for  the  people  to  maintain  the  children  of  the  king ; 
they  might  therefore  make  it  a  law  that  the  crown  shall  devolve, 
not  on  the  king's  children,  but  on  those  of  his  sister. 

A  prodigious  number  of  children  would  expose  the  state  to  the 
most  dreadful  civil  wars.    The  order  of  succession  which  gives " 
the  crown  to  the  children  of  the  sister,  the  number  of  whom  is  not 
larger  than  those  of  a  prince  who  has  only  one  wife,  must  pre- 
vent these  inconveniences. 

There  are  people  among  whom  reasons  of  state,  or  some 
maxims  of  religion,  have  made  it  necessary  that  the  crown  should 
be  always  fixed  in  a  certain  family:  hence,  in  India,  proceeds 
the  jealousy  of  their  tribes/  and  the  fear  of  losing  the  descent; 
they  have  there  conceived  that  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  our  children;  but  to  make  them  our  successors  is  an 
obligation  of  the  civil  or  political  law.  Hence  are  derived  the  dif- 
ferent regulations  with  respect  to  bastards  in  the  different  coun- 
tries of  the  world;  these  are  according  to  the  civil  or  political 
laws  of  each  country. 

n  Du  Halde  "  on  the  Second  Dynas-  p.  114.  And  Mr.  Smith's  "  Voyage  to 

ty."  Guinea,"  part  II.  p.  150,  concerning  the 

o  Livy,  decad.  3,  lib.  VI.  kingdom  of  Judia. 

p  Shaw's  "  Travels,"  vol.  i.  p.  402.  r  See  "  Edifying  Letters,"  Let.  14,  and 

q  See  the  "  Collection  of  Voyages  that  the  "  Voyages  that  contributed  to  the 
contributed  to  the  establishment  of  an  establishment  of  an  East  India  Corn- 
East  India  Company,"  vol.  iv.  part  I.  pany,"  vol.  iii.  part  II.  p.  644. 


64  MONTESQUIEU 

7. — That  we  ought  not  to  decide  by  the  Precepts  of  Religion 
what  belongs  only  to  the  Law  of  Nature 

The  Abyssinians  have  a  most  severe  fast  of  fifty  days,  which 
weakens  them  to  such  a  degree,  that  for  a  long  time  they  are 
incapable  of  business :  the  Turks  do  not  fail  to  attack  them 
after  their  Lent*  Religion  ought,  in  favor  of  the  natural  right 
of  self-defence,  to  set  bounds  to  these  customs. 

The  Jews  were  obliged  to  keep  the  Sabbath ;  but  it  was  an  in- 
stance of  great  stupidity  in  this  nation  not  to  defend  themselves 
when  their  enemies  chose  to  attack  them  on  this  day.* 

Cambyses  laying  siege  to  Pelusium,  set  in  the  first  rank  a  great 
number  of  those  animals  which  the  Egyptians  regarded  as  sa- 
cred ;  the  consequence  was,  that  the  soldiers  of  the  garrison  durst 
not  molest  them.  Who  does  not  see  that  'self-defence  is  a  duty 
superior  to  every  precept? 

8. — That  we  ought  not  to  regulate  by  the  Principles  of  the 

canon  Law  Things  which  should  be  regulated  by  those  of  the 

civil  Law 

By  the  civil  law  of  the  Romans  «  he  who  took  a  thing  privately 
from  a  sacred  place  was  punished  only  for  the  guilt  of  theft ;  by 
the  canon  law,  he  was  punished  for  the  crime  of  sacrilege.^  The 
canon  law  takes  cognizance  of  the  place;  the  civil  laws  of  the 
fact.  But  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  his  wife,  the  wife  might  formerly  demand  it,  on  ac- 
count of  the  infidelity  of  the  husband.^  This  custom,  contrary 
to  a  regulation  made  in  the  Roman  laws,*  was  introduced  into 
the  ecclesiastic  court,y  where  nothing  was  regarded  but  the  max- 
ims of  canon  law;  and  indeed,  if  we  consider  marriage  as  a  thing 
merely  spiritual,  and  as  relating  only  to  the  things  of  another  life, 
the  violation  is  in  both  cases  the  same,  but  the  political  and  civil 
laws  of  almost  all  nations  have,  with  reason,  made  a  distinction 

5 "  Collection    of    Voyages    that    con-  "  Cujas  "  observat.  lib.  XIII.  cap.  xix. 

tributed  to  the  establishment  of  an  East  torn.  iii. 

India  Company,"  vol.  iv.  pp.  35  and  103.  w  Beaumanoir   "  on   the  ancient   cus- 

*  As  they  did  when  Pompey  besieged  toms  of  Beauvoisis,"  chap,  xviii. 

the  Temple.     Dio.  XXXVI.— Ed.  x  Law    of    the    first    Code,    "  ad    leg. 

v  Leg.  ff.  "  ad  leg.  Juliam  peculatus."  Juliam  de  adulteriis." 

v  Capite     quisquis     17,     quaestione     4.  y  At  present  they  do  not  take  cogniz- 
ance of  these  things  in  France. 


THE  SPIRIT  OF  LAWS  65 

between  them.  They  have  required  from  the  women  a  degree  of 
reserve  and  continency,  which  they  have  not  exacted  from  the 
men;  because  in  women,  a  violation  of  chastity  supposes  a  re- 
nunciation of  all  virtue;  because  women,  by  violating  the  laws 
of  marriage,  quit  the  state  of  their  natural  dependence ;  because 
nature  has  marked  the  infidelity  of  women  with  certain  signs; 
and,  in  fine,  because  the  children  of  the  wife  born  in  adultery 
necessarily  belong  and  are  an  expense  to  the  husband,  while  the 
children  produced  by  the  adultery  of  the  husband  are  not  the 
wife's,  nor  are  an  expense  to  the  wife. 

9. — That  Things  which  ought  to  be  regulated  by  the  Principles 
of  civil  Law  can  seldom  be  regulated  by  those  of  Religion 

The  laws  of  religion  have  a  greater  sublimity;  the  civil  laws 
a  greater  extent. 

The  laws  of  perfection  drawn  from  religion  have  more  in  view 
the  goodness  of  the  person  that  observes  them  than  of  the  society 
in  which  they  are  observed;  the  civil  laws,  on  the  contrary,  have 
more  in  view  the  moral  goodness  of  men  in  general  than  that  ofv 
Individuals. 

Thus,  venerable  as  those  ideas  are  which  immediately  spring 
from  religion,  they  ought  not  always  to  serve  as  a  first  principle 
to  the  civil  laws;  because  these  have  another,  the  general  wel- 
fare of  society. 

The  Romans  made  regulations  among  themselves  to  preserve 
the  morals  of  their  women;  these  were  political  institutions. 
Upon  the  establishment  of  monarchy,  they  made  civil  laws  on 
this  head,  and  formed  them  on  the  principles  of  their  civil  gov- 
ernment. When  the  Christian  religion  became  predominant,  the 
new  laws  that  were  then  made  had  less  relation  to  the  general 
rectitude  of  morals,  than  to  the  holiness  of  marriage;  they  had 
less  regard  to  the  union  of  the  two  sexes  in  a  civil  than  in  a 
spiritual  state. 

At  first,  by  the  Roman  law,  a  husband  who  brought  back 
his  wife  into  his  house  after  she  had  been  found  guilty  of  adul- 
tery was  punished  as  an  accomplice  in  her  debauch. z  Justinian, 
from  other  principles,  ordained  that  during  the  space  of  two 
years  he  might  go  and  take  her  again  out  of  the  monastery .o 

z  Leg.  ii,  sec.  ult.  ff.  "  ad  leg.  Juliam  a  "  Nov."  134.  Col.  9,  cap.  x.  tit.  170. 

de  adulteriis." 

VOL.  II.— 5 


66  MONTESQUIEU 

Formerly,  when  a  woman,  whose  husband  was  gone  to  war, 
heard  no  longer  any  tidings  of  him,  she  might  easily  marry  again, 
because  she  had  in  her  hands  the  power  of  making  a  divorce. 
The  law  of  Constantine  obliged  the  woman  to  wait  four  years, 
after  which  she  might  send  the  bill  of  divorce  to  the  general;  and, 
if  her  husband  returned,  he  could  not  then  charge  her  with  adul- 
tery.b  But  Justinian  decreed,  that  let  the  time  be  never  so  long 
after  the  departure  of  her  husband,  she  should  not  marry  unless, 
by  the  deposition  and  oath  of  the  general,  she  could  prove  the 
death  of  her  husbands  Justinian  had  in  view  the  indissolubility 
of  marriage;  but  we  may  safely  say  that  he  had  it  too  much  in 
view.  He  demanded  a  positive  proof  when  a  negative  one  was 
sufficient;  he  required  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- 
jured the  commonwealth,  by  obliging  women  to  live  out  of  mar- 
riage; he  injured  individuals,  by  exposing  them  to  a  thousand 
dangers. 

The  law  of  Justinian,  which  ranked  among  the  causes  of  di- 
vorce the  consent  of  the  husband  and  wife  to  enter  into  a  mon- 
astery, was  entirely  opposite  to  the  principles  of  the  civil  laws.d 
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  ourselves.  This  law  favors  inconstancy  in  a  state 
which  is  by  its  very  nature  perpetual ;  it  shook  the  fundamental 
principle  of  divorce,  which  permits  the  dissolution  of  one  mar- 
riage only  from  the  hope  of  another.  In  short,  if  we  view  it  in  a 
religious  light,  it  is  no  more  than  giving  victims  to  God  without 
a  sacrifice. 

10. — In  what  Case  we  ought  to  follow  the  civil  Law  which 
permits,  and  not  the  Law  of  Religion  which  forbids 

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

b  Leg.  7,  "  de  repudiis,  et  judicio  de  d  Auth.    quod   hodie   cod.    "  de  repu- 

morib.   sublato."  diis." 

c  Auth.  hodie  quantiscumque  cod.  "  de 
repudiis." 


THE   SPIRIT   OF   LAWS  67 

a  man  who  has  many  wives  to  embrace  this  religion ;  unless  the 
magistrate  or  the  husband  should  indemnify  them,  by  restoring 
them  in  some  way  or  other  to  their  civil  state.  Without  this  their 
condition  would  be  deplorable;  no  sooner  would  they  obey  the 
laws  than  they  would  find  themselves  deprived  of  the  greatest 
advantages  of  society. 

ii. — That  human  Courts  of  Justice  should  not  be  regulated  by 
the  Maxims  of  those  Tribunals  which  relate  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  all  good 
policy.  It  has  everywhere  met  with  a  general  dislike,  and  must 
have  sunk  under  the  oppositions  it  met  with,  if  those  who  were 
resolved  to  establish  it  had  not  drawn  advantages  even  from  these 
oppositions. 

This  tribunal  is  insupportable  in  all  governments.  In  mon- 
archies, it  only  makes  informers  and  traitors:  in  republics,  it 
only  forms  dishonest  men;  in  a  despotic  state,  it  is  as  destructive 
as  the  government  itself. 

12. — The  same  Subject  continued 

It  is  one  abuse  of  this  tribunal,  that  of  two  persons  accused  of 
the  same  crime,  he  who  denies  is  condemned  to  die;  and  he  who 
confesses  avoids  the  punishment.  This  has  its  source  in  mon- 
astic ideas,  where  he  who  denies  seems  in  a  state  of  impenitence 
and  damnation;  and  he  who  confesses,  in  a  state  of  repentance 
and  salvation.  But  a  distinction  of  this  kind  can  have  no  relation 
to  human  tribunals.  Human  justice,  which  sees  only  the  actions, 
has  but  one  compact  with  men,  namely,  that  of  innocence;  di- 
vine justice,  which  sees  the  thoughts,  has  two,  that  of  innocence 
and  repentance. 

13. — In  what  Cases,  with  regard  to  Marriage,  we  ought  to  fol- 
low the  Laws  of  Religion;  and  in  what  Cases  we  should  fol- 
low the  civil  Laws 

It  has  happened  in  all  ages  and  countries,  that  religion  has 
been  blended  with  marriages.  When  certain  things  have  been 
considered  as  impure  or  unlawful,  and  had  nevertheless  become 
necessary,  they  were  obliged  to  call  in  religion  to  legitimate  in 
the  one  case,  and  to  reprove  in  others. 


68  MONTESQUIEU 


r"O 


the  other  hand,  as  marriage  is  of  all  human  actions  that  in 
which  society  is  most  interested,  it  became  proper  that  this 


/should  be  regulated  by  the  civil  laws. 
Ev 


verything  which  relates  to  the  nature  of  marriage,  its  form, 
the  manner  of  contracting  it,  the  fruitfulness  it  occasions,  which 
has  made  all  nations  consider  it  as  the  object  of  a  particular  bene- 
diction, a  benediction  which,  not  being  always  annexed  to  it,  is 
supposed  to  depend  on  certain  superior  graces  ;  all  this  is  within 
the  resort  of  religion. 

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

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

The  civil  laws  receive  this  power  from  their  being  additional 
obligations,  and  not  contradictory  ones.  The  law  of  religion  in- 
sists upon  certain  ceremonies,  the  civil  laws  on  the  consent  of 
fathers  ;  in  this  case,  they  demand  something  more  than  that  of 
religion,  but  they  demand  nothing  contrary  to  it. 

It  follows  hence,  that  the  religious  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  with  respect 
to  marriage,  are  not  absolutely  necessary  ;  such  are  those  estab- 
lished by  the  laws,  which,  instead  of  annulling  the  marriage,  only 
punish  those  who  contract  it. 

Among  the  Romans,  the  Papian  law  declared  those  marriages 
illegal  which  had  been  prohibited,  and  yet  only  subjected  them  to 
a  penalty  ;  e  but  a  senatus-consultum,  made  at  the  instance  of  the 
Emperor  Marcus  Antoninus,  declared  them  void;  there  then  no 
longer  subsisted  any  such  thing  as  a  marriage,  wife,  dowry,  or 

e  See  what  has  been  said  on  this  sub-       relation   they   bear   to   the  number   of 
ject,   im  book  XXIII.   chap.   21,   in  the        inhabitants. 


THE   SPIRIT   OF   LAWS  69 

husband/  The  civil  laws  determine  according  to  circumstances: 
sometimes  they  are  most  attentive  to  repair  the  evil;  at  others, 
to  prevent  it. 

14. — In  what  instances  Marriages  between  Relatives  shall  be 
regulated  by  the  Laws  of  Nature:  and  in  what  instances  by 
the  civil  Laws 

With  regard  to  the  prohibition  of  marriage  between  relatives, 
it  is  a  thing  extremely  delicate  to  fix  exactly  the  point  at  which 
the  laws  of  nature  stop  and  where  the  civil  laws  begin.  For  this 
purpose  we  must  establish  some  principles. 

The  marriage  of  the  son  with  the  mother  confounds  the  state 
of  things:  the  son  ought  to  have  an  unlimited  respect  for  his 
mother,  the  wife  an  unlimited  respect  for  her  husband;  therefore 
the  marriage  of  the  mother  to  her  son  would  subvert  the  natural 
state  of  both. 

Besides,  nature  has  forwarded  in  women  the  time  in  which 
they  are  able  to  have  children,  but  has  retarded  it  in  men;  and, 
for  the  same  reason,  women  sooner  lose  this  ability  and  men  later. 
If  the  marriage  between  the  mother  and  the  son  were  permitted, 
it  would  almost  always  be  the  case  that  when  the  husband  was 
capable  of  entering  into  the  views  of  nature,  the  wife  would  be 
incapable. 

The  marriage  between  the  father  and  the  daughter  is  contrary 

to  nature,  as  well  as  the  other ;  but  it  is  not  less  contrary,  because 

it  has  not  these  two  obstacles.     Thu^Jhe  Tartars,  who  may 

.-marry  their  daughters,^  never  marry  their  mothers,  as  we  see  in 

the  accounts  we  have "oTfrM  '"natfon.ft 

It  has  ever  been  the  natural  duty  of  fathers  to  watch  over  the 
chastity  of  their  children.  Intrusted  with  the  care  of  their  educa- 
tion, they  are  obliged  to  preserve  the  body  in  the  greatest  perfec- 
tion, and  the  mind  from  the  least  corruption ;  to  encourage  what- 
ever has  a  tendency  to  inspire  them  with  virtuous  desires,  and  to 
nourish  a  becoming  tenderness.  Fathers,  always  employed  in 
preserving  the  morals  of  their  children,  must  have  a  natural  aver- 
sion to  everything  that  can  render  them  corrupt.  Marriage,  you 

f  See  law  16,  ff.  "  de  ritu  nuptia-  bassy  stopped  in  a  certain  place  to 

rum";  and  law  3,  sec.  i,  also  Digest,  marry  Esca  his  daughter.  "A  thing 

"  de  donationibus  inter  virum  et  uxo-  permitted,"  he  adds,  "  by  the  laws  of 

rem."  the  Scythians,"  p.  22. 

g  This  law  is  very  ancient  among  h "  Hist,  of  the  Tartars,"  part  III. 

them.  Attila,  says  Priscus,  in  his  em-  p.  236. 


jo  MONTESQUIEU 

will  say,  is  not  a  corruption;  but  before  marriage  they  must 
speak,  they  must  make  their  persons  beloved,  they  must  seduce; 
it  is  this  seduction  which  ought  to  inspire  us  with  horror. 

There  should  be  therefore  an  insurmomrtlBIeTiaFrier  T)etween 
those  who  ought  to  give  the  education,  and  those  who  are  to  re- 
ceive it,  in  order  to  prevent  every  kind  of  corruption,  even  though 
the  motive  be  lawful.  Why  do  fathers  so  carefully  deprive  those 
who  are  to  marry  their  daughters  of  their  company  and  famil- 
iarity? 

The  horror  that  arises  against  the  incest  of  the  brother  with 
the  sister  should  proceed  from  the  same  source.  The  desire  of 
fathers  and  mothers  to  preserve  the  morals  of  their  children  and 
families  untainted  is  sufficient  to  inspire  their  offspring  with  a  de- 
testation of  everything  that  can  lead  to  the  union  of  the  two  sexes. 

The  prohibition  of  marriage  between  cousins-german  has  the 
same-origin.  In  the  early  ages,  that  is,  in  the  times  of  innocence; 
in  the  ages  when  luxury  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 
sufficient  for  a  large  family;  the  children  of  two  brothers,  or 
cousins-german,;  were  considered  both  by  others  and  themselves 
as  brothers.  The  estrangement  then  between  the  brothers  and 
sisters  as  to  marriage  subsisted  also  between  the  cousins-german. & 
,  These  principles  are  so  strong  and  so  natural  that  they  have  had 
;  their  influence  almost  over  all  the  earth,  independently  of  any 
^  communication.  It  was  not  the  Romans  who  taught  the  inhabi- 
tants of  Formosa,/  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  the  Maldivian  islands.** 

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

*  It  was  thus  among  the  ancient  Ro-  cousin-german.— Plutarch's    treatise    en- 
mans,  titled    "  Questions    concerning    the    af- 

;  Among    the    Romans    they    had    the  fairs  of  the  Romans." 
same    name;    the    cousins-german   were  /"Collection   of   Voyages  to   the   In- 
called  brothers.  dies,"  vol.  v.  part  I.     An  account  of  the 

k  It  was  thus  at  Rome  in  the  first  ages,  state  of  the  isle  of  Formosa, 

till   the   people   made   a   law   to   permit  nt  Koran,  chapter  "  on  Women." 

them;  they  were  willing  to  favor  a  man  n  See  Francis  Pirard. 
extremely  popular,  who  had  married  his 


THE  SPIRIT  OF  LAWS  71 

made  men  fall  into  these  mistakes.  If  the  Assyrians  and  the  Per- 
sians married  their  mothers,  the  first  were  influenced  by  a  relig- 
ious respect  for  Semiramis,  and  the  second  did  it  because  the  re- 
ligion of  Zoroaster  gave  a  preference  to  these  marriages.^  If 
the  Egyptians  married  their  sisters,  it  proceeded  from  the  wild- 
ness  of  the  Egyptian  religion,  which  consecrated  these  marriages 
in  honor  of  Isis.  As  the  spirit  of  religion  leads  us  to  attempt 
whatever  is  great  and  difficult,  we  cannot  infer  that  a  thing  is  nat- 
ural from  its  being  consecrated  by  a  false  religion. 

The  principle  which  informs  us  that  marriages  between  fathers 
and  children,  between  brothers  and  sisters,  are  prohibited  in 
order  to  preserve  natural  modesty  in  families  will  help  us  to  the 
discovery  of  those  marriages  that  are  forbidden  by  the  law  of 
nature,  and  of  those  which  can  be  so  only  by  the  civil  law. 

As  children  dwell,  or  are  supposed  to  dwell  in  their  father's 
house,  and  consequently  the  son-in-law  with  the  mother-in-law, 
the  father-in-law  with  the  daughter-in-law,  or  wife's  daughter, 
the  marriage  between  them  is  forbidden  by  the  law  of  nature.  In 
this  case  the  resemblance  has  the  same  effect  as  the  reality,  be- 
cause it  springs  from  the  same  cause;  the  civil  law  neither  cari; 
nor  ought  to  permit  these  marriages. 

There  are  nations,  as  we  have  already  observed,  among  whom 
cousins-german  are  considered  as  brothers,  because  they  com- 
monly dwell  in  the  same  house ;  there  are  others  where  this  cus- 
tom is  not  known.  Among  the  first  the  marriage  of  cousins-ger- 
man ought  to  be  regarded  as  contrary  to  nature ;  not  so  among 
the  others. 

But  the  laws  of  nature  cannot  be  local.  Therefore,  when  these 
marriages  are  forbidden  or  permitted,  they  are,  according  to  the 
circumstances,  permitted  or  forbidden  by  a  civil  law. 

It  is  not  a  necessary  custom  for  the  brother-in-law  and  the 
sister-in-law  to  dwell  in  the  same  house.  The  marriage  between 
them  is  not  then  prohibited  to  preserve  chastity  in  the  family; 
and  the  law  which  forbids  or  permits  it  is  not  a  law  of  nature,  but 
a  civil  law,  regulated  by  circumstances  and  dependent  on  the  cus- 
toms of  each  country :  these  are  cases  in  which  the  laws  depend 
on  the  morals,  or  customs  of  the  inhabitants. 

The  civil  laws  forbid  marriages  when  by  the  customs  received 

oThey  were  considered  as  more  hqn-       quae    pertinet    ad    praecepta    decalogi." 
orable.  See  Philo,  "  de  specialibus  legib.        Paris  1640,  p.  778. 


72  MONTESQUIEU 

in  a  certain  country  they  are  found  to  be  in  the  same  circum- 
stances as  those  forbidden  by  the  law  of  nature ;  and  they  permit 
them  when  this  is  not  the  case.  The  prohibitions  of  the  laws  of 
nature  are  invariable,  because  the  thing  on  which  they  depend  is 
invariable;  the  father,  the  mother,  and  the  children  necessarily 
dwell  in  the  same  house.  But  the  prohibitions  of  the  civil  laws 
are  accidental,  because  they  depend  on  an  accidental  circum- 
stance, cousins-german  and  others  dwelling  in  the  house  by  acci- 
dent. 

This  explains  why  the  laws  of  Moses,  those  of  the  Egyptians,/* 
and  of  many  other  nations  permitted  the  marriage  of  the  brother- 
in-law  with  the  sister-in-law;  whilst  these  very  marriages  were 
disallowed  by  other  nations. 

In  the  Indies  they  have  a  very  natural  reason  for  admitting 
this  sort  of  marriages.  The  uncle  is  there  considered  as  the 
father  and  is  obliged  to  maintain  and  educate  his  nephew  as  if 
he  were  his  own  child ;  this  proceeds  from  the  disposition  of  this 
people,  which  is  good-natured  and  full  of  humanity.  This  law  or 
this  custom  has  produced  another;  if  a  husband  has  lost  his  wife, 
he  does  not  fail  to  marry  her  sister :  <z  which  is  extremely  natural, 
for  his  new  consort  becomes  the  mother  of  her  sister's  children, 
and  not  a  cruel  step-mother. 

15. — That  we  should  not  regulate  by  the  Principles  of  political 
Laws  those  Things  which  depend  on  the  Principles  of  civil 
Law 

•  j  As  men  have  given  up  their  natural  independence  to  live  under 
political  laws,  they  have  given  up  the  natural  community  of 
goods  to  live  under  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  community,  what 
ought  to  be  decided  by  the  laws  concerning  property.  Jt  is  a 
paralogism  to  say,  that  the  good  of  the  individual  should  give 
way  to  that  of  the  public;  this  can  never  take  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  consists  in  every- 

p  See  Law  8,  of  the  Code  "  de  incestis          q  "  Edifying  Letters,"  4th.  403. 
et  inutilibus  nuptiis.  ' 


THE  SPIRIT  OF  LAWS 


73 


one's  having  his  property,  which  was  given  him  by  the  civil  laws, 
invariably  preserved. 

Cicero  maintains,  that  the  Agrarian  laws  were  unjust;  because 
the  community  was  established  with  no  other  view  than  that 
everyone  might  be  able  to  preserve  his  property. 

Let  us,  therefore,  lay  down  a  certain  maxim,  that  whenever  the 
public  good  happens  to  be  the  matter  in  question,  it  is  not  for 
the  advantage  of  the  public  to  deprive  an  individual  of  his  prop- 
erty, or  even  to  retrench  the  least  part  of  it  by  a  law,  or  a  po- 
litical regulation.  In  this  case  we  should  follow  the  rigor  of  the 
civil  law,  which  is  the  palladium  of  property. 

Thus  when  the  public  has  occasion  for  the  estate  of  an  individ- 
ual, 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,  regards  every  individual  as  the  whole  community. 

If  the  political  magistrate  would  erect  a  public  edifice,  or  make 
a  new  road,  he  must  indemnify  those  who  are  injured  by  it;  the 
public  is  in  this  respect  like  an  individual  who  treats  with  an  in- 
dividual. It  is  fully  enough  that  it  can  oblige  a  citizen  to  sell  his 
inheritance,  and  that  it  can  strip  him  of  the  great  privilege,  which 
he  holds  from  the  civil  law,  of  not  being  forced  to  alienate  his 
possessions. 

After  the  nations  which  subverted  the  Roman  Empire  had 
abused  their  very  conquests,  the  spirit  of  liberty  called  them  back 
to  that  of  equity.  They  exercised  the  most  barbarous  laws  with 
moderation :  and  if  any  one  should  doubt  the  truth  of  this,  they 
need  only  read  Beaumanoir's  admirable  work  on  jurisprudence, 
written  in  the  twelfth  century. 

They  mended  the  highways  in  his  time  as  we  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 
the  road.r  They  determined  at  that  time  by  the  civil  law;  in  our 
days,  we  determine  by  the  law  of  politics. 


r  **  The  lord  appointed  collectors  to 
receive  the  toll  from  the  peasant,  the 
gentlemen  were  obliged  to  contribute 


by   the   count,   and   the   clergy   to   the 
bishop."— Beaumanoir,  chap.  xxii. 


74  MONTESQUIEU 

16. — That  we  ought  not  to  decide  by  the  Rules  of  the  civil  Law 
when  it  is  proper  to  decide  by  those  of  the  political  Law 

Most  difficulties  on  this  subject  may  be  easily  solved  by  not 
confounding  the  rules  derived  from  property  with  those  which 
spring  from  liberty. 

Is  the  demesne  of  a  state  or  government  alienable,  or  is  it  not? 
This  question  ought  to  be  decided  by  the  political  law,  and  not  by 
the  civil.  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  that  the  state  should  have  civil  laws  to  regulate 
the  disposal  of  property. 

If  then  they  alienate  the  demesne,  the  state  will  be  forced  to 
make  a  new  fund  for  another.  But  this  expedient  overturns  the 
political  government,  because,  by  the  nature  of  the  thing,  for 
every  demesne  that  shall  be  established,  the  subject  will  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  misfortunes,  which  I  have  said  must 
arise  in  a  despotic  kingdom,  where  all  is  uncertain,  because  all  is 
arbitrary. 

The  order  of  succession  is  not  fixed  for  the  sake  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  regulates  the  succession  to  monarchy  is 
a  political  law,  which  has  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  kings ;  and 
the  maxims  by  which  they  judged  kings  are  so  abominable,  that 
they  ought  never  to  be  revived. 

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


THE  SPIRIT  OF  LAWS  75 

a  family  to  renounce  the  succession,  it  is  absurd  to  insist  upon 
the  restitutions  drawn  from  the  civil  law.  Restitutions  are  in  the 
law,  and  may  be  good  against  those  who  live  in  the  law:  but 
they  are  not  proper  for  such  as  have  been  raised  up  for  the  law, 
and  who  live  for  the  law. 

It  is  ridiculous  to  pretend  to  decide  the  rights  of  kingdoms,  of 
nations,  and  of  the  whole  globe  by  the  same  maxims  on  which 
(to  make  use  of  an  expression  of  Cicero)  s  we  should  determine 
the  right  of  a  gutter  between  individuals. 

17. — The  same  Subject  continued 

Ostracism  ought  to  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  odious,  that  it  is,  on  the  contrary, 
extremely  well  adapted  to  prove  its  lenity.  We  should  be  sensi- 
ble of  this  ourselves,  if,  while  banishment  is  always  considered 
among  us  as  a  penalty,  we  are  able  to  separate  the  idea  of  ostra- 
cism from  that  of  punishment. 

Aristotle  t  tells  us,  it  is  universally  allowed,  that  this  practice 
has  something  in  it  both  humane  and  popular.  If  in  those  times 
and  places  where  this  sentence  was  executed  they  found  noth- 
ing in  it  that  appeared  odious ;  is  it  for  us  who  see  things  at  such 
a  distance  to  think  otherwise  than  the  accuser,  the  judges  and  the 
accused  themselves? 

And  if  we  consider  that  this  judgment  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;  v  we  shall  find  that  numbers  of  people  have 
obtained  a  false  idea  of  it ;  for  it  was  an  admirable  law  that  could 
prevent  the  ill  consequences  which  the  glory  of  a  citizen  might 
produce  by  loading  him  with  new  glory. 

1 8. — That  it  is  necessary  to  inquire  whether  the  Laws  which 
seem  contradictory  are  of  the  same  Class 

At  Rome  the  husband  was  permitted  to  lend  his  wife  to  an- 
other. Plutarch  tells  us  this  in  express  terms.™  We  know  that 

5  Lib.  I.  "  of  Laws."  v  It  was  found  opposite  to  the  spirit 

t "  Repub."   lib.   III.   cap.   xiii.  of  the  legislator. 

« Hyperbolus.      See    Plutarch,  "  Life           w  Plutarch    in    his    "  comparison    be- 

of  Anstides."  tween  Lycurgus  and  Numa. 


76  MONTESQUIEU 

Cato  lent  his  wife  to  Hortensius,*  and  Cato  was  not  a  man  to 
violate  the  laws  of  his  country. 

On  the  other  hand,  a  husband  who  suffered  his  wife  to  be  de- 
bauched, who  did  not  bring  her  to  justice,  or  who  took  her  again 
after  her  condemnation  was  punished.y  These  laws  seem  to 
contradict  each  other,  and  yet  are  not  contradictory.  The  law 
which  permitted  a  Roman  to  lend  his  wife  was  visibly  a  Lace- 
daemonian institution,  established  with  a  view  of  giving  the  re- 
public children  of  a  good  species,  if  I  may  be  allowed  the  term ; 
the  other  had  in  view  the  preservation  of  morals.  The  first  was 
a  law  of  politics,  the  second  a  civil  law. 

19. — That  we  should  not  decide  those  Things  by  the  civil  Law 
which  ought  to  be  decided  by  domestic  Laws 

The  law  of  the  Visigoths  enjoins  that  the  slaves  of  the  house 
shall  be  obliged  to  bind  the  man  and  woman  they  surprise  in 
adultery,  and  to  present  them  to  the  husband  and  to  the  judge;  2 
a  terrible  law,  which  puts  into  the  hands  of  such  mean  persons, 
the  care  of  public,  domestic,  and  private  vengeance ! 

This  law  can  be  nowhere  proper  but  in  the  seraglios  of  the 
East,  where  the  slave  who  has  the  charge  of  the  inclosure  is 
deemed  an  accomplice  upon  the  discovery  of  the  least  infidelity. 
He  seizes  the  criminals,  not  so  much  with  a  view  to  bring  them 
to  justice,  as  to  do  justice  to  himself,  and  to  obtain  a  scrutiny 
into  the  circumstances  of  the  action,  in  order  to  remove  the  sus- 
picion  of  his  negligence. 

But,  in  countries  where  women  are  not  guarded,  it  is  ridicu- 
lous to  subject  those  who  govern  the  family  to  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. 

20. — That  we  ought  not  to  decide  by  the  Principles  of  the  civil 
Laws  those  Things  which  belong  to  the  Law  of  Nations 

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

x  Plutarch,  "  Life  of  Cato."  *  Law  of  the  Visigoths,  lib.  III.  tit 

y  Leg.  ii,  sec.  ult.  ff.  "  ad  leg.  Jul.  de       4,  sec.  6. 
adulteriis.'' 


THE  SPIRIT  OF  LAWS  77 

It  follows  hence,  that  princes  who  live  not  among  themselves 
under  civil  laws  are  not  free;  they  are  governed  by  force;  they 
may  continually  force,  or  be  forced.  Hence  it  follows,  that 
treaties  made  by  force  are  as  obligatory  as  those  made  by  free 
consent.  When  we,  who  live  under  civil  laws,  are,  contrary  to 
law,  constrained  to  enter  into  a  contract  we  may,  by  the  assist- 
ance of  the  law,  recover  from  the  effects  of  violence :  but  a  prince, 
who  is  always  in  that  state  in  which  he  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 ;  it  would  seem  as 
if  he  would  be  a  prince  with  respect  to  other  princes,  and  as  if 
other  princes  should  be  subjects  with  respect  to  him ;  that  is,  it 
would  be  contrary  to  the  nature  of  things. 

21. — That  we  should  not  decide  by  political  Laws  Things 
which  belong  to  the  Law  of  Nations 

Political  laws  demand  that  every  man  be  subject  to  the  natural 
and  civil  courts  of  the  country  where  he  resides,  and  to  the  cen- 
sure of  the  sovereign. 

The  law  of  nations  requires  that  princes  shall  send  ambassa- 
dors; and  a  reason  drawn  from  the  nature  of  things  does  not 
permit  these  ambassadors  to  depend  either  on  the  sovereign  to 
whom  they  are  sent,  or  on  his  tribunals.  They  are  the  voice  of 
the  prince  who  sends  them,  and  this  voice  ought  to  be  free;  no 
obstacle  should  hinder  the  execution  of  their  office:  they  may 
frequently  offend,  because  they  speak  for  a  man  entirely  inde- 
pendent; they  might  be  wrongfully  accused,  if  they  were 
liable  to  be  punished  for  crimes;  if  they  could  be  arrested 
arrested  for  debts,  these  might  be  forged.  Thus  a  prince,  who 
has  naturally  a  bold  and  enterprising  spirit,  would  speak  by  the 
mouth  of  a  man  who  had  everything  to  fear.  We  must  then  be 
guided,  with  respect  to  ambassadors,  by  reasons  drawn  from  the 
law  of  nations,  and  not  by  those  derived  from  political  law.  But 
if  they  make  an  ill  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  either  their  judge  or 
their  accomplice. 


78  MONTESQUIEU 

22. — The  unhappy  state  of  the  Ynca  Athualpa 

The  principles  we  have  just  been  establishing  were  cruelly 
violated  by  the  Spaniards.  The  Ynca  Athualpa  a  could  not  be 
tried  by  the  law  of  nations :  they  tried  him  by  political  and  civil 
laws;  they  accused  him  for  putting  to  death  some  of  his  own  sub- 
jects, for  having  many  wives,  etc.,  and  to  fill  up  the  measure  of 
their  stupidity,  they  condemned  him,  not  by  the  political  and 
civil  laws  of  his  own  country,  but  by  the  political  and  civil  laws 
of  theirs. 

23. — That  when,  by  some  Circumstance,  the  political  Law  be- 
comes destructive  to  the  State,  we  ought  to  decide  OH  such 
a  political  Law  as  will  preserve  it,  which  sometimes  becomes 
a  Law  of  Nations 

When  that  political  law  which  has  established  in  the  kingdom  a 
certain  order  of  succession  becomes  destructive  to  the  body  po- 
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  the  safety  of  the  people  isl 
the  supreme  law. 

I  have  said,&  that  a  great  state  becoming  accessory  to  another 
is  itself  weakened,  and  even  weakens  the  principal.  We  know 
that  it  is  for  the  interest  of  the  state  to  have  the  supreme  magis- 
trate within  itself,  that  the  public  revenues  be  well  administered, 
and  that  its  specie  be  not  sent  abroad  to  enrich  another  country. 
It  is  of  importance  that  he  who  is  to  govern  has  not  imbibed  for- 
eign maxims ;  these  are  less  agreeable  than  those  already  estab- 
lished. Besides,  men  have  an  extravagant  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,  are 
rarely  changed  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,  the  former  may  reasonably  exclude  him,  be- 
cause a  change  in  the  order  of  succession  must  be  of  service  to 


a  See  Garcilaso  de  la  Vega.  p.  108.  chap,  iv.,  v.  vi.,  and  vii. ;  and  book  X. 

6  See  book  V.  chap.  xiv. ;  book  VIII.        chap.  ix.  and  x. 
chap,  xvi.;  17,  18,  19,  and  20,  book  IX. 


THE  SPIRIT  OF  LAWS  79 

both  countries.  Thus  a  law  of  Russia,  made  in  the  beginning  of 
the  reign  of  Elizabeth,  most  wisely  excluded  from  the  possession 
of  the  crown  every  heir  who  possessed  another  monarchy;  thus 
the  law  of  Portugal  disqualifies  every  stranger  who  lays  claim  to 
the  crown  by  right  of  blood. 

But  if  a  nation  may  exclude,  it  may  with  greater  reason  be  al- 
lowed a  right  to  oblige  a  prince  to  renounce.  If  the  people  fear 
that  a  certain  marriage  will  be  attended  with  such  consequences 
as  shall  rob  the  nation  of  its  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  have  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  punishes,  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  they  oblige  to  live  according  to  the  rules  of  society. 

In  the  exercise  of  the  police,  it  is  rather  the  magistarte  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  consists  in  affairs  which  arise  every  instant,  and 
are  commonly  of  a  trifling  nature :  there  is  then  but  litttle  need 
of  formalties.  The  actions  of  the  police  are  quick ;  they  are  exer- 
cised 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  are  there- 
fore not  designed  for  its  purpose.  It  is  governed  rather  by  regu- 
lations than  laws;  those  who  are  subject  to  its  jurisdiction  are  in- 
cessantly under  the  eye  of  the  magistrate :  it  is  therefore  his  fault 
if  they  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  different  order. 

Hence  it  follows,  that  the  laws  of  an  Italian  republic,^  where 
bearing  fire-arms  is  punished  as  a  capital  crime  and  where  it  is 

c  Venice. 


8o  MONTESQUIEU 

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

25. — That  we  should  not  follow  the  general  Disposition  of  the 
civil  Law,  in  things  zvhich  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. 

d  Chap.  xiv.  p.  12. 


sob 


I 


CHOICE  EXAMPLES  OF  CLASSIC   SCULPTURE. 


»v/£  ~&t'f+!l<nv  tkc  general  Disposition  > 
.*>»•*     \iii-Ji  ought  to  be  subject  to  part, 

i  •••*.  r.^»f  awn  Nature 

;ui!  a!!  civil  obligations  passed  between  sailors 
:--Jttr*e'  of  a  voyage  should  be  null?    Fra 
'.that,  in  his 'time,  it  was  .not  observed  b 
*f;h  it  was  by  the  French.    Men  who  ar 
THE  LAOCOON. 

lljf  *>r:.r.4r,  who  havf 
Photo-engraving  from  tie  original  marble  group  in  the  Vaticani^d  Rome. 

Agesander,  Athenodorus.and  Polydorus,  a  group  of  Rhodian  masters,  produced 
the  Laocoon,  which  is  said  to  express  physical  pain  and  passion  better  than  any 
other  existing  group  of  statuary.  Laocoon  was  a  Trojan  priest  of  the  Thymbrgsan 
Apollo.  According  to  classic  legend  he  was  preparing  to  sacrifice  a  bull  to  Posei- 
don, when  two  enormous  serpents  swam  out  of  the  sea,  coiled  round  LaocoSn  and 
his  two  sons,  and  destroyed  them.  TKe  Laocoon  group  was  discovered  in  1506, 
near  the  baths  of  Titus,  probably  in  tha  ruins  of  the  palace  of  the  Emperor  Titus. 


BOOK  XXVII 

I. — Of  the  Origin  and  Revolutions  of  the  Roman  Laws  on, 

Successions 

THIS  affair  derives  its  establishment  from  the  most  dis- 
tant antiquity,  and  to  penetrate  to  its  foundation,  per- 
mit me  to  search  among  the  first  laws  of  the  Romans 
for  what,  I  believe,  nobody  yet  has  been  so  happy  as  to  dis- 
cover. 

We  know  that  Romulus  a  divided  the  land  of  his  little  king- 
dom among  his  subjects;  it  seems  to  me  that  hence  the  laws 
of  Rome  on  successions  were  derived. 

The  law  of  the  division  of  lands  made  it  necessary,  that  the 
property  of  one  family  should  not  pass  into  another :  hence  it 
followed,  that  there  were  but  two  orders  of  heirs  established 
by  law,  the  children  and  all  the  descendants  that  lived  under 
the  power  of  the  father,  whom  they  called  sui  hceredes,  or  his 
natural  heirs ;  and,  in  their  default,  the  nearest  relatives  on  the 
male  side,  whom  they  called  agnati.b 

It  followed  likewise,  that  the  relatives  on  the  female  side, 
whom  they  called  cognati,  ought  not  to  succeed ;  they  would 
have  conveyed  the  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  to  her  children ;  for  this 
might  carry  the  estate  of  one  family  into  another.  Thus  we 
see  them  excluded  by  the  law  of  the  Twelve  Tables :  c  it  called 
none  to  the  succession  but  the  agnati,  and  there  was  no  agna- 
tion between  the  son  and  the  mother. 

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

a  Dionys.  Halicar.  lib.  II.  c.  iii.     Plu-  law  of  the  Twelve  Tables  "  in  Ulpian, 

tarch's  "  comparison  between  Numa  and  the  last  title. 

Lycurgus."  c  See  the  "  Frag,  of  Ulpian,"  sec.  8, 

b  "  Ast   si  intestato  moritur  cui   suus  tit.  26.     "  Inst."  tit.  3,  "  in  praemio  ad 

haeres    nee    extabit,    agnatus    proximus  S.  C.  Tertullianum." 
familiam   habeto."     "  Fragment   of   the 

VOL.  II.— 6  8l 


82  MONTESQUIEU 

as  the  relatives  on  the  mother's  side  could  not  succeed,  though 
a  Woman  who  was  an  heiress  should  happen  to  marry,  yet  the 
estate  always  returned  into  the  family  whence  it  came.  On  this 
account,  the  law  of  the  Twelve  Tables  does  not  distinguish, 
whether  the  person  who  succeeded  was  male  or  female.^ 

This  was  the  cause,  that  though  the  grandchildren  by  the 
son  succeeded  to  the  grandfather,  the  grandchildren  by  the 
daughter  did  not  succeed;  for,  to  prevent  the  estate  from  pass- 
ing into  another  family,  the  agnati  were  preferred  to  them. 
Hence  the  daughter,  and  not  her  children,  succeeded  to  the 
father.* 

Thus  among  the  primitive  Romans,  the  women  succeeded^ 
when  this  was  agreeable  to  the  law  of  the  division  of  lands,  and 
they  did  not  succeed,  when  this  might  suffer  by  it. 

Such  were  the  laws  of  succession  among  the  primitive  Ro- 
mans ;  and  as  these  had  a  natural  dependence  on  the  constitu- 
tion, and  were  derived  from  the  division  of  lands,  it  is  easy  to 
perceive  that  they  had  not  a  foreign  origin,  and  were  not  of 
the  number  of  those  brought  into  the  republic  by  the  deputies 
sent  into  the  cities  of  Greece. 

Dionysius  Halicarnassus  tells  us  f  that  Servius  Tullius,  find- 
ing the  laws  of  Romulus  and  Numa  on  the  division  of  lands 
abolished,  restored  them,  and  made  new  ones  to  give  the  old 
a  greater  weight.  We  cannot,  therefore,  doubt  but  that  the 
laws  we  have  been  speaking  of,  made  in  consequence  of  this 
division,  were  the  work  of  these  three  Roman  legislators. 

The  order  of  succession  having  been  established  in  conse- 
quence of  a  political  law,  no  citizen  was  allowed  to  break  in 
upon  it  by  his  private  will ;  that  is,  in  the  first  ages  of  Rome 
he  had  not  the  power  of  making  a  testament.  Yet  it  would 
have  been  hard  to  deprive  him,  in  his  last  moments,  of  the 
friendly  commerce  of  kind  and  beneficent  actions. 

They  therefore  found  a  method  of  reconciling,  in  this  respect, 
the  laws  with  the  desires  of  the  individual.  He  was  permitted 
to  dispose  of  his  substance  in  an  assembly  of  the  people ;  and 
thus  every  testament  was,  in  some  sort,  an  act  of  the  legislative 
power. 

The  law  of  the  Twelve  Tables  permitted  the  person  who 

d  Paulus,  lib.  IV.  sent.  tit.  8,  sec.  3.  /  Lib.  IV.  p.  276. 

e  "  Inst."  tit.  lib.  III. 


THE   SPIRIT   OF   LAWS  83 

made  his  will  to  choose  which  citizen  he  pleased  for  his  heir. 
The  reason  that  induced  the  Roman  laws  so  strictly  to  restrain 
the  number  of  those  who  might  succeed  ab  intestato  was  the  law 
of  the  division  of  lands ;  and  the  reason  why  they  extended  so 
widely  the  power  of  the  testator  was,  that  as  the  father  might 
sell  his  children,^  he  might  with  greater  reason  deprive  them 
of  his  substance.  These  were,  therefore,  different  effects,  since 
they  flowed  from  different  principles ;  and  such  is,  in  this  re- 
spect, the  spirit  of  the  Roman  laws. 

The  ancient  laws  of  Athens  did  not  suffer  a  citizen  to  make 
a  will.  Solon  permitted  it,  with  an  exception  to  those  who  had 
children ;  h  and  the  legislators  of  Rome,  rilled  with  the  idea  of 
paternal  power,  allowed  the  making  a  will  even  to  the  prejudice 
of  their  children.  It  must  be  confessed  that  the  ancient  laws  of 
Athens  were  more  consistent  than  those  of  Rome.  The  in- 
definite permission  of  making  a  will  which  had  been  granted  to 
the  Romans,  ruined  little  by  little  the  political  regulation  on 
the  division  of  lands ;  it  was  the  principal  thing  that  intro- 
duced the  fatal  difference  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  deprived  of  their  shares  were  incessantly  call- 
ing out  for  a  new  distribution  of  lands.  They  demanded  it  in 
an  age  when  the  frugality,  the  parsimony,  and  the  poverty  of 
the  Romans  were  their  distinguishing  characteristics ;  as  well 
as  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  army  were  thereby  deprived 
of  a  testamentary  power.  The  people,  therefore,  gave  the 
soldiers  the  privilege  of  making  before  their  companions  *  the 
dispositions  which  should  have  been  made  before  them.; 

The  great  assembly  of  the  people  met  but  twice  a  year ;  be- 
sides, both  the  people  and  the  affairs  brought  before  them  were 

fDionysius  Halicarnassus  proves,  by  lished  only  by  the  constitutions  of  the 

aw  of  Numa,  that  the  law  which  per-  emperors.     Leg.  i  ff.  "  de  militari  testa- 

mitted    a    father    to    sell    his    son   three  mento."     This  was  one  of  the  artifices 

times  was  made  by  Romulus,  and  not  by  which  they  cajoled  the  soldiers, 

by  the  Decemvirs.— Lib.  II.  /This   testament   was   not   in   writing, 

h  See  Plutarch's  "  Life  of  Solon."  and  it  was  without  formality,  "  sine  libra 

t  This     testament,     called     "  in     pro-  et  tabulis,"  as  Cicero  says,  lib.  I.  "  de 

cinctu,"  was  different  from  that  which  Oratore," 
they  styled   military,   which   was   estab- 


84  MONTESQUIEU 

increased;  they,  therefore,  judged  it  convenient  to  permit  all 
the  citizens  to  make  their  will  before  some  Roman  citizens  of 
ripe  age,  who  were  to  represent  the  body  of  the  people ;  k  they 
took  five  citizens,/  in  whose  presence  the  inheritor  purchased 
his  family,  that  is,  his  inheritance,  of  the  testator ;  m  another 
citizen  brought  a  pair  of  scales  to  weigh  the  value;  for  the 
Romans,  as  yet,  had  no  money .« 

To  all  appearance  these  five  citizens  were  to  represent  the 
five  classes  of  the  people ;  and  they  set  no  value  on  the  sixth, 
as  being  composed  of  men  who  had  no  property. 

We  ought  not  to  say,  with  Justinian,  that  these  scales  were 
merely  imaginary;  they  became,  indeed,  imaginary  in  time, 
but  were  not  so  originally.  Most  of  the  laws,  which  afterwards 
regulated  wills,  were  built  on  the  reality  of  these  scales :  we 
find  sufficient  proof  of  this  in  the  fragments  of  Ulpian.*  The 
deaf,  the  dumb,  the  prodigal,  could  not  make  a  will :  the  deaf, 
because  he  could  not  hear  the  words  of  the  buyer  of  the  in- 
heritance; the  dumb,  because  he  could  not  pronounce  the 
terms  of  nomination ;  the  prodigal,  because  as  he  was  excluded 
from  the  management  of  all  affairs,  he  could  not  sell  his  inher- 
itance. I  omit  any  further  examples. 

Wills  being  made  in  the  assembly  of  the  people  were  rather 
the  acts  of  political  than  of  civil  laws,  a  public  rather  than  a 
private  right ;  whence  it  followed,  that  the  father  while  his  son 
was  under  his  authority  could  not  give  him  leave  to  make  a 
will. 

Among  most  nations,  wills  are  not  subject  to  greater  for- 
malities than  ordinary  contracts;  because  both  the  one  and 
the  other  are  only  expressions  of  the  will  of  him  who  makes  the 
contract,  and  both  are  equally  a  private  right.  But  among  the 
Romans,  where  testaments  were  derived  from  the  public  law 
they  were  attended  with  much  greater  formalities  than  other 
affairs ;  o  and  this  is  still  the  case  in  those  provinces  of  France 
which  are  governed  by  the  Roman  law. 

Testaments  being,  as  I  have  said,  a  law  of  the  people,  they 
ought  to  be  made  with  the  force  of  a  command,  and  in  such 

k  "  Instit."    lib.    II.    tit.    10,    sec.    i.  n  T.  Livy,  lib.  IV.  "  nondum  argentum 

Aulus    Gellius.    lib.     XV.     cap.     xxvii.  signatum  erat."    He  speaks  of  the  time 

They  called  this  form  of  testament  "  per  of  the  siege  of  Veii. 

aes  et  libram."  *  Tit.  20,  sec.  13. 

/  Ulpian,  tit.  TO,  sec.  2.  o  "  Instit."  lib.  II.  tit.  10,  sec.  I. 

m  Theoph.  "  Inst."  lib.  II.  tit.  10. 


THE   SPIRIT   OF  LAWS  85 

terms  as  are  called  direct  and  imperative./'  Hence  a  rule  was 
formed,  that  they  could  neither  give  nor  transmit  an  inheri- 
tance without  making  use  of  the  imperative  words :  whence  it 
followed,  that  they  might  very  justly  in  certain  cases  make  a 
substitution ;  q  and  ordain,  that  the  inheritance  should  pass  to 
another  heir ;  but  that  they  could  never  make  a  fiduciary  be- 
quest/ that  is,  charge  any  one  in  terms  of  entreaty  to  restore  an 
inheritance,  or  a  part  of  it,  to  another. 

When  the  father  neither  instituted  his  son  his  heir,  nor  dis- 
inherited him,  the  will  was  annulled ;  but  it  was  valid  though 
he  did  not  disinherit  his  daughter,  nor  institute  her  his  heiress. 
The  reason  is  plain :  when  he  neither  instituted  nor  disinherited 
his  son,  he  did  an  injury  to  his  grandson,  who  might  have  suc- 
ceeded ab  intestato  to  his  father ;  but  in  neither  instituting  nor 
disinheriting  his  daughter,  he  did  no  injury  to  his  daughter's 
children,  who  could  not  succeed  ab  intestato  to  their  mother, 
because  they  were  neither  sui  h&redes,  nor  agnati.s 

The  laws  of  the  ancient  Romans  concerning  successions,  be- 
ing formed  with  the  same  spirit  which  dictated  the  division  of 
lands,  did  not  sufficiently  restrain  the  riches  of  women ;  thus  a 
door  was  left  open  to  luxury,  which  is  always  inseparable  from 
this  sort  of  opulence.  Between  the  second  and  third  Punic 
wars,  they  began  to  perceive  the  evil  and  made  the  Voconian 
law ;  t  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- 
ried." 

The  epitome  of  Livy,  where  he  speaks  of  this  law,  says  na 
more :  v  it  appears  from  Cicero  w  and  St.  Augustin,*  that  the 

p  Let  Titus  be  my  heir.  Cicero's      "  Second      Oration      against 

q  Vulgar,  pupillary,  and  exemplary.  Verres."    In  the  "  Epitome  "  of  T.  Livy, 

r  Augustus,     for     particular     reasons,  lib.    XLL,    we    should   read   Voconius, 

first  began  to  authorize  the  fiduciary  be-  instead  of  Voluminus. 

quest,   which,   in   the   Roman   law,   was  u "  Sanxit    .    .    .    ne     quis    hseredem 

called    "  fidei    commissum."     "  Instit."  virginem     neve     mulierem     faceret."— 

lib.  II.  tit.  23,  "  in  praemio."  Cicero's  "  Second  Oration  against  Ver- 

s  "  Ad  liberos  matris  intestatae  haeredit  res." 

as,"  leg.  12  Tab.,  "  non  pertinebat,  quia,  v  "  Legem    tulit,    ne    quis    hseredem 

fceminre     suos    haeredes    non    habent."  mulierem  institueret." — Lib.   IV. 

Ulpian,  "  Frag."  tit.  26,  sec.  7.  w  "  Second  Oration  against  Verres." 

t  It    was    proposed    by    Quintus    Vo-  x  "  Of  the  City  of  God,"  Hb>  III. 
conius,    Tribune    of    the    people.      See 


86  MONTESQUIEU 

daughter,  though  an  only  child,  was  comprehended  in  the  pro- 
hibition. 

Cato,  the  elder,  contributed  all  in  his  power  to  get  this  law 
passed.?  Aulus  Gellius  cites  a  fragment  of  a  speech,^  which 
he  made  on  this  occasion.  By  preventing  the  succession  of 
women,  his  intent  was  to  take  away  the  source  of  luxury ;  as  by 
undertaking  the  defence  of  the  Oppian  law,  he  intended  to  put 
a  stop  to  luxury  itself. 

In  the  Institutes  of  Justinian  a  and  Theophilus,&  mention  is 
made  of  a  chapter  of  the  Voconian  law  which  limits  the  power 
of  bequeathing.  In  reading  these  authors,  everybody  would 
imagine  that  this  chapter  was  made  to  prevent  the  inheritance 
from  being  so  exhausted  by  legacies  as  to  render  it  unworthy 
of  the  heir's  acceptance.  But  this  was  not  the  spirit  of  the  Vo- 
conian law.  We  have  just  seen,  that  they  had  in  view  the 
hindering  women  from  inheriting  an  estate.  The  article  of 
this  law,  which  set  bounds  to  the  power  of  bequeathing,  entered 
into  this  view :  for  if  people  had  been  possessed  of  the  liberty 
to  bequeath  as  much  as  they  pleased,  the  women  might  have 
received  as  legacies  what  they  could  not  receive  by  succession. 

The  Voconian  law  was  made  to  hinder  the  women  from 
growing  too  wealthy ;  for  this  end  it  was  necessary  to  deprive 
them  of  large  inheritances,  and  not  of  such  as  were  incapable 
of  supporting  luxury.  The  law  fixed  a  certain  sum  to  be  given 
to  the  women  whom  it  deprived  of  the  succession.  Cicero/ 
from  whom  we  have  this  particular,  does  not  tell  us  what  was 
the  sum ;  but  by  Dio  we  are  informed  it  was  a  hundred  thou- 
sand sesterces.^ 

The  Voconian  law  was  made  to  regulate  opulence,  not  to 
lay  a  restraint  upon  poverty ;  hence  Cicero  e  informs  us  that 
it  related  only  to  those  whose  names  were  registered  in  the  cen- 
sors' books. 

This  furnished  a  pretence  for  eluding  the  law:  it  is  well 
known  that  the  Romans  were  extremely  fond  of  set  forms; 
and  we  have  already  taken  notice,  that  it  was  the  spirit  of  the 

y  "  Epitome  "  of  Livy,  lib.  XL.  d  "  Cum  lege  Voconia  mulieribus  pro- 

s  Lib.  XXVII.  cap.  vi.  hiberetur,     ne     qua     majorem     centum 

a  "  Instit."  lib.  III.  tit.  22.  millibus    nummum    haereditatem    posset 

fr  Ibid.  adire."— Lib.  LXVI. 

c  "  Nemo  censuit  plus  Fadiae  dandum,  e  "  Qui  census  esset." — "  Second  Ora- 

quam  posset  ad  earn  lege  Voconia  per-  tion  against  Verres." 

venire.  —"  De  finibus  boni  et  mali,"  lib. 


THE  SPIRIT  OF  LAWS  87 

republic  to  follow  the  letter  of  the  law.  There  were  fathers 
who  would  not  give  in  their  names  to  be  enrolled  by  the  Cen- 
sors, because  they  would  have  it  in  their  power  to  leave  the  suc- 
cession to  a  daughter:  and  the  pretors  determined  that  this 
was  no  violation  of  the  Voconian  law  since  it  was  not  contrary 
to  the  letter  of  it. 

One  Anius  Asellus  had  appointed  his  daughter  his  sole  heir 
and  executrix.  He  had  a  right  to  make  this  disposition,  says 
Cicero ;  f  he  was  not  restrained  by  the  Voconian  law,  since  he 
was  not  included  in  the  census.  Verres,  during  the  time  of  his 
pretorship,  had  deprived  Anius's  daughter  of  the  succession; 
and  Cicero  maintains  that  Verres  had  been  bribed,  otherwise 
he  would  not  have  annulled  a  disposition  which  all  the  other 
pretors  had  confirmed. 

What  kind  of  citizens  then  must  those  have  been,  who  were 
not  registered  in  the  census  in  which  all  the  freemen  of  Rome 
were  included?  According  to  the  institution  of  Servius  Tul- 
lius,  mentioned  by  Dionysius  of  Halicarnassus,£  every  citizen 
not  enrolled  in  the  census  became  a  slave  ;  even  Cicero  himself 
observes,^  that  such  a  man  forfeited  his  liberty,  and  the  same 
thing  is  affirmed  by  Zonaras.  There  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. 

They  whose  names  were  not  registered  in  the  first  five 
classes,*'  in  which  the  inhabitants  ranked  in  proportion  to  their 
fortunes,  were  not  comprised  in  the  census  according  to  the 
spirit  of  the  Voconian  law :  they  who  were  not  enrolled  in  one 
of  these  six  classes,  or  who  were  not  ranked  by  the  Censors 
among  such  as  were  called  ararii,  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  proletarii  and  capite  censi,  or  perhaps  to  have  their 
names  entered  in  the  C&rites  tabulaJ 

We  have  elsewhere  observed  that  the  Roman  laws  did  not 
admit  of  fiduciary  bequests.  The  hopes  of  evading  the  Vo- 

/  "  Census  non  erat."— Ibid.  able,   that   authors   sometimes   mention 

fLib.  IV.  no  more  than  five. 

In  "  Oratione  pro  Caecina."  /  "  In    Caeritum   tabulas   referri;   aera- 

*  These  five  classes  were  so  consider-  rius   fieri." 


88  MONTESQUIEU 

conian  law  were  the  cause  of  their  being  introduced :  they  in* 
stituted  an  heir  qualified  by  the  law,  and  they  begged  he  would 
resign  the  succession  to  a  person  whom  the  law  had  excluded ; 
this  new  method  of  disposition  was  productive  of  very  differ- 
ent effects.  Some  resigned  the  inheritance;  and  the  conduct 
of  Sextus  Peduccus  on  an  occasion  of  this  nature  was  very  re- 
markable.^ A  considerable  succession  was  left  him,  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  belonging  to  her  late  husband. 

Others  kept  possession  of  the  inheritance;  and  here  the 
example  of  P.  Sextilius  Rufus  is  also  famous,  having  been 
made  use  of  by  Cicero  in  his  disputations  against  the  Epicure- 
ans./ "  In  my  younger  days,"  says  he,  "  I  was  desired  by 
Sextilius  to  accompany  him  to  his  friends,  in  order  to  know 
whether  he  ought  to  restore  the  inheritance  of  Quintus  Fadius 
Callus  to  his  daughter  Fadia.  There  were  several  young  peo- 
ple present,  with  others  of  more  maturity  and  judgment ;  and 
not  one  of  them  was  of  opinion  that  he  should  give  more  to 
Fadia  than  the  lady  was  entitled  to  by  the  Voconian  law.  In 
consequence  of  this,  Sextilius  kept  possession  of  a  fine  estate, 
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  little  to  reflect. 

It  is  a  misfortune  inherent  in  humanity,  that  legislators 
should  be  sometimes  obliged  to  enact  laws  repugnant  to  the 
dictates  of  nature :  such  was  the  Voconian  law.  The  reason 
is,  the  legislature  considers  the  society  rather  than  the  citizen, 
and  the  citizen  rather  than  the  man.  The  law  sacrificed  both 
the  citizen  and  the  man,  and  directed  its  views  to  the  pros- 
perity of  the  republic.  Suppose  a  person  made  a  fiduciary  be- 
quest in  favor  of  his  daughter ;  the  law  paid  no  regard  to  the 
sentiments  of  nature  in  the  father,  nor  to  the  filial  piety  of  the 
daughter;  all  it  had  an  eye  to  was  the  person  to  whom  the 
bequest  was  made  in  trust,  and  who  on  such  occasion  found 
himself  in  a  terrible  dilemma.  If  he  restored  the  estate  he  was 

k  Cicero,  ••  de  finib.  boni  et  mali,"  lib.  II.  /  Ibid. 


THE  SPIRIT  OF  LAWS  89 

a  bad  citizen ;  if  he  kept  it  he  was  a  bad  man.  None  but  good- 
natured  people  thought  of  eluding  the  law;  and  they  could 
pitch  upon  none  but  honest  men  to  help  them  to  elude  it; 
for  a  trust  of  this  kind  requires  a  triumph  over  avarice  and 
inordinate  pleasure,  which  none  but  honest  men  are  likely  to 
obtain.  Perhaps  in  this  light  to  look  upon  them  as  bad  citizens 
would  have  savored  too  much  of  severity.  It  is  not  impossible 
but  that  the  legislator  carried  his  point  in  a  great  measure, 
since  his  law  was  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  of  their  ancient  purity  of  man- 
ners. Their  conscience  was  sometimes  engaged  in  favor  of 
the  law ;  and  they  were  made  to  swear  they  would  observe  it :  m 
so  that  honesty  in  some  measure  was  set  in  opposition  against 
itself.  But  latterly  their  morals  were  corrupted  to  such  a  de- 
gree that  the  fiduciary  bequests  must  have  had  less  efficacy 
to  elude  the  Voconian  law,  than  that  very  legislator  had  to  en- 
force its  observance. 

The  civil  wars  were  the  destruction  of  an  infinite  number 
of  citizens.  Under  Augustus,  Rome  was  almost  deserted ;  it 
was  necessary  to  re-people  it.  They  made  the  Papian  laws, 
which  omitted  nothing  that  could  encourage  the  citizens  to 
marry,  and  procreate  children.**  One  of  the  principal  means 
was  to  increase,  in  favor  of  those  who  gave  in  to  the  views  of 
the  law,  the  hopes  of  being  heirs,  and  to  diminish  the  expecta- 
tions of  those  who  refused ;  and  as  the  Voconian  law  had  ren- 
dered women  incapable  of  succeeding,  the  Papian  law,  in  cer- 
tain cases,  dispensed  with  this  prohibitions 

Women,/>  especially  those  who  had  children,  were  rendered 
capable  of  receiving  in  virtue  of  the  will  of  their  husbands; 
they  even  might,  when  they  had  children,  receive  in  virtue  of 
the  will  of  strangers.  All  this  was  in  direct  opposition  to  the 
regulations  of  the  Voconian  law :  and  yet  it  is  remarkable,  that 
the  spirit  of  this  law  was  not  entirely  abandoned.  For  ex- 
ample, the  Papian  law,  which  permitted  a  man  who  had  one 

frt  Sextilius  said  he  had  sworn  to  ob-  o  The  same  difference  occurs   in  sev- 

serve  it.— Cic.  "  de  finibus  boni  et  mali,"  eral  regulations  of  the  Papian  law.  See 
lib.  II.  the  "  Fragments  of  Ulpian,"  sees.  4,  5, 

n  See    what   has   been    said   in   book       and  6. 

XXIII.  chap.  21.  p  See  "  Frag,  of  Ulpian,"  tit.  15,  sec. 

16. 


9o  MONTESQUIEU 

child  q  to  receive  an  entire  inheritance  by  the  will  of  a  stranger, 
granted  the  same  favor  to  the  wife  only  when  she  had  three  chil- 
dren.r 

It  must  be  remarked,  that  the  Papian  law  did  not  render  the 
women  who  had  three  children  capable  of  succeeding  except 
in  virtue  of  the  will  of  strangers ;  and  that  with  respect  to  the 
succession  of  relatives,  it  left  the  ancient  laws,  and  particularly 
the  Voconian,  in  all  their  force.*  But  this  did  not  long  sub- 
sist. 

Rome,  corrupted  by  the  riches  of  every  nation,  had  changed 
her  manners ;  the  putting  a  stop  to  the  luxury  of  women  was 
no  longer  minded.  Aulus  Gellius,  who  lived  under  Adrian,' 
tells  us,  that  in  his  time  the  Voconian  law  was  almost  abolished ; 
it  was  buried  under  the  opulence  of  the  city.  Thus  we  find  in 
the  sentences  of  Paulus,"  who  lived  under  Niger,  and  in  the 
fragments  of  Ulpian,^  who  was  in  the  time  of  Alexander 
Severus,  that  the  sisters  on  the  father's  side  might  succeed, 
and  that  none  but  the  relatives  of  a  more  distant  degree  were 
in  the  case  of  those  prohibited  by  the  Voconian  law. 

The  ancient  laws  of  Rome  began  to  be  thought  severe.  The 
pretors  were  no  longer  moved  except  by  reasons  of  equity,  mod- 
eration, and  decorum. 

We  have  seen,  that  by  the  ancient  laws  of  Rome  mothers 
had  no  share  in  the  inheritance  of  their  children.  The  Vocon- 
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.  The  Tertullian  senatus-con- 
sultum,  made  under  Adrian,**/  gave  it  them  when  they  had  three 
children  if  free  women,  or  four  if  they  were  freed-women.  It  is 
evident,  that  this  decree  of  the  Senate  was  only  an  extension  of 
the  Papian  law,  which  in  the  same  case  had  granted  to  women 
the  inheritance  left  them  by  strangers.  At  length  Justinian 
favored  them  with  the  succession  independently  of  the  number 
of  their  children.* 

q  "  Quod  tibi  filiolus,  vel  filia  nascitur  t  Lib.  XX.  cap.  i. 

ex  me,  «  Lib.  IV.  tit.  8,  sec.  3. 

Jura   Parentis  babes-   propter   me  v  Tit.  26,  sec.  6. 

scriberis    haeres."— Juvenal.    Sat.  w  That    is,    the    Emperor    Pius,    who 

9.  changed  his  name  to  that  of  Adrian  by 

r  See    law   9,    C.    Theod.    "  de   bonis  adoption. 

proscriptorum,"  and  Dio,  lib.   V.     See  jrLib.   II.  cod.  "  de  jure  liberorum." 

the  "  Frag,  of  Ulpian,"  tit.  last,  sec.  6,  "  Instit."    tit.    3,    sec.    4,    "  de    senatus 

and  tit.  29,  sec.  3.  consult." 

s  "  Fragments  of  Ulpian,"  tit.  16,  sec. 
i.    Sozomenus,  lib.  I.  cap.  ix. 


THE  SPIRIT  OF  LAWS  91 

The  same  causes  which  had  debilitated  the  law  against  the 
succession  of  women  subverted  that,  by  degrees,  which  had 
limited  the  succession  of  the  relatives  on  the  woman's  side. 
These  laws  were  extremely  conformable  to  the  spirit  of  a  good 
republic,  where  they  ought  to  have  such  an  influence,  as  to 
prevent  this  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  ought  to  be  there  encouraged,  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 at  Rome,  the  whole  system  of  successions  was 
changed.  The  pretors  called  the  relatives  of  the  woman's  side 
in  default  of  those  of  the  male  side;  though  by  the  ancient 
laws,  the  relatives  on  the  woman's  side  were  never  called. 
The  Orphitian  senatus-consultum  called  children  to  the  suc- 
cession of  their  mother ;  and  the  Emperors  Valentinian,  Theo- 
dosius,  and  Arcadius  called  the  grandchildren  by  the  daughter 
to  the  succession  of  the  grandfather .y  In  short,  the  Emperqr 
Justinian  2  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 
of  this  kind,  which  were  still  in  force :  he  believed  that  he  fol- 
lowed nature,  even  in  deviating  from  what  he  called  the  em- 
barrassments of  the  ancient  jurisprudence. 

y  Lib.  9,   Cod.   "  de  suis  et  legitimis          z  Lib.  XIV.  Cod.  "  de  suis  et  legitimis 
haeredibus."  haeredibus,"  et  "  Nov."  118  and  127. 


BOOK  XXVIII 

OF  THE  ORIGIN  AND  REVOLUTIONS  OF  THE 
CIVIL  LAWS  AMONG  THE  FRENCH  a 

In  novafert  animus  mutatas  dicereformas 
Corpora — OVID,  METAM. 

I. — Different  Character  of  the  Laws  of  the  several  Peoples  of 

Germany 

AFTER  the  Franks  had  quitted  their  own  country,  they 
made  a  compilation  of  the  Salic  laws  with  the  assistance 
of  the  sages  of  their  own  nation.**  The  tribe  of  the  Ri- 
puarian  Franks  having  joined  itself  under  Clovis  c  to  that  of  the 
Salians  preserved  its  own  customs;  and  Theodoric,^  King  of 
Austrasia,  ordered  them  to  be  reduced  to  writing.  He  collected 
likewise  the  customs  of  those  Bavarians  and  Germans,  who  were 
dependent  on  his  kingdom.*  For  Germany  having  been  weak- 
ened by  the  migration  of  such  a  multitude  of  people,  the  Franks, 
after  conquering  all  before  them,  made  a  retrograde  march  and 
extended  their  dominion  into  the  forests  of  their  ancestors.  Very 
likely  the  Thuringian  code  was  given  by  the  same  Theodoric, 
since  the  Thuringians  were  also  his  subjects.^  As  the  Frisians 
were  subdued  by  Charles  Martel  and  Pepin,  their  law  cannot  be 
prior  to  those  princes.g  Charlemagne,  the  first  that  reduced  the 
Saxons,  gave  them  the  law  still  extant;  and  we  need  only  read 
these  last  two  codes  to  be  convinced  they  came  from  the  hands 
of  conquerors.  As  soon  as  the  Visigoths,  the  Burgundians,  and 
the  Lombards  had  founded  their  respective  kingdoms,  they  re- 
duced their  laws  to  writing,  not  with  an  intent  of  obliging  the 

o  In    a    private    letter    Montesquieu,  quitted  Germany,  for  at  that  time  they 

speaking  of  this  book,  says  that  it  cost  did  not  understand  the  Latin  tongue, 

him  so  much  labor  that  his  hair  turned  c  See  Gregory  of  Tours, 

gray  on  account  of  it. — Ed.  d  See  the  prologue  to  the  law  of  the 

b  See  the  prologue  to  the   Salic  law.  Bavarians,  and  that  to  the  Salic  law. 

Mr.  Leibnitz  says,  in  his  treatise  of  the  e  Ibid. 

origin  of  the  Franks,  that  this  law  was  f  "  Lex    Angliorum    Werinorum,    hoc 

made  before  the  reign  of  Clovis:  but  it  est  Thuringorum." 

could   not   be   before   the    Franks   had  g  They  did  not  know  how  to  write. 

93 


THE  SPIRIT  OF  LAWS  93 

vanquished  nations  to  conform  to  their  customs,  but  with  a  de- 
sign of  following  them  themselves. 

There  is  an  admirable  simplicity  in  the  Salic  and  Ripuarian 
laws,  as  well  as  in  those  of  the  Alemans,  Bavarians,  Thuringians, 
and  Frisians.  They  breathe  an  original  coarseness  and  a  spirit 
which  no  change  or  corruption  of  manners  had  weakened.  They 
received  but  very  few  alterations,  because  all  those  peoples,  ex- 
cept the  Franks,  remained  in  Germany.  Even  the  Franks  them- 
selves laid  there  the  foundation  of  a  great  part  of  their  empire, 
so  that  they  had  none  but  German  laws.  The  same  cannot  be 
said  of  the  laws  of  the  Visigoths,  of  the  Lombards,  and  Burgun- 
dians;  their  character  considerably  altered  from  the  great  change 
which  happened  in  the  character  of  the  peoples  after  they  had 
settled  in  their  new  habitations. 

The  kingdom  of  the  Burgundians  did  not  last  long  enough  to 
admit  of  great  changes  in  the  laws  of  the  conquering  nation. 
Gundebald  and  Sigismond,  who  collected  their  customs,  were  al- 
most the  last  of  their  kings.  The  laws  of  the  Lombards  received 
additions  rather  than  changes.  The  laws  of  Rotharis  were  fol- 
lowed by  those  of  Grimoaldus,  Luitprandus,  Rachis,  and  Astul- 
phus,  but  did  not  assume  a  new  form.  It  was  not  so  with  the 
laws  of  the  Visigoths;  h  their  kings  new-molded  them,  and  had 
them  also  new-molded  by  the  clergy. 

The  kings,  indeed,  of  the  first  race  struck  out  of  the  Salic  and 
Ripuarian  laws  whatever  was  absolutely  inconsistent  with  Chris- 
tianity, but  left  the  main  part  untouched.*  This  cannot  be  said 
of  the  laws  of  the  Visigoths. 

The  laws  of  the  Burgundians,  and  especially  those  of  the  Visi- 
goths, admitted  of  corporal  punishments;  these  were  not 
tolerated  by  the  Salic  and  Ripuarian  laws ;  /  they  preserved  their 
character  much  better. 

The  Burgundians  and  Visigoths,  whose  provinces  were  greatly 
exposed,  endeavored  to  conciliate  the  affections  of  the  ancient 
inhabitants,  and  to  give  them  the  most  impartial  civil  laws;  k  but 

h  They    were    made    by    Euric,    and  I  See  the  prologue  to  the  law  of  the 

amended      by      Leovigildus.    See      Isi-  Bavarians. 

dorus's  chronicle.     Chaindasuinthus  and  j  We  find  only  a  few  in  Childebert's 

Recessuinthus   reformed   them.      Egigas  decree. 

ordered  the  code  now  extant  to  be  made,  k  See  the  prologue  to  the  code  of  the 

and  commissioned  bishops  for  that  pur-  Burgundians,    and   the    code    itself,    es- 

pose;  nevertheless  the  laws  of  Chainda-  pecially  the  i2th  tit.  sec.  5,  and  tit.  38. 

suinthus   and    Recessuinthus   were   pre-  See   also    Gregory   of   Tours,    book    II. 

served,  as  appears  by  the  Sixth  Council  chap,  xxxiii.,  and  the  code  of  the  Visi- 

of  Toledo.  goths. 


94  MONTESQUIEU 

as  the  kings  of  the  Franks  had  established  their  power,  they  had 
no  such  considerations.* 

The  Saxons,  who  lived  under  the  dominion  of  the  Franks, 
were  of  an  intractable  temper,  and  prone  to  revolt.  Hence  we 
find  in  their  laws  the  severities  of  a  conqueror,™  which  are  not  to 
be  met  with  in  the  other  codes  of  the  laws  of  the  barbarians. 

We  see  the  spirit  of  the  German  laws  in  the  pecuniary  punish- 
ments, and  the  spirit  of  a  conqueror  in  those  of  an  afflictive  nat- 
ure. 

The  crimes  they  commit  in  their  own  country  are  subject  to 
corporal  punishment ;  and  the  spirit  of  the  German  laws  is  fol- 
lowed only  in  the  punishment  of  crimes  committed  beyond  the 
extent  of  their  own  territory. 

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

The  bishops  had  an  immense  authority  at  the  court  of  the  Visi- 
goth kings,  the  most  important  affairs  being  debated  in  councils. 
All  the  maxims,  principles,  and  views  of  the  present  inquisition 
are  owing  to  the  code  of  the  Visigoths ;  and  the  monks  have  only 
copied  against  the  Jews  the  laws  formerly  enacted  by  bishops. 

In  other  respects  the  laws  of  Gundebald  for  the  Burgundians 
seem  pretty  judicious;  and  those  of  Rotharis,  and  of  the  other 
Lombard  princes,  are  still  more  so.  But  the  laws  of  the  Visi- 
goths, those  for  instance  of  Recessuinthus,  Chaindasuinthus,  and 
Egigas  are  puerile,  ridiculous,  and  foolish ;  they  attain  not  their 
end;  they  are  stuffed  with  rhetoric  and  void  of  sense,  frivolous 
in  the  substance  and  bombastic  in  the  style. 

2. — That  the  Laws  of  the  Barbarians  were  all  personal 

It  is  a  distinguishing  character  of  these  laws  of  the  barbarians 
that  they  were  not  confined  to  a  certain  district ;  the  Frank  was 
tried  by  the  law  of  the  Franks,  the  Aleman  by  that  of  the  Ale- 
mans,  the  Burgundian  by  that  of  the  Burgundians,  and  the  Ro- 
man by  the  Roman  law ;  nay,  so  far  were  the  conquerors  in  those 
days  from  reducing  their  laws  to  a  uniform  system  or  body,  that 
they  did  not  even  think  of  becoming  legislators  to  the  people  they 
had  conquered. 

The  original  of  this  I  find  in  the  manners  of  the  Germans. 

I  See  lower  down,  chap.  3.  m  See  chap.  ii.  sees.  8  and  9,  and  chap. 

iv.  sees.  2  and  7. 


THE    SPIRIT    OF   LAWS  95 

These  people  were  parted  asunder  by  marshes,  lakes,  and  forests; 
and  Csesar  observes,**  they  were  fond  of  such  separations.  Their 
dread  of  the  Romans  brought  about  their  reunion ;  and  yet  each 
individual  among  these  mixed  people  was  still  to  be  tried  by  the 
established  customs  of  his  own  nation.  Each  tribe  apart  was 
free  and  independent;  and  when  they  came  to  be  intermixed,  the 
independency  still  continued;  the  country  was  common,  the  gov- 
ernment peculiar;  the  territory  the  same,  and  the  nations  differ- 
ent. The  spirit  of  personal  laws  prevailed  therefore  among  those 
people  before  ever  they  set  out  from  their  own  homes,  and  they 
carried  it  with  them  into  the  conquered  provinces. 

We  find  this  custom  established  in  the  formulas  of  Marculfus,0 
in  the  codes  of  the  laws  of  the  barbarians,  but  chiefly  in  the  law 
of  the  Ripuarians  P  and  the  decrees  of  the  kings  of  the  first  race,? 
whence  the  capitularies  on  that  subject  in  the  second  race  were 
derived.^  The  children  followed  the  laws  of  their  father,-*  the  wife 
that  of  her  husband/  the  widow  came  back  to  her  own  original 
law,"  and  the  freedman  was  under  that  of  his  patron.^  Besides, 
every  man  could  make  choice  of  what  laws  he  pleased;  but  the 
constitution  of  Lotharius  I  w  required  that  this  choice  should  bo~ 
made  public. 

3. — Capital  Difference  between  the  Salic  Laws  and  those  of  the 
Visigoths  and  Burgundians 

We  have  already  observed  that  the  laws  of  the  Burgundians 
and  Visigoths  were  impartial ;  but  it  was  otherwise  with  regard 
to  the  Salic  law,  for  it  established  between  the  Franks  and 
Romans TTFt^riTosTmortifying  distinctions.  When  a  Frank,  a 
barbarian,  or  one  living  under  the  Salic  law  happened  to  be 
killed,  a  composition  of  200  sols  was  to  be  paid  to  his  relatives ;  » 
only  TOO  upon  the  killing  of  a  Roman  proprietor,^  and  no  more 
than  forty-five  for  a  Roman  tributary.  The  composition  for 
the  murder  of  one  of  the  king's  vassals,  if  a  Frank,  was  600 

n  "  De  bello  Gallico,"  lib.  VI.  s  Ibid. 

o  Lib.  I.  formul.  8.  t  Ibid.  lib.  VI.  tit.  7,  cap.  i. 

p  Chap.  xxxi.  u  Ibid.  cap.  ii. 


q  That  of  Clotarius  in  the  year  560,  in  v  Ibid.  lib.  II.  tit.  35,  cap.  ii. 

the   edition   of  the   Capitularies   of   Ba-  w  In  the  law  of  the  Lombards,  lib.  II. 

"  asius,  vol.  i.  art.  4,  ib.  "  in  fine."  tit.  57. 

r  Capitularies  added  to  the  law  of  the  x  Sajic  law,  tit.  44,  sec.  i. 

)i  i 
tit.  44,  sec.  15. 


lusius,  vol.  i.  art.  4,  ib.  "  in  fine."  tit.  57. 

r  Capitularies  added  to  the  law  of  the  x  Salic  „_  ^, 

Lombards,  lib.  I.  tit.  25,  cap.  Ixxi.  lib.  ^  "  Qui  res  in  pago  ubi  remanet  pro- 

II.  tit.  41,  cap.  vii.  and  tit.  56,  cap.  i.  prias  nabet."— Salic  law,  tit 


and  ii. 


96  MONTESQUIEU 

sols ;  s  if  a  Roman,  though  the  king's  guest,<*  only  300.^  The 
Salic  law  made  therefore  a  cruel  distinction  between  the  Frank 
and  Roman  lord,  and  the  Frank  and  Roman  commoner. 

Further,  if  a  number  of  people  were  got  together  to  assault  a 
Frank  in  his  house/  and  he  happened  to  be  killed,  the  Salic  law 
ordained  a  composition  of  600  sols ;  but  if  a  Roman  or  a  f reed- 
man  was  assaulted,  only  one-half  that  composition.^  By  the 
same  law/  if  a  Roman  put  a  Frank  in  irons,  he  was  liable  to  a 
composition  of  30  sols;  but  if  a  Frank  had  thus  used  a  Roman, 
he  paid  only  15.  A  Frank,  stripped  by  a  Roman,  was  entitled  to 
the  composition  of  62^2  sols,  and  a  Roman  stripped  by  a  Frank 
received  only  30.  Such  unequal  treatment  must  needs  have  been 
very  grievous  to  a  Roman. 

And  yet  a  celebrated  author  t  forms  a  system  of  the  establish- 
ment of  the  Franks  in  Gaul,  on  a  supposition  that  they  were  the 
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  !g  The  Franks,  the 
friends  of  the  Romans,  they  who,  after  subduing  them  by  their 
arms,  oppressed  them  in  cold  blood  by  their  laws!  They  were 
exactly  the  friends  of  the  Romans  as  the  Tartars  who  conquered 
China  were  the  friends  of  the  Chinese. 

If  some  Catholic  bishops  thought  fit  to  make  use  of  the  Franks 
in  destroying  the  Arian  kings,  does  it  follow  that  they  had  a  de- 
sire of  living  under  those  barbarous  people?  And  can  we  hence 
conclude  that  the  Franks  had  any  particular  regard  for  the  Ro- 
mans? I  should  draw  quite  different  consequences;  the  less  the 
Franks  had  to  fear  from  the  Romans,  the  less  indulgence  they 
showed  them. 

The  Abbe  du  Bos  has  consulted  but  indifferent  authorities  for 
his  history,  such  as  poets  and  orators ;  works  of  parade  and  os- 
tentation are  improper  foundations  for  building  systems. 

z  "  Qui  in  truste  dominica  est."— Ibid.  c  Salic  law,  tit.  45. 

tit.  41,  sec.  4.  d  Lidus    whose    condition    was    better 

a  "  Si    Romanus   homo    conviva  regis  than  that  of  a  bondsman.— Law  of  the 

fuerit." — Ibid.  sec.  6.  Alemans,  chap.  xcv. 

b  The  principal   Romans  followed  the  e  Tit.  35,  sees.  3  and  4. 

court,  as  may  be  seen  by  the  lives  of  /The  Abbe  du  Bos. 

several   bishops,    who    were   there    edu-  g  Witness    the    expedition    of    Arbo- 

cated;  there  were  hardly  any  but  Ro-  gastes,  in   Gregory  of  Tours,    "Hist." 

mans  that  knew  how  to  write.  lib.  II. 


THE   SPIRIT   OF   LAWS  97 

4. — In  what  manner  the  Roman  Law  came  to  be  lost  in  the 
Country  subject  to  the  Franks,  and  preserved  in  that  subject 
to  the  Goths  and  Burgundians 

What  has  bee,*i\  a&ove  said  will  throw  some  light  upon  other 
things,  whicty  -have  hitherto  been  involved  in  great  obscurity. 

The  cot^try  at  this  day  called  France  was  under  the  first  race 
governed  by  the  Roman  law,  or  the  Theodosian  code,  and  by  the 
different  laws  of  the  barbarians,/*  who  settled  in  those  parts. 

Ill  the  country  subject  to  the  Franks  the  Salic  law  was  estab- 
lished for  the  Franks,  and  the  Theodosian  code  * for  the  Romans. 
In  that  subject  to  the  Visigoths,  a  compilation  of  the  Theodosian 
code,  made  by  order  of  Alaric,/  regulated  disputes  among  the 
Romans;  and  the  national  customs,  which  Euric  caused  to  be 
reduced  to  writing,*?  determined  those  among  the  Visigoths. 
But  how  comes  it,  some  will  say,  that  the  Salic  laws  gained  al- 
most a  general  authority  in  the  country  of  the  Franks,  and  the 
Roman  law  gradually  declined ;  whilst  in  the  jurisdiction  of  the 
Visigoths  the  Roman  law  spread  itself,  and  obtained  at  last  a  gen- 
eral sway? 

My  answer  is,  that  the  Roman  law  came  to  be  disused  among 
the  Franks  because  of  the  great  advantages  accruing  from  being 
a  Frank,  a  barbarian,/  or  a  person  living  under  the  Salic  law; 
everyone,  in  that  case,  readily  quitting  the  Roman  to  live  under 
the  Salic  law.  The  clergy  alone  retained  it,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  shall 
show  in  another  place.  Now  particular  laws  «  allowed  the  clergy 
as  favorable  compositions  as  those  of  the  Franks,  for  which  rea- 
son they  retained  the  Roman  law.  This  law  brought  no  hard- 

h  The  Franks,  the  Visigoths,  and  Bur-  on  this  head  pronounced  by  Du  Cange, 

gundians.  under  the  words  "  Lex  Romana." 

i  It  was  finished  in  438.  n  See   the    Capitularies   added   to   the 

/  The   20th  year  of  the  reign  of  this  Salic  law  in  L.indembrock,   at  the  end 

prince,  and  published  two  years  after  by  of  that  law,  and  the  different  codes  of 

Anian,  as  appears  from  the  preface  to  the  laws   of  the  barbarians   concerning 

that  code.  the  privileges  of  ecclesiastics  in  this  re- 

k  The  year  504,  of  the  Spanish  era,  the  spect.     See   also   the   letter   of    Charle- 

"  Chronicle  of  Isidorus."  magne  to  his  son  Pepin,  King  of  Italy, 

/ "  Francum,  aut  Barbarum,  aut  homi-  in  the  year  807,   in  the  edition  of  Ba- 

nem  qui  Salica  lege  vivit." — Salic  law,  luzius,  torn.  i.  462,  where  it  is  said,  that 

tit.  44,  sec.  i.  an   ecclesiastic    should   receive   a   triple 

m  "  According  to  the  Roman  law  un-  compensation:   and   the   "Collection  of 

der  which  the  church  lives,"  as  is  said  the  Capitularies,"  lib.   V.  art.  302,  torn, 

in  the  law  of  the  Ripuarians,  tit.  58,  sec.  i.,  edition  of  Baluzius. 
«.     See  also  the  numberless  authorities 

VOL.  II  —7 


1) 


98  MONTESQUIEU 

ships  upon  them ;  and  in  other  respects  it  was  properest  for  them, 
as  it  was  the  work  of  Christian  emperors. 

On  the  other  hand,  in  the  patrimony  of  the  Visigoths,  as  the 
Visigoth  law  o  gave  no  civil  advantages  to  the  Visigoths  over  the 
Romans,  the  latter  had  no  reason  to  discontinue  living  under 
their  own  law  in  order  to  embrace  another.  Titty  retained  there- 
fore their  own  laws,  without  adopting  those  of  the  Visigoths. 

This  is  still  further  confirmed  in  proportion  as  we  proceed  in 
our  inquiry.  The  law  of  Gundebald  was  extremely  impartial,  not 
favoring  the  Burgundians  more  than  the  Romans.  It  appears  by 
the  preamble  to  that  law  that  it  was  made  for  the  Burgundians, 
and  to  regulate  the  disputes  which  might  arise  between  them  and 
the  Romans;  and  in  the  latter  case  the  judges  were  equally  di- 
vided of  a  side.  This  was  necessary  for  particular  reasons, 
drawn  from  the  political  regulations  of  those  times./'  The  Ro- 
man law  was  continued  in  Burgundy,  in  order  to  regulate  the  dis- 
putes of  Romans  among  themselves.  The  latter  had  no  induce- 
ment to  quit  their  own  law,  as  in  the  country  of  the  Franks;  and 
rather  as  the  Salic  law  was  not  established  in  Burgundy,  as  ap- 
pears by  the  famous  letter  which  Agobard  wrote  to  Louis  the 
Pious. 

Agobard  q  desired  that  prince  to  establish  the  Salic  law  in  Bur- 
gundy; consequently  it  had  not  been  established  there  at  that 
time.  Thus  the  Roman  law  did,  and  still  does  subsist  in  so  many 
provinces,  which  formerly  depended  on  this  kingdom. 

The  Roman  and  Gothic  laws  continued  likewise  in  the  country 
of  the  establishment  of  the  Goths,  where  the  Salic  law  was  never 
received.  When  Pepin  and  Charles  Martel  expelled  the  Sara- 
cens, the  towns  and  provinces  which  submitted  to  these  princes 
petitioned  for  a  continuance  of  their  own  laws  and  obtained  it;  r 
this,  in  spite  of  the  usages  of  those  times,  when  all  laws  were  per- 
sonal, soon  made  the  Roman  law  to  be  considered  as  a  real  and 
territorial  law  in  those  countries. 

This  appears  by  the  edict  of  Charles  the  Bald,  given  at  Pistes 

o  See  that  law.  Pippino  subjicitur.     And  a  chronicle  of 

p  Of    this    I    shall    speak    in    another  the  year  759,  produced  by  Catel,  "  Hist, 

place,  book  XXX.  chaps.  6,  7,  8,  and  9.  of  Languedoc."     And  the  uncertain  au- 

q  Agob.   "  Opera."  thor  of  the  "  Life  of  Louis  the  Debon- 

r  See    Gervaise    de    Tilbury,    in    Du-  naire,"  upon  the  demand  made  by  the 

chesne's  "  Collection,"  torn.   Hi.  p.  366.  people  of   Septimania,   at  the  assembly 

Facta  pactipne  cum  Francis,  quod  illic  in    Carisiaco,    in    Duchesne's    "  Colleo 

Gothi  patriis  legibus,   moribus   paternis  tion,"  torn.  ii.  p.  316. 
vivant.     Et   sic    Narbonensis   provincia 


THE   SPIRIT   OF   LAWS  99 

in  the  year  864,  which  distinguishes  the  countries  where  causes 
were  decided  by  the  Roman  law  from  where  it  was  otherwise.* 

The  edict  of  Pistes  shows  two  things;  one,  that  there  were 
countries  where  causes  were  decided  by  the  Roman  law,  and 
others  where  they  were  not;  and  the  other,  that  those  countries 
where  the  Roman  law  obtained  were  precisely  the  same  where  it 
is  still  followed  at  this  very  day, as  appears  by  the  said  edict:  t  thus 
the  distinction  of  the  provinces  of  France  under  custom  and  those 
under  written  law  was  already  established  at  the  time  of  the  edict 
of  Pistes. 

I  have  observed,  that  in  the  beginning  of  the  monarchy  all  laws 
were  personal;  and  thus  when  the  edict  of  Pistes  distinguishes 
the  countries  of  the  Roman  law  from  those  which  were  otherwise, 
the  meaning  is,  that  in  countries  which  were  not  of  the  Roman 
law,  such  a  multitude  of  people  had  chosen  to  live  under  some 
or  other  of  the  laws  of  the  barbarians  that  there  were  scarcely 
any  who  would  be  subject  to  the  Roman  law;  and  that  in  the 
countries  of  the  Roman  law  there  were  few  who  would  choose  to 
live  under  the  laws  of  the  barbarians. 

I  am  not  ignorant  that  what  is  here  advanced  will  be  reckoned 
new;  but  if  the  things  which  I  assert  be  true,  surely  they  are 
very  ancient.  After  all,  what  great  matter  is  it,  whether  they 
come  from  me,  from  the  Valesiuses,  or  from  the  Bignons? 

5. — The  same  Subject  continued 

The  law  of  Gundebald  subsisted  a  long  time  among  the  Bur- 
gundians,  in  conjunction  with  the  Roman  law;  it  was  still  in  use 
under  Louis  the  Pious,  as  Agobard's  letter  plainly  evinces.  In 
like  manner,  though  the  edict  of  Pistes  calls  the  country  occupied 
by  the  Visigoths  the  country  of  the  Roman  law,  yet  the  law  of  the 
Visigoths  was  always  in  force  there;  as  appears  by  the  synod  of 
Troyes  held  under  Louis  the  Stammerer,  in  the  year  878,  that  is, 
fourteen  years  after  the  edict  of  Pistes. 

In  process  of  time  the  Gothic  and  Burgundian  laws  fell  into 
disuse  even  in  their  own  country,  which  was  owing  to  those  gen- 
eral causes  that  everywhere  suppressed  the  personal  laws  of  the 
barbarians. 

$  "  In  ilia  terra  in  qua  judicia  secun-  /  See  art.  12  and  16  of  the  **  Edict  of 

dum  legem  Romanam  terminantur,  se-       Pistes,"  "  in  Cavilono,"  "  in  Narbona," 
cundum   ipsam   legem   judicetur;    et   in        etc. 
ilia   terra   in   qua,       etc.,    art     16.    See 
also  art.  20. 


ioo  MONTESQUIEU 

6. — How  the  Roman  Law  kept  its  Ground  in  the  Demesne 
of  the  Lombards 

The  facts  all  coincide  with  my  principles.  The  law  of  the 
Lombards  was  impartial,  and  the  Romans  were  under  no  temp- 
tation to  quit  their  own  for  it.  The  motive  which  prevailed  with 
the  Romans  under  the  Franks  to  make  choice  of  the  Salic  law  did 
not  take  place  in  Italy;  hence  the  Roman  law  maintained  itself 
there,  together  with  that  of  the  Lombards. 

It  even  fell  out,  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 
part  of  the  cities  formed  themselves  into  republics,  and  the  no- 
bility 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 
institutions  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  those 
who  followed  the  institutions  of  the  Lombards  must  have  daily 
diminished. 

Besides,  the  institutions  of  the  Lombards  had  not  that  extent, 
that  majesty  of  the  Roman  law,  by  which  Italy  was  reminded  of 
her  universal  dominion.  The  institutions  of  the  Lombards  and 
the  Roman  law  could  be  then  of  no  other  use  than  to  furnish  out 
statutes  for  those  cities  that  were  erected  into  republics.  Now 
which  could  better  furnish  them,  the  institutions  of  the  Lombards 
that  determined  on  some  particular  cases,  or  the  Roman  law 
which  embraced  them  all? 

7. — How  the  Roman  Law  came  to  be  lost  in  Spain 

Things  happened  otherwise  in  Spain.  The  law  of  the  Visi- 
goths prevailed,  and  the  Roman  law  was  lost.  Chaindasuin- 
thus^  and  Recessuinthus  proscribed  the  Roman  laws,w  and 
even  forbade  citing  them  in  their  courts  of  judicature.  Reces- 
suinthus was  likewise  author  of  the  law  which  took  off  the  pro- 

«  See  what  Machiavel  says  of  the  ruin  w  We  will  no  longer  be  harassed  either 

of  the  ancient  nobility  of  Florence.  by  foreign  or  by  the  Roman  laws.— Law 

v  He  began  to  reign  in  the  year  642.  of  the  Visigoths,  lib.  II.  tit.   i,  sees.  9 

and  10. 


THE    SPIRIT    OF   LAWS  101 

hibition  of  marriage  between  the  Goths  and  Romans.*  It  is 
evident  that  these  two  laws  had  the  same  spirit;  this  king 
wanted  to  remove  the  principal  causes  of  separation  which  sub- 
sisted between  the  Goths  and  the  Romans.  Now  it  was  thought 
that  nothing  made  a  wider  separation  than  the  prohibition  of 
intermarriages,  and  the  liberty  of  living  under  different  institu- 
tions. 

But  though  the  kings  of  the  Visigoths  had  proscribed  the 
Roman  law,  it  still  subsisted  in  the  demesnes  they  possessed  in 
South  Gaul.y  These  countries  being  distant  from  the  centre  of 
the  monarchy  lived  in  a  state  of  great  independence.  We  see 
from  the  history  of  Vamba,  who  ascended  the  throne  in  672, 
that  the  natives  of  the  country  had  become  the  prevailing  party.-* 
Hence  the  Roman  law  had  greater  authority  and  the  Gothic 
less.  The  Spanish  laws  neither  suited  their  manners  nor  their 
actual  situation;  the  people  might  likewise  be  obstinately  at- 
tached to  the  Roman  law,  because  they  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  history  of  King  Vamba  calls  these  provinces  the 
brothel  of  the  Jews.  When  the  Saracens  invaded  these  prov- 
inces, it  was  by  invitation;  and  who  could  have  invited  them 
but  the  Jews  or  the  Romans?  The  Goths  were  the  first  that 
were  oppressed,  because  they  were  the  ruling  nation.  We  see 
in  Procopius,  that  during  their  calamities  they  withdrew  out  of 
Narbonne  Gaul  into  Spain.o  Doubtless,  under  this  misfortune, 
they  took  refuge  in  those  provinces  of  Spain  which  still  held 
out;  and  the  number  of  those  who  in  South  Gaul  lived  under 
the  law  of  the  Visigoths  was  thereby  greatly  diminished. 

8. — A  false  Capitulary 

Did  not  that  wretched  compiler  Benedictus  Levita  attempt  to 
transform  this  Visigoth  establishment,  which  prohibited  the  use 

*•  "  Ut   tarn    Gotho    Rotnanam,    quam  Vamba  durst  not  put  to  death  the  rebels 

Romano  Gotham  matrimonio  liceat  soci-  whom   he  had   quelled.     The   author  of 

ari." — Law   of   the    Visigoths,    lib.    III.  the    history    calls    Narbonne    Gaul    the 

tit.   I.  chap.  i.  nursery  of  treason. 
y  See  Liv.  IV.  19  and  26.  a  "Gothi,    qui   cladi    superfuerant,    ex 

z  The  revolt  of  these  provinces  was  a  Gallia  cum  uxoribus  liberisque  egressi, 

general  defection,  as  appears  by  the  sen-  in    Hispaniam    ad    Teudim   jam    palam 

tence    in    the    sequel    of    the    history.  tyrannum    se   receperunt." —    De    Bello 

Paulus  and  his  adherents  were  Romans;  Gothorum,"  lib.  I.  chap.  xiii. 
they  were  even  favored  by  the  bishops. 


102  MONTESQUIEU 

of  the  Roman  law,  into  a  capitulary  b  ascribed  since  to  Charle- 
magne? He  made  of  this  particular  institution  a  general  one,  as 
if  he  intended  to  exterminate  the  Roman  law  throughout  the 
universe. 

9. — In  what  manner  the  Codes  of  Barbarian  Laws  and  the 
Capitularies  came  to  be  lost 

The  Salic,  the  Ripuarian,  Burgundian,  and  Visigoth  laws 
came,  by  degrees,  to  be  disused  among  the  French  in  the  fol- 
lowing manner : 

As  fiefs  became  hereditary,  and  arriere-fids  extended,  many 
usages  were  introduced,  to  which  these  laws  were  no  longer  ap- 
plicable. Their  spirit,  indeed,  was  continued,  which  was,  to  reg- 
ulate most  disputes  by  fines.  But  as  the  value  of  money  was, 
doubtless,  subject  to  change,  the  fines  were  also  changed;  and 
we  see  several  charters,c  where  the  lords  fixed  the  fines,  that 
were  payable  in  their  petty  courts.  Thus  the  spirit  of  the  law 
was  followed,  without  adhering  to  the  law  itself. 

Besides,  as  France  was  divided  into  a  number  of  petty  lord- 
ships, which  acknowledged  rather  a  feudal  than  a  political  de- 
pendence, it  was  very  difficult  for  only  one  law  to  be  authorized. 
And,  indeed,  it  would  be  impossible  to  see  it  observed.  The 
custom  no  longer  prevailed  of  sending  extraordinary  officers  d 
into  the  provinces,  to  inspect  the  administration  of  justice,  and 
political  affairs;  it  appears,  even  by  the  charters,  that  when  new 
fiefs  were  established  our  kings  divested  themselves  of  the  right 
of  sending  those  officers.  Thus,  when  almost  everything  had 
become  a  fief,  these  officers  could  not  be  employed;  there  was 
no  longer  a  common  law  because  no  one  could  enforce  the  ob- 
servance of  it. 

The  Salic,  Burgundian,  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.  In  these  assemblies,  attempts  were  made  to  regu- 
late the  clergy,  a  body  which  formed  itself,  if  I  may  so  speak, 

b  Capitularies,  lib.  VI.  chap,  cclxix.  of  c  M.  de  la  Thaumassiere  has  collected 

the  year  1613,  edition  of  Baluzius,  p.  many  of  them.  See,  for  instance,  chaps, 
1021.  Ixi.,  Ixvi.,  and  others. 

d  "  Missi   Dominici." 


THE  SPIRIT  OF  LAWS 


103 


under  the  conquerors,  and  established  its  privileges.  The  laws 
made  in  these  assemblies  are  what  we  call  the  Capitularies. 
Hence  four  things  ensued  :  the  feudal  laws  were  established  and 
a  great  part  of  the  church  revenues  was  administered  by  those 
laws;  the  clergy  effected  a  wider  separation,  and  neglected  those 
decrees  of  reformation  where  they  themselves  were  not  the  only 
reformers;  e  a  collection  was  made  of  the  canons  of  councils  and 
of  the  decretals  of  popes  ;f  and  these  the  clergy  received,  as 
coming  from  a  purer  source.  Ever  since  the  erection  of  the 
grand  fiefs,  our  kings,  as  we  have  already  observed,  had  no  long- 
er any  deputies  in  the  provinces  to  enforce  the  observance  of 
their  laws;  and  hence  it  is,  that,  under  the  third  race,  we  find  no 
more  mention  made  of  Capitularies. 

10.  —  The  same  Subject  continued 

Several  Capitularies  were  added  to  the  law  of  the  Lombards, 
as  well  as  to  the  Salic  and  Bavarian  laws.  The  reason  of  this 
has  been  a  matter  of  inquiry;  but  it  must  be  sought  for  in  the 
thing  itself.  There  were  several  sorts  of  Capitularies.  Some 
had  relation  to  political  government,  others  to  economical,  most 
of  them  to  ecclesiastical  polity,  and  some  few  to  civil  govern- 
ment. Those  of  the  last  species  were  added  to  the  civil  law,  that 
is,  to  the  personal  laws  of  each  nation;  for  which  reason  it  is 
said  in  the  Capitularies,  that  there  is  nothing  stipulated  therein 
contrary  to  the  Roman  law.g  In  effect,  those  Capitularies  re- 
garding economical,  ecclesiastical,  or  political  government  had 
no  relation  to  that  law;  and  those  concerning  civil  government 
had  reference  onl>  to  the  laws  of  the  barbarous  people,  which 
were  explained,  amended,  enlarged,  or  abridged.  But  the  add- 
ing of  these  Capitularies  to  the  personal  laws  occasioned,  I  im- 
agine, the  negieqt  of  the  very  body  of  the  Capitularies  them- 
selves; in  times  of  ignorance,  the  abridgment  of  a  work  often 
causes  the  loss  of  the  work  itself. 


e  Let  not  the  bishops,  says  Charles 
the  Bald,  in  the  Capitulary  of  844,  art.  8, 
under  pretence  of  the  authority  of  mak- 
ing canons,  oppose  this  constitution,  or 
neglect  the  observance  of  it.  It  seems 
he  already  foresaw  the  fall  thereof. 

/  In  the  collection  of  canons  a  vast 
number  of  the  decretals  of  the  popes 
were  inserted ;  they  were  very  few  in  the 
ancient  collection.  Dionysius  Exiguus 

?ut  a  great  many  into  his;  but  that  of 
sidorus     Mercator     was     stuffed     with 


genuine  and  spurious  decretals.  The  old 
collection  obtained  in  France  till  Char- 
lemagne. This  prince  received  from 
the  hand  of  Pope  Adrian  I  the  collection 
of  Dionysius  Exiguus,  and  caused  it  to 
be  accepted.  The  collection  of  Isidorus 
Mercator  appeared  in  France  about  the 
reign  of  Charlemagne;  people  grew  pas- 
sionately fond  of  it:  to  this  succeeded 
what  we  now  call  "  the  course  of  canon 
law." 
g  See  the  Edict  of  Pistes,  art.  20. 


104  MONTESQUIEU 

ii. — Other  Causes  of  the  Disuse  of  the  Codes  of  Barbarian 
Laws,  as  well  as  of  the  Roman  Law,  and  of  the  Capitularies 

When  the  German  nations  subdued  the  Roman  Empire,  they 
learned  the  use  of  writing;  and,  in  imitation  of  the  Romans, 
they  wrote  down  their  own  usages,  and  digested  them  into 
codes./*  The  unhappy  reigns  which  followed  that  of  Charle- 
magne, the  invasions  of  the  Normans,  and  the  civil  wars, 
plunged  the  conquering  nations  again  into  the  darkness  out 
of  which  they  had  emerged,  so  that  reading  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  oblivion.  The  use  of  writing  was  bet- 
ter preserved  in  Italy,  where  reigned  the  popes  and  the  Greek 
emperors,  and  where  there  were  flourishing  cities,  which  en- 
joyed almost  the  only  commerce  in  those  days.  To  this  neigh- 
borhood of  Italy  it  was  owing,  that  the  Roman  law  was  pre- 
served in  the  provinces  of  Gaul,  formerly  subject  to  the  Goths 
and  Burgundians;  and  so  much  the  more,  as  this  law  was  there 
a  territorial  institution,  and  a  kind  of  privilege.  It  is  probable, 
that  the  disuse  of  the  Visigoth  laws  in  Spain  proceeded  from  the 
want  of  writing,  and,  by  the  loss  of  so  many  laws,  customs  were 
everywhere  established. 

Personal  laws  fell  to  the  ground.  Compositions,  and  what 
they  call  Fredaj  were  regulated  more  by  custom  than  by  the 
text  of  these  laws.  Thus,  as  in  the  establishment  of  the  monar- 
chy, they  had  passed  from  German  customs  to  written  laws; 
some  ages  after,  they  came  back  from  written  laws  to  unwritten 
customs. 

12. — Of  local  Customs.    Revolution  of  the  Laws  of  barbarous 
Nations,  as  well  as  of  the  Roman  Law 

By  several  memorials  it  appears,  that  there  were  local  cus- 
toms, as  early  as  the  first  and  second  race.  We  find  mention 
made  of  the  "  custom  of  the  place,"  ;  of  the  "  ancient  usage,"  k 

ft  This  is  expressly  set  down  in  some  such  were  the  severe  laws  against  the 

preambles  to  these  codes:  we  even  find  Saxons. 

in  the  laws  of  the  Saxons  and  Frisians  »  Of  this  I  shall  speak  elsewhere  (chap, 

different   regulations,    according   to   the  14,  book  XXX.). 

different  districts.    To  these  usages  were  ;  Preface  to  Marculfus's  "  Formulae." 

added  some  particular  regulations  suit-  k  Law  of  the  Lombards,  book  II.  tit. 

able  to  the  exigency  of  circumstances;  58,  sec.  3. 


THE  SPIRIT  OF  LAWS  105 

of  "  custom,"  /  of  "  laws,"  m  and  of  "  customs."  It  has  been  the 
opinion  of  some  authors,  that  what  went  by  the  name  of  customs 
were  the  laws  of  the  barbarous  nations,  and  what  had  the  ap- 
pellation of  law  were  the  Roman  institutes.  This  cannot  pos- 
sibly be.  King  Pepin  ordained,"  that  wherever  there  should 
happen  to  be  no  law,  custom  should  be  complied  with;  but  that 
it  should  never  be  preferred  to  the  law.  Now,  to  pretend  that 
the  Roman  law  was  preferred  to  the  codes  of  the  laws  of  the 
barbarians  is  subverting  all  memorials  of  antiquity,  and  espe- 
cially those  codes  of  barbarian  laws,  which  constantly  affirm 
the  contrary. 

So  far  were  the  laws  of  the  barbarous  nations  from  being 
those  customs,  that  it  was  these  very  laws,  as  personal  institu- 
tions, which  introduced  them.  The  Salic  law,  for  instance,  was 
a  personal  law;  but  generally,  or  almost  generally,  in  places  in- 
habited by  the  Salian  Franks,  this  Salic  law,  how  personal  so- 
ever, became,  in  respect  to  those  Salian  Franks,  a  territorial  in- 
stitution, and  was  personal  only  in  regard  to  those  Franks  who 
lived  elsewhere.  Now  if  several  Burgundians,  Alemans,  or  even^ 
Romans  should  happen  to  have  frequent  disputes,  in  a  place 
where  the  Salic  law  was  territorial,  they  must  have  been  de- 
termined by  the  laws  of  those  people;  and  a  great  number  of 
decisions  agreeable  to  some  of  those  laws  must  have  introduced 
new  customs  into  the  country.  This  explains  the  constitution 
Df  Pepin.  It  was  natural  that  those  customs  should  affect  even 
the  Franks  who  lived  on  the  spot,  in  cases  not  decided  by  the 
Salic  law;  but  it  was  not  natural  that  they  should  prevail  over 
.he  Salic  law  itself. 

Thus  there  were  in  each  place  an  established  law  and  received 
customs  which  served  as  a  supplement  to  that  law  when  they 
did  not  contradict  it. 

They  might  even  happen  to  supply  a  law  that  was  in  no  way 
territorial;  and  to  continue  the  same  example,  if  a  Burgundian 
was  judged  by  a  law  of  his  own  nation  in  a  place  where  the 
Salic  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  according  to  the  custom  of  the  place. 

/  Law  of  the  Lombards,  book  IL  tit.  n  Law  of  the  Lombards,  book  II.  tit 

41,  sec.  6.  4'»  sec.  6. 

m  "  Life  of  St.  Leger. 


jo6  MONTESQUIEU  ' 

In  the  reign  of  King  Pepin,  the  customs  then  established  had 
not  the  same  force  as  the  laws;  but  it  was  not  long  before  the 
laws  gave  way  to  the  customs.  And  as  new  regulations  are 
generally  remedies  that  imply  a  present  evil,  it  may  well  be  im- 
agined that  as  early  as  Pepin's  time,  they  began  to  prefer  the 
customs  to  the  established  laws. 

What  has  been  said  sufficiently  explains  the  manner  in  which 
the  Roman  law  began  so  very  early  to  become  territorial,  as 
may  be  seen  in  the  edict  of  Pistes ;  and  how  the  Gothic  law  con- 
tinued still  in  force,  as  appears  by  the  synod  of  Troyes  above 
mentioned.^  The  Roman  had  become  the  general  personal  law, 
and  the  Gothic  the  particular  personal  law;  consequently  the 
Roman  law  was  territorial.  But  how  came  it,  some  will  ask, 
that  the  personal  laws  of  the  barbarians  fell  everywhere  into  dis- 
use, while  the  Roman  law  was  continued  as  a  territorial  institu- 
tion in  the  Visigoth  and  Burgundian  provinces?  I  answer,  that 
even  the  Roman  law  had  very  nearly  the  same  fate  as  the  other 
personal  institutions;  otherwise  we  would  still  have  the  Theo- 
dosian  code  in  those  provinces  where  the  Roman  law  was  terri- 
torial, whereas  we  have  the  Institutes  of  Justinian.  Those  prov- 
inces retained  scarcely  anything  more  than  the  name  of  the 
country  under  the  Roman,  or  written  law,  than  the  natural  af- 
fection which  people  have  for  their  own  institutions,  especially 
when  they  consider  them  as  privileges,  and  a  few  regulations  of 
the  Roman  law  which  were  not  yet  forgotten.  This  was,  how- 
ever, sufficient  to  produce  such  an  effect,  that  when  Justinian's 
compilation  appeared,  it  was  received  in  the  provinces  of  the 
Gothic  and  Burgundian  demesne  as  a  written  law,  whereas  it 
was  admitted  only  as  written  reason  in  the  ancient  demesne  of 
the  Franks. 

13. — Difference  between  the  Salic  law,  or  that  of  the  Salian 
Franks,  and  that  of  the  Ripuarian  Franks  and  other  bar- 
barous Nations. 

The  Salic  law  did  not  allow  of  the  custom  of  negative  proofs ; 
that  is,  if  a  person  brought  a  demand  or  charge  against  another, 
he  was  obliged  by  the  Salic  law  to  prove  it,  and  it  was  not  suf- 
ficient for  the  second  to  deny  it,  which  is  agreeable  to  the  laws 
of  almost  all  nations. 

o  See  chap.  v. 


THE  SPIRIT  OF  LAWS  107 

The  law  of  the  Ripuarian  Franks  had  quite  a  different  spirit;  p 
it  was  contended  with  negative  proofs,  and  the  person,  against 
whom  a  demand  or  accusation  was  brought,  might  clear  him- 
self, in  most  cases,  by  swearing,  in  conjunction  with  a  certain 
number  of  witnesses,  that  he  had  not  committed  the  crime  laid 
to  his  charge.  The  number  of  witnesses  who  were  obliged  to 
swear  q  increased  in  proportion  to  the  importance  of  the  affair; 
sometimes  it  amounted  to  seventy-two.^  The  laws  of  the  Ale- 
mans,  Bavarians,  Thuringians,  Frisians,  Saxons,  Lombards, 
and  Burgundians  were  formed  on  the  same  plan  as  those  of  the 
Ripuarians. 

I  observed,  that  the  Salic  law  did  not  allow  of  negative  proofs. 
There  was  one  case,  however,  in  which  they  were  allowed:  *  but 
even  then  they  were  not  admitted  alone,  .and  without  the  con- 
currence of  positive  proofs.  The  plaintiff  caused  witnesses  to 
be  heard/  in  order  to  ground  his  action,  the  defendant  produced 
also  witnesses  on  his  side,  and  the  judge  was  to  come  at  the 
truth  by  comparing  those  testimonies."  This  practice  was  vastly 
different  from  that  of  the  Ripuarian,  and  other  barbarous  laws, 
where  it  was  customary  for  the  party  accused  to  clear  himself 
by  swearing  he  was  not  guilty,  and  by  making  his  relatives  also 
swear  that  he  had  told  the  truth.  These  laws  could  be  suitable 
only  to  a  people  remarkable  for  their  natural  simplicity  and 
candor;  we  shall  see  presently  that  the  legislators  were  obliged 
to  take  proper  methods  to  prevent  their  being  abused. 

14. — Another  Difference 

The  Salic  law  did  not  admit  of  the  trial  by  combat;  though 
it  had  been  received  by  the  laws  of  the  Ripuarians  v  and  of  al- 
most all  the  barbarous  nations.^  To  me  it  seems,  that  the  law 
of  combat  was  a  natural  consequence,  and  a  remedy  of  the  law 
which  established  negative  proofs.  When  an  action  was 
brought,  and  it  appeared  that  the  defendant  was  going  to  elude 

p  This   relates   to   what   Tacitus   says,  be  possessed  of  a  greater  degree  of  lib- 

that  the  Germans  had  general  and  par-  erty.     See  tit.  76  of  the  "  Pactus  legis 

ticular  customs.  Salicae." 

q  Law  of  the  Ripuarians,  tits.  6,  7,  8,  t  See   76th    tit.    of  the    "  Pactus   legis 

and  others.  Salicae." 

r  Ibid.  tits,  n,  12,  and  17.  «  According  to  the  practice  now  fol- 

s  It    was    when    an    accusation    was  lowed  in  England. 

brought    against    an    antrustio,    that    is,  v  Tit.  32 ;  tit.  57,   sec.  2 ;  tit.  59,  sec.  4. 

the  king's  vassal,  who  was  supposed  to  w  See  the  following  note. 


io8  MONTESQUIEU 

it  by  an  oath,  what  other  remedy  was  left  to  a  military  man,* 
who  saw  himself  upon  the  point  of  being  confounded,  than  to 
demand  satisfaction  for  the  injury  done  to  him:  and  even  for 
the  attempt  of  perjury?  The  Salic  law,  which  did  not  allow  the 
custom  of  negative  proofs,  neither  admitted  nor  had  any  need 
of  the  trial  by  combat;  but  the  laws  of  the  Ripuarians  y  and  of 
the  other  barbarous  nations  z  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  Gundebald,  King  of  Burgundy,  concerning  this  subject  will 
find  they  are  derived  from  the  very  nature  of  the  thing.0  It  was 
necessary,  according  to  the  language  of  the  barbarian  laws,  to 
rescue  the  oath  out  of  the  hands  of  a  person  who  was  going  to 
abuse  it. 

Among  the  Lombards,  the  law  of  Rotharis  admits  of  cases 
in  which  a  man  who  had  made  his  defence  by  oath  should  not  be 
suffered  to  undergo  the  hardship  of  a  duel.  This  custom  spread 
itself  further:  b  we  shall  presently  see  the  mischiefs  that  arose 
from  it,  and  how  they  were  obliged  to  return  to  the  ancient 
practice. 

15. — A  Reflection 

I  do  not  pretend  to  deny  that  in  the  changes  made  in  the  code 
of  the  barbarian  laws,  in  the  regulations  added  to  that  code,  and 
in  the  body  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.  I  speak  only  of  the  general 
spirit  of  the  laws  of  the  Germans,  of  their  nature  and  origin;  I 
speak  of  the  ancient  customs  of  those  people,  that  were  either 
hinted  at  or  established  by  those  laws ;  and  this  is  the  only  mat- 
ter in  question. 

x  This  spirit  appears  in  the  law  of  the  affairs.     See  also  the  law  of  the  Thurin- 

Ripuarians,  tit.   59,    sec.   4,   and  tit.   67,  gians,  tit.   i,  sec.  31,  tit.  7,  sec.  6,  and 

sec.  5,  and  in  the  Capitulary  of  Louis  tit.  8;  and  the  law  of  the  Alemans,  tit 

the    Debonnaire,    added   to    the    law   of  89;  the  law  of  the  Bavarians,  tit.  8,  chap. 

the  Ripuarians  in  the  year  803,  art.  22.  ii.  sec.  6,  and  chap.  iii.  sec.  i,  and  tit.  9, 

y  See  that  law.  chap.  iv.  sec.  4;  the  law  of  the  Frisians, 

a  The  law  of  the  Frisians,  Lombards,  tit.  2,  sec.  3,  and  tit.  14,  sec.  4;  the  law 

Bavarians,     Saxons,     Thuringians,     and  of  the  Lombards,  book  I.  tit.  32,  sec.  3, 

Burgundians.  and  tit.  35,  sec.  i,  and  book  II.  tit.  35, 

^     a  In  the  law  of  the  Burgundians,  tit.  sec.  2. 

8,    sees,    i    and    2,    on    criminal    affairs;  b  See  chap,  xviii.,  towards  the  end. 
/  and  tit.  45,  which  extends  also  to   civil 


THE  SPIRIT  OF  LAWS  109 

16. — Of  the  Ordeal  or  Trial  by  boiling  Water,  established  by 
the  Salic  Law 

The  Salic  law  c  allowed  of  the  ordeal,  or  trial  by  boiling  water; 
and  as  this  trial  was  excessively  cruel,  the  law  found  an  expedi- 
ent to  soften  its  rigor.d  It  permitted  the  person,  who  had  been 
summoned  to  make  the  trial  with  boiling  water,  to  ransom  his 
hand,  with  the  consent  of  the  adverse  party.  The  accuser,  for 
a  particular  sum  determined  by  the  law,  might  be  satisfied  with 
the  oath  of  a  few  witnesses,  declaring  that  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 
permitted  only,  but  did  not  ordain.  The  law  gave  a  particular 
indemnity  to  the  accuser,  who  would  allow  the  accused  to  make 
his  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 
forgive  him  the  injury. 

The  law  contrived  a  middle  course/  that  before  sentence 
passed,  both  parties,  the  one  through  fear  of  a  terrible  trial,  the 
other  for  the  sake  of  a  small  indemnity,  should  terminate  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,  that  the  practice  of  legal  duels  could 
not  be  a  consequence  of  this  particular  regulation  of  the  Salic 
law. 

y$*— Particular  Notions  of  our  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  guilt. 

The  Germans,  who  had  never  been  subdued/  enjoyed  an  ex- 
cessive independence.  Different  families  waged  war  with  each 
other  g  to  obtain  satisfaction  for  murders,  robberies,  or  affronts. 
This  custom  was  moderated  by  subjecting  these  hostilities  to 
rules ;  it  was  ordained  that  they  should  be  no  longer  committed 

c  As  also  some  other  laws  of  the  bar-  g  Velleius    Paterculus,    lib.    II.    chap, 

barians.          d  Tit.  55.        e  Ibid.   tit.  56.  cxviii.,   says  that  the  Germans  decided 

f  This  appears  by  what  Tacitus  says,  all  their  disputes  by  the  sword. 
"  Omnibus  idem  habitus." 


no  MONTESQUIEU 

but  by  the  direction  and  under  the  eye  of  the  magistrate./*  This 
was  far  preferable  to  a  general  license  of  annoying  each  other. 

As  the  Turks  in  their  civil  wars  look  upon  the  first  victory     / 
as  a  decision  of  heaven  in  favor  of  the  victor,  so  the  inhabitants    / 
of  Germany  in  their  private  quarrels  considered  the  event  of  a  / 
combat  as  a  decree  of  Providence,  ever  attentive  to  punish  the  j 
criminal  or  the  usurper.  _'    -..-    „,,    ...    / 

""acitus  informs  us,  that  when  one  German  nation  intended 
to  declare  war  against  another,  they  looked  out  for  a  prisoner 
who  was  to  fight  with  one  of  their  people,  and  by  the  event  they 
judged  of  the  success  of  the  war.  A  nation  who  believed  that 
public  quarrels  could  be  determined  by  a  single  combat  might 
very  well  think  that  it  was  proper  also  for  deciding  the  disputes 
of  individuals. 

Gundebald,  King  of  Burgundy,  gave  the  greatest  sanction  to 
the  custom  of  legal  duels.*  The  reason  he  assigns  for  this  law 
is  mentioned  in  his  edict.  "  It  is,"  says  he,  "  in  order  to  prevent 
our  subjects  from  attesting  by  oath  what  is  uncertain,  and  per- 
juring themselves  about  what  is  certain."  Thus,  while  the 
clergy  declared  that  an  impious  law  which  permitted  combats,; 
the  Burgundian  kings  looked  upon  that  as  a  sacrilegious  law 
which  authorized  the  taking  of  an  oath. 

•"""The  trial  by  combat  had  some  reason  for  it,  founded  on  ex- 
perience. In  a  military  nation,  cowardice  supposes  other  vices; 
it  is  an  argument  of  a  person's  having  deviated  from  the  princi- 
ples of  his  education,  of  his  being  insensible  of  honor,  and  of 
having  refused  to  be  directed  by  those  maxims  which  govern 
other  men ;  it  shows  that  he  neither  fears  their  contempt,  nor 
sets  any  value  upon  their  esteem.  Men  of  any  tolerable  extrac- 
tion seldom  want  either  the  dexterity  requisite  to  co-operate 
with  strength,  or  the  strength  necessary  to  concur  with  courage; 
for  as  they  set  a  value  upon  honor  they  are  practised  in  matters 
without  which  this  honor  cannot  be  obtained.  Besides,  in  a 
military  nation,  where  strength,  courage,  and  prowess  are  es- 
teemed, crimes  really  odious  are  those  which  arise  from  fraud, 
artifice,  and  cunning,  that  is  from  cowardice. 

With  regard  to  the  trial  by  fire,  after  the  party  accused  had 

h  See   the    codes    of   barbarian   laws,  *  Law  of  the  Burgundians,  chap.  xl« 

and,   in  respect   to   less  ancient   times,  ;  See  the  works  of  Agobatd. 

Beaumanoir  on  the  "  Customs  of  Beau- 
voisis." 


THE  SPIRIT  OF  LAWS 


in 


put  his  hand  on  a  hot  iron,  or  in  boiling  water,  they  wrapped  the 
hand  in  a  bag  and  sealed  it  up;  if  after  three  days  there  ap- 
peared no  mark,  he  was  acquitted.  Is  it  not  plain,  that  among 
people  inured  to  the  handling  of  arms,  the  impression  made  on 
a  rough  or  callous  skin  by  the  hot  iron  or  by  boiling  water  could 
not  be  so  great  as  to  be  seen  three  days  afterwards?  And  if 
there  appeared  any  mark  it  showed  that  the  person  who  had 
undergone  the  trial  was  an  effeminate  fellow.  Our  peasants  are 
not  afraid  to  handle  hot  iron  with  their  callous  hands ;  and,  with 
regard  to  the  women,  the  hands  of  those  who  worked  hard 
might  be  very  well  able  to  resist  hot  iron.  The  ladies  did  not 
want  champions  to  defend  their  cause;  and  in  a  nation  where 
there  was  no  luxury,  there  was  no  middle  stated 

By  the  law  of  the  Thuringians  /  a  woman  accused  of  adultery  / 
was  condemned  to  the  trial  by  boiling  water  only  when  there 
was  no  champion  to  defend  her;  and  the  law  of  the  Ripuarians 
admits  of  this  trial  m  only  when  a  person  had  no  witnesses  to  ap-/ 
pear  in  justification.    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  his  honesty  were,  from  thosfe 
very  circumstances,  sufficiently  convicted. 

I  conclude,  therefore,  that  under  the  circumstances  of  time 
in  which  the  trial  by  combat  and  the  trial  by  hot  iron  and  boil- 
ing water  obtained,  there  was  such  an  agreement  between  those 
laws  and  the  manners  of  the  people,  that  the  laws  were  rather 
unjust  in  themselves  than  productive  of  injustice,  that  the  effects 
were  more  innocent  than  the  cause,  that  they  were  more  con- 
trary to  equity  than  prejudicial  to  its  rights,  more  unreasonable 
than  tyrannical. 

18. — In  what  manner  the  Custom  of  judicial  Combats  gained 

Ground 

From  Agobard's  letter  to  Louis  the  Debonnaire  it  might 
be  inferred  that  the  custom  of  judicial  combats  was  not  estab- 
lished among  the  Franks;  for  having  represented  to  that  prince 
the  abuses  of  the  law  of  Gundebald,  he  desires  that  private  dis- 
putes should  be  decided  in  Burgundy  by  the  law  of  the  Franks.** 


k  See  Beaumanoir  on  the  "  Custom  ox 
Beauvoisis,"  chap.  Ixi.  See  also  the  law 
of  the  Angli,  chap,  xiv.,  where  the  trial 
by  boiling  water  is  only  a  subsidiary 
proof. 


/Tit.  14. 

m  Chap.  xxxi.  sec.  5. 
n  "  Si  placeret  Domino  nostro  ut  eo§ 
transferret  ad  legem  Francorura." 


II2  MONTESQUIEU 

But  as  it  is  well  known  from  other  quarters  that  the  trial  by  com- 
bat prevailed  at  that  time  in  France,  this  has  been  the  cause  of 
some  perplexity.  However,  the  difficulty  may  be  solved  by  what 
I  have  said;  the  law  of  the  Salian  Franks  did  not  allow  of  this 
kind  of  trial  and  that  of  the  Ripuarian  Franks  did.0 

But,  notwithstanding  the  clamors  of  the  clergy,  the  custom  of 
judicial  combats  gained  ground  continually  in  France;  and  I 
shall  presently  make  it  appear,  that  the  clergy  themselves  were  in 
a  great  measure  the  occasion  of  it. 

It  is  the  law  of  the  Lombards  that  furnishes  us  with  this 
proof.  "  There  has  been  long  since  a  detestable  custom  intro- 
duced," says  the  preamble  to  the  constitution  of  Otho  II :  P 
"  this  is,  that  if  the  title  to  an  estate  was  said  to  be  false,  the  per- 
son who  claimed  under  that  title  made  oath  upon  the  Gospel 
that  it  was  genuine;  and  without  any  preceding  judgment  he 
took  possession  of  the  estate;  so  that  they  who  would  perjure 
themselves  were  sure  of  gaining  their  point."  The  Emperor 
Otho  I  having  caused  himself  to  be  crowned  at  Rome  Q.  at  the 
very  time  that  a  Council  was  there  under  Pope  John  XII  all 
the  lords  of  Italy  represented  to  that  prince  the  necessity  of  en- 
acting a  law  to  reform  this  horrible  abuse.*"  The  Pope  and  the 
Emperor  were  of  opinion  that  the  affair  should  be  referred  to 
the  Council  which  was  to  be  shortly  held  at  Ravenna.-*  There 
the  lords  made  the  same  demands,  and  redoubled  their  com- 
plaints ;  but  the  affair  was  put  off  once  more  under  pretence  of 
the  absence  of  particular  persons.  When  Otho  II  and  Conrad, 
King  of  Burgundy,  arrived  in  Italy/  they  had  a  conference  at 
Verona  «  with  the  Italian  lords ;  v  and  at  their  repeated  solicita- 
tions, the  Emperor,  with  their  unanimous  consent,  made  a  law, 
that  whenever  there  happened  any  disputes  about  inheritances 
while  one  of  the  parties  insisted  upon  the  legality  of  his  title  and 
the  other  maintained  its  being  false,  the  affair  should  be  decided 
by  combat;  that  the  same  rule  should  be  observed  in  contests 
relating  to  fiefs;  and  that  the  clergy  should  be  subject  to  the 

o  See  this  law,  tit.  59,  sec.  4,  and  tit.  s  It  was  held  in  the  year  967,  in  the 

67,  sec.  5.  presence  of  Pope  John  Alii  and  of  the 

p  Law  of  the  Lombards,  book  II.  tit.  Emperor  Otho  I. 

55,  chap.  34.  t  Otho  IPs  uncle,  son  to  Rodolphus, 

q  The  year  962.  and  King  of  Transjurian  Burgundy. 

r  "  Ab  Italia?  proceribus  est  proclama-  u  In  the  year  988. 

turn,  ut  ^imperator  sanctus  mutata  lege,  v  "  Cum  in  hoc  ab  omnibus  imperiales 

facinus  indignum   destrueret." — Law  of  aures  pulsarentur." — Law  of  the   Lorn* 

the  Lombards,  book  II.  tit.  55,   chap.  bards,  book  II.  tit  4$,  chap,  xxxiv. 
xxxiv. 


THE  SPIRIT  OF  LAWS  113 

same  law,  but  should  fight  by  their  champions.  Here  we  see, 
that  the  nobility  insisted  on  the  trial  by  combat,  because  of  the 
inconvenience  of  the  proof  introduced  by  the  clergy,  that  not- 
withstanding the  clamors  of  the  nobility,  the  notoriousness  of 
the  abuse  which  called  out  loudly  for  redress,  and  the  authority 
of  Otho  who  came  into  Italy  to  speak  and  act  as  master,  still 
the  clergy  held  out  in  two  Councils ;  in  fine,  that  the  joint  con- 
currence of  the  nobility  and  princes  having  obliged  the  clergy 
to  submit,  the  custom  of  judicial  combats  must  have  been  con- 
sidered as  a  privilege  of  the  nobility,  as  a  barrier  against  injus- 
tice, and  as  a  security  of  property,  and  from  that  very  moment 
this  custom  must  have  gained  ground.  And  this  was  effected  at 
a  time  when  the  power  of  the  emperors  was  great,  and  that  of 
the  popes  inconsiderable;  at  a  time  when  the  Othos  came  to 
revive  the  dignity  of  the  empire  in  Italy. 

I  shall  make  one  reflection  which  will  corroborate  what  has 
been  above  said,  namely,  that  the  institution  of  negative  proofs 
entailed  that  of  judicial  combats.  The  abuse,  complained  of  to 
the  Othos,  was,  that  a  person  who  was  charged  with  having  a 
false  title  to  an  estate,  defended  himself  by  a  negative  proof,  de- 
claring upon  the  Gospels  it  was  not  false.  What  was  done  to  re- 
form the  abuse  of  a  law  which  had  been  mutilated?  The  custom 
of  combat  was  revived. 

I  hastened  to  speak  of  the  constitution  of  Otho  II,  in  order 
to  give  a  clear  idea  of  the  disputes  between  the  clergy  and  the 
laity  of  those  times.  There  had  been  indeed  a  constitution  of 
Lotharius  I  w  of  an  earlier  date,  a  sovereign  who,  upon  the  same 
complaints  and  disputes,  being  desirous  of  securing  the  just  pos- 
session of  property,  had  ordained  that  the  notary  should  make 
oath  that  the  deed  or  title  was  not  forged;  and  if  the  notary 
should  happen  to  die,  the  witnesses  should  be  sworn  who  had 
signed  it.  The  evil,  however,  still  continued,  till  they  were 
obliged  at  length  to  have  recourse  to  the  remedy  above  men- 
tioned. 

Before  that  time  I  find  that,  in  the  general  assemblies,  held  by 
Charlemagne,  the  nation  represented  to  him,*  that  in  the  actual 
state  of  things  it  was  extremely  difficult  for  either  the  accuser 
or  the  accused  to  avoid  perjuring  themselves,  and  that  for  this 

w  In  the  law  of  the  Lombards,  book       Muratori  made  use  of  it  is  attributed  t« 
II.  tit  55,  sec.  33.     In  the  copy  which       the  Emperor  Guido.       x  Ibid.,  sec.  23. 

VOL.  II.— 8 


n4  MONTESQUIEU 

reason  it  was  much  better  to  revive  the  judicial  combat,  which 
was  accordingly  done. 

The  usage  of  judicial  combats  gained  ground  among  the  Bur- 
gundians,  and  that  of  an  oath  was  limited.  Theodoric,  King  of 
Italy,  suppressed  the  single  combat  among  the  Ostrogoths ;  y 
and  the  laws  of  Chaindasuinthus  and  Recessuinthus  seemed  as  if 
they  would  abolish  the  very  idea  of  it.  But  these  laws  were  so 
little  respected  in  Narbonne  Gaul,  that  they  looked  upon  the  legal 
duel  as  a  privilege  of  the  Goths.s 

The  Lombards  who  conquered  Italy  after  the  Ostrogoths  had 
been  destroyed  by  the  Greeks,  introduced  the  custom  of  judicial 
combat  into  that  country,  but  their  first  laws  gave  a  check  to  it.* 
Charlemagne,^  Louis  the  Debonnaire,  and  the  Othos  made 
divers  general  constitutions,  which  we  find  inserted  in  the  laws 
of  the  Lombards  and  added  to  the  Salic  laws,  whereby  the  prac- 
tice of  legal  duels,  at  first  in  criminal,  and  afterwards  in  civil 
cases,  obtained  a  greater  extent.  They  knew  not  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  to  see  that  in  all 
secular  affairs  people  were  obliged  to  have  recourse  to  the  altar,& 
and,  on  the  other,  a  haughty  nobility  were  fond  of  maintaining 
their  rights  by  the  sword. 

I  would  not  have  it  inferred  that  it  was  the  clergy  who  intro- 
duced the  custom  so  much  complained  of  by  the  nobility.  This 
custom  was  derived  from  the  spirit  of  the  barbarian  laws,  and 
from  the  establishment  of  negative  proofs.  But  a  practice  that 
contributed  to  the  impunity  of  such  a  number  of  criminals,  hav- 
ing given  some  people  reason  to  think  it  was  proper  to  make  use 
of  the  sanctity  of  the  churches  in  order  to  strike  terror  into  the 
guilty,  and  to  intimidate  perjurers,  the  clergy  maintained  this 

y  Cassiod,  Hi.,  let.  23  and  24.  Rotharis;  and  in  sec.  15,  that  of  Luit- 

s "  In    palatio    quoque,     Bera    comes  prandus. 

Barcinonensis,  cum  impeteretur  a  quo-  a  Ibid,  book  II.  tit.  55,  sec.  23. 

dam  vocato  Sunila,  et  infidelitatis  argue-  b  The  judicial  oaths  were  made  at  that 

retur,     cum     eodem     secundum     legem  time   in  the   churches,   and   during  the 

propriam,    utpote   quia   uterque   Gothus  first  race  of  our  kings  there  was  a  chapel 

erat,   equestri  praeho  congressus  est  et  set   apart    in    the   royal    palace   for   the 

victus."— The  anonymous  author  of  the  affairs    that    were    to    be   thus    decided. 

**  Life  of  Louis  the  Debonnaire."  See  the  formulas  of  Marculfus,  bonk  I. 

*  See    in    the   law   of   the    Lombards,  chap,    xxxviii.     The  laws  of  the   Ripu- 

book   I.   tit.   4  and  tit.   9,    sec.   23,   and  arians,  tit.  59,  sec.  4,  tit.  65,  sec.  5.    The 

book  II.  tit.  35,  sees.  4  and  5,  and  tit.  history  of   Gregory  of  Tours;   and  the 

55,  sees,  i,  2,  and  3.    The  regulations  of  Capitulary  of  the  year  803,  added  to  the 

Salic  law. 


THE  SPIRIT  OF  LAWS  115 

usage  and  the  practice  which  attended  it:  for  in  other  respects 
they  were  absolutely  averse  to  negative  proofs.  We  find  in 
Beaumanoir  c  that  this  kind  of  proof  was  never  allowed  in  ec- 
clesiastic courts,  which  contributed  greatly  without  doubt  to  its 
suppression,  and  to  weaken  in  this  respect  the  regulation  of  the 
codes  of  the  barbarian  laws. 

This  will  convince  us  more  strongly  of  the  connection  between 
the  usage  of  negative  proofs  and  that  of  judicial  combats,  of 
which  I  have  said  so  much.  The  lay  tribunals  admitted  of  both, 
and  both  were  rejected  by  the  ecclesiastic  courts. 

In  choosing  the  trial  by  duel  the  nation  followed  its  military 
spirit;  for  while  this  was  established  as  a  divine  decision,  the 
trials  by  the  cross,  by  cold  or  boiling  waters,  which  had  been  also 
regarded  in  the  same  lights,  were  abolished. 

Charlemagne  ordained,  that  if  any  difference  should  arise  be- 
tween his  children,  it  should  be  terminated  by  the  judgment  of 
the  cross.  Louis  the  Debonnaire,^  limited  this  judgment  to  ec- 
clesiastic affairs ;  his  son  Lotharius  abolished  it  in  all  cases ;  nay, 
he  suppressed  even  the  trial  by  cold  water.* 

I  do  not  pretend  to  say,  that  at  a  time  when  so  few  usages 
were  universally  received,  these  trials  were  not  revived  in  some 
churches,  especially  as  they  are  mentioned  in  a  charter  of  Philip 
Augustus/  but  I  affirm  that  they  were  very  seldom  practised. 
Beaumanoir,^  who  lived  at  the  time  of  St.  Louis  and  a  little  after, 
enumerating  the  different  kinds  of  trial,  mentions  that  of  judicial 
combat,  but  not  a  word  of  the  others. 


19. — A  new  Reason  of  the  Disuse  of  the  Salic  and  Roman  Laws, 
as  also  of  the  Capitularies 

I  have  already  mentioned  the  reasons  that  had  destroyed  the 
authority  of  the  Salic  and  Roman  laws,  as  also  of  the  Capitu- 
laries; here  I  shall  add,  that  the  principal  cause  was  the  great 
extension  given  to  judiciary  combats. 

As  the  Salic  laws  did  not  admit  of  this  custom,  they  became  in 
some  measure  useless,  and  fell  into  oblivion.  In  like  manner  the 

c  Chap,  xxxix.  p.  212.  of  the  Lombards,  book  II.  tit  55,  sea 

d  We   find   his   Constitutions   inserted  31. 

in  the  law  of  the  Lombards  and  at  the  f  In  the  year  1200. 

end  of  the  Salic  laws.  g "  Custom     of     Beauvoisis,"     chap* 

e  In  a  constitution  inserted  in  the  law  xxxix. 


n6  MONTESQUIEU 

Roman  laws,  which  also  rejected  this  custom,  were  laid  aside; 
their  whole  attention  was  then  taken  up  in  establishing  the  law 
of  judicial  combats,  and  in  forming  a  proper  digest  of  the  several 
cases  that  might  happen  on  those  occasions.  The  regulations  of 
the  Capitularies  became  likewise  of  no  manner  of  service.  Thus 
it  is  that  such  a  number  of  laws  lost  all  their  authority,  without 
our  being  able  to  tell  the  precise  time  in  which  it  was  lost;  they 
fell  into  oblivion,  and  we  cannot  find  any  others  that  were  sub- 
stituted in  their  place. 

Such  a  nation  had  no  need  of  written  laws;  hence  its  written 
laws  very  easily  fall  into  disuse. 

If  there  happened  to  be  any  disputes  between  two  parties,  they 
had  only  to  order  a  single  combat.  For  this  no  great  knowledge 
or  abilities  were  requisite. 

All  civil  and  criminal  actions  are  reduced  to  facts.  It  is  upon 
these  facts  they  fought;  and  not  only  the  substance  of  the  affair, 
but  likewise  the  incidents  and  imparlances  were  decided  by  com- 
bat, as  Beaumanoir  observes,  who  produces  several  instances.* 

I  find  that  towards  the  commencement  of  the  third  race,  the 
jurisprudence  of  those  times  related  entirely  to  precedents,  every- 
thing was  regulated  by  the  point  of  honor.  If  the  judge  was  not 
obeyed,  he  insisted  upon  satisfaction  from  the  person  that  con- 
temned his  authority.  At  Bourges  if  the  provost  had  summoned 
a  person  and  he  refused  to  come,  his  way  of  proceeding  was  to 
tell  him,  "  I  sent  for  thee,  and  thou  didst  not  think  it  worth  thy 
while  to  come ;  I  demand  therefore  satisfaction  for  this  thy  con- 
tempt." Upon  which  they  fought.*  Louis  the  Fat  reformed 
this  custom./ 

The  custom  of  legal  duels  prevailed  at  Orleans,  even  in  all 
demands  of  debt.fc  Louis  the  Young,  declared  that  this  custom 
should  take  place  only  when  the  demand  exceeded  five  sous. 
This  ordinance  was  a  local  law;  for  in  St.  Louis's  time  it  was 
sufficient  that  the  value  was  more  than  twelve  deniers.f  Beau- 
manoir *n  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 

h  Chap.  Ixi.  pp.  309,  310.  k  Charter  of  Louis  the  Young,  in  1168, 

i  Charter  of  Louis  the  Fat,  in  the  in  the  Collection  of  Ordinances. 

year    1145,    »»   the    Collection    of    Ordi-  /See  Beaumanoir,  chap.  Ixiii.  p.  325. 

nances.  m  See  the  "  Custom  of  Beauvoisis," 

/  Ibid.  chap,  xxviii.  p.  203. 


THE  SPIRIT  OF  LAWS  117 

that  the  custom  of  judiciary  combat  must  have  prevailed  at  that 
time  to  a  wonderful  extent. 

20. — Origin  of  the  Point  of  Honor 

We  meet  with  inexplicable  enigmas  in  the  codes  of  laws  of 
the  barbarians.  The  law  of  the  Frisians  «  allows  only  half  a  sou 
in  composition  to  a  person  that  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  blows  with  a  stick  to  another  free- 
man, he  paid  three  sous ;  if  he  drew  blood,  he  was  punished  as  if 
he  had  wounded  him  with  steel,  and  he  paid  fifteen  sous:  thus 
the  punishment  was  proportioned  to  the  greatness  of  the  wound. 
The  law  of  the  Lombards  established  different  compositions  for 
one,  two,  three,  four  blows,  and  so  on.o  At  present,  a  single 
blow  is  equivalent  to  a  hundred  thousand. 

The  constitution  of  Charlemagne,  inserted  in  the  law  of  the 
Lombards,  ordains  that  those  who  were  allowed  the  trial  by 
combat  should  fight  with  bastons./>  Perhaps  this  was  out  of  re- 
gard to  the  clergy;  or  probably,  as  the  usage  of  legal  duels 
gained  ground,  they  wanted  to  render  them  less  sanguinary. 
The  Capitulary  of  Louis  the  Debonnaire  allows  the  liberty  of 
choosing  to  fight  either  with  the  sword  or  baston.g  In  process 
of  time  none  but  bondmen  fought  with  the  baston.r 

Here  I  see  the  first  rise  and  formation  of  the  particular  articles 
oJLpur  point  of  honor.  The  accuser  began  by  declaring  in  the 
presence  of  the  judge  that  such  a  person  had  committed  such  an 
action,  and  the  accused  made  answer  that  he  lied,*  upon  which 
the  judge  gave  orders  for  the  duel.  It  became  then  an  established 
rule,  that  whenever  a  person  had  the  lie  given  him,  it  was  incum- 
bent on  him  to  fight. 

Upon  a  man's  declaring  that  h£_^ojild_fightjf  he  could  not 
afterwards  depart  from  his  word ;  if  he  did,  he  was  condemned  to 
a  penalty.  Hence  this  rule  ensued,  that  whenever  a  person  had 
engaged  his  word,  honor  forbade  him  to  recall  it. 

Gentlemen  fought  one  another  on  horseback,  and  armed  at 
all  points ;«  villeins  fought  on  foot  and  with  bastons.^  Hence  it 

«  "  Additio     sapientium     Willemari,"  t  See  Beaumanoir,  iii.  pp.  25  and  329. 

tit.  5.  M  See   in   regard   to   the   arms   of   the 

o  Book  I.  tit.  6,  sec.  3.  combatants,    Beaumanoir,    chap.   Ixi.    p. 

p  Book  II.  tit.  5,   sec.  23.  308,  and  chap.  Ixiv.  p.  328. 

q  Added  to  the  Salic  law  in  819.  v  Ibid.   chap.   Ixiv.   p.    328.     See  also 

r  See  Beaumanoir,  Ixiv.  p.  323.  the    Charters    of    St.    Aubin    of   Anjcu, 

s  Ibid.  p.  329  quoted  by  Galland,  p.  263. 


n8  MONTESQUIEU 

followed  that  the  baston  was  looked  upon  as  the  instrument  of 
insults  and  affronts,w  because  to  strike  a  man  with  it  was 
treating  him  like  a  villein. 

None  but  villeins  fought  with  their  faces  uncovered,*1  so  that 
none  but  they  could  receive  a  blow  on  the  face.  Therefore, 
.a  box  on  the  ear  became  an  injury  that  must  be  expiated  with 
blood,  because  the  person  who  received  it  had  been  treated  as 
a  villein. 

The  several  peoples  of  Germany  were  no  less  sensible  than 
we  of  the  point  of  honor ;  nay,  they  were  more  so.  Thus  the 
most  distant  relatives  took  a  very  considerable  share  to  them- 
selves in  every  affront,  and  on  this  all  their  codes  are  founded. 
The  law  of  the  Lombards  ordains,?  that  whosoever  goes 
attended  with  servants  to  beat  a  man  unawares,  in  order  to 
load  him  with  shame  and  to  render  him  ridiculous,  should 
pay  half  the  composition  which  he  would  owe  if  he  had  killed 
him;^  and  if  through  the  same  motive  he  tied  or  bound  him, 
he  would  pay  three-quarters  of  the  same  composition. 

Let  us  then  conclude  that  our  forefathers  were  extremely 
sensitive  to  affronts;  but  that  affronts  of  a  particular  kind, 
such  as  being  struck  with  a  certain  instrument  on  a  certain 
part  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  magni- 
tude of  the  outrage. 

21. — A  new  Reflection  upon  the  Point  of  Honor  among  the   \ 

Germans 

"  It  was  a  great  infamy,"  says  Tacitus,^  "  among  the  Germans 
for  a  person  to  leave  his  buckler  behind  him  in  battle ;  for  which 
reason  many  after  a  misfortune  of  this  kind  have  destroyed 
themselves."  Thus  the  ancient  Salic  law  &  allows  a  composition 
of  fifteen  sous  to  any  person  that  had  been  injuriously  reproached 
with  having  left  his  buckler  behind  him. 

When  Charlemagne  amended  the  Salic  law,c  he  allowed  in  this 
case  no  more  than  three  sous  in  composition.  As  this  prince 
cannot  be  suspected  of  having  had  a  design  to  enervate  the  mili- 

,     w  Among  the  Romans,  it  was  not  in-  y  Book  I.  tit.  6,  sec.  i. 

famous  to  be  beaten  with  a  stick,  "  lege  z  Book  I.  tit.  6,  sec.  2. 

ictus  fustium.     De  iis  qui  notantur  in-  a  "  De  Moribus  Germanorum." 

famia."  b  In  the  "  Pactus  legis  Salicse." 

x  They     had     only    the     baston     and  c  We  have  both  the  ancient  law  and 

buckler. — Beaumanoir,  chap.  Ixiv.  p.  328.  that  which  was  amended  by  this  prince. 


THE  SPIRIT  OF  LAWS  119 

tary  discipline,  it  is  manifest  that  such  an  alteration  was  due  to 
a  change  of  weapons,  and  that  from  this  change  of  weapons  a 
great  number  of  usages  derive  their  origin. 


22. — Of  the  Manners  in  relation  to  judicial  Combats 

Our  connections  with  the  fair  sex  are  founded  on  the  pleasure 
of  enjoyment;  on  the  happiness  of  loving  and  being  loved;  and 
likewise  on  the  ambition  of  pleasing  the  ladies,  because  they  are 
the  best  judges  of  some  of  those  things  which  constitute  per- 
sonal merit.  This  general  desire  of  pleasing  produces  gallantry 
which  is  not  love  itself,  but  the  delicate,  the  volatile,  the  perpetual 
simulation  of  love. 

According  to  the  different  circumstances  of  every  country  and 
age,  love  inclines  more  to  one  of  those  three  things  than  to  the 
other  two.  Now  I  maintain,  that  the  prevailing  spirit  at  the 
time  of  our  judicial  combats  must  have  been  that  of  gallantry. 

I  find  in  the  law  of  the  Lombards,**  that  if  one  of  the  two 
champions  was  found  to  have  any  magic  herbs  about  him,  the 
judge  ordered  them  to  be  taken  from  him,  and  obliged  him  tow 
swear  he  had  no  more.  This  law  could  be  founded  only  on  the 
vulgar  opinion;  it  was  fear,  the  alleged  inventor  of  much  that 
made  them  imagine  this  kind  of  prestige.  As  in  single  combats 
the  champions  were  armed  at  all  points,  and  as  with  heavy  arms, 
both  of  the  offensive  and  defensive  kind,  those  of  a  particular  ( 
temper  and  strength  gave  immense  advantages,  the  notion  of 
some  champions  having  enchanted  arms  must  certainly  have 
turned  the  brains  of  a  great  many  people. 

Hence  arose  the  marvellous  system  of  chivalry.  The  minds 
of  all  sorts  of  people  quickly  imbibed  these  extravagant  ideas. 
In  romances  are  found  knights-errant,  necromancers,  and  fairies, 
winged  or  intelligent  horses,  invisible  or  invulnerable  men,  ma- 
gicians who  concerned  themselves  in  the  birth  and  education  of 
great  personages,  enchanted  and  disenchanted  palaces,  a  new 
world  in  the  midst  of  the  old  one,  the  usual  course  of  nature  be- 
ing left  only  to  the  lower  class  of  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 injustice,  and  in  protecting  weakness.  Hence  our  romances 

dBook  II.  tit.  55,  sec.  11. 


120  MONTESQUIEU 

are  full  of  gallantry  founded  on  the  idea  of  love  joined  to  that 
of  strength  and  protection. 

Such  was  the  origin  of  gallantry,  when  they  formed  the  no- 
tion of  an  extraordinary  race  of  men,  who  at  the  sight  of  a  vir- 
tuous and  beautiful  lady  in  distress  were  inclined  tn  figgpse ^ 

themselves  to  all  hazards  for  her  sake,  and  to  endeavor  to  please 
her  in  the  common  actions  of  life. 

Our  romances  of  chivalry  flattered  this  desire  of  pleasing,  and 
communicated  to  a  part  of  Europe  that  spirit  of  gallantry  which 
we  may  venture  to  affirm  was  very  little  known  to  the  ancients. 

The  prodigious  luxury  of  that  immense  city  of  Rome  en- 
couraged sensuous  pleasures.  The  tranquillity  of  the  plains  of 
Greece  gave  rise  to  the  description  of  the  sentiments  of  love.* 
The  idea  of  knights-errant,  protectors  of  the  virtue  and  beauty  of 
the  fair  sex,  led  to  that  of  gallantry. 

This  spirit  was  continued  by  the  custom  of  tournaments, 
which  uniting  the  rights  of  valor  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  judiciary  combat  reduced  to  principles  and  to  find  the 
groundwork  of  such  an  extraordinary  code  of  laws.  Men, 
though  reasonable  in  the  main,  reduce  their  very  prejudices  to 
rule.  Nothing  was  more  contrary  to  good  sense,  than  those, 
combats,  and  yet  when  once  this  point  was  laid  down,  a  kind  of 
prudential  management  was  used  in  carrying  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.  Defontaines  was  contemporary  with  that  prince;  Beau- 
manoir  wrote  after  him ;  f  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 
to  agree  among  themselves  that  the  action  might  be  carried  on  by 
a  single  prosecutor ;  and,  if  they  could  not  agree,  the  person  be- 

e  See  the  Greek  romances  of  the  Middle  Ages.  /In  the  year  1283. 


,THE   SPIRIT   OF   LAWS  121 

fore  whom  the  action  was  brought,  appointed  one  of  them  to 
prosecute  the  quarrel  .£ 

When  a  gentleman  challenged  a  villein,  he  was  obliged  to 
present  himself  on  foot  with  buckler  and  baston;  but  if  he 
came  on  horseback  and  armed  like  a  gentleman,  they  took  his 
horse  and  his  arms  from  him,  and  stripping  him  to  his  shirt, 
they  compelled  him  to  fight  in  that  condition  with  the  villein.* 

Before  the  combat  the  magistrates  ordered  three  bans  to  be 
published.  By  the  first  the  relatives  of  the  parties  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 
either  of  the  parties,  under  severe  penalties,  nay,  even  on  pain  of 
death  if  by  this  assistance  either  of  the  combatants  should  happen 
to  be  vanquished.* 

The  officers  belonging  to  the  civil  magistrate  /  guarded  the  list 
or  enclosure  where  the  battle  was  fought;  and  in  case  either  of 
the  parties  declared  himself  desirous  of  peace,  they  took  particu- 
lar notice  of  the  actual  state  in  which  they  mutually  stood  at  that 
very  moment,  to  the  end  that  they  might  be  restored  to  the  same 
situation,  in  case  they  did  not  come  to  an  understanding.^ 

When  the  pledges  were  received  either  for  a  crime  or  for  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  grace.' 

But  if  it  happened  to  be  a  capital  crime,  and  the  lord,  cor- 
rupted by  presents,  consented  to  an  accommodation,  he  was 
obliged  to  pay  a  fine  of  sixty  livres,  and  the  right  he  had  of  pun- 
ishing the  malefactor  devolved  upon  the  count.w 

There  were  a  great  many  people  incapable  either  of  offering, 
or  of  accepting  battle.  But  liberty  was  given  them,  on  cause 
being  shown,  to  choose  a  champion;  and  that  he  might  have  a 
stronger  interest  in  defending  the  party,  in  whose  behalf  he  ap- 
peared, his  hand  was  cut  off  if  he  lost  the  battle.w 

g  Beaumanoir,  chap.  vi.  pp.  40  and  41.  the  authors  of  those  days  have  not   a 

h  Ibid.   chap.  Ixiv.  p.  328.  general  signification,  but  a  signification 

«  Ibid.  chap.  Ixiv.  p.  330.  limited  to  the  affair  in   question.     De- 

ilbid.  fontaines,  chap.  xxi.  art.  29. 

Ibid.  n  This  custom,  which  we  meet  with  in 

/The    great    vassals    had    particular  the  Capitularies,  was  still  subsisting  at 

privileges.  the  time  of  Beaumanoir.    See  chap.  Ixi. 

m  Beaumanoir,  chap.  Ixiv.  p.  330,  says,  p.  315. 
he  lost  his  jurisdiction:  these  words  in 


123  MONTESQUIEU 

When  capital  laws  were  made  in  the  last  century  against  duels, 
perhaps  it  would  have  been  sufficient  to  have  deprived  a  warrior 
of  his  military  capacity  by  the  loss  of  his  hand ;  nothing  in  gen- 
eral being  a  greater  mortification  to  mankind  than  to  survive  the 
loss  of  their  character. 

When,  in  capital  cases,  the  duel  was  fought  by  champions,  the 
parties  were  placed  where  they  could  not  behold  the  battle;  each 
was  bound  with  the  cord  that  was  to  be  used  at  his  execution  in 
case  his  champion  was  overcome.^ 

The  person  overcome  in  battle  did  not  always  lose  the  point 
contested;  if,  for  instance,  they  fought  on  an  imparlance,  he  lost 
only  the  imparlance./' 

25. — Of  the  Bounds  prescribed  to  the  Custom  of  judicial 
Combats 

When  pledges  of  battle  had  been  received  upon  a  civil  affair 
of  small  importance,  the  lord  obliged  the  parties  to  withdraw 
them. 

If  a  fact  was  notorious ;  for  instance,  if  a  man  had  been  assas- 
sinated in  the  open  market-place,  then  there  was  neither  a  trial 
by  witnesses,  nor  by  combat;  the  judge  gave  his  decision  from 
the  notoriety  of  the  fact.tf 

When  the  court  of  a  lord  had  often  determined  after  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  the  com- 
bats. 

They  were  not  allowed  to  insist  upon  duelling  but  for  them- 
selves, for  some  one  belonging  to  their  family,  or  for  their  liege 
lord.* 

When  the  accused  had  been  acquitted,  another  relative  could 
not  insist  on  fighting  him;  otherwise  disputes  would  never  be 
terminated.' 

If  a  person  appeared  again  in  public  whose  relatives,  upon  a 
supposition  of  his  being  murdered,  wanted  to  revenge  his  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  impossible.* 

o  Beaumanoir,  chap.  Ixiv.  p.  330.  s  Beaumanoir,  chap.  Ixiii.  p.  323. 

p  Ibid.  chap.  Ixi.  p.  309.  f  Ibid. 

g  Ibid.  p.  308;  chap.  xhii.  p.  239.  «  Ibid, 

r  Ibid.,    chap.    Ixi.    p.    314.    See    also 
Defontaines,  chap.  xxii.  art  24. 


THE   SPIRIT   OF  LAWS  123 

If  a  man  who  had  been  mortally  wounded  had  exculpated  be- 
fore his  death  the  person  accused  and  named  another,  they  did 
not  proceed  to  a  duel ;  but  if  he  had  mentioned  nobody  his  dec- 
laration was  looked  upon  as  a  forgiveness  on  his  death-bed ;  the 
prosecution  was  continued,  and  even  among  gentlemen  they 
could  make  war  against  each  others 

When  there  was  a  conflict,  and  one  of  the  relatives  had  given 
or  received  pledges  of  battle,  the  right  of  contest  ceased;  for  then 
it  was  thought  that  the  parties  wanted  to  pursue  the  ordinary 
course  of  justice;  therefore  he  that  would  have  continued  the 
contest  would  have  been  sentenced  to  make  good  all  the  losses. 

Thus  the  practice  of  judiciary  combat  had  this  advantage,  that 
it  was  apt  to  change  a  general  into  an  individual  quarrel,  to  re- 
store the  courts  of  judicature  to  their  authority,  and  to  bring  back 
into  the  civil  state  those  who  were  no  longer  governed  but  by 
the  law  of  nations. 

As  there  are  an  infinite  number  of  wise  things  that  are  man- 
aged in  a  very  foolish  manner ;  so  there  are  many  foolish  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  criminal  but  would 
prefer  a  duel  of  uncertain  event  to  a  certain  punishment,  w 

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 
should  be  authorized  by  her  baron,  that  is,  by  her  husband,  to 
challenge;  but  she  might  be  challenged  without  this  authority .y 

If  either  the  challenger  or  the  person  challenged  were  under 
fifteen  years  of  age,  there  could  be  no  combat.^  They  might 
order  it,  indeed,  in  disputes  relating  to  orphans  when  their  guar- 
dians or  trustees  were  willing  to  run  the  risk  of  this  procedure. 

The  cases  in  which  a  bondman  was  allowed  to  fight  are,  I 
think,  as  follows.  He  was  allowed  to  fight  another  bondman ;  to 
fight  a  freed-man,  or  even  a  gentleman,  in  case  he  were  chal- 
lenged; but  if  he  himself  challenged,  the  other  might  refuse  to 

v  Beaumanoir,  chap.  Ixiii.  p.  323.  y  Ibid. 

to  Ibid.  p.  324.  z  Ibid.  p.  323.    (See  also  what  I  have 

x  Ibid.  p.  325.  said  in  book  XVIII.) 


124  MONTESQUIEU 

fight;  and  even  the  bondman's  lord  had  a  right  to  take  him  out 
of  the  court.o  The  bondman  might  by  his  lord's  charter  or  by 
usage  fight  with  any  freeman  ;&  and  the  church  claimed  this 
right  for  her  bondmen  c  as  a  mark  of  respect  due  to  her  by  the 
laity.d 

26. — On  the  judiciary  Combat  between  one  of  the  Parties  and 
one  of  the  Witnesses 

Beaumanoir  informs  us/  that  a  person  who  saw  a  witness 
going  to  swear  against  him  might  elude  the  other,  by  telling 
the  judges  that  his  adversary  produced  a  false  and  slandering 
witness;  and  if  the  witness  was  willing  to  maintain  the  quarrel, 
he  gave  pledges  of  battle.  The  enquiry  was  no  longer  the  ques- 
tion; 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  if  he  had  made  his  attestation,  the  affair  would  have  been 
decided  by  the  deposition  of  two  witnesses.  But  by  staying  the 
second,  the  deposition  of  the  first  witness  became  void. 

The  second  witness  being  thus  rejected,  the  party  was  not  al- 
lowed to  produce  any  others,  but  he  lost  his  cause ;  in  case,  how- 
ever, there  had  been  no  pledges  of  battle  he  might  produce  other 
witnesses. 

Beaumanoir  observes/  that  the  witness  might  say  to  the  party 
he  appeared  for,  before  he  made  his  deposition :  "  I  do  not  care 
to  fight  for  your  quarrel,  nor  to  enter  into  any  debate ;  but  if  you 
are  willing  to  stand  by  me,  I  am  ready  to  tell  the  truth."  The 
party  was  then  obliged  to  fight  for  the  witness,  and  if  he  hap- 
pened to  be  overcome,  he  did  not  lose  his  cause,?  but  the  witness 
was  rejected. 

This,  I  believe,  was  a  modification  of  the  ancient  custom;  and 
what  makes  me  think  so  is,  that  we  find  this  usage  of  challeng- 
ing the  witnesses  established  in  the  laws  of  the  Bavarians  h  and 
Burgundians  *  without  any  restriction. 

I  have  already  made  mention  of  the  constitution  of  Gundebald, 

?  Beaumanoir,  chap.  Ixiii.  p.  322.  f  Chap.  vi.  pp.  39  and  40. 

Defontames,  chap.  xxii.  art.  7.  g  But    if    the    battle    was    fought    by 

c     Habeant    bellandi    et    testificandi  champions,  the  champion  that  was  over- 

hcentiam."— Charter  of  Louis  the  Fat,  come  had  his  hand  cut  off. 

in  the  year  1118.  h  Tit.  16,  sec.  7. 

d  Ibid.  i  Tit.  45- 
eChap.  Ixi.  p.  315. 


THE  SPIRIT  OF  LAWS  125 

against  which  Agobard  /  and  St.  Avitus  k  made  such  loud  com- 
plaints. "  When  the  accused,"  says  this  prince,  "  produces  wit- 
nesses to  swear  that  he  has  not  committed  the  crime,  the  accuser 
may  challenge  one  of  the  witnesses  to  a  combat;  for  it  is  very 
just  that  the  person  who  has  offered  to  swear,  and  has  declared 
that  he  was  certain  of  the  truth,  should  make  no  difficulty  of 
maintaining  it  by  combat."  Thus  the  witnesses  were  deprived 
by  this  king  of  every  kind  of  subterfuge  to  avoid  the  judiciary 
combat. 

27. — Of  the  judiciary  Combat  between  one  of  the  Parties  and 
one  of  the  Lords'  Peers.    Appeal  of  false  Judgment 

As  the  nature  of  judicial  combats  was  to  terminate  the  affair 
forever,  and  was  incompatible  with  a  new  judgment  and  new 
prosecutions,/  an  appeal,  such  as  is  established  by  the  Roman 
and  Canon  laws,  that  is,  to  a  superior  court  in  order  to  rejudge 
the  proceedings  of  an  inferior,  was  a  thing  unknown  in  France. 

This  is  a  form  of  proceeding  to  which  a  warlike  nation,  gov- 
erned solely  by  the  point  of  honor,  was  quite  a  stranger;  and 
agreeably  to  this  very  spirit,  the  same  methods  were  used  against 
the  judges  as  were  allowed  against  the  parties.™ 

An  appeal  among  the  people  of  this  nation  was  a  challenge  to 
fight  with  arms,  a  challenge  to  be  decided  by  blood;  and  not 
that  invitation  to  a  paper  quarrel,  the  knowledge  of  which  was 
reserved  for  succeeding  ages.« 

Thus  St.  Louis  in  his  Institutions  says,  that  an  appeal  includes 
both  felony  and  iniquity.  Thus  Beaumanoir  tells  us,  that  if  a 
vassal  wanted  to  make  his  complaint  of  an  outrage  committed 
against  him  by  his  lord,0  he  was  first  obliged  to  announce  that  he 
quitted  his  fief;  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  vassal  to  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 

j  Letter  to  Louis  the  Debonnaire.  n  Book  II.  chap.  xv. 

k  "  Life  of  St.  Avitus."  o  Beaumanoir,   chap.   Ixi.   pp.  310  and 

/  Beaumanoir,  chap.  ii.  p.  22.  311,  and  chap.  Ixvii.  p.  337. 

m  Ibid.,   chap.   Ixi.   p.   312,  and  chap. 

Ixvii.  p.  338. 


126  MONTESQUIEU 

against  the  lord  who  appointed  and  directed  the  court,  they 
challenged  the  peers  of  whom  the  court  itself  was  formed,  by 
which  means  they  avoided  the  crime  of  felony,  for  they  insulted 
only  their  peers,  with  whom  they  could  always  account  for  the 
affront. 

It  was  a  very  dangerous  thing  to  challenge  the  peers  of  false 
judgment./'  If  the  party  waited  till  judgment  was  pronounced, 
he  was  obliged  to  fight  them  all  when  they  offered  to  make  good 
their  judgments  If  the  appeal  was  made  before  all  the  judges 
had  given  their  opinion,  he  was  obliged  to  fight  all  who  had 
agreed  in  their  judgment.  To  avoid  this  danger,  it  was  usual 
to  petition  the  lord  to  direct  that  each  peer  should  give  his  opin- 
ion aloud;  r  and  when  the  first  had  pronounced,  and  the  second 
was  going  to  do  the  same,  the  party  told  him  that  he  was  a  liar, 
a  knave,  and  a  slanderer,  and  then  he  had  to  fight  only  with  that 
peer. 

Defontaines  s  would  have  it,  that  before  a  challenge  was  made 
of  false  judgment,  it  was  customary  to  let  three  judges  pro- 
nounce ;  and  he  does  not  say  that  it  was  necessary  to  fight  them 
all  three,  much  less  that  there  was  any  obligation  to  fight  all 
those  who  had  declared  themselves  of  the  same  opinion.  These 
differences  arose  from  this,  that  in  those  times  there  were  few 
usages  exactly  in  all  parts  the  same;  Beaumanoir  gives  an  ac- 
count of  what  passed  in  the  county  of  Clermont;  and  Defon- 
taines of  what  was  practised  in  Vermandois. 

When  one  of  the  peers  or  a  vassal  had  declared  that  he  would 
maintain  the  judgment,  the  judge  ordered  pledges  of  battle  to  be 
given,  and  likewise  took  security  of  the  challenger,  that  he 
would  maintain  his  case.f  But  the  peer  who  was  challenged  gave 
no  security,  because  he  was  the  lord's  vassal,  and  was  obliged 
to  defend  the  challenge,  or  to  pay  the  lord  a  fine  of  sixty  livres. 

If  he  who  challenged  did  not  prove  that  the  judgment  was 
bad,"  he  paid  the  lord  a  fine  of  sixty  livres,  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.^ 

When  a  person,  strongly  suspected  of  a  capital  crime,  had 
been  taken  and  condemned,  he  could  make  no  appeal  of  false 

p  Beaumanoir,  chap.  Ixi.  p.  313.  only,  that  each  of  them  was  allowed  a 

</  Ibid.  p.  314.  small  fine. 

r  Ibid.  t  Beaumanoir,  chap.  Ixi.  p.  314. 

s  Chap.  xxii.  art.  x,  10,  and  xx,  he  says          u  Ibid.  Defontaines,  chap.  xxii.  art.  9. 

v  Ibid. 


THE  SPIRIT  OF  LAWS  127 

judgment  :w  for  he  would  always  appeal  either  to  prolong  his 
life,  or  to  get  an  absolute  discharge. 

If  a  person  said  that  the  judgment  was  false  and  bad,  and  did 
not  offer  to  prove  it  so,  that  is  to  fight,  he  was  condemned  to  a 
fine  of  ten  sous  if  a  gentleman,  and  to  five  sous  if  a  bondman,  for 
the  injurious  expressions  he  had  uttered.* 

The  judges  or  peers  who  were  overcome,  forfeited  neither  life 
nor  limbs ;  y  but  the  person  who  challenged  them  was  punished 
with  death,  if  it  happened  to  be  a  capital  crime.* 

This  manner  of  challenging  the  vassals  with  false  judgment 
was  to  avoid  challenging  the  lord  himself.  But  if  the  lord  had 
no  peers/*  or  had  not  a  sufficient  number,  he  might  at  his  own 
expense  borrow  peers  of  his  lord  paramount ;  b  but  these  peers 
were  not  obliged  to  pronounce  judgment  if  they  did  not  like  it; 
they  might  declare  that  they  were  come  only  to  give  their  opin- 
ion: in  that  particular  case,  the  lord  himself  judged  and  pro- 
nounced sentence  as  judge;  c  and  if  an  appeal  of  false  judgment 
was  made  against  him,  it  was  his  business  to  answer  to  the  chal- 
lenge. 

If  the  lord  happened  to  be  so  very  poor  as  not  to  be  able  to 
hire  peers  of  his  paramount,**  or  if  he  neglected  to  ask  for  them 
or  the  paramount  refused  to  give  them,  then,  as  the  lord  could 
not  judge  by  himself,  and  as  nobody  was  obliged  to  plead  before 
a  tribunal  where  judgment  could  not  be  given,  the  affair  was 
brought  before  the  lord  paramount. 

This,  I  believe,  was  one  of  the  principal  causes  of  the  sepa- 
ration between  the  jurisdiction  and  the  fief,  whence  arose  the 
maxim  of  the  French  lawyers,  "  The  fief  is  one  thing,  and  the 
jurisdiction  is  another."  For  as  there  were  a  vast  number  of 
peers  who  had  no  subordinate  vassals  under  them,  they  were 
incapable  of  holding  their  court;  all  affairs  were  then  brought 
before  their  lord  paramount,  and  they  lost  the  privilege  of  pro- 
nouncing judgment,  because  they  had  neither  power  nor  will  to 
claim  it. 

All  the  judges  who  had  been  at  the  judgment  were  obliged 

w  Beaumanoir,  chap.  Ixi.  p.  316,  and  a  Beaumanoir,  chap.  Ixii.  p.  322.     De- 

Defontaines,  chap.  xxii.  art.  21.  fontaines,  chap.  xxii. 

jrlbid.  chap.  Ixi.  p.  314;  b  The  count  was  not  obliged  to  lend 

y  Defontaines,  chap.  xxii.  art.  7.  any.     Beaumanoir,  chap.   Ixvii.  p.  337. 

s  See   Defontaines,   chap.   xxi.   art.    n  c  Nobody   can   pass   judgment    in   his 

and  12,  and  following,  who  distinguishes  court,  says  Beaumanoir,  chap.  Ixvii.  pp. 

the  cases  in  which  the  appellant  of  false  336  and  337. 
judgment  loses  his  life,  the  point  con-  d  Ibid.  chap.  Ixii.  p.  322. 

tested,  or  only  the  imparlance. 


I28  MONTESQUIEU 

to  be  present  when  it  was  pronounced,  that  they  might  follow 
one  another,  and  say  aye  to  the  person  who,  wanting  to  make 
an  appeal  of  false  judgment,  asked  them  whether  they  followed ;  e 
for  Defontaines  says/  "  that  it  is  an  affair  of  courtesy  and  loyalty, 
and  there  is  no  such  thing  as  evasion  or  delay."  Hence,  I  im- 
agine, arose  the  custom  still  followed  in  England,  of  obliging 
the  jury  to  be  all  unanimous  in  their  verdict,  in  cases  relating  to 
life  and  death. 

Judgment  was  therefore  given,  according  to  the  opinion  of 
the  majority;  and  if  there  was  an  equal  division,  sentence  was 
pronounced,  in  criminal  cases,  in  favor  of  the  accused ;  in  cases 
of  debt,  in  favor  of  the  debtor;  and  in  cases  of  inheritance,  in 
favor  of  the  defendant. 

Defontaines  observes,^  that  a  peer  could  not  excuse  himself 
by  saying  that  he  would  not  sit  in  court  if  there  were  only  four,fc 
or  if  the  whole  number,  or  at  least  the  wisest  part,  were  not  pres- 
ent. This  is  just  as  if  he  were  to  say  in  the  heat  of  an  engage- 
ment, that  he  would  not  assist  his  lord,  because  he  had  not  all 
his  vassals  with  him.  But  it  was  the  lord's  business  to  cause  his 
court  to  be  respected,  and  to  choose  the  bravest  and  most  know- 
ing of  his  tenants.  This,  I  mention,  in  order  to  show  the  duty 
of  vassals,  which  was  to  fight,  and  to  give  judgment :  and  such, 
indeed,  was  this  duty,  that  to  give  judgment  was  all  the  same 
as  to  fight. 

It  was  lawful  for  a  lord,  who  went  to  law  with  his  vassal  in 
his  own  court,  and  was  cast,  to  challenge  one  of  his  tenants  with 
false  judgment.  But  as  the  latter  owed  a  respect  to  his  lord  for 
the  fealty  he  had  vowed,  and  the  lord,  on  the  other  hand,  owed 
benevolence  to  his  vassal  for  the  fealty  accepted;  it  was  cus- 
tomary to  make  a  distinction  between  the  lord's  affirming  in 
general  that  the  judgment  was  false  and  unjust,t  and  imputing 
personal  prevarications  to  his  tenant./  In  the  former  case  he 
affronted  his  own  court,  and  in  some  measure  himself,  so  that 
there  was  no  room  for  pledges  of  battle.  But  there  was  room 
in  the  latter,  because  he  attacked  his  vassal's  honor;  and  the  per- 
son overcome  was  deprived  of  life  and  property,  in  order  to 
maintain  the  public  tranquillity. 

e  Defontaines,  chap.  xxi.  art.  27  and  h  This  number  at  least  was  necessary. 

28.  Defontaines,  chap.  xxi.  art.  36. 

/  Ibid.  art.  28.  *  Beaumanoir,   chap.   Ixvii.  p.  337. 

fChap.  xxi.  art.  37.  /Ibid. 


THE    SPIRIT   OF   LAWS  129 

This  distinction,  which  was  necessary  in  that  particular  case, 
had  afterwards  a  greater  extent.  Beaumanoir  says,  that  when 
the  challenger  of  false  judgment  attacked  one  of  the  peers  by 
personal  imputation,  battle  ensued;  but  if  he  attacked  only  the 
judgment,  the  peer  challenged  was  at  liberty  to  determine  the 
dispute  either  by  battle  or  by  law.fc  But  as  the  prevailing  spirit 
in  Beaumanoir's  time  was  to  restrain  the  usage  of  judicial  com- 
bats, and  as  this  liberty  which  had  been  granted  to  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  obligation  the  vassal  lay  under  of  defending  his  lord's 
jurisdiction,  I  am  apt  to  think,  that  this  distinction  of  Beau- 
manoir's was  a  novelty  in  French  jurisprudence. 

I  would  not  have  it  thought  that  all  appeals  of  false  judgment 
were  decided  by  battle;  it  fared  with  this  appeal  as  with  all 
others.  The  reader  may  recollect  the  exceptions  mentioned  in  the 
25th  chapter.  Here  it  was  the  business  of  the  superior  court  to 
examine  whether  it  was  proper  to  withdraw  the  pledges  of  battle 
or  not. 

There  could  be  no  appeal  of  false  judgment  against  the  king's- 
court;  because,  as  there  was  no  one  equal  to  the  king,  no  one 
could  challenge  him;  and  as  the  king  had  no  superior,  none 
could  appeal  from  his  court. 

This  fundamental  regulation,  which  was  necessary  as  a  politi- 
cal law,  diminished  also  as  a  civil  law  the  abuses  of  the  judicial 
proceedings  of  those  times.  When  a  lord  was  afraid  that  his  court 
would  be  challenged  with  false  judgment,  or  perceived  that  they 
were  determined  to  challenge,  if  the  interests  of  justice  required 
that  it  should  not  be  challenged,  he  might  demand  from  the 
king's  court,  men  whose  judgment  could  not  be  set  aside.*  Thus 
King  Philip,  says  De*fontaines,w  sent  his  whole  Council  to  judge 
an  affair  in  the  court  of  the  Abbot  of  Corbey. 

But  if  the  lord  could  not  have  judges  from  the  king,  he  might 
remove  his  court  into  the  king's,  if  he  held  immediately  of  him; 
and  if  there  were  intermediate  lords,  he  had  recourse  to  his 
suzerain,  removing  from  one  lord  to  another  till  he  came  to  the 
sovereign. 

Thus,  notwithstanding  they  had  in  those  days  neither  the 
practice  nor  even  the  idea  of  our  modern  appeals,  yet  they  had 

k  Beaumanoir,  chap.  Ixvii.  pp.  337  and  338.     /  Defontaines,  chap.  xxii.     m  Ibid. 
Voi,.  II.— 9 


1 3o  MONTESQUIEU 

recourse  to  the  king,  who  was  the  source  whence  all  those  rivers 
flowed,  and  the  sea  into  which  they  returned. 


28.— Of  the  Appeal  of  Default  of  Justice 

The  appeal  of  default  of  justice  was,  when  the  court  of  a  par- 
ticular lord  deferred,  evaded,  or  refused  to  do  justice  to  the 
parties. 

During  the  time  of  our  princes  of  the  second  race,  though  the 
count  had  several  officers  under  him,  their  person  was  subordi- 
nate, but  not  their  jurisdiction.  These  officers  in  their  court 
days,  assizes,  or  placita,  gave  judgment  in  the  last  resort  as  the 
count  himself;  all  the  difference  consisted  in  the  division  of  the 
jurisdiction.  For  instance,  the  count  had  the  power  of  con- 
demning to  death,  of  judging  of  liberty,  and  of  the  restitution  of 
goods,  which  the  centenarii  had  not.w 

For  the  same  reason  there  were  greater  cases  which  were  re- 
served to  the  king;  namely,  those  which  directly  concerned  the 
political  order  of  the  states  Such  were  the  disputes  between 
bishops,  abbots,  counts,  and  other  grandees,  which  were  deter- 
mined by  the  king,  together  with  the  great  vassals./* 

What  some  authors  have  advanced,  namely,  that  an  appeal 
lay  from  the  count  to  the  king's  commissary,  or  missus  dominicus, 
is  not  well  grounded.  The  count  and  the  missus  had  an  equal 
jurisdiction,  independent  of  each  other.?  The  whole  difference 
was,  that  the  missus  held  his  placita,  or  assizes,  four  months  in 
the  year/  and  the  count  the  other  eight. 

If  a  person,  who  had  been  condemned  at  an  assize,  demanded 
to  have  his  cause  tried  over  again,  and  was  afterwards  cast,  he 
paid  a  fine  of  fifteen  sous,  or  received  fifteen  blows  from  the 
judges  who  had  decided  the  affair.-* 

When  the  counts,  or  the  king's  commissaries  did  not  find 
themselves  able  to  bring  the  great  lords  to  reason,  they  made 
them  give  bail  or  security  t  that  they  would  appear  in  the  king's 
court:  this  was  to  try  the  cause,  and  not  to  rejudge  it.  I  find  in 

n  Third    Capitulary    of    the    year  812,           q  See   the    Capitulary   of   Charles   the 

art.  3,   edition  of   Baluzius,   p.  497,  and        Bald,    added    to    the    law    of   the    Lorn- 

of  Charles  the  Bald,   added  to  the  law        bards,  book  II.  art.  3. 

of  the  Lombards,  book  II.  art.  3.  r  Third    Capitulary    of    the    year    812, 

o  Ibid.,  p.  497.  art.  8. 

p  "  Cum      fidelibus." — Capitulary  of           s  "  Placitum." 

Louis  the   Debonnaire,   edition  of  Ba-          fThis  appears  by    he  formulas,  char- 

p.  667.  ters,  and  the  capitularies. 


THE   SPIRIT   OF   LAWS  131 

the  Capitulary  of  Metz  u  a  law  by  which  the  appeal  of  false  judg- 
ment to  the  king's  court  is  established,  and  all  other  kinds  of 
appeal  are  proscribed  and  punished. 

If  they  refused  to  submit  to  the  judgment  of  the  sheriffs  v  and 
made  no  complaint,  they  were  imprisoned  till  they  had  sub- 
mitted, but  if  they  complained,  they  were  conducted  under  a 
proper  guard  before  the  king,  and  the  affair  was  examined  in  his 
court. 

There  could  be  hardly  any  room  then  for  an  appeal  of  default 
of  justice.  For  instead  of  its  being  usual  in  those  days  to  com- 
plain that  the  counts  and  others  who  had  aright  of  holding  assizes 
were  not  exact  in  discharging  this  duty,w  it  was  a  general  com- 
plaint that  they  were  too  exact.  Hence  we  find  such  numbers  of 
ordinances,  by  which  the  counts  and  all  other  officers  of  justice 
are  forbidden  to  hold  their  assizes  above  thrice  a  year.  It  was 
not  so  necessary  to  chastise  their  indolence,  as  to  check  their 
activity. 

But,  after  an  infinite  number  of  petty  lordships  had  been 
formed,  and  different  degrees  of  vassalage  established,  the  neg- 
lect of  certain  vassals  in  holding  their  courts  gave  rise  to  this 
kind  of  appeal  ;#  especially  as  very  considerable  profits  accrued 
to  the  lord  paramount  from  the  several  fines. 

As  the  custom  of  judicial  combats  gained  every  day  more 
ground,  there  were  places,  cases,  and  times,  in  which  it  was 
difficult  to  assemble  the  peers,  and  consequently  in  which  justice 
was  delayed.  The  appeal  of  default  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 
pretence,  of  our  modern  wars  is  the  infringement  of  the  laws  of 
nations. 

Beaumanoir  says  y  that,  in  case  of  default  of  justice,  battle  was 
not  allowed :  the  reasons  are  these :  i.  They  could  not  challenge 
the  lord  himself,  because  of  the  respect  due  to  his  person ;  neither 
could  they  challenge  the  lord's  peers,  because  the  case  was  clear, 

« In  the  year  757,  edition  of  Baluzius,  w  See  the  law  of  the  Lombards,  book 

p.    180,   arts.   9   and    10,   and   the   synod  II.  tit.  52,  art.  22. 

*'  apud  Vernas,"  in  the  year  755,  art.  29,  x  There    are    instances   of   appeals    of 

edition  of  Baluzius,  p.   175.     These  two  default  of  justice  as  early  as  the  time 

capitularies    were     made     under     King  of  Philip  Augustus. 

Pepin.  jChap.  Ixi.  p.  S'S- 

v  The     officers     under     the     count, 
"  scabini." 


I32  MONTESQUIEU 

and  they  had  only  to  reckon  the  days  of  the  summons,  or  of  the 
other  delays;  there  had  been  no  judgment  passed,  consequently 
there  could  be  no  appeal  of  false  judgment:  in  fine,  the  crime  of 
the  peers  offended  the  lord  as  well  as  the  party,  and  it  was  against 
rule  that  there  should  be  battle  between  the  lord  and  his  peers. 

But  as  the  default  was  proved  by  witnesses  before  the  superior 
court :  2  the  witnesses  might  be  challenged,  and  then  neither  the 
lord  nor  his  court  were  offended. 

In  case  the  default  was  owing  to  the  lord's  tenants  or  peers, 
who  had  delayed  to  administer  justice,  or  had  avoided  giving 
judgment  after  past  delays,  then  these  peers  were  appealed  of 
default  of  justice  before  the  paramount;  and  if  they  were  cast, 
they  paid  a  fine  to  their  lord.o  The  latter  could  not  give  them 
any  assistance;  on  the  contrary,  he  seized  their  fief  till  they  had 
each  paid  a  fine  of  sixty  livres. 

2.  When  the  default  was  owing  to  the  lord,  which  was  the  case 
whenever  there  happened  not  to  be  a  sufficient  number  of  peers 
in  his  court  to  pass  judgment,  or  when  he  had  not  assembled  his 
tenants  or  appointed  somebody  in  his  room  to  assemble  them, 
an  appeal  might  be  made  of  the  default  before  the  lord  para- 
mount ;  but  then  the  party  and  not  the  lord  was  summoned,  be- 
cause of  the  respect  due  to  the  latter.^ 

The  lord  demanded  to  be  tried  before  the  paramount,  and  if 
he  was -acquitted  of  the  default,  the  cause  was  remanded  to  him, 
and  he  was  likewise  paid  a  fine  of  sixty  livres.c  But  if  the  de- 
fault was  proved,  the  penalty  inflicted  on  him  was,  to  lose  the 
trial  of  the  cause,d  which  was  to  be  then  determined  in  the  su- 
perior court.  And,  indeed,  the  complaint  of  default  was  made 
with  no  other  view. 

3.  If  the  lord  was  sued  in  his  own  court,*  which  never  hap- 
pened but  upon  disputes  in  relation  to  the  fief,  after  letting  all 
the  delays  pass,  the  lord  himself  was  summoned  before  the  peers 
in  the  sovereign's  name/  whose  permission  was  necessary  on 
that  occasion.    The  peers  did  not  make  the  summons  in  their 

e  Beaumanoir,  chap.  Ixi.  p.  315  upon  her  to  have  it  tried  within  forty 

a  Defontaines,  chap.  xxi.  art.  24.  days,  and  thereupon  challenged  her  at 

b  Ibid.,  art.  32.  the  king's  court  with  default  of  justice. 

c  Beaumanoir,  chap.  Ixi.  p.  312.  She  answered  that  she  would  have  it 

d  D6fontaines,  chap.  xxi.  arts.  I  and  tried  by  her  peers  in  Flanders.  The 

29.  king's  court  determined  that  it  should 

e  This  was  the  case  in  the  famous  not  be  sent  there  and  that  the  covmtess 

difference   between  the   Lord   of   Nesle  should  be  cited. 

and  Joan,  Countess  of  Flanders,  during  /  Defontaines,  chap.  xxi.  art.  34. 

the  reign  of  Louis   VIII.     He   called 


THE    SPIRIT    OF   LAWS  133 

own  name,  because  they  could  not  summon  their  lord,  but  they 
could  summon  for  their  lord.g 

Sometimes  the  appeal  of  default  of  justice  was  followed  by  an 
appeal  of  false  judgment,  when  the  lord  had  caused  judgment  to 
be  passed,  notwithstanding  the  default./* 

The  vassal  who  had  wrongfully  challenged  his  lord  of  default 
of  justice  was  sentenced  to  pay  a  fine  according  to  his  lord's 
pleasure.* 

The  inhabitants  of  Ghent  had  challenged  the  Earl  of  Flanders 
of  default  of  justice  before  the  king,  for  having  delayed  to  give 
judgment  in  his  own  court.;  Upon  examination  it  was  found, 
that  he  had  used  fewer  delays  than  even  the  custom  of  the  coun- 
try allowed.  They  were  therefore  remanded  to  him;  upon  which 
their  effects  to  the  value  of  sixty  thousand  livres  were  seized. 
They  returned  to  the  king's  court  in  order  to  have  the  fine  mod- 
erated; but  it  was  decided  that  the  earl  might  insist  upon  the 
fine,  and  even  upon  more  if  he  pleased.  Beaumanoir  was  pres- 
ent at  those  judgments. 

4.  In  other  disputes  which  the  lord  might  have  with  his  vas- 
sal, in  respect  to  the  person  or  honor  of  the  latter,  or  to  property 
that  did  not  belong  to  the  fief,  there  was  no  room  for  a  challenge 
of  default  of  justice;  because  the  cause  was  not  tried  in  the  lord's 
court,  but  in  that  of  the  paramount:  vassals,  says  Defontaines,& 
having  no  power  to  give  judgment  on  the  person  of  their  lord. 

I  have  been  at  some  trouble  to  give  a  clear  idea  of  those  things, 
which  are  so  obscure  and  confused  in  ancient  authors  that  to 
disentangle  them  from  the  chaos  in  which  they  were  involved 
may  be  reckoned  a  new  discovery. 

29. — Epoch  of  the  Reign  of  St.  Louis 

St.  Louis  abolished  the  judicial  combats  in  all  the  courts  of  his 
demesne,  as  appears  by  the  ordinance  he  published  thereupon,/ 
and  by  the  Institutions.^ 

But  he  did  not  suppress  them  in  the  courts  of  his  barons,  ex- 
cept in  the  case  of  challenge  of  false  judgments 

g  Defontaines,  chap.  xxi.  art.  9.  /  In  the  year  1260. 

h  Beaumanoir,   chap.   Ixi.   p.   311.  m  Book    I.    chaps,    ii.    and    vii.,    and 

i  Ibid.,     p.     312.    But     he     that  was       book  II.   chaps,  x.   and  xi. 
neither   tenant   nor   vassal   to   the  lord           n  As  appears  everywhere  in  the  "  In- 
paid  only  a  fine  of  sixty  livres.— Ibid.  stitutions,     etc.,  and  Beaumanoir,  chap. 

j  Ibid.,  p.  318.  Ixi.  p.  309. 

k  Chap.  xxi.  art.  35. 


I34  MONTESQUIEU 

A  vassal  could  not  challenge  the  court  of  his  lord  of  false  judg- 
ment, without  demanding  a  judicial  combat  against  the  judges 
who  pronounced  sentence.  But  St.  Louis  introduced  the  prac- 
tice of  challenging  of  false  judgment  without  fighting,  a  change 
that  may  be  reckoned  a  kind  of  revolutions 

He  declared  P  that  there  should  be  no  challenge  of  false  judg- 
ment in  the  lordships  of  his  demesnes,  because  it  was  a  crime  of 
felony.  In  reality,  if  it  was  a  kind  of  felony  against  the  lord,  by 
a  much  stronger  reason  it  was  felony  against  the  king.  But  he 
consented  that  they  might  demand  an  amendment  q  of  the  judg- 
ments passed  in  his  courts;  not  because  they  were  false  or  iniqui- 
tous, but  because  they  did  some  prejudices  On  the  contrary, 
he  ordained,  that  they  should  be  obliged  to  make  a  challenge  of 
false  judgment  against  the  courts  of  the  barons/  in  case  of  any 
complaint. 

It  was  not  allowed  by  the  Institutions,  as  we  have  already  ob- 
served, to  bring  a  challenge  of  false  judgment  against  the  courts 
in  the  king's  demesnes.  They  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 
his  court;  t  or  rather,  interpreting  the  Institutions  by  themselves, 
to  present  him  a  request  or  petition." 

With  regard  to  the  courts  of  the  lords,  St.  Louis,  by  permitting 
them  to  be  challenged  of  false  judgment,  would  have  the  cause 
brought  before  the  royal  tribunal,^  or  that  of  the  lord  paramount, 
not  to  be  decided  by  duel  w  but  by  witnesses,  pursuant  to  a  cer- 
tain form  of  proceeding,  the  rules  of  which  he  laid  down  in  the 
Institutions.* 

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  duel. 

Defontaines  y  gives  us  the  first  two  examples  he  ever  saw,  in 
which  they  proceeded  thus  without  a  legal  duel :  one,  in  a  cause 

o  "  Institutions,"    book    I.    chap.  vi.f          v  But  if  they  wanted  to  appeal  with- 

and  book  II.  chap.  xv.  out  falsifying  the  judgment,  the  appeal 

p  Ibid,  book  II.  chap.  xv.  was  not  admitted.—"  Institutions,"  book 

q  Ibid,    book    I.    chap.    Ixxviii.,  and        II.  chap.  xv. 

book  II.  chap.  xv.  w  Book  I.   chaps,  vi.  and  Ixvii. ;  and 

rlbid.  book  I.  chap.  Ixxviii.  book    II.    chap,    xv.;    and    Beaumanoir, 

jlbid.  book  II.  chap.  xv.  chap.  xi.  p.  58. 

f  Ibid,  book  I.  chap.  Ixxviii.  x  Book  I.  chaps,  i.,  ii.,  and  iii. 

u  Ibid,  book  II.  chap.  xv.  y  Chap.  xxii.  arts.  16  and  17. 


THE   SPIRIT   OF   LAWS  135 

tried  at  the  court  of  St.  Quentin,  which  belonged  to  the  king's 
demesne;  and  the  other,  in  the  court  of  Ponthieu,  where  the 
count,  who  was  present,  opposed  the  ancient  jurisprudence:  but 
these  two  causes  were  decided  by  law. 

Here,  perhaps,  it  will  be  asked  why  St.  Louis  ordained  for 
the  courts  of  his  barons  a  different  form  of  proceeding  from  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  his  demesnes,  he  was  not  checked  or  limited  in  his  views :  but 
he  had  measures  to  keep  with  the  lords  who  enjoyed  this  ancient 
prerogative,  that  causes  should  not  be  removed  from  their  courts, 
unless  the  party  was  willing  to  expose  himself  to  the  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 
suppressed  the  thing,  and  continued  the  terms. 

This  regulation  was  not  universally  received  in  the  courts  of 
the  lords.  Beaumanoir  says,^  that  in  his  time  there  were  two 
ways  of  trying  causes;  one  according  to  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,o  that  the  Count  of 
Clermont  followed  the  new  practice,  while  his  vassals  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- 
thority than  his  vassals. 

It  is  proper  here  to  observe,  that  France  was  at  that  time  di- 
vided into  the  country  of  the  king's  demesne,  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 
under  obedience  to  the  king,  and  the  country  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  them,?  or  sealed  and 

z  Chap.  Ixi.  p.  309.  of  the  third   race,   in   the   collection   of 

a  Ibid.  Lauriere,     especially  _  those^    of     Philip 

&  See    Beaumanoir,    Defontaines,    and  Augustus,    on    ecclesiastic   jurisdiction; 

the  "  Institutions,"  book  II.  chaps,  x.,  that    of    Louis    VIII    concerning    the 

xi.,  xv.,  and  others.  Jews;  and  the  charters  related  by  Mr. 

c  See  the  ordinances  at  the  beginning  Brussel ;  particularly  that  of  St.  Louis, 


I36  MONTESQUIEU 

subscribed  by  them:  otherwise  the  barons  received  or  refused 
them,  according  as  they  seemed  conducive  to  the  good  of  their 
baronies.  The  rear-vassals  were  upon  the  same  terms  with  the 
great-vassals.  Now  the  Institutions  were  not  made  with  the  con- 
sent of  the  lords,  though  they  regulated  matters  which  to  them 
were  of  great  importance :  but  they  were  received  only  by  those 
who  believed  they  would  redound  to  their  advantage.  Robert, 
son  of  St.  Louis,  received  them  in  his  county  of  Clermont ;  yet 
his  vassals  did  not  think  proper  to  conform  to  this  practice. 

30. — Observation  on  Appeals 

I  apprehend  that  appeals  which  were  challenges  to  a  com- 
bat, must  have  been  made  immediately  on  the  spot.  "  If  the 
party  leaves  the  court  without  appealing,"  says  Beauraanoir,^ 
"  he  loses  his  appeal,  and  the  judgment  stands  good."  This 
continued  still  in  force,  even  after  all  the  restrictions  of  judicial 
combat? 

31. — The  same  Subject  continued 

The  villein  could  not  bring  a  challenge  of  false  judgment 
against  the  court  of  his  lord.  This  we  learn  from  Defon- 
taines/  and  he  is  confirmed  moreover  by  the  Institutions.^ 
Hence  Defontaines  says,/*  "between  the  lord  and  his  villein 
there  is  no  other  judge  but  God." 

It  was  the  custom  of  judicial  combats  that  deprived  the  vil- 
leins of  the  privilege  of  challenging  their  lord's  court  of  false 
judgment.  And  so  true  is  this,  that  those  villeins*  who  by 
charter  or  custom  had  a  right  to  fight  had  also  the  privilege 
of  challenging  their  lord's  court  of  false  judgment,  even  though 
the  peers  who  tried  them  were  gentlemen;;  and  Defontaines 
proposes  expedients  to  gentlemen  in  order  to  avoid  the  scandal 
of  fighting  with  a  villein  by  whom  they  had  been  challenged 
of  false  judgment. k 

As  the  practice  of  judicial  combats  began  to  decline  and  the 

on  the  release   and  recovery   of   lands,  *  Defontaines,  chap.  xxii.  art.  7.    This 

and  the  feodal  majority  of  young  worn-  article,  and  the  2ist  of  the  22d  chapter 

en,  torn.  ii.   book  III.  p.   35,   and  ibid.,  of  the  same  author,  have  been  hitherto 

the  Ordinance  of  Philip  Augustus,  p.  7.  very  badly  explained.     Defontaines  does 

d  Chap.  Ixiii.  p.  327;  chap.  Ixi.  p.  312.  not  oppose  the  judgment  of  the  lord  to 

e  See  the  "  Institutions  "  of  St.  Louis,  that  of  the   gentleman,   because  it  was 

book  II.  chap,  xv.,  and  the  Ordinance  the    same    thing;    but    he    opposes    the 

of  Charles  VII  in  the  year  1453.  common    villain   to    him   who    had    the 

/  Chap.  xxi.  arts.  21  and  22.  privilege  of  fighting. 

g  Book  I.  chap,  cxxxvi.  t  j  Gentlemen  may  always  be  appointed 

h  Chap.  ii.  art.  8.  judges.— Defontaines,  chap.  xxi.  art.  48. 

~*  ip.  xxii.  art.  14. 


THE    SPIRIT    OF   LAWS  137 

usage  of  new  appeals  to  be  introduced,  it  was  reckoned  unfair 
that  freedmen  should  have  a  remedy  against  the  injustice  of  the 
courts  of  their  lords,  and  the  villeins  should  not ;  hence  the  Par- 
liament received  their  appeals  all  the  same  as  those  of  freemen. 

32. — The  same  Subject  continued 

When  a  challenge  of  false  judgment  was  brought  against  the 
lord's  court,  the  lord  appeared  in  person  before  his  paramount 
to  defend  the  judgment  of  his  court.  In  like  manner  in  the  ap- 
peal of  default  of  justice,  the  party  summoned  before  the  lord 
paramount  brought  his  lord  along  with  him,  to  the  end  that  if 
the  default  was  not  proved,  he  might  recover  his  jurisdiction./ 

In  process  of  time  as  the  practice  observed  in  these  two  par- 
ticular cases  became  general,  by  the  introduction  of  all  sorts  of 
appeals,  it  seemed  very  extraordinary  that  the  lord  should  be 
obliged  to  spend  his  whole  life  in  strange  tribunals,  and  for  other 
people's  affairs.  Philip  of  Valois  ordained  m  that  none  but  the 
bailiffs  should  be  summoned;  and  when  the  usage  of  appeals 
became  still  more  frequent,  the  parties  were  obliged  to  defend 
the  appeal:  the  deed  of  the  judge  became  that  of  the  party.w 

I  took  notice  that  in  the  appeal  of  default  of  justice  o  the  lord 
lost  only  the  privilege  of  having  the  cause  tried  in  his  own  court. 
But  if  the  lord  himself  was  sued  as  party/  which  became  a  very 
common  practice,?  he  paid  a  fine  of  sixty  livres  to  the  king,  or  to 
the  paramount,  before  whom  the  appeal  was  brought.  Thence 
arose  the  usage  after  appeals  had  been  generally  received,  of 
making  the  fine  payable  to  the  lord  upon  the  reversal  of  the  sen- 
tence of  his  judge;  a  usage  which  lasted  a  long  time,  and  was 
confirmed  by  the  ordinance  of  Rousillon,  but  fell,  at  length,  to 
the  ground  through  its  own  absurdity. 

33. — The  same  Subject  continued 

In  the  practice  of  judicial  combats,  the  person  who  had  chal- 
lenged one  of  the  judges  of  false  judgment  might  lose  his  cause 
by  the  combat,  but  could  not  possibly  gain  it.**  And,  indeed,  the 
party  who  had  a  judgment  in  his  favor  ought  not  to  have  been 

/  Defontaines,  chap.  xxi.  art.  33.  o  See  chap.  xxx. 

m  In  the  year  1332.  p  Beaumanoir,  chap.  Ixi.  pp.  312  and 

n  See  the  situation  of  things  in  Bou-  318. 
tillier's    time,    who    lived    in    the    year  q  Ibid. 

1402.—"  Somme    Rurale,"    book    I.    pp.          r  Defontaines,  chap.  xxi.  art.  14. 
IQ  and  20. 


138  MONTESQUIEU 

deprived  of  it  by  another  man's  act.  The  appellant,  therefore, 
who  had  gained  the  battle  was  obliged  to  fight  likewise  against 
the  adverse  party :  not  in  order  to  know  whether  the  judgment 
was  good  or  bad  (for  this  judgment  was  out  of  the  case,  being 
reversed  by  the  combat),  but  to  determine  whether  the  demand 
was  just  or  not;  and  it  was  on  this  new  point  they  fought. 
Thence  proceeds  our  manner  of  pronouncing  decrees.  "  The 
court  annuls  the  appeal;  the  court  annuls  the  appeal  and  the 
judgment  against  which  the  appeal  was  brought."  In  effect, 
when  the  person  who  had  made  the  challenge  of  false  judgment 
happened  to  be  overcome  the  appeal  was  reversed:  when  he 
proved  victorious  both  the  judgment  and  the  appeal  were  re- 
versed; then  they  were  obliged  to  proceed  to  a  new  judgment. 

This  is  so  far  true,  that  when  the  cause  was  tried  by  inquests 
this  manner  of  pronouncing  did  not  take  place:  witness  what 
M.  de  la  Roche  Flavin  says,-*  namely,  that  the  chamber  of  enquiry 
could  not  use  this  form  at  the  .beginning  of  its  existence. 

34. — In  what  Manner  the  Proceedings  at  Law  became  secret 
Duels  had  introduced  a  public  form  of  proceeding  so  that  both 
the  attack  and  the  defence  were  equally  known.     "  The  wit- 
nesses," says  Beaumanoir/  "  ought  to  give  their  testimony  in 
open  court." 

Boutillier's  commentator  says  he  had  learned  of  ancient  prac- 
titioners, and  frorri  some  old  manuscript  law  books,  that  criminal 
processes  were  anciently  carried  on  in  public,  and  in  a  form  not 
very  different  from  the  public  judgments  of  the  Romans.  This 
was  owing  to  their  not  knowing  how^  to  write ;  a  thing  in  those 
days  very  common.  The  usage  of  writing  fixes  the  ideas,  and 
keeps  the  secret;  but  when  this  usage  is  laid  aside,  nothing  but 
the  notoriety  of  the  proceeding  is  capable  of  fixing  those  ideas. 
And  as  uncertainty  might  easily  arise  in  respect  to  what  had 
been  adjudicated  by  vassals,  or  pleaded  before  them,  they  could, 
therefore,  refresh  their  memory  «  every  time  they  held  a  court 
by  what  were  called  proceedings  on  record.^  In  that  case,  it  was 
not  allowed  to  challenge  the  witnesses  to  combat ;  for  then  there 
would  be  no  end  of  disputes. 

^  Of  the  Parliaments  of  France,  book          v  They  proved  by  witnesses  what  had 
XII.  chap.  xvi.  been  already  done,  said,  or  decreed  in 

t  Chap.  Ixi.  p.  315.  court. 

« As   Beaumanoir   says,   chap,    xxxix. 
p.  209. 


THE    SPIRIT    OF   LAWS  139 

In  process  of  time  a  private  form  of  proceeding  was  intro- 
duced. Everything  before  had  been  public;  everything  now 
became  secret;  the  interrogatories,  the  informations,  the  re-ex- 
aminations, the  confronting  of  witnesses,  the  opinion  of  the  at- 
torney-general ;  and  this  is  the  present  practice.  The  first  form 
of  proceeding  was  suitable  to  the  government  of  that  time,  as 
the  new  form  was  proper  to  the  government  since  established. 

Boutillier's  commentator  fixes  the  epoch  of  this  change  to  the 
ordinance  in  the  year  1539.  I  am  apt  to  believe  that  the  change 
was  made  insensibly,  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  was  improved. 
And,  indeed,  Beaumanoir  says  w  that  witnesses  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  battle. 

35.-— Of  the  Costs 

In  former  times  no  one  was  condemned  in  the  lay  courts  of 
France  to  the  payment  of  costs.*  The  party  cast  was  sufficiently 
punished  by  pecuniary  fines  to  the  lord  and  his  peers.  From 
the  manner  of  proceeding  by  judicial  combat  it  followed,  that 
the  party  condemned  and  deprived  of  life  and  fortune  was  pun- 
ished as  much  as  he  could  be :  and  in  the  other  cases  of  the  ju- 
dicial combat,  there  were  fines  sometimes  fixed,  and  sometimes 
dependent  on  the  disposition  of  the  lord,  which  were  sufficient 
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  assemble  his  peers,  or  to  enable  them  to  proceed  to  judgment. 
Besides,  as  disputes  were  generally  determined  at  the  same  place, 
and  almost  always  at  the  same  time,  without  that  infinite  multi- 
tude of  writings  which  afterwards  followed,  there  was  no  neces- 
sity of  allowing  costs  to  the  parties. 

The  custom  of  appeals  naturally  introduced  that  of  giving 
costs.  Thus  Defontaines  says,y  that  when  they  appealed  by 

w  Chap,  xxxix.  p.  218.  chap,    xxxiii.    "Institutions,"   book    I. 

x  Defontaines    in    his    counsel,    chap.        chap.  xc. 
xxii.    arts.   3   and   8 ;   and   Beaumanoir,          y  Chap.  xxii.  art.  8. 


1 40  MONTESQUIEU 

written  law,  that  is,  when  they  followed  the  new  laws  of  St.  Louis, 
they  gave  costs;  but  that  in  the  ordinary  practice,  which  did  not 
permit  them  to  appeal  without  falsifying  the  judgment,  no  costs 
were  allowed.  They  obtained  only  a  fine,  and  the  possession  for 
a  year  and  a  day  of  the  thing  contested,  if  the  cause  was  re- 
manded to  the  lord. 

But  when  the  number  of  appeals  increased  from  the  new  fa- 
cility of  appealing;  z  when  by  the  frequent  usage  of  those  appeals 
from  one  court  to  another,  the  parties  were  continually  removed 
from  the  place  of  their  residence;  when  the  new  method  of  pro- 
cedure multiplied  and  prolonged  the  suits;  when  the  art  of  elud- 
ing the  very  justest  demands  became  refined;  when  the  parties 
at  law  knew  how  to  fly  only  in  order  to  be  followed;  when 
plaints  were  ruinous  and  defence  easy ;  when  the  arguments  were 
lost  in  whole  volumes  of  words  and  writings ;  when  the  kingdom 
was  filled  with  limbs  of  the  law,  who  were  strangers  to  justice; 
when  knavery  found  encouragement  at  the  very  place  where  it 
did  not  find  protection;  then  it  was  necessary  to  deter  litigious 
people  by  the  fear  of  costs.  They  were  obliged  to  pay  costs  for 
the  judgment  and  for  the  means  they  had  employed  to  elude  it. 
Charles  the  Fair,  made  a  general  ordinance  on  that  subject.** 

36. — Of  the  public  Prosecutor 

As  by  the  Salic,  Ripuarian,  and  other  barbarous  iaws,  crimes 
were  punished  with  pecuniary  fines;  they  had  not  in  those  days, 
as  we  have  at  present,  a  public  officer  who  had  the  care  of  criminal 
prosecutions.  And,  indeed,  the  issue  of  all  causes  being  reduced 
to  the  reparation  of  injuries,  eVery  prosecution  was  in  some  meas- 
ure civil,  and  might  be  managed  by  anyone.  On  the  other  hand, 
the  Roman  law  had  popular  forms  for  the  prosecution  of  crimes 
which  were  inconsistent  with  the  functions  of  a  public  prosecutor. 

The  custom  of  judicial  combats  was  no  less  opposite  to  this 
idea ;  for  who  is  it  that  would  choose  to  be  a  public  prosecutor 
and  to  make  himself  every  man's  champion  against  all  the 
world? 

I  find  in  the  collection  of  formulas,  inserted  by  Muratori  in 
the  laws  of  the  Lombards,  that  under  our  princes  of  the  second 
race  there  was  an  advocate  for  the  public  prosecutor.^  But  who- 

z  At    present    when    they    are    so    in-  a  In  the  year  1324. 

clined     to     appeal,     says     Boutillier.—          b "  Advocatus  die  parte  publica." 
"  Somme  Rurale,"  book  I.  tit.  3,  p.  16. 


THE    SPIRIT    OF   LAWS  141 

ever  pleases  to  read  the  entire  collection  of  these  formulas  will 
find  that  there  was  a  total  difference  between  such  officers  and 
those  we  now  call  the  public  prosecutor,  our  attorneys-general, 
our  king's  solicitors,  or  our  solicitors  for  the  nobility.  The  for- 
mer were  rather  agents  to  the  public  for  the  management  of  po- 
litical and  domestic  affairs,  than  for  the  civil.  And,  indeed,  we 
did  not  find  in  those  formulas  that  they  were  intrusted  with 
criminal  prosecutions,  or  with  causes  relating  to  minors,  to 
churches,  or  to  the  condition  of  anyone. 

I  said  that  the  establishment  of  a  public  prosecutor  was  repug- 
nant to  the  usage  of  judicial  combats.  I  find,  notwithstanding, 
in  one  of  those  formulas,  an  advocate  for  the  public  prosecutor, 
who  had  the  liberty  to  fight.  Muratori  has  placed  it  just  after 
the  constitution  of  Henry  I,  for  which  it  was  made.c  In  this 
constitution  it  is  said,  "  That  if  any  man  kills  his  father,  his 
brother,  or  any  of  his  other  relatives,  he  shall  lose  their  succes- 
sion, which  shall  pass  to  the  other  relatives,  and  his  own  prop- 
erty shall  go  to  the  exchequer."  Now  it  was  in  suing  for  the 
estate  which  had  devolved  to  the  exchequer,  that  the  advocate  for 
the  public  prosecutor,  by  whom  its  rights  were  defended,  had 
the  privilege  of  fighting :  this  case  fell  within  the  general  rule. 

We  see  in  those  formulas  the  advocate  for  the  public  prose- 
cutor proceeding  against  a  person  who  had  taken  a  robber,  but 
had  not  brought  him  before  the  count ;  d  against  another  who  had 
raised  an  insurrection  or  tumult  against  the  count;  e  against  an- 
other who  had  saved  a  man's  life  whom  the  count  had  ordered 
to  be  put  to  death ;  f  against  the  advocate  of  some  churches, 
whom  the  count  had  commanded  to  bring  a  robber  before  him, 
but  had  not  obeyed ;  g  against  another  who  had  revealed  the 
king's  secret  to  strangers ;  h  against  another,  who  with  open  vio- 
lence had  attacked  the  emperor's  commissary ;  i  against  another 
who  had  been  guilty  of  contempt  to  the  emperor's  rescripts,  and 
he  was  prosecuted  either  by  the  emperor's  advocate  or  by  the 
emperor  himself; ;  against  another,  who  refused  to  accept  of  the 
prince's  coin;  k  in  fine,  this  advocate  sued  for  things,  which  by 
the  law  were  adjudged  to  the  exchequer.* 

c  See   this   constitution   and   this   for-  /  Ibid.  p.   104. 

mula,    in    the    second    volume    of    the  g  Collection  of  Muratori,  p.  95. 

"  Historians  of  Italy,"  p.  175.  h  Ibid.  p.  88. 

d  Collection    of    Muratori,   p.    104,    on  *  Ibid.  p.  98. 


the  88th  law  of   Charlemagne,   book   I.  /  Ibid.  p.  132. 

tit.  26,  sec.  48.  k  Ibid. 

e  Another  formula,  ibid.  p.  7.  /  Ibid.  p.  137. 


1 42  MONTESQUIEU 

But  in  criminal  causes,  we  never  meet  with  the  advocate  for 
the  public  prosecutor;  not  even  where  duels  are  used;  m  not  even 
in  the  case  of  incendiaries ;  n  not  even  when  the  judge  is  killed  on 
his  bench ;  o  not  even  in  causes  relating  to  the  conditions  of  per- 
sons/ to  liberty  and  slavery.^ 

These  formulas  are  made,  not  only  for  the  laws  of  the  Lom- 
bards, but  likewise  for  the  capitularies  added  to  them,  so  that  we 
have  no  reason  to  doubt  of  their  giving  us  the  practice  observed 
with  regard  to  this  subject  under  our  princes  of  the  second  race. 

It  is  obvious,  that  these  advocates  for  a  public  prosecutor  must 
have  ended  with  our  second  race  of  kings,  in  the  same  manner 
as  the  king's  commissioners  in  the  provinces;  because  there  was 
no  longer  a  general  law  nor  general  exchequer,  and  because  there 
were  no  longer  any  counts  in  the  provinces  to  hold  the  assizes, 
and,  of  course,  there  were  no  more  of  those  officers,  whose  princi- 
pal function  was  to  support  the  authority  of  the  counts. 

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  Boutillier,  in  his  "  Somme  Rurale,"  speaking  of  the 
officers  of  justice,  takes  notice  only  of  the  bailiffs,  the  peers,  and 
sergeants.  See  the  Institutions/  and  Beaumanoir,*  concerning 
the  manner  in  which  prosecutions  were  managed  in  those  days. 

I  find  in  the  laws  of  James  II,  King  of  Majorca/  a  creation  of 
the  office  of  king's  attorney-general,  with  the  very  same  func- 
tions as  are  exercised  at  present  by  the  officers  of  that  name 
among  us."  It  is  manifest  that  this  office  was  not  instituted  till 
we  had  changed  the  form  of  our  judiciary  proceedings. 

37. — In  what  Manner  the  Institutions  of  St.  Louis  fell  into 

Oblivion 

It  was  the  fate  of  the  Institutions,  that  their  origin,  progress, 
and  decline  were  comprised  within  a*  very  short  period. 

I  shall  make  a  few  reflections  upon  this  subject.  The  code 
we  have  now  under  the  name  of  St.  Louis's  Institutions  was 
never  designed  as  a  law  for  the  whole  kingdom,  though  such  a 

m  Collection  of  Muratori,  p.  147.  t  See  these  laws  in  the  "  Lives  of  the 

n  Ibid.  Saints,"  of  the  month  of  June,  torn.  iii. 

o  Ibid.   p.    168.  p.  26. 

P  Ibid.  p.   134,  it "  Qui      continue     nostram     sacram 

q  Ibid.  p.    107.  curiam    sequi    teneatur,    instituatur    qui 

r  Book    I.    chap.  i. ;    and    book    II.       facta  et  causas  in  ipsa  curia  promoveat 

chaps,  xi.  and  xiii.  atque  prosequatur 
s  Cap.  i.  and  Ixi. 


THE    SPIRIT    OF   LAWS  143 

design  is  mentioned  in  the  preface.  The  compilation  is  a  gen- 
eral code,  which  determines  all  points  relating  to  civil  affairs, 
to  the  disposal  of  property  by  will  or  otherwise,  the  dowries  and 
privileges  of  women,  and  emoluments  and  privileges  of  fiefs,  with 
the  affairs  in  relation  to  the  police,  etc.  Now,  to  give  a  general 
body  of  civil  laws,  at  a  time  when  each  city,  town,  or  village,  had 
its  customs,  was  attempting  to  subvert  in  one  moment  all  the 
particular  laws  then  in  force  in  every  part  of  the  kingdom.  To 
reduce  all  the  particular  customs  to  a  general  one  would  be  a 
very  inconsiderate  thing,  even  at  present  when  our  princes  find 
everywhere  the  most  passive  obedience.  But  if  it  be  true  that  we 
ought  not  to  change  when  the  inconveniences  are  equal  to  the 
advantages,  much  less  should  we  change  when  the  advantages 
are  small  and  the  inconveniences  immense.  Now,  if  we  atten- 
tively consider  the  situation  which  the  kingdom  was  in  at  that 
time,  when  every  lord  was  puffed  up  with  the  notion  of  his 
sovereignty  and  power,  we  shall  find  that  to  attempt  a  general  al- 
teration of  the  received  laws  and  customs  must  be  a  thing  that 
could  never  enter  into  the  heads  of  those  who  were  then  in  the 
administration. 

What  I  have  been  saying  proves  likewise  that  this  code  of 
institutions  was  not  confirmed  in  parliament  by  the  barons  and 
magistrates  of  the  kingdom,  as  is  mentioned  in  a  manuscript  of 
the  town-hall  of  Amiens,  quoted  by  M.  Ducange.^  We  find  in 
other  manuscripts  that  this  code  was  given  by  St.  Louis  in  the 
year  1270,  before  he  set  out  for  Tunis.  But  this  fact  is  not  truer 
than  the  other;  for  St.  Louis  set  out  upon  that  expedition  in 
1269,  as  M.  Ducange  observes:  whence  he  concludes,  that  this 
code  might  have  been  published  in  his  absence.  But  this 
I  say  is  impossible.  How  can  St.  Louis  be  imagined  to  have 
pitched  upon  the  time  of  his  absence  for  transacting  an  affair 
which  would  have  been  a  sowing  of  troubles,  and  might  have 
produced  not  only  changes,  but  revolutions?  An  enterprise  of 
that  kind  had  need,  more  than  any  other,  of  being  closely  pur- 
sued, and  could  not  be  the  work  of  a  feeble  regency,  composed 
moreover  of  lords,  whose  interest  it  was  that  it  should  not  suc- 
ceed. These  were  Matthew,  Abbot  of  St.  Denis,  Simon  of  Cler- 
mont,  Count  of  Nesle,  and,  in  case  of  death,  Philip,  Bishop  of 
Evreux,  and  John,  Count  of  Ponthieu.  We  have  seen  above  w 

v  Preface  to  the  "  Institutions."  w  Chap.  xxix. 


I44  MONTESQUIEU 

that  the  Count  of  Ponthieu  opposed  the  execution  of  a  new  ju- 
diciary .order  in  his  lordship. 

Thirdly,  I  affirm  it  to  be  very  probable,  that  the  code  now  ex- 
tant is  quite  a  different  thing  from  St.  Louis's  Institutions.  It 
cites  the  Institutions,  therefore  it  is  a  comment  upon  the  Institu- 
tions, and  not  the  Institutions  themselves.  Besides,  Beaumanoir, 
who  frequently  makes  mention  of  St.  Louis's  Institutions,  quotes 
only  some  particular  laws  of  that  prince,  and  not  this  compila- 
tion. Defontaines,*  who  wrote  in  that  prince's  reign,  makes 
mention  of  the  first  two  times  that  his  Institutions  on  judicial 
proceedings  were  put  in  execution,  as  of  a  thing  long  since 
elapsed.  The  Institutions  of  St.  Louis  were  prior,  therefore,  to 
the  compilation  I  am  now  speaking  of,  which  from  their  rigor, 
and  their  adopting  the  erroneous  prefaces  inserted  by  some  ig- 
norant persons  in  that  work,  could  not  have  been  published  be- 
fore the  last  year  of  St.  Louis  or  even  not  till  after  his  death. 

38. — The  same  Subject  continued 

What  is  this  compilation  then  which  goes  at  present  under 
the  name  of  St.  Louis's  Institutions?  What  is  this  obscure,  con- 
fused, and  ambiguous  code,  where  the  French  law  is  continually 
mixed  with  the  Roman,  where  a  legislator  speaks  and  yet  we  see 
a  civilian,  where  we  find  a  complete  digest  of  all  cases  and  points 
of  the  civil  law?  To  understand  this  thoroughly,  we  must  trans- 
fer ourselves  in  imagination  to  those  times. 

St.  Louis,  seeing  the  abuses  in  the  jurisprudence  of  his  time, 
endeavored  to  give  the  people  a  dislike  to  it.  With  this  view 
he  made  several  regulations  for  the  court  of  his  demesnes,  and 
for  those  of  his  barons.  And  such  was  his  success  that  Beau- 
manoir, who  wrote  a  little  after  the  death  of  that  prince,  informs 
us  y  that  the  manner  of  trying  causes  which  had  been  established 
by  St.  Louis  obtained  in  a  great  number  of  the  courts  of  the 
barons. 

Thus  this  prince  attained  his  end,  though  his  regulations  for 
the  courts  of  the  lords  were  not  designed  as  a  general  law  for 
the  kingdom,  but  as  a  model  which  everyone  might  follow,  and 
would  even  find  his  advantage  in  it.  He  removed  the  bad  prac- 
tice by  showing  them  a  better.  When  it  appeared  that  his  courts, 
and  those  of  some  lords,  had  chosen  a  form  of  proceeding  more 

K  See  above,  chap.  xxix.  y  Chap.  Ixi.  p.  309. 


THE   SPIRIT   OF   LAWS  145 

natural,  more  reasonable,  more  conformable  to  morality,  to  re- 
ligion, to  the  public  tranquillity,  and  to  the  security  of  person  and 
property,  this  form  was  soon  adopted,  and  the  other  rejected. 

To  allure  when  it  is  rash  to  constrain,  to  win  by  pleasing 
means  when  it  is  improper  to  exert  authority,  shows  the  man 
of  abilities.  Reason  has  a  natural,  and  even  a  tyrannical  sway ; 
it  meets  with  resistance,  but  this  very  resistance  constitutes  its 
triumph;  for  after  a  short  struggle  it  commands  an  entire  sub- 
mission. 

St.  Louis,  in  order  to  give  a  distaste  of  the  French  jurispru- 
dence, caused  the  books  of  the  Roman  law  to  be  translated ;  by 
which  means  they  were  made  known  to  the  lawyers  of  those 
times.  Defontaines,  who  is  the  oldest  law  writer  we  have,  made 
great  use  of  those  Roman  laws.s  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  little  use  of  the  latter;  but  he  reconciled  the  ancient 
French  laws  to  the  regulations  of  St.  Louis. 

I  have  a  notion,  therefore,  that  the  law  book,  known  by  the 
name  of  the  Institutions,  was  compiled  by  some  bailiffs,  with 
the  same  design  as  that  of  the  authors  of  those  two  works,  and 
especially  of  Defontaines.  The  title  of  this  work  mentions  that 
it  is  written  according  to  the  usage  of  Paris,  Orleans,  and  the 
court  of  barony;  and  the  preamble  says  that  it  treats  of  the  usage 
of  the  whole  kingdom,  of  Anjou,  and  of  the  court  of  barony.  It 
is  plain  that  this  work  was  made  for  Paris,  Orleans,  and  Anjou, 
as  the  works  of  Beaumanoir  and  Defontaines  were  framed  for 
the  counties  of  Clermont  and  Vermandois;  and  as  it  appears 
from  Beaumanoir  that  divers  laws  of  St.  Louis  had  been  received 
in  the  courts  of  barony,  the  compiler  was  in  the  right  to  say  that 
his  work  related  also  to  those  courts.^ 

It  is  manifest  that  the  person  who  composed  this  work  com- 
piled the  customs  of  the  country  together  with  the  laws  and  In- 
stitutions of  St.  Louis.  This  is  a  very  valuable  work,  because  it 
contains  the  ancient  customs  of  Anjou,  the  Institutions  of  St. 

g  He  says  of  himself,  in  his  prologue,  of  barony;  then  they  are  the  customs 

"  Nus  luy  en  prit  onques  mais  cette  of  all  the  lay  courts  of  the  kingdom, 

chose  dont  j'ay.  and  of  the  provostships  of  France;  at 

a  Nothing  so  vague  as  the  title  and  length,  they  are  the  customs  of  the 

prologue.  At  first  they  are  the  cus-  whole  kingdom,  Anjou,  and  the  court 

toms  of  Paris,  Orleans,  and  the  court  of  barony. 

VOL  II— 10 


146  MONTESQUIEU 

Louis,  as  they  were  then  in  use;  and,  in  fine,  the  whole  practice 
of  the  ancient  French  law. 

The  difference  between  this  work,  and  those  of  Defontaines  and 
Beaumanoir  is,  its  speaking  in  imperative  terms  as  a  legislator; 
and  this  might  be  right,  since  it  was  a  medley  of  written  customs 
and  laws. 

There  was  an  intrinsic  defect  in  this  compilation ;  it  formed  an 
amphibious  code,  in  which  the  French  and  Roman  laws  were 
mixed,  and  where  things  were  joined  that  were  in  no  relation, 
but  often  contradictory  to  each  other. 

I  am  not  ignorant  that  the  French  courts  of  vassals  or  peers, 
the  judgments  without  power  of  appealing  to  another  tribunal, 
the  manner  of  pronouncing  sentence  by  these  words,  "  I  con- 
demn "  or  "  I  absolve,"  b  had  some  conformity  to  the  popular 
judgments  of  the  Romans.  But  they  made  very  little  use  of 
that  ancient  jurisprudence ;  they  rather  chose  that  which  was 
afterwards  introduced  by  the  emperor,  in  order  to  regulate, 
limit,  correct,  and  extend  the  French  jurisprudence. 

39. — The  same  Subject  continued 

The  judiciary  forms  introduced  by  St.  Louis  fell  into  disuse. 
This  prince  had  not  so  much  in  view  the  thing  itself,  that  is,  the 
best  manner  of  trying  causes,  as  the  best  manner  of  supplying 
the  ancient  practice  of  trial.  The  principal  intent  was  to  give  a 
disrelish  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.  Louis  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  general  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  could  hardly  be 
expected  from  a  masterpiece  of  legislation.  To  prepare  great 

b  "  Institutions,"  book  II.  chap.  xv. 


THE   SPIRIT   OF   LAWS  147 

changes  whole  ages  are  sometimes  requisite;  the  events  ripen, 
and  the  revolutions  follow. 

The  Parliament  judged  in  the  last  resort  of  almost  all  the  af- 
fairs of  the  kingdom.  Before,^  it  took  cognizance  only  of  dis- 
putes between  the  dukes,  counts,  barons,  bishops,  abbots,  or  be- 
tween the  king  and  his  vassals,^  rather  in  the  relation  they  bore 
to  the  political  than  to  the  civil  order.  They  were  soon  obliged 
to  render  it  permanent,  whereas  it  used  to  be  held  only  a  few 
times  in  a  year:  and,  in  fine,  a  great  number  were  created,  in 
order  to  be  sufficient  for  the  decision  of  all  manner  of  causes. 

No  sooner  had  the  Parliament  become  a  fixed  body,  than  they 
began  to  compile  its  decrees.  John  de  Monluc,  in  the  reign  of 
Philip  the  Fair,  made  a  collection  which  at  present  is  known 
by  the  name  of  the  Olim  registers.* 

40. — In  what  Manner  the  judiciary  Forms  were  borrowed  from 

the  Decretals 

But  how  comes  it,  some  will  ask,  that  when  the  Institutions 
were  laid  aside  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  ecclesiastic  courts,  which  followed 
the  forms  of  the  canon  law,  and  they  knew  of  no  court  that  fol- 
lowed those  of  the  Roman  law?  Besides,  the  limits  of  the  spirit- 
ual and  temporal  jurisdiction  were  at  that  time  very  little  under- 
stood; there  were  people  who  sued  indifferently  fand  causes  that 
were  tried  indifferently,  in  either  courts  It  seems  h  as  if  the 
temporal  jurisdiction  reserved  no  other  cases  exclusively  to  it- 
self than  the  judgment  of  feudal  matters,*  and  of  such  crimes 
committed  by  laymen  as  did  not  relate  to  religion.  For  /  if,  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  tribunals ;  and  as  the  latter  had  not  a  power  to 
oblige  the  temporal  court  to  execute  the  sentence,  they  com- 

c  See  Du  Tillet  on  the  court  of  peers.  h  See  the   whole   eleventh   chapter  of 

See  also  Laroche,  Flavin,  book  I    chap.  Beaumanoir. 

iii.,  Budeus  and  Paulus  ^Emilius.  *  The  spiritual  tribunals  had  even  laid 

d  Other  causes   were   decided   by  the  hold  of  these,  under  the  pretext  of  the 

ordinary  tribunals.  oath,    as    may   be    seen    by   the   famous 

e  See   the    President    Renault's    excel-  Concordat     between     Philip     Augustus, 

lent    abridgment    of    the    "  History    of  the  clergy,  and  the  barons,  which  is  to 

France  "  in  the  year  1313.  be  found  in  the  Ordinances  of  Lauriere. 

f  Beaumanoir,  chap.  xi.  p.  58.  ;  Beaumanoir,  chap.  xi.  p.  60. 

g  Widows,   croises,   etc.— Beaumanois, 
chap.  xi.  p.  58. 


i48  MONTESQUIEU 

manded  submission  by  means  of  excommunications.  Under 
those  circumstances,  when  they  wanted  to  change  the  course  of 
proceedings  in  the  temporal  court,  they  took  that  of  the  spiritual 
tribunals,  because  they  knew  it ;  but  did  not  meddle  with  that  of 
the  Roman  law,  by  reason  they  were  strangers  to  it:  for  in  point 
of  practice  people  know  only  what  is  really  practised. 

41. — Plux  and  Reflux  of  the  ecclesiastic  and  temporal 
Jurisdiction 

The  civil  power  being  in  the  hands  of  an  infinite  number  of 
lords,  it  was  an  easy  matter  for  the  ecclesiastic  jurisdiction  to 
gain  daily  a  greater  extent.  But  as  the  ecclesiastic  courts  weak- 
ened those  of  the  lords,  and  contributed  thereby  to  give  strength 
to  the  royal  jurisdiction,  the  latter  gradually  checked  the  juris- 
diction of  the  clergy.  The  Parliament,  which  in  its  form  of  pro- 
ceedings had  adopted  whatever  was  good  and  useful  in  the  spirit- 
ual courts,  soon  perceived  nothing  else  but  the  abuses  which  had 
crept  into  those  tribunals;  and  as  the  royal  jurisdiction  gained 
ground  every  day,  it  grew  every  day  more  capable  of  correcting 
those  abuses.  And,  indeed,  they  were  intolerable ;  without  enu- 
merating them  I  shall  refer  the  reader  to  Beaumanoir,  to  Boutil- 
lier,  and  to  the  ordinances  of  our  kings.fe  I  shall  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  ignorance,  and 
upon  the  breaking  out  of  the  first  gleam  of  light,  they  vanished. 
From  the  silence  of  the  clergy  it  may  be  presumed  that  they  for- 
warded this  reformation:  which,  considering  the  nature  of  the 
human  mind,  deserves  commendation.  Every  man  that  died 
without  bequeathing  a  part  of  his  estate  to  the  church,  which 
was  called  dying  without  confession,  was  deprived  of  the  sacra- 
ment and  of  Christian  burial.  If  he  died  intestate,  his  relatives 
were  obliged  to  prevail  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 could  not  lie  together  the  first  night  of  their  nuptials,  or  even 
the  two  following  nights  without  having  previously  purchased 

k  See  Boutillier,  "  Somtne  Rurale,"  tions  of  Philip  Augustus  upon  this  sub- 
tit.  9,  what  persons  are  incapable  of  ject;  as  also  the  regulation  between 
suing  in  a  temporal  court:  and  Beau-  Philip  Augustus,  the  clergy,  and  the 
manoir,  chap.  xi.  p.  56,  and  the  regula-  barons. 


THE   SPIRIT    OF   LAWS  149 

leave;  these,  indeed,  were  the  best  three  nights  to  choose;  for 
as  to  the  others,  they  were  not  worth  much.  All  this  was  re- 
dressed by  the  Parliament :  we  find  in  the  glossary  of  the  French 
law,*  by  Ragneau,  the  decree  which  it  published  against  the 
Bishop  of  Amiens.w 

I  return  to  the  beginning  of  my  chapter.  Whenever  we  ob- 
serve in  any  age  or  government  the  different  bodies  of  the  state 
endeavoring  to  increase  their  authority,  and  to  take  particular 
advantages  of  each  other,  we  should  be  often  mistaken  were  we 
to  consider  their  enroachments  as  an  evident  mark  of  their  cor- 
ruption. Through  a  fatality  inseparable  from  human  nature, 
moderation  in  great  men  is  very  rare :  and  as  it  is  always  much 
easier  to  push  on  force  in  the  direction  in  which  it  moves  than 
to  stop  its  movement,  so  in  the  superior  class  of  the  people,  it  is 
less  difficult,  perhaps,  to  find  men  extremely  virtuous,  than  ex- 
tremely prudent. 

The  human  mind  feels  such  an  exquisite  pleasure  in  the  ex- 
ercise of  power;  even  those  who  are  lovers  of  virtue  are  so  ex- 
cessively fond  of  themselves  that  there  is  no  man  so  happy  as  not 
still  to  have  reason  to  mistrust  his  honest  intentions;  and,  in- 
deed, our  actions  depend  on  so  many  things  that  it  is  infinitely 
easier  to  do  good,  than  to  do  it  well. 

42. — The  Revival  of  the  Roman  Law,  and  the  Result  thereof. 
Change  of  Tribunals 

Upon  the  discovery  of  Justinian's  digest  towards  the  year  1 137, 
the  Roman  law  seemed  to  rise  out  of  its  ashes.  Schools  were 
then  established  in  Italy,  where  it  was  publicly  taught ;  they  had 
already  the  Justinian  code  and  the  Novella.  I  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  they  had  only  the  Theodosian  code ;  n  because  Justinian's 
laws  were  not  made  till  after  the  settlement  of  the  barbarians  in 
Gaul.o  This  law  met  with  some  opposition:  but  it  stood  its 
ground  notwithstanding  the  excommunications  of  the  popes, 

/  In    the    words    "  testamentary    ex-  of  Troyes  makes  mention  of  this  code, 

ecutors."  not   because   it  was   known   in   France, 

m  The  ipth  of  March,  1409.  but  because  he  knew  it  himself,  and  his 

n  In    Italy    they    followed    Justinian's  constitution  was  general, 

code;    hence    Pope   John   VIII    in    his  o  This  Emperors  code  was  published 

constitution  published  after  the  Synod  towards  the  year  530. 


150  MONTESQUIEU 

who  supported  their  own  canons./*  St.  Louis  endeavored  to 
bring  it  into  repute  by  the  translations  of  Justinian's  works,  made 
according  to  his  orders,  which  are  still  in  manuscript  in  our 
libraries ;  and  I  have  already  observed,  that  they  made  great  use 
of  them  in  compiling  the  Institutions.  Philip  the  Fair  ordered 
the  laws  of  Justinian  to  be  taught  only  as  written  reason  in  those 
provinces  of  France  that  were  governed  by  customs;  and  they 
were  adopted  as  a  law  in  those  provinces  where  the  Roman  law 
had  been  received.? 

I  have  already  noticed  that  the  manner  of  proceeding  by  ju- 
dicial combat  required  very  little  knowledge  in  the  judges;  dis- 
putes were  decided  according  to  the  usage  of  each  place,  and  to 
a  few  simple  customs  received  by  tradition.  In  Beaumanoir's 
time  there  were  two  different  ways  of  administering  justice;  r  in 
some  places  they  tried  by  peers,-*  in  others  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  prud'hommes,  or 
old  men,  who  pointed  out  this  same  practice  to  the  bailiffs.*  This 
whole  proceeding  required  neither  learning,  capacity,  nor  study. 
But  when  the  dark  code  of  the  Institutions  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  prud'hommes  were  no  longer  capable  of  judging: 
the  peers  began  to  withdraw  from  the  lords'  tribunals;  and  the 
lords  were  very  little  inclined  to  assemble  them;  especially  as 
the  new  form  of  trial,  instead  of  being  a  solemn  proceeding, 
agreeable  to  the  nobility  and  interesting  to  a  warlike  people,  had 
become  a  course  of  pleading  which  they  neither  understood,  nor 
cared  to  learn.  The  custom  of  trying  by  peers  began  to  be  less 
used ; «  that  of  trying  by  bailiffs  to  be  more  so ;  the  bailiffs  did 
not  give  judgment  themselves,^  they  summed  up  the  evidence 

p  Decretals,    book   V.   tit.    "  de   privi-  from  the  formula  quoted  by  Boutillier, 

legiis,"  capite  "  super  specula."  "  Somme  Rurale,"  book  IV.  tit.  xxi. 

q  By   a   charter   in   the   year    1312,   in  u  The  change  was  insensible ;  we  meet 

favor    of    the    university    of     Orleans,  with   trials    by    peers,    even    in    Boutil- 

quoted  by  Du  Tillet.  lier's  time,  who  lived  in  the  year  1402, 

r  "  Customs  of   Beauvoisis,"  chap,   i.,  which  is  the  date  of  his  will.    He  gives 

of  the  office  of  bailiffs.  this    formula,    book    I.    tit.    21,    "  Sire 

s  Among     the     common     people     the  Juge,    en    ma   justice    haute,    moyenne 

burghers  were  tried  by  burghers,  as  the  et    basse,    qui    j'ai    en    tel    lieu,    cour, 

feudatory  tenants  were  tried  by  one  an-  plaids,     baillis,     hommes,     feodaux     et 

other.    See  La  Thaumassiere,  chap.  xix.  sergens."    Yet  nothing  but  feodal  mat- 

t  Thus  all  requests  began  with  these  ters  were  tried  any  longer  by  the  peers, 

words:  "  My  lord  judge,  it  is  custom-  Ibid,  book  I.  tit.  i.  p.  16. 

ary  that  in  your  court,    etc.,  as  appears  v  As  appears  by  the  formula  of  the 


THE   SPIRIT   OF   LAWS  151 

and  pronounced  the  judgment  of  the  prud'hommes;  but  the  latter 
being  no  longer  capable  of  judging,  the  bailiffs  themselves  gave 
judgment. 

This  was  effected  so  much  the  easier,  as  they  had  before  their 
eyes  the  practice  of  the  ecclesiastic  courts;  the  canon  and  new 
civil  law  both  concurred  alike  to  abolish  the  peers. 

Thus  fell  the  usage  hitherto  constantly  observed  in  the  French 
monarchy,  that  judgment  should  not  be  pronounced  by  a  single 
person,  as  may  be  seen  in  the  Salic  laws,  the  Capitularies,  and  in 
the  first  law-writers  under  the  third  race.w  The  contrary  abuse 
which  obtains  only  in  local  jurisdictions  has  been  moderated,  and 
in  some  measure  redressed,  by  introducing  in  many  places  a 
judge's  deputy,  whom  he  consults,  and  who  represents  the  an- 
cient prud'hommes  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  extreme  facility  of  ap- 
peals. 

43. — The  same  Subject  continued 

Thus  there  was  no  law  to  prohibit  the  lords  from  holding  their 
courts  themselves ;  none  to  abolish  the  functions  of  their  peers ; 
none  to  ordain  the  creation  of  bailiffs;  none  to  give  them  the 
power  of  judging.  All  this  was  effected  insensibly,  and  by  the 
very  necessity  of  the  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  the  lords  to  choose  their  bailiffs  from  among  the  laity .* 
It  is  a  mistake  to  look  upon  this  as  a  law  of  their  creation ;  for  it 
says  no  such  thing.  Besides,  the  intention  of  the  legislator  is  de- 
termined by  the  reasons  assigned  in  the  ordinance :  "  to  the  end 
that  the  bailiffs  may  be  punished  for  their  prevarications  it  is 


letters   which   their  lord   used  to   give       to  the  reasons  alleged;  and  if  they  say, 


ceedings.         The    bailiff    is    obliged   in        ment 


the  presence  of  the  peers  to  take  down  w  Beaumanoir,    chap.    Ixvii.    p.    336, 

the  words  of  those  who  plead,  and  to  and   chap.   Ixi.    pp.    315   and   316.     The 

ask  the  parties   whether  they  are  will-  "  Institutions,"   book  II.   chap.  xv. 
ing  to  have  judgment  given  according          *  It  was  published  in  the  year  1287. 


I52  MONTESQUIEU 

necessary  they  be  taken  from  the  order  of  the  laity."  y   The  im- 
munities of  the  clergy  in  those  days  are  very  well  known. 

We  must  not  imagine  that  the  privileges  which  the  nobility 
formerly  enjoyed,  and  of  which  they  are  now  divested,  were  taken 
from  them  as  usurpations;  no,  many  of  those  privileges  were 
lost  through  neglect,  and  others  were  given  up,  because  as  vari- 
ous changes  had  been  introduced  in  the  course  of  so  many  ages, 
they  were  inconsistent  with  those  changes. 

44. — Of  the  Proof  by  Witnesses 

The  judges,  who  had  no  other  rule  to  go  by  than  the  usages, 
inquired  very  often  by  witnesses  into  every  cause  that  was 
brought  before  them. 

The  usage  of  judicial  combats  beginning  to  decline,  they  made 
their  inquests  in  writing.  But  a  verbal  proof  committed  to  writ- 
ing is  never  more  than  a  verbal  proof;  so  that  this  only  in- 
creased the  expenses  of  law  proceedings.  Regulations  were  then 
made  which  rendered  most  of  those  inquests  useless  ;s  public 
registers  were  established  which  ascertained  most  facts,  as  no- 
bility, age,  legitimacy,  and  marriage.  Writing  is  a  witness  very 
hard  to  corrupt ;  the  customs  were  therefore  reduced  to  writing. 
All  this  is  very  reasonable;  it  is  much  easier  to  go  and  see  in 
the  baptismal  register,  whether  Peter  is  the  son  of  Paul  than  to 
prove  this  fact  by  a  tedious  inquest.  When  there  are  a  number 
of  usages  in  a  country  it  is  much  easier  to  write  them  all  down 
in  a  code,  than  to  oblige  individuals  to  prove  every  usage.  At 
length  the  famous  ordinance  was  made,  which  prohibited  the 
admitting  of  the  proof  by  witnesses  for  a  debt  exceeding  an  hun- 
dred livres,  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 
customs,  and  the  particular  usages  of  each  lordship  constituted 
the  civil  law.  Every  lordship  had  its  civil  law,  according  to 
Beaumanoir,o  and  so  particular  a  law,  that  this  author,  who  is 

y "  Ut    si    ibi    delinquant,    suoeriores        age  were  proved. — "  Institutions,"  book 
sui   possint   animadvertere   in    eosdem."        I.  chaps.  Ixxi.  and  Ixxii. 
*  See  in  what  manner  age  and  parent-  a  Prologue  to  the  "  Custom  of  Beau- 


THE  SPIRIT  OF  LAWS  153 

looked  upon  as  a  luminary,  and  a  very  great  luminary  of  those 
times,  says  he  does  not  believe  that  throughout  the  whole  king- 
dom there  were  two  lordships  entirely  governed  by  the  same 
law. 

This  prodigious  diversity  had  a  twofold  origin.  With  regard 
to  the  first,  the  reader  may  recollect  what  has  been  already  said 
concerning  it  in  the  chapter  of  local  customs :  b  and  as  to  the 
second  we  meet  with  it  in  the  different  events  of  legal  duels,  it 
being  natural  that  a  continual  series  of  fortuitous  cases  must 
have  been  productive  of  new  usages. 

These  customs  were  preserved  in  the  memory  of  old  men,  but 
insensibly  laws  or  written  customs  were  formed. 

1.  At  the  commencement  of  the  third  race,  the  kings  gave  not 
only  particular  charters,  but  likewise  general  ones,  in  the  manner 
above  explained;   such  are  the  Institutions  of  Philip  Augustus 
and  those  made  by  St.  Louis.    In  like  manner  the  great  vassals, 
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  of  Godfrey,  Count  of  Brittany,  on  the  division  of  the  no- 
bles; the  customs  of  Normandy,  granted  by  Duke  Ralph;  the 
customs  of  Champagne,  given  by  King  Theobald;  the  laws  of 
Simon,  Count  of  Montfort,  and  others.    This  produced  some 
written  laws,  and  even  more  general  ones  than  those  they  had  be- 
fore. 

2.  At  the  beginning  of  the  third  race,  almost  all  the  common 
people  were  bondmen.;  but  there  were  several  reasons  which 
afterwards  determined  the  kings  and  lords  to  enfranchise  them. 

The  lords  by  enfranchising  their  bondmen  gave  them  proper- 
ty; it  was  necessary  therefore  to  give  them  civil  laws,  in  order 
to  regulate  the  disposal  of  that  property.  But  by  enfranchising 
their  bondmen,  they  likewise  deprived  themselves  of  their  prop- 
erty; there  was  a  necessity,  therefore,  of  regulating  the  rights 
which  they  reserved  to  themselves,  as  an  equivalent  for  that 
property.  Both  these  things  were  regulated  by  the  charters  of 
enfranchisement;  those  charters  formed  a  part  of  our  customs, 
and  this  part  was  reduced  to  writings 

3.  Under  the  reign  of  St.  Louis,  and  of  the  succeeding  princes, 
some  able  practitioners,  such  as  Defontaines,  Beaumanoir,  and 

b  Chap.  xii.         c  See  the  "  Collection  of  Ordinances,"   by  Lauriere. 


I54  MONTESQUIEU 

others,  committed  the  customs  of  their  bailiwicks  to  writing. 
Their  design  was  rather  to  give  the  course  of  judicial  proceed- 
ings, than  the  usages  of  their  time  in  respect  to  the  disposal  of 
property.  But  the  whole  is  there,  and  though  these  particular 
authors  have  no  authority  but  what  they  derive  from  the  truth 
and  notoriety  of  the  things  they  speak  of,  yet  there  is  no  manner 
of  doubt  but  that  they  contributed  greatly  to  the  restoration  of 
our  ancient  French  jurisprudence.  Such  was  in  those  days  our 
common  law. 

We  have  come  now  to  the  grand  epoch.  Charles  VII  and  his 
successors  caused  the  different  local  customs  throughout  the 
kingdom  to  be  reduced  to  writing,  and  prescribed  set  forms  to  be 
observed  to  their  digesting.  Now,  as  this  digesting  was  made 
through  all  the  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,  endeavors  were  made 
to  render  the  customs  more  general,  as  much  as  possible,  with- 
out injuring  the  interests  of  individuals,  which  were  carefully  pre- 
served.d  Thus  our  customs  were  characterized  in  a  threefold 
manner;  they  were  committed  to  writing,  they  were  made  more 
general,  and  they  received  the  stamp  of  the  royal  authority. 

Many  of  these  customs  having  been  digested  anew,  several 
changes  were  made  either  in  suppressing  whatever  was  incom- 
patible with  the  actual  practice  of  the  law,  or  in  adding  several 
things  drawn  from  this  practice. 

Though  the  common  law  is  considered  among  us  as  in  some 
measure  opposite  to  the  Roman,  insomuch  that  these  two  laws 
divide  the  different  territories,  it  is,  notwithstanding,  true  that 
several  regulations  of  the  Roman  law  entered  into  our  customs, 
especially  when  they  made  the  new  digests,  at  a  time  not  very 
distant  from  ours,  when  this  law  was  the  principal  study  of  those 
who  were  designed  for  civil  employments,  at  a  time  when  it  was 
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  to  a  profession, 
and  when  a  continual  pursuit  of  amusements  was  not  even  the 
characteristic  of  women. 

dThis  was  observed  at  the  digesting  of  the  customs  of  Berry  and  of  Paris. 
See  La  Thaumassiere,  chap.  iii. 


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  e  who  set  out  from  his  own  country,  arrived  in 
Egypt,  cast  an  eye  on  the  Pyramids  and  returned  home. 

e  In  the  "  Spectator." 


BOOK  XXIX 

OF  THE  MANNER  OF  COMPOSING  LAWS 

I. — Of  the  Spirit  of  a  Legislator 

I  SAY  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- 
ings 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  infamous 
who  espoused  no  side  in  an  insurrection  seemed  very  extra- 

oArist.  "  Polit."  I.  ever  established:   the   opinion   of  some 

&  Book  XXII.  chap.  i.  civilians,    that    the    law    of   the    Twelve 

c  Cecilius  says,  that  he  never  saw  nor  Tables   meant   only  the  division   of   the 

read  of  an  instance,  in  which  this  pun-  money    arising    from    the    sale    of    the 

ishment   had    been    inflicted;    but    it    is  debtor,  seems  very  probable. 
likely    that    no    such    punishment    was 

I56 


THE   SPIRIT   OF   LAWS  157 

ordinary ;  but  we  ought  to  consider  the  circumstances  in  which 
Greece  was  at  that  time.  It  was  divided  into  very  small  states ; 
and  there  was  reason  to  apprehend  lest  in  a  republic  torn  by 
intestine  divisions  the  soberest  part  should  keep  retired,  in 
consequence  of  which  things  might  be  carried  to  extremity. 

In  the  seditions  raised  in  those  petty  states  the  bulk  of  the 
citizens  either  made  or  engaged  in  the  quarrel.  In  our  large 
monarchies  parties  are  formed  by  a  few,  and  the  people  choose 
to  live  quietly.  In  the  latter  case  it  is  natural  to  call  back  the 
seditious  to  the  bulk  of  the  citizens,  and  not  these  to  the  sedi- 
tious ;  in  the  other  it  is  necessary  to  oblige  the  small  number 
of  prudent  people  to  enter  among  the  seditious ;  it  is  thus  the 
fermentation  of  one  liquor  may  be  stopped  by  a  single  drop  of 
another. 

4. — Of  the  Laws  contrary  to  the  Views  of  the  Legislator 

There  are  laws  so  little  understood  by  the  legislator  as  to 
be  contrary  to  the  very  end  he  proposed.  Those  who  made 
this  regulation  among  the  French,  that  when  one  of  the  two 
competitors  died  the  benefice  should  devolve  to  the  survivor, 
had  in  view  without  doubt  the  extinction  of  quarrels ;  but  the 
very  reverse  falls  out,  we  see  the  clergy  at  variance  every  day, 
and  like  English  mastiffs  worrying  one  another  to  death. 

5. — The  same  Subject  continued 

The  law  I  am  going  to  speak  of  is  to  be  found  in  this  oath 
preserved  by  ^Eschines :  d  "I  swear  that  I  will  never  destroy  a 
town  of  the  Amphictyones,  and  that  I  will  not  divert  the  course 
of  its  running  waters ;  if  any  nation  shall  presume  to  do  such  a 
thing,  I  will  declare  war  against  them  and  will  destroy  their 
towns."  The  last  article  of  this  law,  which  seems  to  confirm 
the  first,  is  really  contrary  to  it.  Amphictyon  is  willing  that 
the  Greek  towns  should  never  be  destroyed,  and  yet  his  law 
paves  the  way  for  their  destruction.  In  order  to  establish  a 
proper  law  of  nations  among  the  Greeks,  they  ought  to  have 
been  accustomed  early  to  think  it  a  barbarous  thing  to  destroy 
a  Greek  town ;  consequently  they  ought  not  even  to  ruin  the 
destroyers.  Amphictyon's  law  was  just,  but  it  was  not  pru- 
dent ;  this  appears  even  from  the  abuse  made  of  it.  Did  not 

d  "  De  falsa  Legatione." 


158  MONTESQUIEU 

Philip  assume  the  power  of  demolishing  towns,  under  the  pre- 
tence of  their  having  infringed  the  laws  of  the  Greeks?  Am- 
phictyon  might  have  inflicted  other  punishments;  he  might 
have  ordained,  for  example,  that  a  certain  number  of  the  mag- 
istrates of  the  destroying  town,  or  of  the  chiefs  of  the  infring- 
ing army,  should  be  punished  with  death ;  that  the  destroying 
nation  should  cease  for  a  while  to  enjoy  the  privileges  of  the 
Greeks ;  that  they  should  pay  a  fine  till  the  town  was  rebuilt. 

The  law  ought,  above  all  things,  to  aim  at  the  reparation  of 

, 
damages. 

6. — The  Laws  which  appear  the  same  have  not  always  the  same 

Effect 

Csesar  made  a  law  to  prohibit  people  from  keeping  above 
sixty  sesterces  in  their  houses.*?  This  law  was  considered  at 
Rome  as  extremely  proper  for  reconciling  the  debtors  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 fatal,  because  it  was  enacted  under  a  most  frightful 
situation.  After  depriving  people  of  all  possible  means  of  lay- 
ing out  their  money,  they  stripped  them  even  of  the  last  re- 
source of  keeping  it  at  home,  which  was  the  same  as  taking 
it  from  them  by  open  violence.  Caesar's  law  was  intended  to 
make  the  money  circulate ;  the  French  Minister's  design  was 
to  draw  all  the  money  into  one  hand.  The  former  gave  either 
lands  or  mortgages  on  private  people  for  the  money ;  the  latter 
proposed  in  lieu  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  them. 

7. — The  same  Subject  continued.    Necessity  of  composing  Laws 
in  a  proper  Manner 

The  law  of  ostracism  was  established  at  Athens,  at  Argos/ 
and  at  Syracuse.  At  Syracuse  it  was  productive  of  a  thousand 
mischiefs,  because  it  was  imprudently  enacted.  The  principal 
citizens  banished  one  another  by  holding  the  leaf  of  a  fig-tree 
in  their  hands,£  so  that  those  who  had  any  kind  of  merit  with- 

e  Dio.  lib.  XLI.  g  Plutarch  and  Diodorus  of  Sicily  say 

/  Arist.  "  Repub."  lib.  V.  chap.  iii.  it  was  an  olive  leaf.     See  Diod.  XL- 

Ed. 


THE    SPIRIT    OF   LAWS  159 

drew  from  public  affairs./*  At  Athens,  where  the  legislator 
was  sensible  of  the  proper  extent  and  limits  of  his  law,  ostra- 
cism proved  an  admirable  regulation.  They  never  condemned 
more  than  one  person  at  a  time;  and  such  a  number  of  suf- 
frages were  requisite  for  passing  this  sentence,  that  it  was  ex- 
tremely difficult  for  them  to  banish  a  person  whose  absence  was 
not  necessary  to  the  state.* 

The  power  of  banishing  was  exercised  only  every  fifth  year : 
and,  indeed,  as  the  ostracism  was  designed  against  none  but 
great  personages  who  threatened  the  state  with  danger,  it 
ought  not  to  have  been  the  transaction  of  every  day. 

8. — That  Laws  which  appear  the  same  were  not  always  made 
through  the  same  Motive 

In  France  they  have  received  most  of  the  Roman  laws  on 
substitutions,  but  through  quite  a  different  motive  from  the 
Romans.  Among  the  latter  the  inheritance  was  accompanied 
with  certain  sacrifices  /  which  were  to  be  performed  by  the  in- 
heritor and  were  regulated  by  the  pontifical  law ;  hence  it  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 
appointed  did  not  accept  of  the  inheritance.  Its  view  was  not  to 
perpetuate  the  estate  in  a  family  of  the  same  name,  but  to  find 
somebody  that  would  accept  of  it. 

9. — That  the  Greek  and  Roman  Laws  punished  Suicide,  but  not 
through  the  same  Motive 

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  through  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  criminal  despair.  The  Roman  law 
acquitted  where  the  Greek  condemned,  and  condemned  where 
the  other  acquitted. 

ft  Plutarch,  "  Life  of  Dionysius."  law  by  certain  sales,  whence  come  the 

t  Vide  book  XXVI.  chap.  17.  words  "  sine  sacris  haereditas." 

/  When  the  inheritance  was  too  much  k  Book  IX.  "  of  Laws." 
encumbered  they  eluded  the  pontifical 


160  MONTESQUIEU 

Plato's  law  was  formed  upon  the  Lacedaemonian  institutions, 
where  the  orders  of  the  magistrate  were  absolute,  where  shame 
was  the  greatest  of  miseries,  and  pusillanimity  the  greatest  of 
crimes.  The  Romans  had  no  longer  those  refined  ideas ;  theirs 
was  only  a  fiscal  law. 

During  the  time  of  the  republic,  there  was  no  law  at  Rome 
against  suicides;  this  action  is  always  considered  by  their 
historians  in  a  favorable  light,  and  we  never  meet  with  any 
punishment  inflicted  upon  those  who  committed  it. 

Under  the  first  emperors,  the  great  families  of  Rome  were 
continually  destroyed  by  criminal  prosecutions.  The  custom 
was  then  introduced  of  preventing  judgment  by  a  voluntary 
death.  In  this  they  found  a  great  advantage:  they  had  an 
honorable  interment,  and  their  wills  were  executed,  because 
there  was  no  law  against  suicides.*  But  when  the  emperors 
became  as  avaricious  as  cruel,  they  deprived  those  who  de- 
stroyed themselves  of  the  means  of  preserving  their  estates  by 
rendering  it  criminal  for  a  person  to  make  away  with  himself 
through  a  criminal  remorse. 

What  I  have  been  saying  of  the  motive  of  the  emperors  is  so 
true,  that  they  consented  that  the  estates  of  suicides  should  not 
be  confiscated  when  the  crime  for  which  they  killed  themselves 
was  not  punished  with  confiscation. m 

10. — That  Laws  which  seem  contrary  proceed  sometimes  from 
the  same  Spirit 

In  our  time  we  give  summons  to  people  in  their  own  houses ; 
but  this  was  not  permitted  among  the  Romans.w 

A  summons  was  a  violent  action,*?  and  a  kind  of  warrant  for 
seizing  the  body ;  P  hence  it  was  no  more  allowed  to  summon 
a  person  in  his  own  house  than  it  is  now  allowed  to  arrest  a 
person  in  his  own  house  for  debt. 

Both  the  Roman  and  our  laws  admit  of  this  principle  alike, 
that  every  man  ought  to  have  his  own  house  for  an  asylum, 
where  he  should  suffer  no  violence.? 

/ "  Eorum  qui  de  se  statuebant  hnma-          n  Leg.  18  ff.  "  de  in  jus  vocando.** 
bantur    corpora,    manebant    testamenta,  o  See  the  law  of  the  Twelve  Tables, 

pretium  festinandi."— Tacit,  p  "  Rapit   in   jus,"    Horace,    Satire  9. 

m  Rescript    of    the    Emperor    Pius    in  Hence   they  could   not    summon    those 

the  3d  law,  sees,  i  and  2  ff.  *'  de  bonis  t:o  whom  a  particular  respect  was  due. 
eorum  qui  ante  sententiam  mortem  sibi  a  See   the  law   18  ff.  "  de  in  jus  vo« 

consciverunt."  cando." 


THE   SPIRIT   OF   LAWS  161 

II. — How  to  compare  two  different  Systems  of  Laws 

In  France  the  punishment  for  false  witnesses  is  capital ;  in 
England  it  is  not.  Now,  to  be  able  to  judge  which  of  these 
two  laws  is  the  best,  we  must  add,  that  in  France  the  rack  is 
used  for  criminals,  but  not  in  England;  that  in  France  the 
accused  is  not  allowed  to  produce  his  witnesses,  and  that  they 
very  seldom  admit  of  what  are  called  justifying  circumstances 
in  favor  of  the  prisoner ;  in  England  they  allow  of  witnesses  on 
both  sides.  These  three  French  laws  form  a  close  and  well- 
connected  system ;  and  so  do  the  three  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  parts,  and  does  not  venture  to  discourage  them  by  the 
fear  of  a  capital  punishment.  The  French  law,  which  has  one 
resource  more,  is  not  afraid  of  intimidating  the  witnesses ;  on 
the  contrary,  reason  requires  they  should  be  intimidated;  it 
listens  only  to  the  witnesses  on  one  side,  which  are  those  pro- 
duced by  the  attorney-general,  and  the  fate  of  the  accused 
depends  entirely  on  their  testimony .r  But  in  England  they  ad- 
mit of  witnesses  on  both  sides,  and  the  affair  is  discussed  in 
some  measure  between  them;  consequently  false  witness  is 
there  less  dangerous,  the  accused  having  a  remedy  against 
the  false  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. 

12. — That  Laws  which  appear  the  same  are  sometimes  really, 

different 

The  Greek  and  Roman  laws  inflicted  the  same  punishment 
on  the  receiver  as  on  the  thief ;  s  the  French  law  does  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  inflicted  on  the  re- 
ceiver; for  every  man  that  contributes  in  what  shape  soever 

rBy    the    ancient    French    law,    wit-  was     only     a     pecuniary     punishment 

nesses  were  heard  on  both  sides;  hence  against  false  witnesses. 

we  find   in  the  "  Institutions  "  of   St.  s  Leg.  i  ff.  "  de  Receptatoribus." 
Louis,   book   I.    chap,    vii.,   that   there 

VOL.  II.— ii 


1 62  MONTESQUIEU 

to  a  damage  is  obliged  to  repair  it.  But  as  the  punishment 
of  theft  is  capital  with  us,  the  receiver  cannot  be  punished  like 
the  thief  without  carrying  things  to  excess.  A  receiver  may 
act  innocently  on  a  thousand  occasions:  the  thief  is  always 
culpable;  one  hinders  the  conviction  of  a  crime,  the  other 
commits  it;  in  one  the  whole  is  passive,  the  other  is  active; 
the  thief  must  surmount  more  obstacles,  and  his  soul  must  be 
more  hardened  against  the  laws. 

The  civilians  have  gone  further ;  they  look  upon  the  receiver 
as  more  odious  than  the  thief/  for  were  it  not  for  the  receiver 
the  theft,  say  they,  could  not  be  long  concealed.  But  this  again 
might  be  right  when  there  was  only  a  pecuniary  punishment ; 
the  affair  in  question  was  a  damage  done,  and  the  receiver  was 
generally  better  able  to  repair  it;  but  when  the  punishment 
became  capital,  they  ought  to  have  been  directed  by  other 
principles. 

13. — That  we  must  not  separate  Laws  from  the  End  for  which 
they  were  made:    of  the  Roman  Laws  on  Theft 

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-manifest  theft. 

The  law  of  the  Twelve  Tables  ordained  that  a  manifest  thief 
should  be  whipped  with  rods  and  condemned  to  slavery  if  he 
had  attained  the  age  of  puberty ;  or  only  whipped  if  he  was  not 
of  ripe  age ;  but  as  for  the  non-manifest  thief  he  was  only  con- 
demned to  a  fine  of  double  the  value  of  what  he  had  stolen. 

When  the  Porcian  laws  abolished  the  custom  of  whipping 
the  citizens  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-manifest  thief  to  a 
payment  of  double.w 

It  seems  very  odd  that  these  laws  should  make  such  a  differ- 
ence in  the  quality  of  those  two  crimes,  and  in  the  punishments 
they  inflicted.  And,  indeed,  whether  the  thief  was  detected 
either  before  or  after  he  had  carried  the  stolen  goods  to  the 
place  intended,  this  was  a  circumstance  which  did  not  alter  the 
nature  of  the  crime.  I  do  not  at  all  question  that  the  whole 

*  Leg.  i  ff.  "  de  Receptatoribus."  «  See  what  Favorinus  says  in  Aulus 

Gellius,  book  XX.  chap.  i. 


THE   SPIRIT   OF   LAWS  163 

theory  of  the  Roman  laws  in  relation  to  theft  was  borrowed 
from  the  Lacedaemonian  institutions.  Lycurgus,  with  a  view 
of  rendering  the  citizens  dexterous  and  cunning,  ordained  that 
children  should  be  practised  in  thieving,  and  that  those  who 
were  caught  in  the  act  should  be  severely  whipped.  This  oc- 
casioned among  the  Greeks,  and  afterwards  among  the  Ro- 
mans, a  great  difference  between  a  manifest  and  a  non-manifest 
theft.o 

Among  the  Romans  a  slave  who  had  been  guilty  of  steal- 
ing was  thrown  from  the  Tarpeian  rock.  Here  the  Lacedae- 
monian institutions  were  out  of  the  question;  the  laws  of 
Lycurgus  in  relation  to  theft  were  not  made  for  slaves;  to 
deviate  from  them  in  this  respect  was  in  reality  conforming  to 
them. 

At  Rome,  when  a  person  of  unripe  age  happened  to  be 
caught  in  the  act,  the  pretor  ordered  him  to  be  whipped  with 
rods  according  to  his  pleasure,  as  was  practised  at  Sparta.  All 
this  had  a  more  remote  origin.  The  Lacedaemonians  had  de- 
rived these  usages  from  the  Cretans;  and  Plato,&  who  wants  * 
to  prove  that  the  Cretan  institutions  were  designed  for  war, 
cites  the  following,  namely,  the  power  of  bearing  pain  in  in- 
dividual combats,  and  in  thefts  which  have  to  be  concealed. 

Asjhe  civil  laws  depend  on  the  political  institutions,  because 
they7  are  made  for  the  same  society,  whenever  there  is  a  design 
of  adopting  the  civil  law  of  another  nation,  it  would  be  proper 
to  examine  beforehand  whether  they  have  both  the  same  insti- 
tutions and  the  same  political  law. 

Thus  when  the  Cretan  laws  on  theft  were  adopted  by  the 
Lacedaemonians,  as  their  constitution  and  government  were 
adopted  at  the  same  time,  these  laws  were  equally  reasonable 
in  both  nations.  But  when  they  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. 

a  Compare  what  Plutarch  says  in  the       "  Institutes,"  book  IV.  tit.   i,  sees,   i, 
"  Life  of  Lycurgus  "  with  the  laws  of       2,  and  3. 
the  Digest,  title  "  de  Furtis  ";  and  the          b  "  Of  Laws,"  book  I. 


1 64  MONTESQUIEU 

14. — That  we  must  not  separate  the  Laws  from  the  Circum- 
stances in  which  they  were  made 

It  was  decreed  by  a  law  at  Athens,  that  when  the  city  was 
besieged,  all  the  useless  people  should  be  put  to  death.c  This 
was  an  abominable  political  law,  in  consequence  of  an  abomi- 
nable law  of  nations.  Among  the  Greeks  the  inhabitants  of  a 
town  taken  lost  their  civil  liberty  and  were  sold  as  slaves.  The 
taking  of  a  town  implied  its  entire  destruction,  which  is  the 
source  not  only  of  those  obstinate  defences,  and  of  those  un- 
natural actions,  but  likewise  of  those  shocking  laws  which  they 
sometimes  enacted. 

The  Roman  laws  ordained  that  physicians  should  be  pun- 
ished for  neglect  or  unskilfulness.d  In  those  cases,  if  the  physi- 
cian was  a  person  of  any  fortune  or  rank,  he  was  only  con- 
demned to  deportation,  but  if  he  was  of  a  low  condition  he  was 
put  to  death.  By  our  institutions  it  is  otherwise.  The  Roman 
laws  were  not  made  under  the  same  circumstances  as  ours :  at 
Rome  every  ignorant  pretender  intermeddled  with  physic ;  but 
among  us  physicians  are  obliged  to  go  through  a  regular 
course  of  study,  and  to  take  their  degrees,  for  which  reason 
they  are  supposed  to  understand  their  profession. 

15. — That  sometimes  it  is  proper  the  Law  should  amend  itself 
The  law  of  the  Twelve  Tables  allowed  people  to  kill  a  night- 
thief  as  well  as  a  day-thief,*  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  fellow-citizens/  This  is 
indeed  what  those  laws,  which  permit  people  to  do  justice  to 
themselves,  ought  always  to  require.  It  is  the  cry  of  innocence 
which  in  the  very  moment  of  the  action  calls  in  witnesses  and 
appeals  to  judges.  The  people  ought  to  take  cognizance  of  the 
action,  and  at  the  very  instant  of  its  being  done;  an  instant 
when  everything  speaks,  even  air,  countenance,  passions,  si- 
lence ;  and  when  every  word  either  condemns  or  absolves.  A 
law,  which  may  become  so  opposed  to  the  security  and  liberty 
of  the  citizens,  ought  to  be  executed  in  their  presence. 

.  c  "  Inutilis    setas    occidatur."— Syrian  e  See  the  4th  law  ff.  "  ad  leg.  Aquil." 

in  Hermog.  f  Ibid. ;    see    the    decree   of   Tassillon 

d  The    Cornelian    law    "  de    Sicariis,"  added  to  the  law  of  the  Bavarians,  "  de 

"Institut."    lib.    IV.    tit.    3,    "  de   lege  popularib.  Legib."  art.  4. 
Aquilia,"  sec.  7. 


THE   SPIRIT   OF  LAWS  165 

16. — Things  to  be  observed  in  the  composing  of  Laws 

They  who  have  a  genius  sufficient  to  enable  them  to  give 
laws  to  their  own,  or  to  another  nation,  ought  to  be  particu- 
larly attentive  to  the  manner  of  forming  them. 

The  style  ought  to  be  concise.  The  laws  of  the  Twelve 
Tables  are  a  model  of  conciseness ;  the  very  children  used  to 
learn  them  by  hearts  Justinian's  Novella  were  so  very  dif- 
fuse that  they  were  obliged  to  abridge  them.fc 

The  style  should  also  be  plain  and  simple,  a  direct  expres- 
sion being  better  understood  than  an  indirect  one.  There  is  no 
majesty  at  all  in  the  laws  of  the  lower  empire ;  princes  are  made 
to  speak  like  rhetoricians.  When  the  style  of  laws  is  inflated, 
they  are  looked  upon  only  as  a  work  of  parade  and  ostentation. 

It  is  an  essential  article  that  the  words  of  the  laws  should 
excite  in  everybody  the  same  ideas.  Cardinal  Richelieu* 
agreed  that  a  minister  might  be  accused  before  the  king,  but 
he  would  have  the  accuser  punished  if  the  facts  he  proved  were 
not  matters  of  moment.  This  was  enough  to  hinder  people 
from  telling  any  truth  whatsoever  against  the  minister,  be-" 
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  punished  with  death  any  person  that 
purchased  a  freed-man  as  a  slave,  or  that  gave  him  molesta- 
tion.; He  should  not  have  made  use  of  so  vague  an  expres- 
sion ;  the  molestation  given  a  man  depends  entirely  on  the  de- 
gree of  his  sensibility. 

When  the  law  has  to  impose  a  penalty,  it  should  avoid  as 
much  as  possible  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  at  Rome,fc  who  used  to  give 
those  he  met  a  box  on  the  ear,  and  afterwards  tendered  them 
the  five-and-twenty  pence  of  the  law  of  the  Twelve  Tables. 

When  the  law  has  once  fixed  the  idea  of  things,  it  should 
never  return  to  vague  expressions.  The  ordinance  of  Louis 

g  "  Ut  carmen  necessarium."— Cicero,  f  "  Political   Testament." 
'  de  Legib."  2.    Aristotle  avers  that  be-  j  "  Aut   qualibet  manumissione   dona- 
fore  the  art  of  writing  was  discovered,  turn  inquietare  voluerit."     Appendix  to 
the  laws  were  composed  in  verse  and  the  Theodosian  code  in  the  first  volume 
frequently  sung,  to  prevent  them  being  of  Father  Sirmond's  works,  p.  7*7. 
forgotten.-Ed.  fcAulus  Gellius.  book  X&.  chap,  i. 

h  It  is  the  work  of  Irnenus. 


166  MONTESQUIEU 

XIV  concerning  criminal  matters,  after  an  exact  enumera- 
tion of  the  causes  in  which  the  king  is  immediately  concerned, 
adds  these  words,  "  and  those  which  in  all  times  have  been  sub- 
ject to  the  determination  of  the  king's  judges"  ;  this  again 
renders  arbitrary  what  had  just  been  fixed. 

Charles  VII  saysw  he  has  been  informed  that  the  parties 
appeal  three,  four,  and  six  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, 
unless  there  happens  to  be  some  fraud  or  deceit  on  the  part  of 
the  attorney ,w  or  unless  there  be  a  great  or  evident  cause  to 
discharge  the  appeal.  The  end  of  this  law  destroys  the  begin- 
ning, and  it  destroys  it  so  effectually,  that  they  used  afterwards 
to  appeal  during  the  space  of  thirty  years.0 

The  law  of  the  Lombards  does  not  allow  a  woman  that  has 
taken  a  religious  habit,/>  though  she  has  made  no  vow,  to 
marry ;  because,  says  this  law,  "  if  a  spouse  who  has  been  con- 
tracted to  a  woman  only  by  a  ring  cannot  without  guilt  be 
married  to  another,  for  a  much  stronger  reason  the  spouse  of 
God  or  of  the  blessed  Virgin." — Now,  I  say,  that  in  laws  the 
arguments  should  be  drawn  from  one  reality  to  another,  and 
not  from  reality  to  figure,  or  from  figure  to  reality. 

A  law  enacted  by  Constantine  o.  ordains  that  the  single  tes- 
timony of  a  bishop  should  be  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  commdri  understanding,  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  limitations  in 
a  law  it  is  much  better  to  omit  them :  details  of  that  kind  throw 
people  into  new  details. 

No  alteration  should  be  made  in  a  law  without  sufficient 
reason.  Justinian  ordained  that  a  husband  might  be  repudi- 
ated and  yet  the  wife  not  lose  her  portion,  if  for  the  space  of 
two  years  he  had  been  incapable  of  consummating  the  mar- 

/We   find   in   the   verbal   process   of  without   there   being   any   necessity   of 

this  ordinance  the  motives  that  deter-  disturbing  the  public  order, 

mined  him.  o  The  ordinance  of  the  year  1667  has 

m  In     his    ordinance    of     Montel-les-  made  some  regulations  upon  this  head, 

tours,  in  the  year  1453-  .  P  Book  II.  tit.  37. 

n  They    might    punish    the    attorney,  q  In    Father    Sirmond  s   appendix   to 

the  Theodosian  code,  torn.  i. 


THE   SPIRIT   OF   LAWS  167 

riage.r  He  altered  his  law  afterwards,  and  allowed  the  poor 
wretch  three  years.-*  But  in  a  case  of  that  nature  two  years  are 
as  good  as  three,  and  three  are  not  worth  more  than  two. 

When  a  legislator  condescends  to  give  the  reason  of  his  law 
it  ought  to  be  worthy  of  its  majesty.  A  Roman  law  decrees 
that  a  blind  man  is  incapable  to  plead,  because  he  cannot  see 
the  ornaments  of  the  magistracy.*  So  bad  a  reason  must  have 
been  given  on  purpose,  when  such  a  number  of  good  reasons 
were  at  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  that  they  should 
judge  of  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  Regale,  because  the  king's  crown  is  round.  I 
shall  not  examine  here  into  the  king's  rights,  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 
august  rights  ought  to  be  defended  by  grave  maxims.  Was 
there  ever  such  a  thing  known  as  the  real  rights  of  a  dignity 
founded  on  the  figure  of  that  dignity's  sign? 

Davila  says  v  that  Charles  IX  was  declared  of  age  in  the 
Parliament  of  Rouen  at  the  commencement  of  his  fourteenth 
year,  because  the  laws  require  every  moment  of  the  time  to 
be  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.^  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 
fraudulent :  y  this  is  the  presumption  of  the  law.  The  Roman 

r  Leg.  i,  code  "  de  Repudiis."  w  See  Dupuy,  "  Traite"  de  la  Majorite" 

s  See  the  authentic  "  Sed  hodie,"  in  de  nos  rois,"  p.  364,  edit.  1655.— Ed. 

the  code  "  de  Repudiis."  x  The  Chancellor  de  I'Hopital.— Ibid. 

t  Leg.  i  ff.  "  de  Postulando."  y  It  was  made  in  the  month  of  No* 

« In  his  "  Sentences,"  book  IV.  tit.  9.  vember,  170* 

v "  Delia   guerra   civile   di    Francia," 
P.  9& 


168  MONTESQUIEU 

law  inflicted  punishments  on  the  husband  who  kept  his  wife 
after  she  had  been  guilty  of  adultery,  unless  he  was  induced 
to  do  it  through  fear  of  the  event  of  a  law-suit,  or  through  con- 
tempt of  his  own  shame ;  this  is  the  presumption  of  the  man. 
The  judge  must  have  presumed  the  motives  of  the  husband's 
conduct,  and  must  have  determined  a  very  obscure  and  am- 
biguous point ;  when  the  law  presumes  it  gives  a  fixed  rule  to 
the  judge. 

Plato's  law,^  as  I  have  observed  already,  required  that  a  pun- 
ishment should  be  inflicted  on  the  person  who  killed  himself 
not  with  a  design  of  avoiding  shame,  but  through  pusillanim- 
ity. This  law  was  so  far  defective,  that  in  the  only  case  in 
which  it  was  impossible  to  draw  from  the  criminal  an  acknowl- 
edgment of  the  motive  upon  which  he  had  acted,  it  required 
the  judge  to  determine  concerning  these  motives. 

As  useless  laws  debilitate  such  as  are  necessary,  so  those  that 
may  be  easily  eluded  weaken  the  legislation.  Every  law 
ought  to  have  its  effect,  and  no  one  should  be  suffered  to 
deviate  from  it  by  a  particular  exception. 

The  Falcidian  law  ordained  among  the  Romans,  that  the 
heir  should  always  have  the  fourth  part  of  the  inheritance; 
another  law  suffered  the  testator  to  prohibit  the  heir  from  re- 
taining this  fourth  part.a  This  is  making  a  jest  of  the  laws. 
The  Falcidian  law  became  useless:  for  if  the  testator  had  a 
mind  to  favor  his  heir,  the  latter  had  no  need  of  the  Falcidian 
law ;  and  if  he  did  not  intend  to  favor  him,  he  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  very  nature  of  things.  In  the 
proscription  of  the  Prince  of  Orange,  Philip  II  promises  to 
any  man  that  will  kill  the  prince  to  give  him,  or  his  heirs,  five- 
and-twenty  thousand  crowns,  together  with  the  title  of  nobil- 
ity ;  and  this  upon  the  word  of  a  king  and  as  a  servant  of  God. 
To  promise  nobility  for  such  an  action !  to  ordain  such  an  ac- 
tion in  the  quality  of  a  servant  of  God!  This  is  equally  sub- 
versive of  the  ideas  of  honor,  morality,  and  religion. 

There  very  seldom  happens  to  be  a  necessity  of  prohibiting 
a  thing  which  it  not  bad  under  pretence  of  some  imaginary 
perfection. 

*Book  IX.  "of  Laws."          alt    is    the    authentic    "  Sed    cum    testator." 


THE   SPIRIT   OF   LAWS  169 

There  ought  to  be  a  certain  simplicity  and  candor  in  the 
laws;  made  to  punish  the  iniquity  of  men  they  themselves 
should  be  clad  with  the  robes  of  innocence.  We  find  in  the  law 
of  the  Visigoths  b  that  ridiculous  request  by  which  the  Jews 
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  owa; 
and  they  were  obliged  to  retain  nothing  more  of  their  own  than 
what  might  serve  as  a  mark  to  distinguish  them. 

17. — A  bad  Method  of  giving  Laws 

The  Roman  emperors  manifested  their  will  like  our  princes, 
by  decrees  and  edicts ;  but  they  permitted,  which  our  princes 
do  not,  both  the  judges  and  private  people  to  interrogate  them 
by  letters  in  their  several  differences ;  and  their  answers  were 
called  rescripts.  The  decretals  of  the  popes  are  rescripts,  strictly 
speaking.  It  is  plain  that  this  is  a  bad  method  of  legislation. 
Those  who  thus  apply  for  laws  are  improper  guides  to  the 
legislator;  the  facts  are  always  wrongly  stated.  Julius  Cap- 
itolinus  says/  that  Trajan  often  refused  to  give  this  kind  of 
rescripts,  lest  a  single  decision,  and  frequently  a  particular 
favor,  should  be  extended  to  all  cases.  Macrinus  had  resolved 
to  abolish  all  those  rescripts  \d  he  could  not  bear  that  the 
answers  of  Commodus,  Caracalla,  and  all  those  other  ignorant 
princes,  should  be  considered  as  laws.  Justinian  thought 
otherwise,  and  he  filled  his  compilation  with  them. 

I  would  advise  those  who  read  the  Roman  laws,  to  dis- 
tinguish carefully  between  this  sort  of  hypothesis,  and  the 
Senatus-Consulta,  the  Plebiscita,  the  general  constitutions  of 
the  emperors,  and  all  the  laws  founded  on  the  nature  of  things, 
on  the  frailty  of  women,  the  weakness  of  minors  and  the  pub- 
lic utility. 

1 8. — Of  the  Ideas  of  Uniformity 

There  are  certain  ideas  of  uniformity,  which  sometimes 
strike  great  geniuses  (for  they  even  affected  Charlemagne), 
but  infallibly  make  an  impression  on  little  souls.    They  dis- 
cover therein  a  kind  of  perfection,  which  they  recognize  be- 
took XII.  tit.  2,  sec.  16.  c  See    Julius    Capitolinus    "in    Ma- 

crino."  dlbid. 


1 70  MONTESQUIEU 

cause  it  is  impossible  for  them  not  to  see  it;  the  same  au- 
thorized weights,  the  same  measures  in  trade,  the  same  laws  in 
the  state,  the  same  religion  in  all  its  parts.  But  is  this  always 
right  and  without  exception?  Is  the  evil  of  changing  con- 
stantly less  than  that  of  suffering?  And  does  not  a  greatness 
of  genius  consist  rather  in  distinguishing  between  those  cases 
in  which  uniformity  is  requisite,  and  those  in  which  there  is  a 
necessity  for  differences  ?  In  China  the  Chinese  are  governed 
by  the  Chinese  ceremonial  and  the  Tartars  by  theirs ;  and  yet 
there  is  no  nation  in  the  world  that  aims  so  much  at  tran- 
quillity. If  the  people  observe  the  laws,  what  signifies  it 
whether  these  laws  are  the  same  ? 

19. — Of  Legislators 

Aristotle  wanted  to  indulge  sometimes  his  jealousy  against 
Plato,  and  sometimes  his  passion  for  Alexander.  Plato  was 
incensed  against  the  tyranny  of  the  people  of  Athens.  Machi- 
avel  was  full  of  his  idol,  the  Duke  of  Valentinois.  Sir  Thomas 
More,  who  spoke  rather  of  what  he  had  read  than  of  what  he 
thought,  wanted  to  govern  all  states  with  the  simplicity  of  a 
Greek  city.*  Harrington  was  full  of  the  idea  of  his  favorite 
republic  of  England,  while  a  crowd  of  writers  saw  nothing  but 
confusion  where  monarchy  is  abolished.  The  laws  always  con- 
form to  the  passions  and  prejudices  of  the  legislator;  some- 
times the  latter  pass  through,  and  only  tincture  them ;  some- 
times they  remain,  and  are  incorporated  with  them. 

•  In  his  "  Utopia." 


'3    3DIOH3 


a'  * 


,L    J 


CHOICE   EXAMPLES    OF   EARLY   PRINTING   AND 
ENGRAVING. 

'  • '     t  Lv<  •-'.}->•->'      • 

Fac-similes  from  Rare  and  Curious  Books. 

ia  which  uniformity  is  requisite,  ar  :n  which  there 

neces->y  f,-r  different. s      In  China,  the  Ch  gove 

Chinese  te:e;w<nial  «.nd  the  Tartars  by  their1 
t1"K.r     s  no  natior  In  rhe  world  that  aims  so  much  at 
f:;v       It   the  ofoote  observe   t!i     n     .,  what  sicmifi 


19.— Of  Legislators 

Aristotle  «>v3nfe«        indulge  sometimes  his  jealousy  against 
jomriiTnc*  his  passion  for  Alexander.  wa* 

incensed  ajtjain         \«  »yr;»un\  of  th-:  propk-  of  At; 

avc!  vvas  i\:\  •          .    C; 

EARLY   VENETIAN  PRINTING. 

From  the  Thoscanello  della  Musica  of  Pietro  Fiorentino.  Printed  by  Bernardo 
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Biblioteca  Marciana. 


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  to  pass  over  in 
silence  an  event  which  never  again,  perhaps,  will  hap- 
pen ;  were  I  not  to  speak  of  those  laws  which  suddenly 
appeared  over  all  Europe  without  being  connected  with  any  of 
the  former  institutions ;  of  those  laws  which  have  done  infinite 
good  and  infinite  mischief;  which  have  suffered  rights  to  re- 
main when  the  demesne  has  been  ceded ;  which  by  vesting  sev- 
eral with  different  kinds  of  seigniory  over  the  same  things 
or  persons  have  diminished  the  weight  of  the  whole  seigniory ; 
which  have  established  different  limits  in  empires  of  too  great 
extent;  which  have  been  productive  of  rule  with  a  bias  to 
anarchy,  and  of  anarchy  with  a  tendency  to  order  and  har- 
mony. 

This  would  require  a  particular  work  to  itself ;  but  consid- 
ering the  nature  of  the  present  undertaking,  the  reader  will 
here  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,  the  eye  sees  from  afar 
its  spreading  leaves ;  upon  drawing  nearer,  it  perceives  the 
trunk  but  does  not  discern  the  root ;  the  ground  must  be  dug 
up  to  discover  it.a 

2. — Of  the  Source  of  Feudal  Laws 

The  conquerors  of  the  Roman  Empire  came  from  Germany. 
Though  few  ancient  authors  have  described  their  manners,  yet 

a"  Quantum  vertice  ad  oras 
^Ethereas,   tantum  radice  ad  Tartara  tendit."— Vergil. 

171 


1 72  MONTESQUIEU 

we  have  two  of  very  great  weight.  Caesar  making  war  against 
the  Germans  describes  the  manners  of  that  nation  ;&  and  upon 
these  he  regulated  some  of  his  enterprises.^  A  few  pages  of 
Caesar  upon  this  subject  are  equal  to  whole  volumes. d 

Tacitus  has  written  an  entire  work  on  the  manners  of  the 
Germans.  This  work  is  short,  but  it  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 of  the  laws  of  the  barbarians,  that  reading  Caesar  and  Tac- 
itus we  imagine  we  are  perusing  these  codes,  and  perusing 
these  codes  we  fancy  we  are  reading  Caesar  and  Tacitus. 

But  if  in  this  research  into  the  feudal  laws,  I  should  find  my- 
self entangled  and  lost  in  a  dark  labyrinth  I  fancy  I  have  the 
clue  in  my  hand,  and  that  I  shall  be  able  to  find  my  way 
through. 

3. — The  Origin  of  Vassalage 

Caesar  says/  that  "  The  Germans  neglected  agriculture ;  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  them  the  year 
following  to  remove  to  some  other  part."  Tacitus  says/  that 
"  Each  prince  had  a  multitude  of  men,  who  were  attached  to  his 
service,  and  followed  him  wherever  he  went."  This  author 
gives  them  a  name  in  his  language  in  accordance  with  their 
state,  which  is  that  of  companions.^  They  had  a  strong  emula- 
tion to  obtain  the  prince's  esteem ;  and  the  princes  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 

6  Book  VI.  e  Book  VI.  "  of  the  Gallic  Wars." 

c  For  instance,  his  retreat  from  Ger-  Tacitus  adds,  "  Nulli  domus  aut  ager, 

many.— Ibid.  aut  aliqua  cura;  prout  ad  quern  venere 

d  M.  Chabrit  expresses  his  astonish-  aluntur."  —  "  De  Moribus  Germano- 

ment    that    Montesquieu    dwells    upon  rum." 

Caesar's    knowledge    of    the    Germans,  / "  De  Moribus  Germanorum." 

and  quite  ignores  the  Gauls,  with  their  g  "  Comites." 

fund  of  information  upon  this  subject. 

—Ed. 


THE  SPIRIT   OF  LAWS  173 

nations,  when  they  excel  all  others  in  the  number  and  courage 
of  their  companions :  they  receive  presents  and  embassies  from 
all  parts.  Reputation  frequently  decides  the  fate  of  war.  In 
battle  it  is  infamy  in  the  prince  to  be  surpassed  in  courage ;  it 
is  infamy  in  the  companions  not  to  follow  the  brave  example 
of  their  prince ;  it  is  an  eternal  disgrace  to  survive  him.  To 
defend  him  is  their  most  sacred  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 
them  to  attack  an  enemy  and  to  expose  themselves  to  the  dan- 
gers of  war,  than  to  cultivate  the  land,  or  to  attend  to  the  cares 
of  husbandry ;  they  refuse  to  acquire  by  sweat  what  they  can 
purchase  with  blood." 

Thus,  among  the  Germans,  there  were  vassals,  but  no  fiefs ; 
they  had  no  fiefs,  because  the  princes  had  no  lands  to  give ;  or 
rather  their  fiefs  consisted  in  horses  trained  for  war,  in  armsv, 
and  feasting.  There  were  vassals,  because  there  were  trusty 
men  who  being  bound  by  their  word  engaged  to  follow  the 
prince  to  the  field,  and  did  very  nearly  the  same  service  as  was 
afterwards  performed  for  the  fiefs. 

4. — The  same  Subject  continued 

Caesar  says,&  that  "  when  any  of  the  princes  declared  to  the 
assembly  that  he  intended  to  set  out  upon  an  expedition  and 
ask  them  to  follow  him,  those  who  approved  the  leader  and  the 
enterprise  stood  up  and  offered  their  assistance.  Upon  which 
they  were  commended  by  the  multitude.  But,  if  they  did  not 
fulfil  their  engagements,  they  lost  the  public  esteem,  and  were 
looked  upon  as  deserters  and  traitors." 

What  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  surprised,  that  our  kings  should 
have  new  armies  to  raise  upon  every  expedition,  new  troops  to 
encourage,  new  people  to  engage ;  that  to  acquire  much  they 
were  obliged  to  incur  great  expenses ;  that  they  should  be  con- 

k  "  De  Bello  Gallico."  lib.  VI. 


174  MONTESQUIEU 

stant  gainers  by  the  division  of  lands  and  spoils,  and  yet  give 
these  lands  and  spoils  incessantly  away:  that  their  demesne 
should  continually  increase  and  diminish;  that  a  father  upon 
settling  a  kingdom  on  one  of  his  children  *  should  always  give 
him  a  treasure  with  it :  that  the  king's  treasure  should  be  con- 
sidered as  necessary  to  the  monarchy;  and  that  one  king 
could  not  give  part  of  it  to  foreigners,  even  in  portion  with  his 
daughter,  without  the  consent  of  the  other  kings./  The  mon- 
archy moved  by  springs,  which  they  were  continually  obliged 
to  wind  up. 

5. — Of  the  Conquests  of  the  Franks 

It  is  not  true  that  the  Franks  upon  entering  Gaul  took  pos- 
session of  the  whole  country  to  turn  it  into  fiefs.  Some  have 
been  of  this  opinion  because  they  saw  the  greatest  part  of  the 
country  towards  the  end  of  the  second  race  converted  into 
fiefs,  rear-fiefs,  or  other  dependencies ;  but  such  a  disposition 
was  owing  to  particular  causes  which  we  shall  explain  here- 
after. 

The  consequence  which  sundry  writers  would  infer  thence, 
that  the  barbarians  made  a  general  regulation  for  establishing 
in  all  parts  the  state  of  villanage  is  as  false  as  the  principle 
from  which  it  is  derived.  If  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  vassals ;  as  the  person  that  has  prop- 
erty is  ever  possessed  of  power,  the  king,  who  would  have  con- 
tinually disposed  of  the  fiefs,  that  is,  of  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 

Gaul  was  invaded  by  German  nations.  The  Visigoths  took 
possession  of  the  province  of  Narbonne,  and  of  almost  all  the 
South ;  the  Burgundians  settled  in  the  East ;  and  the  Franks 
subdued  very  nearly  all  the  rest. 

(See  the  "Life  of  Dagobert."  the   cities   of  his   father's   kingdom   to 

;  See    Gregory    of    Tours,    book    VI.,  his  daughter,  nor  his  treasures,  nor  his 

on    the    marriage    of    the    daughter    of  bondmen,    nor    horses,    nor    horsemen, 

Chilpenc.      Childebert    sends    ambassa-  nor  teams  of  oxen,  etc. 
dors  to  tell  him  that  he  should  not  give 


THE   SPIRIT   OF   LAWS  175 

No  doubt  but  these  barbarians  retained  in  their  respective 
conquests  the  manners,  inclinations,  and  usages  of  their  own 
country ;  for  no  nation  can  change  in  an  instant  their  manner 
of  thinking  and  acting.  These  people  in  Germany  neglected 
agriculture.  It  seems  by  Caesar  and  Tacitus  that  they  applied 
themselves  greatly  to  a  pastoral  life ;  hence  the  regulations  of 
the  codes  of  barbarian  laws  almost  all  relate  to  their  flocks. 
Roricon,  who  wrote  a  history  among  the  Franks,  was  a  shep- 
herd.^ 

7. — Different  Ways  of  dividing  the  Land 

After  the  Goths  and  Burgundians  had,  under  various  pre- 
tences, penetrated  into  the  heart  of  the  empire,  the  Romans, 
in  order  to  put  a  stop  to  their  devastations,  were  obliged  to 
provide  for  their  subsistence.  At  first  they  allowed  them 
corn ;  I  but  afterwards  chose  to  give  them  lands.  The  em- 
perors, or  the  Roman  magistrates,  in  their  name,  made  par- 
ticular conventions  with  them  concerning  the  division  of 
lands,™  as  we  find  in  the  chronicles  and  in  the  codes  of  the" 
Visigoths  n  and  Burgundians.0 

The  Franks  did  not  follow  the  same  plan.  In  the  Salic  and 
Ripuarian  laws,  we  find  not  the  least  vestige  of  any  such  divi- 
sion of  lands ;  they  had  conquered  the  country,  and  so  took 
what  they  pleased,  making  no  regulations  but  among  them- 
selves. 

Let  us,  therefore,  distinguish  between  the  conduct  of  the 
Burgundians  and  Visigoths  in  Gaul,  of  those  same  Visigoths 
in  Spain,  of  the  auxiliary  troops  under  Augustulus  and  Odo- 
acer  in  Italy,/'  and  that  of  the  Franks  in  Gaul,  as  also  of  the 
Vandals  in  African  The  former  entered  into  conventions  with 
the  ancient  inhabitants,  and  in  consequence  thereof  made  a 
division  of  lands  between  them ;  the  latter  did  no  such  thing. 

k  Nothing  definite  is  known  concern-  toribus  diviserunt."— Marius's  "  Chron- 

ing    this    Roricon;    and    his   works   are  icle  "  in  the  year  456. 

rather    reveries    and    fables    than    any-  n  Book  X.  tit.  i,  sees.  8,  9,  and  16. 

thing   else.     See  the  article   in   "  Mer-  o  Chap.    liv.    sees,    i   and  2.     This  di- 

cure  "  for  October,   1741. — Ed.  vision  was  still   subsisting  in  the  time 

/The   Romans  obliged  themselves  to  of  Louis  the  Debonnaire,  as  appears  by 

this  by  treaties.     See  Zosimus  V  upon  his   capitulary    of  the   year   829,    which 

the  distribution  of  corn  demanded  by  has    been    inserted    in    the   law    of   the 

Alaric.— Ed.  Burgundians,  tit.  79,   sec.   i. 

m  "  Burgundiones   partem    Galliae  oc-  p  See  Procopius,  "  War  cf  the  Goths." 

cuparunt,  terrasque  cum  Gallicis  sena-  q  Ibid.,  "  War  of  the  Vandals." 


176  MONTESQUIEU 

8. — The  same  Subject  continued 

What  has  induced  some  to  think  that  the  Roman  lands  were 
entirely  usurped  by  the  barbarians  is,  their  finding  in  the  laws 
of  the  Visigoths  and  the  Burgundians  that  these  two  nations 
had  two-thirds  of  the  lands ;  but  this  they  took  only  in  certain 
quarters  or  districts  assigned  them. 

Gundebald  says,  in  the  law  of  the  Burgundians,  that  his  peo- 
ple at  their  establishment  had  two-thirds  of  the  lands  allowed 
them ;  r  and  the  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  beginning  between  the  Romans  and  the  Bur- 
gundians. 

In  those  two  regulations  we  meet  with  the  same  expressions 
in  the  text,  consequently  they  explain  one  another ;  and  as  the 
latter  cannot  mean  a  universal  division  of  lands,  neither  can  this 
signification  be  given  to  the  former. 

The  Franks  acted  with  the  same  moderation  as  the  Burgun- 
dians ;  they  did  not  strip  the  Romans  wherever  they  extended 
their  conquests.  What  would  they  have  done  with  so  much 
land  ?  They  took  what  suited  them,  and  left  the  remainder. 

9. — A  just  Application  of  the  Law  of  the  Burgundians,  and  of 
that  of  the  Visigoths,  in  relation  to  the  Division  of  Lands 

It  is  to  be  considered  that  those  divisions  of  land  were  not 
made  with  a  tyrannical  spirit;  but  with  a  view  of  relieving 
the  reciprocal  wants  of  two  nations  that  were  to  inhabit  the 
same  country. 

The  law  of  the  Burgundians  ordains  that  a  Burgundian  shall 
be  received  in  an  hospitable  manner  by  a  Roman.  This  is 
agreeable  to  the  manners  of  the  Germans,  who,  according  to 
Tacitus,  were  the  most  hospitable  people  in  the  world. 

By  the  law  of  the  Burgundians,  it  is  ordained  that  the  Bur- 
gundians shall  have  two-thirds  of  the  lands,  and  one-third  of 
the  bondmen.  In  this  it  considered  the  genius  of  two  nations, 
and  conformed  to  the  manner  in  which  they  procured  their  sub- 

r "  Licet    eo    tempore    quo    populus  s  "  Ut  non  amplius  a  Burgundionibus 

noster    mancipiorum    tertiam    et    duas  qui  infra  venerunt  requiratur  quam  ad 

terrarum  partes  accepit,"  etc. — Law  of  praesens  necessitas  fuerit,  medietas  ter« 

the  Burgundians,  tit.  54,  sec.  i.  rae."— - Art.  n. 


THE   SPIRIT    OF   LAWS  177 

sistence.  As  the  Burgundians  kept  herds  and  flocks,  they 
wanted  a  great  deal  of  land  and  few  bondmen,  and  the  Romans 
from  their  application  to  agriculture  had  need  of  less  land  and 
of  a  greater  number  of  bondmen.  The  woods  were  equally 
divided,  because  their  wants  in  this  respect  were  the  same.* 

We  find  in  the  code  of  the  Burgundians/  that  each  barbarian 
was  placed  near  a  Roman.  The  division,  therefore,  was  not 
general ;  but  the  Romans  who  gave  the  division  were  equal  in 
number  to  the  Burgundians  who  received  it.  The  Roman  was 
injured  least.  The  Burgundians  as  a  martial  people,  fond  of 
hunting  and  of  a  pastoral  life,  did  not  refuse  to  accept  of  the 
fallow  grounds;  while  the  Romans  kept  such  lands  as  were 
properest  for  culture :  the  Burgundian's  flock  fattened  the  Ro- 
man's field. 

10. — Of  Servitudes 

The  law  of  the  Burgundians  notices  «  that  when  those  peo- 
ple settled  in  Gaul,  they  were  allowed  two-thirds  of  the  land, 
and  one-third  of  the  bondmen.  The  state  of  villanage  was, 
therefore,  established  in  that  part  of  Gaul  before  it  was  ii> 
vaded  by  the  Burgundians,? 

"TEe  law  of  the  Burgundians,  in  points  relating  to  the  two 
nations,  makes  a  formal  distinction  in  both,  between  the  nobles, 
the  free-born  and  the  bondmen.w  Servitude  was  not,  there- 
fore, a  thing  peculiar  to  the  Romans ;  nor  liberty  and  nobility 
to  the  barbarians. 

This  very  same  law  says,*  that  if  a  Burgundian  freed-man 
had  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  he  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  Ripuarian  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  Gaul. 

The  Count  de  Boulainvilliers  a  is  mistaken  in  the  capital 

*  "  De  Moribus  Germanorum."  iu  "  Si   dentem   pptimati    Burgundioni 

f  And  in  that  of  the  Visigoths.  vel  Romano  nobili  excusserit."    Tit.  26, 

« Tit.  54.  sec.     if>    "  et    si    mediocribus    personis 

v  This  is  confirmed  by  the  whole  title  ingenuis     tarn     Burgundionibus     quam 

of  the  code  "  de  Agricolis  et   Censitis  Romanis."— Ibid,  sec.  2. 

ct  Colonis."  *Tit.  57. 

a  See  ''  Mercure,"  March,  1784.— Ed. 

VOL.   II.— 12 


1 78  MONTESQUIEU 

point  of  his  system :  he  has  not  proved  that  the  Franks  made 
a  general  regulation  which  reduced  the  Romans  into  a  kind  of 
servitude. 

As  this  author's  work  is  penned  without  art,  and  as  he 
speaks  with  the  simplicity,  frankness,  and  candor  of  that  ancient 
nobility  whence  he  descends,  every  one  is  capable  of  judging  of 
the  good  things  he  says,  and  of  the  errors  into  which  he  has 
fallen.  I  shall  not,  therefore,  undertake  to  criticise  him ;  I 
shall  only  observe,  that  he  had  more  wit  than  enlightenment, 
more  enlightenment  than  learning;  though  his  learning  was 
not  contemptible,  for  he  was  well  acquainted  with  the  most 
valuable  part  of  our  history  and  laws. 

The  Count  de  Boulainvilliers  and  the  Abbe  du  Bos  b  have 
formed  two  different  systems,  one  of  which  seems  to  be  a  con- 
spiracy against  the  commons,  and  the  other  against  the  nobil- 
ity. When  the  sun  gave  leave  to  Phaeton  to  drive  his  chariot, 
he  said  to  him,  "  If  you  ascend  too  high,  you  will  burn  the 
heavenly  mansions;  if  you  descend  too  low,  you  will  reduce 
the  earth  to  ashes;  do  not  drive  to  the  right,  you  will  meet 
there  with  the  constellation  of  the  Serpent ;  avoid  going  too 
much  to  the  left,  you  will  there  fall  in  with  that  of  the  Altar: 
keep  in  the  middle."  c 

ii. — The  same  Subject  continued 

What  first  gave  rise  to  the  notion  of  a  general  regulation 
made  at  the  time  of  the  conquest  was  our  meeting  with  an  im- 
mense number  of  forms  of  servitude  in  France,  towards  the  be- 
ginning of  the  third  race ;  and  as  the  continual  progression  of 
these  forms  of  servitude  was  not  perceived,  people  imagined 
in  an  age  of  obscurity  a  general  law  which  was  never  framed. 

Towards  the  commencement  of  the  first  race  we  meet  with 
an  infinite  number  of  freemen,  both  among  the  Franks  and  the 
Romans ;  but  the  number  of  bondmen  increased  to  that  de- 
gree, that  at  the  beginning  of  the  third  race,  all  the  husband- 
men and  almost  all  the  inhabitants  of  towns  had  become  bond- 

b  See  M.  Thierry  in  the  Introduction  Inferius,  terras :  medio  tutissimus 

to  the  "  Recits  Merovingiens." — Ed.  ibis. 

c "  Nee  preme,   nee   summum   molire  Neu   te   dexterior  tortum   declinet 

per  sethera  currum;  ad  Anguem; 

Altius      gressus,      ccelestia      tecta  Neve  sinisterior  pressam  rota  du- 

cremabis;  cat  ad  Aram; 

Inter       utrumque       tene."— Ovid, 
"  Metatn."  lib.  II. 


THE   SPIRIT   OF   LAWS  179 

men :  d  and  whereas,  at  the  first  period,  there  was  very  nearly 
the  same  administration  in  the  cities  as  among  the  Romans, 
namely,  a  corporation,  a  senate,  and  courts  of  judicature ;  at 
the  other  we  hardly  meet  with  anything  but  a  lord  and  his  bond- 
men. 

When  the  Franks,  Burgundians,  and  Goths  made  their  sev- 
eral invasions,  they  seized  upon  gold,  silver,  movables, 
clothes,  men,  women,  boys,  and  whatever  the  army  could  car- 
ry; the  whole  was  brought  to  one  place,  and  divided  among 
the  army.*  History  shows,  that  after  the  first  settlement,  that 
is,  after  the  first  devastation,  they  entered  into  an  agreement 
with  the  inhabitants,  and  left  them  all  their  political  and  civil 
rights.  This  was  the  law  of  nations  in  those  days ;  they  plun- 
dered everything  in  time  of  war,  and  granted  everything  in 
time  of  peace.  Were  it  not  so,  how  should  we  find  both  in  the 
Salic  and  Burgundian  laws  such  a  number  of  regulations  ab- 
solutely contrary  to  a  general  servitude  of  the  people  ? 

But  though  the  conquest  was  not  immediately  productive 
of  servitude,  it  arose  nevertheless  from  the  same  law  of  nations" 
which  subsisted  after  the  conquest.^  Opposition,  revolts,  and 
the  taking  of  towns  were  followed  by  the  slavery  of  the  inhabi- 
tants. And,  not  to  mention  the  wars  which  the  conquering 
nations  made  against  one  another,  as  there  was  this  peculiarity 
among  the  Franks,  that  the  different  partitions  of  the  mon- 
archy gave  rise  continually  to  civil  wars  between  brothers  or 
nephews,  in  which  this  law  of  nations  was  constantly  practised, 
servitudes,  of  course,  became  more  general  in  France  than  in 
other  countries :  and  this  is,  I  believe,  one  of  the  causes  of  the 
difference  between  our  French  laws  and  those  of  Italy  and 
Spain,  in  respect  to  the  right  of  seigniories. 

The  conquest  was  soon  over,  and  the  law  of  nations  then  in 
force  was  productive  of  some  servile  dependences.  The  cus- 
tom of  the  same  law  of  nations,  which  obtained  for  many  ages, 
gave  a  prodigious  extent  to  those  servitudes. 

Theodoric/  imagining  that  the  people  of  Auvergne  were  not 
faithful  to  him,  thus  addressed  the  Franks  of  his  division: 

d  While  Gaul  was  under  the  dominion  f  See  the  "  Lives  of  the  Saints." 

of  the    Romans    they    formed    particular  g  See  Gregory  of  Tours,  book  III.,  for 

bodies ;   these  were  generally  freed-men,  Montesquieu's  deviation  from  the  actual 

or  the  descendants  of  freed-men.  sense  of  the  writer.— Ed. 

#See  Gregory  of  Tours,  book  II.  chap, 
xxvii.    Aitnoin,  book  I.  chap.  xii. 


i8o  MONTESQUIEU 

"  Follow  me,  and  I  will  carry  you  into  a  country  where  you 
shall  have  gold,  silver,  captives,  clothes,  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  in  the  siege  of  Bourges,  having 
had  orders  to  return,  carried  such  a  considerable  booty  away 
with  them,  that  they  hardly  left  either  men  or  cattle  in  the 
country./* 

Theodoric,  King  of  Italy,  whose  spirit  and  policy  it  was  ever 
to  distinguish  himself  from  the  other  barbarian  kings,  upon 
sending  an  army  into  Gaul,  wrote  thus  to  the  general : *  "  It 
is  my  will  that  the  Roman  laws  be  followed,  and  that  you  re- 
store the  fugitive  slaves  to  their  right  owners.  The  defender 
of  liberty  ought  not  to  encourage  servants  to  desert  their  mas- 
ters. Let  other  kings  delight  in  the  plunder  and  devastation  of 
the  towns  which  they  have  subdued ;  we  are  desirous  to  con- 
quer in  such  a  manner,  that  our  subjects  shall  lament  their  hav- 
ing fallen  too  late  under  our  government."  It  is  evident  that 
his  intention  was  to  cast  odium  on  the  kings  of  the  Franks  and 
the  Burgundians,  and  that  he  alluded  in  the  above  passage  to 
their  particular  law  of  nations. 

Yet  this  law  of  nations  continued  in  force  under  the  second 
race.  King  Pepin's  army,  having  penetrated  into  Aquitaine, 
returned  to  France  loaded  with  an  immense  booty,  and  with  a 
number  of  bondmen,  as  we  are  informed  by  the  Annals  of 
Metz.; 

Here  might  I  quote  numberless  authorities;^  and  as  the 
public  compassion  was  raised  at  the  sight  of  those  miseries,  as 
several  holy  prelates,  beholding  the  captives  in  chains,  em- 
ployed the  treasure  belonging  to  the  church,  and  sold  even  the 
sacred  utensils,  to  ransom  as  many  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  See  Gregory  of  Tours,  book  VI.  Longpbardorum,"  lib.  III.  cap.  xxx., 

chap.  31.  and  lib.  IV.  cap.  i.,  and  the  "  Lives  of 

*  Letter  43,  lib.  iii.  "  in  Cassiod."  the  Saints  "  in  the  next  quotation. 

;  In  the  year  763.  "  Innumerabilibus  /  See  the  lives  of  St.  Epiphanius,  St. 

spoliis  et  captivis  totus  ille  exercitus  Eptadius,  St.  Caesarius,  St.  Fidolus,  St. 

ditatus,  in  Franciam  reversus  est."  Porcian,  St.  Treverius,  St.  Eusichius; 

k  See  the  "  Annals  "  of  Fuld,  in  the  and  of  St.  Leger,  the  miracles  of  St. 

year  739;  Paulus  Diaconus,  "  de  Gestis  Julian,  etc. 


THE    SPIRIT    OF   LAWS  181 

authors  of  those  lives  that  they  have  been  sometimes  a  little  too 
credulous  in  respect  to  things  which  God  has  certainly  per- 
formed, if  they  were  in  the  order  of  his  providence;  yet  we 
draw  considerable  light  thence  with  regard  to  the  manners  and 
usages  of  those  times. 

When  we  cast  an  eye  upon  the  monuments  of  our  history 
and  laws,  the  whole  seems  to  be  an  immense  expanse,  a  bound- 
less ocean  ;w  all  those  frigid,  dry,  insipid,  and  hard  writings 
must  be  read  and  devoured  in  the  same  manner  as  Saturn  is 
fabled  to  have  devoured  the  stones. 

A  vast  quantity  of  land  which  had  been  in  the  hands  of  free- 
men n  was  changed  into  mortmain.  When  the  country  was 
stripped  of  its  free  inhabitants ;  those  who  had  a  great  multi- 
tude of  bondmen  either  took  large  territories  by  force,  or  had 
them  yielded  by  agreement,  and  built  villages,  as  may  be  seen 
in  different  charters.  On  the  other  hand,  the  freemen  who 
cultivated  the  arts  found  themselves  reduced  to  exercise  those 
arts  in  a  state  of  servitude ;  thus  the  servitudes  restored  to  the 
arts  and  to  agriculture  whatever  they  had  lost. 

It  was  a  customary  thing  with  the  proprietors  of  lands,  to 
give  them  to  the  churches,  in  order  to  hold  them  themselves 
by  a  quit-rent,  thinking  to  partake  by  their  servitude  of  the 
sanctity  of  the  churches. 

12. — That  the  Lands  belonging  to  the  Division  of  the  Bar- 
barians paid  no  Taxes 

A  people  remarkable  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,o  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  tax  of  a  pitcher  of  wine  for  every  acre,/>  which 
was  one  of  the  exactions  of  Chilperic  and  Fredegonda,  related 
only  to  the  Romans.  And,  indeed,  it  was  not  the  Franks  that 
tore  the  rolls  of  those  taxes,  but  the  cler,gy,  who  in  those  days 

m "  Deerant  quoque  littora  ponto."—  Censitis   et   Colonis,"   and   the   2oth   ol 

Ovid,  lib.  I.  the  same  title. 

n  Even    the    husbandmen    themselves  o-See  Gregory  of  Tours,  book  II. 

were  not  all   slaves:    see   the   i8th   and  p  Ibid,  book  V. 

23d  law  in  the  code  "  de  Agricolis  et 


182  MONTESQUIEU 

were  all  Romans.^  The  burden  of  this  tax  lay  chiefly  on  the 
inhabitants  of  the  towns ;  r  now  these  were  almost  all  inhabited 
by  Romans. 

Gregory  of  Tours  relates,*  that  a  certain  judge  was  obliged, 
after  the  death  of  Chilperic,  to  take  refuge  in  a  church,  for 
having  under  the  reign  of  that  prince  ordered  taxes  to  be  levied 
on  several  Franks  who  in  the  reign  of  Childebert  were  ingenui, 
or  free-born :  "  Multos  de  Francis,  qui  tempore  Childeberti  re- 
gis  ingenui  fuerant,  publico  tributo  subegit"  Therefore  the 
Franks  who  were  not  bondmen  paid  no  taxes. 

There  is  not  a  grammarian  but  would  turn  pale  to  see  how 
the  Abbe  du  Bos  has  interpreted  this  passage.*  He  observes, 
that  in  those  days  the  freedmen  were  also  called  ingenui.  Upon 
this  supposition  he  renders  the  Latin  word  ingenui,  by  the 
words  "  freed  from  taxes  "  ;  a  phrase  which  we  indeed  may  use 
in  French,  as  we  say  "  freed  from  cares,"  "  freed  from  punish- 
ments "  ;  but  in  the  Latin  tongue  such  expressions  as  ingenui 
a  tributis  libertini  a  tributis,  manumissi  tributorum,  would  be 
quite  monstrous." 

Parthenius,  says  Gregory  of  Tours,^  had  like  to  have  been 
put  to  death  by  the  Franks  for  subjecting  them  to  taxes.  The 
Abbe  du  Bos  finding  himself  hard  pressed  by  this  passage  w 
very  coolly  assumes  the  thing  in  question ;  it  was,  says  he,  a 
surcharge. 

We  find  in  the  law  of  the  Visigoths,*  that  when  a  barbarian 
had  seized  upon  the  estate  of  a  Roman,  the  judge  obliged  him 
to  sell  it,  to  the  end  that  this  estate  might  continue  to  be  tribu- 
tary ;  consequently  the  barbarians  paid  no  land  taxes.? 

The  Abbe  du  Bos,^  who  would  fain  have  the  Visigoths  sub- 
jected to  taxes,o  quits  the  literal  and  spiritual  sense  of  the  law, 
and  pretends,  upon  no  other  indeed  than  an  imaginary  founda- 

q  See  Gregory  of  Tours,  book  VIII.  y  The  Vandals  paid  none  in  Africa. — 

r  "  Quse     conditip     universis     urbibus  Procopius,  "  War  of  the  Vandals,"  lib. 

per  Galliam  constitutis  summopere  est  I.    and    II.     "  Historia    Miscella."    lib. 

adhibita."— "  Life  of  St.  Aridius."  XVI.    p.    106.      Observe   that    the    con- 

s  Book  VII.  querors    of    Africa    were    a    mixture    of 

/"Establishment  of  the  French  Mon-  Vandals,  Alans,  and  Franks.    "Historia 

archy,"  torn.  iii.  chap.  xiv.  p.  515.  Miscella."  lib.  XIV.  p.  94. 

«  See  Baluzius.  ii.  p.  187.  .  z  "  Establishment    of  _the    Franks    in 

v  Book  III.  chap,  cxxxvi.  Gaul."  torn.  iii.  chap.  xiv.  p.  510. 

w  Tom.  iii.  p.  514.  a  He  lays  a  stress  upon  another  law 

* "  Judices     atque     praeppsiti     terras  of  the  Visigoths,  book  X.  tit.  i,  art.  n, 

Romanorum,     ab     illis     qui     occupatas  which    proves    nothing    at^  all;    it    says 

tenent,   auferant,   et  Romanis   sua  exac-  only  that  he  who  has  received  of  a  lord 

tione  sine  aliqua  dilatione  restituant,  ut  a  piece  of  land  on  condition  of  a  rent 

nihil   fisco   debeat    deperire."— Lib.    X.  or  service  ought  to  pay  it. 
tit.  i,  cap.  xiv. 


THE    SPIRIT    OF   LAWS  183 

tion,  that  between  the  establishment  of  the  Goths  and  this  law, 
there  had  been  an  augmentation  of  taxes  which  related  only  to 
the  Romans.  But  none  but  Father  Harduin  are  allowed  thus 
to  exercise  an  arbitrary  power  over  facts. 

This  learned  author  b  has  rummaged  Justinian's  code,c  in 
search  of  laws  to  prove,  that  among  the  Romans,  the  military 
benefices  were  subject  to  taxes.  Whence  he  would  infer  that 
the  same  held  good  with  regard  to  fiefs  or  benefices  among  the 
Franks.  But  the  opinion  that  our  fiefs  derive  their  origin  from 
that  Institution  of  the  Romans  is  at  present  exploded ;  it  ob- 
tained only  at  a  time  when  the  Roman  history,  not  ours,  was 
well  understood,  and  our  ancient  records  lay  buried  in  ob- 
scurity and  dust. 

But  the  abbe  is  in  the  wrong  to  quote  Cassiodorus,  and  to 
make  use  of  what  was  transacting  in  Italy,  and  in  the  part  of 
Gaul  subject  to  Theodoric,  in  order  to  acquaint  us  with  the 
practice  established  among  the  Franks;  these  are  things 
which  must  not  be  confounded.  I  propose  to  show,  some 
time  or  other,  in  a  certain  work,  that  the  plan  of  the  monarchy 
of  the  Ostrogoths  was  entirely  different  from  that  of  any  other 
government  founded  in  those  days  by  the  other  barbarian  na- 
tions ;  and  that  so  far  from  our  being  entitled  to  affirm  that  a 
practice  obtained  among  the  Franks  because  it  was  established 
among  the  Ostrogoths  we  have  on  the  contrary  just  reason 
to  think  that  a  custom  of  the  Ostrogoths  was  not  in  force 
among  the  Franks. 

The  hardest  task  for  persons  of  extensive  erudition  is,  to 
seek  their  proofs  in  such  passages  as  bear  upon  the  subject, 
and  to  find,  if  we  may  be  allowed  to  express  ourselves  in  as- 
tronomical terms,  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  bondmen ;  d  when  he  speaks 
of  their  military  service,  he  applies  to  bondmen  what  can  never 
relate  but  to  freemen.* 

5  Book  III.  p.  511.  where  he  quotes  the  28th  article  of  the 

c  Leg.  iii.  tit.  74,  lib.  XI.  Edict  of  Pistes.     See  farther  on. 

d  "  Establishment  of  the  French  Mon-  e  Ibid.  torn.  iii.  chap.  iv.  p.  298. 
archy,"    torn.     iii.     chap.    xiv.    p.    513, 


X84  ,/       MONTESQUIEU 

13. — Of  Taxes  paid  by  the  Romans  and  Gauls  in  the  Monarchy 
of  the  Franks 

I  might  here  examine  whether,  after  the  Gauls  and  Romans 
were  conquered,  they  continued  to  pay  the  taxes  to  which  they 
were  subject  under  the  emperors.  But,  for  the  sake  of  brevity, 
I  shall  be  satisfied  with  observing,  that  if  they  paid  them  in  the 
beginning,  they  were  soon  after  exempted,  and  that  those 
taxes  were  changed  into  a  military  service.  For,  I  confess,  I 
can  hardly  conceive  how  the  Franks  should  have  been  at  first 
such  great  frienas,  and  afterwards  such  sudden  and  violent 
enemies,  to  taxes. 

A  Capitulary  f  of  Louis  the  Debonnaire  explains  extremely 
well  the  situation  of  the  freemen  in  the  monarchy  of  the  Franks. 
Some  troops  of  Goths  or  Iberians,^  flying  from  the  oppression 
of  the  Moors,  were  received  into  Louis's  dominions.  The 
agreement  made  with  them  was  that,  like  other  freemen,  they 
should  follow  their  count  to  the  army ;  and,  that  upon  a  march 
they  should  mount  guard  and  patrol  under  the  command  also 
of  their  count ;  h  and  that  they  should  furnish  horses  and  car- 
riages for  baggage  to  the  king's  commissaries,*  and  to  the  am- 
bassadors in  their  way  to  or  from  court ;  and  that  they  should 
not  be  compelled  to  pay  any  further  impost,  but  should  be 
treated  as  the  other  freemen. 

It  cannot  be  said,  that  these  were  new  usages  introduced  at 
the  commencement  of  the  second  race.  This  must  be  referred 
at  least  to  the  middle  or  to  the  end  of  the  first.  A  capitulary 
of  the  year  864  /  says  in  express  terms  that  it  was  the  ancient 
custom  for  freemen  to  perform  military  service,  and  to  furnish 
likewise  the  horses  and  carriages  above  mentioned ;  duties 
particular  to  themselves,  and  from  which  those  who  possessed 
the  fiefs  were  exempt,  as  I  shall  prove  hereafter. 

This  is  not  all;  there  was  a  regulation  which  hardly  per- 
mitted the  imposing  of  taxes  on  those  freemen.^  He  who  had 

f  In  the  year  815,  chap,  i.,  which  is  ;  "  Ut  pagenses  Franci,  qui  caballos 

agreeable  to  the  Capitulary  of  Charles  habent,  cum  suis  comitibus  in  hostem 

the  Bald,  in  the  year  844,  arts,  r  and  2.  pergant."  The  counts  are  forbidden  to 

g "  Pro  Hispams  in  partibus  Aquita-  deprive  them  of  their  horses,  "  ut 

niae,  Septimaniae,  et  Provinciae  consis-  hostem  facere,  et  debitos  paraveredos 

tentibus." — Ibid.  secundum  antequam  consuetudinem  ex- 

h  "  Excubias  et  explorationes  quas  solvere  possint." — Edict  of  Pistes  in 

Wactas  dicunt."— Ibid.  Baluzius,  p.  186. 

i  They  were  not  obliged  to  furnish  k  Capitulary  of  Charlemagne,  in  the 

any  to  the  count.— Ibid.  art.  5.  See  year  812,  chap.  i.  Edict  of  Pistes  in 

Marc.  form.  VI.  lib.  I.  the  year  864,  art.  27. 


THE   SPIRIT   OF   LAWS  185 

four  manors  was  always  obliged  to  march  against  the  enemy :  / 
he  who  had  but  three  was  joined  with  a  freeman  that  had  only 
one ;  the  latter  bore  the  fourth  part  of  the  other's  charges,  and 
stayed  at  home.  In  like  manner,  they  joined  two  freemen  who 
had  each  two  manors ;  he  who  went  to  the  army  had  half  his 
charges  borne  by  him  who  stayed  at  home. 

Again,  we  have  an  infinite  number  of  charters,  in  which  the 
privileges  of  fiefs  are  granted  to  lands  or  districts  possessed 
by  freemen,  and  of  which  I  shall  make  further  mention  here- 
after.w  These  lands  are  exempted  from  all  the  duties  or  ser- 
vices which  were  required  of  them  by  the  counts,  and  by  the 
rest  of  the  king's  officers ;  and  as  all  these  services  are  particu- 
larly enumerated  without  making  any  mention  of  taxes,  it  is 
manifest  that  no  taxes  were  imposed  upon  them. 

It  was  very  natural  that  the  Roman  system  of  taxation  should 
of  itself  fall  out  of  use  in  the  monarchy  of  the  Franks ;  it  was 
a  most  complicated  device,  far  above  the  conception,  and  wide 
from  the  plan  of  those  simple  people.  Were  the  Tartars  to 
overrun  Europe,  we  should  find  it  very  difficult  to  make  them 
comprehend  what  is  meant  by  our  financiers. 

The  anonymous  author  of  the  "  Life  of  Louis  the  Debon- 
naire,"  n  speaking  of  the  counts  and  other  officers  of  the  nation 
of  the  Franks,  whom  Charlemagne  established  in  Aquitania,says, 
that  he  intrusted  them  with  the  care  of  defending  the  frontiers, 
as  also  with  the  military  power  and  the  direction  of  the  de- 
mesnes 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 
improving  them.  But  the  indictions,  the  capitations,  and  other 
imposts  raised  at  the  time  of  the  emperors  on  the  persons  or 
goods  of  freemen  had  been  changed  into  an  obligation  of  de- 
fending the  frontiers,  and  marching  against  the  enemy. 

In  the  same  history ,o  we  find  that  Louis  the  Debonnaire, 
having  been  to  wait  upon  his  father  in  Germany,  this  prince 
asked  him,  why  he,  who  was  a  crowned  head,  came  to  be  so 
poor ;  To  which  Louis  made  answer,  that  he  was  only  a  nom- 

/ "  Quatuor    mansos."     I    fancy    that  those    who    drove    the    bondmen    from 

what  they  called  "  mansus  "  was  a  par-  their  mansus. 

ticular  portion  of  land  belonging  to   a  m  See  below,  chap.  20  of  this  book, 

farm  where  there  were  bondmen ;   wit-  n  In  Duchesne,  torn.  ii.  p.  287. 

ness    the    Capitulary    of    the    year    853,  o  Ibid.,  p.  89. 

"  apud    Sylvacum,"    tit.    xiv.,    against 


1 86  MONTESQUIEU 

inal  king,  and  that  the  great  lords  were  possessed  of  almost  all 
his  demesnes ;  that  Charlemagne  being  apprehensive  lest  this 
young  prince  should  forfeit  their  affection,  if  he  attempted 
himself  to  resume  what  he  had  inconsiderately  granted,  ap- 
pointed commissaries  to  restore  things  to  their  former  situa- 
tion. 

The  bishops,  writing  p  to  Louis,  brother  of  Charles  the  Bald, 
used  these  words :  "  Take  care  of  your  lands,  that  you  may 
not  be  obliged  to  travel  continually  by  the  houses  of  the  clergy, 
and  to  tire  their  bondmen  with  carriages.  Manage  your  af- 
fairs/' continue  they,  "  in  such  a  manner,  that  you  may  have 
enough  to  live  upon,  and  to  receive  embassies."  It  is  evident 
that  the  king's  revenues  in  those  days  consisted  of  their  de- 
mesnes.a 

14. — Of  what  they  called  Census 

After  the  barbarians  had  quitted  their  own  country,  they 
were  desirous  of  reducing  their  usages  into  writing;  but  as 
they  found  difficulty  in  writing  German  words  with  Roman 
letters,  they  published  these  laws  in  Latin, 

In  the  confusion  and  rapidity  of  the  conquest,  most  things 
changed  their  nature;  in  order,  however,  to  express  them, 
they  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  census  tributum;  r  and  when  things  had 
no  relation  at  all  to  the  Roman  census,  they  expressed,  as  well 
as  they  could,  the  German  words  by  Roman  letters ;  thus  they 
formed  the  word  fredum,  on  which  I  shall  have  occasion  to 
descant  in  the  following  chapters. 

The  words  census  and  tributum  having  been  employed  in  an 
arbitrary  manner  this  has  thrown  some  obscurity  on  the  sig- 
nification in  which  these  words  were  used  under  our  princes  of 
the  first  and  second  race.  And  modern  authors  *  who  have 

P  See  the  Capitulary  of  the  year  858,  lary,  in  the  year  803,  edition  of  Baluzius, 

art.  14.  p.  395,  art.   i;  and  the  5th  in  the  year 

q  They    levied    also    some    duties    on  819,    p.    616.     They    gave    likewise    this 

rivers,   where   there   happened  to   be   a  name  to  the  carriages  furnished  by  the 

bridge  or  a  passage.  freemen   to   the   king,    or   to    his   com- 

rThe  census  was  so  generical  a  word,  missaries,  as  appears  by  the  Capitulary 

that  they  made  use  of  it  to  express  the  of   Charles   the    Bald    in   the   year   865, 

tolls  of  rivers,  when  there  was  a  bridge  art.  8. 

or  ferry  to  pass.    See  the  third  Capitu-  s  The  Abbe  du  Bos,  and  his  follower* 


THE   SPIRIT   OF   LAWS  187 

adopted  particular  systems,  having  found  these  words  in  the 
writings  of  those  days,  imagined  that  what  was  then  called  cen- 
sus, was  exactly  the  census  of  the  Romans;  and  thence  they 
inferred  this  consequence,  that  our  kings  of  the  first  two  races 
had  put  themselves  in  the  place  of  the  Roman  emperors,  and 
made  no  change  in  their  administration.*  Besides,  as  particu- 
lar duties  raised  under  the  second  race  were  by  change  and  by 
certain  restrictions  converted  into  others,"  they  inferred  thence 
that  these  duties  were  the  census  of  the  Romans ;  and  as,  since 
the  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- 
sequences. 

To  apply  the  idea  of  the  present  time  to  distant  ages  is  the 
most  fruitful  source  of  error.  To  those  people  who  want  to 
modernize  all  the  ancient  ages,  I  shall  say  what  the  Egyptian 
priests  said  to  Solon,  "  O  Athenians,  you  are  mere  children !  "  v 

15. — That  what  they  called  Census  was  raised  only  on  the 
Bondmen  and  not  on  the  Freemen 

The  king,  the  clergy,  and  the  lords  raised  regular  taxes,  each 
on  the  bondmen  of  their  respective  demesnes.  I  prove  it  with 
respect  to  the  king,  by  the  Capitulary  de  Villis ;  with  regard  to 
the  clergy,  by  the  codes  of  the  laws  of  the  barbarians  w  and 
in  relation  to  the  lords,  by  the  regulations  which  Charlemagne 
made  concerning  this  subject* 

These  taxes  were  called  census;  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 
Marculfus  containing  a  permission  from  the  king  to  enter  into 
holy  orders,  provided  the  persons  be  free-born,?  and  not  en- 
rolled in  the  register  of  the  census.  I  prove  it  also  by  a  commis- 

t  See  the  weakness  of  the  arguments  w  Law  of  the  Alemans,  chap.  xxii. ; 
produced  by  the  Abbe1  du  Bos,  in  the  and  the  law  of  the  Bavarians,  tit.  i, 
"  Establishment  of  the  French  Mpn-  chap,  xiv.,  where  the  regulations  are 
archy?"  torn.  iii.  book  VI.  chap.  xiv. ;  to  be  found  which  the  clergy  made  con- 
especially  in  the  inference  he  draws  cerning  their  order, 
from  a  passage  of  Gregory  of  Tours,  x .Book  sth  of  the  Capitularies,  chap, 
concerning  a  dispute  between  his  ccciii. 

church  and   King  Charibert.  y  "  Si  ille  de  capite  suo  bene  ingenuus 

u  For  instance,   by   enfranchisements.  sit,  et  in  Puletico  publico  censitus  non 

v"  Apud  Platonem,  in  Timaeo,  vel  de  est "— Lib.  I.  formul.  19. 
natura/'— Ed. 


1 88  MONTESQUIEU 

sion  from  Charlemagne  to  a  counts  whom  he  had  sent  into 
Saxony,  which  contains  the  enfranchisement  of  the  Saxons  for 
having  embraced  Christianity,  and  is  properly  a  charter  of  free- 
dom.a  This  prince  restores  them  to  their  former  civil  liberty ,& 
and  exempts  them  from  paying  the  census.  It  was,  therefore, 
the  same  thing  to  be  a  bondman  as  to  pay  the  census,  to  be  free 
as  not  to  pay  it. 

By  a  kind  of  letters-patent  of  the  same  prince  in  favor  of 
the  Spaniards,^  who  had  been  received  into  the  monarchy,  the 
counts  are  forbidden  to  demand  any  census  of  them,  or  to  de- 
prive them  of  their  lands.  That  strangers  upon  their  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 
lands,  forbade  the  demanding  any  census  of  them. 

A  Capitulary  of  Charles  the  Bald,d  given  in  favor  of  those 
very  Spaniards,  orders  them  to  be  treated  like  the  other  Franks, 
and  forbids  the  requiring  any  census  of  them;  consequently 
this  census  was  not  paid  by  freemen. 

The  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  a 
small  cottage  to  themselves;  by  which  means  they  avoided 
paying  the  census;  and  it  ordains  that  things  should  be  re- 
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  the  meaning  of  this  capitulary,* 
"  We  ordain  that  the  royal  census  should  be  levied  in  all  places, 
where  formerly  it  was  lawfully  levied  "  ?  f  What  could  be  the 
meaning  of  that  in  which  Charlemagne  s  orders  his  commis- 

s  In    the    year    789,     edition    of    the  e  Third    Capitulary    of   the    year    805, 

Capitularies  by  Baluzius,  vol.  i.  p.  250.  arts.  20  and  23,  inserted  in  the  Collec- 

a "  Et     ut     ista     ingenuitatis     pagina  tion    of    Angezise,    book    III.    art.    xv. 

firma  stabilisque  consistat."— -Ibid.  This  is  agreeable  to  that  of  Charles  the 

6  "  Pristinseque    libertati    donates,    et  Bald,    in    the    year   854,    "  apud   Attini- 

omni    nobis    debito    censu    solutos." —  acum,"  art.  6. 

Ibid.  f  "  Undecunque  legitime  exigebatur.  ' 

c  "  Praeceptum  pro  Hispanis,"  in  the  —Ibid. 

year   812,    edition   of   Baluzius,    torn.    i.  g  In  the  year  812,  arts.  10  and  n,  edi» 

p.  500.  tion  of  Baluzius,  torn,  i  p.  398. 

d  In  the  year  844,  edition  of  Baluzius, 
torn.  ii.  arts,  i  and  2,  p.  27. 


THE    SPIRIT   OF   LAWS 


189 


saries  in  the  provinces  to  make  an  exact  inquiry  into  all  the 
census  that  belonged  in  former  times  to  the  king's  demesne  ?  h 
And  of  that  i  in  which  he  disposes  of  the  census  paid  by  those  ; 
of  whom  they  are  demanded  ?  What  can  that  other  capitulary 
mean  k  in  which  we  read,  "  If  any  person  has  acquired  a  tribu- 
tary land  I  on  which  we  were  accustomed  to  levy  the  census  "  ? 
And  that  other,  in  fine,w  in  which  Charles  the  Bald  n  makes 
mention  of  feudal  lands  whose  census  had  from  time  imme- 
morial belonged  to  the  king? 

Observe  that  there  are  some  passages  which  seem  at  first 
sight  to  be  contrary  to  what  I  have  said,  and  yet  confirm  it. 
We  have  already  seen  that  the  freemen  in  the  monarchy  were 
obliged  only  to  furnish  particular  carriages ;  the  capitulary  just 
now  cited  gives  to  this  the  name  of  census,0  and  opposes  it  to 
the  census  paid  by  the  bondmen. 

Besides,  the  Edict  of  Pistes  p  notices  those  freemen  who  are 
obliged  to  pay  the  royal  census  for  their  head  and  for  their  cot- 
tages,9  and  who  had  sold  themselves  during  the  famine.  The 
king  orders  them  to  be  ransomed.  This  is  because  those  wbo 
were  manumitted  by  the  king's  letters  r  did  not,  generally 
speaking,  acquire  a  full  and  perfect  liberty  ,$  but  they  paid  cen- 
sum  in  capite;  and  these  are  the  people  here  meant. 

We  must,  therefore,  waive  the  idea  of  a  general  and  universal 
census,  derived  from  that  of  the  Romans,  from  which  the 
rights  of  the  lords  are  also  supposed  to  have  been  derived  by 
usurpation.  What  was  called  census  in  the  French  monarchy, 
independently  of  the  abuse  made  of  that  word,  was  a  particular 
tax  imposed  on  the  bondmen  by  their  masters. 

I  beg  the  reader  to  excuse  the  trouble  I  must  give  him  with 
such  a  number  of  citations.  I  should  be  more  concise  did  I 


h  "  Undecunque  antiquitus  ad  partem 
regis  venire  solebant.  —  Capitulary  of 
the  year  812,  arts.  10  and  n. 

i  In  the  year  813,  art.  6,  edition  of 
Baluzius,  torn.  i.  p.  508. 

; "  De  illis  unde  censa  exigunt.  — 
Capitulary  of  the  year  813,  art.  6. 

k  Book  IV.  of  the  Capitularies,  art. 
37,  and  inserted  in  the  law  of  the  Lom- 
bards. 

! "  Si  quis  terram  tributariam,  unde 
census  ad  partem  nostram  exire  solebat, 
susceperit.  '—Book  IV.,  of  the  Capitu- 
laries, art.  37. 

in  In  the  year  805,  art.  8. 

n "  Unde  census  ad  partem  regis 
exivit  antiquitus." — Capitulary  of  the 
year  805.  art.  8. 


o "  Censibus  vel  paraveredis  quos 
Franci  homines  ad  regiam  potestatem 
exsoivere  debent." 

p  In  the  year  864,  art.  34,  edition  of 
Baluzius,  p.  192. 

q "  De  illis  francis  horninibus  qui 
censum  regium  de  suo  capite  et  de  suis 
recellis  debeant."— Ibid. 

r  The  28th  article  of  the  same  edict 
explains  this  extremely  well;  it  even 
makes  a  distinction  between  a  Roman 
freedman  and  a  Frank  freedman:  and 
we  likewise  see  there  that  the  census 
was  not  general;  it  deserves  to  be  read. 

s  As  appears  by  the  Capitulary  of 
Charlemagne  in  the  year  813,  which  we 
have  already  quoted. 


,9o  MONTESQUIEU 

not  meet  with  the  Abbe  du  Bos's  book  on  the  establishment  of 
the  French  monarchy  in  Gaul,  continually  in  my  way.  Noth- 
ing is  a  greater  obstacle  to  our  progress  in  knowledge,  than  a 
bad  performance  of  a  celebrated  author;  because,  before  we 
instruct  we  must  begin  with  undeceiving. 

1 6. — Of  the  feudal  Lords  or  Vassals 

I  have  noticed  those  volunteers  among  the  Germans,  who 
have  followed  their  princes  in  their  several  expeditions.  The 
same  usage  continued  after  the  conquest.  Tacitus  mentions 
them  by  the  name  of  companions ;  t  the  Salic  law  by  that  of 
men  who  have  vowed  fealty  to  the  king ; «  the  formularies  of 
Marculfus^  by  that  of  the  king's  "  antrustions,"  w  the  earliest 
French  historians  by  that  of  "  leudes,"*  faithful  and  loyal; 
and  those  of  later  date  by  that  of  vassals  and  lords.? 

In  the  Salic  and  Ripuarian  laws  we  meet  with  an  infinite 
number  of  regulations  in  regard  to  the  Franks,  and  only  with 
a  few  for  the  antrustions.  The  regulations  concerning  the  an- 
trustions are  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  concern- 
ing that  of  the  antrustions.  This  is  because  the  property  of 
the  latter  was  regulated  rather  by  the  political  than  by  the  civil 
law,  and  was  the  share  that  fell  to  an  army,  and  not  the  patri- 
mony of  a  family. 

The  goods  reserved  for  the  feudal  lords  were  called  fiscal 
goods,  benefices,  honors,  and  fiefs,  by  different  authors,  and  in 
different  times.2 

There  is  no  doubt  but  the  fiefs  at  first  were  at  will.o  We 
find  in  Gregory  of  Tours,&  that  Sunegisilus  and  Gallomanus 
were  deprived  of  all  they  held  of  the  exchequer,  and  no  more 
was  left  them  than  their  real  property.  When  Gontram  raised 
his  nephew  Childebert  to  the  throne,  he  had  a  private  confer- 
ence with  him,  in  which  he  named  the  persons  who  ought  to 

/ "  Comites."  tioned    in    the    "  Life    of    St.    Maur," 

«     Qui  sunt  in  truste  regis,"  tit.  44,  "  dedit    fiscum     unum " ;    and     in    the 

art-_4-  "Annals    of    Metz "    in    the    year    747, 

vBook  I.  formulary  18.  "dedit    illi    comitatus    et    fiscos    pluri- 

w  From  the  word      trew,"  which  sig-  mos."      The    goods    designed    for    the 

nines      faithful  "  among  the  Germans.  support  of  the  royal  family  were  called 

x     Leudes,"  "  fideles."  regalia. 

y  "  VassalH  "  "  seniores."  a  See  the  ist  book,  tit.  x,  of  the  fiefs; 

z     tiscalia.        See    the    i4th    formu-  and  Cuias  on  that  book, 

lary  of  Marculfus,  book  I.     It  is  men-  b  Book  IX.  chap,  xxxviii. 


THE    SPIRIT    OF   LAWS  191 

be  honored  with,  and  those  who  ought  to  be  deprived  of,  the 
fiefs.c  In  a  formulary  of  Marculfus,^  the  king  gives  in  ex- 
change, not  only  the  benefices  held  by  his  exchequer,  but  like- 
wise those  which  had  been  held  by  another.  The  law  of  the 
Lombards  opposes  the  benefices  to  property.*  In  this,  our 
historians,  the  formularies,  the  codes  of  the  different  barbar- 
ous nations,  and  all  the  monuments  of  those  days  are  unani- 
mous. In  fine,  the  writers  of  the  book  of  fiefs  inform  us/  that 
at  first  the  lords  could  take  them  back  when  they  pleased,  that 
afterwards  they  granted  them  for  the  space  of  a  year,g  and  that 
at  length  they  gave  them  for  life. 

17. — Of  the  military  Service  of  Freemen 

Two  sorts  of  people  were  bound  to  military  service ;  the 
great  and  lesser  vassals,  who  were  obliged  in  consequence  of 
their  fiefs ;  and  the  freemen,  whether  Franks,  Romans,  or  Gauls, 
who  served  under  the  count  and  were  commanded  by  him  and 
his  officers. 

The  name  of  freemen  was  given  to  those,  who  on  the  one 
hand  had  no  benefits  or  fiefs,  and  on  the  other  were  not  sub- 
ject to  the  base  services  of  villanage;  the  lands  they  possessed 
were  what  they  called  allodial  estates. 

The  counts  assembled  the  freemen,/*  and  led  them  against 
the  enemy;  they  had  officers  under  them  who  were  called 
vicars ;  *  and  as  all  the  freemen  were  divided  into  hundreds, 
which  constituted  what  they  called  a  borough,  the  counts  had 
also  officers  under  them,  who  were  denominated  centenarii,  and 
led  the  freemen  of  the  borough,  or  their  hundreds,  to  the  field.; 

This  division  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- 

c  Quos  honoraret  muneribus,  quos  ab  g  It  was  a  kind  of  precarious  tenure 

honore  depelleret." — Ibid.  lib.  VII.  which  the  lord  consented  or  refused  to 

d "  Vel    reliquis    quibuscumque    bene-  renew    every    year;    as    Cujas    has    ob- 

ficiis,   quodcumque  ille,   vel  fiscus  nos-  served. 

ter,   in  ipsis  locis  tenuisse  noscitur." —  h  See  the   Capitulary  of  Charlemagne 

Lib.  I.  formul.  30.  in  the  year  812,  arts.  3  and  4,  edition  of 

e  Liv.  III.  tit.  8,  sec.  3.  Baluzius,  torn.  i.  p.  491;  and  the  Edict 

f "  Antiquissimo     enim     tempore     sic  of  Pistes  in  the  year  864,  art.  26,  torn, 

erat    in    Dominorum    potestate    connex-  ii.  p.  186. 

um,   ut  quando  vellent  possent  auferre  *     Et     habebat     unusquisque     comes 

rem  in  feudum  a  se  datam;  postea  vero  Vicarios  et  Centenaries  secum."— Book 

conventum    est    ut    per   annum    tantum  II.  of  the  Capitularies,  art.  28. 
firmitatem    haberent,    deinde    statutum  /  They  were  called  "  compagenses." 

est  ut  usque  ad  vitam  fidelis  produce- 
retur."— "  Feudorum,"  lib.  I.  tit.  i. 


r-^fcB  '    - 

192  MONTESQUIEU 

beries  committed  in  their  division ;  this  we  find  in  the  decrees 
of  those  princes. k  A  regulation  of  this  kind  is  to  this  very  day 
observed  in  England. 

As  the  counts  led  the  freemen  against  the  enemy,  the  feudal 
lords  commanded  also  their  vassals  or  rear-vassals;  and  the 
bishops,  abbots,  or  their  advocates  I  likewise  commanded 
theirs.^ 

The  bishops  were  greatly  embarrassed  and  inconsistent  with 
themselves ; «  they  requested  Charlemagne  not  to  oblige  them 
any  longer  to  military  service ;  and  when  he  granted  their  re- 
quest, they  complained  that  he  had  deprived  them  of  the  public 
esteem  ;  so  that  this  prince  was  obliged  to  justify  his  intentions 
upon  this  head.  Be  that  as  it  may,  when  they  were  exempted 
from  marching  against  the  enemy  I  do  not  find  that  their  vas- 
sals were  led  by  the  counts ;  on  the  contrary,  we  see  that  the 
kings  or  the  bishops  chose  one  of  their  feudatories  to  conduct 
them.o 

In  a  Capitulary  ot  Louis  the  Debonnaire,/>  this  prince  dis- 
tinguishes three  sorts  of  vassals,  those  belonging  to  the  king, 
those  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  in  the  king's  household  hindered  the 
lord  himself  from  commanding  them.? 

But  who  is  it  that  led  the  feudal  lords  into  the  field?  No 
doubt  the  king  himself,  who  was  always  at  the  head  of  his  faith- 
ful vassals.  Hence  we  constanly  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  kings 
did  not  take  the  field  to  put  themselves  at  the  head  of  an  eccle- 
siastic militia ;  these  were  not  the  men  they  chose  to  conquer 
or  to  die  with. 

k  Published   in   the   year   595,    art.    i.  P  The  5th  Capitulary  of  the  year  819, 

See   the    Capitularies,    edition   of   Balu-  art.  27,  edition  of  Baluzius,  p.  618. 

zius.  p.  20.     These  regulations  were  un-  q "  De    vassis     dominicis     qui     adhuc 

doubtedly  made  by  agreement.  intra  casam  serviunt  et  tamen  beneficia 

/  "  Adyocati."  habere  noscuntur,  statutum  est  ut  qui- 

m  Capitulary   of   Charlemagne   in   the  cumque  ex  eis  cum  domino  imperatore 

year    812,    arts,     i    and    5,    edition    of  domi   remanserint,   vassallos  suos  casa- 

Baluzius,  torn.  i.  p.  490.  tos     secum     non    retineant;     sed     cum 

n  See  the  Capitulary  of  the  year  803,  comite,  cujus  pagenses  sunt?  ire  permit- 
published  at  Worms,  edition  of  Balu-  tant." — Second  Capitulary  in  the  year 
zius,  pp.  408  and  410.  812,  art.  7,  edition  of  Baluzius,  torn.  i. 

o  Capitulary   of   Worms   in   the   year  p.  494. 

803,  edition  of  Baluzius,  page  409;  and  r  First  Capitul.  of  the  year  812,  art.  5, 

the    Council    in    the    year    845,    under  "  de  hominibus  nostris,  et  episcoporum 

Charles  the   Bald,   "  in  verno   palatio,"  et  abbatum   qui   vel   beneficia  vel   talia 

edition  of  Baluzius,  torn.  ii.  p.  17,  art.  8.  propria  habent,"  etc.,  edition  of  Balu- 
zius, torn.  i.  p.  490. 


THE   SPIRIT   OF   LAWS  193 

But  these  lords  likewise  carried  their  vassals  and  rear-vas- 
sals with  them,  as  we  can  prove  by  the  Capitulary  in  which 
Charlemagne  ordains  that  every  freeman  who  has  four  manors, 
either  in  his  own  property  or  as  a  benefice  from  somebody  else, 
should  march  against  the  enemy  or  follow  his  lord.-*  It  is  evi- 
dent, that  Charlemagne  means,  that  the  person  who  had  a 
manor  of  his  own  should  march  under  the  count  and  he  who 
held  a  benefice  of  a  lord  should  set  out  along  with  him. 

And  yet  the  Abbe  du  Bos  pretends,*  that  when  mention  is 
made  in  the  Capitularies  of  tenants  who  depended  on  a  par- 
ticular lord,  no  others  are  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 themselves ;  that  which  I  have  just  quoted  says  expressly 
the  contrary.  The  treaty  between  Charles  the  Bald  and  his 
brothers  notices  also  those  freemen  who  might  choose  to  fol- 
low either  a  lord  or  the  king ;  and  this  regulation  is  conform- 
able to  a  great  many  others. 

We  may,  therefore,  conclude,  that  there  were  three  sorts  of 
military  services;  that  of  the  king's  vassals,  who  had  othef 
vassals  under  them ;  that  of  the  bishops  or  of  the  other  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 ;  as 
those  who  have  a  particular  command  are  subordinate  to  him 
who  is  invested  with  a  more  general  authority. 

We  even  find  that  the  count  and  the  king's  commissaries 
might  oblige  them  to  pay  the  fine  when  they  had  not  fulfilled 
the  engagements  of  their  fief.  In  like  manner,  if  the  king's 
vassals  committed  any  outrage  M  they  were  subject  to  the  cor- 
rection of  the  count,  unless  they  choose  to  submit  rather  to  that 
of  the  king. 

1 8. — Of  the  double  Service 

It  was  a  fundamental  principle  of  the  monarchy  that  who- 
soever was  subject  to  the  military  power  of  another  person  was 
subject  also  to  his  civil  jurisdiction.  Thus  the  Capitulary  of 

s  In  the  year  812,  chap,  i,  edition  of  /  Tom.  iii.  book  VI.  chap.  iv.  p.  299, 

Baluzius,  p.  490,  "  ut  omnis  homo  liber  "  Establishment    of    the    French    Mon- 

quatuor  mansos  vestitos  de  proprio  suo,  archy." 

sive  de  alicujus  beneficio  habet,  ipse  se  M  Capitulary  of  the  year  882.   art.   u, 

praeparet,  et  ipse  in  hostem  pergat,  sive  "  apud    vernis    palatium,"    edition    of 

cum  seniore  suo."  Baluzius,  torn.  ii.  p.  289. 

VOL.  II.— 13 


I94  MONTESQUIEU 

Louis  the  Debonnaire,^  in  the  year  815,  makes  the  military 
power  of  the  count  and  his  civil  jurisdiction  over  the  freemen 
keep  always  an  equal  pace.  Thus  the  placita  w  of  the  count  who 
carried  the  freemen  against  the  enemy  were  called  the  placita 
of  the  freemen ;  *  whence  undoubtedly  came  this  maxim,  that 
the  questions  relating  to  liberty  could  be  decided  only  in  the 
count's  fiacita,  and  not  in  those  of  his  officers.  Thus  the  count 
never  led  the  vassals  y  belonging  to  the  bishops  or  to  the  ab- 
bots, against  the  enemy,  because  they  were  not  subject  to  his 
civil  jurisdiction.  Thus,  he  never  commanded  the  rear-vassals 
belonging  to  the  king's  vassals.  Thus  the  glossary  of  the  Eng- 
lish laws  informs  us,z  that  those  to  whom  the  Saxons  gave  the 
name  of  copies  a  were  by  the  Normans  called  counts,  or  com- 
panions, because  they  shared  the  justiciary  fines  with  the  king. 
Thus  we  see,  that  at  all  times  the  duty  of  a  vassal  towards  his 
lord  b  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  time  the  payment  of  the  fiscal  duties,  which  consisted  in 
some  carriage  services  due  by  the  freemen,  and  in  general  in 
certain  judiciary  profits,  of  which  we  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  counties. 
And,  indeed,  the  counties  in  the  several  variations  that  hap- 
pened at  different  times  always  followed  the  variations  of  the 
fiefs ;  both  were  governed  by  the  same  plan,  and  by  the  same 
principles.  In  a  word,  the  counts  in  their  counties  were  lords, 
and  the  lords  in  their  seigniories  were  counts. 

It  has  been  a  mistake  to  consider  the  counts  as  civil  officers, 
and  the  dukes  as  military  commanders.  Both  were  equally 
civil  and  military  officers :  d  the  whole  difference  consisted  in 

v  Arts,    i,    2,    and    the    Council    "  in  a  In  the  word  "  satrapia." 

verno  palatio  "  of  the  year  845,  art.  8,  b  This  is  well  explained  by  the  assizes 

edition  of  Baluzius,  torn.  ii.  p.   17.  of  Jerusalem,  chaps,   ccxxi.  and  ccxxii. 

w  Or  assizes.  c  The  advowees  of  the  church   ("  ad- 

x  Capitularies,    book   4th   of   the   Col-  vocati ")    were   equally  at  the   head   of 

lection    of    Angezise,    art.    57;    and   the  their  placita  and  of  their  militia. 

5th  Capitulary  of  Louis  the  Debonnaire  d  See  the  8th  formulary  of  Marculfus, 

in  the  year  819,  art.  14,  edition  of  Balu-  book     I.,    which    contains    the    letters 

zius,  torn.  i.  p.  615.  given   to   a   duke,    patrician,   or   count; 

y  See  note  o,  page  192.  and   invests  them   with  the  civil  juris- 

z  It  is  to  be  found  in  the  Collection  diction,  and  the  fiscal  administratioa. 
of     William     Lambard,     "  de     priscis 
Anglorum  legibus." 


THE    SPIRIT    OF   LAWS  195 

the  duke's  having  several  counts  under  him,  though  there  were 
counts  who  had  no  duke  over  them,  as  we  learn  from  Frede- 
garius.* 

It. will  be  imagined,  perhaps,  that  the  government  of  the 
Franks  must  have  been  very  severe  at  that  time,  since  the  same 
officers  were  invested  with  a  military  and  civil  power,  nay,  even 
with  a  fiscal  authority,  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  counts  pronounced  judg- 
ment by  themselves,  and  administered  justice  in  the  same  man- 
ner as  the  bashaws  in  Turkey ;  in  order  to  judge  affairs,  they 
assembled  a  kind  of  assizes,  where  the  principal  men  appeared. 

To  the  end  we  may  thoroughly  understand  what  relates  to 
the  judicial  proceedings  in  the  formulas,  in  the  laws  of  the  bar- 
barians and  in  the  Capitularies,  it  is  proper  to  observe  that  the 
functions  of  the  count,  of  the  grafio  or  fiscal  judge,  and  the 
centenarlus  were  the  same ;  that  the  judges,  the  rathimburghers, 
and  the  aldermen  were  the  same  persons  under  different  names.^ 
These  were  the  count's  assistants,  and  were  generally  seven  in 
number;  and  as  he  was  obliged  to  have  twelve  persons  to 
judge/  he  filled  up  the  number  with  the  principal  men.g 

But  whoever  had  the  jurisdiction,  the  king,  the  count,  the 
grafio,  the  centenarius,  the  lords,  or  the  clergy,  they  never  tried 
causes  alone ;  and  this  usage,  which  derived  its  origin  from  the 
forests  of  Germany,  was  still  continued  even  after  the  fiefs  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  were  so  simple  that  they  consisted  only, 
as  we  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  misde- 
meanors.* 

e "  Chronicle,"   chap.   Ixxviii.,   in  the  there    were    none    but    principal    men. 

year  636.  See  the  appendix  to  the  formularies  of 

f  See     concerning    this     subject     the  Marculfus,  chap.  li. 

Capitularies   of   Louis   the   Debonnaire,  h  And  some  tolls  on  rivers,  of  which 

added  to  the  Salic  law,  art.  2,  and  the  I  have  spoken  already, 

formula    of    judgments    given    by    Du  *  See  the   law  of  the   Ripuarians,   tit. 

Cange  in  the  words  "  boni  homines."  89;  and  the  law  of  the  Lombards,  book 

g "  Per    bonos    homines,"    sometimes  II.  tit.  52,  sec.  9. 


196  MONTESQUIEU 

19. — Of  Compositions  among  the  barbarous  Nations 

Since  it  is  impossible  to  gain  any  insight  into  our  political 
law  unless  we  are  thoroughly  acquainted  with  the  laws  and 
manners  of  the  German  nations,  I  shall,  therefore,  pause  here 
awhile,  in  order  to  inquire  into  those  manners  and  laws. 

It  appears  by  Tacitus,  that  the  Germans  knew  only  two 
capital  crimes;  they  hanged  traitors,  and  drowned  cowards; 
these  were  the  only  public  crimes  among  that  people.  When 
a  man  had  injured  another,  the  relatives  of  the  person  injured 
took  share  in  the  quarrel,  and  the  offence  was  cancelled  by  a 
satisfaction.;  This  satisfaction  was  made  to  the  person  of- 
fended, when  capable  of  receiving  it ;  or  to  the  relatives  if  they 
had  been  injured  in  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  by  the  mutual  agreement  of  the  parties;  hence  in  the 
codes  of  the  barbarous  nations  these  satisfactions  are  called 
compositions. 

The  law  of  the  Frisians  k  is  the  only  one  I  find  that  has  left 
the  people  in  that  situation  in  which  every  family  at  variance 
was  in  some  measure  in  the  state  of  nature,  and  in  which  being 
unrestrained  either  by  a  political  or  civil  law  they  might  give 
freedom  to  their  revenge  till  they  had  obtained  satisfaction. 
Even  this  law  was  moderated ;  a  regulation  was  made  /  that  the 
person  whose  life  was  sought  after  should  be  unmolested  in 
his  own  house,  as  also  in  going  and  coming  from  church  and 
the  court  where  causes  were  tried. 

The  compilers  of  the  Salic  law  m  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 
till  the  relatives  had  consented  to  his  being  readmitted.  And 
as  before  that  time  strict  orders  were  issued  to  everyone,  even 
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- 

/ "  Suscipere     tarn     inimicitias,      seu  k  See  this  law  in  the  ad  title  on  mur- 

patris,    seu   propinqui,    quam   amicitias,  ders;   and   Vulemar's  addition  on  rob- 

necesse    est:    nee    implacabiles    durant;  beries. 

luitur    enim    etiam    nomicidium    certo  / "  Additio  sapientum,"  tit.  i.  sec.  i. 

armentorum    ac    pecorum    numero,    re-  m  Salic   law,    tit.    57,    sec.    5,    tit.    17, 

cipitque     satisfactionem     universa     do-  sec.  2. 
mus.  — Tacitus,    "  de    Moribus    Germa- 
norum." 


THE   SPIRIT   OF   LAWS  197 

spect  to  others,  and  others  in  respect  to  him,  in  a  state  of  sav- 
agery till  an  end  was  put  to  this  state  by  a  composition. 

This  excepted,  we  find  that  the  sages  of  the  different  bar- 
barous nations  thought  of  determining  by  themselves  what 
would  have  been  too  long  and  too  dangerous  to  expect  from 
the  mutual  agreement  of  the  parties.  They  took  care  to  fix 
the  value  of  the  composition  which  the  party  wronged  or  in- 
jured was  to  receive.  All  those  barbarian  laws  are  in  this  re- 
spect most  admirably  exact;  the  several  cases  are  minutely 
distinguished^  the  circumstances  are  weighed,  the  law  sub- 
stitutes itself  in  the  place  of  the  person  injured  and  insists  upon 
the  same  satisfaction  as  he  himself  would  have  demanded  in 
cold  blood. 

By  the  establishing  of  those  laws,  the  German  nations  quitted 
that  state  of  nature  in  which  they  seemed  to  have  lived  in  Taci- 
tus's  time. 

Rotharis  declares,  in  the  law  of  the  Lombards,**  that  he  had 
increased  the  compositions  allowed  by  ancient  custom  for 
wounds,  to  the  end  that  the  wounded  person  being  fully  sat- 
isfied, all  enmities  should  cease.  And,  indeed,  as  the  Lom- 
bards, from  a  very  poor  people  had  grown  rich  by  the  conquest 
of  Italy,  the  ancient  compositions  had  become  frivolous,  and 
reconcilements  prevented.  I  do  not  question  but  this  was  the 
motive  which  obliged  the  other  chiefs  of  the  conquering  na- 
tions to  make  the  different  codes  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  compositions./'  Thus  in  the  law 
of  the  Angli,  there  was  a  composition  of  six  hundred  sous  for 
the  murder  of  an  adeling,  two  hundred  for  that  of  a  freeman, 
and  thirty  for  killing  a  bondman.  The  largeness,  therefore,  of 
the  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 :  q 
it  gives  the  names  of  the  Bavarian  families  who  received  a 

n  The  Salic  laws  are  admirable  in  this  p  See  the  law  of  the  Angli,  tit.  i.  sees, 

respect,  see  especially  the  titles  3,  4,  5,  i,  2,  and  4;  ibid.  tit.  v.  sec.  6;  the  law 

6,  and  7,  which  related  to  the  stealing  of  the  Bavarians,  tit.  i.  chaps.  8  and  9, 

of  cattle.  and  the  law  of  the  Frisians,  tit.  xv. 

o  Book  I.  tit.  7,  sec.  15.  q  Tit.  2,  chap.  xx. 


198  MONTESQUIEU 

double  composition,  because  they  were  the  first  after  the  Agil- 
olfings.r  The  Agilolfings  were  of  the  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  for 
the  Agilolfings.  "  Because  he  is  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  little 
specie,  they  might  pay  it  in  cattle,  corn,  movables,  arms,  dogs, 
hawks,  lands,  etc.J  The  law  itself  frequently  determined  the 
value  of  those  things ;  which  explains  how  it  was  possible  for 
them  to  have  such  a  number  of  pecuniary  punishments  with 
so  very  little  money J 

These  laws  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  to  conceive,  that  a  person  who  had 
taken  revenge  after  having  received  satisfaction  was  guilty  of 
a  heinous  crime.  This  contained  a  public  as  well  as  a  private 
offence ;  it  was  a  contempt  of  the  law  of  itself ;  a  crime  which 
the  legislators  never  failed  to  punish.w 

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  satisfactions  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 

r  Hozidra,  Ozza,  Sagana,  Habalingua,  sees.   8  and   34;   ibid.    sec.   38,   and   the 

Anniena. —  Ibid.  Capitulary  of  Charlemagne  in  the  year 

s  Thus  the  law  of  Ina  valued  life  by  802,  chap,  xxxii.,  containing  an  instruc- 

a  certain  sum  of  money,  or  by  a  certain  tion  given  to  those  whom  he  sent  into 

portion    of    land. — "  Leges    Inae    regis,  the  provinces. 

titulo  de  villico  regio  de  priscis  Anglo-  v  See  in  Gregory  of  Tours,  book  VII. 

rum  legibus,"  Cambridge,  1644.  chap,    xlvii.,    the    detail    of    a    process, 

t  See   the   law   of   the    Saxons,   which  wherein  a  party  loses  half  the  composi- 

makes  this  same  regulation  for  several  tion   that   had    been   adjudged   to    him, 

people,    chap,    xviii.     See   also   the  law  for  having  done  justice  to  himself,   in- 

of  the   Ripuarians,   tit.   36,   sec.    n,  the  stead  of  receiving  satisfaction,  whatever 

law  of  the  Bavarians,  tit.  i.  sees.  10  and  injury    he    might    have    afterwards    re- 

ii.     "  Si  aurum  non  habet,  donet  aliam  ceived. 

pecuniam,   mancipia,  terram,"  etc.  w  See   the   law  of  the   Saxons,   chap. 

«  See  the  law  of  the  Lombards,  book  iii.    sec.   4;   the   law  of  the   Lombards, 

I.  tit.  25,  sec.  21 ;  ibid,  book  I.  tit.  9,  book  I.  tit.  37,  sees,   i  and  2;  and  the 


THE   SPIRIT   OF   LAWS  199 

receive  satisfaction  wanted  to  preserve  his  right  of  prosecution ; 
he  who  refused  to  give  it  left  the  right  of  prosecution  to  the 
person  injured ;  and  this  is  what  the  sages  had  reformed  in  the 
institutions  of  the  Germans,  whereby  people  were  invited  but 
not  compelled  to  compositions. 

I  have  just  now  made  mention  of  a  text  of  the  Salic  law,  in 
which  the  legislator  left  the  party  offended  at  liberty  to  receive 
or  to  refuse  satisfaction ;  it  is  the  law  by  which  a  person  who 
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  Salic  laws  did  not  meddle  with 
the  ancient  usage. 

It  would  have  been  absolutely  unjust  to  grant  a  composition 
to  the  relatives  of  a  robber  killed  in  the  act,  or  to  the  relatives 
of  a  woman  who  had  been  repudiated  for  the  crime  of  adultery. 
The  law  of  the  Bavarians  allowed  no  compositions  in  the  like 
cases,  but  punished  the  relatives  who  sought  revenge.? 

It  is  no  rare  thing  to  meet  with  compositions  for  involun- 
tary actions  in  the  codes  of  the  laws  of  the  barbarians.  The  law 
of  the  Lombards  is  generally  very  prudent ;  it  ordained  2  that 
in  those  cases  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  judges  We  shall  presently  see  the  mo- 
tive of  this  law. 

20. — Of  what  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- 
law  of  the  Alemans,  tit.  45,  sees,  i  and  Ripuarians  seem  to  have  softened  this. 
2.  This  last  law  gave  leave  to  the  See  the  8$th  title  of  those  laws, 
party  injured  to  right  himself  upon  the  y  See  the  decree  of  Tassillon,  "  de 

spot,  and  in  the  first  transport  of  pas-  popularibus  legibus,"  arts.  3.  4,  10  16 
sion.  See  also  the  Capitularies  of  19;  the  law  of  the  Angli,  tit.  vii.  sec.  4. 
Charlemagne  in  the  year  779,  chap.  z  Book  I.  tit.  ix.  sec.  4. 

xxii.,  in  the  year  802,  chap,  xxxii.,  and  a "  Pactus     pro     tenore     pacis     inter 

also  that  of  the  year  805.  chap.  v.  Childebertum    et    Clotarium,    anno    593, 

*The    compilers    of   the    law    of   the       et   decretio   Clotarii   2  regis,   circa  an- 
num 595,"  chap.  xi. 


200  MONTESQUIEU 

barian  laws  called  fredum.b  I  intend  to  treat  of  it  at  large; 
and  in  order  to  give  an  idea  of  it,  I  begin  with  defining  it  as 
a  recompense  for  the  protection  granted  against  the  right  of 
vengeance.  Even  to  this  day,  fred  in  the  Swedish  language 
signifies  peace. 

The  administration  of  justice  among  those  rude  and  un- 
polished nations  was  nothing  more  than  granting  to  the  per- 
son who  had  committed  an  offence,  a  protection  against  the 
vengeance  of  the  party  offended,  and  obliging  the  latter  to  ac- 
cept of  the  satisfaction  due  to  him :  insomuch  that  among  the 
Germans,  contrary  to  the  practice  of  all  other  nations,  justice 
was  administered  in  order  to  protect  the  criminal  against  the 
party  injured. 

The  codes  of  the  barbarian  laws  have  given  us  the  cases  in 
which  the  freda  might  be  demanded.  When  the  relatives 
could  not  prosecute,  they  allowed  of  no  fredum;  and,  indeed, 
when  there  was  no  prosecution  there  could  be  no  composition 
for  a  protection  against  it.  Thus,  in  the  law  of  the  Lombards/ 
if  a  person  happened  to  kill  a  freeman  by  accident,  he  paid  the 
value  of  the  man  killed,  without  the  fredum;  because,  as  he  had 
killed  him  involuntarily,  it  was  not  the  case  in  which  the  rela- 
tives were  allowed  the  right  of  prosecution.  Thus  in  the  law 
of  the  Ripuarians,^  when  a  person  was  killed  with  a  piece  of 
wood,  or  with  any  instrument  made  by  man,  the  instrument 
or  the  wood  were  deemed  culpable,  and  the  relatives  seized 
upon  them  for  their  own  use,  but  were  not  allowed  to  demand 
the  fredum. 

In  like  manner,  when  a  beast  happened  to  kill  a  man,  the 
same  law  established  a  composition  without  the  fredum,  be- 
cause the  relatives  of  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  fredum:  as  he  was  not  yet  able  to  bear 
arms  he  could  not  be  in  the  case  in  which  the  party  injured,  or 
his  relatives,  had  a  right  to  demand  satisfaction. 

b  When  it  was  not  determined  by  the  c  Book   I.   tit.   9,   sec.    17,   edition   of 

law  it  was  generally  the  third  of  what  Lindembrock. 

was  given  for  the  composition,   as  ap-  d  Tit.  70. 

pears    in    the    law    of    the    Ripuarians,  e  Tit.    46.      See   also    the   law   of   the 

chap.    Ixxxix.,    which    is    explained    by  Lombards,   book   I.    chap.   xxi.    sec.   3, 

the  third   Capitulary  of  the  year  813. —  Lindembrock's     edition.     "  si     caballus 

Edition  of  Baluzius,  torn.  i.  p.  512.  cum  pede,"  etc.             /Tit.  28,  sec.  6. 


THE    SPIRIT   OF   LAWS  201 

It  was  the  criminal  that  paid  the  fredum  for  the  peace  and 
security  of  which  he  had  been  deprived  by  his  crime,  and 
which  he  might  recover  by  protection.  But  a  child  did  not 
lose  this  security,  he  was  not  a  man ;  and  consequently  could 
not  be  expelled  from  human  society. 

This  fredum  was  a  local  right  in  favor  of  the  person  who  was 
judge  of  the  districts  Yet  the  law  of  the  Ripuarians/*  for- 
bade him  to  demand  it  himself :  it  ordained  that  the  party  who 
had  gained  the  cause  should  receive  it  and  carry  it  to  the  ex- 
chequer, to  the  end  that  there  might  be  a  lasting  peace,  says 
the  law  among  the  Ripuarians. 

The  greatness  of  the  fredum  was  proportioned  to  the  degree 
of  protection:  thus  the  fredum  for  the  king's  protection  was 
greater  than  what  was  granted  for  the  protection  of  the  count, 
or  of  the  other  judges.* 

Here  I  see  the  origin  of  the  jurisdiction  of  the  lords.  The 
fiefs  comprised  very  large  territories,  as  appears  from  a  vast 
number  of  records.  I  have  already  proved  that  the  kings  raised 
no  taxes  on  the  lands  belonging  to  the  division  of  the  Franks ; 
much  less  could  they  reserve  to  themselves  any  duties  on  the 
fiefs.  Those  who  obtained  them  had  in  this  respect  a  full  and 
perfect  enjoyment,  reaping  every  possible  emolument  from 
them.  And  as  one  of  the  most  considerable  emoluments  was 
the  justiciary  profits  (freda)j  which  were  received  according 
to  the  usage  of  the  Franks,  it  followed  thence  that  the  person 
seized  of  the  fief  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  the  payment  of  the  compositions  of  the 
law,  and  demanding  the  legal  fines.  We  find  by  the  formularies 
containing  confirmation  of  the  perpetuity  of  a  fief  in  favor  of  a 
feudal  lord,&  or  of  the  privileges  of  fiefs  in  favor  of  churches,/ 
that  the  fiefs  were  possessed  of  this  right.  This  appears  also 

g  As   appears   by  the   decree   of   Clo-  the   second   race,   as   appears  from  the 

tharius    II    in    the    year    595,    "  fredus  Capitulary   "  de   partibus   Saxoniae,"    in 

tamen  judici   in   cujus   pago   est  reser-  the  year  789. 

vetur."  j  See  the  Capitulary  of  Charlemagne, 

h  Tit.  85.  "  de  villis,"  where  he  ranks  these  freda 

* "  Capitulare  incerti  anni,"  chap.  among  the  great  revenues  of  what  was 

Ivii.,  in  Baluzius,  torn.  i.  p.  515,  and  it  called  "  villae,"  or  the  king's  demesnes. 

is  to  be  observed,  that  what  was  called  k  See  the  jd,  8th,  and  i;th  formulas, 

"  fredum  "    or    "  faida,"    in    the    monu-  book  I.  of  Marculfus. 

ments   of   the   first   race,    is   known   by  /  See  the  2d,  3d,  and  4th  formulas  of 

the   name   of   "  bannum  "   in   those   of  Marculfus,  book  I. 


202  MONTESQUIEU 

from  an  infinite  number  of  charters  m  mentioning  a  prohibi- 
tion to  the  king's  judges  or  officers  of  entering  upon  the  ter- 
ritory in  order  to  exercise  any  act  of  judicature  whatsoever,  or 
to  demand  any  judiciary  emolument.  When  the  king's  judges 
could  no  longer  make  any  demand  in  a  district  they  never  en- 
tered it ;  and  those  to  whom  this  district  was  left  performed  the 
same  functions  as  had  been  exercised  before  by  the  judges. 

The  king's  judges  are  forbidden  also  to  oblige  the  parties 
to  give  security  for  their  appearing  before  them ;  it  belonged, 
therefore,  to  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  accommodated  with 
a  lodging ;  in  effect,  they  no  longer  exercised  any  function  in 
those  districts. 

The  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  it.  For  this  reason  it  had 
been  considered  at  all  times  in  this  light ;  whence  this  maxim 
arose,  that  jurisdictions  are  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  are  the  only  people  that  estab- 
lished patrimonial  jurisdictions.  Besides,  we  find  by  the 
formularies  of  Marculfus  n  that  there  were  freemen  dependent 
on  these  jurisdictions  in  the  earliest  times :  the  bondmen  were, 
therefore,  subject  to  the  jurisdiction,  because  they  were  upon 
the  territory ;  and  they  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  they  say,  usurped  the  jurisdictions.  But  are  the  nations 
descended  from  Germany  the  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 

m  See  the  collections  of  those  char-  magne,  in  the  year  771,  in  Martene, 
ters,  especially  that  at  the  end  of  the  torn.  i.  Anecdot.  collect,  n,  "  praecipi- 
Sth  volume  of  the  "  Historians  of  entes  jubemus  ut  ullus  judex  publicus 
France,"  published  by  the  Benedictine  .  .  .  homines  ipsius  ecclesise  et  mo- 
monks,  nasterii  ipsius  Morbacensis  tarn  inge- 

n  See  the  3d,  4th,  and  i4th  of  the  nuos  quam  et  servos,  et  qui  super 

first  book,  and  the  Charter  of  Charle-  eorum  terras  manere,"  etc. 


THE    SPIRIT    OF   LAWS  203 

sovereigns,  and  yet  we  find  no  other  instance  of  what  we  call 
the  jurisdiction  of  the  lords.  The  origin  of  it  is,  therefore,  to 
be  traced  in  the  usages  and  customs  of  the  Germans. 

Whoever  has  the  curiosity  to  look  into  Loyseau  o  will  be  sur- 
prised at  the  manner  in  which  this  author  supposes  the  lords  to 
have  proceeded,  in  order  to  form  and  usurp  their  different 
jurisdictions.  They  must  have  been  the  most  artful  people 
in  the  world ;  they  must  have  robbed  and  plundered,  not  after 
the  manner  of  a  military  nation,  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  the  kingdom,  and  in  so  many  other  countries 
in  Europe ;  Loyseau  makes  them  reason  as  he  himself  reasoned 
in  his  closet. 

Once  more ;  if  the  jurisdiction  was  not  a  dependence  of  the 
fief,  how  come  we  everywhere  to  find,  that  the  service  of  the 
fief  was  to  attend  the  king  or  the  lord,  both  in  their  courts  and 
in  the  army  ?  p 

21. — Of  the  Territorial  Jurisdiction  of  the  Churches 

The  churches  acquired  very  considerable  property.  We  find 
that  our  kings  gave  them  great  seigniories,  that  is,  great  fiefs ; 
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  church  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  same  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,  according  to  what  we  have  already  observed. 

The  churches  had,  therefore,  the  right  of  demanding  the  pay- 
ment of  compositions  in  their  territory,  and  of  insisting  upon 
the  fredum;  and  as  those  rights  necessarily  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 

o  "  Treatise  of  Village  Jurisdictions,"  t>  See    Mons.    Ducange   on   the   word 

Loyseau.  "  hominium." 


204  MONTESQUIEU 

own  territory  was  called  immunity,  in  the  style  of  the  formu- 
laries, of  the  charters,  and  of  the  Capitularies.? 

The  law  of  the  Ripuariansr  forbids  the  freedom  of  the 
churches  ^  to  hold  the  assembly  for  administering  justice  in  any 
other  place  than  in  the  church  where  they  were  manumitted.* 
The  churches  had,  therefore,  jurisdictions  even  over  freemen, 
and  held  their  placita  in  the  earliest  times  of  the  monarchy. 

I  find  in  the  "  Lives  of  the  Saints/'  u  that  Clovis  gave  to  a  cer- 
tain holy  person  power  over  a  district  of  six  leagues,  and  ex- 
empted it  from  all  manner  of  jurisdiction.  This,  I  believe,  is 
a  falsity,  but  it  is  a  falsity  for  a  very  ancient  date;  both  the 
truth  and  the  fiction  contained  in  that  life  are  in  relation  to  the 
customs  and  laws  of  those  times,  and  it  is  these  customs  and 
laws  we  are  investigating.^ 

Clotharius  II  orders  the  bishops  or  the  nobility  who  are  pos- 
sessed of  estates  in  distant  parts,  to  choose  upon  the  very  spot 
those  who  are  to  administer  justice,  or  to  receive  the  judiciary 
emoluments.^ 

The  same  prince  regulates  the  judiciary  power  between  the 
ecclesiastic  courts  and  his  officers.*  The  Capitulary  of  Charle- 
magne in  the  year  802  prescribes  to  the  bishops  and  abbots 
the  qualifications  necessary  for  their  officers  of  justice.  An- 
other Capitulary  of  the  same  prince  inhibits  the  royal  officers  y 
to  exercise  any  jurisdiction  over  those  who  are  employed  in 
cultivating  church  lands,  except  they  entered  into  that  state  by 
fraud,  and  to  exempt  themselves  from  contributing  to  the  pub- 
lic charges.^  The  bishops  assembled  at  Rheims  made  a  decla- 
ration that  the  vassals  belonging  to  the  respective  churches  are 
within  their  immunity  &  The  Capitulary  of  Charlemagne  in 
the  year  806  ordains  that  the  churches  should  have  both  crini- 

q  See  the  3d  and  4th  formularies  of  non  instituant,  nisi  de  loco  qui  justitiam 

Marculfus,  book  I.  percipiant    et    aliis    reddant,"    art.     19. 

r  "  Ne  aliubi    nisi    ad    ecclesiam,    ubi  See  also  the  i2th  art. 

relaxati     sunt,     mallum     teneant,"     tit.  x  Ibid.  art.  5. 

Iviii.   sec.   i ;  see  also  sec.   19 ;  Lindem-  y  In  the  law  of  the  Lombards,   book 

brock's  edition.  II.    tit.    44,    chap,    ii.,    Lindembrock's 

s  "  Tabulariis."  edition. 

t  "  Mallum."  s  "  Servi    Aldiones,    libellarii    antiqui, 

M  "  Vita  St.    Germeri,   Episcqpi  Tolo-  vel  alii  noviter  facti."— Ibid, 

sani  apud  Bollandianos  16  Maii."  a  Letter    in    the    year   858,    art.    7,    in 

v  See   also   the    life   of   St.    Melanius,  the  Capitularies,  p.  108.    "  Sicut  illae  res 

and  that  of  St.  Deicola.  et  facultates,    in   quibus   vivunt   clerici, 

w  In  the  Council  of  Paris,  in  the  year  ita    et   illae    sub   cqnsecratione    immuni- 

615.      "  Episcopi    vel    potentes,    qui    in  tatis,    sunt    de    quibus    debent    militare 

aliis   possident   regiombus,   judices   vel  vassalli." 
missos   discussores    de   aliis    provinciis 


THE   SPIRIT   OF   LAWS  205 

inal  and  civil  jurisdiction  over  those  who  live  upon  their  lands.fr 
In  fine,  as  the  Capitulary  of  Charles  the  Bald  c  distinguishes 
between  the  king's  jurisdiction,  that  of  the  lords,  and  that  of  the 
church,  I  shall  say  nothing  further  upon  this  subject.** 

22. — That  the  Jurisdictions  were  established  before  the  End  of 
the  Second  Race 

It  has  been  pretended  that  the  vassals  usurped  the  jurisdic- 
tion in  their  seigniories,  during  the  confusion  of  the  second 
race.  Those  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  discover  how  they  came  to  possess.  But 
the  jurisdictions  do  not  owe  their  origin  to  usurpations ;  they 
are  derived  from  the  primitive  establishment,  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  any ;  if  not, 
he  shall  pay  it  to  the  duke,  or  to  the  person  under  whose  pro- 
tection he  had  put  himself  in  his  lifetime."  e  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  the  Alemans,  "  shall  have  recourse  to  the  prince  to  whom  the 
robber  is  subject;  to  the  end  that  he  may  obtain  a  composi- 
tion." f 

"  If  a  centenarius"  says  the  decree  of  Childebert,  "  finds  a 
robber  in  another  hundred  than  his  own,  or  in  the  limits  of  our 
faithful  vassals,  and  does  not  drive  him  out,  he  shall  be  answer- 
able for  the  robber,  or  purge  himself  by  oath."  g  There  was, 
therefore,  a  difference  between  the  district  of  the  centenarii  and 
that  of  the  vassals. 

b  It  is  added  to  the  law  of  the   Ba-  et    illae    sub    consecratione    immunitatis 

varians,    art.    8.      See    also   the    3d    art.  sunt    de    quibus    debent    militare    vas- 

Lindembrock's    edition,    p.    444.      "  Im-  salli,"  etc. 

primis  omnium  jubendum  est  ut  habe-  e  Tit.    in.    chap,    xn.,    Lmdembrock  s 

ant  ecclesiae  earum  justitias,   et  in  vita  edition, 

illorum    qui   habitant    in    ipsis    ecclesiis  f  Tit.  85. 

et   post,    tarn    in    pecuniis    quam   et    in  §  In    the    year    595,    arts,    n    and    12, 

substantiis  eorum.  edition  of  the  Capitularies  by  Baluzius, 

c  In    the    year   857,    "in    synodo   apud  p.   19.     "  Pari  conditione  convenit  ut  si 

Carisiacum,"  art.  4,  edition  of  Baluzius,  una  centena  in  alia  centena  ^vestigium 

p.  96.  secuta  fuerit  et  invenerit,  vel  in  quibus- 

d  See  the  letter  written  by  the  bish-  cunque     fidelium     nostrorum    ^terminis 

ops  assembled  at  Rheims,   in  the  year  vestigium    miserit,    et    ipsum    in    aliam 

858,  art.  7,  in  the  Capitularies,  Baluzius's  centenam     minime     expellere    potuerit, 

edition,    p.    108.         Sicut    illse    res    et  aut  convictus  reddat  latronem,     etc. 
facultates,   in  quibus  vivunt  clerici,  ita 


206  MONTESQUIEU 

This  decree  of  Childebert/*  explains  the  constitution  of 
Clotharius  of  the  same  year,  which  being  given  for  the  same 
occasion  and  on  the  same  matter  differs  only  in  the  terms ;  the 
constitution  calling  in  truste  what  by  the  decree  is  styled  in 
terminis  fidelium  nostrorum.  Messieurs  Bignon  and  Ducange, 
who  pretend  that  in  truste  signified  another  king's  desmesne, 
are  mistaken  in  their  conjecture.* 

Pepin,  King  of  Italy,  in  a  constitution  that  had  been  made 
as  well  for  the  Franks  as  for  the  Lombards,;  after  imposing 
penalties  on  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  his  fief,  and  in  the  mean- 
time, either  the  judge  or  his  commissary  shall  administer  jus- 
tice.^ 

It  appears  by  a  Capitulary  of  Charlemagne,/  that  the  kings 
did  not  levy  the  freda  in  all  places.  Another  Capitulary  of  the 
same  prince  shows  the  feudal  laws  in  and  feudal  court  to  have 
been  already  established.  Another  of  Louis  the  Debonnaire, 
ordains,  that  when  a  person  possessed  of  a  fief  does  not  admin- 
ister justice,**  or  hinders  it  from  being  administered,  the  king's 
commissaries  shall  live  in  his  house  at  discretion,  till  justice  be 
administered.  I  shall  likewise  quote  two  Capitularies  of 
Charles  the  Bald,  one  of  the  year  86 1 ;  o  where  we  find  the  par- 
ticular jurisdictions  established,  with  judges  and  subordinate 
officers :  and  the  other  of  the  year  864,^  where  he  makes  a  dis- 

h  "  Si   vestigius   cqmprobatur  latronis  /  The  third  of  the  year  812,  art.  10. 

tamen  praesentia  nihil  fonge  mulctando;  m  The   second  of  the  year  813,    Balu- 

aut  si  persequens  latronem  suum  com-  zius's  edition. 

prehenderit,     integram    sibi     compositi-  n  Capitulare    quintum    anni    819,    art. 

pnem     accipiat.       Quod     si     in     truste  23,     Baluzius's    edition,    p.    617.      "  Ut 

invenitur,      medietatem      compositionis  ubicumque    missi,    aut    episcopum,    aut 

trustis    adquirat,    et    capitale    exigat    a  abbatem,    aut   alium    quemlibet   honore 

latrone,"  arts.  2  and  3.  praeditum    invenerint,    qui   justitiam    fa- 

t  See     the     Glossary     on     the     word  cere  noluit  vel  prohibuit,  de  ipsius  rebus 

"  trustis."  vivant     quandiu     in     eo     loco    justitias 

j  Inserted    in    the    law    of    the    Lorn-  facere  debent." 

bards,   book   II.   tit.    Hi.    sec.    14.     It  is  o  Edictum    in    Carisiaco    in    Baluzius, 

the   Capitulary  of  the  year  793,  in  Ba-  torn.  ii.  p.  152,  "  unusquisque  advocatus 

luzius,  p.  544,  art.  10.  pro  omnibus  de  sua  advocatione    .    .    . 

k  "  Et  si  forsitan  Francus  aut  Longo-  in    conveniente    ut    cum    ministerialibus 

bardus     habens     beneficium     justitiam  de  sua  advocatione  quos  invenerit  con- 

facere     noluerit,     ille     judex     in     cujus  tra     hunc      bannum     nostrum     fecisse 

ministerio   fuerit,    cqntradicat   illi   bene-  .    .    .     castiget." 

ficium    suum,    interim,     dum    ipse    aut  p  Edictum  Pistense,  art.  18,  Baluzius's 

missus  ejus  justitiam  faciat."     See  also  edition,  torn.   ii.  p.   181.     "  Si  in  fiscum 

the   same   law   of  the   Lombards,   book  nostrum    vel    in    quamcunque    immuni- 

II.  tit.  52,  sec.  2,  which  relates  to  the  tatem  aut  alicujus   potentis  potestatem 

Capitulary  of  Charlemagne  of  the  year  vel  proprietatem  confugerit,"  etc. 
779,  art.  ai. 


THE    SPIRIT    OF   LAWS  207 

tinction  between  his  own  seigniories  and  those  of  private  per- 
sons. 

We  have  not  the  original  grants  of  the  fiefs,  because  they  were 
established  by  the  partition  which  is  known  to  have  been  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  those  fiefs  in  perpetuity,  we  find,  as  already 
has  been  observed,  that  the  jurisdiction  was  there  established ; 
this  judiciary  right  must  certainly  have  been  inherent  in  the 
fief  and  one  of  its  chief  privileges. 

We  have  a  far  greater  number  of  records  that  establish  the 
patrimonial  jurisdiction  of  the  clergy  in  their  districts,  than 
there  are  to  prove  that  of  the  benefices  or  fiefs  of  the  feudal 
lords ;  for  which  two  reasons  may  be  assigned.  The  first,  that 
most  of  the  records  now  extant  were  preserved  or  collected  by 
the  monks,  for  the  use  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 
established,  they  were  obliged  to  have  charters  granted  to 
them ;  whereas  the  concessions  made  to  the  feudal  lords  being 
consequences  of  the  political  order,  they  had  no  occasion  to 
demand,  and  much  less  to  preserve,  a  particular  charter.  Nay 
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- 
tion, were  common  to  the  clergy  and  the  laity,  since  it  is  made 
for  both.9  The  same  may  be  said  of  the  constitution  of  Clo- 
tharius  II. r 

23. — General  Idea  of  the  Abbe  du  Bos's  Book  on  the  Establish- 
ment of  the  French  Monarchy  in  Gaul 

Before  I  finish  this  book,  it  will  not  be  improper  to  write  a 
few  strictures  on  the  Abbe  du  Bos's  performance,  because  my 
notions  are  perpetually  contrary  to  his ;  and  if  he  has  hit  on  the 
truth  I  must  have  missed  it. 

q  Lib.     i.      "  Maximum    regni    nostri  r  I    have    already    quoted    it    in    the 

augere  credimus  monimentum,  si  bene-       preceding    chapter,    "  Episcopi   vel    po- 
ficia    opportuna    locis    ecclesiarum    aut        tentes." 
cui  volueris   dicere,   benevola   delibera- 
tione  concedimus." 


208  MONTESQUIEU 

This  performance  has  imposed  upon  a  great  many  because 
it  is  penned  with  art;  because  the  point  in  question  is  con- 
stantly supposed ;  because  the  more  it  is  deficient  in  proofs  the 
more  it  abounds  in  probabilities ;  and,  in  fine,  because  an  in- 
finite number  of  conjectures  are  laid  down  as  principles,  and 
thence  other  conjectures  are  inferred  as  consequences.  The 
reader  forgets  he  has  been  doubting  in  order  to  begin  to  believe. 
And  as  a  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,  such  a  vast  multitude 
of  researches  hardly  permit  one  to  imagine  that  nothing  has 
been  found ;  the  length  of  the  way  makes  us  think  that  we  have 
arrived  at  our  journey's  end. 

But  when  we  examine  the  matter  thoroughly  we  find  an  im- 
mense colossus  with  earthen  feet;  and  it  is  the  earthen  feet 
that  render  the  colossus  immense.  If  the  Abbe  du  Bos's  sys- 
tem had  been  well  grounded,  he  would  not  have  been  obliged 
to  write  three  tedious  volumes  to  prove  it;  he  would  have 
found  everything  within  his  subject,  and  without  wandering 
on  every  side  in  quest  of  what  was  extremely  foreign  to  it ;  even 
reason  itself  would  have  undertaken  to  range  this  in  the  same 
chain  with  the  other  truths.  Our  history  and  laws  would  have 
told  him,  Do  not  take  so  much  trouble,  we  shall  be  your 
vouchers, 

24. — The  same  Subject  continued.    Reflection  on  the  main  Part 
of  the  System 

The  Abbe  du  Bos  endeavors  by  all  means  to  explode  the 
opinion  that  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  Roman  emperors. 

This  pretension  cannot  be  applied  to  the  time  when  Clovis, 
upon  his  entering  Gaul,  took  and  plundered  the  towns ;  neither 
is  it  applicable  to  the  period  when  he  defeated  Syagrius,  the 
Roman  commander,  and  conquered  the  country  which  he  held ; 
it  can,  therefore,  be  referred  only  to  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  the  rest.  And  it  is  not  enough  that  Clovis  was  received,  he 


THE   SPIRIT   OF   LAWS  209 

must  have  been  called ;  the  Abbe  du  Bos  must  prove  that  the 
people  chose  rather  to  live  under  Clovis  than  under  the  domina- 
tion of  the  Romans  or  under  their  own  laws.  Now  the  Ro- 
mans belonging  to  that  part  of  Gaul  not  yet  invaded  by  the 
barbarians  were,  according  to  this  author,  of  two  sorts:  the 
first  were  of  the  Armorican  confederacy,  who  had  driven  away 
the  Emperor's  officers  in  order  to  defend  themselves  against 
the  barbarians,  and  to  be  governed  by  their  own  laws;  the 
second  were  subject  to  the  Roman  officers.  Now,  does  the 
abbe  produce  any  convincing  proofs  that  the  Romans,  who 
were  still  subject  to  the  empire,  called  in  Clovis?  Not  one. 
Does  he  prove  that  the  republic  of  the  Armoricans  invited 
Clovis;  or  even  concluded  any  treaty  with  him?  Not  at  all. 
So  far  from  being  able  to  tell  us  the  fate  of  this  republic  he 
cannot  even  so  much  as  prove  its  existence;  and,  notwith- 
standing, he  pretends  to  trace  it  from  the  time  of  Honorius  to 
the  conquest  of  Clovis,  notwithstanding  he  relates  with  most 
admirable  exactness  all  the  events  of  those  times ;  still  this  re- 
public remains  invisible  in  ancient  authors.  For  there  is  a  wide 
difference  between  proving  by  a  passage  of  Zozimus  *  that  un^ 
der  the  Emperor  Honorius,  the  country  of  Armorica  t  and  the 
other  provinces  of  Gaul  revolted  and  formed  a  kind  of  republic, 
and  showing  us  that  notwithstanding  the  different  pacifica- 
tions of  Gaul,  the  Armoricans  formed  always  a  particular  re- 
public, which  continued  till  the  conquest  of  Clovis;  and  yet 
this  is  what  he  should  have  demonstrated  by  strong  and  sub- 
stantial proofs,  in  order  to  establish  his  system.  For  when  we 
behold  a  conqueror  entering  a  country,  and  subduing  a  great 
part  of  it  by  force  and  open  violence,  and  soon  after  find  the 
whole  country  subdued,  without  any  mention  in  history  of  the 
manner  of  its  being  effected,  we  have  sufficient  reason  to  be- 
lieve that  the  affair  ended  as  it  began. 

When  we  find  he  has  mistaken  this  point,  it  is  easy  to  per- 
ceive that  his  whole  system  falls  to  the  ground ;  and  as  often 
as  he  infers  a  consequence  from  these  principles  that  Gaul  was 
not  conquered  by  the  Franks,  but  that  the  Franks  were  invited 
by  the  Romans,  we  may  safely  deny  it. 

This  author  proves  his  principle  by  the  Roman  dignities  with 

*Hist.  lib.  vi.  I "  Totusque  tractus  Armoricus  •Ha- 

gue  Galliarum  provincial."— Ibid. 

VOL.  II.— 14 


*io  MONTESQUIEU 

which  Clovis  was  invested :  he  insists  that  Clovis  succeeded  to 
Childeric  his  father  in  the  office  of  magister  militia.  But  these 
two  offices  are  merely  of  his  own  creation.  St.  Remigius's  letter 
to  Clovis,  on  which  he  grounds  his  opinion,  is  only  a  congratu- 
lation upon  his  accession  to  the  crown.w  When  the  intent  of  a 
writing  is  so  well  known  why  should  we  give  it  another  turn  ? 

Clovis,  towards  the  end  of  the  reign,  was  made  Consul  by 
the  Emperor  Anastasius :  but  what  right  could  he  receive  from 
an  authority  that  lasted  only  one  year?  It  is  very  probable, 
says  our  author,  that  in  the  same  diploma  the  Emperor  Anas- 
tasius made  Clovis  Proconsul.  And,  I  say,  it  is  very  probable 
he  did  not.  With  regard  to  a  fact  for  which  there  is  no  founda- 
tion the  authority  of  him  who  denies  is  equal  to  that  of  him 
who  affirms.  But  I  have  also  a  reason  for  denying  it.  Gregory 
of  Tours,  who  mentions  the  consulate,  says  never  a  word  con- 
cerning the  proconsulate.  And  even  this  proconsulate  could 
have  lasted  only  about  six  months.  Clovis  died  a  year  and  a 
half  after  he  was  created  Consul;  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  was  already  master  of  the  monarchy,  and  all  his 
rights  were  established. 

The  second  proof  alleged  by  the  Abbe  du  Bos  is  the  renun- 
ciation made  by  the  Emperor  Justinian,  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  the  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  before,  and  the  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 
was  already  founded;  the  regulation  of  their  establishment 
was  made ;  the  reciprocal  rights  of  the  persons  and  of  the  dif- 
ferent nations  who  lived  in  the  monarchy  were  admitted,  the 
laws  of  each  nation  were  given  and  even  reduced  to  writing. 

« Tom.   iL   book   III.   chap,   xviii.   p.    270. 


THE   SPIRIT   OF   LAWS  211 

What,  therefore,  could  that  foreign  renunciation  avail  to  a  gov- 
ernment already  established  ? 

What  can  the  abbe  mean  by  making  such  a  parade  of  the 
declamations  of  all  those  bishops,  who,  amidst  the  confusion 
and  total  subversion  of  the  state,  endeavor  to  flatter  the  con- 
queror? What  else  is  implied  by  flattering  but  the  weakness 
of  him  who  is  obliged  to  flatter  ?  What  do  rhetoric  and  poetry 
prove  but  the  use  of  those  very  arts?  Is  it  possible  to  help 
being  surprised  at  Gregory  of  Tours,  who,  after  mentioning 
the  assassinations  committed  by  Clovis,  says,  that  God  laid 
his  enemies  every  day  at  his  feet,  because  he  walked  in  his 
ways?  Who  doubts  but  the  clergy  were  glad  of  Clevis's  con- 
version, and  that  they  even  reaped  great  advantages  from  it? 
But  who  doubts  at  the  same  time  that  the  people  experienced 
all  the  miseries  of  conquest  and  that  the  Roman  Government 
submitted  to  that  of  the  Franks?  The  Franks  were  neither 
willing  nor  able  to  make  a  total  change ;  and  few  conquerors 
were  ever  seized  with  so  great  a  degree  of  madness.  But  to 
render  all  the  Abbe  du  Bos's  consequences  true,  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  author's 
method,  that  the  Greeks  never  conquered  Persia.  I  should  set 
out  with  mentioning  the  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,  and  destroyed  the  city  of  Tyre,  it  was  only  a  par- 
ticular affair  like  that  of  Syagrius.  But,  behold  the  Jewish 
pontiff  goes  forth  to  meet  him.  Listen  to  the  oracle  of  Jupiter 
Ammon.  Recollect  how  he  had  been  predicted  at  Gordium. 
See  what  a  number  of  towns  crowd,  as  it  were,  to  submit  to 
him ;  and  how  all  the  satraps  and  grandees  come  to  pay  him 
obeisance.  He  put  on  the  Persian  dress ;  this  is  Clevis's  con- 
sular robe.  Does  not  Darius  offer  him  one-half  of  his  king- 
dom ?  Is  not  Darius  assassinated  like  a  tyrant  ?  Do  not  the 
mother  and  wife  of  Darius  weep  at  the  death  of  Alexander? 
Were  Quintius  Curtius,  Arrian,  or  Plutarch,  Alexander's  con- 
temporaries? Has  not  the  invention  of  printing  afforded  us 


212  MONTESQUIEU 

great  light  which  those  authors  wanted  ?  v    Such  is  the  history 
of  the  "  Establishment  of  the  French  Monarchy  in  Gaul." 

25. — Of  the  French  Nobility 

The  Abbe  du  Bos  maintains,  that  at  the  commencement  of 
our  monarchy  there  was  only  one  order  of  citizens  among  the 
Franks.  This  assertion,  so  injurious  to  the  noble  blood  of  our 
principal  families,  is  equally  affronting  to  the  three  great  houses 
which  successively  governed  this  realm.  The  origin  of  their 
grandeur  would  not,  therefore,  have  been  lost  in  the  obscurity 
of  time.  History  might  point  out  the  ages  when  they  were 
plebeian  families;  and  to  make  Childeric,  Pepin,  and  Hugh 
Capet  gentlemen,  we  should  be  obliged  to  trace  their  pedigree 
among  the  Romans  or  Saxons,  that  is,  among  the  conquered 
nations. 

This  author  grounds  his  opinion  on  the  Salic  law.w  By 
that  law,  he  says,  it  plainly  appears  that  there  were  not  two  dif- 
ferent orders  of  citizens  among  the  Franks :  it  allowed  a  com- 
position of  two  hundred  sous  for  the  murder  of  any  Frank 
whatsoever;*  but  among  the  Romans  it  distinguished  the 
king's  guest,  for  whose  death  it  gave  a  composition  of  three 
hundred  sous,  from  the  Roman  proprietor  to  whom  it  granted 
a  hundred,  and  from  the  Roman  tributary  to  whom  it  gave  only 
a  composition  of  forty-five.  And  as  the  difference  of  the  com- 
positions formed  the  principal  distinction,  he  concludes  that 
there  was  but  one  order  of  citizens  among  the  Franks,  and  three 
among  the  Romans. 

It  is  astonishing  that  his  very  mistake  did  not  set  him  right. 
And,  indeed,  it  would  have  been  very  extraordinary  that  the 
Roman  nobility  who  lived  under  the  domination  of  the  Franks 
should  have  had  a  larger  composition,  and  been  persons  of 
much  greater  importance  than  the  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 

v  See  the  preliminary  discourse  of  the  x  He  cites  the  44th  title  of  this  law. 

Abbe  du  Bos.  and  the  law  of  the  Ripuarians,  tits.   7 

w  See    the    "  Establishment    of    the       and  36. 
French  Monarchy,"  vol.   iii.   book  VI. 
chap.  iv.  p.  304. 


THE   SPIRIT    OF   LAWS  213 

would  be  a  matter  of  astonishment  that  this  general  rule  should 
have  failed  only  among  the  Franks.  Hence  he  ought  to  have 
concluded  either  that  he  did  not  rightly  understand  or  that  he 
misapplied  the  passages  of  the  Salic  law,  which  is  actually  the 
case. 

Upon  opening  this  law,  we  find  that  the  composition  for  the 
death  of  an  antrustion,y  that  is,  of  the  king's  vassal,  was  six 
hundred  sous ;  and  that  for  the  death  of  a  Roman,  who  was  the 
king's  guest,  was  only  three  hundred.^  We  find  there  likewise 
that  the  composition  a  for  the  death  of  an  ordinary  Frank  was 
two  hundred  sous ;  b  and  for  the  death  of  an  ordinary  Roman, 
was  only  one  hundreds  For  the  death  of  a  Roman  tributary ,d 
who  was  a  kind  of  bondman  or  f  reed-man,  they  paid  a  composi- 
tion of  forty-five  sous :  but  I  shall  take  no  notice  of  this,  any 
more  than  of  the  composition  for  the  murder  of  a  Frank  bond- 
man or  of  a  Frank  freed-man,  because  this  third  order  of  per- 
sons is  out  of  the  question. 

What  does  our  author  do?  He  is  quite  silent  with  respect 
to  the  first  order  of  persons  among  the  Franks,  that  is  the  ar-> 
tide  relating  to  the  antrustions ;  and  afterwards  upon  compar- 
ing the  ordinary  Frank,  for  whose  death  they  paid  a  composi- 
tion of  two  hundred  sous,  with  those  whom  he  distinguishes 
under  three  orders  among  the  Romans,  and  for  whose  death 
they  paid  different  compositions,  he  finds  that  there  was  only 
one  order  of  citizens  among  the  Franks,  and  that  there  were 
three  among  the  Romans. 

As  the  abbe  is  of  opinion  that  there  was  only  one  order  of 
citizens  among  the  Franks,  it  would  have  been  lucky  for  him 
that  there  had  been  only  one  order  also  among  the  Burgun- 
dians,  because  their  kingdom  constituted  one  of  the  principal 
branches  of  our  monarchy.  But  in  their  codes  we  find  three 
sorts  of  compositions,  one  for  the  Burgundians  or  Roman 
nobility,  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. 

y  "  Qui  in  truste   dominica  est,"  tit.  z  Salic  law,  tit.  44,  sec.  6. 

44,  sec.  4,  and  this  relates  to  the   i3th  a  Ibid.,  sec.  4. 

formulary     of     Marculfus,     "  de     regis  b  Ibid.,  sees.  1-7. 

Antrustione."     See  also  the  title  66,  of  c  Ibid.,  sec.  15. 

the   Salic  law,    sees.   3   and  4,   and   the  d  Ibid.,  sec.  7. 

title  74;  and  the  law  of  the  Ripuarians,  *"Si     quis,     quolibet    casu,     dentem 

tit.    TI,    and   the    Capitulary  of   Charles  optimati      Burgundioni      vel      Romano 

the  Bald,  "  apud  Carisiacum,"  in  the  nobili  excusserit,  solidos  viginti  quin- 
year  877,  chap.  xx. 


214  MONTESQUIEU 

It  is  very  extraordinary  to  see  in  what  manner  he  evades 
those  passages  which  press  him  hard  on  all  sides/  If  you 
speak  to  him  of  the  grandees,  lords,  and  the  nobility,  these,  he 
says,  are  mere  distinctions  of  respect,  and  not  of  order;  they 
are  things  of  courtesy,  and  not  legal  privileges;  or  else,  he 
says,  those  people  belonged  to  the  king's  council;  nay,  they 
possibly  might  be  Romans :  but  still  there  was  only  one  order 
of  citizens  among  the  Franks.  On  the  other  hand,  if  you  speak 
to  him  of  some  Franks  of  an  inferior  rank,g  he  says  they  are 
bondmen;  and  thus  he  interprets  the  decree  of  Childebert. 
But  I  must  stop  here  a  little,  to  inquire  further  into  this  decree. 
Our  author  has  rendered  it  famous  by  availing  himself  of  it  in 
order  to  prove  two  things :  the  one  that  all  the  compositions 
we  meet  with  in  the  laws  of  the  barbarians  were  only  civil  fines 
added  to  corporal  punishments,  which  entirely  subverts  all  the 
ancient  records ;  h  the  other,  that  all  freemen  were  judged  di- 
rectly and  immediately  by  the  king,*  which  is  contradicted  by 
an  infinite  number  of  passages  and  authorities  informing  us  of 
the  judiciary  order  of  those  times.; 

This  decree,  which  was  made  in  an  assembly  of  the  nation,^ 
says,  that  if  the  judge  finds  a  notorious  robber,  he  must  com- 
mand him  to  be  tied,  in  order  to  be  carried  before  the  king, 
si  Francus  fuerit;  but  if  he  is  a  weaker  person  (debilior  persona), 
he  shall  be  hanged  on  the  spot.  According  to  the  Abbe  du 
Bos,  Francus  is  a  freeman,  debilior  persona  is  a  bondman.  I 
shall  defer  entering  for  a  moment  into  the  signification  of  the 
word  Francus,  and  begin  with  examining  what  can  be  under- 
stood by  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, 

que  cogatur  exsolvere ;  de  mediocribus  t  Ibid.    p.    309,    and    in   the   following 

personis  ingenuis,  tarn  Burgundionibus  chapter,  pp.  319  and  320. 

auam  Romanis,  si  dens  excussus  fuerit,  j  See    the    28th    book    of    this    work, 

ecem  solidis  componatur;  de  inferiori-  chap.  28;  and  the  $ist  book.  chap.  8. 

bus   personis,   quinque   solidis,"   arts,    i,  k "  Itaque     colonia     convenit     et     ita 

2,  and  3,  of  tit.   26,   of  the  law  of  the  bannivimus,      ut     unusquisque     judex, 

Burgundians.  criminosum    latronem    ut    audient,    ad 

/ '  Establishment  of  the  French  Mqn-  casam    suam    ambulet    et    ipsum    ligare 

archy,"    vol.    3,    book    VI.    chaps,    iv.  faciat;     ita    ut    si    Francus    fuerit,    ad 

and  v.  nostram    prsesentiam    dirigatur;     et     si 

g  Ibid.  vol.  3,  chap.  v.  pp.  319  arid  320.  debilior  persona  fuerit,   in   loco  penda- 

« Ibid.  vol.  3,  book  VI.  chap.  iv.  pp.  tur."— Capitulary,  of  Baluzius's  edition, 

307  and  308.  torn.  i.  p.  19. 


THE    SPIRIT    OF   LAWS  215 

debilior  persona  does  not  signify  a  bondman,  but  a  person  of  a 
superior  condition  to  a  bondman.  Upon  this  supposition, 
Francus  cannot  mean  a  freeman,  but  a  powerful  man ;  and  this 
word  is  taken  here  in  that  acceptation,  because  among  the 
Franks  there  were  always  men  who  had  greater  power  than 
others  in  the  state,  and  it  was  more  difficult  for  the  judge  or 
count  to  chastise  them.  This  construction  agrees  very  well 
with  many  Capitularies  /  where  we  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  the  "  Life  of  Louis  the  Debonnaire,"  m 
written  by  Tegan,  that  the  bishops  were  the  principal  cause  of 
the  humiliation  of  that  Emperor,  especially  those  who  had  been 
bondmen  and  such  as  were  born  among  the  barbarians.  Tegan 
thus  addresses  Hebo,  whom  this  prince  had  drawn  from  the 
state  of  servitude,  and  made  Archbishop  of  Rheims :  "  What 
recompense  did  the  Emperor  receive  from  you  for  so  many 
benefits?  He  made  you  a  freeman,  but  did  not  ennoble  you, 
because  he  could  not  give  you  nobility  after  having  given  you 
your  liberty."  » 

This  passage  which  proves  so  strongly  the  two  orders  of 
citizens  does  not  at  all  confound  the  Abbe  du  Bos.  He  answers 
thus :  o  "  The  meaning  of  this  passage  is  not  that  Louis  the 
Debonnaire,  was  incapable  of  introducing  Hebo  into  the  order 
of  the  nobility.  Hebo,  as  Archbishop  of  Rheims,  must  have 
been  of  the  first  order,  superior  to  that  of  the  nobility."  I  leave 
the  reader  to  judge  whether  this  be  not  the  meaning  of  that 
passage ;  I  leave  him  to  judge  whether  there  be  any  question 
here  concerning  a  precedence  of  the  clergy  over  the  nobility. 
"  This  passage  proves  only,"  continues  the  same  writer,/*  "  that 
the  free-born  subjects  were  qualified  as  noblemen ;  in  the  com- 
mon acceptation,  noblemen  and  men  who  are  free-born  have 
for  this  long  time  signified  the  same  thing."  What !  because 
some  of  our  burghers  have  lately  assumed  the  quality  of  noble- 
men, shall  a  passage  of  the  "  Life  of  Louis  the  Debonnaire  "  be 
applied  to  this  sort  of  people  ?  "  And,  perhaps,"  continues  he 

/  See    the    28th    book    of    this    work,        quod  impossibile  est  post  libertatem." 

chap.  28;  and  the  3ist  book,  chap.  8.  —Ibid. 

m  Chaps,  xliii.  and  xliv.  o  "  Establishment  of  the  French  Mon- 

ti "  O   qualem  remunerationem  reddi-       archy,"   vol.   3,   book  VI.   chap.   iv.   p. 

disti  ei!  fecit  te  liberum,  non  nobilem,       316- 

p  Ibid.  p.  316. 


1 


2I6  MONTESQUIEU 

still,?  "  Hebo  had  not  been  a  bondman  among  the  Franks,  but 
among  the  Saxons,  or  some  other  German  nation,  where  the 
people  were  divided  into  several  orders."  Then,  because  of  the 
Abbe  du  Bos's  "  perhaps,"  there  must  have  been  no  nobility 
among  the  nation  of  the  Franks.  But  he  never  applied  a  "  per- 
haps "  so  badly.  We  have  seen  that  Tegan  distinguishes  the 
bishops/  who  had  opposed  Louis  the  Debonnaire,  some  of 
whom  had  been  bondmen,  and  others  of  a  barbarous  nation. 
Hebo  belonged  to  the  former  and  not  to  the  latter.  Besides,  I 
do  not  see  how  a  bondman,  such  as  Hebo,  can  be  said  to  have 
been  a  Saxon  or  a  German;  a  bondman  has  no  family,  and 
consequently  no  nation.  Louis  the  Debonnaire  manumitted 
Hebo ;  and  as  bondmen  after  their  manumission  embraced  the 
law  of  their  master,  Hebo  had  become  a  Frank,  and  not  a 
Saxon  or  German. 

I  have  been  hitherto  acting  offensively ;  it  is  now  time  to  de- 
fend myself.  It  will  be  objected  to  me,  that,  indeed,  the  body 
of  the  antrustions  formed  a  distinct  order  in  the  state  from 
that  of  the  freemen ;  but  as  the  fiefs  were  at  first  precarious, 
and  afterwards  for  life,  this  could  not  form  a  nobleness  of  de- 
scent, since  the  privileges  were  not  annexed  to  an  hereditary 
fief.  This  is  the  objection  which  induced  M.  de  Valois  to  think 
that  there  was  only  one  order  of  citizens  among  the  Franks ;  an 
opinion  which  the  Abbe  du  Bos  has  borrowed  of  him,  and 
which  he  has  absolutely  spoiled  with  so  many  bad  arguments. 
Be  that  as  it  may,  it  is  not  the  Abbe  du  Bos  that  could  make 
this  objection.  For  after  having  given  three  orders  of  Roman 
nobility,  and  the  quality  of  the  king's  guest  for  the  first,  he 
could  not  pretend  to  say  that  this  title  was  a  greater  mark  of 
a  noble  descent  than  that  of  antrustion.  But  I  must  give  a 
direct  answer.  The  antrustions  or  trusty  men  were  not  such 
because  they  were  possessed  of  a  fief,  but  that  they  had  a  fief 
given  them  because  they  were  antrustions  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  they  had  after- 
wards, the  same  fief:  but  if  they  had  not  that  they  had  an- 
other, because  the  fiefs  were  given  at  their  birth,  and  because 

g "  Establishment  of  the  French  Mon-  conditione  honoratos  habebat,  cum  his 

archy,"  vol.  3,  book  VI.  chap.  IV.  p.  316.  qui  ex  barbaris  nationibus  ad  hoc  fastigi- 

r"Omnes  episcopi  molesti  fuerunt  um  perducti  sunt."— "  Degestis  Ludovici 

Ludovico,  et  maxime  ii  quos  e  servili  Pii,"  cap.  xliii.  and  xliv. 


THE   SPIRIT   OF   LAWS  217 

they  were  often  granted  in  the  assemblies  of  the  nation,  and, 
in  fine,  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  fief. 
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 
Charlemagne.  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  Boulainvilliers'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 ! 

s  Chap.  23.  archy,"   vol.  3,   book  VI.  chap,   iv,   p. 

t "  Establishment  of  the  French  Mon-       302. 


BOOK  XXXI 

THEORY  OF  THE  FEUDAL  LAWS  AMONG  THE 
FRANKS,  IN  THE  RELATION  THEY  BEAR  TO 
THE  REVOLUTIONS  OF  THEIR  MONARCHY 

i. — Changes  in  the  Offices  and  in  the  Fiefs 

*nn*HE  counts  at  first  were  sent  into  their  districts  only  for 
a  year;  but  they  soon  purchased  the  continuation  of 
their  offices.  Of  this  we  have  an  example  in  the  reign 
of  Clovis's  grandchildren.  A  person  named  Peonius  was  count 
in  the  city  of  Auxerre ;  a  he  sent  his  son  Mummolus  with  money 
to  Gontram,  to  prevail  upon  him  to  continue  him  in  his  em- 
ployment; the  son  gave  the  money  for  himself,  and  obtained 
the  father's  place.  The  kings  had  already  begun  to  spoil  their 
own  favors. 

Though  by  the  laws  of  the  kingdom  the  fiefs  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  assemblies.  It  is  natural, 
however,  to  imagine  that  corruption  crept  into  this  as  well  as 
the  other  case ;  and  that  the  possession  of  the  fiefs,  like  that 
of  the  counties,  was  continued  for  money. 

I  shall  show  in  the  course  of  this  book,&  that,  independently 
of  the  grants  which  the  princes  made  for  a  certain  time,  there 
were  others  in  perpetuity.  The  court  wanted  to  revoke  the 
former  grants;  this  occasioned  a  general  discontent  in  the 
nation,  and  was  soon  followed  by  that  famous  revolution  in 
French  history,  whose  first  epoch  was  the  amazing  spectacle 
of  the  execution  of  Brunehaut. 

That  this  queen,  who  was  daughter,  sister,  and  mother  of 
so  many  kings,  a  queen  to  this  very  day  celebrated  for  public 
monuments  worthy  of  a  Roman  aedile  or  proconsul,  born  with 

a  Gregory  of  Tours,  book  IV.  chap.  xlii.  6  Chap.  7. 

ai8 


THE   SPIRIT   OF  LAWS  219 

an  admirable  genius  for  affairs,  and  endowed  with  qualities  so 
long  respected,  should  see  herself  of  a  sudden  exposed  to  so 
slow,  so  ignominious  and  cruel  a  torture/  by  a  king  whose 
authority  was  but  indifferently  established  in  the  nation/* 
would  appear  very  extraordinary,  had  she  not  incurred  that 
nation's  displeasure  for  some  particular  cause.  Clotharius  re- 
proached her  with  the  murder  of  ten  kings ;  but  two  of  them 
he  had  put  to  death  himself;  the  death  of  some  of  the  others 
was  owing  to  chance,  or  to  the  villainy  of  another  queen ;  e 
and  a  nation  that  had  permitted  Fredegonda  to  die  in  her  bed/ 
that  had  even  opposed  the  punishment  of  her  flagitious  crimes, 
ought  to  have  been  very  different  with  respect  to  those  of 
Brunehaut. 

She  was  put  upon  a  camel,  and  led  ignominiously  through 
the  army;  a  certain  sign  that  she  had  given  great  offence  to 
those  troops.  Fredegarius  relates,  that  Protarius,g  Brune- 
haut's  favorite,  stripped  the  lords  of  their  property,  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  army  conspired  against  him,  and  he  was 
stabbed  in  his  tent;  but  Brunehaut  either  by  revenging  his 
death,  or  by  pursuing  the  same  plan,/*  became  every  day  more 
odious  to  the  nation.* 

Clotharius,  ambitious  of  reigning  alone,  inflamed  moreover 
with  the  most  furious  revenge,  and  sure  of  perishing  if  Brune- 
haut's  children  got  the  upper  hand,  entered  into  a  conspiracy 
against  himself ;  and  whether  it  was  owing  to  ignorance,  or  to 
the  necessity  of  his  circumstances,  he  became  Brunehaut's 
accuser,  and  made  a  terrible  example  of  that  princess. 

Warnacharius  had  been  the  very  soul  of  the  conspiracy 
formed  against  Brunehaut.  Being  at  that  time  Mayor  of  Bur- 
gundy, he  made  Clotharius  consent  that  he  should  not  be  dis- 
placed while  he  lived./  By  this  step  the  mayor  could  no  longer 

c  Fredegarius's     "  Chronicle,"     chap.  tur  qui  gradum  quern  arripuerat  potuis- 

xlii.  set  adsumere." — Fredeg.  "  Chron."  cap. 

d  Clotharius  II,  son  of  Chilperic,  and  xxvii.,  in  the  year  605. 
the  father  of  Dagobert.  h  Ibid.  cap.  xxyiii.,  in  the  year  607. 

e  Fredegarius's      "  Chronicle,"     chap.  *  Ibid.    cap.    xli.,     in     the     year    613. 

xlii.  "  Burgundise     Farones,     tarn     episcopi 

f  See  Gregory  of  Tours,  book  VIII.  quam    cseteri    Leudes,    timentes    Brune- 

chap.  xxxi.  childem    et    odium    in    earn    habentes, 

g "  Saeva     illi     fuit     contra     personas  consilium  inientes,"  etc. 
imquitas,     fisco     nimium     tribuens,     de  t  Ibid.     cap.     xli.,     in    the    year    613. 

rebus  personarum  ingeniose  fiscum  yel-  "  Sacramento    a    Clothario    accepto    ne 

lens  implere    .    .    .    ut  nullus  reperire-  uriquam  vitae  suae  temporibus  degrade- 

retur." 


220  MONTESQUIEU 

be  in  the  same  case  as  the  French  lords  before  that  period; 
and  this  authority  began  to  render  itself  independent  of  the 
regal  dignity. 

It  was  Brunehaut's  unhappy  regency  which  had  exasper- 
ated the  nation.  So  long  as  the  laws  subsisted  in  their  full 
force,  no  one  could  grumble  at  having  been  deprived  of  a  fief, 
since  the  law  did  not  bestow  it  upon  him  in  perpetuity.  But 
when  fiefs  came  to  be  acquired  by  avarice,  by  bad  practices  and 
corruption,  they  complained  of  being  divested,  by  irregular 
means,  of  things  that  had  been  irregularly  acquired.  Perhaps 
if  the  public  good  had  been  the  motive  of  the  revocation  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  encouragement  of  services.  Brunehaut, 
from  a  corrupt  spirit,  wanted  to  reform  the  abuses  of  the  ancient 
corruption.  Her  caprices  were  not  owing  to  weakness,  the 
vassals  and  the  great  officers,  thinking  themselves  in  danger, 
prevented  their  own  by  her  ruin. 

We  are  far  from  having  all  the  records  of  the  transactions  of 
those  days;  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  Parish  for  the  refor- 
mation of  abuses,/  which  shows  that  this  prince  put  a  stop  to 
the  complaints  that  had  occasioned  the  revolution.  On  the  one 
hand,  he  confirms  all  the  grants  that  had  been  made  or  con- 
firmed by  the  kings  his  predecessors ;  m  and  on  the  other,  he 
ordains  that  whatever  had  been  taken  from  his  vassals  should 
be  restored  to  them.w 

This  was  not  the  only  concession  the  king  made  in  that 
council ;  he  enjoined  that  whatever  had  been  innovated,  in  op- 
position to  the  privileges  of  the  clergy,  should  be  redressed ;  o 
and  he  moderated  the  influence  of  the  court  in  the  election  of 


k  Some  time  after  Brunehaut's  execu^  edicti  nostri  tenorem  generaliter  emen- 

tion,    in   the   year   615.     See    Baluzius's  dare."— Ibid.  art.  16. 

edition  of  the  Capitularies,  p.  21.  m  Ibid.  art.  16. 

/  Quae    contra    rationis    ordinem    acta  n  Ibid.  art.  17. 

vel    ordinata    sunt,    ne    in    antea,    quod  o  "  Et  quod  per  tempora  ex  hoc  prse- 

ayertat   divinitas,   contingant,   disposue-  termissum  est  vel  dehinc  perpetualiter 

rimus,     Christo     prscsulc,     per     hujus  observetur." 


THE   SPIRIT   OF  LAWS  221 

bishops./'  He  even  reformed  the  fiscal  affairs,  ordaining  that 
all  the  new  censuses  should  be  abolished,^  and  that  they  should 
not  levy  any  toll  established  since  the  deaths  of  Gontram, 
Sigebert,  and  Chilperic;**  that  is,  he  abolished  whatever  had 
been  done  during  the  regencies  of  Fredegonda  and  Brune- 
haut.  He  forbade  the  driving  of  his  cattle  to  graze  in  private 
people's  grounds ;  ^  and  we  shall  presently  see  that  the  reforma- 
tion was  still  more  general,  so  as  to  extend  even  to  civil  affairs. 

2. — How  the  Civil  Government  was  reformed 

Hitherto  the  nation  had  given  marks  of  impatience  and  levity 
with  regard  to  the  choice  or  conduct  of  her  masters ;  she  had 
regulated  their  differences  and  obliged  them  to  come  to  an 
agreement  among  themselves.  But  now  she  did  what  before 
was  quite  unexampled ;  she  cast  her  eyes  on  her  actual  situa- 
tion, examined  the  laws  coolly,  provided  against  their  insuffi- 
ciency, repressed  violence,  and  moderated  the  regal  power. 

The  bold  and  insolent  regencies  of  Fredegonda  and  Brune- 
haut  had  less  surprised  than  roused  the  nation.  Fredegonda 
had  defended  her  horrid  cruelties,  her  poisonings  and  assas- 
sinations by  a  repetition  of  the  same  crimes  ;  and  had  behaved 
in  such  a  manner  that  her  outrages  were  rather  of  a  private 
than  public  nature.  Fredegonda  did  more  mischief:  Brune- 
haut  threatened  more.  In  this  crisis  the  nation  was  not  sat- 
isfied with  rectifying  the  feudal  system ;  she  was  also  deter- 
mined to  secure  her  civil  government.  For  the  latter  was 
rather  more  corrupt  than  the  former;  a  corruption  the  more 
dangerous  as  it  was  more  inveterate,  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.  Those  princes  were 
bloody,  iniquitous,  and  cruel,  because  such  was  the  character 
of  the  whole  nation.  If  Christianity  appeared  sometimes  to 
soften  their  manners,  it  was  only  by  the  circumstances  of  ter- 
ror with  which  this  religion  alarms  the  sinner ;  the  Church  sup- 

p "  Ita  ut,  episcopo  decedente,  in  loco  per     meritum     persons     et     doctrinae 

ipsius     qui     a     metropolitan©     ordinari  ordinetur." — Ibid.  art.   i. 

debet    cum    provincialibus,    a    clerq    et  q  "  Et  ubicumque  census  novus  impie 

populo  eligatur;  et?  si  persona  condigna  additus   est,   emendetur." — Art.   8. 

fuerit,  per  ordinationem  principis  ordi-  r  Ibid.  art.  9. 

netur;  vel  certe  si  de  palatio  eligitur,  £  Ibid.  art.  21. 


222  MONTESQUIEU 

ported  herself  against  them  by  the  miraculous  operations  of  her 
saints.  The  kings  would  not  commit  sacrilege,  because  they 
dreaded  the  punishments  inflicted  on  that  species  of  guilt: 
but,  this  excepted,  either  in  the  riot  of  passion  or  in  the  cool- 
ness of  deliberation,  they  perpetrated  the  most  horrid  crimes 
and  barbarities  where  divine  vengeance  did  not  appear  so  im- 
mediately to  overtake  the  criminal.  The  Franks,  as  I  have  al- 
ready observed,  bore  with  cruel  kings,  because  they  were  of 
the  same  disposition  themselves ;  they  were  not  shocked  at  the 
iniquity  and  extortions  of  their  princes,  because  this  was  the 
national  characteristic.  There  had  been  many  laws  estab- 
lished, but  it  was  usual  for  the  king  to  defeat  them  all,  by  a  kind 
of  letter  called  precepts/  which  rendered  them  of  no  effect ;  they 
were  somewhat  similar  to  the  rescripts  of  the  Roman  em- 
perors ;  whether  it  be  that  our  kings  borrowed  this  usage  from 
those  princes,  or  whether  it  was  owing  to  their  own  natural 
temper.  We  see  in  Gregory  of  Tours,  that  they  perpetrated 
murder  in  cool  blood,  and  put  the  accused  to  death  unheard ; 
how  they  gave  precepts  for  illicit  marriages ;  u  for  transferring 
successions;  for  depriving  relatives  of  their  right:  and,  in 
fine,  marrying  consecrated  virgins.  They  did  not,  indeed,  as- 
sume the  whole  legislative  power,  but  they  dispensed  with  the 
execution  of  the  laws. 

Clotharius's  constitution  redressed  all  these  grievances :  no 
one  could  any  longer  be  condemned  without  being  heard :  v 
relatives  were  made  to  succeed,  according  to  the  order  estab- 
lished by  law ;  w  all  precepts  for  marrying  religious  women 
were  declared  null;*  and  those  who  had  obtained  and  made 
use  of  them  were  severely  punished.  We  might  know  perhaps 
more  exactly  his  determinations  with  regard  to  these  precepts, 
if  the  thirteenth  and  the  next  two  articles  of  this  decree  had 
not  been  lost  through  the  injury  of  time.  We  have  only  the 
first  words  of  this  thirteenth  article,  ordaining  that  the  precepts 
shall  be  observed,  which  cannot  be  understood  of  those  he  had 
just  abolished  by  the  same  law.  We  have  another  constitution 

JThey   were    orders   which    the   king  rius's  constitution,  inserted  in  the  edi- 

sent  to  the  judges  to  do  or  to  tolerate  tion  of  the  Capitularies  made  to  reform 

things  contrary  to  law.  them.     Baluzius's  edition,  p.  7. 

«  See  Gregory  of  Tours,  book  IV.  p.  v  Art.  22. 

227.     Both  our  history  and  the  charters  w  Ibid.  art.  6. 

are  full  of  this ;  and  the  extent  of  these  x  Ibid, 
abuses    appears    especially    in    Clotha- 


THE   SPIRIT   OF   LAWS  223 

by  the  same  prince,?  which  is  in  relation  to  his  decree,  and 
corrects  in  the  same  manner  every  article  of  the  abuses  of  the 
precepts. 

True  it  is,  that  Baluzius  finding  this  constitution  without 
date,  and  without  the  name  of  the  place  where  it  was  given, 
attributes  it  to  Clotharius  I.  But  I  say  it  belongs  to  Clotharius 
II,  for  three  reasons:  I.  It  says,  that  the  king  will  preserve 
the  immunities  granted  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- 
archy ?  But  if  we  attribute  this  decree  to  Clotharius  II  we  shall 
find  his  grandfather  to  have  been  this  very  Clotharius  I  who 
made  immense  donations  to  the  Church,  with  a  view  of  expiat- 
ing the  murder  of  his  son  Cramne,  whom  he  had  ordered  to  be 
burned,  together  with  his  wife  and  children. 

2.  The  abuses  redressed  by  this  constitution  were  still  sub- 
sisting after  the  death  of  Clotharius  I  and  were  even  carried  to 
their  highest  extravagance  during  the  weak  reign  of  Gontram, 
the  cruel  administration  of  Chilperic,  and  the  execrable  regert- 
cies  of  Fredegonda  and  Brunehaut.  Now,  can  we  imagine 
that  the  nation  would  have  borne  with  grievances  so  solemnly 
proscribed,  without  complaining  of  their  continual  repetition  ? 
Can  we  imagine  she  would  not  have  taken  the  same  step  as  she 
did  afterwards  under  Childeric  II,o  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  complied  with 
as  formerly  ?  b 

In  fine,  as  this  constitution  was  made  to  redress  grievances, 
it  cannot  relate  to  Clotharius  I,  since  there  were  no  complaints 
of  that  kind  in  his  reign,  and  his  authority  was  perfectly  estab- 
lished throughout  the  kingdom,  especially  at  the  time  in  which 
they  place  this  constitution ;  whereas  it  agrees  extremely  well 
with  the  events  that  happened  during  the  reign  of  Clotharius 
II,  which  produced  a  revolution  in  the  political  state  of  the 
kingdom.  History  must  be  illustrated  by  the  laws,  and  the 
laws  by  history. 

y  In  Baluzius's  edition  of  the  Capitu-  to   perform   any   function   in   the  terri- 
tories, torn.  i.  p.  7.  tory,  and  were  equivalent  to  the  erec- 

z  In  the  preceding  book  I  have  made  tion  or  grant  of  a  fief, 

mention    of    these    immunities,     which  a  He  began  to  reign  towards  the  year 

were  grants  of  judicial  rights,  and  con-  670. 

tained  prohibitions  to  the  regal  judges  b  See  the  "  Life  of  St.  Leger." 


224  MONTESQUIEU 

3. — Authority  of  the  Mayors  of  the  Palace 

I  noticed  that  Clotharius  II  had  promised  not  to  deprive 
Warnacharius  of  his  mayor's  place  during  life;  a  revolution 
productive  of  another  effect.  Before  that  time  the  mayor  was 
the  King's  officer,  but  now  he  became  the  officer  of  the  people ; 
he  was  chosen  before  by  the  King,  and  now  by  the  nation.  Be- 
fore the  revolution  Protarius  had  been  made  mayor  by  Theo- 
doric,  and  Landeric  by  Fredegondajc  but  after  that  the 
mayors  d  were  chosen  by  the  nation.* 

We  must  not,  therefore,  confound,  as  some  authors  have 
done,  these  mayors  of  the  palace  with  such  as  were  possessed  of 
this  dignity  before  the  death  of  Brunehaut ;  the  King's  mayors 
with  those  of  the  kingdom.  We  see  by  the  law  of  the  Burgun- 
dians  that  among  them  the  office  of  mayor  was  not  one  of  the 
most  respectable  in  the  state ;  f  nor  was  it  one  of  the  most  emi- 
nent under  the  first  kings  of  the  Franks.g 

Clotharius  removed  the  apprehensions  of  those  who  were 
possessed  of  employments  and  fiefs ;  and  when,  after  the  death 
of  Warnacharius,^  he  asked  the  lords  assembled  at  Troyes, 
who  is  it  they  would  put  in  his  place,  they  cried  out  they  would 
choose  no  one,  but  suing  for  his  favor  committed  themselves 
entirely  into  his  hands. 

Dagobert  reunited  the  whole  monarchy  in  the  same  manner 
as  his  father;  the  nation  had  a  thorough  confidence  in  him, 
and  appointed  no  mayor.  This  prince,  finding  himself  at  lib- 
erty and  elated  by  his  victories,  resumed  Brunehaut's  plan. 
But  he  succeeded  so  ill,  that  the  vassals  of  Austrasia  let  them- 
selves be  beaten  by  the  Sclavonians,  and  returned  home;  so 
that  the  marches  of  Austrasia  were  left  a  prey  to  the  barbar- 
ians.* 

c  "  Instigante  Brunihault,  Theodorico  h  "  Eo  anno,  Clotarius  cum  proceribus 

jubente,"       etc.  —  Fredegarius,      chap.  et  leudibus  Burgundiw  Trecassinis  con- 

xxvii.,  in  the  year  605.  jungitur,  cum  eorum  esset  sollicitus  si 

d  "  Gesta    regum    Francorum,"    chap.  yellent  jam,  Warnachario  discesso,  alium 

xxxvi.  in  ejus  honoris  gradum  sublimate:  sed 

e  See  Fredegarius's  "  Chronicle,"  omnes  unanimiter  denegantes  se  ne- 
chap.  liv.,  in  the  year  626,  and  his  quaquam  velle  majorem  domus  eligere, 
"  Anonymous  Continuator,"  chap,  ci.,  regis  gratiam  obnixe  petentes,  cum  rege 
in  the  year  695,  and  chap,  cv.,  in  the  transegere."  —  Fredegarius,  "  Chron- 
year  715.  Aimoin,  book  IV.  chap.  xv..  icle."  chap,  liv.,  in  the  year  626. 
Eginhard,  "  Life  of  Charlemagne,'  * "  Istam  victoriam  quam  Vinidi  con- 
chap,  xlviii.  "  Gesta  regum  Franco-  tra  Francos  meruerunt,  npn  tantum 
rum."  chap.  xlv.  Sclavinorum  fortitudo  obtinuit,  quantum 

/  See  the  law  of  the  Burgundians  in  dementatio  Austrasiorum,   dum   se  cer- 

prpefat.   and  the   second   supplement  to  nebant    cum    Dagoberto    odium    incur- 

this  law,  tit.  13.  risse,       et      assidue      expoliarentur."— 

g  See    Gregory    of   Tours,    book    IX.  Fredegarius's  "  Chronicle,    chap.  Ixviii., 

chap,  xxxvi.  in  the  year  630. 


THE   SPIRIT   OF   LAWS  225 

He  determined  then  to  make  an  offer  to  the  Austrasians  of 
resigning  that  country,  together  with  a  provincial  treasure, 
to  his  son  Sigebert,  and  to  put  the  government  of  the  kingdom 
and  of  the  palace  into  the  hands  of  Cunibert,  Bishop  of  Co- 
logne, and  of  the  Duke  Adalgisus.  Fredegarius  does  not 
enter  into  the  particulars  of  the  conventions  then  made ;  but 
the  King  confirmed  them  all  by  charters,  and  Austrasia  was 
immediately  secured  from  danger.; 

Dagobert,  finding  himself  near  his  end,  recommended  his 
wife  Nentechildis  and  his  son  Clovis  to  the  care  of  ^Ega.  The 
vassals  of  Neustria  and  Burgundy  chose  this  young  prince  for 
their  king.fc  ^Ega  and  Nentechildis  had  the  government  of 
the  palace ;  /  they  restored  whatever  Dagobert  had  taken ;  m 
and  complaints  ceased  in  Neustria  and  Burgundy,  as  they  had 
ceased  in  Austrasia. 

After  the  death  of  Mga,  Queen  Nentechildis  engaged  the 
lords  of  Burgundy  to  choose  Floachatus  for  their  mayor.w 
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 
administration  of  the  kingdom  by  those  officers./* 

Fredegarius,  being  a  Burgundian,  has  entered  into  a  more 
minute  detail  as  to  what  concerns  the  mayors  of  Burgundy  at 
the  time  of  the  revolution  of  which  we  are  speaking  than  with 
regard  to  the  mayors  of  Austrasia  and  Neustria.  But  the  con- 
ventions made  in  Burgundy  were,  for  the  very  same  reasons, 
agreed  to  in  Neustria  and  Austrasia. 

The  nation  thought  it  safer  to  lodge  the  power  in  the  hands 
of  a  mayor  whom  she  chose  herself,  and  to  whom  she  might 
prescribe  conditions,  than  in  those  of  a  king  whose  power 
was  hereditary. 

j  "  Deinceps    Austrasii    eorum    studio  cunctis  ducibus  a  regno  Burgundiae,  seu 

limitem    et    regnum    Francorum    contra  et    pontificibus,    per    epistolas    etiam   et 

Vinidos   utiliter  defensasse  noscuntur."  sacramentis  firmavit  unicuique  gradum 

— Fredegarius's       "  Chronicle,"       chap.  honoris  et  dignitatem,  seu  et  amicitiam, 

Ixxx.,  in  the  year  632.  perpetuo  conservare." 

k  Fredegarius's         Chronicle,"     chap.  p  "  Deinceps    a    temporibus    Clodovei, 

Ixxix.,  in  the  year  638.  qui    fuit    filius    Dagpberti    inclyti    regis, 

/  Ibid.  pater  vera  Theodorici,  regnum  Franco- 

m  Ibid.  chap.  Ixxx.,  in  the  year  639.  rum     decidens     per     majorem     domus, 

n  Ibid.  chap.  Ixxxix.,  in  the  year  641.  ccepit    ordinari." — "  De    Majoribus    Do- 

o  Ibid.     cap.     Ixxxix.       "  Floachatus  mus  Regiae." 

VOL.  II.— 15 


226  MONTESQUIEU 

4. — Of  the  Genius  of  the  Nation  in  regard  to  the  Mayors 

A  government  in  which  a  nation  that  had  an  hereditary  king 
chose  a  person  to  exercise  the  regal  authority  seems  very  ex- 
traordinary; but,  independently  of  the  circumstances  of  the 
times,  I  apprehend  that  the  notions  of  the  Franks  in  this  respect 
were  derived  from  a  remote  source. 

The  Franks  were  descended  from  the  Germans,  of  whom 
Tacitus  says  q  that  in  the  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  hereditary, 
the  latter  elective. 

No  doubt  but  those  princes  who  stood  up  in  the  national 
assembly  and  offered  themselves  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's  authority.  By  the  splendor  of  their  descent  they  had 
attained  the  regal  dignity;  and  their  military  abilities  having 
recommended  them  to  the  command  of  armies,  they  rose  to  the 
power  of  mayor.  By  the  regal  dignity  our  first  kings  presided 
in  the  courts  and  assemblies,  and  enacted  laws  with  the  na- 
tional consent ;  by  the  dignity  of  duke  or  leader,  they  under- 
took expeditions  and  commanded  the  armies. 

In  order  to  be  acquainted  with  the  genius  of  the  primitive 
Franks  in  this  respect,  we  have  only  to  cast  an  eye  on  the  con- 
duct of  Argobastes/  a  Frank  by  nation,  on  whom  Valentinian 
had  conferred  the  command  of  the  army.  He  confined  the 
Emperor  to  his  own  palace ;  where  he  would  suffer  nobody  to 
speak  to  him,  concerning  either  civil  or  military  affairs.  Argo- 
bastes  did  at  that  time  what  was  afterwards  practised  by  the 
Pepins. 

5. — In  what  Manner  the  Mayors  obtained  the  Command  of  the 

Armies 

So  long  as  the  kings  commanded  their  armiesln  person  the 
nation  never  thought  of  choosing  a  leader.  Clovis  and  his  four 
sons  were  at  the  head  of  the  Franks,  and  led  them  on  through 

q "  Reges     ex     nobilitate,     duces    ex          r  See  Sulpicius  Alexander,  in  Gregory 
virtute    sumunt."— "  De    Moribus    Ger-       of  Tours,  book  II. 
tnanorum." 


THE   SPIRIT   OF   LAWS  227 

a  series  of  victories.  Theobald,  son  of  Theodobert,  a  young, 
weak,  and  sickly  prince,  was  the  first  of  our  kings  who  con- 
fined himself  to  his  palaces  He  refused  to  undertake  an  ex- 
pedition into  Italy  against  Narses,  and  had  the  mortification 
of  seeing  the  Franks  choose  for  themselves  two  chiefs,  who 
led  them  against  the  enemy.*  Of  the  four  sons  of  Clotharius 
I,  Gontram  was  the  least  fond  of  commanding  his  armies;" 
the  other  kings  followed  this  example ;  and,  in  order  to  entrust 
the  command  without  danger  into  other  hands,  they  conferred 
it  upon  several  chiefs  or  dukes.'*' 

Innumerable  were  the  inconveniences  which  thence  arose; 
all  discipline  was  lost,  no  one  would  any  longer  obey.  The 
armies  were  dreadful  only  to  their  own  country;  they  were 
laden  with  spoils  before  they  had  reached  the  enemy.  Of  these 
miseries  we  have  a  very  lively  picture  in  Gregory  of  Tours.w 
"  How  shall  we  be  able  to  obtain  a  victory,"  said  Gontram,^ 
"  we  who  do  not  so  much  as  keep  what  our  ancestors  acquired  ? 
Our  nation  is  no  longer  the  same.  .  .  ."  Strange  that  it 
should  be  on  the  decline  so  early  as  the  reign  of  Clevis's  grand- 
children ! 

It  was,  therefore,  natural  they  should  determine  at  last  upon 
an  only  duke,  a  duke  invested  with  an  authority  over  this 
prodigious  multitude  of  feudal  lords  and  vassals,  who  had  now 
become  strangers  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.  This  power  was  conferred  on  the  mayors  of  the  palace. 

The  original  function  of  the  mayors  of  the  palace  was  the 
management  of  the  king's  household.  They  had  afterwards, 
in  conjunction  with  other  officers,  the  political  government  of 
fiefs ;  and  at  length  they  obtained  the  sole  disposal  of  them.y 
They  had  also  the  administration  of  military  affairs,  and  the 

s  In  the  year  552.  had  no  mayor  in  Burgundy,  observed 

t "  Leutheres    vero    et    Butilinus,    ta-  the  same  policy,   and   sent  against  the 

metsi  id  regi  ipsorum  minime  placebat  Gascons  ten   dukes  and  several  counts 

belli    cum    eis    societatem    inierunt."—  who  had  no  dukes  over  them.— Frede- 

Agathias,   book   I.     Gregory   of  Tours,  garius's  "  Chronicle,"  chap.  Ixxviii.,  in 

book  IV.  chap.  ix.  the  year  636. 

u  Gontram  did  not  even  march  against  w  Gregory  of  Tours,  book  VIII.  chap. 

Gondovald,   who   styled  himself   son   of  xxx.,  and  book  X.  chap.  iii.    Ibid,  book 

Clotharius,    and    claimed    his    share    of  VIII.   chap.   xxx. 

the  kingdom.  x  Ibid. 

v  Sometimes  to  the  number  of  twenty.  y  See   the   second   supplement  to   the 

See  Gregory  of  Tours,   book  V.   chap.  law    of   the    Burgundians,    tit.    13,    and 

xxvii.,    book    VIII.    chap,    xviii.    and  Gregpry    of    Tours,    book     IX.     chap, 

xxx.,  book  X.  chap.  iii.    Dagobert,  who  xxxvi. 


228  MONTESQUIEU 

command  of  the  armies ;  employments  necessarily  connected 
with  the  other  two.  In  those  days  it  was  much  more  difficult 
to  raise  than  to  command  the  armies ;  and  who  but  the  dis- 
penser of  favors  could  have  this  authority  ?  In  this  martial  and 
independent  nation,  it  was  prudent  to  invite  rather  than  to 
compel;  prudent  to  give  away  or  to  promise  the  fiefs  that 
should  happen  to  be  vacant  by  the  death  of  the  possessor ;  pru- 
dent in  fine  to  reward  continually,  and  to  raise  a  jealousy  with 
regard  to  preferences.  It  was,  therefore,  right  that  the  person 
who  had  the  superintendence  of  the  palace  should  also  be  gen- 
eral of  the  army. 

6. — Second  Epoch  of  the  Humiliation  of  our  Kings  of  the  first 

Race 

After  the  execution  of  Brunehaut  the  mayors  were  admin- 
istrators of  the  kingdom  under  the  sovereigns;  and  though 
they  had  the  conduct  of  the  war,  the  kings  were  always  at  the 
head  of  the  armies,  while  the  mayor  and  the  nation  fought 
under  their  command.  But  the  victory  of  Duke  Pepin  over 
Theodoric  and  his  mayor  s  completed  the  degradation  of  our 
princes ;  a  and  that  which  Charles  Martel  obtained  over  Chil- 
peric  and  his  Mayor  Rainfroy  confirmed  it.&  Austrasia  tri- 
umphed twice  over  Neustria  and  Burgundy ;  and  the  mayor- 
alty of  Austrasia  being  annexed  as  it  were  to  the  family  of  the 
Pepins,  this  mayoralty  and  family  became  greatly  superior  to 
all  the  rest.  The  conquerors  were  then  afraid  lest  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 
peoples  There  they  made  ordinances,  but  these  were  such  as 
were  dictated  by  the  mayor ;  d  they  answered  ambassadors,  but 
the  mayor  made  the  answers.  This  is  the  time  mentioned  by 
historians  of  the  government  of  the  mayors  over  the  kings 
whom  they  held  in  subjections 

2  See    the    "  Annals    of    Metz,    years        "  ut    responsa    quse    erat    edoctus    vel 

687  and  688.  potius    jussus,    ex    sua    velut    potestate 

a "  Illis    quidem    nomina    regum    im-        redderet.'" 


ponens,   ipse  totius  regni   habens  privi-  e  "  Annals  of  Metz,"  anno  691.     "  An- 

legium,"   etc. — "  Annals  of  Metz,"  year  no  principatus   Pippini  super  Theodori- 

695.  cum    .    .    .     '  Annals  '    of    Fuld,    or    of 

b "  Annals  of  Metz,"  year  719.  Laurishan,     Pippinus     dux     Francorum 

c"  Sedemque     illi     regalem     sub     sua  obtinuit  regnum   Francorum   per  annos 

ditione  concessit." — Ibid,   anno  719.  27,  cum  regibus  sibi  subjectis." 
d "  Ex   chronico    Centulensi,"   lib.    2, 


THE    SPIRIT    OF   LAWS 


229 


The  extravagant  passion  of  the  nation  for  Pepin's  family 
went  so  far  that  they  chose  one  of  his  grandsons,  who  was  yet 
an  infant,  for  mayor ;  f  and  put  him  over  one  Dagobert,  that 
is,  one  phantom  over  another. 

7. — Of  the  great  Offices  and  Fiefs  under  the  Mayors  of  the 

Palace 

The  mayors  of  the  palace  were  little  disposed  to  establish  the 
uncertain  tenure  of  places  and  offices ;  for,  indeed,  they  ruled 
only  by  the  protection  which  in  this  respect  they  granted  to  the 
nobility.  Hence  the  great  offices  continued  to  be  given  for  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  Andeli,g  Gontram  and  his  nephew  Childe- 
bert  engage  to  maintain  the  donations  made  to  the  vassals 
and  churches  by  the  kings  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  formularies  at  the  time  of  the  mayors.* 
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  that  part  of  the  fiefs  had 
become  hereditary  towards  the  end  of  the  first  race.  They  were 
far  from  having  in  those  days  the  idea  of  an  unalienable  de- 
mesne; this  is  a  modern  thing,  which  they  knew  neither  in 
theory  nor  practice. 

In  proof  hereof  we  shall  presently  produce  positive  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  been 

f  "  Posthaec    Theudoaldus    filius    ejus  ferre  voluerint,  fixa  stabilitate  perpetuo 

(Grimoaldi)    parvulus,    in    loco    ipsius,  conservetur." 

cum    praedicto    rege    Dagoberto,    major-  i  See  the  24th  and  the  34th  of  the  first 

domus      palatii      effectus      est."        The  book. 

"  Anonymous    Continuator  "    of    Frede-  /  See    the    i4th    formula    of    the    first 

garius  in  the  year  714,  chap.  civ.  book,    which    is    equally    applicable    to 

g  Cited    by    Gregory    of    Tours,    book  the    fiscal    estates    given    direct    in    per- 

IX.     See  also   the   Edict   of   Clotharius  petuity,  or  given  at  first  as  a  benefice, 

II,  in  the  year  615,  art.   16.  and    afterwards    in    perpetuity:    "  Sicut 

h  "  Ut  si   quid  de  agris  fiscalibus  vel  ab  illo  aut  a  fisco  nostro  fuit  possessa." 

speciebus    atque    praesidio    pro    arbitrii  See  also  the  I7th  formula,  ibid, 
sui   voluntate   facere  aut   cuiquam  con- 


230  MONTESQUIEU 

alienated.  The  time  I  mean  is  that  of  Charles  Martel,  who 
founded  some  new  fiefs,  which  we  should  carefully  distinguish 
from  those  of  the  earliest  date. 

When  the  kings  began  to  make  grants  in  perpetuity,  either 
through  the  corruption  which  crept  into  the  government  or 
by  reason  of  the  constitution  itself,  which  continually  obliged 
those  princes  to  confer  rewards,  it  was  natural  they  should 
begin  with  giving  the  perpetuity  of  the  fiefs,  rather  than  of 
the  counties.  For  to  deprive  themselves  of  some  acres  of  land 
was  no  great  matter;  but  to  renounce  the  right  of  disposing 
of  the  great  offices  was  divesting  themselves  of  their  very 
power. 

8. — In  what  Manner  the  Allodial  Estates  were  changed  into 

Fiefs 

The  manner  of  changing  an  allodial  estate  into  a  fief  may  be 
seen  in  a  formulary  of  Marculfus.fc  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  the  nature  of  the  allodia,  I  must  trace  the  source  of 
the  ancient  privileges  of  our  nobility,  a  nobility  which  for 
these  eleven  centuries  has  been  enveloped  with  dust,  with 
blood,  and  with  the  marks  of  toil. 

They  who  were  seized  of  fiefs  enjoyed  very  great  advantages. 
The  composition  for  the  injuries  done  them  was  greater  than 
that  of  freemen.  It  appears  by  the  formularies  of  Marculfus 
that  it  was  a  privilege  belonging  to  a  king's  vassal,  that  who- 
ever killed  him  should  pay  a  composition  of  six  hundred  sous. 
This  privilege  was  established  by  the  Salic  law,*  and  by  that 
of  the  Ripuarians ;  *»  and  while  these  two  laws  ordained  a  com- 
position of  six  hundred  sous  for  the  murder  of  a  king's  vassal, 
they  gave  but  two  hundred  sous  for  the  murder  of  a  person 
freeborn,  if  he  was  a  Frank  or  barbarian,  or  a  man  living  under 
the  Salic  law ;  »  and  only  a  hundred  for  a  Roman. 

This  was  not  the  only  privilege  belonging  to  the  king's  vas- 

k  Book  I.  formulary  13.  n  See  also  the  law  of  the  Ripuarians, 

/Tit.  44.    See  also  tit.  66,  sees.  3  and       tit.  7;  and  the  Salic  law,  tit.  44,  arts. 

4;  and  tit.  74.  i  and  4. 
m  Tit.  ii. 


THE   SPIRIT   OF   LAWS  231 

sals.  We  ought  to  know  that  when  a  man  was  summoned  in 
court,  and  did  not  make  his  appearance  nor  obey  the  judge's 
orders,  he  was  called  before  the  king ;  o  and  if  he  persisted  in 
his  contumacy,  he  was  excluded  from  the  royal  protection,/* 
and  no  one  was  allowed  to  entertain  him,  nor  even  to  give 
him  a  morsel  of  bread.  Now,  if  he  was  a  person  of  an  ordinary 
condition,  his  goods  were  confiscated ;  q  but  if  he  was  the  king's 
vassal,  they  were  not.''  The  first  by  his  contumacy  was  deemed 
sufficiently  convicted  of  the  crime,  the  second  was  not;  the 
former  for  the  smallest  crimes  was  obliged  to  undergo  the  trial 
by  boiling  water,-*  the  latter  was  condemned  to  this  trial  only 
in  the  case  of  murder.*  In  fine,  the  king's  vassal  could  not  be 
compelled  to  swear  in  court  against  another  vassal."  These 
privileges  were  continually  increasing,  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  the 
mouth  of  their  own  vassals.*7  Moreover,  when  a  person,  hav- 
ing these  honors,  did  not  repair  to  the  army,  his  punishment 
was  to  abstain  from  flesh-meat  and  wine  as  long  as  he  had  been 
absent  from  the  service ;  but  a  freeman  w  who  neglected  to 
follow  his  count  was  fined  sixty  sous,*  and  was  reduced  to  a 
state  of  servitude  till  he  had  paid  it. 

It  is  very  natural,  therefore,  to  believe  that  those  Franks 
who  were  not  the  king's  vassals,  and  much  more  the  Romans, 
became  fond  of  entering  into  the  state  of  vassalage :  and  that 
they  might  not  be  deprived  of  their  demesnes,  they  devised 
the  usage  of  giving  their  allodium  to  the  king,  of  receiving  it 
from  him  afterwards  as  a  fief,  and  of  nominating  their  heirs. 
This  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  existed.? 

This  continued  under  the  third  race,  as  we  find  by  several 

o  Salic  law,  tits.  59  and  76.  v  "  Apud    vernis    palatium,"    in    the 
p  "  Extra     sermonem     regis."  —  Salic        year  883,  arts.  4  and  n. 

law,  tits.  59  and  76.  w  Capitulary  of  Charlemagne,   in  the 

q  Salic  law,  tit.  59,  sec.  I.  year  812,  arts,  i  and  3. 

r  Ibid.  tit.  76,  sec.  i.  x  "  Heribannum." 

5  Ibid.  tits.  56  and  59.  y  "  Non   infirmis  reliquit  hseredibus," 

t  Ibid.  tit.  76,  sec.  i.  says  Lambert  d'Ardres  in  Ducange,  on 

u  Ibid.  tit.  ?6,  sec.  2.  the  word  "  alodis." 


1 


232  MONTESQUIEU 

charters; 2  whether  they  gave  their  allodium,  and  resumed  it 
by  the  same  act ;  or  whether  it  was  declared  an  allodium,  and 
afterwards  acknowledged  as  a  fief.  These  were  called  fiefs  of 
resumption. 

This  does  not  imply  that  those  who  were  seized  of  fiefs  ad- 
ministered them  as  a  prudent  father  of  a  family  would;  for 
though  the  freemen  grew  desirous  of  being  possessed  of  fiefs, 
yet  they  managed  this  sort  of  estates  as  usufructs  are  managed 
in  our  days.  This  is  what  induced  Charlemagne,  the  most 
vigilant  and  considerate  prince  we  ever  had,  to  make  a  great 
many  regulations  in  order  to  hinder  the  fiefs  from  being  de- 
meaned in  favor  of  allodial  estates.**  It  proves  only  that  in  his 
time  most  benefices  were  but  for  life,  and  consequently  that 
they  took  more  care  of  the  freeholds  than  of  the  benefices ;  and 
yet  for  all  that  they  did  not  choose  rather  to  be  the  king's 
vassals  than  freemen.  They  might  have  reasons  for  disposing 
of  some  particular  part  of  a  fief,  but  they  were  not  willing  to  be 
stripped  of  their  dignity  likewise. 

I  know,  likewise,  that  Charlemagne  laments  in  a  certain 
Capitulary,  that  in  some  places  there  were  people  who  gave 
away  their  fiefs  in  property,  and  redeemed  them  afterwards  in 
the  same  manner.fr  But  I  do  not  say  that  they  were  not  fonder 
of  the  property  than  of  the  usufruct ;  I  mean  only,  that  when 
they  could  convert  an  allodium  into  a  fief,  which  was  to  descend 
to  their  heirs,  as  is  the  case  of  the  formulary  above  mentioned, 
they  had  very  great  advantages  in  doing  it. 

9. — How  the  Church  Lands  were  Converted  into  Fiefs 

The  use  of  the  fiscal  lands  should  have  been  only  to  serve 
as  a  donation  by  which  the  kings  were  to  encourage  the  Franks 
to  undertake  new  expeditions,  and  by  which  on  the  other  hand 
these  fiscal  lands  were  increased.  This,  as  I  have  already  ob- 
served, was  the  spirit  of  the  nation ;  but  these  donations  took 
another  turn.  There  is  still  extant  a  speech  of  Chilperic,^ 
grandson  of  Clovis,  in  which  he  complains  that  almost  all  these 

^  See   those    quoted    by    Ducange,    in  lary  of  the  year  806,  art.  7;  the  Capitu- 

the  word  "  alpdis,"  and  those  produced  lary   of  the   year   779,    art.    29;    the    Ca- 

by   Galland,    in   his   treatise   of  allodial  pitulary    of    Louis    the    Pious,    in    the 

lands,  p.   14,  and  the  following.  year  829,  art.   i. 

a  Second   Capitulary   of  the  year  802,  b  The  fifth  of  the  year  806,  art.  8. 

art.    10 ;   and  the  7th   Capitulary  of  the  c  In    Gregory    of    Tours,     book    VI. 

year    803,    art.    3;    the    ist    Capitulary,  chap.  xlvi. 
"  incerti  anni,"  art.  49;  the  sth  Capitu- 


THE  SPIRIT  OF  LAWS  233 

lands  had  been  already  given  away  to  the  Church.  "  Our  ex- 
chequer," says  he,  "  is  impoverished,  and  our  riches  are  trans- 
ferred to  the  clergy  ;d  none  reign  now  but  the  bishops,  who 
live  in  grandeur  while  we  are  quite  eclipsed." 

This  was  the  reason  that  the  mayors,  who  durst  not  attack 
the  lords,  stripped  the  churches;  and  one  of  the  motives  al- 
leged by  Pepin  for  entering  Neustria  ^  was,  his  having  been 
invited  thither  by  the  clergy,  to  put  a  stop  to  the  encroachments 
of  the  kings,  that  is,  of  the  mayors,  who  deprived  the  Church 
of  all  her  possessions. 

The  mayors  of  Austrasia,  that  is  the  family  of  the  Pepins, 
had  behaved  towards  the  clergy  with  more  moderation  than 
those  of  Neustria  and  Burgundy.  This  is  evident  from  our 
chronicles/  in  which  we  see  the  monks  perpetually  extolling 
the  devotion  and  liberality  of  the  Pepins.  They  themselves  had 
been  possessed  of  the  first  places  in  the  Church.  "  One  crow 
does  not  pull  out  the  eyes  of  another ; "  as  Chilperic  said  to 
the  bishops.g 

Pepin  subdued  Neustria  and  Burgundy ;  but  as  his  pretence^ 
for  destroying  the  mayors  and  kings  was  the  grievances  of  the 
clergy,  he  could  not  strip  the  latter  without  acting  incon- 
sistently with  his  cause,  and  showing  that  he  made  a  jest  of  the 
nation.  However,  the  conquest  of  two  great  kingdoms  and 
the  destruction  of  the  opposite  party  afforded  him  sufficient 
means  of  satisfying  his  generals. 

Pepin  made  himself  master  of  the  monarchy  by  protecting 
the  clergy;  his  son,  Charles  Martel,  could  not  maintain  his 
power  but  by  oppressing  them.  This  prince,  finding  that  part 
of  the  regal  and  fiscal  lands  had  been  given  either  for  life,  or 
in  perpetuity,  to  the  nobility,  and  that  the  Church  by  receiving 
both  from  rich  and  poor  had  acquired  a  great  part  even  of  the 
allodial  estates,  he  resolved  to  strip  the  clergy ;  and  as  the  fiefs 
of  the  first  division  were  no  longer  in  being,  he  formed  a 
second.^  He  took  for  himself  and  for  his  officers  the  church 


d  This  is  what  induced  him  to  annul  adierunt   ut  pro    sublatis   injuste  patri- 

the    testaments    made    in    favor    of    the  moniis,"  etc. 

clergy,   and   even  the   donations   of  his  f  See  the  "  Annals  of  Metz." 

father;     Gontram    re-established    them,  gin  Gregory  of  Tours, 

and   even   made   new   donations. — Greg-  «  "  Karolus  plurima  juri  ecclesiastico 

ory  of  Tours,  book  VII.  chap.  vii.  detrahens     praedia     fisco     sociavit,      ac 

e  See    the    "  Annals    of    Metz,"    year  deinde      militibus      dispertivit."  — "  Ex 

689.     "  Excitor  imprimis  querelis  sacer-  Chronico  Centulensi,"  lib.  II. 
dotum  et  servorum  Dei,  qui  me  saepius 


234  MONTESQUIEU 

lands  and  the  churches  themselves ;  thus  he  remedied  an  evil 
which  differed  from  ordinary  diseases,  as  its  extremity  ren- 
dered it  the  more  easy  to  cure. 

10. — Riches  of  the  Clergy 

So  great  were  the  donations  made  to  the  clergy  that  under 
the  three  races  of  our  princes  they  must  have  several  times 
received  the  full  property  of  all  the  lands  of  the  kingdom. 
But  if  our  kings,  the  nobility,  and  the  people  found  the  way  of 
giving  them  all  their  estates,  they  found  also  the  method  of 
getting  them  back  again.  The  spirit  of  devotion  established 
a  great  number  of  churches  under  the  first  race ;  but  the  mil- 
itary spirit  was  the  cause  of  their  being  given  away  afterwards 
to  the  soldiery,  who  divided  them  among  their  children.  What 
a  number  of  lands  must  have  then  been  taken  from  the  clergy's 
mensalia!  The  kings  of  the  second  race  opened  their  hands, 
and  made  new  donations  to  them ;  but  the  Normans,  who 
came  afterwards,  plundered  and  ravaged  all  before  them, 
wreaking  their  vengeance  chiefly  on  the  priests  and  monks, 
and  devoting  every  religious  house  to  destruction.  For  they 
charged  those  ecclesiastics  with  the  destruction  of  their  idols, 
and  with  all  the  oppressive  measures  of  Charlemagne  by  which 
they  had  been  successively  obliged  to  take  shelter  in  the  North. 
These  were  animosities  which  the  space  of  forty  or  fifty  years 
had  not  been  able  to  obliterate.  In  this  situation  what  losses 
must  the  clergy  have  sustained !  There  were  hardly  ecclesias- 
tics left  to  demand  the  estates  of  which  they  had  been  deprived. 
There  remained,  therefore,  for  the  religious  piety  of  the  third 
race,  foundations  enough  to  make,  and  lands  to  bestow.  The 
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  dying  persons 
gave  their  estates  to  the  Church,  their  heirs  would  fain  resume 
them.  We  meet  with  continual  quarrels  between  the  lords  and 
the  bishops,  the  gentlemen  and  the  abbots;  and  the  clergy 
must  have  been  very  hard  pressed,  since  they  were  obliged  to 
put  themselves  under  the  protection  of  certain  lords,  who 
granted  them  a  momentary  defence,  and  afterwards  joined 
their  oppressors. 


THE  SPIRIT  OF  LAWS  235 

But  a  better  administration  having  been  established  under 
the  third  race  gave  the  clergy  leave  to  augment  their  posses- 
sions; when  the  Calvinists  started  up,  and  having  plundered 
the  churches,  they  turned  all  the  sacred  plate  into  specie.  How 
could  the  clergy  be  sure  of  their  estates,  when  they  were  not 
even  safe  in  their  persons?  They  were  debating  on  con- 
troversial subjects  while  their  archives  were  in  flames.  What 
did  it  avail  them  to  demand  back  of  an  impoverished  nobility 
those  estates  which  were  no  longer  in  possession  of  the  latter, 
but  had  been  conveyed  into  other  hands  by  different  mort- 
gages ?  The  clergy  have  been  long  acquiring,  and  have  often 
refunded,  and  still  there  is  no  end  of  their  acquisitions. 

II. — State  of  Europe  at  the  Time  of  Charles  M artel 

Charles  Martel,  who  undertook  to  strip  the  clergy,  found 
himself  in  a  most  happy  situation.  He  was  both  feared  and 
beloved  by  the  soldiery,  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  assistance.*  The 
Pope,  to  whom  he  was  necessary,  stretched  out  his  arms  to  him. 
Everyone  knows  the  famous  embassy  he  received  from  Greg- 
ory III.;  These  two  powers  were  strictly  united,  because  they 
could  not  do  without  each  other :  the  Pope  stood  in  need  of  the 
Franks  to  assist  him  against  the  Lombards  and  the  Greeks ; 
Charles  Martel  had  occasion  for  the  Pope,  to  humble  the 
Greeks,  to  embarrass  the  Lombards,  to  make  himself  more  re- 
spectable at  home,  and  to  guarantee  the  titles  which  he  had, 
and  those  which  he  or  his  children  might  take.  It  was  im- 
possible, therefore,  for  his  enterprise  to  miscarry. 

St.  Eucherius,  Bishop  of  Orleans,  had  a  vision  which  fright- 
ened all  the  princes  of  that  time.  I  shall  produce  on  this  occa- 
sion the  letter  written  by  the  bishops  assembled  at  Rheims  to 
Louis,  King  of  Germany,  who  had  invaded  the  territories  of 
Charles  the  Bald ;  k  because  it  will  give  us  an  insight  into  the 
situation  of  things  in  those  times,  and  the  temper  of  the  peo- 
ple. They  say,*  "  That  St.  Eucherius,  having  been  snatched  up 

t  See  the  "  Annals  of  Metz."  set." — "  Annals     of     Metz,"     year     741. 

j  "  Epistolam  quoque,   decreto  Roma-  "  Eo   pacto   oatrato.    ut   a   partibus  im- 

norum    principum,    sibi    praedictus   prae-  peratoris    recederet. — Fredegarius. 

sul      Gregorius      miserat,      quod      sese  k  Anno     858,     "  apud     Carisiacum "  ; 

populus    Romanus,    relicta    imperatoris  Baluzius's  edition,  torn.  i.  p.  101. 

dominatione,    ad    suam    defensionem    et  /  Ibid.  p.  109. 
invictam  clementiam  convertere  voluis- 


MONTESQUIEU 


into  heaven,  saw  Charles  Martel  tormented  in  the  bottom  of 
hell  by  order  of  the  saints,  who  are  to  sit  with  Christ  at  the  last 
judgment;  that  he  had  been  condemned  to  this  punishment 
before  his  time,  for  having  stripped  the  Church  of  her  posses- 
sions and  thereby  charged  himself  with  the  sins  of  all  those 
who  founded  these  livings;  that  King  Pepin  held  a  council 
upon  this  occasion,  and  had  ordered  all  the  church  lands  he 
could  recover  to  be  restored;  that  as  he  could  get  back  only 
a  part  of  them,  because  of  his  disputes  with  Vaifre,  Duke  of 
Aquitaine,  he  issued  letters  called  precaria  m  for  the  remainder, 
and  made  a  law  that  the  laity  should  pay  a  tenth  part  of  the 
church  lands  they  possessed,  and  twelve  deniers  for  each 
house ;  that  Charlemagne  did  not  give  the  church  lands  away ; 
on  the  contrary,  that  he  published  a  Capitulary,  by  which  he 
engaged  both  for  himself  and  for  his  successors  never  to  make 
any  such  grant ;  that  all  they  say  is  committed  to  writing,  and 
that  a  great  many  of  them  heard  the  whole  related  by  Louis 
the  Debonnaire,  the  father  of  those  two  kings." 

King  Pepin's  regulation,  mentioned  by  the  bishops,  v/as 
made  in  the  Council  held  at  Leptines.w  The  Church  found 
this  advantage  in  it,  that  such  as  had  received  those  lands  held 
them  no  longer  but  in  a  precarious  manner ;  and,  moreover, 
that  she  received  the  tithe  or  tenth  part,  and  twelve  deniers  for 
every  house  that  had  belonged  to  her.  But  this  was  only  a  pal- 
liative, and  did  not  remove  the  disorder. 

Nay,  it  met  with  opposition,  and  Pepin  was  obliged  to  make 
another  Capitulary,*?  in  which  he  enjoins  those  who  held  any 
of  those  benefices  to  pay  this  tithe  and  duty,  and  even  to  keep 
up  the  houses  belonging  to  the  bishopric  or  monastery,  under 
the  penalty  of  forfeiting  those  possessions.  Charlemagne  re- 
newed the  regulations  of  Pepin./> 

That  part  of  the  same  letter  which  says  that  Charlemagne 
promised  both  for  himself  and  for  his  successors  never  to  divide 


m  "  Precaria,  quod  precibus  utendum 
conceditur,"  says  Cujus,  in  his  notes 
upon  the  first  "  Book  of  Fiefs."  I  find 
in  a  diploma  of  King  Pepin,  dated  the 
third  year  of  his  reign,  that  this  prince 
was  not  the  first  who  established  these 
"precaria";  he  cites  one  made  by  the 
Mayor  Ebroin,  and  continued  after  his 
time.  See  the  diploma  of  the  king,  in 
the  sth  tome  of  the  "  Historians  of 
France  "  by  the  Benedictins,  art.  6. 


n  In  the  year  743,  see  the  5th  book  of 
the  Capitularies,  art.  3,  Baluzius's  edi- 
tion, p.  825. 

o  That  of  Metz,  in  the  year  736,  art.  4. 

p  See  his  Capitulary,  in  the  year  803, 
given  at  Worms;  Baluzius's  edition,  p. 
411,  where  he  regulates  the  precarious 
contract,  and  that  of  Frankfort,  in  the 
year  794,  p.  267,  art  24,  in  relation  to 
the  repairing  of  the  houses;  and  that  of 
the  year  800,  p.  330. 


THE  SPIRIT  OF  LAWS  237 

again  the  church  lands  among  the  soldiery  is  agreeable  to  the 
Capitulary  of  this  prince,  given  at  Aix-la-Chapelle  in  the  year. 
803,  with  a  view  of  removing  the  apprehensions  of  the  clergy 
upon  this  subject.  But  the  donations  already  made  were  still 
in  force. q  The  bishops  very  justly  add,  that  Louis  the  Debon- 
naire  followed  the  example  of  Charlemagne,  and  did  not  give 
away  the  church  lands  to  the  soldiery. 

And  yet  the  old  abuses  were  carried  to  such  a  pitch,  that  the 
laity  under  the  children  of  Louis  the  Debonnaire  preferred 
ecclesiastics  to  benefices,  or  turned  them  out  of  their  livings  r 
without  the  consent  of  the  bishops.  The  benefices  were  divided 
among  the  next  heirs,-*  and  when  they  were  held  in  an  indecent 
manner  the  bishops  had  no  other  remedy  left  than  to  remove 
the  relics.* 

By  the  Capitulary  of  Compiegnew  it  is  enacted  that  the 
king's  commissary  shall  have  a  right  to  visit  every  monastery, 
together  with  the  bishop,  by  the  consent  and  in  presence  of  the 
person  who  holds  it ;  v  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,  resolved, 
and  decreed  in  so  many  national  assemblies.  In  point  of  fact 
they  quoted  nine. 

Still  they  went  on  disputing;  till  the  Normans  came  and 
made  them  all  agree. 

12. — Establishment  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 

q  As  appears   by  the  preceding  note,  -s  Ibid.  sec.  44. 

and   by  the   Capitulary  of   Pepin,    King  t  Ibid. 

of   Italy,   where   it   says  that   the   King  «  Given  the  28th  year  of  the  reign  of 

would    give   the    monasteries    in   fief   to  Charles  the  Bald,  in  the  year  868.     Ba- 

those   who    would    swear   allegiance   for  luzius's  edition,  p.   203. 

fiefs:  it  is  added  to  the  law  of  the  Lorn-  v"  Cum    consilio    et    consensu    ipsius 

bards,   book   III.  tit.   i,  sec.   30;  and  to  qui   locum   retinet." 

the    Salic    laws,    Collection    of    Pepin's  w "  Concilium    apud    Bonoilum,"    the 

laws  in  Echard,  p.   195,  tit.  26,  art.  4.  i6th   year   of   Charles   the    Bald,   in   the 

r  See  the  constitution  of  Lotharius  I,  year  856,  Baluzius's  edition,  p.  78. 
in  the  law  of  the  Lombards,  book  III. 
law  i,  sec.  43. 


238  MONTESQUIEU 

in  the  hands  of  the  clergy,  Charlemagne  found  all  the  church 
lands  in  the  hands  of  the  soldiery.  The  latter  could  not  be  com- 
pelled to  restore  a  voluntary  donation ;  and  the  circumstances 
of  that  time  rendered  the  thing  still  more  impracticable  than  it 
seemed  to  be  of  its  own  nature.  On  the  other  hand,  Christian- 
ity ought  not  to  have  been  lost  for  want  of  ministers,  churches, 
and  instruction.* 

This  was  the  reason  of  Charlemagne's  establishing  the 
tithes,?  a  new  kind  of  property  which  had  this  advantage  in 
favor  of  the  clergy,  that  as  they  were  given  particularly  to  the 
Church,  it  was  easier  in  process  of  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  prove  the  contrary.  The  constitution  of  Clotharius 
says  ^  only,  that  they  shall  not  raise  certain  tithes  on  church- 
lands  ;  a  so  far  then  was  the  Church  from  exacting  tithes  at  thai 
time,  that  its  whole  pretension  was  to  be  exempted  from  pay- 
ing them.  The  second  council  of  Macon,&  which  was  held  in 
585,  and  ordains  the  payment  of  tithes,  says,  indeed,  that  they 
were  paid  in  ancient  times,  but  it  says  also  that  the  custom  of 
paying  them  was  then  abolished. 

No  one  questions  but  that  the  clergy  opened  the  Bible  be- 
fore Charlemagne's  time,  and  preached  the  gifts  and  offerings 
of  Leviticus.  But  I  say,  that  before  that  prince's  reign,  though 
the  tithes  might  have  been  preached,  they  were  never  estab- 
lished. 

I  noticed  that  the  regulations  made  under  King  Pepin  had 
subjected  those  who  were  seized  of  church  lands  in  fief  to  the 
payment  of  tithes,  and  to  the  repairing  of  the  churches.  It  was 

x  In  the  civil  wars  which  broke  out  aetor  aut   decimator   in   rebus   ecclesise 

at  the  time  of  Charles  Martel,  the  lands  nullus     ascedat."     The     Capitulary     of 

belonging    to    the    Church    of    Rheims  Charlemagne  in  the  year  800,  Baluzius's 

were  given  away  to  laymen;  "  the  clergy  edition,  p.  336,  explains  extremely  well 

were  left  to  shift  as  well  as  they  could,"  what  is  meant  by  that  sort  of  tithe  from 

says  the   "  Life   of   Remigius,      Surius,  which  the  Church  is  exempted  by  Clo- 

tom.  i.  p.  279.  tharius;    it   was   the   tithe   of  the   swine 

y  Law    of    the    Lombards,    book    III.  which  were  put  into  the  king's  forests 

tit.  3,  sees,  i  and  2.  to  fatten;  and  Charlemagne  enjoins  his 

s  It  is  that  on  which  I  have  descanted  judges  to  pay  it,  as  well  as  other  peo- 

in   the   4th    chapter   of   this   bpok,    and  pie,   in  order  to  set  an  example:   it  is 

which  is  to  be  found  in  Baluzius's  edi-  plain  that  this  was  a  right  of  seigniory 

tion  of  the  Capitularies,  torn.  i.  art.  u,  or  economy. 

P-  9-  b  Canone  5,  ex  tomo  i,  "  conciliorum 

a "  Agraria  et  pascuaria,   vel  decimas  antiquorum    Galliae    opera    Jacob!    Siiv 

porcorum    ecclesiae    concedimus,    ita   ut  mundi." 


THE  SPIRIT  OF  LAWS  239 

a  great  deal  to  induce  by  a  law,  whose  equity  could  not  be  dis- 
puted, the  principal  men  of  the  nation  to  set  the  example. 

Charlemagne  did  more;  and  we  find  by  the  Capitulary  de 
Villisc  that  he  obliged  his  own  demesnes  to  the  payment  of 
the  tithes ;  this  was  a  still  more  striking  example. 

But  the  commonalty  are  rarely  influenced  by  example  to 
sacrifice  their  interests.  The  Synod  of  Frankfort  furnished 
them  with  a  more  cogent  motive  to  pay  the  tithes.^  A  Capitu- 
lary was  made  in  that  Synod,  wherein  it  is  said,  that  in  the  last 
famine  the  spikes  of  corn  were  found  to  contain  no  seed/  the 
infernal  spirits  having  devoured  it  all,  and  that  those  spirits 
had  been  heard  to  reproach  them  with  not  having  paid  the 
tithes ;  in  consequence  of  which  it  was  ordained  that  all  those 
who  were  seized  of  church  lands  should  pay  the  tithes;  and 
the  next  consequence  was  that  the  obligation  extended  to  all. 

Charlemagne's  project  did  not  succeed  at  first,  for  it  seemed 
too  heavy  a  burden/  The  payment  of  the  tithes  among  the 
Jews  was  connected  with  the  plan  of  the  foundation  of  their 
republic ;  but  here  it  was  a  burden  quite  independent  of  thev 
other  charges  of  the  establishment  of  the  monarchy.  We  find 
by  the  regulations  added  to  the  law  of  the  Lombards  g  the  dif- 
ficulty there  was  in  causing  the  tithes  to  be  accepted  by  the  civil 
laws ;  and  as  for  the  opposition  they  met  with  before  they  were 
admitted  by  the  ecclesiastic  laws,  we  may  easily  judge  of  it 
from  the  different  canons  of  the  councils. 

The  people  consented  at  length  to  pay  the  tithes,  upon  condi- 
tion that  they  might  have  the  power  of  redeeming  them.  This 
the  constitution  of  Louis  the  Debonnaire,^  and  that  of  the  Em- 
peror Lotharius,  his  son,  would  not  allow.* 

The  laws  of  Charlemagne,  in  regard  to  the  establishment  of 
tithes,  were  a  work  of  necessity,  not  of  superstition — a  work,  in 
short,  in  which  religion  only  was  concerned. 

His  famous  division  of  the  tithes  into  four  parts,  for  the  re- 

c  Art.  6,  Baluzius's  edition,  p.  332.    It  829,   Baluzius's  edition,   p.  663;   against 

was  given  in  the  year  800.  those  who,  to  avoid  paying  tithes  neg- 

d  Held    under    Charlemagne,    in    the  lected  to  cultivate  the  lands,   etc.,  art. 

year  794.  5.     "  Nonis  quidem  et  decimis,  unde  et 

e  "  Experimento    enim    didicimus    in  genitor  noster  et  nos  frequenter  in  di- 

anno    quo    ilia    valida    fames    irrepsit,  versis   placitis  admonitionem   fecimus." 

ebullire   vacuas    annonas   a    dsemonibus  g  Among    others,    that    of    Lotharius. 

devoratas,  et  voces  exprobrationis  audi-  book  III.  tit.  3,  chap.  vi. 

tas,"    etc. — Baluzius's    edition,    p.    267,  h  In  the  year  829,  art.  7,  in  Baluzius, 

art.  23.  torn.  i.  p.  663. 

/  See  among  the  rest  the  Capitulary  t  In  the  law  of  the  Lombards,  book 

of  Louis  the   Debonnaire,   in  the  year  III.  tit.  3,  sec.  8. 


24o  MONTESQUIEU 

pairing  of  the  churches,  for  the  poor,  for  the  bishop,  and  for 
the  clergy,  manifestly  proves  that  he  wished  to  give  the  Church 
that  fixed  and  permanent  status  which  she  had  lost. 

His  will  shows  that  he  was  desirous  of  repairing  the  mis- 
chief done  by  his  grandfather,  Charles  Martel.;  He  made 
three  equal  shares  of  his  movable  goods ;  two  of  these  he  would 
have  divided  each  into  one-and-twenty  parts,  for  the  one-and- 
twenty  metropolitan  sees  of  his  empire;  each  part  was  to  be 
subdivided  between  the  metropolitan  and  the  dependent 
bishoprics.  The  remaining  third  he  distributed  into  four 
parts ;  one  he  gave  to  his  children  and  grandchildren,  another 
was  added  to  the  two-thirds  already  bequeathed,  and  the  other 
two  were  assigned  to  charitable  uses.  It  seems  as  if  he  looked 
upon  the  immense  donation  he  was  making  to  the  Church  less 
as  a  religious  act  than  as  a  political  distribution. 

13. — Of  the  Election  of  Bishops  and  Abbots 

As  the  Church  had  grown  poor,  the  kings  resigned  the  right 
of  nominating  to  bishoprics  and  other  ecclesiastic  benefices.^ 
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- 
pensation for  the  possessions  she  had  lost. 

Hence,  if  Louis  the  Debonnaire  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 ;  I  he  behaved  in 
the  same  manner  to  the  see  of  Rome  as  to  other  bishoprics. 

14. — Of  the  Fiefs  of  Charles  Martel 

I  shall  not  pretend  to  determine  whether  Charles  Martel, 
in  giving  the  church  lands  in  fief,  made  a  grant  of  them  for  life 
or  in  perpetuity.  All  I  know  is,  that  under  Charlemagne  m 
and  Lotharius  I »  there  were  possessions  of  that  kind  which 
descended  to  the  next  heirs,  and  were  divided  among  them. 

j  It  is  a  kind  of  codicil  produced  by  /  This    is    mentioned    in    the    famous 

Eginhard,    and    different   from    the   will  canon,    "  ego    Ludpvicus,"    which    is    a 

itself,  which  we  find  in  Goldastus  and  palpable   forgery;    it   is   Baluzius's   edi- 

Baluzius.  tion,  p.  591,  in  the  year  817. 

k  See  the  Capitulary  of   Charlemagne  .    m  As  appears  by  his  capitulary,  in  the 

in  the  year  803,   art.   2,   Baluzius's  edi-  year   801,   art.    17,    in   Baluzius,   torn.   i. 

tion,  p.  379;  and  the  Edict  of  Louis  the  p.  360. 

Debonnaire,  in  the  year  834,  in  Goldast,  n  See  his  constitution,  inserted  m  the 

"  Constit.  Imperial/'  torn.  i.  code  of  the  Lombards,   book   III.   tit. 

i,  sec.  44- 


THE  SPIRIT  OF  LAWS  241 

I  find,  moreover,  that  one  part  of  them  was  given  as  allodia, 
and  the  other  as  fiefs.o 

I  noticed  that  the  proprietors  of  the  allodia  were  subject  to 
service  all  the  same  as  the  possessors  of  the  fiefs.  This,  with- 
out doubt,  was  partly  the  reason  that  Charles  Martel  made 
grants  of  allodial  lands  as  well  as  of  fiefs. 

15. — The  same  Subject  continued 

We  must  observe,  that  the  fiefs  having  been  changed  into 
church  lands,  and  these  again  into  fiefs,  they  borrowed  some- 
thing of  each  other.  Thus  the  church  lands  had  the  privileges 
of  fiefs,  and  these  had  the  privileges  of  church  lands.  Such 
were  the  honorary  rights  of  churches,  which  began  at  that 
time./>  And  as  those  rights  have  ever  been  annexed  to  the 
judiciary  power,  in  preference  to  what  is  still  called  the  fief, 
it  follows  that  the  patrimonial  jurisdictions  were  established  at 
the  same  time  as  those  very  rights. 

1 6. — Confusion  of  the  Royalty  and  Mayoralty.     The  Second 

Race 

The  connection  of  my  subject  has  made  me  invert  the  order 
of  time,  so  as  to  speak  of  Charlemagne  before  I  had  mentioned 
the  famous  epoch  of  the  translation  of  the  crown  to  the  Carlo- 
vingians  under  King  Pepin ;  a  revolution  which,  contrary  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  regal  title  was  hereditary,  and  that  of  mayor  elective. 
Though  it  was  latterly  in  the  power  of  the  mayors  to  place  any 
of  the  Merovingians  on  the  throne,  they  had  not  yet  taken  a 
king  of  another  family;  and  the  ancient  law  which  fixed  the 
crown  in  a  particular  family  was  not  yet  erased  from  the  hearts 
of  the  Franks.  The  king's  person  was  almost  unknown  in 
the  monarchy;  but  royalty  was  not.  Pepin,  son  of  Charles 

o  See  the  above  constitution,  and  the  also    the    first    Capitulary    of    Charle- 

Capitulary  of  Charles  the  Bald,  in  the  magne,  "  incerti  anni,"  arts.  49  and  56. 

year  846,  chap.  xx.  "  in  Villa  Sparnaco,"  Baluzius's  edition,  torn.  i.  p.  519. 

Baluzius's   edition,   torn.    ii.   p.   31,   and  p  See   the   Capitularies,    book    v.    art. 

that  of  the  year  853,  chaps,  lii.  and  v.,  44,  and  the  Edict  of  Pistes  in  the  year 

in    the    Synod    of    Soissons,    Baluzius's  869,   arts.   8  and  o,   where   we   find   the 

edition,  torn.  ii.  p.  54;  and  that  of  the  honorary  rights  of  the  lords  established, 

year  854,  "  apud  Attiniacum,"  chap.  x.  in  the  same  manner  as  they  are  at  this 

Baluzius's  edition,  torn.  ii.  p.  70.     See  very  day. 

VOL.  II.— 16 


242  MONTESQUIEU 

Martel,  thought  it  would  be  proper  to  confound  those  two 
titles,  a  confusion  which  would  leave  it  a  moot  point  whether 
the  new  royalty  was  hereditary  or  not ;  and  this  was  sufficient 
for  him  who  to  the  regal  dignity  had  joined  a  great  power.  The 
mayor's  authority  was  then  blended  with  that  of  the  king.  In 
the  mixture  of  these  two  authorities  a  kind  of  reconciliation  was 
made ;  the  mayor  had  been  elective,  and  the  king  hereditary ; 
the  crown  at  the  beginning  of  the  second  race  was  elective, 
because  the  people  chose ;  it  was  hereditary,  because  they  al- 
ways chose  in  the  same  family  .a 

Father  le  Cointe,  in  spite  of  the  authority  of  all  ancient  rec- 
ords/ denies  that  the  Pope  authorized  this  great  change ;  and 
one  of  his  reasons  is  that  he  would  have  committed  an  injus- 
tices A  fine  thing  to  see  a  historian  judge  of  that  which  men 
have  done  by  that  which  they  ought  to  have  done;  by  this 
mode  of  reasoning  we  should  have  no  more  history. 

Be  that  as  it  may,  it  is  very  certain  that  immediately  after 
Duke  Pepin's  victory,  the  Merovingians  ceased  to  be  the  reign- 
ing family.  When  his  grandson,  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  fix  the  moment  of  the  revolution, 
that  we  may  not  be  mistaken  in  looking  upon  that  as  a  revolu- 
tion which  was  only  a  consequence  of  it. 

When  Hugh  Capet  was  crowned  king  at  the  beginning  of 
the  third  race,  there  was  a  much  greater  change,  because  the 
kingdom  passed  from  a  state  of  anarchy  to  some  kind  of  gov- 
ernment; but  when  Pepin  took  the  crown  there  was  only  a 
transition  from  one  government  to  another,  which  was  iden- 
tical. 

When  Pepin  was  crowned  king  there  was  only  a  change  of 
name ;  but  when  Hugh  Capet  was  crowned  there  was  a  change 
in  the  nature  of  the  thing,  because  by  uniting  a  great  fief  to  the 
crown  the  anarchy  ceased. 

<7  See   the    will    of    Charlemagne,    and  r  The     anonymous     "  Chronicle "     in 

the   division   which    Louis   the    Debon-  the  year  752;  and  "  Chronic.  Centul."  in 

naire  made  to  his  children   in   the  as-  the  year  754. 

sembly  of  the   states   held   at   Quierzy,  s "  Fabella  quse  post  Pippmi  mortem 

related     by    Goldast,     "  quern    populus  excogritata    est,    aequitati    ac     sanctitati 

eligere  velit,   ut   patri   suo   succedat   in  Zachariae    papae   plurimum    adversatur." 

regni  haereditate.  — "  Ecclesiastic  Annals  of  the  French,  . 

torn.  ii.  p.  319. 


I 


THE  SPIRIT  OF  LAWS  243 

When  Pepin  was  crowned  the  title  of  king  was  united  to  the 
highest  office ;  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  by  the  formulary  of  Pepin's  coronation  that  Charles 
and  Carloman  were  also  anointed,*  and  blessed,  and  that  the 
French  nobility  bound  themselves,  on  pain  of  interdiction  and 
excommunication,  never  to  choose  a  prince  of  another  family M 

It  appears  by  the  wills  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  was 
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.*'  We  havb 
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  Metz,w 
according  to  the  observation  of  Baluzius.-*"  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  I  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 

/  Vol.     5th     of    the     "  Historians     of  v  In  the  year  768. 

France  "  by  the  Benedictins,  p.  9.  w  Tom.  ii.  "  lectionis  antiquae." 

« "  Ut     unquam     de     alterius     lumbis  x  Edition  of  the   Capitularies,  torn.   t. 

regem  in  sevo  praesumant  eligere  sed  ex  p.  188, 

ipsorum."     Vol.  sth  of  the  "  Historians  y  In    the    ist    Capitulary   of    the   year 

of  France,"  p.  10.  806.     Baluzius's  edition,  p.  439,  art.  5. 


244  MONTESQUIEU 

be  willing  to  choose  as  a  fit  person  to  succeed  to  his  father's 
kingdom,  his  uncles  shall  consent  to  it." 

This  same  regulation  is  to  be  met  with  in  the  partition  which 
Louis  the  Debonnaire  made  among  his  three  children,  Pepin, 
Louis,  and  Charles,  in  the  year  837,  at  the  assembly  of  Aix-la- 
Chapelle;*  and  likewise  in  another  partition,  made  twenty 
years  before,  by  the  same  Emperor,  in  favor  of  Lotharius, 
Pepin,  and  Louis.a  We  may  likewise  see  the  oath  which 
Louis  the  Stammerer  took  at  Compiegne  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, 
for  the  election  of  Louis,  son  of  Boson,  to  the  kingdom  of 
Aries. c  Louis  was  there  elected,  and  the  principal  reason  they 
gave  for  choosing  him  is  that  he  was  of  the  imperial  family,** 
that  Charles  the  Fat  had  conferred  upon  him  the  dignity  of 
king,  and  that  the  Emperor  Arnold  had  invested  him  by  the 
sceptre,  and  by  the  ministry  of  his  ambassadors.  The  kingdom 
of  Aries,  like  the  other  dismembered  or  dependent  kingdoms 
of  Charlemagne,  was  elective  and  hereditary. 

1 8. — Charlemagne 

Charlemagne's  intention  was  to  restrain  the  power  of  the 
nobility  within  proper  bounds,  and  to  hinder  them  from  op- 
pressing the  freemen  and  the  clergy.  He  balanced  the  several 
orders  of  the  state,  and  remained  perfect  master  of  them  all. 
The  whole  was  united  by  the  strength  of  his  genius.  He  led  the 
nobility  continually  from  one  expedition  to  another,  giving 
them  no  time  to  form  conspiracies,  but  employing  them  en- 
tirely in  the  execution  of  his  designs.  The  empire  was  sup- 
ported by  the  greatness  of  its  chief ;  the  prince  was  great,  but 
the  man  was  greater.  The  kings,  his  children,  were  his  first 
subjects,  the  instruments  of  his  power  and  patterns  of  obedi- 
ence. He  made  admirable  laws ;  and,  what  is  more,  he  took 
care  to  see  them  executed.  His  genius  diffused  itself  through 

*In    Goldast,    "  Constit.    Imperial,"  senior  frater  in  loco  fratris  et  filii  susci- 

tom.  ii.  p.  TO.  piat." 

ti  a  Baluzius *s    edition,    p.    574,    art.    14.  &  Capitulary   of   the   year   877.     Balu- 

Si  _   vero   ^aliquis     illorum     decedens  zius's  edition,  p.  272. 

lejritimos  filios  reliquerit,  non  inter  eos  c  In      Father     Labbe's     "  Councils," 

potestas     ipsa     dividatur,     sed     potius  torn.    ix.    col.    424;    and    in    Dumont's 

populus  pariter  conveniens.  unum  ex  iis  "  Corp.   Diplomat."  torn.  ii.  art.  36. 

quern  dominus  voluerit  ehgat,  et  hunc  d  By  the  mother's  side. 


THE  SPIRIT  OF  LAWS  245 

every  part  of  the  empire.  We  find  in  this  prince's  laws  a  com- 
prehensive spirit  of  foresight,  and  a  certain  force  which  carries 
all  before  it.  All  pretexts  for  evading  the  duties  are  removed, 
neglects  are  corrected,  abuses  reformed  or  prevented.*  He 
knew  how  to  punish,  but  he  understood  much  better  how  to 
pardon.  He  was  great  in  his  designs,  and  simple  in  the  execu- 
tion of  them.  No  prince  ever  possessed  in  a  higher  degree  the 
art  of  performing  the  greatest  things  with  ease,  and  the  most 
difficult  with  expedition.  He  was  continually  visiting  the  sev- 
eral parts  of  his  vast  empire,  and  made  them  feel  the  weight 
of  his  hand  wherever  it  fell.  New  difficulties  sprang  up  on 
every  side,  and  on  every  side  he  removed  them.  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,  too  much  his  passion  for  the 
fair  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  his  family ;  and  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- 
tons on  his  demesnes,  and  the  superfluous  garden-stuff,  should 
be  sold ;  £  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 

e  See   his   3d    Capitulary   of  the   year  the  year  800;   his  2d   Capitulary  of  the 

811,  p.  486,  arts,   i,  2,  3,  4,  5,  6,  7,  and  year  813,   arts.    6  and    19;   and   the   sth 
8;   and   the   ist   Capitulary  of  the  year  book  of  the  Capitularies,  art.  303. 

812,  p.   490,   art.    i ;   and   the   Capitulary  £ "  Capitul.    de    Villis,"   art.   39.     See 
of  the  year  812,  p.  494,  arts.  9  and  n,  this  whole  Capitulary,  which  is  a  mas- 
etc.  terpiece  of  prudence,  good  administra- 

f  See  the  "  Capitulary  de  Villis  "  in       tion,  and  economy. 


246  MONTESQUIEU 

clergy.  For  this  reason  they  erected  a  great  number  of  bishop- 
rics in  Germany  and  endowed  them  with  very  large  fiefs./t  It 
appears  by  some  charters  that  the  clauses  containing  the  pre- 
rogatives of  those  fiefs  were  not  different  from  such  as  were 
commonly  inserted  in  those  grants,*  though  at  present  we  find 
the  principal  ecclesiastics  of  Germany  invested  with  a  sovereign 
power.  Be  that  as  it  may,  these  were  some  of  the  contrivances 
they  used  against  the  Saxons.  That  which  they  could  not 
expect  from  the  indolence  or  supineness  of  vassals  they  thought 
they  ought  to  expect  from  the  sedulous  attention  of  a  bishop. 
Besides,  a  vassal  of  that  kind,  far  from  making  use  of  the  con- 
quered people  against  them,  would  rather  stand  in  need  of  their 
assistance  to  support  themselves  against  their  own  people. 

20. — Louis   the  Debonnaire 

When  Augustus  Caesar  was  in  Egypt  he  ordered  Alexan- 
der's tomb  to  be  opened ;  and  upon  their  asking  him  whether 
he  was  willing  they  should  open  the  tombs  of  the  Ptolemies,  he 
made  answer  that  he  wanted  to  see  the  king,  and  not  the  dead. 
Thus,  in  the  history  of  the  second  race,  we  are  continually 
looking  for  Pepin  and  Charlemagne ;  we  want  to  see  the  kings, 
and  not  the  dead. 

A  prince  who  was  the  sport  of  his  passions,  and  a  dupe  even 
to  his  virtues ;  a  prince  who  never  understood  rightly  either  his 
own  strength  or  weakness ;  a  prince  who  was  incapable  of  mak- 
ing himself  either  feared  or  beloved ;  a  prince,  in  fine,  who  with 
few  vices  in  his  heart  had  all  manner  of  defects  in  his  under- 
standing, took  the  reins  of  the  empire  into  his  hands  which  had 
been  held  by  Charlemagne. 

At  a  time  when  the  whole  world  is  in  tears  for  the  death  of  his 
father,  at  a  time  of  surprise  and  alarm,  when  the  subjects  of  that 
extensive  empire  all  call  upon  Charles  and  find  him  no  more; 
at  a  time  when  he  is  advancing  with  all  expedition  to  take  posses- 
sion of  his  father's  throne,  he  sends  some  trusty  officers  before 
him  in  order  to  seize  the  persons  of  those  who  had  contributed 
to  the  irregular  conduct  of  his  sisters.  This  step  was  productive 

fc  See  among  others  the  foundation  of  «  For  instance,  the  prohibition  to  the 
the  archbishopric  of  Bremen,  in  the  king's  judges  against  entering  upon  the 
Capitulary  of  the  year  789.  Baluzius's  territory  to  demand  the  freda,  and 
edition,  p.  245.  other  duties.  I  have  said  a  good  deal 

concerning  this  in  the  preceding  book. 


THE  SPIRIT  OF  LAWS  247 

of  the  most  terrible  catastrophes./  It  was  imprudent  and  pre- 
cipitate. He  began  with  punishing  domestic  crimes  before  he 
reached  the  palace;  and  with  alienating  the  minds  of  his  subjects 
before  he  ascended  the  throne. 

His  nephew,  Bernard,  King  of  Italy,  having  come  to  implore 
his  clemency,  he  ordered  his  eyes  to  be  put  out,  which  proved 
the  cause  of  that  prince's  death  a  few  days  after,  and  created 
Louis  a  great  many  enemies.  His  apprehension  of  the  conse- 
quence induced  him  to  shut  his  brothers  up  in  a  monastery ;  by 
which  means  the  number  of  his  enemies  increased.  These  two 
last  transactions  were  afterwards  laid  to  his  charge  in  a  judicial 
manner  ,6  and  his  accusers  did  not  fail  to  tell  him  that  he  had 
violated  his  oath  and  the  solemn  promises  which  he  had  made  to 
his  father  on  the  day  of  his  coronation./ 

After  the  death  of  the  Empress  Hermengarde,  by  whom  he 
had  three  children,  he  married  Judith,  and  had  a  son  by  that 
princess;  but  soon  mixing  all  the  indulgence  of  an  old  husband, 
with  all  the  weakness  of  an  old  king,  he  flung  his  family  into  a 
disorder  which  was  followed  by  the  downfall  of  the  monarchy. 

He  was  continually  altering  the  partitions  he  had  made  among 
his  children.  And  yet  these  partitions  had  been  confirmed  each 
in  their  turn  by  his  own  oath,  and  by  those  of  his  children  and 
the  nobility.  This  was  as  if  he  wanted  to  try  the  fidelity  of  his 
subjects;  it  was  endeavoring  by  confusion,  scruples,  and  equivo- 
cation, to  puzzle  their  obedience;  it  was  confounding  the  differ- 
ent rights  of  those  princes,  and  rendering  their  titles  dubious, 
especially  at  a  time  when  there  were  but  few  fortresses,  and  when 
the  principal  bulwark  of  authority  was  the  fealty  sworn  and  ac- 
cepted. 

The  Emperor's  children,  in  order  to  preserve  their  shares, 
courted  the  clergy,  and  granted  them  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  m  represents  to  Louis  the  Debonnaire  as  having  sent 
Lotharius  to  Rome,  in  order  to  have  him  declared  emperor;  and 
that  he  had  made  a  division  of  his  dominions  among  his  children, 

j  The  anonymous  author  of  the  "  Life  /  He  directed  him  to  show  unlimited 

of    Louis     the     Debonnaire,"     in     Du-  clemency  (indeficientem  misericordiam) 

chesne's  Collection,  torn.  ii.  p.  295.  to    his    sisters,    his    brothers,    and    his 

k  See  his  trial  and  the  circumstances  nephews.     Tegan    in   the    Collection   «4 

of  his  deposition,  in  Duchesne's  Collec-  Duchesne,  torn.  ii.  p.  276. 

tion,  torn.  ii.  p.  133.  m  See  his  letters. 


248  MONTESQUIEU 

after  having  consulted  heaven  by  three  days'  fasting  and  praying. 
What  defence  could  such  a  weak  prince  make  against  the  attack 
of  superstition?  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  difficulty  at  first  in  conceiving  how  a  prince  who  was 
possessed  of  several  good  qualities,  who  had  some  knowledge, 
who  had  a  natural  disposition  to  virtue,  and  who,  in  short,  was 
the  son  of  Charlemagne,  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,  they 
would  have  utterly  completed  it,  if  his  children,  who  in  the  main 
were  more  honest  than  they,  had  been  steady  in  their  design,  and 
could  have  agreed  among  themselves. 

21. — The  same  Subject  continued 

The  strength  and  solidity  for  which  the  kingdom  was  im- 
debted  to  Charlemagne  still  subsisted  under  Louis  the  Debon- 
naire,  in  such  a  degree  as  enabled  the  state  to  support  its  gran- 
deur and  to  command  respect  from  foreign  nations.  The  prince's 
understanding  was  weak,  but  the  nation  was  warlike.  His  au- 
thority declined  at  home,  though  there  seemed  to  be  no  diminu- 
tion of  power  abroad. 

Charles  Martel,  Pepin,  and  Charlemagne  were  in  succession 
rulers  of  the  monarchy.  The  first  flattered  the  avarice  of  the 
soldiers:  the  other  two  that  of  the  clergy.  Louis  the  Debon- 
naire  displeased  both. 

In  the  French  constitution,  the  whole  power  of  the  state  was 
lodged  in  the  hands  of  the  king,  the  nobility,  and  clergy.  Charles 
Martel,  Pepin,  and  Charlemagne  joined  sometimes  their  interest 
with  one  of  those  parties  to  check  the  other  and  generally  with 
both;  but  Louis  the  Debonnaire  could  gain  the  affection  of 
neither.  He  disobliged  the  bishops  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  in  those  days,  being 

n  See  his  trial  and  the  circumstances  laborabat,   ut  tasderet  eos  vita  ipsius," 

of  his  deposition  in  Duchesne's  Collec-  says    this    anonymous    author    in    Du« 

tion,  torn.  ii.  p.  331.     See  also  his  life  chesne,  torn.  ii.  p.  307. 
written  by  Tegan:   "  Tanto  enim  odio 


THE  SPIRIT  OF  LAWS  249 

accustomed  to  take  the  field  against  the  Saracens  and  the  Saxons, 
had  very  little  of  the  spirit  of  religions  On  the  other  hand,  as 
he  had  no  longer  any  confidence  in  the  nobility,  he  promoted 
mean  people,/*  turning  the  nobles  out  of  their  employments  at 
court  to  make  room  for  strangers  and  upstarts.^  By  this  means 
the  affection  of  the  two  great  bodies  of  the  nobility  and  clergy 
were  alienated  from  their  prince,  the  consequence  of  which  was  a 
total  desertion. 

22. — The  same  Subject  continued 

But  what  chiefly  contributed  to  weaken  the  monarchy  was  the 
extravagance  of  this  prince  in  alienating  the  crown  demesnes.'' 
And  here  it  is  that  we  ought  to  listen  to  the  account  of  Nitard, 
one  of  our  most  judicious  historians,  a  grandson  of  Charlemagne, 
strongly  attached  to  Louis  the  Debonnaire,  and  who  wrote  his 
history  by  order  of  Charles  the  Bald. 

He  says,  "  that  one  Adelhard  for  some  time  gained  such  an 
ascendant  over  the  Emperor,  that  this  prince  conformed  to  his 
will  in  everything;  that  at  the  instigation  of  this  favorite  he  had 
granted  the  crown  lands  to  everybody  that  asked  thenv  by 
which  means  the  state  was  ruined/'  t  Thus  he  did  the  same  mis- 
chief throughout  the  empire,  as  I  observed  he  had  done  in  Aqui- 
taine;  « the  former  Charlemagne  redressed,  but  the  latter  was  past 
all  remedy. 

The  state  was  reduced  to  the  same  debility  in  which  Charles 
Martel  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  treasury  was  so  exhausted  that  in  the  reign  of  Charles  the 
Bald,  no  one  could  continue  in  his  employment,  nor  be  safe  in 
his  person  without  paying  for  it.^  When  they  had  it  in  their 
power  to  destroy  the  Normans,  they  took  money  to  let  them 
escape:  w  and  the  first  advice  which  Hincmar  gives  to  Louis  the 

o  The  anonymous  author  of  the  "  Life  hoc  dm  tempore." — Tegan,  "  de  Gestis 

of     Louis     the     Debonnaire,"     in     Du-  Ludovici  Pii." 
chesne's  Collection,  torn.  ii.  p.  298.  s "  Hinc    libertates,    hinc    publica    in 

p  Tegan   says   that   what   seldom   hap-  propriis     usibus     distribuere     suasit." — 

pened   under  Charlemagne  was  a  com-  Nitard,  lib.  iy.   "  prope  finem." 
mon  practice  under  Louis.  t  "  Rempublicam   penitus  annullavit." 

q  Being  desirous  to  check  the  nobility,  — Ibid. 

he  promoted  one  Bernard  to  the  place  u  See  book  XXX.  chap.  13. 

of    chamberlain,    by    which    the    great  v  Hincmar,  let.  i,  to  Louis  the  Stam- 

Iqrds   were   exasperated   to   the   highest  merer, 
pitch.  w  See  the  fragment  of  the  "  Chronicle 

r  "Villas  regias  quse  erant  sui  et  ayi  of  the  Monastery  of  St.  Sergius  of  An- 

et  tritayi,   fidelibus  suis  tradidit  eas  in  gers,"  in  Duchesne,  torn.  ii.  p.  401. 
possessiones     sempiternas;     fecit    enim 


250  MONTESQUIEU 

Stammerer  is  to  ask  of  the  assembly  of  the  nation  a  sufficient 
allowance  to  defray  the  expenses  of  his  household. 

23. — The  same  Subject  continued 

The  clergy  had  reason  to  repent  the  protection  they  had 
granted  to  the  children  of  Louis  the  Debonnaire.  This  prince, 
as  I  have  already  observed,  had  never  given  any  of  the  church 
lands  by  precepts  to  the  laity ;  x  but  it  was  not  long  before  Lo- 
tharius  in  Italy,  and  Pepin  in  Aquitaine,  quitted  Charlemagne's 
plan,  and  resumed  that  of  Charles  Martel.  The  clergy  had  re- 
course to  the  Emperor  against  his  children,  but  they  themselves 
had  weakened  the  authority  to  which  they  appealed.  In  Aqui- 
taine some  condescension  was  shown,  but  none  in  Italy. 

The  civil  wars  with  which  the  life  of  Louis  the  Debonnaire 
had  been  embroiled  were  the  seed  of  those  which  followed  his 
death.  The  three  brothers,  Lotharius,  Louis,  and  Charles  en- 
deavored each  to  bring  over  the  nobility  to  their  party  and  to 
make  them  their  tools.  To  such  as  were  willing  therefore  to  fol- 
low them  they  granted  church  lands  by  precepts ;  so  that  to  gain 
the  nobility,  they  sacrificed  the  clergy. 

We  find  in  the  Capitularies  y  that  those  princes  were  obliged  to 
yield  to  the  importunity  of  demands,  and  that  what  they  would 
not  often  have  freely  granted  was  extorted  from  them :  we  find 
that  the  clergy  thought  themselves  more  oppressed  by  the  nobil- 
ity than  by  the  kings.  It  appears  that  Charles  the  Bald,*  became 
the  greatest  enemy  of  the  patrimony  of  the  clergy,  whether  he 
was  most  incensed  against  them  for  having  degraded  his  father 
on  their  account,  or  whether  he  was  the  most  timorous.  Be 
that  as  it  may,  we  meet  with  continual  quarrels  in  the  Capitula- 
ries^ between  the  clergy  who  demanded  their  estates  and  the  no- 

x  See    what    the    bishops    say    in    the  had  set  the  King  against  the  bishops, 

Synod  of  the  year  845,  "  apud  Teudonis  insomuch   that  he   expelled   them  from 

villam,"  art.  4.  the    Assembly;    a    few    of    the    canons 

y  See    the    Synod    in    the    year    845,  enacted  in  council  were  picked  out,  and 

"  apud    Teudonis   villam,"    arts.    3    and  the  prelates  were  told  that  these  were 

4.  which  gives  a  very  exact  description  the    only    ones    which    should    be    ob- 

of    things;    as    also,    that   of    the    same  served;  nothing  was  granted  them  that 

year,  held  at  the  palaces  of  Vernes,  art.  could  be  refused.     See  arts.  20,  21,  and 

12,  and  the  Synod  of  Beauvais,  also  in  22.     See  also  the  letter  which  the  bish- 

the   same   year,    arts.    3,   4,    and   6,    and  ops  assembled  at  Rheims  wrote  in  the 

the  Capitulary  in  "  Villa  Sparnaco  "  in  year   858   to    Louis,    King   of   Germany, 

the  year  846,  art.  20,  and  the  letter  which  and   the    Edict   of    Pistes,    in   the   year 

the  bishops  assembled  at  Rheims  wrote  864,  art.  5. 

in    858,    to    Louis,    King    of    Germany,  a  See  this  very  Capitulary  in  the  year 

art.  8.  846,  "  in  Villa  Sparnaco."     See  also  the 

*  See  the  Capitulary  in  "  Villa  Spar-  Capitulary  of  the  assembly  held  "  apud 

naco,"   in  the  year  846.     The  nobility  Marsnam "    in    the    year    847,    art.    4, 


THE  SPIRIT  OF  LAWS  251 

bility  who  refused  or  deferred  to  restore  them;  and  the  kings 
acting  as  mediators. 

The  situation  of  affairs  at  that  time  is  a  spectacle  really  de- 
serving of  pity.  While  Louis  the  Debonnaire  made  immense 
donations  out  of  his  demesnes  to  the  clergy,  his  children  dis- 
tributed the  church  lands  among  the  laity.  The  same  prince 
with  one  hand  founded  new  abbeys  and  despoiled  old  ones.  The 
clergy  had  no  fixed  state;  one  moment  they  were  plundered, 
another  they  received  satisfaction ;  but  the  crown  was  continually 
losing. 

Toward  the  close  of  the  reign  of  Charles  the  Bald,  and  from 
that  time  forward,  there  was  an  end  of  the  disputes  of  the  clergy 
and  laity,  concerning  the  restitution  of  church  lands.  The  bish- 
ops, indeed,  breathed  out  still  a  few  sighs  in  their  remonstrances 
to  Charles  the  Bald,  which  we  find  in  the  Capitulary  of  the  year 
856,  and  in  the  letter  they  wrote  to  Louis,  King  of  Germany,  in 
the  year  858:  b  but  they  proposed  things,  and  challenged  prom- 
ises, so  often  eluded,  that  we  plainly  see  they  had  no  longer  any 
hopes  of  obtaining  their  desire. 

All  that  could  be  expected  then  was  to  repair  in  general  the 
injuries  done  both  to  church  and  stated  The  kings  engaged  not 
to  deprive  the  nobility  of  their  freemen,  and  not  to  give  away  any 
more  church  lands  by  precepts,**  so  that  the  interests  of  the 
clergy  and  nobility  seemed  then  to  be  united. 

The  dreadful  depredations  of  the  Normans,  as  I  have  already 
observed,  contributed  greatly  to  put  an  end  to  those  quarrels. 

The  authority  of  our  kings  diminishing  every  day,  both  for 
the  reasons  already  given  and  those  which  I  shall  mention  here- 
after, they  imagined  they  had  no  better  resource  left,  than  to 
resign  themselves  into  the  hands  of  the  clergy.  But  the  ecclesias- 
tics had  weakened  the  power  of  the  kings,  and  these  had  dimin- 
ished the  influence  of  the  ecclesiastics. 

In  vain  did  Charles  the  Bald  and  his  successors  call  in  the 

wherein  the  clergy  reduced  themselves  the  bishops  assembled  at  Rheims  wrote 

to  demand  only  the  restitution  of  what  in  the  year  858,  to  Louis,  King  of  Ger- 

they  had  been  possessed  of  under  Louis  many,  art.  8. 

the   Debonnaire.     See  also  the  Capitu-  b  Art.  8. 

lary  of  the  year  851,  "  apud  Marsnanij"  c  See  the  Capitulary  of  the  year  852, 

arts.  6  and  7,  which  confirms  the  nobil-  arts.  6  and  7. 

ity  and  clergy  in  their  several   posses-  d  Charles  the  Bald,   in  the   Synod  of 

sions;   and  that  "  apud   Bonoilum,"   in  Soissons,  says,  that  he  "  had  promised 

the  year  856,  which   is  a  remonstrance  the  bishops  not  to  issue  any  more  pre- 

of  the  bishops  to  the  King,  because  the  cepts  relating  to  church  lands."    Capit- 

evils,  after  so  many  laws,  had  not  been  ulary  of  the  year  853,  art  IT,  Baluzius's 

redressed;  and.  in  fine,  the  latter  which  edition,  torn.  ii.  p.  56. 


252  MONTESQUIEU 

Church  to  support  the  state,  and  to  prevent  its  ruin ;  in  vain  did 
they  make  use  of  the  respect  which  the  commonalty  had  for  that 
body,^  to  maintain  that  which  they  should  also  have  for  their 
prince ;  f  in  vain  did  they  endeavor  to  give  an  authority  to  their 
laws  by  that  of  the  canons ;  in  vain  did  they  join  the  ecclesiastic 
with  the  civil  punishments  ;£  in  vain  to  counterbalance  the  au- 
thority of  the  count  did  they  give  to  each  bishop  the  title  of  their 
commissary  in  the  several  provinces :  h  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. 

24. — That  the  Freemen  were  rendered  capable  of  holding  Fiefs 

I  said  that  the  freemen  were  led  against  the  enemy  by  their 
count,  and  the  vassals  by  their  lord.  This  was  the  reason  that 
the  several  orders  of  the  state  balanced  each  other,  and  though 
the  king's  vassals  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  this  was  permitted :  i  and  I  find  that  this 
change  was  made  during  the  period  that  elapsed  from  the  reign 
of  Gontram  to  that  of  Charlemagne.  This  I  prove  by  the  com- 
parison which  may  be  made  between  the  Treaty  of  Andely,;  by 
Gontram,  Childebert,  and  Queen  Brunehaut,  and  the  partition 
made  by  Charlemagne  among  his  children,  as  well  as  a  like  par- 
tition by  Louis  the  Debonnaire.fc  These  three  acts  contain 
nearly  the  same  regulations  with  regard  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 
treaties  in  this  respect  are  very  much  alike. 

e  See   the    Capitulary   of    Charles   the  g  See  the  Synod  of  Pistes  in  the  year 

Bald,    "  apud    Saponarias,"   in   the  year  862,  art.  4,  and  the  Capitulary  of  Louis 

859,    art.    3:    "  Venilon,    whom    I    made  II,  "apud  vernis  palatium,"  in  the  year 

Archbishop    of    Sens,    has    consecrated  883,  arts.  4  and  5. 

me;  and  I  ought  not  to  be  expelled  the  h  Capitulary    of    the   year   876,    under 

kingdom    by    anybody,"    "  saltern    sine  Charles    the    Bald,    "  in    Synodo    Ponti- 

audientia   et  judicio   episcoporum,    quo-  gonensi,"   Baluzius's  edition,  art.   12. 

rum  ministerio  in  resrem  sum  consecra-  f  See    what    has    been    said    already, 

tus,    et    qui    throni    Dei    sunt    dicti,    in  Book   XXX.,  last  chapter  towards  the 

quibus    Deus    sedet,    et    per    quos    sua  end. 

decernit  judicia,   quorum   paternis   cor-  j  In  the  year  587,  in  Gregory  of  Tours, 

rectionibus    et    castigatoriis  judicfis   me  book  ix. 

subdere  fui  paratus  et  in  prsesenti  sum  k  See  the  following  chapter,  where  I 

subditus."  shall  speak  more  diffusely  of  those  par- 

/  See   the    Capitulary   of    Charles   the  titions;  and  the  notes  in  which  they  arc 

Bald,  "  de  Carisiaco,     in  the  year  857,  quoted. 
Baluzius's  edition,  torn.   ii.  p.  88,   sees. 
I,  2,  3,  4,  and  7. 


THE  SPIRIT  OF  LAWS 

But  as  to  what  concerns  the  freemen  there  is  a  vital  difference. 
The  Treaty  of  Andely  does  not  say  that  they  might  do  homage 
for  a  fief;  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  usage  had  been  introduced 
after  the  treaty  of  Andely,  whereby  the  freemen  had  become 
capable  of  this  great  privilege. 

This  must  have  happened  when  Charles  Martel,  after  distribut- 
ing the  church  lands  to  his  soldiers,  partly  in  fief,  and  partly  as 
allodia,  made  a  kind  of  revolution  in  the  feudal  laws.  It  is  very 
probable  that  the  nobility  who  were  seized  already  of  fiefs  found 
a  greater  advantage  in  receiving  the  new  grants  as  allodia;  and 
that  the  freemen  thought  themselves  happy  in  accepting  them  as 
fiefs. 

THE  PRINCIPAL  CAUSE  OF  THE  HUMILIATION  OF  THE 
SECOND  RACE 

25. — Changes  in  the  Allodia 

Charlemagne  in  the  partition/  mentioned  in  the  preceding 
chapter  ordained,  that  after  his  death  the  vassals  belonging  to 
each  king  should  be  permitted  to  receive  benefices  in  their  own 
sovereign's  dominion,  and  not  in  those  of  another \m  whereas 
they  may  keep  their  allodial  estates  in  any  of  their  dominions.** 
But  he  adds,o  that  every  freeman  might,  after  the  death  of  his 
lord,  do  homage  in  any  of  the  three  kingdoms  he  pleased,  as  well 
as  he  that  never  had  been  subject  to  a  lord.  We  find  the  same 
regulations  in  the  partition  which  Louis  the  Debonnaire  made 
among  his  children  in  the  year  817. 

But  though  the  freemen  had  done  homage  for  a  fief,  yet  the 
count's  militia  was  not  thereby  weakened:  the  freeman  was  still 
obliged  to  contribute  for  his  allodium,  and  to  get  people  ready 
for  the  service  belonging  to  it,  at  the  proportion  of  one  man  to 
four  manors ;  or  else  to  procure  a  man  that  should  do  the  duty 
of  the  fief  in  his  stead.  And  when  some  abuses  had  been  intro- 

/  In    the    year    806,    between    Charles,  o  In  Baluzius,  torn.  i.  p.  174.  "  Licen- 

Pepin,     and     Louis,    it    is    quoted    by  tiam    habeat    unusquisque    liber    homo 

Goldast,    and   by    Baluzius,   torn.    ii.    p.  qui  seniorum  non  habuerit,  cuicumque 

439-  ex  his  tribus  fratribus  voluerit,  se  com- 

m  Art.  IX.  p.  443,  which  is  agreeable  mendandi,"  art.  9.    See  also  the  division 

to  the  Treaty  of  Andely,  in  Gregory  of  made  by  the  same  Emperor,  in  the  year 

•Hours,  book  IX.  837,  art.  6,  Baluzius's  edition,  p.  686. 

n  Art.    10,    and    there    is    no    mention 
made  of  this  in  the  Treaty  of  And«ly. 


254  MONTESQUIEU 

duced  upon  this  head  they  were  redressed,  as  appears  by  the 
constitutions  of  Charlemagne,/'  and  by  that  of  Pepin,  King  of 
Italy,  which  explain  each  other.? 

The  remark  made  by  historians  that  the  battle  of  Fontenay 
was  the  ruin  of  the  monarchy  is  very  true;  but  I  beg  leave  to 
cast  an  eye  on  the  unhappy  consequences  of  that  day. 

Some  time  after  the  battle,  the  three  brothers,  Lotharius, 
Louis,  and  Charles  made  a  treaty/  wherein  I  find  some  clauses 
which  must  have  altered  the  whole  political  system  of  the  French 
government. 

In  the  declaration  •*  which  Charles  made  to  the  people  of  the 
part  of  the  treaty  relating  to  them,  he  says  that  every  freeman 
might  choose  whom  he  pleased  for  his  lord/  whether  the  king 
or  any  of  the  nobility.  Before  this  treaty  the  freeman  might  do 
homage  for  a  fief;  but  his  allodium  still  continued  under  the 
immediate  power  of  the  King,  that  is,  under  the  count's  jurisdic- 
tion; and  he  depended  on  the  lord  to  whom  he  vowed  fealty, 
only  on  account  of  the  fief  which  he  had  obtained.  After  that 
treaty  every  freeman  had  a  right  to  subject  his  allodium  to  the 
King,  or  to  any  other  lord,  as  he  thought  proper.  The  question 
is  not  in  regard  to  those  who  put  themselves  under  the  protection 
of  another  for  a  fief,  but  to  such  as  changed  their  allodial  into  a 
feudal  land,  and  withdrew  themselves,  as  it  were,  from  the  civil 
jurisdiction  to  enter  under  the  power  of  the  King,  or  of  the  lord 
whom  they  thought  proper  to  choose. 

Thus  it  was,  that  those  who  formerly  were  only  under  the 
King's  power,  as  freemen  under  the  count,  became  insensibly 
vassals  one  of  another,  since  every  freeman  might  choose  whom 
he  pleased  for  his  lord,  the  King  or  any  of  the  nobility. 

2.  If  a  man  changed  an  estate  which  he  possessed  in  perpetu- 
ity into  a  fief,  this  new  fief  could  no  longer  be  only  for  life. 
Hence  we  see,  a  short  time  after,  a  general  law  for  giving  the 
fiefs  to  the  children  of  the  present  possessor:"  it  was  made  by 
Charles  the  Bald,  one  of  the  three  contracting  princes. 

P  In  the  year  811,   Baluzius's  edition,  of    the    Lombards,    book    III.     tit    9, 

torn.  i.  p.  486,  arts.  7  and  8,  and  that  of  chap.  ix. 

the  year  812,  ibid.  p.  490,  art.   i.     "  Ut  r  In  the  year  847,   quoted  by  Aubert 

omnis   liber   homo   qui   quatuor   mansos  le  Mire,  and  Baluzius,  torn.  ii.  page  42. 

vestitos  de  proprio  suo,  sive  de  alicujus  "  Conventus  apud  Marsnam." 

beneficio,    habet,    ipse    se    praeparet,    et  s "  Adnunciatio." 

ipse  in  hostem  pergat  sive  cum  seniore  t "  Ut     unusquisque     liber     homo     in 

suo,"   etc.      See   also   the   Capitulary   of  nostro    regno    seniorem    quern    voluerit 

the  year  807,  Baluzius's  edition,  torn.  i.  in  nobis  et  in  nostris  fidelibus  accipiat," 

p.  458.  art.  2,  of  the  Declaration  of  Charles. 

N    q  In  the  year  793,  inserted  in  the  law  «  Capitulary   of   the   year   877,    tit.    53, 


THE  SPIRIT  OF  LAWS  255 

What  has  been  said  concerning  the  liberty  every  freeman  had 
in  the  monarchy,  after  the  treaty  of  the  three  brothers,  of  choos- 
ing whom  he  pleased  for  his  lord,  the  King  or  any  of  the  nobility, 
is  confirmed  by  the  acts  subsequent  to  that  time. 

In  the  reign  of  Charlemagne,^  when  the  vassal  had  received  a 
present  of  a  lord,  were  it  worth  only  a  sou,  he  could  not  after- 
wards quit  him.  But  under  Charles  the  Bald,  the  vassals  might 
follow  what  was  agreeable  to  their  interests  or  their  inclination 
with  entire  safety ;  w  and  so  strongly  does  this  prince  explain 
himself  on  the  subject  that  seems  rather  to  encourage  them  in 
the  enjoyment  of  this  liberty  than  to  restrain  it.  In  Charle- 
magne's time,  benefices  were  rather  personal  than  real;  after- 
wards they  became  rather  real  than  personal. 

26. — Changes  in  the  Fiefs 

The  same  changes  happened  in  the  fiefs  as  in  the  allodia.  We 
find  by  the  Capitulary  of  Compiegne,*  under  King  Pepin,  that 
those  who  had  received  a  benefice  from  the  King  gave  a  part  ofw 
this  benefice  to  different  bondmen;  but  these  parts  were  not 
distinct  from  the  whole.  The  King  revoked  them  when  he  re- 
voked the  whole;  and  at  the  death  of  the  King's  vassal  the  rear- 
vassal  lost  also  his  rear-fief:  and  a  new  beneficiary  succeeded, 
who  likewise  established  new  rear-vassals.  Thus  it  was  the 
person  and  not  the  rear-fief  that  depended  on  the  fief;  on  the 
one  hand,  the  rear-vassal  returned  to  the  King  because  he  was 
not  tied  forever  to  the  vassal ;  and  the  rear-fief  returned  also  to 
the  King,  because  it  was  the  fief  itself  and  not  a  dependence  of  it. 

Such  was  the  rear-vassalage,  while  the  fiefs  were  during  pleas- 
ure ;  and  such  was  it  also  while  they  were  for  life.  This  was  al- 
tered when  the  fiefs  descended  to  the  next  heirs,  and  the  rear- 
fiefs  the  same.  That  which  was  held  before  immediately  of  the 
King  was  held  now  mediately ;  and  the  regal  power  was  thrown 

arts.  9  and  10,  "  apud  Carisiacum,"  edition,  torn.  ii.  p.  83,  in  which  the 

"  similiter  et  de  nostris  vassallis  faci-  King,  together  with  the  lords  spiritual 

endum  est,"  etc.  This  capitulary  re-  and  temporal,  agreed  to  this:  "  Et  si 

lates  to  another  of  the  same  year,  and  aliquis  de  vobis  talis  est  cui  suus  senio- 

of  the  same  place,  art.  3.  ratus  non  placet,  et  illi  simulat  ut  ad 

v  Capitulary  of  Aix-la-Chapelle,  in  alium  seniorem  melius  quam  ad  ilium 

the  year  813,  art.  16,  "quod  nullus  acaptare  possit,  veniat  ad  ilium,  et  ipse 

seniorem  suum  dimittat  post  quam  ab  tranquillo  et  pacifico  animo  donet  illi 

eo  acceperit  valente  solidum  unum ";  commeatum  .  .  .  et  quod  Deus  illi 

and  the  Capitulary  of  Pepin,  in  the  cupierit  et  ad  alium  seniorem  acaptare 

year  783,  art.  5.  potuerit.  pacifice  habeat." 

w  See  the  Capitulary  de  Carisiacq.  in  x  In  the  year  757,  art.  6,  Baluzius's 

the  year  856,  arts.  10  and  13,  Baluzius's  edition,  p.  181. 


S56  MONTESQUIEU 

back,  as  it  were,  one  degree,  sometimes  two;  and  oftentimes 
more. 

We  find  in  the  books  of  fiefs,^  that  though  the  king's  vassals 
might  give  away  in  fief,  that  is,  in  rear-fief,  to  the  king,  yet  these 
rear-vassals,  or  petty  vavassors  could  not  give  also  in  fief;  so 
that  whatever  they  had  given,  they  might  always  resume.  Be- 
sides, a  grant  of  that  kind  did  not  descend  to  the  children  like  the 
fiefs,  because  it  was  not  supposed  to  have  been  made  according 
to  the  feudal  laws. 

If  we  compare  the  situation  in  which  the  rear-vassalage  was 
at  the  time  when  the  two  Milanese  Senators  wrote  those  books, 
with  what  it  was  under  King  Pepin,  we  shall  find  that  the  rear- 
fiefs  preserved  their  primitive  nature  longer  than  the  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  had  received  a  fief  of  a  rear-vassal  happened  to  follow 
him  upon  an  expedition  to  Rome,  he  was  entitled  to  all  the  priv- 
ileges of  a  vassal.^  In  like  manner,  if  he  had  given  money  to  the 
rear-vassal  to  obtain  the  fief,  the  latter  could  not  take  it  from  him, 
nor  hinder  him  from  transmitting  it  to  his  son,  till  he  returned 
him  his  money :  in  fine,  this  rule  was  no  longer  observed  by  the 
Senate  of  Milan.fr 

27. — Another  change  which  happened  in  the  Fiefs 

In  Charlemagne's  time  they  were  obliged,*?  under  great  penal- 
ties, to  repair  to  the  general  meeting  in  case  of  any  war  what- 
soever; they  admitted  of  no  excuses,  and  if  the  count  exempted 
anyone  he  was  liable  himself  to  be  punished.  But  the  treaty  of 
the  three  brothers  d  made  a  restriction  upon  this  head  which 
rescued  the  nobility,  as  it  were,  out  of  the  King's  hands,  they 
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  mind  their  own  business.  This  treaty  relates  to 
another/  concluded  five  years  before  between  the  two  brothers, 

y  Book  I.  chap.  i.  homo  in  cujuscumque  regno  sit,  cum 

*At  least  in  Italy  and  Germany.  seniore  suo  in  hostem,  vel  aliis  suis 

a  Book  I.  of  fiefs,  chap.  i.  utilitatibus,  pergat,  nisi  talis  regni  in- 

b  Ibid.  vasio  quam  Lantuveri  dicunt,  quod 

c  Capitulary  of  the  year  802,  art.  7,  absit;  acciderit,  ut  omnis  populus  illius 

Baluzius's  edition,  p.  365.  regm  ad  earn  repellendam  communiter 

d  "  Apud  Marsnamr  m  the  year  847,  pergat,"  art.  §,  ibid.  p.  44.  .. 

Baluzius's  edition,  p.  42.  /T<  Apud  Argentoratum,"  in  Balu- 

€  "  Volumus  ut  cujuscumque  nostrum  zius,  Capitularies,  torn.  n.  p.  39. 


THE  SPIRIT  OF  LAWS  257 

Charles  the  Bald  and  Louis,  King  of  Germany,  by  which  these 
princes  release  their  vassals  from  serving  them  in  war,  in  case 
they  should  attempt  hostilities  against  each  other;  an  agree- 
ment which  the  two  princes  confirmed  by  oath,  and  at  the  same 
time  made  their  armies  swear  to  it. 

The  death  of  a  hundred  thousand  French,  at  the  battle  of  Fon- 
tenay,  made  the  remains  of  the  nobility  imagine  that  by  the 
private  quarrels  of  their  kings  about  their  respective  shares, 
their  whole  body  would  be  exterminated,  and  that  the  ambition 
and  jealousy  of  those  princes  would  end  in  the  destruction  of  all 
the  best  families  of  the  kingdom.  A  law  was  therefore  passed, 
that  the  nobility  should  not  be  obliged  to  serve  their  princes  in 
war  unless  it  was  to  defend  the  state  against  a  foreign  invasion. 
This  law  obtained  for  several  ages.s 

28. — Changes  which  happened  in  the  great  Offices,  and  in 
the  Fiefs 

The  many  changes  introduced  into  the  fiefs  in  particular  cases 
seemed  to  spread  so  widely  as  to  be  productive  of  general  cor- 
ruption. I  noticed  that  in  the  beginning  several  fiefs  had  been 
alienated  in  perpetuity;  but  those  were  particular  cases,  and  the 
fiefs  in  general  preserved  their  nature;  so  that  if  the  crown  lost 
some  fiefs  it  substituted  others  in  their  stead.  I  observed,  like- 
wise, that  the  crown  had  never  alienated  the  great  offices  in  per- 
petuity.A 

But  Charles  the  Bald  made  a  general  regulation,  which  equally 
affected  the  great  offices  and  the  fiefs.  He  ordained,  in  his  Capit- 
ularies, that  the  counties  should  be  given  to  the  children  of  the 
count,  and  that  this  regulation  should  also  take  place  in  respect 
to  the  fiefs.* 

We  shall  see  presently  that  this  regulation  received  a  wider  ex- 
tension, insomuch  that  the  great  offices  and  fiefs  went  even  to 
distant  relatives.  Thence  it  followed  that  most  of  the  lords  who 
before  this  time  had  held  immediately  of  the  Crown  held  now 

t  See  the  law  of  Guy,  Kingr  of  the  to  some  circumstances  which  might 

Romans,  among  those  which  were  have  been  an  inducement  to  choose  the 

added  to  the  SaTic  law,  and  to  that  of  Counts  of  Toulouse  from  among  the 

the  Lombards,  tit.  6,  sec.  2,  in  Echard.  children  of  the  last  possessor. 

h  Some  authors  pretend  that  the  t  See  his  Capitulary  of  the  year  877, 

County  of  Toulouse  had  been  given  tit.  53,  arts.  9  and  10,  "  apud  Carisi- 

away  by  Charles  Martel,  and  passed  by  acum.'f  This  capitulary  bears  relation 

inheritance  down  to  Raymond,  the  last  to  another  of  the  same  year  and  place, 

count;  but,  if  this  be  true,  it  was  owing  art.  3. 

VOL.  II.— 17 


258  MONTESQUIEU 

mediately.  Those  counts  who  formerly  administered  justice  in 
the  King's  placita,  and  who  led  the  freemen  against  the  enemy, 
found  themselves  situated  between  the  King  and  his  freemen; 
and  the  King's  power  was  removed  further  off  another  degree. 

Again,  it  appears  from  the  Capitularies,;  that  the  counts  had 
benefices  annexed  to  their  counties,  and  vassals  under  them. 
When  the  counties  became  hereditary,  the  count's  vassals  were 
no  longer  the  immediate  vassals  of  the  king;  and  the  benefices 
annexed  to  the  counties  were  no  longer  the  king's  benefices; 
the  counts  grew  powerful  because  the  vassals  whom  they  had  al- 
ready under  them  enabled  them  to  procure  others. 

In  order  to  be  convinced  how  much  the  monarchy  was  there- 
by weakened  towards  the  end  of  the  second  race  we  have  only  to 
cast  an  eye  on  what  happened  at  the  beginning  of  the  third, 
when  the  multiplicity  of  rear-fiefs  flung  the  great  vassals  into 
despair. 

It  was  a  custom  of  the  kingdom  k  that  when  the  elder  brothers 
had  given  shares  to  their  younger  brothers  the  latter  paid  hom- 
age to  the  elder;  so  that  those  shares  were  held  of  the  lord  para- 
mount only  as  a  rear-fief.  Philip  Augustus,  the  Duke  of  Bur- 
gundy, the  Counts  of  Nevers,  Boulogne,  St.  Paul,  Dampierre, 
and  other  lords  declared  I  that  henceforward,  whether  the  fiefs 
were  divided  by  succession  or  otherwise,  the  whole  should  be 
always  of  the  same  lord,  without  any  intermediation.  This  or- 
dinance was  not  generally  followed;  for,  as  I  have  elsewhere 
observed,  it  was  impossible  to  make  general  ordinances  at  that 
time;  but  many  of  our  customs  were  regulated  by  them. 

29. — Of  the  Nature  of  the  Fiefs  after  the  Reign  of 
Charles    the  Bald 

We  have  observed  that  Charles  the  Bald  ordained  that  when 
the  possessor  of  a  great  office  or  of  a  fief  left  a  son  at  his  death, 
the  office  or  fief  should  devolve  to  him.  It  would  be  a  difficult 
matter  to  trace  the  progress  of  the  abuses  which  thence  resulted, 
and  of  the  extension  given  to  that  law  in  each  country.  I  find 

j  The  third  Capitulary  of  the  year  812,  k  As  appears  from  Otho  of  Frisingcn, 

art.  7,  and  that  of  the  year  815,  art.  6.  "  of  the  actions  of  Frederic,"  book  II. 

on   the    Spaniards.      The    collection    of  chap.  xxix. 

the  Capitularies,  book  5,   art.  223,  and  /See  the  ordinance  of  Philip  Aueus- 

the  Capitulary  of  the  year  869,  art.  2,  tus  in  the  year  1209,  in  the  new  cofleo 

and  that  of  the  year  877,  art.  13,  Balu-  tion. 
xms's  edition. 


THE  SPIRIT  OF  LAWS 


259 


in  the  hooks  of  fiefs,™  that  towards  the  beginning  of  the  reign  of 
the  Emperor  Conrad  II  the  fiefs  situated  in  his  dominions  did  not 
descend  to  the  grandchildren :  they  descended  only  to  one  of  the 
last  possessor's  children,  who  had  been  chosen  by  the  lord:» 
thus  the  fiefs  were  given  by  a  kind  of  election,  which  the  lord 
made  among  the  children. 

In  the  seventeenth  chapter  of  this  book  we  have  explained  in 
what  manner  the  crown  was  in  some  respects  elective,  and  in 
others  hereditary  under  the  second  race.  It  was  hereditary,  be- 
cause the  kings  were  always  taken  from  that  family,  and  because 
the  children  succeeded;  it  was  elective,  by  reason  that  the  people 
chose  from  among  the  children.  As  things  proceed  step  by 
step,  and  one  political  law  has  constantly  some  relation  to 
another  political  law,  the  same  spirit  was  followed  in  the  suc- 
cession of  fiefs,  as  had  been  observed  in  the  succession  to  the 
crown.o  Thus  the  fiefs  were  transmitted  to  the  children  by  the 
right  of  succession,  as  well  as  of  election ;  and  each  fief  became 
both  elective  and  hereditary,  like  the  crown. 

This  right  of  election  p  in  the  person  of  the  lord  was  not  sub- 
sisting at  the  time  of  the  authors  Q  of  the  book  of  fiefs,  that  is, 
in  the  reign  of  the  Emperor  Frederick  I. 


30. — The  same  Subject  continued 

It  is  mentioned  in  the  books  of  fiefs,  that  when  the  Emperor 
Conrad  set  out  for  Rome,  the  vassals  in  his  service  presented 
a  petition  to  him  that  he  would  please  to  make  a  law  that  the  fiefs 
which  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  which  had  belonged  to  their 
common  fathers  This  was  granted. 

In  the  same  place  it  is  said  (and  we  are  to  remember  that  those 
writers  lived  at  the  time  of  the  Emperor  Frederick  I)  s  "  that 
the  ancient  jurists  had  always  been  of  opinion  t  that  the  succes- 


ni  Book  I.  tit.  i. 

n "  Sic  progressum  est,  ut  ad  filios 
deveniret  in  quern  Dominus  hoc  vellet 
beneficium  confirmare."— Ibid. 

o  At  least  in  Italy  and  Germany. 

/"  Quod  hodie  ita  stabilitum  est,  ut 
omnes   sequaliter  veniat."— Book   I. 
of  the  fiefs,  tit.  i. 
gGerardus    Niger    and    Aubertus    de 

r"Cum  vero  Conradus  Romam  pro- 


ficisceretur,  petitum  est  a  fidelibus  qui 
in  ejus  erant  servitio,  ut,  lege  ab  eo 
promulgata,  hoc  etiam  ad  nepotes  ex 
nlio  prpducere  dignaretur,  et  ut  frater 
fratri  sine  legitimo  haerede  defuncto  in 
beneficio  quod  eorum  patris  fuit,  sue- 
cedat."— -Book  I.  of  fiefs,  tit.  i. 

s  Cuias  has  proved  it  extremely  well. 

t "  Sciendum  est  quod  beneficium 
advenientes  ex  latere,  ultra  fratres  pa 
trueles  non  progreditur  successione  a, 


260  MONTESQUIEU 

sion  of  fiefs  in  a  collateral  line  did  not  extend  further  than  to 
brothers-german,  though  of  late  it  was  carried  as  far  as  the  sev- 
enth degree,  and  by  the  new  code  they  had  extended  it  in  a  di- 
rect line  in  infinitum"  It  is  thus  that  Conrad's  law  was  insensi- 
bly extended. 

All  these  things  being  supposed,  the  bare  perusal  of  the  his- 
tory of  France  is  sufficient  to  demonstrate  that  the  perpetuity  of 
fiefs  was  established  earlier  in  this  kingdom  than  in  Germany. 
Towards  the  commencement  of  the  reign  of  the  Emperor  Con- 
rad II  in  1024,  things  were  upon  the  same  footing  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  Charles  the 
Simple  found  himself  unable  to  dispute  with  a  foreign  house 
his  incontestable  rights  to  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  in  the  French  monarchy.  But  as  his  brother, 
Louis,  King  of  Germany,  and  some  of  that  prince's  successors 
were  men  of  better  parts,  their  government  preserved  its  vigor 
much  longer. 

But  what  do  I  say?  Perhaps  the  phlegmatic  constitution,  and, 
if  I  dare  use  the  expression,  the  immutability  of  spirit  peculiar 
to  the  German  nation  made  a  longer  stand  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  was  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  the  Normans  and 
Saracens.  There  were  less  riches  in  Germany,  fewer  cities  to 
plunder,  less  extent  of  coast  to  scour,  more  marshes  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  consequently  less  dependence 
on  them.  And  in  all  probability,  if  the  emperors  of  Germany 
had  not  been  obliged  to  be  crowned  at  Rome,  and  to  make  con- 

antiquis   sapientibus   constitutum,    licet        culis   descendentibus   novo   jure   in    hl« 
moderno   tempore   usque   ad   septimum       finitum  extenditur."— Ibid, 
geniculum  sit  usurpatum,  quod  in  tnas- 


THE  SPIRIT  OF  LAWS  261 

tinual  expeditions  into  Italy,  the  fiefs  would  have  preserved  their 
primitive  nature  much  longer  in  that  country. 

31. — In  what  Manner  the  Empire  was  transferred  from  the 
Family  of  Charlemagne 

The  empire,  which,  in  prejudice  to  the  branch  of  Charles  the 
Bald,  had  been  already  given  to  the  bastard  line  of  Louis,  King 
of  Germany,"  was  transferred  to  a  foreign  house  by  the  election 
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.  We  have  an  agreement  en- 
tered into  between  Charles  the  Simple,  and  the  Emperor  Henry 
I,  who  had  succeeded  to  Conrad.  It  is  called  the  Compact  of 
Bonn.v  These  two  princes  met  in  a  vessel  which  had  been  placed 
in  the  middle  of  the  Rhine,  and  swore  eternal  friendship.  They 
used  on  this  occasion  an  excellent  middle  term.  Charles  took 
the  title  of  King  of  West  France,  and  Henry  that  of  King  of  East 
France.  Charles  contracted  with  the  King  of  Germany,  and  not 
with  the  Emperor. 

32. — In  what  Manner  the  Crown  of  France  was  transferred 
to  the  House  of  Hugh  Capet 

The  inheritance  of  the  fiefs,  and  the  general  establishment  of 
rear-fiefs,  extinguished  the  political  and  formed  a  feudal  govern- 
ment. Instead  of  that  prodigious  multitude  of  vassals  who  were 
formerly  under  the  king,  there  were  now  a  few  only,  on  whom 
the  others  depended.  The  kings  had  scarcely  any  longer  a  di- 
rect authority;  a  power  which  was  to  pass  through  so  many 
other  and  through  such  great  powers  either  stopped  or  was  lost 
before  it  reached  its  term.  Those  great  vassals  would  no  longer 
obey ;  and  they  even  made  use  of  their  rear- vassals  to  withdraw 
their  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,  therefore, 
given  to  one  of  the  most  potent  vassals. 

The  Normans  ravaged  the  kingdom ;  they  sailed  in  open  boats 

«  Arnold  and  his  son  Louis  IV.  le   Mire,   "  Cod.   donationum   piarum,** 

v  In  the  year  926,  quoted  by  Aubert       chap,  xxvii. 


262  MONTESQUIEU 

or  small  vessels,  entered  the  mouths  of  rivers,  and  laid  the  coun- 
try waste  on  both  sides.  The  cities  of  Orleans  and  Paris  put  a 
stop  to  those  plunderers,  so  that  they  could  not  advance  farther, 
either  on  the  Seine,  or  on  the  Loire.™  Hugh  Capet,  who  was 
master  of  those  cities,  held  in  his  hands  the  two  keys  of  the  un- 
happy remains  of  the  kingdom;  the  crown  was  conferred  upon 
him  as  the  only  person  able  to  defend  it.  It  is  thus  the  empire 
was  afterwards  given  to  a  family  whose  dominions  form  so  strong 
a  barrier  against  the  Turks. 

The  empire  went  from  Charlemagne's  family  at  a  time  when 
the  inheritance  of  fiefs  was  established  only  as  a  mere  conde- 
scendence.  It  even  appears  that  this  inheritance  obtained  much 
later  among  the  Germans  than  among  the  French;  x  which  was 
the  reason  that  the  empire,  considered  as  a  fief,  was  elective.  On 
the  contrary,  when  the  crown  of  France  went  from  the  family  of 
Charlemagne,  the  fiefs  were  really  hereditary  in  this  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  changes  which  happened,  either  before  or  after- 
wards. The  whole  was  reduced  to  two  events;  the  reigning 
family  changed,  and  the  crown  was  united  to  a  great  fief. 

33. — Some  Consequences  of  the  Perpetuity  of  Fiefs 

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  crown  was 
divided  among  the  brothers,  the  allodia  were  shared  in  the  same 
manner;  and  as  the  fiefs,  whether  precarious  or  for  life,  were  not 
an  object  of  succession,  there  could  be  no  partition  in  regard  to 
those  tenures. 

Under  the  second  race,  the  title  of  Emperor,  which  Louis  the 
Debonnaire  enjoyed,  and  with  which  he  honored  his  eldest  son, 
Lotharius,  made  him  think  of  giving  this  prince  a  kind  of  su- 
periority over  his  younger  brothers.  The  two  kings  were  obliged 
to  wait  upon  the  Emperor  every  year,  to  carry  him  presents,  and 
to  receive  much  greater  from  him;  they  were  also  to  consult 


wSee  the  Capitulary  of  Charles  the  *See  above,  chap.  30. 

Bald,   in  the   year   877,   "  apud   Carisi-  y  See  the  Salic  Law.  .„»  »lt  .«„  „» 

acum,     on  the  importance  of  Paris,  St.  the    Ripuarians.    in    the    title    of    "  al- 

Denis,  and  the  castles  on  the  Loire,  in  lodia." 
those  days. 


and  the  law  of 


THE  SPIRIT  OF  LAWS  263 

with  him  upon  common  affairs.^  This  is  what  inspired  Lotharius 
with  those  pretences  which  met  with  such  bad  success.  When 
Agobard  wrote  in  favor  of  this  prince,^  he  alleged  the  Emperor's 
own  intention,  who  had  associated  Lotharius  with  the  empire 
after  he  had  consulted  the  Almighty  by  a  three  days'  fast,  by  the 
celebration  of  the  holy  mysteries,  and  by  prayers  and  almsgiving; 
after  the  nation  had  sworn  allegiance  to  him  which  they  could  not 
refuse  without  perjuring  themselves;  and  after  he  had  sent  Lo- 
tharius to  Rome  to  be  confirmed  by  the  Pope.  Upon  all  this  he 
lays  a  stress,  and  not  upon  his  right  of  primogeniture.  He  says, 
indeed,  that  the  Emperor  had  designed  a  partition  among  the 
younger  brothers,  and  that  he  had  given  the  preference  to  the 
elder;  but  saying  he  had  preferred  the  elder  was  saying  at  the 
same  time  that  he  might  have  given  the  preference  to  his  younger 
brothers. 

But  as  soon  as  the  fiefs  became  hereditary,  the  right  of  senior- 
ity was  established  in  the  feudal  succession;  and  for  the  same 
reason  in  that  of  the  crown,  which  was  the  great  fief.  The  an- 
cient law  of  partitions  was  no  longer  subsisting;  the  fiefs  being 
charged  with  a  service,  the  possessor  must  have  been  enabled  to 
discharge  it.  The  law  of  primogeniture  was  established,  and  the 
right  of  the  feudal  law  was  superior  to  that  of  the  political  or  civil 
institution. 

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  mention  is  made  in  our  customs,  which 
at  first  was  paid  in  a  direct  line,  and  by  usage  came  afterwards 
to  be  paid  only  in  a  collateral  line. 

The  fiefs  were  soon  rendered  transferable  to  strangers  as  a 
patrimonial  estate.  This  gave  rise  to  the  right  of  lord's  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. 

The  right  of  redemption  was  to  be  paid  at  every  change  of  heir, 
and  at  first  was  paid  even  in  a  direct  line.&  The  most  general 

s  See  the  Capitulary  of  the  year  817,  a  See  his  two  letters  upon  this  sub- 

which  contains  the  first  partition  made       ject,  the  title  of  one  of  which  is  "  de 
by    Louis    the    Debonnaire    among    his        divisione  imperil." 
children.  b  See    the    ordinance    of    Philip    Au- 

gustus, in  the  year  1209,  on  the  fiefs. 


264  MONTESQUIEU 

custom  had  fixed  it  to  one  year's  income.  This  was  burdensome 
and  inconvenient  to  the  vassal,  and  affected  in  some  measure  the 
fief  itself.  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  afterwards  of  no  manner  of  importances  Thus 
the  right  of  redemption  is  in  our  days  reduced  almost  to  noth- 
ing, while  that  of  the  lord's  dues  is  continued  in  its  full  extent. 
As  this  right  concerned  neither  the  vassal  nor  his  heirs,  but  was 
a  fortuitous  case  which  no  one  was  obliged  to  foresee  or  expect, 
these  stipulations  were  not  made,  and  they  continued  to  pay  a 
certain  part  of  the  price. 

When  the  fiefs  were  for  life,  they  could  not  give  a  part  of  a 
fief  to  hold  in  perpetuity  as  a  rear-fief;  for  it  would  have  been 
absurd  that  a  person  who  had  only  the  usufruct  of  a  thing  should 
dispose  of  the  property  of  it.  But  when  they  became  perpetual, 
this  was  permitted,**  with  some  restrictions  made  by  the  customs, 
which  was  what  they  call  dismembering  their  fiefs 

The  perpetuity  of  feudal  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, because  the  husband  was  obliged  to  pay  it  as  well  as 
the  wife.f  This  regulation  could  not  take  place  in  regard  to  the 
crown,  for  as  it  was  not  held  of  anyone  there  could  be  no  right  of 
redemption  over  it. 

The  daughter  of  William  V,  Count  of  Toulouse,  did  not  suc- 
ceed to  the  county.  But  Eleanor  succeeded  to  Aquitaine,  and 
Matilda  to  Normandy ;  and  the  right  of  the  succession  of  females 
seemed  so  well  established  in  those  days,  that  Louis  the  Young, 
after  his  divorce  from  Eleanor,  made  no  difficulty  in  restoring 
Guienne  to  her.  But  as  these  two  last  instances  followed  close 
on  the  first,  the  general  law  by  which  the  women  were  called  to 
the  succession  of  fiefs  must  have  been  introduced  much  later  into 
the  county  of  Toulouse  than  into  the  other  provinces  of  France.* 

c  We  find  several  of  these  conventions  e  They  fixed  the  portion  which  they 

in  the  charters,  as  in  the  register  book  could  dismember. 

of  Vendqme,  and  that  of  the  abbey  in  /This  was  the  reason  that  the  lords 

St.    Cyprian   in    Poitou,    of   which    Mr.  obliged  the  widow  to  marry  again. 

Galland  has  given  some  extracts,  p.  55.  g  Most  of  the  great  families  had  their 

d  But    they    could    not    abridge    the  particular  laws  of  succession.     See  what 

fiefs;  that  is,  abolish  a  portion  of  it.  M.  de  la  Thaumassiere  says  concerning 

the  families  of  Berri. 


THE  SPIRIT  OF  LAWS  265 

The  constitution  of  several  kingdoms  of  Europe  has  been  di- 
rected by  the  state  of  feudal  tenures  at  the  time  when  those  king- 
doms were  founded.  The  women  succeeded  neither  to  the  crown 
of  France  nor  to  the  empire,  because  at  the  foundation  of  those 
two  monarchies  they  were  incapable  of  succeeding  to  fiefs.  But 
they  succeeded  in  kingdoms  whose  foundation  was  posterior  to 
that  of  the  perpetuity  of  the  fiefs,  such  as  those  founded  by  the 
Normans,  those  by  the  conquests  made  on  the  Moors,  and  others, 
in  fine,  which  were  beyond  the  limits  of  Germany,  and  in  later 
times  received  in  some  measure  a  second  birth  by  the  estab- 
lishment of  Christianity. 

When  these  fiefs  were  at  will,  they  were  given  to  such  as  were 
capable  of  doing  service  for  them,  and,  therefore,  were  never  be- 
stowed on  minors;  but  when  they  became  perpetual,  the  lords 
took  the  fief  into  their  own  hands,  till  the  pupil  came  of  age, 
either  to  increase  their  own  emoluments,  or  to  train  the  ward  to 
the  use  of  arms./t  This  is  what  our  customs  call  "  the  guardian- 
ship of  a  nobleman's  children,"  which  is  founded  on  principles 
different  from  those  of  tutelage,  and  is  entirely  a  distinct  thing 
from  it. 

When  the  fiefs  were  for  life,  it  was  customary  to  vow  fealty  for 
a  fief;  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  subjects  take  an  oath  of  allegiance; *  but  so 
far  was  this  oath  from  being  of  the  same  nature  as  the  service 
afterwards  established  by  the  name  of  homage,  that  it  was  only  a 
ceremony,  of  less  solemnity,  occasionally  used,  either  before  or 
after  that  act  of  obeisance;  in  short,  it  was  quite  a  distinct  thing 
from  homage./ 

h  We  see  in  the  Capitulary  of  the  year  also  that  of  the  year  854,  art.   13,  and 

817,    "  apud   Carisiacum,"   art.    3,    Balu-  others. 

zius's  edition,  torn.  ii.   p.   269,   the  mo-  /  M.    du    Cange    in    the    word    "  ho- 

ment    in    which    the    kings    caused    the  minium,"    p.     1163,    and    in    the    word 

fiefs    to    be    administered    in    order    to  "  fidelitas,"  p.  474,  cites  the  charters  of 

preserve  them   for  the   minors;   an  ex-  the   ancient   homages   where   these   dif- 

ample  followed  by  the  lords,  and  which  ferences  are  found,  and  a  great  number 

§ave  rise  to  what  we  have   mentioned  of  authorities  which  may  be  seen.     In 
y  the  name  of  "  the  guardianship  of  a  paying  homage,  the  vassal  put  his  hand 
nobleman's  children."  on  that  of  his  lord,  and  took  his  oath; 
»  We  find  the  formula  thereof  in  the  the  oath  of  fealty  was  made  by  swear- 
second  Capitulary  of  the  year  802.     See  ing  on  the  gospels.     The  homage  was 


266  MONTESQUIEU 

The  counts  and  the  king's  commissaries  further  made  those 
vassals  whose  fidelity  was  suspected  give  occasionally  a  security, 
which  was  called  firmitas,k  but  this  security  could  not  be  an  hom- 
age since  kings  gave  it  to  each  other./ 

And  though  the  Abbot  Suger  m  makes  mention  of  a  chair  of 
Dagobert,  in  which  according  to  the  testimony  of  antiquity,  the 
kings  of  France  were  accustomed  to  receive  the  homage  of  the 
nobility,  it  is  plain  that  he  expresses  himself  agreeably  to  the 
ideas  and  language  of  his  own  time. 

When  the  fiefs  descended  to  the  heirs,  the  acknowledgment  of 
the  vassal,  which  at  first  was  only  an  occasional  service,  became 
a  regular  duty.  It  was  performed  in  a  more  splendid  manner, 
and  attended  with  more  formalities,  because  it  was  to  be  a  per- 
petual memorial  of  the  reciprocal  duties  of  the  lord  and  vassal. 

I  should  be  apt  to  think  that  homages  began  to  be  established 
under  King  Pepin,  which  is  the  time  I  mentioned  that  several 
benefices  were  given  in  perpetuity,  but  I  should  not  think  thus 
without  caution,  and  only  upon  a  supposition  that  the  authors  of 
the  ancient  annals  of  the  Franks  were  not  ignorant  pretenders,** 
who  in  describing  the  fealty  professed  by  Tassillon,  Duke  of 
Bavaria,  to  King  Pepin,  spoke  according  to  the  usages  of  their 
own  time.o 

34. — The  same  Subject  continued 

When  the  fiefs  were  either  precarious  or  for  life  they  seldom 
bore  a  relation  to  any  other  than  the  political  laws;  for  which 
reason  in  the  civil  institutions  of  those  times  there  is  very  little 
mention  made  of  the  laws  of  fiefs.  But  when  they  became  heredi- 
tary, when  there  was  a  power  of  giving,  selling,  and  bequeathing 
them,  they  bore  a  relation  both  to  the  political  and  the  civil  laws. 
The  fief  considered  as  an  obligation  of  performing  military  ser- 
vice, depended  on  the  political  law;  considered  as  a  kind  of 
commercial  property,  it  depended  on  the  civil  law.  This  gave 
rise  to  the  civil  regulations  concerning  feudal  tenures. 

performed  kneeling,  the  oath  of  fealty  m  "  Lib.  de  administratione  sua." 
standing.     None  but  the  lord  could  re-  n  Anno  757,  chap.  xvii. 
ceive    homage,    but    his   officers    might  o  "  Tassilo  venit  in  vassatico  se  corn- 
take  the  oath  of  fealty.— See  Littleton,  mendans,  per  manus  sacramenta  juravit 
sees.  91,  92,  faith  and  homage,  that  is,  multa  et  innumerabilia,  reliquiis  sancto- 
fidelity  and  homage.  rum    manus    imponens     et     fidelitatem 
k  Capitularies  of  Charles  the  Bald  in  promisit    regi    Pippino."      One    would 
the  year  860,  "  post  reditum  a  Conflu-  think  that  here  was  an  homage  and  an 
entibus,"  art.   3,   Baluzius's  edition,  p.  oath  of  fealty.    See  the  note  j.  preced- 

T ibid,  i ,.  ing  page- 


THE  SPIRIT  OF  LAWS  267 

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  laws.g 
It  was  necessary  that  service  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.r 

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  regulations  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  t  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  feudis,"  tit.  59-  of  a  fief  shall  give  security  to  the  lord, 

g  In  the  title  of      allodia."  that  she  shall   not  be   married  without 

r "  Somme   Rurale,"   book   I.   tit.   76,  his  consent. 

P-  447-  /Decision    155,    No.    8   and   204;    and 

s  According   to   an   ordinance   of   St.  No.  38. 

Louis,   in   the   year    1246,    to    settle   the  n  In  Capell.  Thol.  decision  453. 

customs    of   Anjou    and    Maine;    those  v "  ^Eneid,"  lib.  III.  v.  523. 
who  shall  have  the  care  of  the  heiress 


INDEX 


Abassines,  severe  lent  of  the,  ii.  64 
Abbots  and  bishops,  election  of,  ii.  240 
Accusations    in    different    governments, 

i.  80 

some    requiring    particular    modera- 
tion and  prudence,  i.   187 
Accusers,  false,  branded  at  Rome,  i.  199 
Actions,   set   form   of,   how   introduced, 

i.   76 

Adoption  among  the  Germans,  i.  289 
Adulteress,  permitted  to  be  accused  by 
her  children  or  the  children  of  her 
husband,  ii.  60 
condemned  to  the  ordeal  by  water 

among  the  Germans,  ii.  in 
Adultery,   public   accusations  of,   under 
the   Roman  law,   its  beneficial   ef- 
fects, i.  48,   103 
law  of  the  Visigoths,  ii.  76 
why  differently  regarded  in  the  hus- 
band and  in  the  wife,  ii.  65 
Adymantes,   why  spared  from  death,   i. 

84 

Africa,  state  of  people  of,  i.  332 
the  circuit  of,  i.  349 
Hanno's  voyages^  i.  351,  352 
Agobard,  letter  of,  ii.  98,  99 
Agrarian    laws   regarded    by    Cicero    as 

unjust,  ii.  73 
Agriculture  a  servile  profession  among 

the  Greeks,  i.  38 

honored  in  China  and  Persia,  i.  227 
Alcibiades,  praise  of,  i.  42 
Alemans,  laws  of  the,  i.  232,  244 
Alexander,  his  career,  I.   143 

comparison  between  him  and  Caesar, 

i.    146 

his  conquests,  i.  341 
ironical  remarks,  ii.  211 
Alexander  VI   divides  the  new  worlds 
between    the    Spaniards    and    the 
Portuguese,   i.   367 
other    nations    refuse    to    abide    by 

this,  i.  367 
Alexandria,    foundation    of,    i.    343    and 

note 

Allodial  lands,  law  relating  to,  i.  283 
how  changed  into  fiefs,  ii.  230 
estates,    ii.    192 
Ambassadors,  reason  for  the  privileges 

of,  ii.   78 

America,  discovery  of,  i.  366 
its  consequences,  i.  369 
consequences  to  Spain,  i.  570 
soil  of  its  productiveness,  i.  275 
its  populousness,  i.  275 
Amphictyon,  law  of,  not  prudent,  ii.  158 
Amymones,     the     irresponsible     magis- 
trates, among  the  Guidians,  i.  158 
and  note 

Anastasius,  his  clemency  a  mistake,  i. 
93 


Ancestors,  particular  notions  of  our,  ii. 

109 
Ancients,  a  paradox  of  the,  i.  37 

had  not  a  clear  idea  of  monarchy, 

i.   162 

commerce  of  the,  i.  334 
Anius    Asellus    appoints    his    daughter 
his  sole  heir  and  executrix,  ii.  87 
Verres  corruptly  sets  this  aside,  ii. 

87 
Annuitants,    public,    why   they    receive 

special   protection,   i.   395 
Anonymous  letters,  i.  202 
Anthropophagi,  the,  i.  350 
Antipater,  his  voting  law,  i.  15 
Antrustions,  or  vassals,  ii.  190 
their  property,  ii.  190 
composition  for  the  death  of,  ii.  213 
Appeal    or   default    of   justice,    ii.    147, 

149 
Appeal  of  false  judgment,  ii.  125 

condemned  by  St.   Louis,  ii.   125  v 
its   danger,   ii.   126 
remarks,   ii.   136 
Appius  the  decemvir,  i.  80 
Arabia   and    the    Indies,    commerce   of 

the  Romans  with,  i.  359 
Arabs,  liberty  of  the,  i.  279 
annual  truce,  ii.  37 
in     Barbary,     order    of    succession 

among  the,  ii.  62 
drink  of  the,  i.  228 
Areopagus,  the,  its  members  chosen  for 

life,   i.  48 

examples  of  its  judgments,  i.  70 
a  court  appeal,  i.  77 
Argives,  cruelty  of  the,  i.  84,  85 
Ariana,  a  desert  region,  i.  342 
Aristippus,  anecdote  of,  i.  277 
Aristocracy,  its  constitution,  i.   13 
abuses  of,  i.  13 
the    best    and   the   worst   kinds    of, 

i.   15 
virtue    not    absolutely    requisite    in 

an,  i.  22 

moderation  its  virtue,  i.  49 
two    principal    sources    of    disorder, 

i.  49 

corruption  of  its  principle,  i.  112 
hereditary  aristocracy,  i.  112 
Aristodemus,   the   tyrant   of   Cumae,   i. 

141 
Aristotle,   on   democratic   constitutions, 

i.  8 

on  slaves,  i.  33 
on  monarchy,  i.  164 
his  philosophy  carried  to  the  west, 


the  i 


on  the  number  of  children,  ii.  n 
remark  on,  ii.   ITO 

Artaxerxes    puts    all    his    children    to 
death,  i.  61 


269 


270 


MONTESQUIEU 


Artisans  little   esteemed   in  the   Greek 

republics,  i.  38 

Arts,  number  of  inhabitants  with  rela- 
tion to  the,  ii.  9 
Asia,  climate  of,  i.  264 

consequences  resulting  therefrom,  i. 

267 

a  country  of  great  empires,  i.  268 
Asilian  law,  its  provisions,  i.  87 
Assemblies,   public,   their  number  why 

fixed,  i.  9 

Asylums,  Mosaic  law  of,  ii.  47 
Athenians,  the,  lenient  to  their  slaves, 

i.  244 

commerce  of  the,  I.  339 
Athenians     and     Lacedaemonians,     the, 

contrasted,  i.  295 

Athens,  division  of  the  people  by  So- 
lon, i.  13 

military  strength  of,  i.  21 
marriage  law  at,  i.  43 
Athletic  arts,  their  tendency,  i.  39 
Athualpa,   unhappy   state  of  the  Ynca, 

ii.   78 
Attainder,  bills  of,   in  England,  i.   199; 

ii.  59 

Augustus,  offence  given  by,  to  the  Ro- 
mans,  i.  293 

exhorts  them  to  marriage,  ii.   13 
his  law  on  succession  and  legacies, 

ii.   18 

this    softened    by    succeeding    em- 
perors, ii.  18 
his  reforms,  ii.  37 
Aulus    Fulvius    put    to    death    by    his 

father,  i.  49,  note 
Aurengzebe,   saying  of,   ii.   25 
Austria,   fortune   of   the    House  of,    i. 
367 

Bactrians,    horrid   custom   of  the,    sup- 
pressed by  Alexander,  i.  137 

Baetis,  the  silver  mountains  of,  i.  354 

Banker,  his  gains,  i.  387 

assistance  the  state  may  derive  from 
the,  i.  393 

Bankrupt,  Philip  II  of  Spain,  i.  369 

Bankrupts,    French    law    regarding,    ii. 
167 

Barbarians,   commerce   of  the   Romans 

with,  i.  359 

laws  of  the,  all  personal,  ii.  94 
how   these   laws   came   to   be   lost, 
ii.   102 

Barbarous     nations,     why     easily    con- 
verted, ii.  45 
revolution  of  their  laws,  ii.  104 

Barbary,  order  of  succession  among  the 
Arabs  in,  ii.  62 

Basil,    the    emperor,    inconsistent    con- 
duct of,  i.  90 

Bastards  in  different  governments,  ii.  4 
disabilities  of,  ii.  4 

Bastons    the    only   weapon   allowed   to 
villeins,  ii.  117 

Bathing,  ii.  43 

Bayle,  Mr.,  a  paradox  of,  it.  27 
another,  ii.  31 

Beaumanoir,  his  era,  ii.  120 
on  judicial  combats,  ii.   116 

Beggars,  have  many  children,  ii.  7 

Believre,  the  President  de,  his  reply  to 
Louis  XIII,  i.  78 

Benefice,  what,  ii.  255 

Bernard,  King  of  Italy,  his  barbarous 
treatment,  ii.  247 


Bishops  exempt  from  military  service, 

ii.  191 
their  complaints  on  the  subject,   ii. 

191 
election  of,  ii.  240 

Blind    man,    strange    incapacity    of,    at 
Rome,  ii.  167 

Blows,  scale  of  compensation  for,  ii.  117 

Bondmen,  when  enfranchised,  ii.  153 
rated  to  the  census,  ii.  187 

Bos,  Abbe  du,  his  financial  theories,  ii. 

96,  178,  182,  190,  193 
general  idea  of  his  book,  on  the  es- 
tablishment of  the  French  monar- 
chy in  Gaul,  ii.  207 
ironical  remarks  on  it,  ii.  211 

Boulainvilliers,   an   error  of   the   Count 
de,  ii.  177 

Breaking  on  the  wheel,  introduction  of 
the  punishment  of,  i.  83 

Brother    and    sister,    marriage   of,    why 
permitted,  ii.  70 

Brothers   and   sisters   in   law,    marriage 

of,  ii.  71 

why  permitted  in  some  countries,  ii. 
72 

Brunehaut,  execution  of,  ii.  218 

Brutes,   their  state   as  contrasted  with 
that  of  man,  i.  2 

Burgundians,  laws  of  the,  ii.  93,  97 

Caesar,  confiscation  of  goods  introduced 

by,  i.  88 
his  law  against  hoarding  money,  ii. 

158 
his  account  of  the  Germans,  ii.  171, 

200 

Calvinists,  ravages  of  the,  ii.  235 
Cambyses,  avails  himself  of  the  super- 
stition of  the  Egyptians,  ii.  64 
Canon  law,  the,  not  applicable  to  civil 

causes,  ii.  64 
Cape   of   Good    Hope   doubled   by   the 

Portuguese,  i.  366 
Capet,  Hugh,  becomes  king  of  France, 

ii.  260 
Capital  of  an  empire,  choice  of  the,  i. 

Capital  crimes,  the  only  two  among  the 

Germans,  ii.  196 
Capitularies    (or    Capitulatories),    their 

origin,  ii.   102 
Carthage,  destruction  of,  i.  22 

praised  by  Aristotle  as  a  well-regu- 

^lated  republicj  i.  119 
dissensions  in,  i.  138 
the  senate,  i.  177 

extraordinary  policy  of,  i.  351,  368 
voyages  of  Hanno,  i.  351,  352 
Carthaginians,  their  ingratitude  to  Han- 
nibal, i.  22 
compelled  to  abandon  the  sacrifice 

of  children  by  Gelon,  i.  137 
their  foreign  settlements,  i.  351 
Carvilius  Ruga,  the  case  of,  i.  262 
Caspian   Sea,    little   known   to   the   an- 
cients, i.  346 
Cassiterides,    Himilco   sent   to   make   a 

settlement  in  the,  i.  354 
Catholic   religion,    the,    most   agreeable 

to  a  monarchy,  ii.  30 
zeal  of  its  believers,  its  cause,  ii.  45 
Celibacy,  reflections  on,  ii.  21,  32,  48 
Censors,  under  what  governments  nec- 
essary, i.  60 
Censorship,  the  Roman,  i.  119;  ii.  14 


INDEX 


271 


Census,  the,  among  the  barbarians,  ii. 

186 
raised  only  on  the  bondmen  and  not 

on  the  freemen,  ii.  187 
Cerne,  Carthaginians  settlements  as  far 

as,  i.  351 
Chaindasuinthus  proscribes  the  Roman 

law,  ii.   100 

Champions  in  legal  duels,  ii.   124,  note 
Charlemagne,    his    Capitularies,    ii.    102 

and  note 

fall  into  neglect,  ii.  103 
his  promise  as  to  church  lands,  ii. 

236 

establishes  tithes,  ii.  237 
his  gifts  to  the  clergy,  ii.  239 
restrains  the  nobility,  ii.  244 
his  character,  ii.  245 
bishoprics  in  Germany,  ii.  246 
how    the     empire     was     transferred 

from  his  family,  ii.  262 
Charles  the  Bald,  edict  of,  ii.  98 

calls  on  the  church  to  support  the 

state,  ii.  251 
Martel,  an  oppressor  of  the  clergy, 

ii-  233 

state  of  Europe  in  his  time,  ii.  235 
his  fiefs,  ii.  240 
Charles  II,  anecdote  of,  i.  90 
Charles  V,  grandeur  of,  i.  367 
Charles  VII,  causes  local  customs  to  be 

reduced  to  writing,  ii.  154 
Charles    IX,    why    declared    of   age   at 

fourteen,  ii.  167 
Charles   XII   of   Sweden,   anecdote  of, 

i.  58 

his  character,  i.  141 
Charmides,  his  preference  for  poverty, 

i.  109 
Charondas     first     established     penalties 

against  false  witnesses,  i.  184 
Childeric,  expulsion  of,  i.  287 
Children    usually   foltow    the    condition 

of  their  father,  ii.  2 
limitation  of  the  number  of,  ii.  ii 
exposing  of,   Roman  policy  regard- 
ing, ii.  21 

not  practiced  by  the  Germans,  ii.  22 
obliged  to  provide  for  their  fathers 
at  Athens,  except  in  certain  cases, 
ii.  61 
China,  luxury  of,  i.  99 

its  fatal  consequence,  i.  100 
the   missionary   pictures   of,   contra- 
dicted by  other  travellers,  i.  122 
wisdom  of  its  ancient  emperors,   i. 

unchanging  character  of  the  people, 

L  298 

aims  of  its  legislators,  i.  301 
Christianity,  i.  302 
paternal  authority,  i.  303 
explanation  of  a  paradox,  i.  304 
succession  to  the  throne,  ii.  02 
Chivalry,  rise  of,  ii.  119 
Choice,  suffrage  by,  i.  n 
Christianity,    almost    impossible    to    be 

established  in  China,  i.  302 
an  enemy  to  despotic  power,  ii.  30 
has  established  a  law  of  nations,  ii. 

30 

its   effect   on   the   Roman   jurispru- 
dence, ii.  19 

why  so  odious  in  Japan,  ii.  56   .,  , 
Church  lands,  how  converted  into  fiefs, 
ii.  232 


Churches,  jurisdiction  of  the,  ii.  203 

regulated  by  Clotharius  II,  ii.  204 
Cicero  on  secret  suffrage,  i.  12 
on  the  Roman  tribunes,  i.  57 
on  Tiberius  Gracchus,  i.  172 
on  commerce,  i.  318 
on  usury,  i.  398,  401 
Cilonian  seditions,  the,  i.  271 
Cincinnatus  prevails  over  the  tribunes, 

i.  118 
Cinq-Mars,    M.    de,   charged   with   high 

treason,   i.   191 
Civil  government  in  France,  reformed, 

h.  221 
law    among    the    Tartars,    and    the 

German  nations,  i.  281 
corrects  false  religions,  ii.  37 
not  applicable  to  matters  of  canon 

law,  ii.  64 

or  to  the  law  of  nations,  ii.  77 
Clemency  of  the  prince,  i.  92,  93 

sometimes  a  mistake,  i.  94 
Clergy,   power   of  the,   dangerous   in   a 
republic,    but    favorable    to    mon- 
archy, i.  16 
a    barrier    against    arbitrary    power, 

i.    16 
their  authority  under  the  first  race 

of  the  Frankish  kings,  i.  290 
in  a  free  state,  i.  313 
bounds  to  be  set  to  their  riches,  ii. 

riches  of  the,  ii.  234 

favored  by  Pepin,  but  oppressed  by 
his  son,  ii.  234 

ravages  of  the  Calvinists,  ii.  235 

tithes,   ii.  237 
Climate,  laws  in  relation  to,  i.  221 

effects  of  cold  and  warm,  i.  222,  223 

laws,  i.  225 

agriculture,  i.  226 

monkery,  i.  226 

sobriety,  i.  227 

distempers,  i.  229,  230 

climate  of  England,  i.  231 

seems   to    prescribe   the   bounds   of 

religions,  ii.  43 

Clotharius  II,  limit  imposed  on  compo- 
sitions for  offences  by,  ii.   199 

his  concessions,  ii.  222 
Clovis,  sanguinary  temper  of,  i.  290 
Coal-pits,  advantage  of,  ii.  8 
Coin,  debasement  of,  under  the  Roman 
emperors,  i.  392 

coining  treated   as   high   treason,   i. 
191 

discovery  of  the  art,  i.  375,  note 
Cold,  effect  of,  on  man,  i.  221 
Colonies,    trade    of,    how   regulated,    i. 

Columbus,  Christopher,  his  discovery  of 

America,  i.  366 

Commerce  to  be  carried  on  by  the  com- 
munity, not  by  individuals,  i.  36 
thought  to  corrupt  the  state,  i.  36 
forbidden   to    the    Venetian    nobles, 

J-  Si 

to  be  tolerated  in  monarchies,  i.  54 
softens  the  manners,  i.  316 
its  spirit,  i.  317 

in  different  governments,  i.  318 
economical  commerce,  i.  319 
example  of  Marseilles,  i.  319 
Holland,  England,  i.  320 
restraints  and  prohibitions,  i.  321 
banks,  i.  322 


272 


MONTESQUIEU 


Commerce,  free  ports  and  freedom  of 

commerce,  i.  323 

judges,  i.  325  .        , 

nobles  should  not  engage  in,  i.  326 
to  what  nations  commerce  is  preju- 
dicial, i.  328 
difference  between  ancient  and  mod- 

after1  the  Destruction  of  the  Western 

Empire,  i.  362,  364 
in  the  East,  i.  363 
breaks    through    the    barbarism    of 

Europe,  i.  363 

Companions,  afterwards  vassals,  n.  190 
Composition  for  murder,  its  scale,  n.  95 
Composition  among  the  barbarous   na- 
tions, ii.  196 

limit  imposed  by  Clothanus,  11.  199 
Condition  of  children,  ii.  2 
Confederate  republics,  i.  128 
Confidence  in  the  people,  difference  of 

the  laws  regarding,  i.  233 
Confiscations    useful    in    despotic    gov- 
ernments, but  in  no  others,  i.  ^63 
of  goods  introduced  by  Caesar,  i.  88 
of  merchandise,  i.  213,  324 
Conquest,  right  of,  i.  134 

modes    of    dealing    with    the    con- 
quered, i.  135 
some  advantages  of  the  conquered, 

i*  136 
conquests  made  by  a  republic   and 

by  a  monarchy,  i.  139 
new   methods   of  preserving  a  con- 
quest, i.  146 

the  Roman  mode,  i.  147 
Conrad,  the  emperor,  his  law  as  to  fiefs, 

ii.  259 

Conspiracies,  revealing  of,  i.  197 
Constantine,  marriage  laws  of,  ii.  17,  66 
other  laws  of  his,  ii.  19,  41 
Ducas,  an  impostor,  i.  89 
Consuls,  the  Roman,  i.  173 
Contemplation,  its  effect,  ii.  33 
Continency,  public,  i.  101 
Copper,  its  proportional  value  to  silver, 

Corinth,  commerce  of,  i.  340 

Coriolanus,  impeachment  of,  its  result, 
i.  170,  175 

Cornelian  laws,  the,  i.  88 

Costs  in  law  proceedings,  ii.  139 

Coucy,  Lord  of,  his  remark  on  the  Eng- 
lish, i.  131 

Countries   raised   by   industry   of   man, 
i.  273 

Counts  and  dukes,  ii.  194 

Courage  of  the  Northern  people,  i.  264 

Credit,  public,  necessary  to  be  support- 
ed, i.  396 

Crete,  singular  institution  in,  i.  116 
love  ol  country  in,  i.  117 

Crillon,  his  sense  of  honor,  i.  31 

Crimes,  four  sorts  of,  i.  185 
inexpiable,  ii.  34 

Cromwell,  character  of,  i.  20 

Cross,  judgment  of,  ii.  115 

Crown    of    France    transferred    to    the 
Capets,  ii.  261 

Crusades,  the,  bring  the  leprosy  to  Eu- 
<  rope,  i.  229 

Cultivation,   best,   in  proportion  to  the 
liberty  of  the  country,  i.  273 

Customs,  local,  ii.  104 
farming  of  the,  i.  324 

Cyrus,  a  law  of,  i.  141 


Dagobert,  reign  of,  il.  225 

Darius     sends    an    expedition    to    the 

Indus,  i.  342 

Daughters,  rights  of,  ii.  62 
Debtors,  cruel  laws  in  respect  of,  i.  200 
at  Rome,  i.  201 
merchant  debtors,  i.  324 
Debts,  public,  i.  394 
payment  of,  i.  395 

advantages  of  a  sinking  fund,  i.  395 
Decemvirs,  cruelty  of  their  laws,  i.  87 

these  fall  into  disuse,  i.  88 
Decretals,     judiciary     forms     borrowed 

from  the,  ii.  147 
Defensive  force  of  states  in  general,  i. 

129 

relative  force,  i.  132 
Defontaines,    the     oldest     French     law 

writer,  ii.  145 
Delos,  ruin  of,  i.  357 
Demesne,  or  crown  lands,  ii.  74 

should  not  be  alienable,  ii.  74 
Democracy,  love  of  the  republic  in  a,  i. 

41 

frugality,  i.  45 
equality  may  be  suppressed  in,  for 

the  good  of  the  state,  i.  45 
methods  of  favoring  the  democratic 

principle,  i.  47,   57,  note 
its  corruption,  i.  109 
example  of  Syracuse,  i.  in 
extreme   equality,   i.    in 
corruption  of  the  people,  i.  111 
Depositary  of  the  laws  necessary  in  a 

monarchy,  i.  17 
the    prince's    council    unfit    for   the 

office,  i.   17 
not  known  to  despotic  governments, 

1.^18 
Despotic,  governments,  relation  of  laws 

to  the  nature  of,  i.   18 
a  vizier  essential,  i.  18 
no  great  share  of  probity  necessary, 

i.  19 

honor  not  their  principle,  i.  25 
fear  takes  its  place,  i.  27,  57 
education,  i.  32 
an  emblem  of  them,  i.  57 
picture  of  a  despotic  monarchy,  i.  58 
of   a    despotic  t  state,    its    insecurity 

and  misery,  i.  59,  60 
communication  of  power,  i.  64 
presents,  i.  65 
rewards,  i.  66 

corruption  of  its  principle,  i.  116 
its  distinctive  properties,  i.   122 
how  it  provides  for  its  security,   i. 

129 

conquest  made,  i.  147 
some   mixture   of   liberty   proper,   i. 

205 

the  taxes  ought  to  be  light,  i.  212 
customs  and  manners,  i.  297 
Dictators  at  Rome,  i.  14 

created  by  the  senate,  i.  172 
Divorce,  forcible,  ii.  60 
and  repudiation,  i.  260 
among  the  Romans,  i.  261 
Doctrines,  use  or  abuse  of,  ii.  38 
D'Olgqrucky,    Prince,   put  to  death  for 

disrespectful  words,  i.  193 
Domestic  government,  its  influence  on 

the  political,  i.  300 
tribunal,   the,   among  the   Romans, 

i.    103 
its  fall,  i.  104 


INDEX 


273 


Domestic  government,  revived  by  Tibe- 
rius, i.  106 

Dorte,  Viscount,  his  reply  to  Charles 
IX  about  the  Huguenots,  i.  31 

Dowries  of  women,  i.  104,  105 

Dream,  Marsyas  put  to  death  for  a,  i. 
193 

East,  principle  on  which  the  morals  of 

the,  are  founded,  i.  256 
domestic  government,  i.  259 
people   of  the,  .believe  all   religions 

indifferent,   ii.  57 

Eastern   countries,   cause  of  the  immu- 
tability of  their  manners  and  cus- 
toms, i.  224 
Ecclesiastic    and    temporal    jurisdiction, 

flux  and  reflux  of  the,  ii.  148 
Education,  laws  of,  i.  29 
in  monarchies,  i.  29,  30 
in  a  despotic  government,  i.  32 
difference  between  the  effects  of  an- 
cient and  modern,  i.  33 
in  a  republican  government,  i.  33 
Egyptian  sultans,  their  power,  i.  363 
Egyptians,   their  laws  covering  leprosy, 

copied  by  the  Jews,  i.  229 
not  a  commercial  people,  i.  336 
trade  with  India,  i.  361 
Election  of  bishops  and  abbots,  ii.  240 
of  the  kings  of  the   second  French 

race,  ii.  243 
Empire    of    Charlemagne,    how    broken 

up,  ii.  262 
Employments,  public,  i.  67 

division  into  civil  and  military,  i.  68 

sale  of,  i.  69 

England,  the  function  of  juries  in,  i.  75 
the  constitution  of,  i.  151 
the  climate,  i.  231 
commerce,  i.  320 
credit,   i.   395 

complaint  of  the  diminution  of  popu- 
lation,  ii.  8 
law    with    regard    to    witnesses,    ii. 

161 
English,   the   steps   taken   by,   to   favor 

their  liberty,  i.  17 

their  failure   to   establish   a   democ- 
racy, i.  20 

their  proneness  to  'suicide,  i.  231 
Ephori,  the  real  kings  of  Sparta,  i.  53 
Epicurus  on  riches,  i.  117 
Epidamnians,  their  rule  as  to  commerce, 

i.  36 

Equality,   how  established  in  a  democ- 
racy, i.  42 

true,  not  extreme,  i.  in 
Escheatage,   and  shipwrecks,  ridiculous 

rights  of,  their  origin,  i.  363 
Essenes,  the,  ii.  32 
Establishment  of  the  French  Monarchy. 

See  Bos,  Abbe  du 
Ethiopia,    influence    of    Christianity   in, 

11.  29 

Eucherius,  St.,  vision  of,  ii.  235 
Eunuchs  intrusted  with  the  magistracy 

in  Tonquin,  i.  249 
have  wives,  i.  249 
Europe,   its  states  of  moderate  extent, 

i.  269 

consequence  of  this,  i.  269 
changes  in  the  number  of  its  inhabi- 
tants, ii.  23 

Euxine   and    Caspian    seas,   project  for 
joining  the,  i.  335 

IS 


Exchange,  example  of  Holland,  i.  381, 

382  and  note 
a   constraint   on   despotic   power,    i. 

39.2 
Exclusion   from   the   succession   to   the 

throne,  ii.  243 
Executive   power,   the,   its  functions,   i. 

1 60 

at  Rome,  i.  172 
Exposing  the  children,  ii.  21 

Fadia    deprived    of    her    estate    by    the 

Yoconian  law,  ii.  88 
Falcidian  law,  its  purpose,  ii.  168 
False  religions  sometimes  corrected  by 

civil  laws,   ii.   36 
Farmers  of  the  revenues,  i.  220 
Father,    his    consent    to    marriage,    on 

what  founded,  ii.  5 
obliged,  among  the  Romans,  to  give 
his   daughter  a   marriage   portion, 
ii.   16 

See  Paternal  Authority 
Fear,  causes  mankind  to  associate,  i.  4 
the     support     of     despotic     govern- 
ments, i.  26 
Female  succession,  right  of,  established 

in  France,  ii.  264 
Fertile  countries,   monarchy  favored,   i. 

271 
Festivals,    inconvenience   of   too   many, 

ii.  41 

Feudal  laws,  ii.  1^1 
their  source,  ii.  171 
lords,  or  vassals,  ii.   190 
lords  led   in  the  field  by  the  king, 

ii.  192 
lead    their   vassals    and    rear-vassals 

with  them,  ii.   192 
Fiefs,  feudal,  at  first  precarious  and  re- 

sumable  at  will,  ii.  191  and  note 
at  length  given  for  life,  ii.   191  and 

note 

changes  in  the,  ii.  255,  256,  257 
their  nature  afterwards,  ii.  258 
some  consequences  of  their  perpetu- 
ity, ii.  262 

of  resumption,  ii.  232 
Fire,   ordeal  by,  ii.   no 
Firearms,  bearing  of,  a  capital  crime  at 

Venice,  ii.   79 
First  race  of  French  kings  reform  the 

Salic  and  Ripuarian  Taws,  ii.  93 
their  humiliation,  ii.  228 
Fiscal,  goods,  what,  ii.  190 
Flanders,   Earl  of,  his  dispute  with  the 

people  of  Gaunt,  ii.  133 
Joan,    Countess  of,   case  of,   ii.    132, 

note 

Foe,  disciples  of,  draw  a  frightful  con- 
sequence from  a   sacred   doctrine, 
ii.  39  and  note 
Fontenay,  battle  of,  ii.  254 
Force,  offensive,  i.  133 
Formosa,  marriage  custom  of,  ii.  2 
another  custom  of,  ii.  10 
singular  belief  of,  ii.  36 
France,  its  capital  happily  placed,  i.  130 
cause  of  its  increase  in  power,  i.  328 
population,  ii.  23  and  note 
law    with    regard    to    witnesses,    ii. 

160,  161  and  note 
and  receivers  and  thieves,  ii.  162 
the  first  race  of  kings,  ii.  93 
the  second  race,  ii.  241 
the  mayor  of  the  palace,  ii.  218 


274 


MONTESQUIEU 


France,    the   crown  transferred   to   the 

Capets,  ii.  261 
Franks,  the  change  in  their  customs  in 

favor  of  daughters,  i.  282 
regal  ornaments  among  the,  i.  280 
marriages  of  the  kings,  i.  286 
when  they  became  of  age,  i.  287 
their  sanguinary  temper,  i.  290 
national  assemblies,  i.  290 
their  treatment  of  the  subject   Ro- 
mans, ii.  96 
the  feudal  laws,  ii.  171 
conquests  of  the,  ii.  174 
taxes    paid    by    the    Romans    and 

Gauls,   ii.   184 
an  ancient  usage,  ii.  196 
Fredegonda,  regency  of,  ii.  221 
Fredum  denned,  ii.  199 

in  favor  of  the  judge,  ii.  201 
a  price  for  his  protection,  ii.  201 
not  levied  everywhere,  ii.  206 
Freemen,  military,  service  of,  ii.   191 
rendered  capable  of  holding  fiefs,  ii. 

252 

Free  nations,  their  characteristics,  i.  315 
Free  ports,  where  to  be  established,  i. 

323 

Freedmen  and  eunuchs,  i.  249 
French,   the.   why  often   driven  out  of 

Italy,  i.   141 
origin  and   revolutions  of  the  civil 

laws  among  them,  ii.  92 
Frisians,  a  law  of  the,  ii.  196 
Frugality  sometimes  mistaken  for  ava- 
rice, i.  21 

Funerals,  expensive,  to  be  discouraged, 
ii.  51 

Gabinian  law?  the,  i.  400 

its  provisions,  i.  401 
Gage,  Thomas,  on  the  Spaniards  in  the 

West  Indies,  ii.  5 
Gallantry,  spirit  of,  little  known  to  the 

ancients,  _  ii.   120 
Ganges,    sanctifying   the   virtue   of   the 

waters  of  the,  ii.  36 

Gaul  invaded  by  German  nations,  ii.  174 
the    Romans   there   not   reduced   to 

slavery,  ii.   178 

Gaul,   South,   independent  of  the  Visi- 
goths, ii.  100  and  note 
Gaurs,  laws  of  the,  ii.  43 
Gelon,  King  of  Syracuse,  his  treaty  with 

the  Carthaginians,  i.  137 
Geneva,  admirable  Jaw  of,  i.  325 
Genoa,  Bank  of  St.  George  at,  i.  13 

act  of  indemnity,  i.  139 
Germans,  the  different  character  of  their 

laws,  ii.  92 

single  combat  among  them,  ii.  109 
Caesar's  account  of  them,  ii.  172 
account  of  Tacitus,  i.   161,   163,  281, 

283,  317;  ii.  1 10,  118 
Globe,  depopulation  of  the:  ii.  ii 

means  to  remedy  the,  ii.  24 
Gold  Coast,  not  visited  by  the  Cartha- 
ginians, i.  351 
Gold  and  silver,  quantity  of,  i.  377 

relative  to  scarcity,  i.  380 
Good  subjects  not  necessarily  good  men, 

i.  24 
Gothic  government  the  best  species  of 

constitution,  i.   163 
Goths   in   Spain,   their  laws   regarding 

slaves,  i.  243        1 
See  also  Visigoths ' 


Government,    the    kind    of,    most    con- 
formable to  nature,  i.  6 
difference   between   the   nature  and 

principle  of,  i.  19 
domestic,  i.  300 

Governments,  three  species  of,  i.  8 
See    Despotic    Government,    Monar- 
chical     Government,      Republican 
Government 

Gracchi,  the,  change  the  Roman  consti- 
tution, i.   172 

Grand  Seignior,  why  held  by  the  cadis 
not  obliged  to  keep  his  word,  i.  26 
Grecian  kings,  commerce  of  the,  i.  344 
Greece,   andT  the  number  of  its  inhabi- 
tants, ii.  10 

kings  of  the  heroic  times  of,  i.   164 
Greek   colonies   not   molested   by  Alex- 
ander, i.  356 
magistrates,    embarrassment  of  the, 

i.  38 
Greeks,  reflections  on  some  institutions 

of  the,  i.  34 

in  what  cases  of  service,  i.  37 
commerce  of  the,  i.  339 
contrast  of  the  ancient  and  the  mod- 
ern, i.  21 
Gregory   III,   his   embassy  to   Charles 

Martel,  ii.  235 

Guardianship,  right  of,  i.  305 
Gundebald,  King,  of  Burgundy,  unwise 

law  of,  ii.  60 
other  laws  of,  ii.  99,  no 
Gymnic  art,  its  relation  to  military  af- 
fairs, i.  117  and  note 
its  effect  on  the  manners,  i.  39,  117 

Hannibal,    complaints    of    the    Cartha- 
ginians against,  i.  22 
his  opponents,  i.  138 
Hanno,   the  opponent  of  Hannibal,  i. 

138 

voyages  of,  i.  351.  352 
Harrington,    his    defective   idea   of   lib- 
erty, i.  162;  ii.  170 
Habo,    a    slave,    made    Archbishop    of 

Rheims,  ii.  215 
Helotes,  wretched  condition  of  the,  i. 

241 
Henry  II,  of  France,  unreasonable  law 

of,  ii.  60 

Henry  VIII,  his  physicians  in  danger 
from  his  law  of  high  treason,  i.  192 
peers,  how  condemned  by,  i.  202 
hospitals  destroyed,  ii.  25 
laws  of  his  contrary  to  the  laws  of 

nature,  ii.  59 

Hereditary     aristocracy     leads     to     oli- 
garchy, i.  ii2 
High  treason,  trivial  acts  treated  as,  in 

China,  i.  190 
and  under  the  Roman  emperors,  i. 

191 
Himilco  sent  to  make  a  settlement  in 

the  Cassiterides,  i.  354 
Hobbes  not  correct  in  his  idea  of  the 

natural  state  of  mankind,  i.  4 
Holland,  the  republic  of,  i.  127 
its  commerce,  i.  320 
course  of  exchange,  i.  381,  note 
Homage  of  vassals,  ii.  265,  266 
Honest   men  not   favored   by   Cardinal 

Richelieu,  i.  24 

Honorary  rights  of  churches,  ii.  241 
Honor  the  spring  of  monarchical  gov- 
ernment,  i.  24 


1 


INDEX 


275 


Honor,  not  the  principle  of  a  despotic 
one,  i.  25 

its  supreme  law,  i.  32 

point  of,  ii.  117 

among  the  Germans,  ii.   118 
Hospitality  among  the  Germans,  i.  317 

law  of  the  Burgundians,  i.  317 
Hospitals,  ii.  25 

Hundreds,  establishment  of,  ii.  191 
Hungarian  nobility,  conduct  of  the,  to 
the  House  of  Austria,  i.  115 

Ichthyophagi,  the,  i.  343 

Immortality  of  the  soul,  the  doctrine  of 

the,  ii.  39 
Immunities,  ii.  207 
Incest,  ii.  70 
Indians,  confidence  in  the  people  shown 

in  the  laws  of  the,  i.  234 
ignorance  of  the  women,  i.  296 
their  abstinence  from  flesh  not  un- 
reasonable, ii.  42 
Indies,  commerce  of  the,  i.  331 
navigation  of  the,  i.  347 
Roman  trade  with,  i.  359 
Egyptian  trade,  i.  361 
Individual,  property  of  the,  not  to  suf- 
fer for  the  public  good,  ii.  73 
Industry,  encouragement  of,  i.  227,  274 
Informers,    honors    paid   to,    under   Ti- 
berius, their  ill  effect,  i.   114  and 
note 

Inhabitants,  laws  in  relation  to  the  num- 
ber of,  i.  402 

Inheritance,  custom  of  despotic  govern- 
ments, i.  5$ 
French  law  of,  ii.  267 
Inquisition,    the,    insupportable    under 

all  governments,  ii.  67 
had   its   origin   in   the   laws   of  the 

Visigoths,  ii.  93 
Inquisitors,  a  Jew's  remonstrance  with 

the,  ii.  54 

Interest  and  usury  confounded,  i.  364 
interest,  how  lowered,  i.  378 
lending  on,  i.  396 

various    rates    of,    among    the    Ro- 
mans, i.  397-400 

Irish  linen  manufacture,  the,  i.  227 
Iroquois,  law  of  nations  among  the,  i.  5 
Isaac  Angelus,  his  clemency  a  mistake, 

i.  93 

Islanders,  fondness  of,  for  liberty,  i.  273 
Italian  republics,  no  real  liberty  in,  i. 

152.  i53 
Italy,  bad  laws  in  some  parts  of,  i.  393 

James  I,  of  Aragon,  sumptuary  laws  of, 

i.  99 
Japan,  insufficiency  of  the  laws  of  the, 

i.  85 

their  cruelty,  i.  86 
their  execution  hindered  thereby,  i. 

indecency  of  their  punishments,  i.  195 
the  laws  repose  no  confidence  in  the 

people,  i.  233 
the  Christian  religion,  why  so  odious 

there,   ii.    56 

Taxartes,  course  of  the,  changed,  i.  335 
Jealousy,  two  kinds  of,  i.  259 
Jenghiz      Khan,      his      contempt      for 

mosques,  ii.  46  ^ 

Jesuits,  their  rule  in  Paraguay,  i.  35 
Jew,  a,  his  remonstrance  with  the  in- 
quisitors, ii.  54 


Jews,  the,  under  Ahasuerus,  i.  28 
superstition  of  the,  ii.  64 
persecution   of   the,   i.   364,   365   and 

note 

invent  letters  of  exchange,  i.  365 
banished  from  Russia,  i.  392 
John,  King,  his  tyranny  to  the  Jews,  i. 

364 

Judge,  the  prince  may  be  a,  in  despotic 
countries,  but  not  in  monarchies, 
i.  77,  78 

Judges,  when  they  ought  to  determine 
according  to  the  express  letter  of 
the  law,  i.  75 

how  chosen  at  Rome,  i.  117 
Judgment,   different   modes  of   passing, 

i.   75 
Judicial     combats,     how     the     custom 

gained  ground,  ii.  in 
Judiciary  powers,   by  whom  to  be   ex- 
ercised, i.  152 
at  Rome,  i.  174 

Julian,  ill-judged  edict  of,  i.  379 
commendation  of,  ii.  33 
law,  the,  its  purpose,  i.  104,  105,  106 
other  laws  of  the  same  name,  ii.  13 
Jurisdiction,  how  exercised  by  the  feu- 
dal chiefs,  ii.  195,  199 
the  fredum,  ii.  201 
patrimonial,    in   France,   its   origin, 

ii.  202 

of  the  churches,  ii.  203 
Jurisdictions,   the  various,   when  estab- 
lished,  ii.   205 

Justice,  antecedent  to  positive  law,  i.  2 
Justinian  abrogates  the  marriage  law  of 

Constantme,  ii.   18,  20 
his  law  of  divorce,  ii.  66 
establishes   a   new   right   of   succes- 
sion, ii.  91 
discovery  of  his  Digest,  ii.  149 

King's  court  in  France,  why  no  appeal 

from,  ii.  129 

vassals,  privileges  of  the,  ii.  231 
Kings  of  the  heroic  times  of  Greece,  i. 

of  Rome,  their  government,  i.  166 
their  laws  cruel,  i.  87 
Knights,    the    Roman,    a    middle    order 

uniting  the  people  to  the  senate,  i. 

178 

Lacedaemonians,  their  public  assemblies, 

i.  9 

their  laws,  i.  34 

obliged   to   submit  to   the   Macedo- 
nians, i.  35.    See  Sparta 
Land, ^  different   ways   of  dividing  the, 

ii.   175 
application    of    the    Visigoth    laws, 

ii.   176 

Law  in  general  defined,  i.  6 
Law,  civil,  defined,  i.  6 

among    the    Tartars    and    German 

nation,  i.  281 
Law,  politic,  defined,  i.  6 

this  not  applicable  to  the  civil  law, 

ii.  72 
may  become  destructive  to  a  state, 

ii.  78 
Law,  proceedings  at,  how  they  became 

secret,  ii.  138 
Law,    Mr.,    a    promoter    of    arbitrary 

power,  i.  17 
Laws,  definition  of,  i.  i 


276 


MONTESQUIEU 


Laws,  their  relation  to  different  beings, 

i.  I 

positive,  i.  5 
of  nations,  i.  5 
civil,  i.  6,  71 
criminal,  i.  73 
in  relation  to  manners  and  customs, 

i.  304 
their  effect  on  national  character,  i. 

307 

should  be  concise,  ii.  163 
ought  not  to  be  subtle,  ii.  166 
should  not  be  needlessly  altered,  ii. 

166 

useless  laws,  ii.  168 
bad  method  of  giving,  ii.  169 
idea  of  uniformity,  ii.  169 
apparently  contradictory,  ii.  75 
divine  and  human,  ii.  58 
fall  into  disuse  for  want  of  writing, 

ii.  104 

customs  take  their  place,  ii.  104 
of  nomadic  nations,  i.  276 
their  political  state,  i.  277 
the  sacred,  at  Rome,  i.  169 
Legal,  duels,  reasons  for,  ii.  no 
used  in  case  of  debt,  ii.  116 
how  managed,  ii.  117,  119 
code  of  laws,  ii.  120 
established  rules,  ii.  121 
bounds    prescribed   to    the   custom, 

ii.  122 
combat  of  one  of  the  parties  of  a 

witness,  ii.   124 
combat   of   one    of   the    parties    and 

one  of  the  lords  peers,  ii.  125 
Legislative   body    should   assemble   fre- 
quently, i.   156 
its  powers,  i.  157^ 
power  at  Rome,  i.  172 
Legislator,  spirit  of  a,  ii.  156 

laws     apparently     contrary     to     his 

views,  ii.  157  .. 
laws  really  so,  n.  157 
fancies  of  imaginary  legislators,   ii. 

170 

Lending  by  contract,  i.  397 
Leprosy,  laws  in  relation  to,  i.  229 
Leudes,  or  vassals,  ii.  190 
Levita,  Benedicta,  censured,  ii.  101 
Libanius  on  a  law  of  the  Athenians,  i.  9 
Libellers  and  poets,  capital  punishment 

denounced  against,  i.  87 
Liberty,    different   significations   of   the 

word,  i.  149 

in  what  it  consists,  i.  150 
how  weakened  in  monarchies,  i.  201 
Lidus,  what,  ii.  95 
Lombards,  law  of  the,  concerning  slaves, 

the     Roman     law    also    keeps     its 

ground,  ii.  100 
Long  robe,  dignity  of  the,  in  France,  i. 

327 

Lot,  suffrage  by,  i.  n 
Louis    the    Debonnaire,    his    treatment 

of  the  Saxons,  i.  136 
his  barbarity  to  his  nephew,  ii.  247 
his  weakness  regarding  his  family, 

ii.  248 

alienates  the  crown  demesnes,  ii.  249 
Louis,  St.,  his  excess  of  zeal  as  a  law- 
giver, i.  ^185,  note 

abolishes  judicial  combats,  ii.   133 
his  institutions  fall  into  oblivion,  ii. 
142 


Louis  XIII,  anecdote  of,  i.  78 

consents   to   the   slavery   of  the   ne- 
groes in  the  hope  of  their  conver- 
sion, i.  238 
Louis  XIV,  grandeur  of  France  under, 

i.  132 
gives  rewards  for  large  families,  ii. 

24 

Love   9f   country   peculiar  to   democra- 
cies, i.  34 
in  Crete,  i.   116 

Lucca,  brief  tenure  of  office  at,  i.  15 
Luxury,  in.  proportion  to  the  inequality 

of  fortunes,  i.  94 
in  towns,  i.  95  and  note 
in  China,  its  fatal  effects,  i.  99 
Roman  laws  against,  i.  106 
Lycian  republic,  the,  i.   128 
Lycurgus,  remarks  on  the  laws  of,  i.  34, 

Mr.  Penn  compared  with  him,  i.  35 
his  senators,  i.  48,  note 
Lydians,    the,    conquered   by   Cyrus,    i. 

Lysander,  anecdote  of,  i.  84 

Machiavel  on  the  loss  of  liberty  of  Flor- 
ence, i.   76 
remark  on,  ii.  170 
Machinery,  to  abridge  labor  not  always 

useful,  ii.  9 

Magic,  charge  of,  i.  187 
Magistrate,   a   single,   only  suited   to   a 

despotic  monarchy,  i.  80 
Mahommedans,  the  facility  of  their  con- 
quests explained,  i.  217 
Mahomet,  his  prohibition  of  wine,  i.  228 
his  direction  as  to  wives,  i.  259 
the  son  of  Miriveis,  i.  27 
Malacca,  fury  of  the  people  of,  ii.  38 
Malea,   Cape,  danger  of  its  navigation, 

i.  340 

Males  and  females,  number  of,  in  differ- 
ent countries,  ii.  7 
Man  as  a  physical  and  as  an  intelligent 

being,  i.  3 

in  a  state  of  nature,  i.  3 
Mankind,  general  spirit  of,  i.  293 

should   be   observed   by   legislators, 

i.  293 

Manners  and  customs  of  a  nation,  natu- 
ral means  of  changing,  i.  298 
mistakes  of  some  legislators,  i.  300 
Marculfus,  his  date,  ii.  229 
his  formularies,  ii.  230 
Marriage,  ii.  2 

several  orders  of  lawful  wives,  ii.  3 

father's  consent  to,  ii.  5 

the  Roman  laws,  ii.  12 

to  be  regulated  by  the  civil  law,  ii. 

67 

the  Papian  law,  ii.  68 
marriages    between   relatives,    ii.    68 

Exhibitions,  ii.  70 
iws  at  Athens  and  at  Sparta,  i.  43, 

at  Rome,  i.  $o 
restrictions,  i.  91 
Married  men,  privileges  of,  among  the 

Romans,  ii.  15 
Marseilles,  amount  of  dowries  fixed  at, 

i.  107,  note 
its  commerce,  i.  319 
rivalry  with  Carthage,  i.  355 
Marsyas  put  to  death  for  a  dream,  i. 
193 


INDEX 


277 


Maurice,  the  emperor,  his  clemency  a 

mistake,  i.  93 

Maximinus,  cruelty  of,  i.  89 
Mayors  of  the  palace,  ii.  218 
their  authority,  ii.  224 
the  idea  of,  derived  from  the  Ger- 
mans, ii.  226 
obtain   the   command  of  armies,   ii. 

227 

their  original  functions,  ii.  227 
great  offices  and  fiefs  under  them, 

ii.  229 

seize  the  throne,  ii.  261.    See  France 
Meaco,  atrocities  committed  at,  i.  86 

considered  a  holy  city,  ii.  37 
Merchandise,  taxes  on,  i.  215 
Metals,  discovery  of,  i.  278,  note 
Metempsychosis,  the  doctrine  of,  ii.  40 
Metius  Suffetius,  punishment  of,  i.  88 
Military  not  to  be  joined  with  civil  em- 
ployment, i.  68 
service,  three  sorts  of,  ii.  193 
double  service,  ii.  193 
Ministers  not  to  sit  as  judges  in  mon- 
archies, i.  79 

of  religion  to  be  honored,  ii.  47 
Minority,   long,  among  the   Romans,  i. 

Minos,  laws  of,  i.  37 
Mithridates,   his  accusation  of  the   Ro- 
man proconsuls,  i.  181 
his  riches,  i.  356 
Modesty,  natural,  i.  258 

not  to  be  shocked  in  punishment,  i. 

195 
Monarchical     government,     relation    of 

laws  to  the  nature  of,  i.  15 
a  depositary  of  the  laws  necessary, 

i.  17 
no  great  share  of  probity  required, 

i.  20,  23 

its  want,  how  supplied,  i.  24 
the  principle  of  monarchy,  i.  25 
laws  in  relation  to  the  principle,  i.  53 
the  executive  power,  i.   54 
corruption  of  its  principle,  i. 


its  distinctive  properties,  i. 
how  it  provides  for  its  se 


"3 
120 


security,   i. 


129 


the  ancients   had  no   clear  idea  of 

monarchy,  i.  162 
liberty,  how  weakened,  i.  201 
spies,  i.  201 

anonymous  letters,  i.  202 
manner  of  governing,  i.  203 
the  prince  should  be  easy  of  access, 

i.  204 

his  manners,  i.  205 
Monarchy,   restoration   of,   in   England, 

i.  20 

Monasteries,  ii.  50 
Money  should  be  banished  from  small 

states,  i.  37 

its  use  a  proof  of  civilization,  i.  277 
laws  among  people  who  know  not, 

and  others  who  know  its   use,  i. 

278 

laws  in  relation  to  the  use  of,  i.  374 
nature  of,  i.  375 
goods   or  chattels   used   instead   of, 


J.  375 
eal 


ideal  money,  i.  376,  379 
exchange,  i.  381 

proceedings  of  the  Romans,  i.  389 
Monsoons,  their  use  in  ancient  times, 
i.  347 


Montesquieu    (the    author),    statements 
of,    explained    or    controverted,    i. 
5,  8,   10,   16,   17,   20,  25,   27,  29,  32, 
33,  34,  36,  41,  43,  44,  52,  S3,  69,  78, 
85,  127,   142,   151,   184,  205,  235,  236, 
238,  259,  355,  372,  393;  ii.  23,  92 
More,  Sir  Thomas,  remark  on,  ii.  170 
Mortmain,    lands    of    freemen    changed 
into,  ii.  181 


law,  ii.  95 
among  other  nations,  ii.  197 
Music,  the  manners  softened  by,  i.  39 

Naires,  a  custom  of  the,  i.  253 
Natches,  despotism  of  the  chief  of  the, 

Nations,  law  of,  i.  5,  6 

effect  of  Christianity  on,  ii.  29 

civil  law  not  applicable,  ii.  76 
Nature,  laws  of,  i.  3 

the  crime  against,  i.  188 

the  charge  often  a  calumny,  i.  189 
Navigation,    some   effects   of   an   exten- 
sive, i.  320 

further  remarks  on,  i.  337 
Negroes.     See  Slavery,  Negro 
Nero,  impracticable  project  of,  i.  219 
New   worlds,    effect   of   their   discovery 

on  Europe,  i.  366 
Nobility  essential  to  a  monarchy,  i.  16 

ready  to  defend  the  throne,  i.  115 

should  not  engage  in  commerce,   i. 
327 

the  French,  ii.  212 
Normans,  ravages  of  the,  ii.  234,  237,  261 

Oath,  effect  of  an,  among  the  Romans, 

i.   118 
only  regarded  by  a  religious  people, 

i-  305 
regarded  as  sacrilegious  by  the  Bur- 

gundians,  ii.  no 
Obedience,    difference   of,    in    moderate 

and  despotic  governments,  i.  27 
of  the  young  to  the  old,  i.  48 
Offensive  force,  i.  133 
Office,  forced  acceptance  of,  i.  67 
Offices,  great  changes  in  the  holding  of, 

ii.  257 
Old  age,  reverence  of  the  Romans  for, 

ii.  15 
Oppian  law,  the,  i.  106 

revoked,  at  the  clamor  of  the  wom- 
en, i.  106 

Orchomenus,  commerce  of,  i.  340,  341 
Ordeal,  or  trial  by  boiling  water,  ii.  109 
Order  of  things,  laws  in  relation  to  the, 

ii.  58 

Ostracism    distinguished    from    banish- 
ment, ii.  75 

how  it  fell  into  disuse,  ii.  75 
where  used,  ii.  158 
Oxus,  course  of,  changed,  i.  334 

Palace,  mayors  of  the,  ii.  217 

usurp  the  throne,  ii.  261 
Paper  money,1  i.  374 
Papian  laws,  the,  ii.  68,  89 
Papirius,  the  usurer,  i.  201 
Paraguay  under  the  Jesuits,  i.  35 
Parliament,  the  French,  ii.   147 

becomes  a  fixed  body,  ii.  148 
Parthian  empire,  the,  i.  362 


278 


MONTESQUIEU 


Paternal  authority  at  Rome,  i.  48 
instance  of,  i.  48,  note 
consent  to  marriage,  ii.  $ 
Patricians,    their    privileges    under   the 

kings  of  Rome,  i.  166 
humbled  by  Seryius  Tullms,  i.  166 
Pegu,  religion  of,  ii.  32 
Penal    laws    respecting    religion    to    be 

avoided,  ii.  53 
Penances,  ii.  34 

Penn.  Mr.,  a  real  Lycurgus,  i.  35 
People,  the  sovereign  in  a  democracy, 

i.   9 

well  qualified  to  choose  their  min- 
isters, i.  10 

but  not  to  exercise  authority  them- 
selves, i.  10 

should  act  only  by  their  representa- 
tives, i.  154 

not  always  prepared  for  the  recep- 
tion of  the  best  laws,  i.  292 
Pepin,  his  constitution  regarding  delays 

of  justice,  ii.  206  _ 
favors  the  clergy,  ii.  233,  236 
divides    his    kingdom    between    his 

sons,  ii.  243 
Perfection,  philosophic  idea  of,  ii.  ig 

Christianity  gives  force  to  it,  ii.  20 
Perpetuity  of  fiefs,  some  consequences 

of  the,  ii.  262 
Persia,  orders  of  its  kings  irrevocable, 

its  vast  extent  a  source  of  weakness, 

i.   130 

an  excellent  custom  in,  i.  206 
sophi  of,  dethroned  because  he  had 

been  too  sparing  of  blood,  i.  27 
Persians,   the,   averse  to   navigation,   i. 

341 
a  false  but  useful  doctrine  of  the, 

ii.  40 
Peter   the    Czar,    his   mode   of   dealing 

with  petitions,  i.  204 
his  levy  of  taxes,  i.  209 
his  sumptuary  laws,  i.  298 
Phaleas  of  Chalcedon,  his  plan  to  ren- 
der all  fortunes  equal,  i.  44 
Philip  II,  his  proscription  of  the  Prince 

of  Orange,  ii.  168 

Philopoemen    obliges    the    Lacedaemon- 
ians to   change   their  institutions, 
i.  35,  note 
Phoenicians,  commerce  of  the,  i.  336 

circumnavigate  Africa,  i.  349 
Phylocles    reproached    for    his    cruelty, 

i.  84 
Physicians,   Roman,   law  respecting,   ii. 

164 

not  suitable  to  modern  times,  ii.  164 
Pistes,  edict  of,  its  purpose,  ii.  90 
Plague,  the,  how  regarded  by  the  Turks, 

i.  230 

Plato  on  music,  i.  37 
on  presents,  i.  65 
on  public  employment,  i.  69 
on  accusations,  i.  80 
on  the  gods,  ii.  50,  51 
on  suicide,  ii.  159 
remark,  ii.  170 
Plebeians  capable  of  office  at  Rome,  i. 

10 
their  power  augmented  by  Servius 

Tullms,   i.   167 
obtain  the  power  of  trying  the  patri- 

cians,.i.  170 
Plebiscite,  i.  172 


Pliny  on  the  navigation  of  the  Indies, 

Plutarch,  his  definition  of  law,  i.  i 
his  opinion  of  women,  i.  102 
on  the  Cilonian  sedition^  i.  271 
Poland,  the  aristocracy  of,  i.  15 
the  insurrection  in,  i.  116 
would    be    better   ofi    without   com- 
merce, i.  329 

Police,  regulations  of  the,  ii.  79 
Politeness,  its  real  origin,  i.  30 

Roman,     associated    with    arbitrary 

power,  ii.  231 
Political  liberty  in  relation  to  the  liberty 

of  the  subject,  i.  183 
Polygamy  considered  in  itself,  i.  254 
equality    of    treatment    in    case    of 

many  wives,  i.  255 
separation  of  women  from  men,  i. 

Pontificate,    the,    in    despotic    govern- 
ments, ii.  51 

Pope,  anecdote  of  a,  i.  18 
Popes,  election  of  the,  ii.  240 
Population  in  relation  to  the  means  of 

subsistence,  i.  275 
Porcian  law,  its  purport,  i.  88 
Pork,   unfit  food   in  hot  countries,  ii. 

42 
Portuguese,     their    discoveries    in    the 

East,  i.  366 
their  restrictions  on  trade  continued 

by  the  Dutch,  i.  366 
Poverty,  two  kinds  of,  i.  317 

idleness  its  real  cause,  ii.  24 
Praetors,  the  Roman,  i.  76,  168 
Precepts  of  the  Frank  kings,  ii.  222 
Presents,  Plato  on,  i.  65 

the  Roman  law,  i.  306 
Price  of  things,  how  fixed,  i.  378 
Pride  the  source  of  politeness,  i.  30 
Primogeniture,  right  of,   baneful  to  an 

aristocracy,  i.  52 
Prince,  clemency  in  the.  i.  92 

should  not  engage  in  commerce,  i. 

326 

Problem,  i.  373 
Procopius,  his  account  of  the  court  of 

Justinian,  i.  79 
Productions  of  the  earth  in  relation  to 

population,  ii.  8 
Prohibition   of    marriage    between   cou- 

sins-german,  ii.  70 
Proof  by  witnesses,  ii.  152 
Propagation  of  the  species,  concern  of 

the  legislature  in  the,  ii.  9 
limitation  of  the  number  of  children, 

ii.  ii 

the  Roman  laws  encourage  popula- 
tion, ii.  12,  13 
French  laws,  ii.  24 

Proscription,  under  the  triumvirs,  i.  198 
Prosecutor,  public,  not  known  in  early 

^times,   ii.    140 
his  advocate,  ii.  141 
Prostitution    contrary    to    propagation, 

ii.  2 
Protestant  religion,  the,  most  agreeable 

to  a  republic,  ii.  30 
Public  credit,  necessary  to  be  supported, 

i.  396 

debts,  i.  394 

their  inconveniences,  i.  394 
payment  of,  i.  395 

advantages  of  a  sinking  fund,  i.  395 
revenues,  the,  i.  207 


INDEX 


279 


Publicans,  the,  of  the  Roman  empire, 

i.  219 

Publius  Rutlius,  noble  conduct  oL  i.  179 
Puffendorf,  on  the  population  of  France, 

ii.  23 
Punishments,  question  of  their  severity 

in  different  governments,  i.  81 
under  the  ancient  French  laws,  i.  82 
few    punishments    necessary    where 

the  people  are  virtuous,  i.  82 
power  of  punishments,  i.  83 
the  Roman  laws,  i.  87,  88 
division  of  punishments  into  classes, 

i.  89 
just     proportion     between     punish* 

ments  and  crimes,  i.  89,  90 
pecuniary  and  corporal  punishments, 

i.  91 

law  of  retaliation,  i.  92 
parents  punished  for  the  crimes  of 

their  children,  i.  92 

Pyrenees,  ancient  gold  and  silver  mines, 
i-  354 

Quaestors  at  Rome,  i.  168 

Rack,  the,  not  a  necessity,  i.  91 

restrictions  on  its  employment,  i.  91 

and  note 
used  in  France,  but  not  in  England, 

ii.  161 

Ragusa,  brief  tenure  of  office  at,  i.  15 
Rear-fiefs,  ii.  255,  258 
Rear-vassals,  ii.  192 
Receiver  and  thief,  punishment  of,  ii. 

161 

the  French  law,  ii.  161  >t 
views  of  the  civilians,  ii.  162 
Recessuinthus,  iniquitous  law  of,  ii.  60 

proscribes  the  Roman  law,  ii.  100 
Red  Sea,  the,  of  the  ancients,  i.  349 

not  the  same  as  ours,  i.  349 
Regal  laws  of  Rome,  their  cruelty,  i.  87 
Registers,  public,  their  origin,  ii.  152 
Rejection,   power  of,   should  belong  to 
the  people,  and  not  the  power  of 
resolving,  i.  155 

Religion,  its  influence  on  despotic  gov- 
ernments, i.  59 

«  the  laws  in  relation  to,  ii.  27 
the  Christian  and  the  Mohammedan, 
what  governments  most  agreeable 
to,  ii.  29 

laws  of  perfection,  ii.  32 
moral  laws,  ii.  32 
its  influence  on  civil  laws,  ii.  35 
its  support  to  the  state,  ii.  36 
immortality  of  the  soul,  ii.  39 
should  not  inspire  aversion  to  any- 
thing but  vice,  ii.  41 
local  laws,  ii.  42 
external  polity,  ii.  43 
religious  sentiments,  ii.  43 
the  pontificate,  ii.  51 
toleration,  ii.  51 
changing  a  religion,  ii.  53 
penal  laws,  ii.  53 
propagation  of  religion,  ii.  157 
its    laws    cannot    regulate    the   civil 

law,  ii.  65,  66,  67,  68 
Representatives  of  the  people,  i.  153 
Republican     government    divided  ^  into 

democratic  and  aristocratic,  i.  8 
education  in  a,  i.  33 
ifs  distinctive  properties,  i.  120 
how  it  provides  for  its  safety,  i.  125 


Republican    government,      confederate 

republics,  i.  128 

too  severe  in  punishing  high  trea- 
son, i.  197 

suspension  of  liberty,  i.  199 
laws  favorable  to  the  liberty  of  the 

subject,  i.  199 
cruelty  to  debtors,  i.  200 
Republics,  Greek,  two  sorts  of,  i.  46 
Repudiation,  i.  260 

later  legislation,  i.  306 
Rescripts  of  the  Roman  emperors,  ii.  165 
Retaliation,  law  of,  i.  92 

among  the  Arabs,  and  the  Germans, 

ii.  37 
Rhodes,   law  of,   respecting   debtors,    i. 

325 
Marquis   of,    proposes   to   open   the 

Pyrenean  mines,  i.  354 
Richelieu,  Cardinal,  on  honest  men,  i.  24 
his  advice  to  kings,  i.  55 
requires    too    much    for    them    and 

their  ministers,  i.  56 
regards   an   offence   against   himself 

as  high  treason,  i.  191 
on  complaints  against  ministers,  ii. 

165 
Ripuarian   Franks    preserve   their   own 

customs,  ii.  92 

simplicity  of  their  laws.  ii.  93 
Robbery.     See  Theft 
Roman  law,  how  lost  in  some  countries 

and  preserved  in  others,  ii.  96 
keeps  its  ground  in  the  demesne  of 

the  Lombards,  ii.  100 
how  lost  in  Spain,  ii.  101 
why  it  fell  into  disuse,  ii.  115 
its  revival,  ii.  149 
Romans,    the,    their   views   of   maritime 

affairs  and  of  commerce,  i.  357 
their    proceedings    with    respect    to 

money,  i.  389 
change  the  value  of  their  specie,  i. 

39o 

proceedings  in  the  time  of  the  em- 
perors, i.  391 
usury,  i.  396 
marriage  laws,  ii.  13,  15 
laws  of  succession,  ii.  81 
not  in  a  state  of   servitude  among 

the  conquerors  of  Gaul,  ii.  177 
Rome,  one  principal  cause  of  her  fall, 

i.  9 
division   of   the   people   by   Servius 

Tullius,  i.  10 
the  senate,  i.  12,  13 
project  of  Sylla,  i.  20 
paternal  authority,  i.  49  and  note 
its  state  as  an  aristocratic  republic, 

i.  5i 

the  tribunes,  i.  55 
set  form  of  actions  at,  i.  76 
the  kings,  i.  166 
new  distribution  of  power  on  their 

fall,  i.  168 

government  of  the  provinces,  i.  180 
government  of  the  kings  of,  i.  165 
Romulus,   his  laws  regarding  children, 

ii.  21 

Roricon,  his  works,  ii.   175  and  note 
Rotharis,  his  law  concerning  lepers,  i. 

229 
increase       the       compositions       for 

wounds,  ii.   197 

Russian   government,    its    endeavors   to 
temper  its  arbitrary  power,  i.  59 


280 


MONTESQUIEU 


Sabbaco,  history  of,  ii.  30 

Sacrilege,  impolicy  of  punishments  for, 

instance  of  misguided  zeal,  i.  185 
Sailors,  civil  obligations  among,  n.  80 
Salians,  the,  simplicity  of  their  laws,  11. 

Q3 

do    not    tolerate    corporal    punish- 
ments, ii.  94 

difference    between    them    and    the 
laws   of   the    Visigoths   and    Bur- 
gundians,  ii.  95 
and   the   Ripuanan   Franks,   n.    100, 

107 

Salic  law,  its  purpose,  i.  281,  282 
Salic  lands,  not  fiefs,  i.  285 

laws,   different  from  those  of  other 

barbarians,  ii.  106,  108 
why  they  fell  into  disuse,  ii.  116 
Salt  used  in  Abyssinia  as  money,  i.  374, 

note 
Sammites,  their  origin,  i.  108 

excellent  custom  of  the,  i.  107 
Sardinia,  conduct  of  the  Carthaginians, 

Satisfaction,  refusal  of,  ii.  198  and  note 
Savage   and    barbarous    nations,    differ- 
ence between,  i.  276 
Savages,  natural  timidity  of,  i.  4 
Saxons,     their     treatment     by     Charle- 
magne, and  by  Louis  the  Debon- 
naire,  i.  136 
Seamen,  little  esteemed  by  the  Romans, 

Seaport  towns,  populousness  9f,  ii.  8 
Second  race  of  French  kings,  ii.  241 
confusion  of  the  royalty  and  mayor- 
alty, ii.  241 

election  of  the  kings,  ii.  243 
their  humiliation,  its  principal  cause, 

ii.  253 

their  fall,  ii.  261 
Seignior,  Grand.     See  Sultan  > 
Seleucus  Nicator,  project  of,  i.  335 
Semiramis,  treasures  of,  i.  334 
Senate,  power  of  the,  at  Athens,  i.  13 
at  Rome,  i.  13,  14 
elected  for  life,  i.  48 
its  spirit,  i.  87 
at  Carthage,  i.  177 
Servitude,  domestic,  i.  251 

political,  i.  264 
Servitudes,  ii.   177 

Servius  Tullius,  his  division  of  the  peo- 
ple, i.  ii 
alters  the  constitution  of  Rome,  i. 

167 

his  land  laws,  ii.  82 
Sexes,  difference  of,   leads  mankind  to 

associate,  i.  4 

inequality  in  various  climates,  i.  255 

Sextilius  keeps  possession  of  Fadia  s 

estate,    under   the    Voconian    law, 

ii.  88 

Sextus  Peduccus,  liberal  conduct  of,  ii. 

88 
Shah  Nadir,  his  conquest  of  the  Mogul, 

i.  148 

Shipping  of  the  ancients,  i.  337 
Siamese,  their  idea  of  happiness,  i.  225 
Silanus,  his  marriage  to  his  sister,  i.  44 
Silver,   its  proportionate  value  to   cop- 
Sinking  fund,  advantages  of,  i.  395 
Sixtus    Quintus    desired    to    revive    the 
public  accusation  of  adultery,  i.  104 


Slavery,     most    tolerable    in     despotic 

countries,  i.  235 
origin  of  the  right  of  slavery  among 

the  Roman  civilians,  i.  236 
other  origins,  i.  237,  239 
negro  slaves,  i.  238 
true  origin  of  the  right,  i.  238 
useless  in  Europe,  i.  240 
several  kinds  of  slavery,  i.  241 
regulations  and  abuses,  i.  241 
danger  from  the  multitude  of  slaves, 

i.  243 

armed  slaves,  i.  243 
precautions   used   in   moderate   gov- 
ernments, i.  244 
practice  of  the  Romans,  i.  245 
regulations     between     masters     and 

slaves,  i.  246 
enfranchisements,  i.  247 
domestic    slavery    independently    of 

polygamy,  i.  258 
negro  question  of  its  lawfulness,   i. 

238      . 

arguments  for  the  practice,  i.  239 
Slaves,  enfranchisement  of,  i.  247 

enfranchised  to  accuse  their  masters, 

i.   196 

war  of  the,  one  of  its  causes,  i.  179 
Sobriety,  laws  relating  to,  i.  228 
Sociable  temper,  effect  of  a,  i.  295 
Soil,  nature  of  the,  its  relation  to  the 

laws,  i.  271 

Soldiers,  Roman,  their  privileges,  ii.  19 
Solomon,  the  fleets  of,  i.  336 

their  tedious  voyage,  i.  337 
Solon,  his  division  of  the  people,  i.  ii, 

45,  note 

his  amendment  of  the  suffrage,  i.  12 
his  law  of  inheritance,  i.  43 
his  rules  for  the  Court  of  Areopagus, 

i.  77 

his  law  for  the  debtors,  i.  200 
Soul,   immortality   of  the,   the   doctrine 

falsely  understood,  ii.  39 
South    and    north,    difference    of    their 

wants,  i.  332 
Southern   nations,   contradiction   in  the 

tempers  of  some,  i.  224 
Spain,    riches    of,    in   ancient  times,    i. 

riches  drawn  from  America,  i.  369 
Spaniards,  their  character,  i.  296 

their    argument    for    enslaving    the 

Indians,  i.  238 
not  really  enriched  by  discovery  of 

the  New  World,  i.  372,  373 
their  conduct   in   the   West   Indies, 

ii.  5    . 

and  Chinese,  character  of  the,  i.  296 
Spanish    monarchy,    particular    case    of 

the,  i.  121 

barbarous  law  of  the,  i.  324 
Sparta,  the  public  assemblies  of,  i.  9 
laws  of,  i.  34 
abrogated    by    Philopoemen,    i.    35, 

note 

marriage  law  at;  i.  43 
a  strange  law,  i.  82 
Speeches,   indiscreet,   punishment  of,   i. 

19? 
State   inquisitors   at   Venice,    i.    14,    52, 

151,  153 

Stoics,  sect  of  the,  ii.  33 
Subordination  of  the  citizen  to  the  mag- 
istrate, i.  48 
Subsidies.    See  Taxes 


INDEX 


281 


Substitution,  the  Roman  and  the  French 

law  of,  ii.  159 
Successions,   origin   and   revolutions   of 


the  Roman  laws  on,  ii.  81,  pi 
female  succession  in  France,  ii. 
Suffrage,  two  kinds  of,  i.  ii 


264 


open  suffrage  preferred,  i.  12 

often  given  for  money,  i.  12 
Suicide  said  to  be  the  consequence  of  a 

distemper,  in  England,  i.  231 

ancient  laws  against,  ii.  159 
Sultan,    why    held    not    bound    by    his 
word,  i.  26 

his  claim  on  inheritance,  i.  60 

cruelty  in  the  administration  of  jus- 
tice, i.  82 
Sumptuary  laws  in  a  democracy,  i.  96 

in  an  aristocracy,  i.  97 

in  a  monarchy,  i.  97,  98 

in  what  cases  useful  there,  i.  99 

among  the  Romans,  i.  104 
Superstition,  power  of,  i.  279 

luxury  of,  ii.  50 
Sweden,  sumptuary  laws  of,  i.  99 

their  object,  i.  99 

Sylla,  project  of  restoring  Roman  liberty 
ascribed  to,  i.  20 

makes  the  Cornelian  laws,  i.  88 
Syracuse,  its  corruption  and  misery,  i. 

Ill,    112 

ostracism  at,  ii.  158 
Syrian  kings,  commerce  of  the,  i.  345 

Tacitus,  on  the  manners  of  the  Ger- 
mans, i.  161,  163,  281,  284,  316;  ii. 
no,  118 

Tarquin,  rule  of,  i.  167 
Tartars,  effect  of  their  conquests,  i.  268 
their  servitude,  i.  267,  279 
law  of  nations  among  them,  i.  280 
civil   law,   i.   281 
strange  laws  of  the,  ii.  35 
Taxes   in   various  governments,   i.  207, 

208,  209,  210 
on  land,  i.  210 
on  merchandise,  i.  211 
a  bad  impost,  i.  212 
ought  to  be  light,  i.  213 
relation  between  the  weight  of  taxes 

and  liberty,  i.  214 
increase  of  taxes,  i.  214,  215 
oppressive  taxes  of  the   Greek   em- 
perors, i.  217 
exemptives,  i.  218 
question  of  levying  taxes,  i.  219 
none  levied  on  the  lands  of  the  bar- 
barians in  Gaul,  ii.  181 
transient    tax  on  the  Romans  there, 

ii.  181. 

taxes  paid  by  the  Romans  and  Gauls 
in   the   monarchy   of   the   Franks, 
ii.   184 
Temples,  ii.  46 

become  sanctuaries,  ii.  47 
Testament.     See  Will 
Thebans,  their  horrible  device  to  soften 
the  manners  of  their  youth,  i.  39 
Theft,  various  laws  against,  ii.  162 

the  law  of  the  Twelve  Tables,  ii.  164 
Theobald,     King    of    the    Franks,    his 

weakness,  ii.  227 
Theodoric,  King  of  Italy,  his  spirit  and 

policy,  ii.  179 

Theodosian  code,  the,  its  nature,  ii.  19 
Theophilus,   anecdote  of,   i.   326 
Theophrastus  on  music,  i.  37,  38 


Thoughts,  punishment,  i.  193 
Tiberius,    tyrannical   proceedings   of,    i. 

105 

Tithes,  establishment  of,  ii.  237 
Toleration  in  point  of  religion,  ii.  51 
Tournaments,  ii.  120 
Trade.     See  Commerce 
Treasure,  the  king's,  ii.  174 
Trials.     See  Judgment  Ordeal 
Tribunals,  change  of,  on  the  revival  of 

the  Roman  law,  ii.  149 
Tribunes,  the  preservers  of  the  Roman 

republic,  i.  55 
Tribute,  exemptions  from,  in  China,  i. 

216 
Triumvirs,  the  Roman,  their  barbarous 

proscriptions,  i.   198 
Troops,    augmentation    of,    in    Europe, 

its  evil  effects,  i.  217 
Truth  in  conversation  not  valued  for  its 

own  sake,  i.  30 
Turkey,  lawsuits  speedily  decided  in,  i. 

danger  of  a  litigious  disposition  in, 

i.  74 

Tutelage.     See  Guardianship 
Twelve  Tables,  law  as  to  capital  cases, 
i.  176 

as  to  succession,  ii.  81 

as  to  heirship,  ii.  82 

as  to  thieves,  ii.  164 
Tyranny,  i.  293 
Tyre,  commerce  of,  i.  318 

its  settlements,  i.  335 

Usury   forbidden   by   the   laws   of   Ma- 
homet, i.   396  v 
maritime,  i.  396 
among  the  Romans,  i.  396 

Valerian  law,  its  purport,  i.  83 
Valette,    the    Duke    de    la,    trial    of,    i. 

78 
Vamba,  a  king  of  the  Visigoths,  ii.  101 

and  note 

Vanity  and  pride  of  nations,  i.  295 
Vassalage,  the  origin  of,  ii.   172 
Vassals,    variously    named    in    the    bar- 
barian laws,  ii.   190 
privileges  9f  the  king,  ii.  230 
Venetians,  their  parsimony,  i.  97 

their  trade  with  the  East,  i.  366 
Venice,   state  inquisitors,  i.   14,  52,   152, 

wisdom  of  its  government,  i.  49,  note 
its   laws   against   hereditary   aristoc- 
racy, i.  112,  note 
different  tribunals,  i.  153 
Verres,  corrupt  conduct  of,  ii.  87 
Vessels,  build  and  burden  of,  i.  338 
Vestal  virgins,  privileges  granted  to  the, 

ii.  18 
Villanage,   taxes   on   people   in   a   state 

of,  i.  208 
Villeins  allowed  to  use  only  the  baston 

in  legal  duels,  ii.  118 
Vines  in  Gaul,  why  rooted  up  by  Do- 

tnitain,  i.  359 

Virginia,  tragedy  of,  i.  80,  171 
Virtue  essential  in  a  popular  state,  i. 

20,  21 

the  principles  of  a  monarchical  gov- 
ernment, i.  23 
political  and  private,   distinguished, 

i.  23 
in  a  political  state,  i.  39 


282 


MONTESQUIEU 


Visigoths,  regulation  of  the,  in  favor  of 

commerce,  i.  363 
law  on  adultery,  ii.  76 
their     laws     new-moulded     by     the 

clergy,  ii.  93 
ridiculous  law  against  the  Jews,  ii. 

169 

Voconian  law,  its  provisions,  ii.  62,  86 
how  evaded,  ii.  87 
falls  into  disuse,  ii.  90 
Volga,  mistake  of  the  ancients  regard- 
ing the,  i.  346 
Voltaire,  remark  on  a  nobility  by,  i.  16, 

note 
on    honors   and    distinctions,    i.    25, 

note 

on  Alcibiades,  i.  42 
on    Montesquieu's    public    employ- 
ment, i.  69 

War,  not  the  natural  state  of  mankind, 

i.  4 
commences  when  men  congregate  in 

society,  i.  5 

the  right  to  wage  war,  i.  133 
Warnacharius,  mayor  of  the  palace,  ii. 

219 

his  death,  ii.  224 
Water,  the  common  drink  of  the  Arabs, 

i.  228 
Wealth,  fictitious  and  representative,  i. 

370 
Will,  power  of  making  a,  ii.  83 

now  made  at  Rome,  ii.  84 
Wine,   use   of,   why   forbidden   by   Ma- 
homet, i.  228 
Witchcraft,  charges  of,  i.  188 


Witnesses,  different  usage  regarding,  in 
England  and  in  France,  ii.  161 

in  legal  duels,  ii.  124 

proof  by,  ii.  152 
Wives,  plurality  of,  i.  252 

several  orders  of  lawful,  ii.  3 
Women,   their   estate   in   different   gov- 
ernments, i.  102 

the    domestic    tribunal    among    the 
Romans,  i.  103 

guardianship,  i.  105 

punishments  for  incontinence,  i.  105 

dowries   and   nuptial   advantages,   i. 
105 

female  administration,  i.  108 

in   hot   and   in   temperate   climates, 
difference  of  their  state,  i.  251 

their  manners  preserved  by  confine- 
ment in  Turkey,  i.  257 

their  depravity  in  Africa,  i.  257 

succession    of,    under    the    Roman 
laws,  ii.  85,  89 

not  allowed  the  wager  of  battle,  ii. 

123 

Worship,  external,  its  influence  on  re- 
ligion, ii.  46 

its  magnificence,  ii.  46 

its   purity,   ii.   47 

Writing,  laws  fall  into  disuse  from  want 
of  writing,  ii.  104 

Xenophon,  lucrative  arts  contemned  by, 

as  unworthy  of  a  free  man,  i.  38 
his  Banquet  quoted,  i.  109 

Zozimus,   his   account   of   the   court   of 
Arcadius,  i.  79 


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PART  OF  A  PAGE  SELECTED  FROM  FUST  AND 
..       SCHOEFFERS  SECOND  PSALTER. 

V 

The  decisive  success  and  rapid  sale  of  the  first  printed  Psalter,  issued  in  1457, 
induced  Schoeffer  to  start  work  upon  a  larger-sized  edition  of  the  Psalter  which  was 
completed  in  October,  1459,  and  in  which  the  colored  initials  again  appear  as  in  the 
first  edition. 

U,    INTRODUCTION    br 


1   EDfQHD 

.O 


C\7 


PHY5ICS  AND  POLITICS 


THOUGHTS  ON  THE  APPLICATION  OF 

THE     PRINCIPLES     OF     "  NATURAL 

SELECTION"  AND  "INHERITANCE"  TO 

POLITICAL  SOCIETY 


WALTER  BAGEHOT 


WITH  A  SPECIAL  INTRODUCTION  BY 
LAURENCE    LAUGHLIN,    PH.D. 


PROFESSOR   OF   POLITICAL   ECONOMY   AT  THE 
UNIVERSITY  OF  CHICAGO 


REVISED  EDITION 


COPYRIGHT,  1900, 
BY  THE  COLONIAL  PRESS. 


I 


SPECIAL   INTRODUCTION 


WALTER  BAGEHOT  was  born  at  Langport,  Somer- 
setshire, February  3,  1826,  and  died  March  24,  1877. 
His  father  was  the  managing  director  of  Stuckey's 
Banking  Company ;  his  mother  was  Miss  Stuckey,  a  woman  of 
brilliant  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- 
tice 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 


Iv 


BAGEHOT 


only  with  economics  but  with  the  study  of  government.  In- 
deed, there  is  much  in  the  brilliant  generalizations  of  Bagehot 
which  recalls  the  work  of  Sir  Henry  Maine  in  jurisprudence. 
In  some  important  points  the  two  men  were  much  alike ;  each 
had  a  wide  range  of  vision,  and  each  had  an  honest  respect  for 
facts.  Bagehot,  however,  was  led  into  a  more  active  and  prac- 
tical life,  while  his  qualities  also  fitted  him  for  the  study  of 
theory  and  the  principles  underlying  the  modern  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  in  the  power  to  grasp  at  the  essentials 
and  to  avoid  the  hindering  details  of  institutions.  With 
Bagehot  it  was  more  than  training ;  it  was  an  inspiration. 

A  sound  mind  in  a  sound  body,  overflowing  with  super- 
abundant spirits,  distinctly  powerful  and  original,  buoyant, 
vivacious,  swift,  he  finely  illustrated  in  a  way  his  own  evolu- 
tionary doctrine.  With  a  deep  substratum  of  English  con- 
servatism and  practical  sense,  powerfully  affected  by  the 
English  "  cake  of  custom,"  yet  in  his  originality,  his  imagina- 
tion, his  dash,  and  intellectual  fertility,  he  had  the  tendency  to 
variation  which  modified  elemental  qualities  and  produced  a 
very  unusual  type  of  the  Anglo-Saxon.  Steeped  early  in  life  in 
theology,  philosophy,  and  poetry,  he  was  yet  held  in  by  his 
English  good  judgment,  his  ability  to  see  both  sides  of  a  matter, 
and  by  a  practical  knowledge  of  men  and  of  the  actual  world  of 
business.  This  sympathy,  as  Mr.  Hutton  expresses  it,  "  with 
the  works  of  high  imagination,  and  his  clear  insight  into  that 
busy  life  which  does  not  and  cannot  take  note  of  works  of 
high  imagination,  and  which  would  not  do  the  work  it  does  if 
it  could,"  was  the  secret  of  his  great  power  as  an  economist. 
This  was  apparent  in  other  and  small  ways,  as  when  he  was 
drawn  by  his  liking  for  the  discourse  of  Crabb  Robinson  to  go 
to  his  breakfasts,  where  absent-mindedness  of  the  host  led  to 
much  omission  of  the  elements  of  the  meal,  but  which  Bagehot 
characteristically  met  by  breakfasting  before  he  started  out. 
A  reserved  man  he  was,  yet  with  a  saving  grace  of  humor. 
Slavery  in  early  communities  is  almost  justified  by  his  remark 
that  "  the  patriarchs  Abraham,  Isaac,  and  Jacob  could  not  have 
had  the  steady  calm  which  marks  them,  if  they  had  themselves 
been  teased  and  hurried  about  their  flocks  and  herds."  These, 
according  to  Bagehot,  should  be  tended  by  slaves.  It  was  his 


SPECIAL  INTRODUCTION  v 

imagination  which  not  only  leavened  his  interpretation  of  eco- 
nomic life,  but  also  penetrated  his  superb  style. 

There  was  nothing  fragile  about  his  mental  operations.  His 
robust  courage  made  it  easy  for  him  to  rub  the  English  con- 
sciousness the  wrong  way  in  his  audacious  letters  defending 
Louis  Napoleon's  coup  d'etat,  as  well  as  to  pillory  English 
denseness  by  saying  "  in  real  sound  stupidity,  the  English  peo- 
ple are  unrivalled:  you'll  hear  more  wit  and  better  wit  in  an 
Irish  street  row  than  would  keep  Westminster  Hall  in  humor 
for  five  weeks." 

A  certain  freedom  from  sentiment,  which  kept  him  from 
sympathy  with  the  "struggle  for  existence, "was,  while  a  defect, 
also  a  source  of  his  power  in  the  search  for  truth.  He  could 
not  have  done  Toynbee's  work ;  but  the  Toynbee  type  could  not 
have  done  Bagehot's  work.  The  quality  of  mind  which 
brought  him  into  close  contact  with  Arthur  Hugh  Clough,  was 
the  realization  of  the  difficulty  of  finding  the  truth.  In  Clough's 
"  ruinous  force  of  the  will  "  to  persuade  us  of  illusions  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  book  he  has  tried  to  show  how,  in  our 
complex  modern  existence,  discussion,  which  will  point  out 
difficulties,  will  restrain  the  excess  of  practical  activity.  He 
seems  to  have  had  the  present  hour  in  view  when  he  opposes 
expansion,  on  the  principle  that  the  practical  energy  of  our 
Western  peoples  "  is  far  in  advance  of  the  knowledge  that 
would  enable  them  to  turn  that  energy  to  good  account."  By 
suspending  action  until  judgment  was  more  matured,  he  hoped 
that  the  calibre  of  the  English  mind,  conscience,  and  taste 
would  be  generally  raised.  The  brilliant  applications  of  science 
to  politics  in  this  book,  together  with  his  "  English  Constitu- 
tion," made  the  chief  foundations  of  Bagehot's  reputation.  V 

His  "Lombard  Street,"  and  his  "Postulates  of  Political 
Economy,"  brilliant  though  they  may  be,  as  hints  of  what  he 
might  have  done  in  Economics,  are  detatched  studies,  far  re- 
moved from  the  systematic  character  of  his  political  writing. 

The  scope  of  his  intellectual  activity  may  be  seen  in  the 
following  list  of  his  writings; 

"Letters  on  the  Coup  d'Etat  of  1851,"  written  to  the  In- 


vi  BAGEHOT 

quirer,  reprinted  in  the  first  volume  of  "  Literary  Studies  "  ; 
"  Parliamentary  Reform,"  reprinted  from  the  National  Review, 
1858;  "History  of  the  Unreformed  Parliament,"  from  the 
National  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. 
Huttpn  :  "  Literary  Studies,"  two  volumes,  1879  ;  "  Economic 
Studies,"  1880;  "Biographical  Studies,"  1881. 


T.   oO* 


CONTENTS 

fAGB 

I.  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  POLITICALLY  CONSIDERED 127 


ILLUSTRATIONS 

FACING    PAGE 

PART   OF   A    PAGE  FROM  THE  SECOND   PSALTER         Frontispiece 
Fac-simile  example  of  Printing  in  the  Fifteenth  Century 

NIOBE  AND  HER  DAUGHTER 126 

Photo-engraving  from  the  original  marble  group 


PHYSICS  AND  POLITICS 

CHAPTER  I 

THE   PRELIMINARY  AGE 
Part  I 

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  same,  or  at  all 
the  same,  as  it  was  fifty  years  ago.  A  new  world  of  inventions 
• — of  railways  and  of  telegraphs — has  grown  up  around  us 
which  we  cannot  help  seeing;  a  new  world  of  ideas  is  in  the 
air  and  affects  us,  though  we  do  not  see  it.  A  full  estimate 
of  these  effects  would  require  a  great  book,  and  I  am  sure  I 
could  not  write  it ;  but  I  think  I  may  usefully,  in  a  few  papers, 
show  how,  upon  one  or  two  great  points,  the  new  ideas  are 
modifying  two  old  sciences — politics  and  political  economy. 
Even  upon  these  points  my  ideas  must  be  incomplete,  for  the 
subject  is  novel ;  but,  at  any  rate,  I  may  suggest  some  conclu- 
sions, and  so  show  what  is  requisite  even  if  I  do  not  supply  it. 

If  we  wanted  to  describe  one  of  the  most  marked  results, 
perhaps  the  most  marked  result,  of  late  thought,  we  should 
say  that  by  it  everything  is  made  "  an  antiquity."  When,  in 
former  times,  our  ancestors  thought  of  an  antiquarian,  they 
described  him  as  occupied  with  coins,  and  medals,  and  Druids' 
stones;  these  were  then  the  characteristic  records  of  the  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  made  it  precisely  what  it  is ;  those 
forces  have  left  their  trace,  she  knows,  as  much  as  the  tact  and 
hand  of  the  artist  left  their  mark  on  a  classical  gem.  It  would 

i 


2  BAGEHOT 

be  tedious  (and  it  is  not  in  my  way)  to  reckon  up  the  ingenious 
questionings  by  which  geology  has  made  part  of  the  earth,  at 
least,  tell  part  of  its  tale;  and  the  answers  would  have  been 
meaningless  if  physiology  and  conchology  and  a  hundred 
similar  sciences  had  not  brought  their  aid.  Such  subsidiary 
sciences  are  to  the  decipherer  of  the  present  day  what  old  lan- 
guages were  to  the  antiquary  of  other  days ;  they  construe  for 
him  the  words  which  he  discovers,  they  give  a  richness  and  a 
truth-like  complexity  to  the  picture  which  he  paints,  even  in 
cases  where  the  particular  detail  they  tell  is  not  much.  But 
what  here  concerns  me  is  that  man  himself  has,  to  the  eye  of 
science,  become  "  an  antiquity."  She  tries  to  read,  is  begin- 
ning to  read,  knows  she  ought  to  read,  in  the  frame  of  each  man 
the  result  of  a  whole  history  of  all  his  life,  of  what  he  is  and 
what  makes  him  so, — of  all  his  forefathers,  of  what  they  were 
and  of  what  made  them  so.  Each  nerve  has  a  sort  of  memory 
of  its  past  life,  is  trained  or  not  trained,  dulled  or  quickened, 
as  the  case  may  be ;  each  feature  is  shaped  and  characterized, 
or  left  loose  and  meaningless,  as  may  happen;  each  hand  is 
marked  with  its  trade  and  life,  subdued  to  what  it  works  in  ;— 
if  we  could  but  see  it. 

It  may  be  answered  that  in  this  there  is  nothing  new ;  that 
we  always  knew  how  much  a  man's  past  modified  a  man's 
future ;  that  we  all  knew  how  much  a  man  is  apt  to  be  like  his 
ancestors;  that  the  existence  of  national  character  is  the 
greatest  commonplace  in  the  world.;  that  when  a  philosopher 
cannot  account  for  anything  in  any  other  manner,  he  boldly 
ascribes  it  to  an  occult  quality  in  some  race.  But  what  physi- 
cal science  does  is,  not  to  discover  the  hereditary  element,  but 
to  render  it  distinct, — to  give  us  an  accurate  conception  of 
what  we  may  expect,  and  a  good  account  of  the  evidence  by 
which  we  are  led  to  expect*  it.  Let  us  see  what  that  science 
teaches  on  the  subject ;  and,  as  far  as  may  be,  I  will  give  it  in 
the  words  of  those  who  have  made  it  a  professional  study,  both 
that  I  may  be  more  sure  to  state  it  rightly  and  vividly,  and 
because — as  I  am  about  to  apply  these  principles  to  subjects 
which  are  my  own  pursuit — I  would  rather  have  it  quite  clear 
that  I  have  not  made  my  premises  to  suit  my  own  conclusions. 
1st,  then,  as  respects  the  individual,  we  learn  as  follows: 
"Even  while  the  cerebral  hemispheres  are  entire,  and  in 


PHYSICS    AND    POLITICS  3 

full  possession  of  their  powers,  the  brain  gives  rise  to  actions 
which  are  as  completely  reflex  as  those  of  the  spinal  cord. 

"  When  the  eyelids  wink  at  a  flash  of  light,  or  a  threatened 
blow,  a  reflex  action  takes  place,  in  which  the  afferent  nerves 
are  the  optic,  the  efferent,  the  facial.  When  a  bad  smell  causes 
a  grimace,  there  is  a  reflex  action  through  the  same  motor 
nerve,  while  the  olfactory  nerves  constitute  the  afferent  chan- 
nels. In  these  cases,  therefore,  reflex  action  must  be  effected 
through  the  brain,  all  the  nerves  involved  being  cerebral. 

"  When  the  whole  body  starts  at  a  loud  noise,  the  afferent 
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  are  mere  mechanical  actions, 
and  have  nothing  to  do  with  the  acts  which  we  associate  with 
intelligence.  But  let  us  consider  what  takes  place  in  such  an 
act  as  reading  aloud.  In  this  case,  the  whole  attention  of  the 
mind  is,  or  ought  to  be,  bent  upon  the  subject-matter  of  the 
book ;  while  a  multitude  of  most  delicate  muscular  actions  are 
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  eyes;  the  eyes  are  moved,  from  side  to  side, 
over  the  lines,  and  up  and  down  the  pages.  Further,  the  most 
delicately  adjusted  and  rapid  movements  of  the  muscles  of  the 
lips,  tongue,  and  throat,  of  laryngeal  and  respiratory  muscles, 
are  involved  in  the  production  of  speech.  Perhaps  the  reader 
is  standing  up  and  accompanying  the  lecture  with  appropriate 
gestures.  And  yet  every  one  of  these  muscular  acts  may  be 
performed  with  utter  unconsciousness,  on  his  part,  of  anything 
but  the  sense  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  are  involved  in  the  structure  of  the  cord  and  the 
properties  of  its  constituents.  By  the  help  of  the  brain  we 
may  acquire  an  affinity  of  artificial  reflex  actions.  That  is  to 
say,  an  action  may  require  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  without  volition,  or  even  consciousness. 

"  As  everyone  knows,  it  takes  a  soldier  a  very  long  time  to 


4  BAGEHOT 

learn  his  drill — to  put  himself,  for  instance,  into  the  attitude 
of  '  attention '  at  the  instant  the  word  of  command  is  heard. 
But,  after  a  time,  the  sound  of  the  word  gives  rise  to  the  act, 
whether  the  soldier  be  thinking  of  it  or  not.  There  is  a  story, 
which  is  credible  enough,  though  it  may  not  be  true,  of  a  prac- 
tical joker,  who,  seeing  a  discharged  veteran  carrying  home 
his  dinner,  suddenly  called  out  '  Attention !'  whereupon  the 
man  instantly  brought  his  hands  down,  and  lost  his  mutton 
and  potatoes  in  the  gutter.  The  drill  had  been  gone  through, 
and  its  effects  had  become  embodied  in  the  man's  nervous 
structure. 

"  The  possibility  of  all  education  (of  which  military  drill  is 
only  one  particular  form)  is  based  upon  the  existence  of  this 
power  which  the  nervous  system  possesses,  of  organizing  con- 
scious actions  into  more  or  less  unconscious,  or  reflex,  opera- 
tions. It  may  be  laid  down  as  a  rule,  that  if  any  two  mental 
states  be  called  up  together,  or  in  succession,  with  due  fre- 
quency and  vividness,  the  subsequent  production  of  the  one 
of  them  will  suffice  to  call  up  the  other,  and  that  whether  we 
desire  it  or  not."  * 

The  body  of  the  accomplished  man  has  thus  become  by 
training  different  'from  what  it  once  was,  and  different  from 
that  of  the  rude  man ;  it  is  charged  with  stored  virtue  and  ac- 
quired faculty  which  come  away  from  it  unconsciously. 

Again,  as  to  race,  another  authority  teaches : — "  Man's 
life  truly  represents  a  progressive  development  of  the  nervous 
system,  none  the  less  so  because  it  takes  place  out  of  the  womb 
instead  of  in  it.  The  regular  transmutation  of  motions  which 
are  at  first  voluntary  into  secondary  automatic  motions,  as 
Hartley  calls  them,  is  due  to  a  gradually  effected  organization ; 
and  we  may  rest  assured  of  this,  that  co-ordinate  activity  al- 
ways testifies  to  stored-up  power,  either  innate  or  acquired. 

"  The  way  in  which  an  acquired  faculty  of  the  parent  animal 
is  sometimes  distinctly  transmitted  to  the  progeny  as  a  herit- 
age, instinct,  or  innate  endowment,  furnishes  a  striking  con- 
firmation of  the  foregoing  observations.  Power  that  has  been 
laboriously  acquired  and  stored  up  as  statical  in  one  generation 
manifestly  in  such  case  becomes  the  inborn  faculty  of  the  next ; 
and  the  development  takes  place  in  accordance  with  that  law 
*  Huxley's  "  Elementary  Physiology,"  pp.  284—286. 


PHYSICS    AND    POLITICS  5 

of  increasing  specialty  and  complexity  of  adaptation  to  external 
nature  which  is  traceable  through  the  animal  kingdom ;  or,  in 
other  words,  that  law  of  progress  from  the  general  to  the 
special  in  development  which  the  appearance  of  nerve  force 
amongst  natural  forces  and  the  complexity  of  the  nervous 
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 m  a  more  special  and  complex  mode  of  energy ;  so 
again  a  further  specialization  takes  place  in  the  development 
of  the  nervous  system,  whether  watched  through  generations 
or  through  individual  life.  It  is  not  by  limiting  our  observa- 
tions 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  antecedents  in 
the  past,  and  in  the  examination  of  these  alone  do  we  arrive 
at  the  adequate  explanation  of  him.  It  behooves  us,  then,  hav- 
ing found  any  faculty  to  be  innate,  not  to  rest  content  there,  f 
but  steadily  to  follow~15ackwards  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,  that  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  hard 
effort  to  acquire — this  notion  of  a  transmitted  nerve  element 
will  ever  understand  "  the  connective  tissue  "  of  civilization. 
We  have  here  the  continuous  force  which  binds  age  to  age, 
which  enables  each  to  begin  with  some  improvement  on  th*e 
last,  if  the  last  did  itself  improve ;  which  makes  each  civiliza- 
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 

*  Maudsley  on  the  "  Physiology  and  Pathology  of  the  Mind,"  p.  73. 


6  BAGEHOT 

cause  of  improvement  from  generation  to  generation :  and  no 

imagination  which  has  apprehended  it  can  forget  it ;  but  unless 

you  appreciate  that  cause  in  its  subtle  materialism,  unless  you 

see  it,  as  it  were,  playing  upon  the  nerves  of  men,  and,  age  after 

\  age,  making  nicer  music  from  finer  chords,  you  cannot  com- 

/  prehend  the  principle  of  inheritance  either  in  its  mystery  or  its 

*   power. 

These  principles  are  quite  independent  of  any  theory  as  to 
the  nature  of  matter,  or  the  nature  of  mind.  They  are  as  true 
upon  the  theory  that  mind  acts  on  matter — though  separate 
.and  altogether  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 
and  matter  are  different  modifications  of  some  one  tertium 
quid,  some  hidden  thing  or  force.  All  these  theories  admit 
— indeed  they  are  but  various  theories  to  account  for — the 
lact  that  what  we  call  matter  has  consequences  in  what  we 
call  mind,  and  that  what  we  call  mind  produces  results  in 
what  we  call  matter;  and  the  doctrines  I  quote  assume  only 
that.  Our  mind  in  some  strange  way  acts  on  our  nerves,  and 
I  our  nerves  in  some  equally  strange  way  store  up  the  conse- 
!  quences,  and  somehow  the  result,  as  a  rule  and  commonly 
enough,  goes  down  to  our  descendants;  these  primitive  facts 
all  theories  admit,  and  all  of  them  labor  to  explain. 

Nor  have  these  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  does  not  consider  it  as 
an  agency  acting  in  vacuo,  but  as  an  agency  acting  upon  other 
agencies.  Every  Freewillist  holds  that,  upon  the  whole,  if 
you  strengthen  the  motive  in  a  given  direction,  mankind  tend 
more  to  act  in  that  direction.  Better  motives — better  im- 
pulses, rather — come  from  a  good  body:  worse  motives 
or  worse  impulses  come  from  a  bad  body.  A  Freewillist  may 
a'dmit  as  much  as  a  Necessarian  that  such  improved  conditions 
tend  to  improve  human  action,  and  that  deteriorated  conditions 
tend  to  deprave  human  action.  No  Freewillist  ever  expects 
as  much  from  St.  Giles's  as  he  expects  from  Belgravia:  he 
admits  an  hereditary  nervous  system  as  a  datum  for  the  will, 


I 


PHYSICS    AND    POLITICS  7 

though  he  holds  the  will  to  be  an  extraordinary  incoming 
"  something."  No  doubt  the  modern  doctrine  of  the  "  Con- 
servation of  Force,"  if  applied  to  decision,  is  inconsistent  with 
free  will ;  if  you  hold  that  force  "  is  never  lost  or  gained,"  you 
cannot  hold  that  there  is  a  real  gain — a  sort  of  new  creation 
of  it  in  free  volition.  But  I  have  nothing  to  do  here  with  the 
universal  "  Conservation  of  Force."  The  conception  of  the 
nervous  organs  as  stores  of  will-made  power  does  not  raise 
or  need  so  vast  a  discussion. 

Still  less  are  these  principles  to  be  confounded  with  Mr. 
Buckle's  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 
first  here.  It  is  the  action  of  the  will  that  causes  the  uncon- 
scious habit;  it  is  the  continual  effort  of  the  beginning  tha^t 
creates  the  lioarded  energy  of  the  end ;  it  is  the  silent  toil  of 
the  first  generation  that  becomes  the  transmitted  aptitude  of 
the  next.  Here  physical  causes  do  not  create  the  moral,  but 
moral  create  the  physical ;  here  the  beginning  is  by  the  higher 
energy,  the  conservation  and  propagation  only  by  the  lower. 
But  we  thus  perceive  how  a  science  of  history  is  possible,  as 
Mr.  Buckle  said — a  science  to  teach  the  laws  of  tendencies — 
created  by  the  mind,  and  transmitted  by  the  body — which  act 
upon  and  incline  the  will  of  man  from  age  to  age. 

Part  II 

But  how  do  these  principles  change  the  philosophy  of  our 
politics  ?  I  think  in  many  ways  ;  and  first,  in  one  particularly. 
Political  economy  is  the  most  systematized  and  most  accurate 
part  of  political  philosophy ;  and  yet,  by  the  help  of  what  has 
been  laid  down,  I  think  we  may  travel  back  to  a  sort  of  "  pre- 
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  requisite  and  wise. 

For  this  purpose  I  do  not  need  to  deal  with  the  dim  ages 
which  ethnology  just  reveals  to  us — with  the  stone  age,  and 
the  flint  implements,  and  the  refuse-heaps.  The  time  to  which 
I  would  go  back  is  only  that  just  before  the  dawn  of  history — 
coeval  with  the  dawn,  perhaps,  it  would  be  right  to  say — for 


g  BAGEHOT 

the  first  historians  saw  such  a  state  of  society,  though  they  saw 
other  and  more  advanced  states,  too:  a  period  of  which  we 
have  distinct  descriptions  from  eye-witnesses,  and  of  which 
the  traces  and  consequences  abound  in  the  oldest  law.  "  The 
effect,"  says  Sir  Henry  Maine,  the  greatest  of  our  living  jurists 
— the  only  one,  perhaps,  whose  writings  are  in  keeping  with 
our  best  philosophy — "  of  the  evidence  derived  from  compar- 
ative jurisprudence  is  to  establish  that  view  of  the  primeval 
condition  of  the  human  race  which  is  known  as  the  Patriarchal 
Theory.  There  is  no  doubt,  of  course,  that  this  theory  was 
originally  based  on  the  Scriptural  history  of  the  Hebrew 
patriarchs  in  Lower  Asia ;  but,  as  has  been  explained  already, 
its  connection  with  Scripture  rather  militated  than  otherwise 
against  its  reception  as  a  complete  theory,  since  the  majority 
of  the  inquirers  who  till  recently  addressed  themselves  with 
most  earnestness  to  the  colligation  of  social  phenomena,  were 
either  influenced  by  the  strongest  prejudice  against  Hebrew 
antiquities  or  by  the  strongest  desire  to  construct  their  system 
without  the  assistance  of  religious  records.  Even  now  there 
is  perhaps  a  disposition  to  undervalue  these  accounts,  or  rather 
to  decline  generalizing  from  them,  as  forming  part  of  the  tra- 
ditions of  a  Semitic  people.  It  is  to  be  noted,  however,  that 
the  legal  testimony  comes  nearly  exclusively  from  the  insti- 
tutions of  societies  belonging  to  the  Indo-European  stock, 
the  Romans,  Hindoos,  and  Sclavonians  supplying  the  greater 
part  of  it ;  and  indeed  the  difficulty,  at  the  present  stage  of  the 
inquiry,  is  to  know  where  to  stop,  to  say  of  what  races  of  men 
it  is  not  allowable  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  are  familiar  to  most  of  us 
from  our  earliest  childhood,  and  because,  from  the  interest 
once  attaching  to  the  controversy  which  takes  its  name  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  history  are  these : — The 
eldest  male  parent — the  eldest  ascendant — is  absolutely  su- 
preme in  his  household.  His  dominion  extends  to  life  and 
death,  and  is  as  unqualified  over  his  children  and  their  houses 


PHYSICS    AND    POLITICS  9 

as  over  his  slaves  ;  indeed  the  relations  of  sonship  and  serfdom 
appear  to  differ  in  little  beyond  the  higher  capacity  which  the 
child  in  blood  possesses  of  becoming  one  day  the  head  of  a 
family  himself.  The  flocks  and  herds  of  the  children  are  the 
flocks  and  herds  of  the  father,  and  the  possessions  of  the 
parent,  which  he  holds  in  a  representative  rather  than  in  a 
proprietary  character,  are  equally  divided  at  his  death  among 
his  descendants  in  the  first  degree,  the  eldest  son  sometimes 
receiving  a  double  share  under  the  name  of  birthright,  but 
more  generally  endowed  with  no  hereditary  advantage  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  effected  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  immature  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  characteristics  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  "  Odyssey  "  of  Homer  :— 

*'  roifftv  y  otfr*  ayopal  &ov\y(p6pot  otrc 


They  have  neither  assemblies  for  consultation  nor  themistes, 
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  is  con- 
firmed by  what  may  be  called  the  last  lesson  of  pre-historic 
ethnology.     Perhaps  it  is  the  most  valuable,  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  civilization.     His-  / 
tory  catches  man  as  he  emerges  from   the  patriarchal  state  :  r     \        *ji 
ethnology  shows  how  he  lived,  grew,  and  improved  in  that      (p 
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      \fi* 


io  BAGEHOT 

than  an  sesthetic  degradation — nothing  than  a  political  degra- 
dation. But  you  cannot  imagine  mankind  giving  up  the  plain 
utensils  of  personal  comfort,  if  they  once  knew  them ;  still  less 
can  you  imagine  them  giving  up  good  weapons — say  bows 
and  arrows — if  they  once  knew  them.  Yet  if  there  were  a 
primitive  civilization  these  things  must  have  been  forgotten, 
for  tribes  can  be  found  in  every  degree  of  ignorance,  and  every 
grade  of  knowledge  as  to  pottery,  as  to  the  metals,  as  to  the 
means  of  comfort,  as  to  the  instruments  of  war.  And  what  is 
more,  these  savages  have  not  failed  from  stupidity;  they  are, 
in  various  degrees  of  originality,  inventive  about  these  matters. 
You  cannot  trace  the  roots  of  an  old  perfect  system  variously 
maimed  and  variously  dying;  you  cannot  find  it,  as  you  find 
the  trace  of  the  Latin  language  in  the  mediaeval  dialects.  On 
the  contrary,  you  find  it  beginning — as  new  scientific  dis- 
coveries and  inventions  now  begin — here  a  little  and  there  a 
little,  the  same  thing  half-done  in  various  half-ways,  and  so 
as  no  one  who  knew  the  best  way  would  ever  have  begun. 
An  idea  used  to  prevail  that  bows  and  arrows  were  the  "  primi- 
tive weapons  " — the  weapons  of  universal  savages ;  but  modern 
science  has  made  a  table,*  and  some  savages  have  them  and 
some  have  not,  and  some  have  substitutes  of  one  sort  and 
some  have  substitutes  of  another — several  of  these  substitutes 
being  like  the  "  boomerang,"  so  much  more  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  being  upon  various  edges  of  industrial  civ- 
ilization, approaching  it  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,  than  civilized 
man.  The  South  American  uses  the  horse  which  the  Eu- 
ropean brought  better  than  the  European.  Many  races  use 
the  rifle — the  especial  and  very  complicated  weapon  of  civilized 
man — better,  upon  an  average,  than  he  can  use  it.  The  savage 
with  simple  tools — tools  he  appreciates — is  like  a  child,  quick 
to  learn,  not  like  an  old  man,  who  has  once  forgotten  and  who 
cannot  acquire  again.  Again,  if  there  had  been  an  excellent 
aboriginal  civilization  in  Australia  and  America,  where,  botan- 

*  See  the  very  careful  table  and  admirable  discussion  in  Sir  John 
Lubbock's  "  Pre-Historic  Times." 


PHYSICS    AND    POLITICS  n 

ists  and  zoologists  ask,  are  its  vestiges?  If  these  savages 
did  care  to  cultivate  wheat,  where  is  the  wild  wheat  gone 
which  their  abandoned  culture  must  have  left?  If  they  did 
give  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  much  is  certain,  that  the  do- 
mestic animals  of  Europe  have,  since  what  may  be  called  the 
discovery  of  the  world  during  tjie  last  hundred  years,  run  up 
and  down  it.  The  English  rat — not  the  pleasantest  of  our 
domestic  creatures — has  gone  everywhere;  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  America  since  the  Spaniards  took 
him  thither;  if  we  did  not  know  the  contrary  we  should  sup- 
pose him  a  principal  aboriginal  animal.  Where  then,  so  to 
say,  are  the  rats  and  horses  of  the  primitive  civilization  ?  Not 
only  can  we  not  find  them,  but  zoological  science  tells  us  that 
they  never  existed,  for  the  "  feebly  pronounced,"  the  in- 
effectual, marsupials  of  Australia  and  New  Zealand  could 
never  have  survived  a  competition  with  better  creatures,  such 
as  that  by  which  they  are  now  perishing. 

We  catch  then  a  first  glimpse  of  patriarchal  man,  not  with 
any  industrial  relics  of  a  primitive  civilization,  but  with  some 
gradually  learnt  knowledge  of  the  simpler  arts,  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  should  expect  the  first  historic  man  to  be,  and  this  is  what 
we  in  fact  find  him.  But  what  was  his  mind ;  how  are  we  to 
describe  that? 

I  believe  the  general  description  in  which  Sir  John  Lubbock 
sums  up  his  estimate  of  the  savage  mind  suits  the  patriarchal 
mind.  "  Savages,"  he  says,  "  ujiite  the  Character  of  childhood 
with  the  passions  and  strength  of  men."  And  if  we  open  the 
first  record  of  the  pagan  world — the  poems  of  Homer— how 
much  do  we  find  that  suits  this  description  better  than  any 
other.  Civilization  has  indeed  already  gone  forward  ages  be- 
yond the  time  at  which  any  such  description  is  complete.  Man, 
in  Homer,  is  as  good  at  oratory,  Mr.  Gladstone  seems  to  say, 
as  he  has  ever  been,  and,  much  as  that  means,  other  and  better 


V 


I2  BAGEHOT 

things  might  be  added  to  it.  But  after  all,  how  much  of  the 
"  splendid  savage  "  there  is  in  Achilles,  and  how  much  of  the 
"spoiled  child  sulking  in  his  tent."  Impressibility  and  ex- 
citability are  the  main  characteristics  of  the  oldest  Greek 
history,  and  if  we  turn  to  the  east,  the  "  simple  and  violent " 
world,  as  Mr.  Kinglake  calls  it,  of  the  first  times  meets  us 
every  moment. 

And  this  is  precisely  what  we  should  expect.  An  "  inherited 
drill,"  science  says,  "  makes  modern  nations  what  they  are ; 
their  born  structure  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  were  born  to  no  tutored  habits,  no  pre- 
servative bonds,  and  therefore  they  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  from  any  we  know. 
We  unconsciously  assume  around  us  the  existence  of  a  great 
miscellaneous  social  machine  working  to  our  hands,  and  not 
only  supplying  our  wants,  but  even  telling  and  deciding  when 
those  wants  shall  come.  No  one  can  now  without  difficulty 
conceive  how  people  got  on  before  there  were  clocks  and 
watches ;  as  Sir  G.  Lewis  said,  "  it  takes  a  vigorous  effort  of 
the  imagination  "  to  realize  a  period  when  it  was  a  serious 
difficulty  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  civilization, 
nor  possessed  a  polity,  which  is  a  kind  of  clock-work  to  moral 
civilization.  They  never  could  have  known  what  to  expect; 
the  whole  habit  of  steady  but  varied  anticipation,  which  makes 
our  minds  what  they  are,  must  have  been  wholly  foreign  to 
theirs. 

Again,  I  at  least  cannot  call  up  to  myself  the  loose  con- 
ceptions (as  they  must  have  been)  of  morals  which  then  existed. 
If  we  set  aside  all  the  element  derived  from  law  and  polity 
which  runs  through  our  current  moral  notions,  I  hardly  know 
what  we  shall  have  left.  The  residuum  was  somehow,  and  in 
some  vague  way,  intelligible  to  the  ante-political  man,  but  it 
must  have  been  uncertain,  wavering,  and  unfit  to  be  depended 
upon.  In  the  best  cases  it  existed  much  as  the  vague  feeling 


PHYSICS    AND    POLITICS  13 

of  beauty  now  exists  in  minds  sensitive  but  untaught;  a  still 
small  voice  of  uncertain  meaning;  an  unknown  something 
modifying  everything  else,  and  higher  than  anything  else,  yet 
in  form  so  indistinct  that  when  you  looked  for  it  it  was  gone — 
or  if  this  be  thought  the  delicate  fiction  of  a  later  fancy,  then 
morality  was  at  least  to  be  found  in  the  wild  spasms  of  "  wild 
justice,"  half  punishment,  half  outrage — but  anyhow,  being  un- 
fixed by  steady  law,  it  was  intermittent,  vague,  and  hard  for  us 
to  imagine.  Everybody  who  has  studied  mathematics  knows 
how  many  shadowy  difficulties  he  seemed  to  have  before  he 
understood  the  problem,  and  how  impossible  it  was  when 
once  the  demonstration  had  flashed  upon  him,  ever  to  com- 
prehend those  indistinct  difficulties  again,  or  to  call  up  the 
mental  confusion  that  admitted  them.  So  in  these  days,  when 
we  cannot  by  any  effort  drive  out  of  our  minds  the  notion  of 
law,  we  cannot  imagine  the  mind  of  one  who  had  never  known 
it,  and  who  could  not  by  any  effort  have  conceived  it. 

Again,  the  primitive  man  could  not  have  imagined  what 
we  mean  by  a  nation.  We  on  the  other  hand  cannot  imagine 
those  to  whom  it  is  a  difficulty ;  "  we  know  what  it  is  when 
you  do  not  ask  us,"  but  we  cannot  very  quickly  explain  or 
define  it.  But  so  much  as  this  is  plain,  a  nation  means  a  like 
body  of  men,  because  of  that  likeness  capable  of  acting  to- 
gether, and  because  of  that  likeness  inclined  to  obey  similar 
rules;  and  even  this  Homer's  Cyclops — used  only  to  sparse 
human  beings — could  not  have  conceived. 

To  sum  up,  lawr— rigid,  definite,  concise  law — is  the  primary 
want  of  early  mankind ;  that  v/hich  they  need  above  anything 
else,  that  which  is  requisite  before  they  can  gain  anything 
else.  But  it  is  their  greatest  difficulty,  as  well  as  their  first 
requisite;  the  thing  most  out  of  their  reach,  as  well  as  that 
most  beneficial  to  them  if  they  reach  it.  In  later  ages  many 
races  have  gained  much  of  this  discipline  quickly,  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. 


,4  BAGEHOT 

Part  HI, 

How  the  step  from  polity  to  no  polity  was  made  distinct, 
history  does  not  record — on  this  point  Sir  Henry  Maine  has 
drawn  a  most  interesting  conclusion  from  his  peculiar  studies : 

"  It  would  be,"  he  tells  us,  "  a  very  simple  explanation  of 
the  origin  of  society  if  we  could  base  a  general  conclusion  on 
the  hint  furnished  us  by  the  Scriptural  example  already  ad- 
verted to,  and  could  suppose  that  communities  began  to  exist 
wherever  a  family  held  together  instead  of  separating  at  the 
death  of  its  patriarchal  chieftain.  In  most  of  the  Greek  states 
and  in  Rome  there  long  remained  the  vestiges  of  an  ascending 
series  of  groups  out  of  which  the  state  was  at  first  constituted. 
The  family,  house,  and  tribe  of  the  Romans  may  be  taken  as 
a  type  of  them,  and  they  are  so  described  to  us  that  we  can 
scarcely  help  conceiving  them  as  a  system  of  concentric  circles 
which  have  gradually  expanded  from  the  same  point.  The 
elementary  group  is  the  family,  connected  by  common  subjec- 
tion to  the  highest  male  ascendant.  The  aggregation  of 
families  forms  the  gens,  or  house.  The  aggregation  of  houses 
makes  the  tribe.  The  aggregation  of  tribes  constitutes  the 
commonwealth.  Are  we  at  liberty  to  follow  these  indications, 
and  to  lay  down  that  the  commonwealth  is  a  collection  of 
persons  united  by  common  descent  from  the  progenitor  of  an 
original  family?  Of  this  we  may  at  least  be  certain,  that  all 
ancient  societies  regarded  themselves  as  having  proceeded 
from  one  original  stock,  and  even  labored  under  an  incapacity 
for  comprehending  any  reason  except  this  for  their  holding 
together  in  political  union.  The  history  of  political  ideas 
begins,  in  fact,  with  the  assumption  that  kinship  in  blood  is  the 
sole  possible  ground  of  community  in  political  functions ;  nor 
is  there  any  of  those  subversions  of  feeling,  which  we  term 
emphatically  revolutions,  so  startling  and  so  complete  as  the 
change  which  is  accomplished  when  some  other  principle — 
such  as  that,  for  instance,  of  local  contiguity—establishes  itself 
for  the  first  time  as  the  basis  of  common  political  action." 

If  this  theory  were  true,  the  origin  of  politics  would  not 
seem  a  great  change,  or,  in  early  days,  be  really  a  great  change. 
The  primacy  of  the  elder  brother,  in  tribes  casually  cohesive, 
would  be  slight;  it  would  be  the  beginning  of  much,  but  it 


PHYSICS    AND    POLITICS  15 

would  be  nothing  in  itself ;  it  would  be — to  take  an  illustration 
from  the  opposite  end  of  the  political  series — it  would  be  like 
the  headship  of  a  weak  parliamentary  leader  over  adherents 
who  may  divide  from  him  in  a  moment;  it  was  the  germ  of 
sovereignty, — it  was  hardly  yet  sovereignty  itself. 

I  do  not  myself  believe  that  the  suggestion  of  Sir  Henry 
Maine — for  he  does  not,  it  will  be  seen,  offer  it  as  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  speaks  of.  But  the  theory  of  Sir  Henry  Maine  serves  my 
present  purpose  well.  It  describes,  and  truly  describes,  a  kind 
of  life  antecedent  to  our  present  politics,  and  the  conclusion 
I  have  drawn  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  when  once  polities  were  begun,  there  is  no  difficulty  in  V 
explaining  why  they  lasted.  Whatever  may  be  said  against 
the  principle  of  "  natural  selection  "  in  other  departments, 
there  is  no  doubt  of  its  predominance  in  early  human  history. 
The  strongest  killed  out  the  weakest,  as  they  could.  And  I 
need  not  pause  to  prove  that  any  form  of  polity  is  more  efficient 
than  none;  that  an  aggregate  of  families  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  being  singular  that  we  find  no 
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  picturesqueness  it  became 
valuable  in  poetry. 

But,  though  the  origin  of  polity  is  dubious,  we  are  upon  the 
terra  firma  of  actual  records  when  we  speak  of  the  preservation 
of  polities.  Perhaps  every  young  Englishman  who  comes 
now-a-days  to  Aristotle  or  Plato  is  struck  with  their  con- 
servatism :  fresh  from  the  liberal  doctrines  of  the  present  age, 
he  wonders  at  finding  in  those  recognized  teachers  so  much 
contrary  teaching.  They  both — unlike  as  they  are — hold  with 
Xenophon — so  unlike  both — that  man  is  the  "  hardest  of  all 


,5  BAGEHOT 

animals  to  govern."  Of  Plato  it  might  indeed  be  plausibly 
said  that  the  adherents  of  an  intuitive  philosophy,  being  "  the 
Tories  of  speculation,"  have  commonly  been  prone  to  con- 
servatism in  government;  but  Aristotle,  the  founder  of  the 
experience  philosophy,  ought,  according  to  that  doctrine,  to 
have  been  a  liberal,  if  anyone  ever  was  a  liberal.  In  fact,  both 
of  these  men  lived  when  men  had  not  "  had  time  to  forget " 
the  difficulties  of  government.  We  have  forgotten  them  al- 
together. We  reckon,  as  the  basis  of  our  culture,  upon  an 
amount  of  order,  of  tacit  obedience,  of  prescriptive  govern- 
ability,  which  these  philosophers  hoped  to  get  as  a  principal 
result  of  their  culture.  We  take  without  thought  as  a  datum 
what  they  hunted  as  a  quasitum. 

In  early  times  the  quantity  of  government  is  much  more 
important  than  its  quality.  What  you  want  is  a  comprehensive 
rule  binding  men  together,  making  them  do  much  the  same 
things,  telling  them  what  to  expect  of  each  other — fashioning 
them  alike,  and  keeping  them  so.  What  this  rule  is  does  not 
matter  so  much.  A'  good  rule  is  better  than  a  bad  one,  but 
any  rule  is  better  than  none ;  while,  for  reasons  which  a  jurist 
will  appreciate,  none  can  be  very  good.  But  to  gain  that  rule, 
what  may  be  called  the  impressive  elements  of  a  polity  are 
incomparably  more  important  than  its  useful  elements.  How 
to  get  the  obedience  of  men  is  the  hard  problem ;  what  you  do 
with  that  obedience  is  less  critical. 

/  To  gain  that  obedience,  the  primary  condition  is  the  identity 
\l — not  the  union,  but  the  sameness — of  what  we  now  call 
Church  and  State..  Dr.  Arnold,  fresh  from  the  study  of  Greek 
thought  and  Roman  history,  used  to  preach  that  this  identity 
was  the  great  cure  for  the  misguided  modern  world.  But  he 
spoke  to  ears  filled  with  other  sounds  and  minds  filled  with 
other  thoughts,  and  they  hardly  knew  his  meaning,  much  less 
heeded  it.  But  though  the  teaching  was  wrong  for  the  modern 
age  to  which  it  was  applied,  it  was  excellent  for  the  old  world 
from  which  it  was  learnj.  What  is  there  requisite  is  a  single 
government — call  it  Church  or  State,  as  you  like — regulating 
the  whole  of  human  life.  No  division  of  power  is  then  en- 
durable without  danger — probably  without  destruction;  the 
priest  must  not  teach  one  thing  and  the  King  another;  King 
must  be  priest,  and  prophet  King:  the  two  must  say  the  same, 


PHYSICS    AND    POLITICS  17 

because  they  are  the  same.  The  idea  of  difference  between 
spiritual  penalties  and  legal  penalties  must  never  be  awakened. 
Indeed,  early  Greek  thought  or  early  Roman  thought  would 
never  have  comprehended  it.  There  was  a  kind  of  rough 
public  opinion  and  there  were  rough,  very  rough,  hands  which 
acted  on  it.  We  now  talk  of  political  penalties  and  ecclesiasti-  ( 
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  things ;  to  work 
cheap  is  thought  to  be  a  "  wicked  "  thing,  and  so  some  Broad- 
head  puts  it  down. 

The  object  of  such  organizations  is  to  create  what  may  be 
jralled  a  cake  of  custom.  All  the  actions  of  life  are  to  be  sub- 
mitted to  a  single  rule  for  a  single  object;  that  gradually 
created  the  "  hereditary  drill "  which  science  teaches  to  be 
essential,  and  which  the  early  instinct  of  men  saw  to  be 
essential,  too.  That  this  regime  forbids  free  thought  is  not 
an  evil ;  or  rather,  though  an  evil,  it  is  the  necessary  basis  for 
the  greatest  good ;  it  is  necessary  for  making  the  mould  of 
civilization,  and  hardening  the  soft  fibre  of  early  man. 

The  first  recorded  history  of  the  Aryan  race  shows  every- 
where a  King,  a  council,  and,  as  the  necessity  of  early  conflicts 
required,  the  King  in  much  prominence  and  with  much  power. 
That  there  could  be  in  such  ages  anything  like  an  Oriental 
despotism,  or  a  Csesarean  despotism,  was  impossible ;  the 
outside  extra-political  army  which  maintains  them  could  not 
exist  when  the  tribe  was  the  nation,  and  when  all  the  men  in 
the  tribe  were  warriors.  Hence,  in  the  time  of  Homer,  in 
the  first  times  of  Rome,  in  the  first  times  of  ancient  Germany, 
the  King  is  the  most  visible  part  of  the  polity,  because  for 
momentary  welfare  he  is  the  most  useful.  The  close  oligarchy, 
the  patriciate,  which  alone  could  know  the  fixed  law,  alone 
could  apply  the  fixed  law,  which  was  recognized  as  the  author- 
ized custodian  of  the  fixed  law,  had  then  sole  command  over 
the  primary  social  want.  It  alone  knew  the  code  of  drill;  it 
alone  was  obeyed ;  it  alone  could  drill.  Mr.  Grote  has  ad- 
mirably described  the  rise  of  the  primitive  oligarchies  upon 
the  face  of  the  first  monarchy,  but  perhaps  because  he  so  much 
loves  historic  Athens  he  has  not  sympathized  with  pre-historic 


j8  BAGEHOT 

Athens.     He  has  not  shown  us  the  need  of  a  fixed  life  when 
all  else  was  unfixed  life. 

It  would  be  schoolboyish  to  explain  at  length  how  well  the 
two  great  republics,  the  two  winning  republics  of  the  ancient 
world,  embody  these  conclusions.  Rome  and  Sparta  were 
drilling  aristocracies,  and  succeeded  because  they  were  such. 
Athens  was  indeed  of  another  and  higher  order ;  at  least  to  us 
instructed  moderns  who  know  her  and  have  been  taught  by 
her.  But  to  the  "  Philistines  "  of  those  days  Athens  was  of  a 
lower  order.  She  was  beaten ;  she  lost  the  great  visible  game 
which  is  all  that  short-sighted  contemporaries  know.  She  was 
the  great  "  free  failure  "  of  the  ancient  world.  She  began,  she 
announced,  the  good  things  that  were  to  come;  but  she  was 
too  weak  to  display  and  enjoy  them;  she  was  trodden  down 
by  those  of  coarser  make  and  better  trained  frame. 

How  much  these  principles  are  confirmed  by  Jewish  history 
is  obvious.  There  was  doubtless  much  else  in  Jewish  history 
— whole  elements  with  which  I  am  not  here  concerned.  But 
so  much  is  plain.  The  Jews  were  in  the  beginning  the  most 
unstable  of  nations ;  they  were  submitted  to  their  law,  and  they 
came  out  the  most  stable  of  nations.  Their  polity  was  indeed 
defective  in  unity.  After  they  asked  for  a  King  the  spiritual 
and  the  secular  powers  (as  we  should  speak)  were  never  at 
peace,  and  never  agreed.  And  the  ten  tribes  who  lapsed  from 
their  law  melted  away  into  the  neighboring  nations.  Jeroboam 

_j  has  been  called  the  "first  liberal;"  and,  religion  apart,  there 
is  a  meaning  in  the  phrase.  He  began  to  break  up  the  binding 
polity  which  was  what  men  wanted  in  that  age,  though  eager 
and  inventive  minds  always  dislike  it.  But  the  Jews  who 
adhered  to  their  law  became  the  Jews  of  the  day,  a  nation  of 
a  firm  set  if  ever  there  was  one. 

It  is  connected  with  this  fixity  that  jurists  tell  us  that  the 
title  "  contract "  is  hardly  to  be  discovered  in  the  oldest  law. 
In  modern  days,  in  civilized  days,  men's  choice  determines 
nearly  all  they  do.  But  in  early  times  that  choice  determined 
scarcely  anything.  The  guiding  rule  was  the  law  of  status. 

i  .Everybody  was  born  to  a  place  in  the  community:  in  that 
place  he  had  to  stay :  in  that  place  he  found  certain  duties  which 

•    he  had  to  fulfil,  and  which  were  all  he  needed  to  think  of.     The 


PHYSICS    AND    POLITICS  19 

net  of  custom  caught  men  in  distinct  spots,  and  kept  each 
"wEere "he  stood. 

What  are  called  in  European  politics  the  principles  of  1789 
are  therefore  inconsistent  with  the  early  world ;  they  are  fitted 
only  to  the  new  world  in  which  society  has  gone  through  its 
early  task;  when  the  inherited  organization  is  already  con- 
firmed and  fixed;  when  the  soft  minds  and  strong  passions 
of  youthful  nations  are  fixed  and  guided  by  hard  transmitted, 
instincts.  Till  then  not  equality  before  the  law  is  necessary 
but  inequality,  for  what  is  most  wanted  is  an  elevated  elite 
who  know  the  law :  not  a  good  government  seeking  the  hap- 
piness of  its  subjects,  but  a  dignified  and  overawing  government 
getting  its  subjects  to  obey:  not  a  good  law,  but  a  compre- 
hensive law  binding  all  life  to  one  routine.  Later  are  the  ages 
of  freedom ;  first  are  the  ages  of  servitude.  In  1789,  when 
the  great  men  of  the  Constituent  Assembly  looked  on  the 
long  past,  they  hardly  saw  anything  in  it  which  could  be 
praised  or  admired  or  imitated :  all  seemed  a  blunder — a  com- 
plex error  to  be  got  rid  of  as  soon  as  might  be.  But  that  error^ 
had  made  themselves.  On  their  very  physical  organization 
the  hereditary  mark  of  old  times  was  fixed ;  their  brains  were 
hardened  and  their  nerves  were  steadied  by  the  transmitted 
results  of  tedious  usages.  The  ages  of  monotony  had  their 
use,  for  they  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  polities  and  those  early  laws.     They  not  only  "  bound  * 
up  "  men  in  groups,  not  only  impressed  on  men  a  certain  set  \/ 
of  common  usages,  but  often,  at  least  in  an  indirect  way,  sug-  ^/ 
gested,  if  I  may  use  the  expression,  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  fact  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 


20  BAGEHOT 

examine  exactly  when  and  how  the  mental  peculiarity  of  each 
began,  and  also  exactly  when  and  how  that  mental  peculiarity 
passed  away.  We  have  an  idea  of  Queen  Anne's  time,  for 
example,  or  of  Queen  Elizabeth's  time,  or  George  IFs  time; 
or  again  of  the  age  of  Louis  XIV,  or  Louis  XV,  or  the  French 
Revolution;  an  idea  more  or  less  accurate  in  proportion  as 
we  study,  but  probably  even  in  the  minds  who  know  these 
ages  best  and  most  minutely,  more  special,  more  simple,  more 
unique  than  the  truth  was.  We  throw  aside  too  much,  in 
making  up  our  images  of  eras,  that  which  is  common  to  all 
eras.  The  English  character  was  much  the  same  in  many 
great  respects  in  Chaucer's  time  as  it  was  in  Elizabeth's  time 
or  Anne's  time,  or  as  it  is  now.  But  some  qualities  were 
added  to  this  common  element  in  one  era  and  some  in  another ; 
some  qualities  seemed  to  overshadow  and  eclipse  it  in  one  era, 
and  others  in  another.  We  overlook  and  half  forget  the  con- 
stant while  we  see  and  watch  the  variable.  But — for  that  is 
the  present  point — why  is  there  this  variable  ?  Everyone  must, 
I  think,  have  been  puzzled  about  it.  Suddenly,  in  a  quiet  time 
— say,  in  Queen  Anne's  time — arises  a  special  literature,  a 
marked  variety  of  human  expression,  pervading  what  is  then 
written  and  peculiar  to  it :  surely  this  is  singular. 

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  little  more  very  often,  as  I  believe 
— congenial  to  the  minds  around  him  than  any  other  sort. 
This  writer  is  very  often  not  the  one  whom  posterity  remembers 
— not  the  one  who  carries  the  style  of  the  age  farthest  towards 
its  ideal  type,  and  gives  it  its  charm  and  its  perfection.  It  was 
not  Addison  who  began  the  essay-writing  of  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  it  and  elaborated  it,  and  whom  pos- 
terity reads.  Some  strong  writer,  or  group  of  writers,  thus 
seize  on  the  public  mind,  and  a  curious  process  soon  assimilates 
other  writers  in  appearance  to  them.  To  some  extent,  no 
doubt,  this  assimilation  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  21 

who  like  their  own  thoughts  do  not  willingly  clothe  them  in 
words  they  feel  they  borrow.  No  man,  indeed,  can  think  to 
much  purpose  when  he  is  studying  to  write  a  style  not  his  own. 
After  all,  very  few  men  are  at  all  equal  to  the  steady  labor,  the 
stupid  and  mistaken  labor  mostly,  of  making  a  style.  Most 
men  catch  the  words  that  are  in  the  air,  and  the  rhythm  which 
comes  to  them  they  do  not  know  from  whence;  an  uncon- 
scious imitation  determines  their  words,  and  makes  them  say 
what  of  themselves  they  would  never  have  thought  of  saying. 
Everyone  who  has  written  in  more  than  one  newspaper  knows 
how  invariably  his  style  catches  the  tone  of  each  paper  while 
he  is  writing  for  it,  and  changes  to  the  tone  of  another  when 
in  turn  he  begins  to  write  for  that.  He  probably  would  rather 
write  the  traditional  style  to  which  the  readers  of  the  journal 
are  used^  but  he  does  not  set  himself  to  copy  it ;  he  would  have 
to  force  himself  in  order  not  to  write  it  if  that  was  what  he 
wanted.  Exactly  in  this  way,  just  as  a  writer  for  a  journal 
without  a  distinctly  framed  purpose  gives  the  readers  of  the 
journal  the  sort  of  words  and  the  sort  of  thoughts  they  are  use4 
to — 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  r 
sort  of  thoughts — the  special  literature,  in  fact — which  those 
readers  like  and  prize.  And  not  only  does  the  writer,  without 
thinking,  choose  the  sort  of  style  and  meaning  which  are  most 
in  vogue,  but  the  writer  is  himself  chosen.  A  writer  does  not 
begin  to  write  in  the  traditional  rhythm  of  an  age  unless  he 
feels,  or  fancies  he  feels,  a  sort  of  aptitude  for  writing  it,  any 
more  than  a  writer  tries  to  write  in' a  journal  in  which  the  style 
is  uncongenial  or  Impo^sibk~to_hirn.  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  happens  not  to  suit  is  curiously  seen  in 
Wordsworth,  who  was  bold  enough  to  break  through  it,  and, 
at  the_risj£_of  contemporary  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  makes  a  formal  engagement  that  he  will  gratify  cer- 
tain known  habits  of  association ;  that  he  not  only  then  apprises 
the  reader  that  certain  classes  of  ideas  and  expressions  will  be 
found  in  his  book,  but  that  others  will  be  carefully  eschewed. 


22  BAGEHOT 

The  exponent  or  symbol  held  forth  by  metrical  language  must, 
in  different  ages  of  literature,  have  excited  very  different  ex- 
pectations; for  example,  in  the  age  of  Catullus,  Terence,  or 
Lucretius,  and  that  of  Statius  or  Claudian;  and  in  our  own 
country,  in  the  age  of  Shakespeare  and  Beaumont  and  Fletcher, 
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  won't  do  what  is  expected  from  him,  but  that  he  will 
write  his  own  words,  and  only  his  own  words.  A  strict,  I  was 
going  to  say  a  Puritan,  genius  will  act  thus,  but  most  men 
of  genius  are  susceptible  and  versatile,  and  fall  into  the  style 
of  their  age.  One  very  unapt  at  the  assimilating  process,  but 
on  that  account  the  more  curious  about  it,  says : — 

"  How  we 

Track  a  livelong  day,  great  heaven,  and  watch  our  shadows ! 
What  our  shadows  seem,  forsooth,  we  will  ourselves  be. 
Do  I  look  like  that?    You  think  me  that:  then  I  am  that." 

What  writers  are  expected  to  write,  they  write ;  or  else  they 
do  not  write  at  all ;  but,  like  the  writer  of  these  lines,  stop  dis- 
couraged, live  disheartened,  and  die  leaving  fragments  which 
their  friends  treasure,  but  which  a  rushing  world  never  heeds. 
The  nonconformist  writers  are  neglected,  the  conformist 
writers  are  encouraged,  until  perhaps  on  a  sudden  the  fashion 
shifts.  And  as  with  the  writers,  so  in  a  less  degree  with  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,  and  which  received  opinion  says  they  ought  to  like;  or 
if  their  minds  are  too  marked  and  oddly  made  to  get  into  the 
mould,  they  give  up  reading  altogether,-er  read  okHbooks  and 
foreign  books,  formed  under  another  code  and  appealing*  to- a 
different  taste.  The  principle  of  "  elimination,"  the  "  use  and 
disuse  "  of  organs  which  naturalists  speak  of,  works  here. 
What  is  used  strengthens ;  what  is  disused  weakens :  "  to  those 
who  have,  more  is  given ;"  and  so  a  sort  of  style  settles  upon 
an  age,  and  imprinting  itself  more  than  anything  else  in  men's 
memories  becomes  all  that  is  thought  of  about  it.- 

I  believe  that  what  we  call  national  character  arose  in  very 
much  the  same  way.  At  first  a  sort  of  "  chance  predomi- 
nance "  made  a  model,  and  then  invincible  attraction,  the 


PHYSICS    AND    POLITICS  23 

necessity  which  rules  all  but  the  strongest  men  to  imitate  what 
is  before  their  eyes,  and  to  be  what  they  are  expected  to  be, 
moulded  men  by  that  model.  This  is,  I  think,  the  very  process 
by  which  new  national  characters  are  being  made  in  our  own 
time.  In  America  and  in  Australia  a  new  modification  of  what 
we  call  Anglo-Saxonism  is  growing.  A  sort  of  type  of  char- 
acter arose  from  the  difficulties  of  colonial  life — the  difficulty  of 
struggling  with  the  wilderness ;  and  this  type  has  given  its 
shape  to  the  mass  of  characters  because  the  mass  of  characters 
have  unconsciously  imitated  it.  Many  of  the  American  char- 
acteristics are  plainly  useful  in  such  a  life,  and  consequent  on 
such  a  life.  The  eager  restlessness,  the  highly  strung  nervous 
organization,  are  useful  in  continual  struggle,  and  also  are 
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  these  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 
German  will  catch  it,  too,  even  in  all  English  particulars.  AnH 
as  to  a  hundred  minor  points — in  so  many  that  go  to  mark  the 
typical  Yankee — usefulness  has  had  no  share  either  in  their 
origin  or  their  propagation.  The  accident  of  some  predomi- 
nant person  possessing  them  set  the  fashion,  and  it  has  been 
imitated  to  this  day.  Anybody  who  inquires  will  find  even  in 
England,  and  even  in  these  days  of  assimilation,  parish  pecu- 
liarities which  arose,  no  doubt,  from  some  old  accident,  and 
have  been  needfully  preserved  by  customary  copying.  A 
national  character  is  but  the  successful  parish  character;  just 
as  the  national  speech  is  but  the  successful  parish  dialect,  the 
dialect,  that  is,  of  the  district  which  came  to  be  more — in  many 
cases  but  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  unconscious 
imitation  to  be  the  principal  force  in  the  making  of  national 
characters ;  but  I  have  already  said  more  about  it  than  I  need. 
Everybody  who  weighs  even  half  these  arguments  will  admit 
that  it  is  a  great  force  in  the  matter,  a  principal  agency  to  be 
acknowledged  and  watched ;  and  for  my  present  purpose  I  want 
no  more.  I  have  only  to  show  the  efficacy  of  the  tight  early 


24  BAGEHOT 

polity  (so  to  speak)  and  the  strict  early  law  on  the  creation 
of  corporate  characters.  These  settled  the  predominant  type, 
set  up  a  sort  of  model,  made  a  sort  of  idol ;  this  was  worshipped, 
copied,  and  observed,  from  all  manner  of  mingled  feelings, 
but  most  of  all  because  it  was  the  "  thing  to  do,"  the  then  ac- 
cepted form  of  human  action.  When  once  the  predominant 
type  was  determined,  the  copying  propensity  of  man  did  the 
rest.  The  tradition  ascribing  Spartan  legislation  to  Lycurgus 
was  literally  untrue,  but  its  spirit  was  quite  true.  In  the  origin 
of  states  strong  and  eager  individuals  got  hold  of  small  knots 
of  men,  and  made  for  them  a  fashion  which  they  were  attached 
to  and  kept. 

It  is  only  after  duly  apprehending  the  silent  manner  in 
which  national  characters  thus  form  themselves,  that  we  can 
rightly  appreciate  the  dislike  which  old  Governments  had  to 
trade.  There  must  have  been  something  peculiar  about  it, 
for  the  best  philosophers,  Plato  and  Aristotle,  shared  it.  They 
*J  regarded  commerce  as  the  source  of  corruption  as  naturally 
as  a  modern  economist  considers  it  the  spring  of  industry,  and 
all  the  old  Governments  acted  in  this  respect  upon  the  phi- 
losophers' maxims.  "  Well,"  said  Dr.  Arnold,  speaking  ironi- 
cally and  in  the  spirit  of  modern  times — "  Well,  indeed,  might 
the  policy  of  the  old  priest-nobles  of  Egypt  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  sea  deserved  to  be  hated 
by  the  old  aristocracies,  inasmuch  as  it  has  been  the  mightiest 
instrument  in  the  civilization  of  mankind."  But  the  old 
oligarchies  had  their  own  work,  as  we  now  know.  They  were 
imposing  a  fashioning  yoke ;  they  were  making  the  human  na- 
ture which  after  times  employ.  They  were  at  their  labors ;  we 
have  entered  into  these  labors.  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,  if  it  is  before  their  eyes  alone,  but  they  do  not  imitate 
it  if  it  is  only  one  among  many  present  things — one  competitor 
among  others,  all  of  which  are  "equal  and  some  of  which  seem 
better.  "  Whoever  speaks  two  languages  is  a  rascal,"  says 
the  saying,  and  it  rightly  represents  the  feeling  of  primitive 
communities  when  the  sudden  impact  of  new  thoughts  and 


PHYSICS    AND    POLITICS  25 

new  examples  breaks  down  the  compact  despotism  of  the 
single  consecrated  code,  and  leaves  pliant  and  impressible  man 
— such  as  he  then  is — to  follow  his  unpleasant  will  without 
distinct  guidance  by  hereditary  morality  and  hereditary  re- 
ligion. The  old  oligarchies  wanted  to  keep  their  Jrype  perfect, 
and  for  that  end  they  were  right  not  to  allow  foreigners  to 
touch  it. 

"  Distinctions  of  race,"  says  Arnold  himself  elsewhere  in  a 
remarkable  essay — for  it  was  his  last  on  Greek  history,  his 
farewell  words  on  a  long  favorite  subject — "  were  not  of  that 
odious  and  fantastic  character  which  they  have  been  in  modern 
times ;  they  implied  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 institutions  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  Q! 
different  race  in  the  same  commonwealth,  unless  one  race  had 
a  complete  ascendancy,  tended  to  confuse  all  the  relations  of 
human  life,  and  all  men's  notions  of  right  and  wrong;  or  by 
compelling  men  to  tolerate  in  so  near  a  relation  as  that  of 
fellow-citizens'  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,  but 
were  mere  creatures  of  human  opinion."  But  if  this  be  so, 
the  oligarchies  were  right.  Commerce  brings  this  mingling 
of  ideas,  this  breaking  down  of  old  creeds,  and  brings  it  in- 
evitably. It  is  now-a-days  its  greatest  good  that  it  does  so; 
the  change  is  what  we  call  "  enlargement  of  mind."  But  in 
early  times  Providence  "  set  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,  for  they  trained  men  for  ages  when 
they  were  not  to  be  isolated. 


CHAPTER  II 

THE  USE  OF  CONFLICT 

Part  I 

TJIE  'difference  between  progression   and   stationary  in- 
action,11 says  one  oi  our  greatest  IMug  w liters,  --Us 
one  of  tHegf eat  secrets  which  science  has  yet  to  pene- 
trate."   I  am  sure  I  do  not  pretend  that  I  can  completely  pene- 
trate it ;  but  it  undoubtedly  seems  to  me  that  the  problem  is  on 
the  verge  of  solution,  and  that  scientific  successes  in  kindred 
fields  by  analogy  suggest  some  principles  which  wholly  remove 
many  of  its  difficulties,  and  indicate  the  sort  of  way  in  which 
those  which  remain  may  hereafter  be  removed  too. 

But  what  is  the  problem?  Common  English,  I  might  per- 
haps say  common  civilized  thought,  ignores  it.  Our  habitual 
instructors,  our  ordinary  conversation,  our  inevitable  and  in- 
eradicable prejudices,  tend  to  make  us  think  that  "  Progress  " 
is  the  normal  fact  in  human  society,  the  fact  which  we  should 

(expect  to  see,  the  fact  which  we  should  be  surprised  if  we  did 
not  see.  But  history  refutes  this.  The  ancients  had  no  con- 
ception of  progress ;  they  did  not  so  much  as  reject  the  idea ; 
they  did  not  even  entertain  the  idea.  Oriental  nations  are  just 
the  same  now.  Since  history  began  they  have  always  been 
what  they  are.  Savages,  again,  do  not  improve ;  they  hardly 
seem  to  have  the  basis  on  which  to  build,  much  less  the  ma- 
terial to  put  up  anything  worth  having.  Only  a  few  nations, 
and  those  of  European  origin,  advance ;  and  yet  these  think — 
seem  irresistibly  compelled  to  think — such  advance  to  be  in- 
evitable, natural,  and  eternal.  Why  then  is  this  great  con- 
trast? 

Before  we  can  answer,  we  must  investigate  more  accurately. 

^  No  doubt  history  shows  that  most  nations  are  stationary  now ; 

but  it  affords  reason  to  think  that  all  nations  once  advanced 

26 


PHYSICS    AND    POLITICS  27 

Their  progress  was  arrested  at  various  points;  but  nowhere, 
probably  not  even  in  the  hill  tribes  of  India,  not  even  in  the 
Andaman  Islanders,  not  even  in  the  savages  of  Terra  del 
Fuego,  do  we  find  men  who  have  not  got  some  way.  They 
have  made  their  little  progress  in  a  hundred  different  ways ; 
they  have  framed  with  infinite  assiduity  a  hundred  curious 
habits ;  they  have,  so  to  say,  screwed  themselves  into  the  un- 
comfortable corners  of  a  complex  life,  which  is  odd  and  dreary, 
but  yet  is  possible.  And  the  corners  are  never  the  same  in  any 
two  parts  of  the  world.  Our  record  begins  with  a  thousand 
unchanging  edifices,  but  it  shows  traces  of  previous  building.  %^ 
In  historic  times  there  has  been  little  progress ;  in  pre-historic  r 
times  there  must  have  been  much. 

In  solving,  or  trying  to  solve,  the  question,  we  must  take 
notice  of  this  remarkable  difference,  and  explain  it,  too,  or  else 
we  may  be  sure  our  principles  are  utterly  incomplete,  and  per- 
haps altogether  unsound.  But  what  then  is  that  solution,  or 
what  are  the  principles  which  tends  towards  it?  Three  laws, 
or  approximate  laws,  may,  I  think,  be  laid  down,  with  only 
one  of  which  I  can  deal  in  this  paper,  but  all  three  of  which"  it 
will  be  best  to  state,  that  it  may  be  seen- what  I  am  aiming  at. 

First.  In  every  particular  state  of  the  world,  those  nations 
which  are  strongest  tend  to  prevail  over  the  others ;  and  in 
certain  marked  peculiarities  the  strongest  tend  to  be  the  best. 

Secondly.    Within  every  particular  nation  the  type  or  types 
of  character  then  and  there  most  attractive  tend  to  prevail;       ^\ 
and  the  most  attractive,  though  with  exceptions,  is  what  we         '— 
call  the  best  character. 

Thirdly.    Neither  of  these  competitions  is  in  most  historic 
conditions  intensified  by  extrinsic  forces,  but  in  some  condi-       '  £> 
tions,  such  as  those  now  prevailing  in  the  most  influential  part 
of  the  world,  both  are  so  intensified. 

These  are  the  sort  of  doctrines  with  which,  under  the  name 
of  "  natural  selection  "  in  physical  science,  we  have  become 
familiar ;  and  as  every  great  scientific  conception  tends  to  ad- 
vance its  boundaries  and  to  be  of  use  in  solving  problems  not 
thought  of  when  it  was  started,  so  here,  what  was  put  forward 
for  mere  animal  history  may,  with  a  change  of  form,  but  an 
identical  essence,  be  applied  to  human  history. 

At  first  some  objection  was  raised  to  the  principle  of  "  nat- 


28  BAGEHOT 

ural  selection  "  in  physical  science  upon  religious  grounds ;  it 
was  to  be  expected  that  so  active  an  idea  and  so  large  a  shift- 
ing of  thought  would  seem  to  imperil  much  which  men  valued. 
But  in  this,  as  in  other  cases,  the  objection  is,  I  think,  passing 
away ;  the  new  principle  is  more  seen  to  be  fatal  to  mere  out- 
works of  religion,  not  to  religion  itself.  At  all  events,  to  the 
sort  of  application  here  made  of  it,  which  only  amounts  to 
searching  out  and  following  up  an  analogy  suggested  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  to  indicate,  in  a  more  or  less  distinct  way  an  infinitesimally 
small  portion  of  such  laws. 

The  discussion  of  these  three  principles  cannot  be  kept  quite 
apart  except  by  pedantry ;  but  it  is  almost  exclusively  with 
the  first — that  of  the  competition  between  nation  and  nation, 
or  tribe  and  tribe  (for  I  must  use  these  words  in  their  largest 
sense,  and  so  as  to  include  every  cohering  aggregate  of  human 
beings) — that  I  can  deal  now;  and  even  as  to  that  I  can  but 
set  down  a  few  principal  considerations. 

The  progress  of  the  military  art  is  the  most  conspicuous,  I 
was  about  to  say  the  most  showy,  fact  in  human  history. 
Ancient  civilization  may  be  compared  with  modern  in  many 
respects,  and  plausible  arguments  constructed  to  show  that  it 
is  better ;  but  you  cannot  compare  the  two  in  military  power. 
Napoleon  could  indisputably  have  conquered  Alexander;  our 
Indian  army  would  not  think  much  of  the  Retreat  of  the  Ten 
Thousand.  And  I  suppose  the  improvement  has  been  con- 
tinuous: I  have  not  the  slightest  pretence  to  special  knowl- 
edge ;  but,  looking  at  the  mere  surface  of  the  facts,  it  seems 
likely  that  the  aggregate  battle  array,  so  to  say,  of  mankind, 
the  fighting  force  of  the  human  race,  has  constantly  and  in- 
variably grown.  It  is  true  that  the  ancient  civilization  long 
resisted  the  "  barbarians,"  and  was  then  destroyed  by  the  bar- 
barians. But  the  barbarians  had  improved.  "  By  degrees," 
says  a  most  accomplished  writer,*  "  barbarian  mercenaries 
came  to  form  the  largest,  or  at  least  the  most  effective,  part  of 
the  Roman  armies.  The  body-guard  of  Augustus  had  been 
so  composed;  the  pretorians  were  generally  selected  from  the 
bravest  frontier  troops,  most  of  them  Germans."  "  Thus,"  he 
continues,  "  in  many  ways  was  the  old  antagonism  broken 

*  Mr.  Bryce. 


PHYSICS    AND    POLITICS 


29 


down,  Romans  admitting  barbarians  to  rank  and  office ;  bar- 
barians catching  something  of  the  manners  and  culture  of  their 
neighbors.  And  thus,  when  the  final  movement  came,  the 
Teutonic  tribes  slowly  established  themselves  through  the 
provinces,  knowing  something  of  the  system  to  which  they 
came,  and  not  unwilling  to  be  considered  its  members."  Tak- 
ing friend  and  foe  together,  it  may  be  doubted  whether  the 
fighting  capacity  of  the  two  armies  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  concentrated  time.  But  this 
difficulty  is  political,  not  military.  If  you  added  up  the  many 
little  hosts  of  any  century  of  separationr- they  would  perhaps 
be  found  equal  or  greater  than  the  single  host,  or  the  fewer 
hosts,  of  previous  centuries  which  were  jnore  united.  Taken 
as  a  whole,  and  allowing  for  possible  exceptions,  the  aggre- 
gate fighting  power  of  mankind  has  grown  immensely,  and  has 
been  growing  continuously  since  we  knew  anything  about  it. 

Again,  this  force  has  tended  to  concentrate  itself  more  and 
more  in  certain  groups  which  we  call  "civilized  nations/'  The 
literati  of  the  last  century  were  forever  in  fear  of  a  new  conquest 
of  the  barbarians,  but  only  because  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  tends  to  confine  itself  to  those  states.  The  bar- 
barians are  no  longer  so  much  as  vanquished  competitors; 
they  have  ceased  to  compete  at  all. 

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  fight;  they  lost  their  mental  courage, 
perhaps  their  bodily  nerve.  But  now-a-days  in  all  countries 
the  great  cities  could  pour  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.  The  breed  of  ancient  times  was 


3o  BAGEHOT 

impaired  for  war  by  trade  and  luxury,  but  the  modern  breed 
is  not  so  impaired. 

A  curious  fact  indicates  the  same  thing  probably,  if  not  cer- 
tainly. Savages  waste  away  before  modern  civilization;  they 
seem  to  have  held  their  ground  before  the  ancient.  There  is  no 
lament  in  any  classical  writer  for  the  barbarians.  The  New 
Zealanders  say  that  the  land  will  depart  from  their  children; 
the  Australians  are  vanishing ;  the  Tasmanians  have  vanished. 
If  anything  like  this  had  happened  in  antiquity,  the  classical 
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- 
trary, in  Gaul,  in  Spain,  in  Sicily — everywhere  that  we  know 
of — the  barbarian  endured  the  contact  of  the  Roman,  and  the 
Roman  allied  himself  to  the  barbarian.  Modern  science  ex- 
plains the  wasting  away  of  savage  men ;  it  says  that  we  have 
diseases  which  we  can  bear,  though  they  cannot,  and  that  they 
die  away  before  them  as  our  fatted  and  protected  cattle  died 
out  before  the  rinderpest,  which  is  innocuous,  in  comparison, 
to  the  hardy  cattle  of  the  steppes.  Savages  in  the  first  year  of  the 
Christian  era  were  pretty  much  what  they  were  in  the  eighteen- 
hundredth  ;  and  if  they  stood  the  contact  of  ancient  civilized  men, 
and  cannot  stand  ours,  it  follows  that  our  race  is  presumably 
tougher  than  the  ancient;  for  we  have  to  bear,  and  do  bear, 
the  seeds  of  greater  diseases  than  those  the  ancients  carried 
with  them.  We  may  use,  perhaps,  the  unvarying  savage  as  a 
metre  to  gauge  the  vigor  of  the  constitutions  to  whose  contact 
he  is  exposed. 

Particular  consequences  may  be  dubious,  but  as  to  the  main 
fact  there  is  no  doubt :  the  military  strength  of  man  has  been 
growing  from  the  earliest  time  known  to  our  history,  straight 
on  till  now.  And  we  must  not  look  at  times  known  by  written 
records  only ;  we  must  travel  back  to  older  ages  known  to  us 
only  by  what  lawyers  call  real  evidence — the  evidence  of  things. 
Before  history  began,  there  was  at  least  as  much  progress  in 
the  military  art  as  there  has  been  since.  The  Roman  legion- 
aries or  Homeric  Greeks  were  about  as  superior  to  the  men  of 
the  shell  mounds  and  the  flint  implements  as  we  are  superior 
to  them.  There  has  been  a  constant  acquisition  of  military 
strength  by  man  since  we  know  anything  of  him,  either  by  the 
documents  he  has  composed  or  the  indications  he  has  left. 


PHYSICS    AND    POLITICS  31 

The  cause  of  this  military  growth  is  very  plain.  The  strong-  \x" 
est  nation  has  always  been  conquering  the  weaker ;  sometimes 
even  subduing  it,  but  always  prevailing  over  it.  Every  intel- 
lectual gain,  so  to  speak,  that  a  nation  possessed  was  in  the  ear- 
liest times  made  use  of — was  invested  and  taken  out — in  war ; 
all  else  perished.  Each  nation  tried  constantly  to  be  the 
stronger,  and  so  made  or  copied  the  best  weapons ;  by  con- 
scious and  unconscious  imitation  each  nation  formed  a  type  of 
character  suitable  to  war  and  conquest.  Conquest  improved 
mankind  by  the  intermixture  of  strength;  the  armed  truce, 
which  was  then  called  peace,  improved  them  by  the  competi- 
tion of  training  and  the  consequent  creation  of  new  power. 
Since  the  long-headed  men  first  drove  the  short-headed  men 
out  of  the  best  land  in  Europe,  all  European  history  has  been 
the  history  of  the  superposition  of  the  more  military  races  over 
the  less  military — of  the.  efforts,  sometimes  successful,  some- 
times unsuccessful,  of  each  race  to  get  more  military ;  and  so 
the  art  of  war  has  constantly  improved. 

But  why  is  one  nation  stronger  than  another?  In  the  an-  f  ^ 
swer  to  that,  I  believe,  lies  the  key  to  the  principal  progress  of 
early  civilization,  and  to  some  of  the  progress  of  all  civilization. 
The  answer  is  that  there  are  very  advantages — some  small  and 
some  great — every  dne  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  imparted  to  subjugated  races,  or 
imitated  by  competing  races ;  and  that,  though  some  of  these 
advantages  may  be  perishable  or  inimitable,  yet,  on  the  whole, 
the  energy  of  civilization  grows  by  the  coalescence  of  strengths 
and  by  the  competition  of  strengths. 

Part  II 

By  far  the  greatest  advantage  is  that  on  which  I  observed  be- 
fore— that  to  which  I  drew  all  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  sort  of  polity  is  immaterial ;  a  law     (  y 
first — what  kind  of  law  is  secondary ;  a  person  or  set  of  persons 
to  pay  deference  to — though  who  he  is,  or  they  are,  by  com- 
parison scarcely  signifies. 

"  There  is,"  it  has  been  said,  "  hardly  any  exaggerating  the 


32  BAGEHOT 

difference  between  civilized  and  uncivilized  men;  it  is  greater. 
than  the  difference  between  a  tame  and  a  wild  animal,"  because 
man  can  improve  more.  But  the  difference  at  first  was  gained 
in  much  the  same  way.  The  taming  of  animals  as  it  now  goes 
on  among  savage  nations,  and  as  travellers  who  have  seen  it 
describe  it,  is  a  kind  of  selection.  The  most  wild  are  killed 
when  food  is  wanted,  and  the  most  tame  and  easy  to  manage 
kept,  because  they  are  more  agreeable  to  human  indolence, 
and  so  the  keeper  likes  them  best.  Captain  Galton,  who  has 
often  seen  strange  scenes  of  savage  and  of  animal  life,  had  bet- 
ter describe  the  process : — "  The  irreclaimably  wild  members 
of  every  flock  would  escape  and 'be  utterly  lost;  the  wilder  of 
those  that  remained  would  assuredly  be  selected  for  slaughter 
whenever  it  was  necessary  that  one  of  the  flock  should  be  killed. 
The  tamest  cattle — those  which  seldom  ran  away,  that  kept  the 
flocks  together,  and  those  which  led  them  homeward — would 
be  preserved  alive  longer  than  any  of  the  others.  It  is,  there- 
fore, these  that  chiefly  become  the  parents  of  stock  and  be- 
queath their  domestic  aptitudes  to  the  future  herd.  I  have  con- 
stantly witnessed  this  process  of  selection  among  the  pastoral 
savages  of  South  Africa.  I  believe  it  to  be  a  very  important 
one  on  account  of  its  rigor  and  its  regularity.  It  must  have  ex- 
isted from  the  earliest  times,  and  have  been  in  continuous 
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  are 
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  incipient  tribe,  one  bit  of  a  tribe — to  dif- 
fer from  another  is  their  relative  faculty  of  coherence.  The 
V  slightest  symptom  of  legal  development,  the  least  indication 

of  a  military  bond,  is  then  enough  to  turn  the  scale.    The  com- 
j   pact  tribes  win,  and  the  compact  tribes  are  the  tamest.    Civili- 
V  I    zation  begins,  because  the  beginning  of  civilization  is  a  mili- 
>J   tary  advantage. 

*  Ethnological  Society's  Transactions,  vol.  iii.  p.  137. 


PHYSICS    AND    POLITICS  33 

Probably  if  we  had  historic  records  of  the  ante-historic  ages 
• — if  some  superhuman  power  had  set  down  the  thoughts  and 
actions  of  men  ages  before  they  could  set  them  down  for  them- 
selves— we  should  know  that  this  first  step  in  civilization  was 
the  hardest  step.  But  when  we  come  to  history  as  it  is,  we 
are  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  we  may  call  them.  Ordinary 
civilization  begins  near  the  Mediterranean  Sea;  the  best, 
doubtless,  of  the  ante-historic  civilizations  were  not  far  off. 
From  this  centre  the  conquering  swarm — for  such  it  is — has 
grown  and  grown ;  has  widened  its  subject  territories  steadily, 
though  not  equably,  age  by  age.  But  geography  long  defied  it. 
An  Atlantic  Ocean,  a  Pacific  Ocean,  an  Australian  Ocean,  an 
unapproachable  interior  Africa,  an  inaccessible  and  undesir- 
able hill  India,  were  beyond  its  range.  In  such  remote  places 
there  was  no  real  competition,  and  on  them  inferior  half-com- 
bined men  continued  to  exist.  But  in  the  regions  of  rivalry^- 
the  regions  where  the  better  man  pressed  upon  the  worse  man 
— such  half-made  associations  could  not  last.  They  died  out, 
and  history  did  not  begin  till  after  they  were  gone.  The  great 
difficulty  which  history  records  is  not  that  of  the  first  step,  but 
that  of  the  second  step.  What  is  most  evident  is  not  the  diffi-  } 
culty  of  getting  a  fixed  law,  but  getting  out  of  a  fixed  law ;  not 
of  cementing  (as  upon  a  former  occasion  I  phrased  it)  a  cake  of  , 
custom,  but  of  breaking  the  cake  of  custom  ;  not  of  making  the  [ 
first  preservative  habit,  but  of  breaking  through  it,  and  reach- 
ing 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-J 
pared  all  the  means  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 
had  paused  when  there  was  no  reason  for  pausing — when  a 
mere  observer  from  without  would  say  they  were  likely  not  to 
pause. 

3 


34  BAGEHOT 

The  reason  is  that  only  those  nations  can  progress  which 
(/preserve  and  use  the  fundamental  peculiarity  which  was 
given  by  nature  to  man's  organism  as  to  all  other  organ- 
isms. By  law  of  which  we  know  no  reason,  but  which  is 
among  the  first  by  which  Providence  guides  and  governs  the 
world,  there  is  a  tendency  in  descendants  to  be  like  their  pro- 
genitors, and  yet  a  tendency  also  in  descendants  to  differ  from 
their  progenitors.  The  work  of  nature  in  making  generations 
is  a  patchwork — part  resemblance,  part  contrast.  In  certain 
respects  each  born  generation  is  not  like  the  last  born ;  and  in 
certain  other  respects  it  is  like  the  last.  But  the  peculiarity 
,  >of  arrested  civilization  is  to  kill  out  varieties  at  birth  almost ; 
V  that  is,  in  early  childhood,  and  before  they  can  develop.  The 
fixed  custom  which  public  opinion  alone  tolerates  is  imposed 
on  all  minds,  whether  it  suits  them  or  not.  In  that  case  the 
community  feel  that  this  custom  is  the  only  shelter  from  bare 
tyranny,  and  the  only  security  for  what  they  value.  Most 
Oriental  communities  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  unincreasable  land  being  occupied,  a  man  who 
is  turned  out  of  his  holding  is  turned  out  of  this  world,  and 
must  die.  And  our  notion  of  written  leases  is  as  out  of  place 
in  a  world  without  writing  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  and  star- 
vation. 

A  still  more  powerful  cause  co-operated,  if  a  cause  more 
powerful  can  be  imagined.  Dryden  had  a  dream  of  an  early 
age,  "  when  wild  in  woods  the  noble  savage  ran ;  "  but  "  when 
lone  in  woods  the  cringing  savage  crept"  would  have  been 
more  like  all  we  know  of  that  early,  bare,  painful  period.  Not 
only  had  they  no  comfort,  no  convenience,  not  the  very  begin- 
nings of  an  epicurean  life,  but  their  mind  within  was  as  pain- 
ful to  them  as  the  world  without.  It  was  full  of  fear.  So  far 
as  the  vestiges  inform  us,  they  were  afraid  of  everything; 


PHYSICS    AND    POLITICS  35 

they  were  afraid  of  animals,  of  certain  attacks  by  near  tribes, 
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  behind  it  which  must  be  pleased,  soothed,  flattered,  and 
this  very  often  in  a  number  of  hideous  ways.  We  have  too 
many  such  religions,  even  among  races  of  great  cultivation. 
Men  change  their  religions  more  slowly  than  they  change  any- 
thing else ;  and  accordingly  we  have  religions  "  of  the  ages  " — 
(it  is  Mr.  Jowett  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  so  like  our  modern 
world  in  so  many  things,  so  much  more  like  than  many  far 
more  recent,  or  some  that  live  beside  us,  there  is  a  part  in 
which  we  seem  to  have  no  kindred,  which  we  stare  at,  of  which 
we  cannot  think  how  it  could  be  credible,  or  how  it  came  to  be 
thought  of.  This  is  the  archaic  part  of  that  very  world  which 
we  look  at  as  so  ancient ;  an  "  antiquity  "  which  descended  to 
them,  hardly  altered,  perhaps,  from  times  long  antecedent, 
which  were  as  unintelligible  to  them  as  to  us,  or  more  so.  How 
this  terrible  religion — for  such  it  was  in  all  living  detail,  though 
we  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  nineteenth  century  poem  of  any  in 
antiquity,  brings  before  us  with  a  feeling  so  vivid  as  to  be  al- 
most a  feeling  of  our  own.  Yet  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  civilization  did  not  exist;  at  such 
religions  as  those  of  the  Aztecs. 

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. 


BAGEHOT 


No  one  will  ever  comprehend  the  arrested  civilizations  un- 
less he  sees  the  strict  dilemma  of  early  society.  Either  men 
had  no  law  at  all,  and  lived  in  confused  tribes,  hardly  hanging 
together,  or  they  had  to  obtain  a  fixed  law  by  processes  of  in- 
credible difficulty.  Those  who  surmounted  that  difficulty  soon 
destroyed  all  those  that  lay  in  their  way  who  did  not.  And  then 
they  themselves  were  caught  in  their  own  yoke.  The  custom- 
ary discipline,  which  could  only  be  imposed  on  any  early  men 
by  terrible  sanctions,  continued  with  those  sanctions,  and  killed 
out  of  the  whole  society  the  propensities  to  variation  which  are 
the  principle  of  progress. 

Experience  shows  how  incredibly  difficult  it  is  to  get  men 
really  to  encourage  the  principle  of  originality.  They  will  ad- 
mit it  in  theory,  but  in  practice  the  old  error — the  error  which 
arrested  a  hundred  civilizations — returns  again.  Men  are  too 
fond  of  their  own  life,  too  credulous  of  the  completeness  of 
their  own  ideas,  too  angry  at  the  pain  of  new  thoughts,  to  be 
able  to  bear  easily  with  a  changing  existence ;  or  else,  having 
new  ideas.,  they  want  to  enforce  them  on  mankind — to  make 
them  heard,  and  admitted,  and  obeyed  before,  in  simple  com- 
petition with  other  ideas,  they  would  ever  be  so  naturally.  At 
this  very  moment  there  are  the  most  rigid  Comtists  teaching 
that  we  ought  to  be  governed  by  a  hierarchy — a  combination 
of  savans  orthodox  in  science.  Yet  who  can  doubt  that  Comte 
would  have  been  hanged  by  his  own  hierarchy ;  that  his  essor 
materiel,  which  was  in  fact  troubled  by  the  "  theologians  and 
metaphysicians  "  of  the  Polytechnic  School,  would  have  been 
more  impeded  by  the  government  he  wanted  to  make?  And 
then  the  secular  Comtists,  Mr.  Harrison  and  Mr.  Beesly,  who 
want  to  "  Frenchify  the  English  institutions  " — that  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  had  been  real  Frenchmen  they  would  have 
been  irascible  anti-Bonapartists,  and  have  been  sent  to  Cayenne 
long  ere  now  ?  The  wish  of  these  writers  is  very  natural  They 
want  to  "  organize  society,"  to  erect  a  despot  who  wilTdo  what 
they  like,  and  work  out  their  ideas;  but  any  despot  will  do 
what  he  himself  likes,  and  will  root  out  new  ideas  ninety-nine 
times  for  once  that  he  introduces  them. 

Again,  side  by  side  with  these  Comtists,  and  warring  with 


PHYSICS    AND    POLITICS  37 

them — at  least  with  one  of  them — is  Mr.  Arnold,  whose  poems 
we  know  by  heart,  and  who  has,  as  much  as  any  living  English- 
man, the  genuine  literary  impulse;  and  yet  even  he  wants  to 
put  a  yoke  upon  us — and,  worse  than  a  political  yoke,  an  aca- 
demic yoke,  a  yoke  upon  our  minds  and  our  styles.  He,  too, 
asks  us  to  imitate  France;  and  what  else  can  we  say  than 
what  the  two  most  thorough  Frenchmen  of  the  last  age  did 
say  ? — "  Dans  les  corps  a  talent,  nulle  distinction  ne  fait  om- 
brage,  si  ce  n'est  pas  celle  du  talent.  Un  due  et  pair  honore 
I' Academic  Frangaise,  qui  ne  veut  point  de  Boileau,  refuse  la 
Bruyere,  fait  attendre  Voltaire,  mais  regoit  tout  d'abord  Chape- 
lain  et  Conrart.  De  meme  nous  voyons  a  I' Academic  Grecque 
le  vicomte  invite,  Cor'di  repousse,  lorsque  Jormard  y  entre  comme 
dans  un  moulin!'  Thus  speaks  Paul-Louis  Courier  in  his  own 
brief  inimitable  prose.  And  a  still  greater  writer — a  real  French- 
man, if  ever  there  was  one,  and  (what  many  critics  would  have 
denied  to  be  possible)  a  great  poet  by  reason  of  his  most  French 
characteristics — Beranger,  tells  us  in  verse: — 

"  Je  croyais  voir  le  president 
Faire  bailler — en  repondant 
Que  Ton  vient  de  perdre  un  grand  homme ; 
Que  moi  je  le  vaux,  Dieu  sait  comme. 
Mais  ce  president  sans  fagon  * 
Ne  perore  ici  qu'en  chanson : 
Tou jours  trop  tot  sa  harangue  est  finie. 
Non,  non,  ce  n'est  point  comme  a  1'Academie, 
Ce  n'est  point  comme  a  1'Academie, 

"  Admis  enfin,  aurai-je  alors, 
Pour  tout  esprit,  1'esprit  de  corps? 
II  rend  le  bon  sens,  quoi  qu'on  disc, 
Solidaire  de  la  sottise ; 
Mais,  dans  votre  societe, 
L'esprit  de  corps,  c'est  la  gaite. 
Cet  esprit  la  regne  sans  tyrannic. 
Non,  non,  ce  n'est  point  comme  a  1*  Academic; 
Ce  n'est  point  comme  a  1'Academie." 

Asylums  of  common-place,  he  hints,  academies  must  ever 
be.  But  that  sentence  is  too  harsh ;  the  true  one  is — the 
academies  are  asylums  of  the  ideas  and  the  tastes  of  the  last 
age.  "  By  the  time,"  I  have  heard  a  most  eminent  man  of  sci- 

*  Desaugiers. 


38  BAGEHOT 

ence  observe,  "  by  the  time  a  man  of  science  attains  eminence 
on  any  subject,  he  becomes  a  nuisance  upon  it,  because  he  is 
sure  to  retain  errors  which  were  in  vogue  when  he  was  young, 
but  which  the  new  race  have  refuted."  These  are  the  sort  of 
ideas  which  find  their  home  in  academies,  and  out  of  their  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  see  by  what  we  do  not  see. 
We  can  only  comprehend  why  so  many  nations  have  not 
varied,  when  we  see  how  hateful  variation  is ;  how  everybody 
turns  against  it ;  how  not  only  the  conservatives  of  speculation 
try  to  root  it  out,  but  the  very  innovators  invent  most  rigid 
machines  for  crushing  the  "  monstrosities  and  anomalies  " — 
the  new  forms,  out  of  which,  by  competition  and  trial,  the  best 
is  to  be  selected  for  the  future.  The  point  I  am  bringing  out 
is  simple: — one  most  important  prerequisite  of  a  prevailing 
nation  is  that  it  should  have  passed  out  of  the  first  stage  of 
civilization  into  the  second  stage — out  of  the  stage  where  per- 
manence is  most  wanted  into  that  where  variability  is  most 
wanted ;  and  you  cannot  comprehend  why  progress  is  so  slow 
till  you  see  how  hard  the  most  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  the  civilized  virtues ;  and  the  savage  virtues 
which  tend  to  war  are  the  daily  bread  of  human  nature.  Car- 
lyle  said,  in  his  graphic  way,  "  The  ultimate  question  between 
every  two  human  beings  is, '  Can  I  kill  thee,  or  canst  thou  kill 
me  ?  ' '  History  is  strewn  with  the  wrecks  of  nations  which 
have  gained  a  little  progressiveness  at  the  cost  of  a  great  deal 
of  hard  manliness*  and  have  thus  prepared  themselves  for  de- 
struction as  soon  as  the  movements  of  the  world  gave  a  chance 
for  it.  But  these  nations  have  come  out  of  the  "  pre-economic 
stage  "  too  soon ;  they  have  been  put  to  learn  while  yet  only 
too  apt  to  unlearn.  Such  cases  do  not  vitiate,  they  confirm,  the 
principle — that  a  nation  which  has  just  gained  va«ability  with- 
out losing  legality  has  a  singular  likelihood  to  be  a  prevalent 
nation. 


PHYSICS    AND    POLITICS  39 

No  nation  admits  of  an  abstract  definition;  all  nations  are 
beings  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  history  is 
but  like  the  art  of  Rembrandt ;  it  casts  a  vivid  light  on  certain 
selected  causes,  on  those  which  were  best  and  greatest;  it 
leaves  all  the  rest  in  shadow  and  unseen.  To  make  a  single 
nation  illustrate  a  principle,  you  must  exaggerate  much  and 
you  must  omit  much.  But,  not  forgetting  this  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  see  that, 
binding  as  was  the  habit  of  obedience,  coercive  as  use  and  wont 
at  first  seem,  a  hidden  impulse  of  extrication  did  manage,  in 
some  queer  way,  to  change  the  substance  while  conforming 
to  the  accidents — to  do  what  was  wanted  for  the  new  time  while 
seeming  to  do  only  what  was  directed  by  the  old  time.  And 
the  moral  of  their  whole  history  is  the  same:  each  Roman 
generation,  so  far  as  we  know,  differs  a  little — and  in  the  best 
times  often  but  a  very  little — from  its  predecessors.  And, 
therefore,  the  history  is  so  continuous  as  it  goes,  though  its 
two  ends  are  so  unlike.  The  history  of  many  nations  is  like 
the  stage  of  the  English  drama :  one  scene  is  succeeded  on  a 
sudden  by  a  scene  quite  different, — a  cottage  by  a  palace,  and 
a  windmill  by  a  fortress.  But  the  history  of  Rome  changes  as 
a  good  diorama  changes;  while  you  look,  you  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  of  the  great  pre- 
vailing city :  you  begin  with  a  town  and  you  end  with  an  em- 
pire, and  this  by  unmarked  stages.  So  shrouded,  so  shielded, 
in  the  coarse  fibre  of  other  qualities  was  the  delicate  principle  of 
progress,  that  it  never  failed,  and  it  was  never  broken. 

One  standing  instance,  no  doubt,  shows  that  the  union  of 
progressiveness  and  legality  does  not  secure  supremacy  in  war. 
The  Jewish  nation  has  its  type  of  progress  in  the  prophets, 
side  by  side  with  its  type  of  permanence  in  the  law  and  Levites, 
more  distinct  than  any  other  ancient  people.  Nowhere  in  com- 
mon history  do  we  see  the  two  forces — both  so  necessary  and 


4o  BAGEHOT 

both  so  dangerous — so  apart  and  so  intense :  Judaea  changed 
in  inward  thought,  just  as  Rome  changed  in  exterior  power. 
Each  change  was  continuous,  gradual,  and  good.  In  early 
times  every  sort  of  advantage  tends  to  become  a  military  ad- 
vantage ;  such  is  the  best  way,  then,  to  keep  it  alive.  But  the 
Jewish  advantage  never  did  so;  beginning  in  religion,  con- 
trary to  a  thousand  analogies,  it  remained  religious.  For  that 
we  care  for  them ;  from  that  have  issued  endless  consequences. 
But  I  cannot  deal  with  such  matters  here,  nor  are  they  to  my 
purpose.  As  respects  this  essay,  Judaea  is  an  example  of  com- 
bined variability  and  legality  not  investing  itself  in  warlike 
power,  and  so  perishing  at  last,  but  bequeathing  nevertheless  a 
legacy  of  the  combination  in  imperishable  mental  effects. 

It  may  be  objected  that  this  principle  is  like  saying  that  men 
walk  when  they  do  walk,  and  sit  when  they  do  sit.  The  prob- 
lem is,  why  do  men  progress?  And  the  answer  suggested 
seems  to  be  that  they  progress  when  they  have  a  certain  suffi- 
cient amount  of  variability  in  their  nature.  This  seems  to  be 
t  the  old  style  of  explanation  by  occult  qualities.  It  seems  like 
saying  that  opium  sends  men  to  sleep  because  it  has  a  soporific 
virtue,  and  bread  feeds  because  it  has  an  alimentary  quality. 
But  the  explanation  is  not  so  absurd.  It  says :  "  The  begin- 
ning of  civilization  is  marked  by  an  intense  legality ;  that  le- 
gality is  the  very  condition  of  its  existence,  the  bond  which  ties 
it  together;  but  that  legality — that  tendency  to  impose  a  set- 
tled customary  yoke  upon  all  men  and  all  actions — if  it  goes 
on,  kills  out  the  variability  implanted  by  nature,  and  makes 
different  men  and  different  ages  fac-similes  of  other  men  and 

9 other  ages,  as  we  see  them  so  often.    Progress  is  only  possible 

in  those  happy  cases  where  the  force  of  legality  has  gone  far 
enough  to  bind  the  nation  together,  but  not  far  enough  to  kill 
out  all  varieties  and  destroy  nature's  perpetual  tendency  to 
change."  The  point  of  the  solution  is  not  the  invention  of  an 
imaginary  agency,  but  an  assignment  of  comparative  magni- 
tude to  two  known  agencies. 


PHYSICS    AND    POLITICS  41 


Part  III 

This  advantage  is  one  of  the  greatest  in  early  civilization — • 
one  of  the  facts  which  give  a  decisive  turn  to  the  battle  of  nations; 
but  there  are  many  others.  A  little  perfection  in  political  insti- 
tutions may  do  it.  Travellers  have  noticed  that  among  savage 
tribes  those  seemed  to  answer  best  in  which  the  monarchical 
power  was  most  predominant,  and  those  worst  in  which  the  "  rule 
of  many  "  was  in  its  vigor.  So  long  as  war  is  the  main  business 
of  nations,  temporary  despotism — despotism  during  the  cam- 
paign— is  indispensable.  Macaulay  justly  said  that  many  an 
army  has  prospered  under  a  bad  commander,  but  no  army  has 
ever  prospered  under  a  "  debating  society; "  that  many-headed 
monster  is  then  fatal.  Despotism  grows  in  the  first  societies, 
just  as  democracy  grows  in  more  modern  societies;  it  is  the 
government  answering  the  primary  need,  and  congenial  to  the 
whole  spirit  of  the  time.  But  despotism  is  unfavorable  to  the 
principle  of  variability,  as  all  history  shows.  It  tends  to  keep 
men  in  the  customary  ^stage  of  civilization;  its  very  fitness  for 
that  age  unfits  it  for  the  next.  It  prevents  men  from  passing  into 
the  first  age  of  progress — the  very  slow  and  very  gradually  im- 
proving age.  Some  "  standing  system  "  ofjemi-free Discussion 
is  as  necessary  to  break  the  thick  crust  of  custom  and  begin  prog- 
ress as  it  is  in  later  ages  to  carry  on  progress  when  begun ;  proba- 
bly it  is  even  more  necessary.  And  in  the  most  progressive 
races  we  find  it.  I  have  spoken  already  of  the  Jewish  prophets, 
the  life  of  that  nation,  and  the  principle  of  all  its  growth.  But 
a  still  more  progressive  race — that  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^JFreerna^rr^of  Teutonic  political  life  we  find 
the  monarchic,  the  aristocratic,  and  the  democratic  elements  al- 
ready clearly  marked.  There  are  leaders  with  or  without  the 
royal  title;  there  are  men  of  noble  birth,  whose  noble  birth  (in 
whatever  the  original  nobility  may  have  consisted)  entitles  them 
to  a  pre-eminence  in  every  way ;  but  beyond  these  there  is  a  free 
and  armed  people,  in  whom  it  is  clear  that  the  ultimate  sovereign- 
ty resides.  Small  matters  are  decided  by  the  chiefs  alone ;  great 
matters  are  submitted  by  the  chiefs  to  the  assembled  nation. 


42  BAGEHOT 

Such  a  system  is  far  more  than  Teutonic;  it  is  a  common  Aryan 
possession;  it  is  the  constitution  of  the  Homeric  Achaians  on 
earth  and  of  the  Homeric  gods  on  Olympus."  Perhaps,  and 
indeed  probably,  this  constitution  may  be  that  of  the  primitive 
tribe  which  Romans  left  to  go  one  way,  and  Greeks  to  go  an- 
other, and  Teutons  to  go  a  third.  The  tribe  took  it  with  them,  as 
the  English  take  the  common  law  with  them,  because  it  was  the 
one  kind  of  polity  which  they  could  conceive  and  act  upon;  or 
it  may  be  that  the  emigrants  from  the  primitive  Aryan  stock 
only  took  with  them  a  good  aptitude — an  excellent  political  nat- 
ure, which  similar  circumstances  in  distant  countries  were  after-* 
wards  to  develop  into  like  forms.  But  anyhow  it  is  impossible 
not  to  trace  the  supremacy  of  Teutons,  Greeks,  and  Romans  in 
part  to  their  common  form  of  government.  The  contests  of  the 
assembly  cherished  the  principle  of  change ;  the  influence  of  the 
elders  insured  sedateness  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  intelligence.  A  Roman  army  was  a  free  body,  at  its 
own  choice  governed  by  a  peremptory  despotism.. 

The  mixture  of  races  was  often  an  advantage,  too.  Much  as 
the  old  world  believed  in  pure  blood,  it  had  very  little  of  it. 
Most  historic  nations  conquered  pre-historic  nations,  and  though 
they  massacred  many,  they  did  not  massacre  all.  They  enslaved 
th'e  subject  men,  and  they  married  the  subject  women.  No 
doubt  the  whole  bond  of  early  society  was  the  bond  of  descent; 
no  doubt  it  was  essential  to  the  notions  of  a  new  nation  that  it 
should  have  had  common  ancestors;  the  modern  idea  that  vicin- 
ity of  habitation  is  the  natural  cement  of  civil  union  would  have 
been  repelled  as  an  impiety  if  it  could  have  been  conceived  as  an 
idea.  But  by  one  of  those  legal  fictions  which  Sir  Henry  Maine 
describes  so  well,  primitive  nations  contrived  to  do  what  they 
found  convenient,  as  well  as  to  adhere  to  what  they  fancied  to  be 
right.  When  they  did  not  beget  they  adopted;  they  solemnly 
made  believe  that  new  persons  were  descended  from  the  old 
stock,  though  everybody  knew  that  in  flesh  and  blood  they  were 
not.  They  made  an  artificial  unity  in  default  of  a  real  unity; 
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  born.  Nations  with  these  sort  of  max- 


PHYSICS    AND    POLITICS  43 

ims  are  not  likely  to  have  unity  of  race  in  the  modern  sense,  and 
as  a  physiologist  understands  it.  What  sorts  of  unions  improve 
the  breed,  and  which  are  worse  than  both  the  father-race  and  the 
mother,  it  is  not  very  easy  to  say.  The  subject  was  reviewed  by 
M.  Quatrefages  in  an  elaborate  report  upon  the  occasion  of  the 
French  Exhibition,  of  all  things  in  the  world.  M.  Quatrefages 
quotes  from  another  writer  the  phrase  that  South  America  is  a 
great  laboratory  of  experiments  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  prolific,  whereas  in 
Louisiana  and  Florida  it  decidedly  is  so.  In  Jamaica  and  in  Java 
the  mulatto  cannot  reproduce  itself  after  the  third  generation; 
but  on  the  continent  of  America,  as  everybody  knows,  the  mixed 
race  is  now  must  numerous,  and  spreads  generation  after  genera- 
tion without  impediment.  Equally  various  likewise  in  various 
cases  has  been  the  fate  of  the  mixed  race  between  the  white  man 
and  the  native  American;  sometimes  it  prospers,  sometimes  it 
fails.  And  M.  Quatrefages  concludes  his  description  thus: 
"  En  acceptant  conime  vraies  toutes  les  observations  qui  ten- 
dent  a  faire  admettre  qu'il  en  sera  autrement  dans  les  localites- 
dont  fai  parle  plus  haut,  quelle  est  la  conclusion  a  tirer  de  faits 
aussi  peu  semblables?  Evidemment,  on  est  oblige  de  recon- 
naitre  que  le  developpement  de  la  race  mulatre  est  favorise, 
retarde,  ou  empeche  par  des  circonstances  locales;  en  d'autres 
termes,  qu'il  depend  des  influences  exercees  par  V ensemble  des 
conditions  d' existence,  par  le  milieu."  By  which  I  understand 
him  to  mean  that  the  mixture  of  race  sometimes  brings  out 
a  form  of  character  better  suited  than  either  parent  form  to  the 
place  and  time ;  that  in  such  cases,  by  a  kind  of  natural  selec- 
tion, it  dominates  over  both  parents,  and  perhaps  supplants 
both,  whereas  in  other  cases  the  mixed  race  is  not  as  good  then 
and  there  as  other  parent  forms,  and  then  it  passes  away  soon 
and  of  itself. 

Early  in  history  the  continual  mixtures  by  conquest  were  just 
so  many  experiments  in  mixing  races  as  are  going  on  in  South 
America  now.  New  races  wandered  into  new  districts,  and 
half  killed,  half  mixed  with  the  old  races.  And  the  result  was 
doubtless  as  various  and  as  difficult  to  account  for  then  as  now; 
sometimes  the  crossing  answered,  sometimes  it  failed.  But  when 
the  mixture  was  at  its  best  it  must  have  excelled  both  parents  in 


ll 


44 


BAGEHOT 


that  of  which  so  much  has  been  said;  that  is,  variability,  and 
consequently  progressiveness.  There  is  more  life  in  mixed  na- 
tions. France,  for  instance,  is  justly  said  to  be  the  mean  term 
between  the  Latin  and  the  German  races.  A  Norman,  as  you 
may  see  by  looking  at  him,  is  of  the  north;  a  Provencal  is  of  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  various  not  only  in  the 
past  history  of  her  various  provinces,  but  in  their  present  temper- 
aments. Like  the  Irish  element  and  the  Scotch  element  in  the 
English  House  of  Commons,  the  variety  of  French  races  con- 
tributes to  the  play  of  the  polity;  it  gives  a  chance  for  fitting  new 
things  which  otherwise  there  would  not  be.  And  early  races 
must  have  wanted  mixing  more  than  modern  races.  It  is  said, 
in  answer  to  the  Jewish  boast  that  "  their  race  still  prospers, 
though  it  is  scattered  and  breeds  in-and-in,"  "  You  prosper  be- 
cause you  are  so  scattered ;  by  acclimatization  in  various  regions 
your  nation  has  acquired  singular  elements  of  variety;  it  con- 
tains within  itself  the  principle  of  variability  which  other  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 
range,  and  it  wanted  mixing  accordingly. 

But  the  mjxtujre__oj ,rjacea..has  a  singular  danger  as  well  as  a 
singular  advantage  in  the  early  world.  We  know  now  the  Anglo- 
Indian  suspicion  or  contempt  for  "  half-castes."  The  union  of 
the  Englishman  and  the  Hindoo  produces  something  not  only 
between  races,  but  between  moralities.  They  have  no  inherited 
creed  or  plain  place  in  the  'world ;  they  have  none  of  the  fixed 
traditional  sentiments  which  are  the  stays  of  human  nature.  In 
the  early  world  many  mixtures  must  have  wrought  many  ruins ; 
they  must  have  destroyed  what  they  could  not  replace — an  in- 
bred principle  of  discipline  and  of  order.  But  if  these  unions 
of  races  did  not  work  thus;  if,  for  example,  the  two  races  were  so 
near  akin  that  their  morals  united  as  well  as  their  breeds,  if  one 
race  by  its  great  numbers  and  prepotent  organization  so  pre- 
sided over  the  other  as  to  take  it  up  and  assimilate  it,  and  leave 
no  separate  remains  of  it,  then  the  admixture  was  invaluable.  It 
added  to  the  probability  of  variability,  and  therefore  of  improve* 
ment;  and  if  that  improvement  even  in  part  took  the  military 


PHYSICS    AND    POLITICS  45 

line,  it  might  give  the  mixed  and  ameliorated  state  a  study  ad- 
vantage in  the  battle  of  nations,  and  a  greater  chance  of  lasting 
in  the  world. 

Another  mode  in  which  one  state  acquires  a  superiority  over 
competing  states  is  by  provisional  institutions,  if  I  may  so  call 
them.  The  most  important  of  these — slavery — arises  out  of  the 
same  early  conquest  as  the  mixture  of  races.  A  slave  is  an  unas- 
similated,  an  undigested  atom;  something  which  is  in  the  body 
politic,  but  yet  is  hardly  part  of  it.  Slavery,  too,  has  a  bad  name 
in  the  later  world,  and  very  justly.  We  connect  it  with  gangs  in 
chains,  with  laws  which  keep  men  ignorant,  with  laws  that  hin- 
der families.  But  the  evils  which  we  have  endured  from  slavery 
in  recent  ages  must  not  blind  us  to,  or  make  us  forget,  the  great 
services  that  slavery  rendered  in  early  ages.  There  is  a  wonder- 
ful presumption  in  its  favor;  it  is  one  of  the  institutions  which, 
at  a  certain  stage  of  growth,  all  nations  in  all  countries  choose 
and  cleave  to.  "  Slavery,"  says  Aristotle,  "  exists  by  the  law  of 
nature,"  meaning  that  it  was  everywhere  to  be  found — was  a  ru- 
dimentary universal  point  of  polity.  "  There  are  very  many 
English  colonies,"  said  Edward  Gibbon  Wakefield,  as  late  "as 
1848,  "  who  would  keep  slaves  at  once  if  we  would  let  them," 
and  he  was  speaking  not  only  of  old  colonies  trained  in  slavery, 
and  raised  upon  the  products  of  it,  but  likewise  of  new  colonies 
started  by  freemen,  and  which  ought,  one  would  think,  to  wish 
to  contain  freemen  only.  But  Wakefield  knew  what  he  was  say- 
ing; he  was  a  careful  observer  of  rough  societies,  and  he  had 
watched  the  minds  of  men  in  them.  He  had  seen  that  leisure  is 
the  great  need  of  early  societies,  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  countries  are  very  different), 
is  of  little  use;  it  cannot  hire  labor;  the  laborers  go  and  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  should  build  a 
house  for  him,  and  that  he  would  keep  his  carriage,  just  as  in 
England.  But  (so  the  story  goes)  he  had  to  try  to  live  in  his 
carriage,  for  his  laborers  left  him,  and  went  away  to  work  for 
themselves. 

In  such  countries  there  can  be  few  gentlemen  and  no  ladies. 


46  BAGEHOT 

Refinement  is  only  possible  when  leisure  is  possible;  and  slavery 
firstlnakes  it  possible.  It  creates  a  set  of  persons  born  to  work 
that  others  may  not  work,  and  not  to  think  in  order  that  others 
may  think.  The  sort  of  originality  which  slavery  gives  is  of  the 
first  practical  advantage  in  early  communities;  and  the  repose  it 
gives  is  a  great  artistic  advantage  when  they  come  to  be  de- 
scribed in  history.  The  patriarchs  Abraham,  Isaac,  and  Jacob 
could  not  have  had  the  steady  calm  which  marks  them  if  they 
had  themselves  been  teased  and  hurried  about  their  flocks  and 
herds.  Refinement  of  feeling  and  repose  of  appearance  have 
indeed  no  market  value  in  the  early  bidding  of  nations ;  they  do 
'  not  tend  to  secure  themselves  a  long  future  or  any  future.  But 
originality  in  war  does,  and  slave-owning  nations,  having  time 
to  think,  are  likely  to  be  more  shrewd  in  policy,  and  more  crafty 
in  strategy. 

No  doubt  this  momentary  gain  is  bought  at  a  ruinous  after- 
cost.  When  other  sources  of  leisure  become  possible,  the  one 
use  of  slavery  is  past.  But  all  its  evils  remain,  and  even  grow 
worse.  "  Retail  "  slavery — the  slavery  in  which  a  master  owns  a 
few  slaves,  whom  he  well  knows  and  daily  sees — is  not  at  all  an 
intolerable  state ;  the  slaves  of  Abraham  had  no  doubt  a  fair  life, 
as  things  went  in  that  day.  But  wholesale  slavery,  where  men 
are  but  one  of  the  investments  of  large  capital,  and  wherea  great 
owner,  so  far  from  knowing  each  slave,  can  hardly  tell  how 
many  gangs  of  them  he  works,  is  an  abominable  state.  This  is 
the  slavery  which  has  made  the  name  revolting  to  the  best  minds, 
and  has  nearly  rooted  the  thing  out  of  the  best  of  the  world. 
There  is  no  out-of-the-way  marvel  in  this.  The  whole  history 
of  civilization  is  strewn  with  creeds  and  institutions  which  were 
invaluable  at  first,  and  deadly  afterwards.  Progress  would  not 
have  been  the  rarity  it  is  if  the  early  food  had  not  been  the  late 
poison.  A  full  examination  of  these  provisional  institutions 
would  need  half  a  volume,  and  would  be  out  of  place  and  useless 
here.  Venerable  oligarchy,  august  monarchy,  are  two  that 
would  alone  need  large  chapters.  But  the  sole  point  here  neces- 
sary is  to  say  that  such  preliminary  forms  and  feelings  at  first 
often  bring  many  graces  and  many  refinements,  and  often  tend 
to  secure  them  by  the  preservative  military  virtue. 

There  are  cases  in  which  some  step  in  intellectual  progress 
gives  an  early  society  some  gain  in  war;  more  obvious  cases  are 


PHYSICS    AND    POLITICS  47 

when  some  kind  of  moral  quality  gives  some  such  gain.  War 
both  needs  and  generates  certain  virtues;  not  the  highest,  but 
what  may  be  called  the  preliminary  virtues,  as  valor,  veracity,  the 
spirit  of  obedience,  the  habit  of  discipline.  Any  of  these,  and  of 
others  like  them,  when  possessed  by  a  nation,  and  no  matter 
how  generated,  will  give  them  a  military  advantage,  and  make 
them  more  likely  to  stay  in  the  race  of  nations.  The  Romans 
probably  had  as  much  of  these  efficacious  virtues  as  any  race  of 
the  ancient  world, — perhaps  as  much  as  any  race  in  the  modern 
world  too.  And  the  success  of  the  nations  which  possess  these 
martial  virtues  has  been  the  great  means  by  which  their  con- 
tinuance has  been  secured  in  the  world,  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  world. 

In  the  last  century  it  would  have  sounded  strange  to  speak, 
as  I  am  going  to  speak,  of  the  military  advantage  of  religion. 
Such  an  idea  would  have  been  opposed  to  ruling  prejudices,  and 
would  hardly  have  escaped  philosophical  ridicule.  But  the  no- 
tion is  but  a  commonplace  in  our  day,  for  a  man  of  genius  has~ 
made  it  his  own.  Mr.  Carlyle's  books  are  deformed  by  phrases 
like  "  infinities  "  and  "  verities,"  and  altogether  are  full  of  faults, 
which  attract  the  very  young,  and  deter  all  that  are  older.  In 
spite  of  his  great  genius,  after  a  long  life  of  writing,  it  is  a  ques- 
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  (though  it  is 
often  profound) ;  and  he  brandishes  one  or  two  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  taught  the  present  generation  many  lessons,  and 
one  of  these  is  that  "  God-fearing  "  armies  are  the  best  armies. 
Before  this  time  people  laughed  at  Cromwell's  saying,  "  Trust  in 
God,  and  keep  your  powder  dry."  But  we  now  know  that  the 
trust  was  of  as  much  use  as  the  powder,  if  not  of  more.  That 
high  concentration  of  steady  feeling  makes  men  dare  everything 
and  do  anything. 

This  subject  would  run  to  an  infinite  extent  if  anyone  were 
competent  to  handle  it.  Those  kinds  of  morals  and  that  kind  of 
religion  which  tend  to  make  the  firmest  and  most  effectual 


> 


48  BAGEHOT 

character  are  sure  to  prevail,  all  else  being  the  same;  and  creeds 
or  systems  that  conduce  to  a  soft,  limp  mind  tend  to  perish,  ex- 
cept some  hard  extrinsic  force  keep  them  alive.  Thus  Epicurean- 
ism never  prospered  at  Rome,  but  Stoicism  did;  the  stiff,  serious 
character  of  the  great  prevailing  nation  was  attracted  by  what 
seemed  a  confirming  creed,  and  deterred  by  what  looked  like  a 
relaxing  creed.  The  inspiriting  doctrines  fell  upon  the  ardent 
character,  and  so  confirmed  its  energy.  Strong  beliefs  win 
strong  men,  and  then  make  them  stronger.  Such  is  no  doubt 
one  cause  why  monotheism  tends  to  prevail  over  polytheism;  it 
produces  a  higher,  steadier  character,  calmed  and  concentrated 
by  a  great  single  object;  it  is  not  confused  by  competing  rites,  or 
distracted  by  miscellaneous  deities.  Polytheism  is  religion  in 
commission,  and  it  is  weak  accordingly.  But  it  will  be  said  the 
Jews,  who  were  monotheist,  were  conquered  by  the  Romans, 
who  were  polytheist.  Yes,  it  must  be  answered,  because  the 
Romans  had  other  gifts ;  they  had  a  capacity  for  politics,  a  habit 
of  discipline,  and  of  these  the  Jews  had  not  the  least.  The  relig- 
ious advantage  was  an  advantage,  but  it  was  counter-weighed. 

No  one  should  be  surprised  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- 
tion-changing comes  afterwards,  and  is  mostly  effected  by  peace- 
ful revolution,  though  even  then  war,  too,  plays  its  part.  The 
idea  of  an  indestructible  nation  is  a  modern  idea ;  in  early  ages 
all  nations  were  destructible,  and  the  further  we  go  back  the 
more  incessant  was  the  work  of  destruction.  The  internal  deco- 
ration of  nations  is  a  sort  of  secondary  process,  which  succeeds 
when  the  main  forces  that  create  nations  have  principally  done 
their  work.  We  have  here  been  concerned  with  the  political 
scaffolding;  it  will  be  the  task  of  other  papers  to  trace  the  proc- 
ess of  political  finishing  and  building.  The  nicer  play  of  finer 
forces  may  then  require  more  pleasingjhoughts  than  the  fierce 
fights  of  early  ages  can  ever  suggest.  It  belongs  to  the  idea  of 
progress  that  beginnings  can  never  seem  attractive  to  those  who 
live  far  on;  the  price  of  improvement  is  that  the  unimproved 
will  always  look  degraded.  - 

But  how  far  are  the  strongest  nations  really  the  best  nations? 
how  far  is  excellence  in  war  a  criterion  of  other  excellence?  I 
cannot  answer  this  now  fully,  but  three  or  four  considerations  are 


PHYSICS   AND    POLITICS 


49 


very  plain.  War,  as  I  have  said,  nourishes  the  "  preliminary  " 
virtues,  and  this  is  almost  as  much  as  to  say  that  there  are  virt- 
ues which  it  does  not  nourish.  All  which  may  be  called 
"grace"  as  well  as  virtue  it  does  not  nourish ;  humanity,  charity, 
a  nice  sense  of  the  rights  of  others,  it  certainly  does  not  foster. 
The  insensibility  to  human  suffering  which  is  so  striking  a  fact 
in  the  world,  as  it  stood  when  history  first  reveals  it,  is  doubtless 
due  to  the  warlike  origin  of  the  old  civilization.  Bred  in  war, 
and  nursed  in  war,  it  could  not  revolt  from  the  things  of  war, 
and  one  of  the  principal  of  these  is  human  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 
inflict  without  caring;  and  this  not  so  much  because  men  are 
improved  (which  may  or  may  not  be  in  various  cases),  but  be- 
cause they  have  no  longer  the  daily  habit  of  war — have  no  longer 
formed  their  notions  upon  war,  and  therefore  are  guided  by 
thoughts  and  feelings  which  soldiers  as  such — soldiers  educated 
simply  by  their  trade — are  too  hard  to  understand. 

Very  like  this  is  the  contempt  for  physical  weakness  and  for^ 
women  which  marks  early  society  too.  The  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  mind  without 
muscle  has  far  greater  force  than  muscle  without  mind.  These 
are  some  of  the  after-changes  in  the  interior  of  nations,  of  which 
the  causes  must  be  scrutinized,  and  I  now  mention  them  only  to 
bring  out  how  many  softer  growths  have  now  half-hidden  the 
old  and  harsh  civilization  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  and  meta- 
phors from  war  make  most  of  our  current  moral  phrases,  and  a 
nice  examination  would  easily  explain  that  both  rather  vitiate 
whaHxrth  often  illustrate.  The  military  habit  makes  man  think 
far  too  much  of  definite  action,  and  far  too  little  of  brooding 
meditation.  Life  is  not  a  set  campaign,  but  an  irregular  work, 
and  the  main  forces  in  it  are  not  overt  resolutions,  but  latent  and 
half-involuntary  promptings.  The  mistake  of  military  ethics  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. 


5o  BAGEHOT 

Military  morals  can  direct  the  axe  to  cut  down  the  tree,  but  it 
knows  nothing  of  the  quiet  force  by  which  the  forest  grows. 

What  has  been  said  is  enough,  I  hope,  to  bring  out  that  there 
are  many  qualities  and  many  institutions  of  the  most  various 
sort  which  give  nations  an  advantage  in  military  competition; 
that  most  of  these  and  most  warlike  qualities  tend  principally  to 
good ;  that  the  constant  winning  of  these  favored  competitors  is 
the  particular  mode  by  which  the  best  qualities  wanted  in  ele- 
mentary civilization  are  propagated  and  preserved. 


CHAPTER  HI 

NATION-MAKING 

IN  the  last  essay  I  endeavored  to  show  that  in  the  early  age 
of  man — the  "  fighting  age  "  I  called  it — there  was  a  con-  / 
siderable,  though  not  certain,  tendency  towards  progress./ 
The  best  nations  conquered  the  worst ;  by  the  possession  of  one 
advantage  or  another  the  best  competitor  overcame  the  inferior 
competitor.  So  long  as  there  was  continual  fighting  there  was 
a  likelihood  of  improvement  in  martial  virtues,  and  in  early 
times  many  virtues  are  really  "  martial  " — that  is,  tend  to  suc- 
cess in  war — which  in  later  times  we  do  not  think  of  so  calling, 
because  the  original  usefulness  is  hid  by  their  later  usefulnessv 
We  judge  of  them  by  the  present  effects,  not  by  their  first. 
The  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  gift  of  "  conservative  in- 
novation " — the  gift  of  matching  new  institutions  to  old — is 
not  now-a-days  a  warlike  virtue,  yet  the  Romans  owed  much 
of  their  success  to  it.  Alone  among  ancient  nations  they  had 
the  deference  to  usage  which  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:  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  number  may  be 
too  potent  even  then  (as  so  often  it  is  afterwards) :  civilization 
may  be  thrown  back  by  the  conquest  of  many  very  rude  men 
over  a  few  less  rude  men.  But  the  first  elements  of  civilization 
are  great  military  advantages,  and,  roughly,  it  is  a  rule  of  the 
first  times  that  you  can  infer  merit  from  conquest,  and  that 
progress  is  promoted  by  the  competitive  examination  of  con- 
stant war. 


52  BAGEHOT 

This  principle  explains  at  once  why  the  "  protected  "  regions 
of  the  world — the  interior  of  continents  like  Africa,  outlying 
islands  like  Australia  or  New  Zealand — are  of  necessity  back- 
ward. They  are  still  in  the  preparatory  school ;  they  have  not 
been  taken  on  class  by  class,  as  No.  II,  being  a  little  better, 
routed  and  effaced  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  most  re- 
gions, it  was  a  tempting  part  of  the  world,  and  yet  not  a 
corrupting  part;  those  who  did  not  possess  it  wanted  it,  and 
those  who  had  it,  not  being  enervated,  could  struggle  hard  to 

g  keep  it.    The  conflict  of  nations  is  at  first  a  main  force  in  the 

*  improvement  of  nations. 

But  what  are  nations?  What  are  these  groups  which  are 
so  familiar  to  us,  and  yet,  if  we  stop  to  think,  so  strange ;  which 
are  as  old  as  history;  which  Herodotus  found  in  almost  as 
great  numbers  and  with  quite  as  marked  distinctions  as  we  see 
them  now?  What  breaks  the  human  race  up  into  fragments 
so  unlike  one  another,  and  yet  each  in  its  interior  so  monoto- 
nous? The  question  is  most  puzzling,  though  the  fact  is  so 
familiar,  and  I  would  not  venture  to  say  that  I  can  answer  it 
completely,  though  I  can  advance  some  considerations  which, 
as  it  seems  to  me,  go  a  certain  way  towards  answering  it.  Per- 
haps these  same  considerations  throw  some  light,  too,  on  the 
further  and  still  more  interesting  question  why  some  few  na- 
tions progress,  and  why  the  greater  part  do  not. 

Of  course  at  first  all  such  distinctions  of  nation  and  nation 
were  explained  by  original  diversity  of  race.  They  are  dis- 
similar, it  was  said,  because  they  were  created  dissimilar.  But 
in  most  cases  this  easy  supposition  will  not  do  its  work.  You 
cannot  (consistently  with  plain  facts)  imagine  enough  original 
races  to  make  it  tenable.  Some  half-dozen  or  more  great  fam- 
ilies of  men  may  or  may  not  have  been  descended  from  separate 
first  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,  just  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    POLITICS  53 

All  Greeks  are  evidently  of  one  origin,  but  within  the  limits 
of  the  Greek  family,  as  of  all  other  families,  there  is  some  con- 
trast-making force  which  causes  city  to  be  unlike  city,  and  tribe 
unlike  tribe. 

Certainly,  too,  nations  did  not  originate  by  simple  natural 
selection,  as  wild  varieties  of  animals  (I  do  not  speak  now  of 
species)  no  doubt  arise  in  nature.  Natural  selection  means 
the  preservation  of  those  individuals  which  struggle  best  with 
the  forces  that  oppose  their  race.  But  you  could  not  show 
that  the  natural  obstacles  opposing  human  life  much  differed 
between  Sparta  and  Athens,  or  indeed  between  Rome  and 
Athens;  and  yet  Spartans,  Athenians,  and  Romans  differ  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, 
and  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,  live  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  re- 
sembles New  Guinea,  not  only  in  its  vast  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  are  the  counterpart 
of  the  Philippines  ?n  their  volcanic  structure,  their  extreme 
fertility,  their  luxuriant  forests,  and  their  frequent  earthquakes ; 
and  Bali,  with  the  east  end  of  Java,  has  a  climate  almost  as 
arid  as  that  of  Timor.  Yet  between  these  corresponding 
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  greatest  possible  contrast,  when  we 
compare  their  animal  productions.  Nowhere  does  the  ancient 
doctrine — that  differences  or  similarities  in  the  various  forms 
of  life  that  inhabit  different  countries  are  due  to  corresponding 
physical  differences  or  similarities  in  the  countries  themselves 
: — meet  with  so  direct  and  palpable  a  contradiction.  Borneo 


54 


BAGEHOT 


and  New  Guinea,  as  alike  physically  as  two  distinct  countries 
can  be,  are  zoologically  as  wide  as  the  poles  asunder;  while 
Australia,  with  its  dry  winds,  its  open  plains,  its  stony  deserts, 
and  its  temperate  climate,  yet  produces  birds  and  quadrupeds 
which  are  closely  related  to  those  inhabiting  the  hot,  damp, 
luxuriant  forests  which  everywhere  clothe  the  plains  and  moun- 
tains of  New  Guinea."  That  is,  we  have  like  living  things  in 
the  most  dissimilar  situations,  and  unlike  living  things  in  the 
most  similar  ones.  And  though  some  of  Mr.  Wallace's 
speculations  on  ethnology  may  be  doubtful,  no  one  doubts 
that  in  the  archipelago  he  has  studied  so  well,  as  often  else- 
where in  the  world,  though  rarely  with  such  marked  emphasis, 
we  find  like  men  in  contrasted  places,  and  unlike  men  in  re- 
sembling places.  Climate  is  clearly  not  the  force  which  makes 
>  nations,  for  it  does  not  always  make  them,  and  tfrey  are  often 
made  without  it. 

The  problem  of  "  nation-making  " — that  is,  the  explanation 
<of  the  origin  of  nations  such  as  we  now  see  them,  and  such  as 
in  historical  times  they  have  always  been — cannot,  as  it  seems 
\,  'to  me,  be  solved  without  separating  it  into  two:  one,  the  mak- 
ing of  broadly  marked  races,  such  as  the  negro  or  the  red  man 
or  the  European;  and  the  second,  that  of  making  the  minor 
^distinctions,  such  as  the  distinction  between  Spartan  and  Athe- 
nian, or  between  Scotchman  and  Englishman.     Nations,  as 
»we  see  them,  are  (if  my  arguments  prove  true)  the  produce  of 
two  great  forces:  one  the  race-making  force  which,  whatever 
it  was,  acted  in  antiquity,  and  has  now  wholly,  or  almost,  given 
over  acting ;  and  the  other  the  nation-making  force,  properly 
so  called,  which  is  acting  now  as  much  as  it  ever  acted,  and 
*  creating  as  much  as  it  ever  created. 

The  strongest  light  on  the  great  causes  which  have  formed 
and  are  forming  nations  is  thrown  by  the  smaller  causes  which 
are  altering  nations.  The  way  in  which  nations  change,  gen- 
eration after  generation,  is  exceedingly  curious,  and  the  change 
occasionally  happens  when  it  is  very  hard  to  account  for.  Some- 
thing seems  to  steal  over  society,  say  of  the  Regency  time  as 
compared  with  that  of  the  present  Queen.  If  we  read  of  life 
.at  Windsor  (at  the  cottage  now  pulled  down),  or  of  Bond 
'Street  as  it  was  in  the  days  of  the  Loungers  (an  extinct  race), 
»or  of  St.  James's  Street  as  it  was  when  Mr.  Fox  and  his  party 


PHYSICS    AND    POLITICS 


55 


tried  to  make  "  political  capital "  out  of  the  dissipation  of  an 
heir  apparent,  we  seem  to  be  reading  not  of  the  places  we  know 
so  well,  but  of  very  distant  and  unlike  localities.  Or  let  any- 
one think  how  little  is  the  external  change  in  England  between 
the  age  of  Elizabeth  and  the  age  of  Anne  compared  with  the 
national  change.  How  few  were  the  alterations  in  physical 
condition,  how  few  (if  any)  the  scientific  inventions  affecting 
human  life  which  the  later  period  possessed,  but  the  earlier  did 
not !  How  hard  it  is  to  say  what  has  caused  the  change  in  the 
people!  And  yet  how  total  is  the  contrast,  at  least  at  first 
sight !  In  passing  from  Bacon  to  Addison,  from  Shakespeare 
to  Pope,  we  seem  to  pass  into  a  new  world. 

In  the  first  of  these  essays  I  spoke  of  the  mode  in  which 
the  literary  change  happens,  and  I  recur  to  it  because,  litera- 
ture being  narrower  and  more  definite  than  life,  a  change  in 
the  less  serves  as  a  model  and  illustration  of  the  change  in  the 
greater.  Some  writer,  as  was  explained,  not  necessarily  a  very 
excellent  writer  or  a  remembered  one,  hit  on  something  which 
*  suited  the  public  taste :  he  went  on  writing,  and  others  imitate^ 
him,  and  they  so  accustomed  their  readers  to  that  style  that 
they  would  bear  nothing  else.  Those  readers  who  did  not 
like  it  were  driven  to  the  works  of  other  ages  and  other  coun- 
tries— had  to  despise  the  "  trash  of  the  day,"  as  they  would 
call  it.  The  age  of  Anne  patronized  Steele,  the  beginner  of  the 
essay,  and  Addison  its  perfecter,  and  it  neglected  writings  in 
a  wholly  discordant  key.  I  have  heard  that  the  founder  of 
the  "  Times  "  was  asked  how  all  the  articles  in  the  "  Times  " 
came  to  seem  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  doubtless  the  true  account  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  by  another  and  a  younger 
race.  But  when  the  style  of  a  periodical  is  once  formed,  the 
continuance  of  it  is  preserved  by  a  much  more  despotic  im- 
pulse than  the  tendency  to  imitation, — by  the  self-interest  of 
the  editor,  who  acts  as  trustee,  if  I  may  say  so,  for  the  sub- 
scribers. The  regular  buyers  of  a  periodical  want  to  read 
what  they  have  been  used  to  read— the  same  sort  of  thought, 


"I 


56  BAGEHOT 

the  same  sort  of  words.  The  editor  sees  that  they  get  that 
sort.  He  selects  the  suitable,  the  conforming  articles,  and  he 
rejects  the  non-conforming.  What  the  editor  does  in  the  case 
of  a  periodical,  the  readers  do  in  the  case  of  literature  in  gen- 
eral. They  patronize  one  thing  and  reject  the  rest. 

Of  course  there  was  always  some  reason  (if  we  only  could 
find  it)  which  gave  the  prominence  in  each  age  to  some  par- 
ticular winning  literature.  There  always  is  some  reason  why 
the  fashion  of  female  dress  is  what  it  is.  But  just  as  in  the 
case  of  dress  we  know  that  now-a-days  the  determining  cause 
is  very  much  of  an  accident,  so  in  the  case  of  literary  fashion, 
the  origin  is  a  good  deal  of  an  accident.  What  the  milliners 
of  Paris,  or  the  demi-monde  of  Paris,  enjoin  our  English  ladies, 
is  (I  suppose)  a  good  deal  chance ;  but  as  soon  as  it  is  decreed, 
those  whom  it  suits  and  those  whom  it  does  not  all  wear  it. 
The  imitative  propensity  at  once  insures  uniformity ;  and  "  that 
horrid  thing  we  wore  last  year  "  (as  the  phrase  may  go)  is  soon 
nowhere  to  be  seen.  Just  so  a  literary  fashion  spreads,  though 
I  am  far  from  saying  with  equal  primitive  unreasonableness — 
a  literary  taste  always  begins  on  some  decent  reason,  but  once 
started,  it  is  propagated  as  a  fashion  in  dress  is  propagated; 
even  those  who  do  not  like  it  read  it  because  it  is  there,  and 
because  nothing  else  is  easily  to  be  found. 

The  same  patronage  of  favored  forms,  and  persecution  of 
disliked  forms,  are  the  main  causes,  too,  I  believe,  which 
change  national  character.  Some  one  attractive  type  catches 
the  eye,  so  to  speak,  of  the  nation,  or  a  part  of  the  nation,  as 
servants  catch  the  gait  of  their  masters,  or  as  mobile  girls  come 
home  speaking  the  special  words  and  acting  the  little  gestures 
of  each  family  whom  they  may  have  been  visiting.  I  do  not 
know  if  many  of  my  readers  happen  to  have  read  Father  New- 
man's celebrated  sermon,  "  Personal  Influence  the  Means  of 
Propagating  the  Truth ;"  if  not,  I  strongly  recommend  them 
to  do  so.  They  will  there  see  the  opinion  of  a  great  practical 
leader  of  men,  of  one  who  has  led  very  many  where  they  little 
thought  of  going,  as  to  the  mode  in  which  they  are  to  be  led ; 
and  what  he  says,  put  shortly  and  simply,  and  taken  out  of  his 
delicate  language,  is  but  this — that  men  are  guided  by  type, 
not  by  argument ;  that  some  winning  instance  must  be  set  up 
before  them,  or  the  sermon  will  be  vain,  and  the  doctrine  will 


PHYSICS    AND    POLITICS  57 

not  spread.  I  do  not  want  to  illustrate  this  matter  from  relig- 
ious history,  for  I  should  be  led  far  from  my  purpose,  and  after 
all  I  can  but  teach  the  commonplace  that  it  is  the  life  of  teachers 
which  is  catching,  not  their  tenets.  And  again,  in  political 
matters,  how  quickly  a  leading  statesman  can  change  the  tone 
of  the  community !  We  are  most  of  us  earnest  with  Mr.  Glad- 
stone ;  we  were  most  of  us  not  so  earnest  in  the  time  of  Lord 
Palmerston.  The  change  is  what  every  one  feels,  though  no 
one  can  define  it.  Each  predominant  mind  calls  out  a  cor- 
responding sentiment  in  the  country:  most  feel  it  a  little. 
Those  who  feel  it  much  express  it  much ;  those  who  feel  it  ex- 
cessively express  it  excessively;  those  who  dissent  are  silent, 
or  unheard. 

After  such  great  matters  as  religion  and  politics,  it  may 
seem  trifling  to  illustrate  the  subject  from  little  boys.  But  it 
is  not  trifling.  The  bane  of  philosophy  is  pomposity ;  people 
will  not  see  that  small  things  are  the  miniatures  of  greater,  and 
it  seems  a  loss  of  abstract  dignity  to  freshen  their  minds  by 
object  lessons  from  what  they  know.  But  every  boarding- 
school  changes  as  a  nation  changes.  Most  of  us  may  remem- 
ber thinking,  "  How  odd  it  is  that  this  '  half '  should  be  so  un- 
like last  t  half :'  now  we  never  go  out  of  bounds,  last  half  we 
were  always  going:  now  we  play  rounders,  then  we  played 
prisoner's  base ;"  and  so  through  all  the  easy  life  of  that  time. 
In  fact,  some  ruling  spirits,  some  one  or  two  ascendant  boys, 
had  left,  one  or  two  others  had  come ;  and  so  all  was  changed. 
The  models  were  changed,  and  the  copies  changed ;  a  different 
thing  was  praised,  and  a  different  thing  bullied.  A  curious 
case  of  the  same  tendency  was  noticed  to  me  only  lately.  A 
friend  of  mine — a  Liberal  Conservative — addressed  a  meeting 
of  workingmen  at  Leeds,  and  was  much  pleased  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  very  opposite  things,  and  the 
workingmen  cheered  him,  too,  and  quite  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  going, 
quite  ready  to  applaud  any  good  words  without  much  thinking. 
The  ringleaders  changed.  The  radical  tailor  started  the  radi- 
cal cheer;  the  more  moderate  shoemaker  started  the  moderate 


58  BAGEHOT 

v 

cheer ;  and  the  great  bulk  followed  suit.  Only  a  few  in  each 
case  were  silent,  and  an  absolute  contrast  was  in  ten  minutes 
presented  by  the  same  elements. 

The  truth  is  that  the  propensity  of  man  to  imitate  what 
is  before  him  is  one  of  the  strongest  parts  of  his  nature. 
And  one  sign  of  it  is  the  great  pain  which  we  feel  when 
our  imitation  has  been  unsuccessful.  There  is  a  cynical  doc- 
trine that  most  men  would  rather  be  accused  of  wickedness 
than  of  gaucherie.  And  this  is  but  another  way  of  saying 
that  the  bad  copying  of  predominant  manners  is  felt  to  be 
more  of  a  disgrace  than  common  consideration  would  account 
for  its  being,  since  gaucherie  in  all  but  extravagant  cases  is 
not  an  offence  against  religion  or  morals,  but  is  simply  bad 
imitation. 

We  must  not  think  that  this  imitation  is  voluntary,  or  even 
conscious.  On  the  contrary,  it  has  its  seat  mainly  in  very  ob- 
scure parts  of  the  mind,  whose  notions,  so  far  from  having 
been  consciously  produced,  are  hardly  felt  to  exist;  so  far 
from  being  conceived  beforehand,  are  not  even  felt  at  the  time. 
The  main  seat  of  the  imitative  part  of  our  nature  is  our  belief, 
and  the  causes  predisposing  us  to  believe  this,  or  disinclining 
us  to  believe  that,  are  among  the  obscurest  parts  of  our  nature. 
But  as  to  the  imitative  nature  of  credulity  there  can  be  no  doubt. 
In  "  Eothen  "  there  is  a  capital  description  of  how  every  sort 
of.  European  resident  in  the  East,  even  the  shrewd  merchant 
and  "  the  post-captain,"  with  his  bright,  wakeful  eyes  of  com- 
merce, comes  soon  to  believe  in  witchcraft,  and  to  assure  you, 
in  confidence,  that  there  "  really  is  something  in  it."  He  has 
never  seen  anything  convincing  himself,  but  he  has  seen  those 
who  have  seen  those  who  have  seen  those  who  have  seen.  In 
fact,  he  has  lived  in  an  atmosphere  of  infectious  belief,  and  he 
has  inhaled  it.  Scarcely  any  one  can  help  yielding  to  the  cur- 
rent infatuations  of  his  sect  or  party.  For  a  short  time — say 
some  fortnight — he  is  resolute;  he  argues  and  objects;  but, 
day  by  day,  the  poison  thrives,  and  reason  wanes.  What  he 
hears  from  his  friends,  what  he  reads  in  the  party  organ,  pro- 
duces its  effect.  The  plain,  palpable  conclusion  which  every 
one  around  him  believes  has  an  influence  yet  greater  and  more 
subtle ;  that  conclusion  seems  so  solid  and  unmistakable ;  his 
own  good  arguments  get  daily  more  and  more  like  a  dream. 


PHYSICS    AND    POLITICS  59 

Soon  the  gravest  sage  shares  the  folly  of  the  party  with  which 
he  acts,  and  the  sect  with  which  he  worships. 

In  true  metaphysics  I  believe  that,  contrary  to  common 
opinion,  unbelief  far  oftener  needs  a  reason  and  requires  an 
effort  than  belief.  Naturally,  and  if  man  were  made  according 
to  the  pattern  of  the  logicians,  he  would  say,  "  When  I  see  a 
valid  argument  I  will  believe,  and  till  I  see  such  argument  I 
will  not  believe."  But,  in  fact,  every  idea  _viyidly  before  us 
soon  appears  to  us  to  be  true,  unless  we  keep  up  our  percep- 
tions of  the  arguments  which  prove  it  untrue,  and  voluntarily 
coerce  our  minds  to  remember  its  falsehood.  "  All  clear  ideas 
are  true ' '  was  for  ages  a  philosophical  maxim,  and  though  no 
maxim  can  be  more  unsound,  none  can  be  more  exactly  con- 
formable to  ordinary  human  nature.  The  child  resolutely  ac- 
cepts every  idea  which  passes  through  its  brain  as  true ;  it  has 
no  distinct  conception  of  an  idea  which  is  strong,  bright,  and 
permanent,  but  which  is  false,  too.  The  mere  presentation  of 
an  idea,  unless  we  are  careful  about  it,  or  unless  there  is  within 
some  unusual  resistance,  makes  us  believe  it ;  and  this  is  why 
the  belief  of  others  adds  to  our  belief  so  quickly,  for  no  ideas 
seem  so  very  clear  as  those  inculcated  on  us  from  every  side. 

The  grave  part  of  mankind  are  quite  as  liable  to  ihese  imi- 
tated beliefs  as  the  frivolous  part.  The  belief  of  the  money- 
market,  which  is  mainly  composed  of  grave  people,  is  as  imita- 
tive as  any  belief.  You  will  find  one  day  everyone  enterpris- 
ing, enthusiastic,  vigorous,  eager  to  buy,  and  eager  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  are  of  little  force.  In  fact,  these  opinions  were  not 
formed  by  reason,  but  by  mimicry.  Something  happened  that 
looked  a  little  good,,  on  which  eager,  sanguine  men  talked 
loudly,  and  common  people  caught  their  tone.  A  little  while 
afterwards,  and  when  people  were  tired  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  is  set  down  as 
"  crotchety."  "  If  you  want,"  said  Swift,  "  to  gain  the  reputa- 
tion of  a  sensible  man,  you  should  be  of  the  opinion  of  the 


Co  BAGEHOT 

>  person  with  whom  for  the  time  being  you  are  conversing/' 
There  is  much  quiet  intellectual  persecution  among  ".reason- 
able ""men;  a  cautious  person  hesitates  before  he  tells  them 
anything  new,  for  if  he  gets  a  name  for  such  things  he  will  be 
called  "  flighty,"  and  in  times  of  decision  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  speak 
— the  link  between  soul  and  body — the  manner.  No  one  needs 
to  have  this  explained;  we  all  know  how  a  kind  of  subtle  in- 
fluence makes  us  jmitate  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  we  may  for  the  time 
be  at — is  among  the  most  obvious  needs  of  human  nature.  But 
what  is  not  so  obvious,  though  as  certain,  is  that  the  influence 
of  the  imitation  goes  deep  as  well  as  extends  wide.  "  The 
matter,"  as  Wordsworth  says,  "  of  style  very  much  comes  out 
of  the  manner."  If  you  will  endeavor  to  write  an  imitation 
of  the  thoughts  of  Swift  in  a  copy  of  the  style  of  Addison,  you 
will  find  that  not  only  is  it  hard  to  write  Addison's  style,  from 
its  intrinsic  excellence,  but  also  that  the  more  you  approach 
to  it  the  more  you  lose  the  thought  of  Swift.  The  eager  pas- 
sion of  the  meaning  beats  upon  the  mild  drapery  of  the  words. 
So  you  could  not  express  the  plain  thoughts  of  an  Englishman 
in  the  grand  manner  of  a  Spaniard.  Insensibly,  and  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. 

This  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  others  use.  There  is  an  odd  idea 
that  those  who  take  what  is  called  a  "  scientific  view  "  of  his- 
tory need  rate  lightly  the  influence  of  individual  character.  It 
would  be  as  reasonable  to  say  that  those  .who  take  a  scientific 
view  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  causes,  for  I  do  not  here,  or  else- 
where in  these  papers,  raise  the  question  of  free-will),  but,  any- 
how, new  in  all  its  effects,  and  all  its  results.  Great  models 


PHYSICS    AND    POLITICS  61 

for  good  and  evil  sometimes  appear  among  men,  who  follow 
them  either  to  improvement  or  degradation. 

I  am,  I  know,  very  long  and  tedious  in  setting  out  this ;  but 
I  want  to  bring  home  to  others  what  every  new  observation 
of  society  brings  more  and  more  freshly  to  myself — that  this 
unconscious  imitation  and  encouragement  of  appreciated  char- 
acter, and  this  equally  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  1  shall  try 
to  show  that  the  more  acknowledged  causes,  such  as  change 
of  climate,  alteration  of  political  institutions,  progress  of 
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__oLnation-making  is  one  of  which  we  have  ob- 
vious examples  in  the  most  recent  times,  and  which  is  going 
on  now.  The  most  simple  example  is  the  foundation  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 
up  their  favorite  government;  they  discourage  all  other  dis- 
positions, persecute  other  beliefs,  forbid  other  forms  or  habits 
of  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 
traits  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 
of  sentiment  is  a  reason  of  selection  and  a  bond  of  cohesion 
in  the  "  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  these 
morals  and  that  religion  go  to  that  place,  and  stay  there ;  and 


<52  BAGEHOT 

those  who  have  not  these  morals  and  that  religion  either  settle 
elsewhere  at  first,  or  soon  pass  on.  The  days  of  colonization 
by  sudden  "  swarms  "  of  like  creed  is  almost  over,  but  a  less 
visible  process  of  attraction  by  similar  faith  over  similar  is  still 
in  vigor,  and  very  likely  to  continue. 

And  in  cases  where  this  principle  does  not  operate  all  new 
settlements,  being  formed  of  "  emigrants,"  are  sure  to  be  com- 
posed of  rather  restless  people,  mainly.  The  stay-at-home 
people  are  not  to  be  found  there^  and  these  are  the  quiet,  easy 
people.  A  new  settlement  voluntarily  formed  (for  of  old 
times,  when  people  were  expelled  by  terror,  I  am  not  speak- 
ing) is  sure  to  have  in  it  much  more  than  the  ordinary  propor- 
tion of  active  men,  and  much  less  than  the  ordinary  proportion 
of  inactive ;  and  this  accounts  for  a  large  part,  though  not  per- 
haps all,  of  the  difference  between  the  English  in  England,  and 
the  English  in  Australia. 

The  causes  which  formed  New  England  in  recent  times 
cannot  be  conceived  as  acting  much  upon  mankind  in  their 
infancy.  Society  is  not  then  formed  upon  a  "  voluntary  sys- 
tem," but  upon  an  involuntary.  A  man  in  early  ages  is  born 
to  a  certain  obedience,  and  cannot  extricate  himself  from  an 
inherited  government.  Society  then  is  made  up,  not  of  in- 
dividuals, but  of  families ;  creeds  then  descend  by  inheritance 
in  those  families.  Lord  Melbourne  once  incurred  the  ridicule 
of  philosophers  by  saying  he  should  adhere  to  the  English 
Church  because  it  was  the  religion  of  his  fathers.  The  philoso- 
phers, of  course,  said  that  a  man's  fathers*  believing  anything 
was  no  reason  for  his  believing  it  unless  it  was  true.  But  Lord 
Melbourne  was  only  uttering^out  of  season,  and  in  a  modern 
time,  one  of  the  most  firm  and  accepted  maxims  of  old  times. 
A  secession  on  religious  grounds  of  isolated  Romans  to  sail 
beyond  sea  would  have  seemed  to  the  ancient  Romans  an  im- 
possibility. "In  still  ruder  ages  the  religion  of  savages  is  a 
thing  too  feeble  to  create  a  schism  or  to  found  a  community. 
We  are  dealing  with  people  capable  of  history  when  we  speak 
of  great  ideas,  not  with  pre-historic  flint-men  or  the  present 
savages.  But  though  under  very  differeat_forms,  the  same  es- 
sential causes — the  imitation  of  preferred  characters  and  the 
elimination  of  detested  characters — were  at  work  in  the  oldest 
times,  and  are  at  work  among  rude  men  now.  Strong  as  the 


PHYSICS    AND    POLITICS 


propensity  to  imitation  is  among  civilized  men,  we  must  con- 
ceive it  as  an  impulse  of  which  their  minds  have  beenjpartially 
denuded.  Like  the  far-seeing  sight,  the  infallible  hearing,  the 
magical  scent  of  the  savage,  it  is  a  half-lost  power.  It  was 
strongest  in  ancient  times,  and  is  strongest  in  uncivilized  re- 
gions. 

This  extreme  propensity  to  imitation  is  one  great  reason  of 
the  amazing  sameness  which  every  observer  notices  in  savage 
nations.  When  you  have  seen  one  Fuegian,  you  have  seen  all 
Fuegians — one  Tasmanian,  all  Tasmanians.  The  higher  sav- 
ages, as  the  New  Zealanders,  are  less  uniform  ;  they  have  more 
of  the  varied  and  compact  structure  of  civilized  nations,  because 
in  other  respects  they  are  more  civilized.  They  have  greater 
mental  capacity — larger  stores  of  inward  thought.  But  much 
of  the  same  monotonous  nature  clings  to  them,  too.  A  savage 
tribe  resembles  a  herd  of  gregarious  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- 
ized men.  Savages  copy  quicker,  and  they  copy  better.  Chil- 
dren, in  the  same  way,  are  born  mimics ;  they  cannot  help  imi- 
tating what  comes  before  them.  There  is  nothing  in  their 
minds  to  resist  the  propensity  to  copy.  Every  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  a  savage  or  a  child  has  no  resource.  The  ex- 
ternal movements  before  it  are  its  very  life ;  it  lives  by  what  it 
sees  and  hears.  Uneducated  people  in  civilized  nations  have 
vestiges  of  the  same  condition.  If  you  send  a  housemaid  and 
a  philosopher  to  a  foreign  country  of  which  neither  knows  the 
language,  the  chances  are  that  the  housemaid  will  catch  it  be- 
fore the  philosopher.  He  has  something  else  to  do ;  he  can  live 
in  his  own  thoughts.  But  unless  she  can  imitate  the  utterances, 
she  is  lost ;  she  has  no  life  till  she  can  join  in  the  chatter  of  the 
kitchen.  The  propensity  to  mimicry,  and  the  power  of 
mimicry,  are  mostly  strongest  in  those  who  have  least  ab- 
stract minds.  The  most  wonderful  examples  of  imitation  in 
the  world  are  perhaps  the  imitations  of  civilized  men  by  sav- 
ages in  the  use  of  martial  weapons.  They  learn  the  knack,  as 
sportsmen  call  it,  with  inconceivable  rapidity.  A  North  Amer- 


64  BAGEHOT 

lean  Indian — an  Australian  even — can  shoot  as  well  as  any 
white  man.  Here  the  motive  is  at  its  maximum,  as  well  as  the 
innate  power.  Every  savage  cares  more  for  the  power  of  kill- 
ing than  for  any  other  power. 

"The  persecuting  tendency  of  all  savages,  and,  indeed,  of  all 
ignorant  people,  is  even  more  striking  than  their  imitative  ten- 
•  dency.  No  barbarian  can  bear  to  see  one  of  his  nation  deviate 
from  the  old  barbarous  customs  and  usages  of  their  tribe.  Very 
commonly  all  the  tribe  would  expect  a  punishment  from  the 
gods  if  any  one  of  them  refrained  from  what  was  old,  or  began 
what  was  new.  In  modern  times  and  in  cultivated  countries 
we  regard  each  person  as  responsible  only  for  his  own  actions, 
and  do  not  believe,  or  think  of  believing,  that  the  misconduct 
of  others  can  bring  guilt  on  them.  Guilt  to  us  is  an  individual 
taint  consequent  on  choice  and  cleaving  to  the  chooser.  But 
in  early  ages  the  act  of  one  member  of  the  tribe  is  conceived  to 
make  all  the  tribe  impious,  to  offend  its  peculiar  god,  to  ex- 
pose all  the  tribe  to  penalties  from  heaven.  There  is  no  "  limit- 
ed liability  "  in  the  political  notions  of  that  time.  The  early 
tribe  or  nation  is  a  religious  partnership,  on  which  r  rash  mem- 
ber by  a  sudden  impiety  may  bring  utter  ruin.  If  the  state  is 
conceived  thus,  toleration  becomes  wicked.  A  permitted 
deviation  from  the  transmitted  ordinances  becomes  simply 
folly.  It  is  a  sacrifice  of  the  happiness  of  the  greatest  number 
It  is  allowing  one  individual,  for  a  moment's  pleasure  or  a 
stupid  whim,  to  bring  terrible  and  irretrievable  calamity  upon 
all.  No  one  will  ever  understand  even  Athenian  history  who 
forgets  this  idea  of  the  old  world,  though  Athens  was,  in  com- 
parison with  others,  a  rational  and  sceptical  place,  ready  for 
new  views,  and  free  from  old  prejudices.  When  the  street 
statues  of  Hermes  were  mutilated  all  the  Athenians  were  fright- 
ened and  furious ;  they  thought  that  they  should  all  be  ruined 
because  some  one  had  mutilated  a  god's  image,  and  so  offended 
him.  Almost  every  detail  of  life  in  the  classical  times — the 
times  when  real  history  opens — was  invested  with  a  religious 
sanction ;  a  sacred  ritual  regulated  human  action ;  whether  it 
was  called  "  law  "  or  not,  much  of  it  was  older  than  the  word 
"  law ;"  it  was  part  of  an  ancient  usage  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  65 

was  such  a  solldarite  then  between  citizens  that  each  might  be 
led  to  persecute  the  other  for  fear  of  harm  to  himself. 

It  may  be  said  that  these  two  tendencies  of  the  early  world — 
that  to  persecution  and  that  to  imitation — must  conflict;  that 
the  imitative  impulse  would  lead  men  to  copy  what  is  new, 
and  that  persecution  by  traditional  habit  would  prevent  their 
copying  it.  But  in  practice  the  two  tendencies  co-operate. 
There  is  a  strong  tendency  to  copy  the  most  common  thing, 
and  that  common  thing  is  the  old  habit.  Daily  imitation  is 
far  oftenest  a  conservative  force,  for  the  most  frequent  models 
are  ancient.  Of  course,  however,  something  new  is  necessary 
for  every  man  and  for  every  nation.  We  may  wish,  if  we 
please,  that  to-morrow  shall  be  like  to-day,  but  it  will  not  be 
like  it.  New  forces  will  impinge  upon  us ;  new  wind,  new  rain, 
and  the  light  of  another  sun ;  and  we  must  4ter  to  meet  them. 
But  the  persecuting  habit  and  the  imitative  combine  to  insure 
that  the  new  thing  shall  be  in  the  old  fashion ;  it  must  be  an 
alteration,  but  it  shall  contain  as  little  of  variety  as  possible. 
The  imitative  impulse  tends  to  this,  because  men  most  easily v 
imitate  what  their  minds  are  best  prepared  for, — what  is  like 
the  old,  yet  with  the  inevitable  minimum  of  alteration;  what 
throws  them  least  out  of  the  old  path,  and  puzzles  least  their 
minds.  The  doctrine  of  development  means  this, — that  in  } 
unavoidable  changes  men  like  the  new  doctrine  which  is  most  * 
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  what  is  old,  but  annexing  some  new  but  like  practice 
— an  additional  turret  in  the  old  style. 

It  is  this  process  of  adding  suitable  things  and  rejecting 
discordant  things  which  has  raised  those  scenes  of  strange 
manners  which  in  every  part  of  the  world  puzzle  the  civilized 
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  bad,  as  wonder 
how  anyone  could  have  come  to  think  of  them;  to  regard 
them  as  "  monstrosities,"  which  only  some  wild  abnormal  in- 
tellect could  have  hit  upon.  And  wild  and  abnormal  indeed 
would  be  that  intellect  if  it  were  a  single  one  at  all.  But  in 
fact  such  manners  are  the  growth  of  ages,  like  Roman  law  or 
5 


66 


BAGEHOT 


the  British  constitution.  No  one  man — no  one  generation — 
could  have  thought  of  them, — only  a  series  of  generations 
trained  in  the  habits  of  the  last  and  wanting  something  akin 
to  such  habits,  could  have  devised  them.  Savages  pet  their 
favorite  habits,  so  to  say,  and  preserve  them  as  they  do  their 
favorite  animals ;  ages  are  required,  but  at  last  a  natipnal  char- 
acter is  formed  by  the  confluence  of  congenial  attractions  and 
accordant  detestations. 

Another  cause  helps.  In  early  states  of  civilization  there 
is  a  great  mortality  of  infant  life,  and  this  is  a  kind  of  selection 
in  itself — the  child  most  fit  to  be  a  good  Spartan  is  most  likely 
to  survive  a  Spartan  childhood.  The  habits  of  the  tribe  are 
enforced  on  the  child ;  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,  but  it  begins  with  suitable 
forms  and  acts  on  picked  specimens.  I  suppose,  too,  that 
there  is  a  kind  of  parental  selection  operating  in  the  same  way 
and  probably  tending  to  keep  alive  the  same  individuals.  Those 
children  which  gratified  their  fathers  and  mothers  most  would 
be  most  tenderly  treated  by  them,  and  have  the  best  chance  to 
live,  and  as  a  rough  rule  their  favorites  would  be  the  children 
of  most  "  promise,"  that  is  to  say,  those  who  seemed  most  likely 
to  be  a  credit  to  the  tribe  according  to  the  leading  tribal  man- 
ners and  the  existing  tribal  tastes.  The  most  gratifying  child 
would  be  the  best  looked  after,  and  the  most  gratifying  would 
be  the  best  specimen,  of  the  standard  then  and  there  raised  up. 

Even  so,  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  habits  more  or  less 
universal.-  And  this  imitation  and  this  persecution  in  long 
generations  have  vast  physical  effects.  The  mind  of  the  parent 
(as  we  speak)  passes  somehow  to  the  body  of  the  child.  The 
transmitted  "  something  "  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 

nations,  or,  if  you  like,  of  tribes.     I  fully  admit  that  no  imi- 


PHYSICS    AND    POLITICS  67 

tat  ion  of  predominant  manner,  or  prohibitions  of  detested 
manners,  will  of  themselves  account  for  the  broadest  contrasts 
of  human  nature.  Such  means  would  no  more  make  a  Negro 
out  of  a  Brahmin,  or  a  Red-man  out  of  an  Englishman,  than 
washing  would  change  the  spots  of  a  leopard  or  the  color  of 
an  Ethiopian.  Some  more  potent  causes  must  co-operate,  or 
we  should  not  have  these  enormous  diversities.  The  minor 
causes  I  deal  with  made  Greek  to  differ  from  Greek,  but  they 
did  not  make  the  Greek  race.  We  cannot  precisely  mark  the 
limit,  but  a  limit  there  clearly  is. 

If  we  look  at  the  earliest  monuments  of  the  human  race, 
we  find  these  race-characters  as  decided  as  the  race-characters 
now.  The  earliest  paintings  or  sculptures  we  anywhere  have 
give  us  the  present  contrasts  of  dissimilar  types  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  start  with  cardinal  diversities;  we  trace  only 
minor  modifications,  and  we  only  see  minor  modifications." 
And  it  is  very  hard  to  see  how  any  number  of  such  modifica- 
tions could  change  man  as  he  is  in  one  race-type  to  man  as  he 
is  in  some  other.  Of  this  there  are  but  two  explanations ;  one, 
that  these  great  types  were  originally  separate  creations,  as 
they  stand — that  the  Negro  was  made  so,  and  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 
case,  probably,  do  any  great  number  of  careful  inquirers  very 
firmly  believe  it.  They  may-accept  it'provisionally,  as  the  best 
hypothesis  at  present,  but  they  feel  about  it  as  they  cannot 
help  feeling  as  to  an  army  which  has  always  been  beaten; 
however  strong  it  seems,  they  think  it  will  be  beaten  again. 
What  the  other  explanation  is  exactly  I  cannot  pretend  to  say. 
Possibly  as  yet  the  data  for  a  confident  jopinion  are  not  before 
us.  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  change  of  region ;  that  consequently  early 
mortality  in  the  first  wanderers  was  beyond  conception  great ; 
that  only  those  (so  to  say)  haphazard  individuals  throve  who 
were  born  with  a  protected  nature — that  is,  a  nature  suited  to 


68  BAGEHOT 

the  climate  and  the  country,  fitted  to  use  its  advantages, 
shielded  from  its  natural  diseases.  According  to  Mr.  Wallace, 
the  Negro  is  the  remnant  of  the  one  variety  of  man  who  without 
more  adaptiveness  than  then  existed  could  live  in  interior 
Africa.  Immigrants  died  off  till  they  produced  him  or  some- 
thing like  him,  and  so  of  the  Esquimaux  or  the  American. 

Any  protective  habit  also  struck  out  in  such  a  time  would 
have  a  far  greater  effect  than  it  could  afterwards.  A  gregarious 
tribe,  whose  leader  was  in  some  imitable  respects  adapted  to 
the  struggle  for  life,  and  which  copied  its  leader,  would  have 
an  enormous  advantage  in  the  struggle  for  life.  It  would  be 
sure  to  win  and  live,  for  it  would  be  coherent  and  adapted, 
whereas,  in  comparison,  competing  tribes  would  be  incoherent 
and  unadapted.  And  I  suppose  that  in  early  times,  when 
those  bodies  did  not  already  contain  the  records  and  the  traces 
of  endless  generations,  any  new  habit  would  more  easily  fix 
its  mark  on  the  heritable  element,  and  would  be  transmitted 
more  easily  and  more  certainly.  In  such  an  age,  man  being 
softer  and  more  pliable,  deeper  race-marks  would  be  more 
easily  inscribed  and  would  be  more  likely  to  cpntinue  legible. 

But  I  have  no  pretence  to  speak  on  such  matters ;  this  paper, 
as  I  have  so  often  explained,  deals  with  nation-making  and  not 
with  race-making.  I  assume  a  world  of  marked  varieties  of 
man,  and  only  want  to  show  how  less  marked  contrasts  would 
probably  and  naturally  arise  in  each.  Given  large  homo- 
geneous populations,  some  Negro,  some  Mongolian,  some 
Aryan,  I  have  tried  to  prove  how  small  contrasting  groups 
would  certainly  spring  up  within  each — some  to  last  and  some 
to  perish.  These  are  the  eddies  in  each  race-stream  which 
vary  its  surface,  and  are  sure  to  last  till  some  new  force  changes 
the  current.  These  minor  varieties,  too,  would  be  infinitely 
compounded,  not  only  with  those  of  the  same  race,  but  with 
those  of  others.  Since  the  beginning  of  man,  stream  has  been 
a  thousand  times  poured  into  stream — quick  into  sluggish, 
dark  into  pale — and  eddies  and  waters  have  taken  new  shapes 
and  new  colors,  affected  by  what  went  before,  but  not  re- 
sembling it.  And  then  on  the  fresh  mass,  the  old  forces  of 
composition  and  elimination  again  begin  to  act,  and  create 
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  to  us,  and  thus,  as  it  seems  to  me,  were  its  varying  colors 
produced. 

If  it  be  thought  that  I  have  made  out  that  these  forces  of 
imitation  and  elimination  be  the  main  ones,  or  even  at  all 
powerful  ones,  in  the  formation  of  national  character,  it  will 
follow  that  the  effect  of  ordinary  agencies  upon  that  character 
will  be  more  easy  to  understand  than  it  often  seems  and  is  put 
down  in  books.  We  get  a  notion  that  a  change  of  government 
or  a  change  of  climate  acts  equally  on  the  mass  of  a  nation, 
and  so  are  we  puzzled — at  least,  I  have  been  puzzled — to  con- 
ceive how  it  acts.  But  such  changes  do  not  at  first  act  equally 
on  all  people  in  the  nation.  On  many,  for  a  very  long  time, 
they  do  not  act  at  all.  But  they  bring  out  new  qualities,  and 
advertise  the  effects  of  new  habits.  A  change  of  climate,  say 
from  a  depressing  to  an  invigorating  one,  so  acts.  Everybody 
feels  it  a  little,  but  the  most  active  feel  it  exceedingly.  They 
labor  and  prosper,  and  their  prosperity  invites  imitation.  Just 
so  with  the  contrary  change,  from  an  animating  to  a  relaxing 
place, — the  naturally  lazy  look  so  happy  as  they  do  nothing, 
that  the  naturally  active  are  corrupted.  The  effect  of  any  con- 
siderable change  on  a  nation  is  thus  an  intensifying  and  ac- 
cumulating effect.  With  its  maximum  power  it  acts  on  some 
prepared  and  congenial  individuals ;  in  them  it  is  seen  to  pro- 
duce attractive  results,  and  then  the  habits  creating  those  re- 
sults are  copied  far  and  wide.  And,  as  I  believe,  it  is  in  this 
simple  but  not  quite  obvious  way,  that  the  process  of  progress 
and  of  degradation  may  generally  be  seen  to  run. 


CHAPTER  IV 


-A 


NATION-MAKING 

LL  theories  as  to  the  primitive  man  must  be  very  uncer- 
tain. Granting  the  doctrine  of  evolution  to  be  true,  man 
must  be  held  to  have  a  common  ancestor  with  the  rest  of 
the  Primates.  But  then  we  do  not  know  what  their  common 
ancestor  was  like.  If  ever  we  are  to  have  a  distinct  conception  of 
him,  it  can  only  be  after  long  years  of  future  researches  and  the 
laborious  accumulation  of  materials,  scarcely  the  beginning  of 
which  now  exists.  But  science  has  already  done  something  for 
us.  It  cannot  yet  tell  us  our  first  ancestor,  but  it  can  tell  us  much 
of  an  ancestor  very  high  up  in  the  line  of  descent.  We  cannot  get 
the  least  idea  (even  upon  the  full  assumption  of  the  theory  of 
evolution)  of  the  first  man ;  but  we  can  get  a  very  tolerable  idea 
of  the  Paulo-pre-historic  man,  if  I  may  so  say — of  man  as  he  ex- 
isted some  short  time  (as  we  now  reckon  shortness),  some  ten 
thousand  years,  before  history  began,  Investigators  whose 
acuteness  and  diligence  can  hardly  be  surpassed — Sir  John  Lub- 
bock  and  Mr.  Tylor  are  the  chiefs  among  them — have  collected 
so  much  and  explained  so  much  that  they  have  left  a  fairly  vivid 
result. 

That  result  is,  or  seems  to  me  to  be,  if  I  may  sum  it  up  in  my 
own  words,  that  the  modern  pre-historic  men — those  of  whom 
we  hjrve  collected  so  many  remains,  and  to  whom  are  due  the 
ancient,  strange  customs  of  historical  nations  (the  fossil  customs, 
we  might  call  them,  for  very  often  they  are  stuck  by  themselves 
in  real  civilization,  and  have  no  more  part  in  it  than  the  fossils  in 
the  surrounding  strata) — pre-historic  men  in  this  sense  were 
"  savages  without  the  fixed  habits  of  savages;  "  that  is,  that,  like 
savages,  they  had  strong  passions  and  weak  reason;  that,  like 
savages,  they  preferred  short  spasms  of  greedy  pleasure  to  mild 
and  equable  enjoyment;  that,  like  savages,  they  could  not  post- 
pone the  present  to  the  future ;  that,  like  savages,  their  ingrained 

70 


I 


AND    POLITICS  *  71 


sense  of  morality  was,  to  say  the  best  of  it,  rudimentary  and  de- 
fective. But  that,  unlike  present  savages,  they  had  not  complex 
customs  and  singular  customs,  odd  and  seemingly  inexplicable 
rules  guiding  all  human  life.  And  the  reasons  for  tl^se  con- 
clusions as  to  a  race  too  ancient  to  leave  a  history,  but  not  too 
ancient  to  have  left  memorials,  are  briefly  these : — First,  that  we 
cannot  imagine  a  strong  reason  without  attainments ;  and,  plain- 
ly, pre-historic  men  had  not  attainments.  They  would  never 
have  lost  them  if  they  had.  It  is  utterly  incredible  that  whole 
races  of  men  in  the  most  distant  parts  of  the  world  (capable  of 
counting,  for  they  quickly  learn  to  count)  should  have  lost  the 
art  of  counting,  if  they  had  ever  possessed  it.  It  is  incredible 
that  whole  races  could  lose  the  elements  of  common  sense,  the 
elementary  knowledge  as  to  things  material  and  things  mental — 
the  Benjamin  Franklin  philosophy — if  they  had  ever  known  it. 
Without  some  data  the  reasoning  faculties  of  man  cannot  work) 
As  Lord  Bacon  said,  the  mind  of  man  must  "  work  upon  stuff." 
And  in  the  absence  of  the  common  knowledge  which  trains  us  i 
the  elements  of  reason  as  far  as  we  are  trained,  they  had 
"  stuff."  Even,  therefore,  if  their  passions  were  not  absolutely 
stronger  than  ours,  relatively  they  were  stronger,  for  their  r^i- 
son  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 
no  others  would  have  survived  them.  A  single  Australian  tribe 
(really  capable  of  such  a  habit,  and  really  practising  it)  would 
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 
theirs,  and  theirs  only.  We  cannot  imagine  innumerable  races 
to  have  lost,  if  they  had  once  had  it,  the  most  useful  of  all  habits 
of  mind — the  habit  which  would  most  insure  their  victory  in  the 
incessant  contests  which,  ever  since  they  began,  men  ha^  car- 
ried on  with  one  a*ffc*fier  and  with  nature,  the  haftt,  which  in 
historical  times  has  above  any  other  received  fo^its  possession 
the  victory  in  those  contests.  Thirdly,  we  may  be  suraf  that  the 
morality  of  pre-historic  man  was  as  imperfect  and  as  rwlimentary 


72  BAGEHOT^' 

.•&*•  ' 

as  his  reason.  The  same  sort  of  arguments  apply  to  a  self-re- 
straining morality  of  a  high  type  as  apply  to  a  settled  postpone- 
ment of  the  present  to  the  future  upon  grounds  recommended 
by  argiffcent.  Both  are  so  involved  in  difficult  intellectual  ideas 
(and  a  high  morality  the  most  of  the  two)  that  it  is  all  but  im- 
possible to  conceive  their  existence  among  people  who  could  not 
count  more  than  five — who  had  only  the  grossest  and  simplest 
forms  of  language — who  had  no  kind  of  writing  or  reading — 
who,  as  it  has  been  roughly  said,  had  "  no  pots  and  no  pans" — 
who  could  indeed  make  a  fire,  but  who  could  hardly  do  any- 
thing else — who  could  hardly  command  nature  any  further.  Ex- 
actly also  like  a  shrewd  far-sightedness,  a  sound  morality  on  ele- 
mentary transactions  is  far  too  useful  a  gift  to  the  human  race 
ever  to  have  been  thoroughly  lost  when  they  had  once  attained 
it.  But  innumerable  savages  have  lost  all  but  completely  many 
of  the  moral  rules  most  conducive  to  tribal  welfare.  There  are 
many  savages  who  can  hardly  be  said  to  care  for  human  life — 
Jkvho  have  scarcely  the  family  feelings — who  are  eager  to  kill  all 
old  people  (their  own  parents  included)  as  soon  as  they  get  old 
and  become  a  burden — who  have  scarcely  the  sense  of  truth — 
•0io,  probably  from  a  constant  tradition  of  terror,  wish  to  con- 
ceal everything,  and  would  (as  observers  say)  "  rather  lie  than 
not " — whose  ideas  of  marriage  are  so  vague  and  slight  that  the 
idea,  "  communal  marriage  "  (in  which  all  the  women  of  the 
tribe  are  common  to  all  the  men,  and  them  only),  has  been  in- 
vented to  denote  it.  Now  if  we  consider  how  cohesive  and  how 
fortifying  to  human  societies  are  the  love  of  truth,  and  the  love 
of  parents,  and  a  stable  marriage  tie,  how  sure  such  feelings 
would  be  to  make  a  tribe  which  possessed  them  wholly  and  soon 
victorious  over  tribes  which  were  destitute  of  them,  we  shall  be- 
gin to  comprehend  how  unlikely  it  is  that  vast  masses  of  tribes 
throughout  the  world  should  have  lost  all  these  moral  helps  to 
conquest,  not  to  speak  of  others.  If  any  reasoning  is  safe  as  to 
pre-historic  man,  the  reason  which  imputes  to  him  a  deficient 
sense  of  morals  is  safe,  for  all  the  arguments  suggested  by  all  our 
late  researches  converge  upon  it,  and  concur  in  teaching  it. 

Nor  on  this  point  does  the  case  rest  wholly  on  recent  investi- 
gations. Ma%  years  ago  Mr.  Jowett  said  that  the  classical  re- 
ligions bore  relics  of  the  "  ages  before  morality."  And  this  is 
only  one  of  several  cases  in  which  that  great  thinker  has  proved 


PHYSICS    AND    POLITICS  73 

by  a  chance  expression  that  he  had  exhausted  impending  con- 
troversies years  before  they  arrived,  and  had  perceived  more  or 
less  the  conclusion  at  which  the  disputants  would  arrive  long 
before  the  public  issue  was  joined.  There  is  no  other  explana- 
tion of  such  religions  than  this.  We  have  but  to  open  Mr.  Glad- 
stone's "  Homer  "  in  order  to  see  with  how  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  (when  once  explained)  that  they  are  antiquities,  like 
an  English  court-suit,  or  a  stone-sacrificial  knife,  for  no  one 
would  use  such  things  as  implements  of  ceremony,  except  those 
who  had  inherited  them  from  a  past  age,  when  there  was  noth- 
ing better. 

Nor  is  there  anything  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  amount  of  con- 
science. Indeed,  only  a  most  shallow  disputant  who  did  not 
understand  even  the  plainest  facts  of  human  nature  could  ever 
have  maintained  it;  if  men  differ  in  anything  they  differ  in  the 
fineness  and  the  delicacy  of  their  moral  intuitions,  however  we 
may  suppose  those  feelings  to  have  been  acquired.  We  need 
not  go  as  far  as  savages  to  learn  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  those  feelings  which,  taken  together,  we  call 
the  sense  of  morality.  All  this  an  intuitionist  who  knows  his 
case  will  now  admit,  but  he  will  add  that,  though  the  amount  of 
the  moral  sense  may  and  does  differ  in  different  persons,  yet  that 
as  far  as  it  goes  it  is  alike  in  all.  He  likens  it  to  the  intuition  of 
number,  in  which  some  savages  are  so  defective  that  they  can- 
not really  and  easily  count  more  than  three.  Yet  as  far  as  three 
his  intuitions  are  the  same  as  those  of  civilized  people.  Un- 
questionably if  there  are  intuitions  at  all,  the  primary  truths  of 
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 


74 


BAGEHOT 


truths  of  arithmetic,  intuitive  or  not,  certainly  cannot  be  ac- 
quired independently  of  experience,  nor  can  those  of  morals  be  so 
either.  Unquestionably  they  were  aroused  in  life  and  by  ex- 
perience, though  after  that  comes  the  difficult  and  ancient  con- 
troversy whether  anything  peculiar  to  them  and  not  to  be  found 
in  the  other  facts  of  life  is  superadded  to  them  independently  of 
experience  out  of  the  vigor  of  the  mind  itself.  No  intuitionist, 
therefore,  fears  to  speak  of  the  conscience  of  his  pre-historic 
ancestor  as  imperfect,  rudimentary,  or  hardly  to  be  discerned, 
for  he  has  to  admit  much  the  same  so  as  to  square  his  theory  to 
plain  modern  facts,  and  that  theory  in  the  modern  form  may 
consistently  be  held  along  with  them.  Of  course  if  an  intuitionist 
can  accept  this  conclusion  as  to  pre-historic  men,  so  assuredly 
may  Mr.  Spencer,  who  traces  all  morality  back  to  our  inherited 
experience  of  jitiljty,  or  Mr.  Darwin,  who  ascribes  it  to  an  in- 
herited sympathy,  or  Mr.  Mill,  who  with  characteristic  courage 
undertakes  to  build  up  the  whole  moral  nature  of  man  with  no 
help  whatever  either  from  ethical  intuition  or  from  physiological 
instinct.  Indeed  of  the  everlasting  questions,  such  as  the  reality 
of  free  will,  or  the  nature  of  conscience,  it  is,  as  I  have  before 
explained,  altogether  inconsistent  with  the  design  of  these  papers 
to  speak.  They  have  been  discussed  ever  since  the  history  of 
discussion  begins;  human  opinion  is  still  divided,  and  most  peo- 
ple still  feel  many  difficulties  in  every  suggested  theory,  and 
doubt  if  they  have  heard  the  last  word  of  argument  or  the  whole 
solution  of  the  problem  in  any  of  them.  In  the  interest  of  sound 
knowledge  it  is  essential  to  narrow  to  the  utmost  the  debatable 
territory;  to  see  how  many  ascertained  facts  there  are  which  are 
consistent  with  all  theories,  how  many  may,  as  foreign  lawyers 
would  phrase  it,  be  equally  held  in  condominium  by  them. 

But  though  in  these  great  characteristics  there  is  reason  to  im- 
agine that  the  pre-historic  man — at  least  the  sort  of  pre-historic 
man  I  am  treating  of,  the  man  some  few  thousand  years  before 
history  began,  and  not  at  all,  at  least  not  necessarily,  the  primi- 
tive man — was  identical  with  a  modern  savage,  in  another  re- 
spect there  is  equal  or  greater  reason  to  suppose  that  he  was  most 
unlike  a  modern  savage.  A  modern  savage  is  anything  but  the 
simple  being  which  philosophers  of  the  eighteenth  century  im- 
agined him  to  be;  on  the  contrary,  his  life  is  twisted  into  a  thou- 
sand curious  habits;  his  reason  is  darkened  by  a  thousand 


PHYSICS    AND    POLITICS  75 

strange  prejudices;  his  feelings  are  frightened  by  a  thousand 
cruel  superstitions.  The  whole  mind  of  a  modern  savage  is, 
so  to  say,  tattooed  over  with  monstrous  images;  there  is  not  a 
smooth  place  anywhere  about  it.  But  there  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^jnjiis  nature,  it  may 
be  said,  pre-historic  man  was  the  same  as  a  modern  savage;  it  is 
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  which,  if  it  be  not 
proved  conclusively,  has  great  probability  and  great  scientific 
analogy  in  its  favor)  he  would  necessarily  at  first  possess  animal 
instincts;  that  these  would  only  gradually  be  lost;  that  in  the 
meantime  they  would  serve  as  a  protection  and  an  aid,  and  that 
pre-historic  men,  therefore,  would  have  important  helps  and 
feelings  which  existing  savages  have  not.  And  probably  of  the 
first  men,  the  first  beings  worthy  to  be  so  called,  this  was  true : 
they  had,  or  may  have  had,  certain  remnants  of  instincts  which 
aided  them  in  the  struggle  of  existence,  and  as  reason  gradually 
came  these  instincts  may  have  waned  away.  Some  instincts 
certainly  do  wane  when  the  intellect  is  applied  steadily  to  their 
subject-matter.  The  curious  "  counting  boys,"  the  arithmetical 
prodigies,  who  can  work  by  a  strange  innate  faculty  the  most 
wonderful  sums,  lose  that  faculty,  always  partially,  sometimes 
completely,  if  they  are  taught  to  reckon  by  rule  like  the  rest  of 
mankind.  In  like  manner  I  have  heard  it  said  that  a  man  could  * 
soon  reason  himself  out  of  the  instinct  of  decency  if  he  would  only  • 
take  pains  and  work  hard  enough.  And  perhaps  other  primitive  J 
instincts  may  have  in  like  manner  passed  away.  But  this  does 
not  affect  my  argument.  I  am  only  saying  that  these  instincts, 
if  they  ever  existed,  did  pass  away — that  there  was  a  period, 
probably  an  immense  period  as  we  reckon  time  in  human  his- 
tory, when  pre-historic  men  lived  much  as  savages  live  now, 
without  any  important  aids  and  helps. 

The  proofs  of  this  are  to  be  found  in  the  great  works  of  Sir 
John  Lubbock  and  Mr.  Tylor,  of  which  I  just  now  spoke.  I  can 
only  bring  out  two  of  them  here.  First,  it  is  plain  that  the  first 
pre-historic  men  had  the  flint  tools  which  the  lowest  savages  use, 
and  we  can  trace  a  regular  improvement  in  the  finish  and  in  the 


76  BAGEHOT 

efficiency  of  their  simple  instruments  corresponding  to  that 
which  we  see  at  this  day  in  the  upward  transition  from  the  lowest 
savages  to  the  highest.  Now  it  is  not  conceivable  that  a  race  of 
beings  with  valuable  instincts  supporting  their  existence  and 
supplying  their  wants  would  need  these  simple  tools.  They  are 
exactly  those  needed  by  very  poor  people  who  have  no  instincts, 
and  those  were  used  by  such,  for  savages  are  the  poorest  of  the 
poor.  It  would  be  very  strange  if  these  same  utensils,  no  more  no 
less,  were  used  by  beings  whose  discerning  instincts  made  them 
in  comparison  altogether  rich.  Such  a  being  would  know  how  to 
manage  without  such  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  is  that  in  that  age 
descent  was  reckoned  through  the  female  only,  just  as  it  is 
\  among  the  lowest  savages.    "  Maternity,"  it  has  been  said,  "  is 
matter  of  fact,  paternity  is  a  matter  of  opinion;  "  and  this  not 


/  very  refined  expression  exactly  conveys  the  connection  of  the 
lower  human  societies.  In  all  slave-owning  communities  —  in 
Rome  formerly,  and  in  Virginia  yesterday  —  such  was  the  ac- 
cepted rule  of  law;  the  child  kept  the  condition  of  the  mother, 
whatever  that  condition  was;  nobody  inquired  as  to  the  father; 
the  law,  once  for  all,  assumed  that  he  could  not  be  ascertained. 
Of  course  no  remains  exist  which  prove  this  or  anything  else 
about  the  morality  of  pre-historic  man;  and  morality  can  only 
be  described  by  remains  amounting  to  a  history.  But  one  of  the 
axioms  of  pre-historic  investigation  binds  us  to  accept  this  as  the 
morality  of  the  pre-historic  races  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 
quality.  If  one-armed  people  existed  almost  everywhere  in  every 
continent  ;  if  people  were  found  in  every  intermediate  stage,  some 
with  the  mere  germ  of  the  second  arm,  some  with  the  second 
arm,  half-grown,  some  with  it  nearly  complete;  we  should  then 
argue  —  "  the  first  race  cannot  have  had  two  arms,  because  men 
have  always  been  fighting,  and  as  two  arms  are  a  great  advantage 
in  fighting,  one-armed  and  half-armed  people  would  immediately 
have  been  killed  off  the  earth;  they  never  could  have  attained 
any  numbers.  A  diffused  deficiency  in  a  warlike  power  is  the 


PHYSICS    AND    POLITICS  77 

best  attainable  evidence  that  the  pre-historic  men  did  not  possess 
that  power."  If  this  axiom  be  received  it  is  palpably  applicable 
to  the  marriage-bond  of  primitive  races.  A  cohesive  "  family  " 
is  the  best  germ  for  a  campaigning  nation.  In  a  Roman  family 
the  boys,  from  the  time  of  their  birth,  were  bred  to  a  domestic 
despotism,  which  well  prepared  them  for  a  subjection  in  after 
life  to  a  military  discipline,  a  military  drill,  and  a  military  despot- 
ism. They  were  ready  to  obey  their  generals  because  they  were 
compelled  to  obey  their  fathers;  they  conquered  the  world  in 
manhood  because  as  children  they  were  bred  in  homes  where  the 
tradition  of  passionate  valorvwas  steadied  by  the  habit  of  im- 
placable order.  And  nothing  of  this  is  possible  in  loosely-bound 
family  groups  (if  they  can  be  called  families  at  all)  where  the 
father  is  more  or  less  uncertain,  where  descent  is  not  traced 
through  him,  where,  that  is,  property  does  not  come  from  him, 
where  such  property  as  he  has  passes  to  his  sure  relations — to 
his  sister's  children.  An  ill-knit  nation  which  does  not  recognize 
paternity  as  a  legal  relation,  would  be  conquered  like  a  mob  by 
any  other  nation  which  had  a  vestige  or  a  beginning  of  tbe 
patria  potestas.  If,  therefore,  all  the  first  men  had  the  strict 
morality  of  families,  they  would  no  more  have  permitted  the 
rise  of  semi-moral  nations  anywhere  in  the  world  than  the  Ro- 
mans would  have  permittel  them  to  arise  in  Italy.  They  would 
have  conquered,  killed,  and  plundered  them  before  they  became 
nations ;  and  yet  semi-moral  nations  exist  all  over  the  world. 

It  will  be  said  that  this  argument  proves  too  much.  For  it 
proves  that  not  only  the  somewhat-before-history  men,  but  the 
absolutely  first  men,  could  not  have  had  close  family  instincts, 
and  yet  if  they  were  like  mosJLtlioiiglLnot  all .of the  animals  near- 
est to  man  they  had  such  instincts.  There  is  a  great  story  of 
some  African  chief  who  expressed  his  disgust  at  adhering  to  one 
wife,  by  saying  it  was  "  like  the  monkeys."  The  semi-brutal 
ancestors  of  man,  if  they  existed,  had  very  likely  an  instinct  of 
constancy  which  the  African  chief,  and  others  like  him,  had  lost. 
How,  then,  if  it  was  so  beneficial,  could  they  ever  lose  it?  The 
answer  is  plain :  they  could  lose  it  if  they  had  it  as  an  irrational 
propensity  and  habit,  and  not  as  a  moral  and  rational  feeling. 
When  reason  came,  it  would  weaken  that  habit  like  all  other 
irrational  habits.  And  reason  is  a  force  of  such  infinite  vigor — 
a  victory-making  agent  of  such  incomparable  efficiency — that  its 


• 


78  BAGEHOT 

continually  diminishing  valuable  instincts  will  not  matter  if  it 
grows  itself  steadily  all  the  while.  The  strongest  competitor 
wins  in  both  the  cases  we  are  imagining;  in  the  first,  a  race  with 
intelligent  reason,  but  without  blind  instinct,  beats  a  race  with 
that  instinct  but  without  that  reason;  in  the  second,  a  race  with 
reason  and  high  moral  feeling  beats  a  race  with  reason  but  with- 
out high  moral  feeling.  And  the  two  are  palpably  consistent. 

There  is  every  reason,  therefore,  to  suppose  pre-historic  man 
to  be  deficient  in  much  of  sexual  morality,  as  we  regard  that 
morality.  As  to  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.  Both  Mr.  M'Clennan  and  Sir  John 
Lubbock  are  too  accomplished  reasoners  and  too  careful  investi- 
gators to  wish  conclusions  so  complex  and  refined  as  theirs  to  be 
accepted  all  in  a  mass,  besides  that  on  some  critical  points  the 
two  differ.  But  the  main  issue  is  not  dependent  on  nice  argu- 
ments. Upon  broad  grounds  we  may  believe  that  in  pre-historic 
times  men  fought  both  to  gain  and  to  keep  their  wives;  that  the 
strongest  man  took  the  best  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  bear 
the  marks  of  many  such  chastisements ;  that  in  the  principal  de- 
partment of  human  conduct  (which  is  the  most  tangible  and 
easily  traced,  and  therefore  the  most  obtainable  specimen  of  the 
rest)  the  minds  of  pre-historic  men  were  not  so  much  immoral 
as  unmoral:  they  did  not  violate  a  rule  of  conscience,  but  they 
were  somehow  not  sufficiently  developed  for  them  to  feel  on  this 
point  any  conscience,  or  for  it  to  prescribe  to  them  any  rule. 

The  same  argument  applies  to  religion.  There  are,  indeed, 
many  points  of  the  greatest  obscurity,  both  in  the  present  savage 
religions  and  in  the  scanty  vestiges  of  pre-historic  religion.  But 
one  point  is  clear.  All  savage  religions  are  full  of  superstitions 
founded  on  luck.  Savages  believe  that  casual  omens  are  a  sign 
of  coming  events;  that  some  trees  are  lucky,  that  some  animals 
are  lucky,  that  some  places  are  lucky,  that  some  indifferent  actions 
— indifferent  apparently  and  indifferent  really — are  lucky,  and  so 
of  others  in  each  class,  that  they  are  unlucky.  Nor  can  a  savage 
well  distinguish  between  a  sign  of  "  luck  "  or  ill-luck,  as  we 
should  say,  and  a  deity  which  causes  the  good  or  the  ill;  the  in- 


PHYSICS    AND    POLITICS  79 

dicating  precedent  and  the  causing  being  are  to  the  savage  mind 
much  the  same;  a  steadiness  of  head  far  beyond  savages  is  re- 
quired consistently  to  distinguish  them.  And  it  is  extremely  nat- 
ural that  they  should  believe  so.  They  are  playing  a  game — the 
game  of  life — with  no  knowledge  of  its  rules.  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  must  try  it  upon  bare  chance.  The  most  useful  mod- 
ern remedies  were  often  discovered  in  this  bare,  empirical  way. 
What  could  be  more  improbable — at  least,  for  what  could  a  pre- 
historic man  have  less  given  a  good  reason — than  that  some 
mineral  springs  should  stop  rheumatic  pains,  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  doubt  it 
was  mere  casual  luck  at  first  that  tried  these  springs  and  found 
them  answer.  Somebody  by  accident  tried  them  and  by  that 
accident  was  instantly  cured.  The  chance  which  happily  directed 
men  in  this  one  case,  misdirected  them  in  a  thousand  cases. 
Some  expedition  had  answered  when  the  resolution  to  undertake 
it  was  resolved  on  under  an  ancient  tree,  and  accordingly  that 
tree  became  lucky  and  sacred.  Another  expedition  failed  when 
a  magpie  crossed  its  path,  and  a  magpie  was  said  to  be  unlucky. 
A  serpent  crossed  the  path  of  another  expedition,  and  it  had  a 
marvellous  victory,  and  accordingly- -the  serpent  became  a  sign 
of  great  luck  (and  what  a  savage  cannot  distinguish  from  it — a 
potent  deity  which  makes  luck).  Ancient  medicine  is  equally  un- 
reasonable :  as  late  down  as  the  Middle  Ages  it  was  full  of  super- 
stitions founded  on  mere  luck.  The  collection  of  prescriptions 
published  under  the  direction  of  the  Master  of  the  Rolls  abounds 
in  such  fancies  as  we  should  call  them.  According  to  one  of 
them,  unless  I  forget,  some  disease — a  fever,  I  think — is  sup- 
posed to  be  cured  by  placing  the  patient  between  two  halves  of  a 
hare  and  a  pigeon  recently  killed.*  Nothing  can  be  plainer  than 

*  Readers  of  Scott's  life  will  remember  that  an  admirer  of  his  in  hum- 
ble life  proposed  to  cure  him  of  inflammation  of  the  bowels  by  making 
him  sleep  a  whole  night  on  twelve  smooth  stones,  painfully  collected  by 
the  admirer  from  twelve  brooks,  which  was,  it  appeared,  a  recipe  of 
sovereign  traditional  power.  Scott  gravely  told  the  proposer  that  he 
had  mistaken  the  charm,  and  that  the  stones  were  of  no  virtue  unless 
wrapped  up  in  the  petticoat  of  a  widow  who  never  wished  to  marry 
again,  and  as  no  such  widow  seems  to  have  been  forthcoming,  he 
escaped  the  remedy. 


8o  BAGEHOT 

that  there  is  no  ground  for  this  kind  of  treatment,  and  that  the 
idea  of  it  arose  out  of  a  chance  hit,  which  came  right  and  suc- 
ceeded. There  was  nothing  so  absurd  or  so  contrary  to  common 
sense  as  we  are  apt  to  imagine  about  it.  The  lying  between  two 
halves  of  a  hare  or  a  pigeon  was  a  priori,  and  to  the  inexperienced 
mind,  quite  as  likely  to  cure  disease  as  the  drinking  certain 
draughts  of  nasty  mineral  water.  Both,  somehow,  were  tried; 
both  answered — that  is,  both  were  at  the  first  time,  or  at  some 
memorable  time,  followed  by  a  remarkable  recovery;  and  the 
only  difference  is,  that  the  curative  power  of  the  mineral  is  per- 
sistent, and  happens  constantly;  whereas,  on  an  average  of  trials, 
the  proximity  of  a  hare  or  pigeon  is  found  to  have  no  effect,  and 
cures  take  place  as  often  in  cases  where  it  is  not  tried  as  in  cases 
where  it  is.  The  nature  of  minds  which  are  deeply  engaged  in 
watching  events  of  which  they  do  not  know  the  reason,  is  to 
single  out  some  fabulous  accompaniment  or  some  wonderful 
series  of  good  luck  or  bad  luck,  and  to  dread  ever  after  that  ac- 
companiment if  it  brings  evil,  and  to  love  it  and  long  for  it  if  it 
brings  good.  All  savages  are  in  this  position,  and  the  fascinating 
effect  of  striking  accompaniments  (in  some  single  case)  of  singu- 
lar good  fortune  and  singular  calamity,  is  one  great  source  of 
savage  religions. 

Gamblers  to  this  day  are,  with  respect  to  the  chance  part  of 
their  game,  in  much  the  same  plight  as  savages  with  respect  to 
the  main  events  of  their  whole  lives.  And  we  well  know  how 
superstitious  they  all  are.  To  this  day  very  sensible  whist-players 
have  a  certain  belief — not,  of  course,  a  fixed  conviction,  but  still 
a  certain  impression — that  there  is  "  luck  under  a  black  deuce," 
and  will  half  mutter  some  not  very  gentle  maledictions  if  they 
turn  up  as  a  trump  the  four  of  clubs,  because  it  brings  ill-luck, 
and  is  "  the  devil's  bed-post."  Of  course  grown-up  gamblers 
have  too  much  general  knowledge,  too  much  organized  com- 
mon sense,  to  prolong  or  cherish  such  ideas;  they  are  ashamed 
of  entertaining  them,  though,  nevertheless,  they  cannot  entirely 
drive  them  out  of  their  minds.  But  child-gamblers — a  number 
of  little  boys  set  to  play  loo — are  just  in  the  position  of  savages, 
for  their  fancy  is  still  impressible,  and  they  have  not  as  yet  been 
thoroughly  subjected  to  the  confuting  experience  of  the  real 
world;  and  child-gamblers  have  idolatries — at  least  I  know  that 
years  ago  a  set  of  boy  loo-players,  of  whom  I  was  one,  had  con- 


PHYSICS    AND    POLITICS  81 

siderable  faith  in  a  certain  "  pretty  fish,"  which  was  larger  and 
more  nicely  made  than  the  other  fish  we  had.  We  gave  the  best 
evidence  of  our  belief  in  its  power  to  "  bring  luck;  "  we  fought 
for  it  (if  our  elders  were  out  of  the  way) ;  we  offered  to  buy  it 
with  many  other  fish  from  the  envied  holder,  and  I  am  sure  I 
have  often  cried  bitterly  if  the  chance  of  the  game  took  it  away 
from  me.  Persons  who  stand  up  for  the  dignity  of  philosophy, 
if  any  such  there  still  are,  will  say  that  I  ought  not  to  mention 
this,  because  it  seems  trivial;  but  the  more  modest  spirit  of  mod- 
ern thought  plainly  teaches,  if  it  teaches  anything,  the  cardinal 
value  of  occasional  little  facts.  I  do  not  hesitate  to  say  that  many 
learned  and  elaborate  explanations  of  the  totem — the  "  clan  " 
deity — the  beast  or  bird  who  in  some  supernatural  way,  attends 
to  the  clan  and  watches  over  it — do  not  seem  to  me  to  be  nearly 
as  akin  to  the  reality  as  it  works  and  lives  among  the  lower  races, 
as  the  "  pretty  fish  "  of  my  early  boyhood.  And  very  naturally 
so,  for  a  grave  philosopher  is  separated  from  primitive  thought 
by  the  whole  length  of  human  culture;  but  an  impressible  child 
is  as  near  to,  and  its  thoughts  are  as  much  like,  that  thought  as 
anything  can  now  be. 

The  worst  of  these  superstitions  is  that  they  are  easy  to  make 
and  hard  to  destroy.  A  single  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  elder  boy  said  that 
"  the  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 
I  suspect  the  Nestor  of  a  savage  tribe — the  aged  repository  of 
guiding  experience — would  have  an  equal  power  of  creating 
superstitions.  But  if  once  created  they  are  most  difficult  to  eradi- 
cate. If  any  one  said  that  the  amulet  was  of  certain  efficacy — 
that  it  always  acted  whenever  it  was  applied — it  would  of  course 
be  very  easy  to  disprove ;  but  no  one  ever  said  that  the  "  pretty 
fish  "  always  brought  luck;  it  was  only  said  that  it  did  so  on  the 
whole,  and  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  this  thoroughly;  and  by 
the  time  people  can  make  tables  they  are  already  above  such  be- 
liefs, and  do  not  need  to  have  them  disproved.  Nor  in  many 
cases  where  omens  or  amulets  are  used  would  such  tables  be 
easy  to  make,  for  the  data  could  not  be  found;  and  a  rash  at- 
6 


V 


82  BAGEHOT 

tempt  to  subdue  the  superstition  by  a  striking  instance  may 
easily  end  in  confirming  it.  Francis  Newman,  in  the  remarkable 
narrative  of  his  experience  as  a  missionary  in  Asia,  gives  a  curi- 
ous example  of  this.  As  he  was  setting  out  on  a  distant  and 
somewhat  hazardous  expedition,  his  native  servants  tied  round 
the  neck  of  the  mule  a  small  bag  supposed  to  be  of  preventive 
and  mystic  virtue.  As  the  place  was  crowded  and  a  whole  towns- 
people looking  on,  Mr.  Newman  thought  that  he  would  take  an 
opportunity  of  disproving  the  superstition.  So  he  made  a  long 
speech  of  explanation  in  his  best  Arabic,  and  cut  off  the  bag,  to 
the  horror  of  all  about  him.  But  as  ill-fortune  would  have  it,  the 
mule  had  not  got  thirty  yards  up  the  street  before  she  put  her 
foot  into  a  hole  and  broke  her  leg;  upon  which  all  the  natives 
were  confirmed  in  their  former  faith  in  the  power  of  the  bag, 
and  said,  "  You  see  now  what  happens  to  unbelievers." 

Now  the  present  point  as  to  these  superstitions  is  their  mili- 
tary inexpediency.  A  nation  which  was  moved  by  these  super- 
stitions as  to  luck  would  be  at  the  mercy  of  a  nation,  in  other 
respects  equal,  which  was  not  subject  to  them.  In  historical 
times,  as  we  know,  the  panic  terror  at  eclipses  has  been  the  ruin 
of  the  armies  which  have  felt  it;  or  has  made  them  delay  to  do 
something  necessary,  or  rush  to  do  something  destructive.  The 
necessity  of  consulting  the  auspices,  while  it  was  sincerely  prac- 
tised and  before  it  became  a  trick  for  disguising  foresight,  was 
in  classical  history  very  dangerous.  And  much  worse  is  it  with 
savages,  whose  life  is  one  of  omens,  who  must  always  consult 
their  sorcerers,  who  may  be  turned  this  way  or  that  by  some 
chance  accident,  who,  if  they  were  intellectually  able  to  frame  a 
consistent  military  policy  —  and  some  savages  in  war  see  farther 
than  in  anything  else  —  are  yet  liable  to  be  put  out,  distracted, 
confused,  and  turned  aside  in  the  carrying  out  of  it,  because 
some  event,  really  innocuous  but  to  their  minds  foreboding,  ar- 
rests  and  frightens  them.  A  religion  full  of  omens  is  a  military 
misfortune,  and  will  bring  a  nation  to  destruction  if  set  to  fight 
with  a  nation  at  all  equal  otherwise,  who  had  a  religion  without 
omens.  Clearly  then,  if  all  early  men  unanimously,  or  even  much 
the  greater  number  of  early  men,  had  a  religion  without  omens, 
no  religion,  or  scarcely  a  religion,  anywhere  in  the  world  could 
have  come  into  existence  with  omens;  the  immense  majority 
possessing  the  superior  military  advantage,  the  small  minority 


PHYSICS    AND    POLITICS  83 

destitute  of  it  would  have  been  crushed  out  and  destroyed.  But, 
on  the  contrary,  all  over  the  world  religions  with  omens  once 
existed,  in  most  they  still  exist ;  all  savages  have  them,  and  deep 
in  the  most  ancient  civilizations  we  find  the  plainest  traces  of 
them.  Unquestionably  therefore  the  pre-historic  religion  was 
like  that  of  savages — viz.,  in  this  that  it  largely  consisted  in  the 
watching  of  omens  and  in  the  worship  of  lucky  beasts  and  things, 
which  are  a  sort  of  embodied  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  likely 
to  ruin  a  race,  no  race  would  ever  have  acquired  it.  But  it  is 
only  likely  to  ruin  a  race  contending  with  another  race  otherwise 
equal.  The  fancied  discovery  of  these  omens — not  an  extrava- 
gant thing  in  an  early  age,  as  I  have  tried  to  show,  not  a  whit 
then  to  be  distinguished  as  improbable  from  the  discovery  of 
healing  herbs  or  springs  which  pre-historic  men  also  did  discover 
— the  discovery  of  omens  was  an  act  of  reason  as  far  as  it  went 
And  if  in  reason  the  omen-finding  race  were  superior  to  the 
races  in  conflict  with  them,  the  omen-finding  race  would  win, 
and  we  may  conjecture  that  omen-finding  races  were  thus  su- 
perior since  they  won  and  prevailed  in  every  latitude  and  in  every 
zone. 

In  all  particulars  therefore  we  would  keep  to  our  formula,  and 
say  that  pre-historic  man  was  substantially  a  savage  like  present 
savages,  in  morals,  intellectual  attainments,  and  in  religion ;  but 
that  he  differed  in  this  from  our  present  savages,  that  he  had  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  on  themselves,  but  primitive 
man  was  younger  and  had  no  such  time. 

I  have  elaborated  the  evidence  for  this  conclusion  at  what 
may  seem  needless  and  tedious  length,  but  I  have  done  so  on  ac- 
count of  its  importance.  If  we  accept  it,  and  if  we  are  sure  of  it, 
it  will  help  us  to  many  most  important  conclusions.  Some  of 
these  I  have  dwelt  upon  in  previous  papers,  but  I  will  set  them 
down  again. 

First,  it  will  in  part  explain  to  us  what  the  world  was  about,  so 
to  speak,  before  history.  It  was  making,  so  to  say,  the  intellectual 
consistence — the  connected  and  coherent  habits,  the  preference 


84  BAGEHOT 

of  equable  to  violent  enjoyment,  the  abiding  capacity  to  prefer, 
if  required,  the  future  to  the  present,  the  mental  pre-requisites 
without  which  civilization  could  not  begin  to  exist,  and  without 
which  it  would  soon  cease  to  exist  even  had  it  begun.  The 
primitive  man,  like  the  present  savage,  had  not  these  pre-req- 
uisites, but,  unlike  the  present  savage,  he  was  capable  of  ac- 
quiring them  and  of  being  trained  in  them,  for  his  nature  was 
still  soft  and  still  impressible,  and  possibly,  strange  as  it  may 
seem  to  say,  his  outward  circumstances  were  more  favorable  to 
an  attainment  of  civilization  than  those  of  our  present  savages. 
At  any  rate,  the  pre-historic  times  were  spent  in  making  men 
capable  of  writing  a  history,  and  having  something  to  put  in  it 
when  it  is  written,  and  we  can  see  how  it  was  done. 

Two  preliminary  processes  indeed  there  are  which  seem  in- 
scrutable. There  was  some  strange  preliminary  process  by 
which  the  main  races  of  men  were  formed;  they  began  to  exist 
very  early,  and  except  by  intermixture  no  new  ones  have  been 
formed  since.  It  was  a  process  singularly  active  in  early  ages, 
and  singularly  quiescent  in  later  ages.  Such  differences  as  exist 
between  the  Aryan,  the  Turanian,  the  negro,  the  red  man,  and 
the  Australian  are  differences  greater  altogether  than  any  causes 
now  active  are  capable  of  creating  in  present  men,  at  least  in  any 
way  explicable  by  us.  And  there  is,  therefore,  a  strong  pre- 
sumption that  (as  great  authorities  now  hold)  these  differences 
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  second  condition  precedent  of  civilization  seems,  at 
least  to  me,  to  have  been  equally  inherited,  if  the  doctrine  of  evo- 
lution be  true,  from  some  previous  state  or  condition.  I  at  least 
find  it  difficult  to  conceive  of  men,  at  all  like  the  present  men, 
unless  existing  in  something  like  families,  that  is,  in  groups 
avowedly  connected,  at  least  on  the  mother's  side,  and  probably 
always  with  a  vestige  of  connection,  more  or  less,  on  the  father's 
side,  and  unless  these  groups  were  like  many  animals,  gregari- 
ous, under  a  leader  more  or  less  fixed.  It  is  almost  beyond  im- 
agination how  man,  as  we  know  man,  could  by  any  sort  of 
process  have  gained  this  step  in  civilization.  And  it  is  a  great 
advantage,  to  say  the  least  of  it,  in  the  evolution  theory  that  it 
enables  us  to  remit  this  difficulty  to  a  pre-existing  period  in  nat- 
ure, where  other  instincts  and  powers  than  our  present  ones  may 


PHYSICS    AND    POLITICS  85 

perhaps  have  come  into  play,  and  where  our  imagination  can 
hardly  travel.  At  any  rate,  for  the  present  I  may  assume  these 
two  steps  in  human  progress  made,  and  these  two  conditions 
realized. 

The  rest  of  the  way,  if  we  grant  these  two  conditions,  is  plainer. 
The  first  thing  is  thejexgction  of  what  we  may  call  a  custom-mak- 
ing; power,  that  is,  of  an  authority  whicTi  can  enforce  a  fixed  rule 
of  life,  which,  by  means  of  that  fixed  rule,  can  in  some  degree 
create  a  calculable  future,  which  can  make  it  rational  to  postpone 
present  violent  but  momentary  pleasure  for  future  continual 
pleasure,  because  it  insures,  what  else  is  not  sure,  that  if  the 
sacrifice  of  what  is  in  hand  be  made,  enjoyment  of  the  contingent 
expected  recompense  will  be  received.  Of  course  I  am  not  say- 
ing that  we  shall  find  in  early  society  any  authority  of  which 
these  shall  be  the  motives.  We  must  have  travelled  ages  (un- 
less all  our  evidence  be  wrong)  from  the  first  men  before  there 
was  a  comprehension  of  such  motives.  I  only  mean  that  the  first 
thing  in  early  society  was  an  authority  of  whose  action  this  shall 
be  the  result,  little  as  it  knew  what  it  was  doing,  little  as  it  wouki 
have  cared  if  it  had  known. 

The  conscious  end  of  early  societies  was  not  at  all,  or  scarcely 
at  all,  the  protection  of  life  and  property,  as  it  was  assumed  to  be 
by  the  eighteenth-century  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  of  jurisprudence  is  not  the 
separate  property  of  the  individual,  but  the  common  property  of 
the  family  group;  what  we  should  call  private  property  hardly 
then  existed ;  or  if  it  did,  was  so  small  as  to  be  of  no  importance : 
it  was  like  the  things  little  children  are  now  allowed  to  call  their 
own,  which  they  feel  it  very  hard  to  have  taken  from  them,  but 
which  they  have  no  real  right  to  hold  and  keep.  Such  is  our 
earliest  property-law,  and  our  earliest  life-law  is  that  the  lives  of 
all  members  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  this  may  teach  us 
that  something  else  was  lacked  in  early  societies  besides  what  in 
our  societies  we  now  think  of. 

I  do  not  think  I  put  this  too  high  when  I  say  that  a  most  im- 
portant if  not  the  most  important  object  of  early  legislation  was 


86  BAGEHOT 

the  enforcement  of  lucky  rites.  I  do  not  like  to  say  religious 
rites,  because  that  would  involve  me  in  a  great  controversy  as  to 
the  power,  or  even  the  existence,  of  early  religions.  But  there 
is  no  savage  tribe  without  a  notion  of  luck ;  and  perhaps  there  is 
hardly  any  which  has  not  a  conception  of  luck  for  the  tribe  as  a 
tribe,  of  which  each  member  has  not  some  such  a  belief  that  his 
own  action  or  the  action  of  any  other  member  of  it — that  he  or 
the  others  doing  anything  which  was  unlucky  or  would  bring 
a  "  curse  " — might  cause  evil  not  only  to  himself,  but  to  all  the 
tribe  as  well.  I  have  said  so  much  about  "  luck  "  and  about  its 
naturalness  before,  that  I  ought  to  say  nothing  again.  But  I 
must  add  that  the  contagiousness  of  the  idea  of  "  luck  "  is  re- 
markable. It  does  not  at  all,  like  the  notion  of  desert,  cleave  to 
the  doer.  There  are  people  to  this  day  who  would  not  permit  in 
their  house  people  to  sit  down  thirteen  to  dinner.  They  do  not 
expect  any  evil  to  themselves  particularly  for  permitting  it  or 
sharing  in  it,  but  they  cannot  get  out  of  their  heads  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  culture.  The 
faint  belief  in  the  corporate  liability  of  these  thirteen  is  the  feeble 
relic  and  last  dying  representative  of  that  great  principle  of  cor- 
porate liability  to  good  and  ill  fortune  which  has  filled  such  an 
immense  place  in  the  world. 

The  traces  of  it  are  endless.  You  can  hardly  take  up  a  book 
of  travels  in  rude  regions  without  finding,  "  I  wanted  to  do  so  and 
so.  But  I  was  not  permitted,  for  the  natives  feared  it  might 
bring  ill  luck  on  the  '  party/  or  perhaps  the  tribe."  Mr.  Galton, 
for  instance,  could  hardly  feed  his  people.  The  Damaras,  he 
says,  have  numberless  superstitions  about  meat  which  are  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  "  eschewing  sheep  spotted  in  a  particular  way, 
which  those  "  who  come  from  the  rain  "  have  no  objection  to. 
"  As,"  he  says,  "  there  are  five  or  six  eandas  or  descents,  and  I 
had  men  from  most  of  them  with  me,  I  could  hardly  kill  a  sheep 
that  everybody  would  eat,"  and  he  could  not  keep  his  meat,  for 
it  had  to  be  given  away  because  it  was  commanded  by  one  super- 
stition, nor  buy  milk,  the  staple  food  of  those  parts,  because  it 
was  prohibited  by  another.  And  so  on  without  end.  Doing  any- 
thing unlucky  is  in  their  idea  what  putting  on  something  that 


PHYSICS    AND    POLITICS  87 

attracts  the  electric  fluid  is  in  fact.  You  cannot  be  sure  that  harm 
will  not  be  ,done,  not  only  to  the  person  in  fault,  but  to  those 
about  him  too.  As  in  the  Scriptural  phrase,  doing  what  is  of 
evil  omen  is  "  like  one  that  letteth  out  water."  He  cannot  tell 
what  are  the  consequences  of  his  act,  who  will  share  them,  or 
how  they  can  be  prevented. 

In  the  earliest  historical  nations  I  need  not  say  that  the  cor- 
porate liabilities  of  states  is  to  a  modern  student  their  most  curi- 
ous feature.  The  belief  is  indeed  raised  far  above  the  notion  of 
mere  "  luck,"  because  there  is  a  distinct  belief  in  gods  or  a  god 
whom  the  act  offends.  But  the  indiscriminate  character  of  the 
punishment  still  survives;  not  only  the  mutilator  of  the  Hermae, 
but  all  the  Athenians — not  only  the  violator  of  the  rites  of  the 
Bona  dea,  but  all  the  Romans — are  liable  to  the  curse  engen- 
dered ;  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  about  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  tfre 
beings  who  rule  those  powers,  is  properly,  upon  grounds  of  rea- 
son, as  much  greater  than  any  other  dread  as  the  might  of  the 
powers  of  nature  is  superior  to  that  of  any  other  powers.  If  a 
tribe  or  a  nation  have,  by  a  contagious  fancy,  come  to  believe 
that  the  doing  of  any  one  thing  by  any  number  will  be  "  un- 
lucky," that  is,  will  bring  an  intense  and  vast  liability  on  them  all, 
then  that  tribe  and  that  nation  will  prevent  the  doing  of  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  Jonah. 

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  has  a  great  tendency 
to  make  others  do  it  also.  He  transmits  his  formed  customs  to 
his  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  sooner  or  later  a  semi-supernatural  sanction.  The 
whole  community  is  possessed  with  the  idea  that  if  the  primal 
usages  of  the  tribe  be  broken,  harm  unspeakable  will  happen  in 
ways  you  cannot  think  of,  and  from  sources  you  cannot  imagine. 
As  people  now-a-days  believe  that  "  murder  will  out,"  and  that 
great  crime  will  bring  even  an  earthly  punishment,  so  in  early 
times  people  believed  that  for  any  breach  of  sacred  custom  cer- 
tain retribution  would  happen.  To  this  day  many  semi-civilized 
races  have  great  difficulty  in  regarding  any  arrangement  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  Government  in  India  has  in  many 
cases  made  new  and  great  works  of  irrigation,  of  which  no  an- 
cient Indian  Government  ever  thought;  and  it  has  generally  left 
it  to  the  native  village  community  to  say  what  share  each  man 
of  the  village  should  have  in  the  water;  and  the  village  authori- 
ties have  accordingly  laid  down  a  series  of  most  minute  rules 
about  it.  But  the  peculiarity  is  that  in  no  case  do  these  rules 
"  purport  to  emanate  from  the  personal  authority  of  their  author 
or  authors,  which  rests  on  grounds  of  reason,  not  on  grounds 
of  innocence  and  sanctity;  nor  do  they  assurne  to  be  dic- 
tated by  a  sense  of  equity;  there  is  always,  I  am  assured,  a 
sort  of  fiction  under  which  some  customs  as  to  the  distribution 
of  water  are  supposed  to  have  emanated  from  a  remote  antiquity, 
although,  in  fact,  no  such  artificial  supply  had  ever  been  so  much 
as  thought  of."  So  difficult  does  this  ancient  race — like,  proba- 
bly, in  this  respect  so  much  of  the  ancient  world — find  it  to  im- 
agine a  rule  which  is  obligatory,  but  not  traditional. 

The  ready  formation  of  custom-making  groups  in  early  soci- 
ety must  have  been  greatly  helped  by  the  easy  divisions  of  that 
society.  Much  of  the  world — all  Europe,  for  example — was  then 
covered  by  the  primeval  forest;  men  had  only  conquered,  and  as 
yet  could  only  conquer,  a  few  plots  and  corners  from  it.  These 
narrow  spaces  were  soon  exhausted,  and  if  numbers  grew  some 
of  the  new  people  must  move.  Accordingly  migrations  were 
constant,  and  were  necessary.  And  these  migrations  were  not 
like  those  of  modern  times.  There  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  organized  means  of  communication — no  practical  com- 


PHYSICS    AND    POLITICS  89 

munication,  we  may  say,  between  parted  members  of  the  same 
group;  those  who  once  went  out  from  the  parent  society  went 
out  forever;  they  left  no  abiding  remembrance,  and  they  kept 
no  abiding  regard.  Even  the  language  of  the  parent  tribe  and 
of  the  descended  tribe  would  differ  in  a  generation  or  two.  There 
being  no  written  literature  and  no  spoken  intercourse,  the  speech 
of  both  would  vary  (the  speech  of  such  communities  is  always 
varying),  and  would  vary  in  different  directions.  One  set  of 
causes,  events,  and  associations  would  act  on  one,  and  another 
set  on  another;  sectional  differences  would  soon  arise,  and,  for 
speaking  purposes,  what  philologists  call  a  dialectical  difference 
often  amounts  to  real  and  total  difference:  no  connected  inter- 
change of  thought  is  possible  any  longer.  Separate  groups  soon 
"  set  up  house;  "  the  early  societies  begin  a  new  set  of  customs, 
acquire  and  keep  a  distinct  and  special  "  luck." 

If  it  were  not  for  this  facility  of  new  formations,  one  good  or 
bad  custom  would  long  since  have  "  corrupted  "  the  world ;  but 
even  this  would  not  have  been  enough  but  for  those  continual 
wars,  of  which  I  have  spoken  at  such  length  in  the  essay  on 
"  The  Use  of  Conflict,"  that  I  need  say  nothing  now.  These  are  ,  x^ 
by  their  incessant  fractures  of  old  images,  and  by  their  constant 
infusion  of  new  elements,  the  real  regenerators  of  society.  And 
whatever  be  the  truth  or  falsehood  of  the  general  dislike  to  mixed 
and  half-bred  races,  no  such  suspicion  was  probably  applicable 
to  the  early  mixtures  of  primitive  society.  Supposing,  as  is 
likely,  each  great  aboriginal  race  to  have  had  its  own  quarter  of 
the  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  would  be  between  men  of 
different  tribes  but  of  the  same  stock,  and  this  no  one  would 
object  to,  but  everyone  would  praise. 

In  general,  too,  the  conquerors  would  be  better  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  are  to  produce  a  good  and  quick  effect  in  civilizing 
those  they  have  conquered.  The  experience  of  the  English  in 
India  shows — if  it  shows  anything — that  a  highly  civilized  race 
may  fail  in  producing  a  rapidly  excellent  effect  on  a  less  civilized 


1 


9o  BAGEHOT 

race,  because  it  is  too  good  and  too  different.  The  two  are  not 
en  rapport  together;  the  merits  of  the  one  are  not  the  merits 
prized  by  the  other;  the  manner-language  of  the  one  is  not  the 
manner-language  of  the  other.  The  higher  being  is  not  and 
cannot  be  a  model  for  the  lower;  he  could  not  mould  himself 
on  it  if  he  would,  and  would  not  if  he  could.  Consequently,  the 
two  races  have  long  lived  together,  "  near  and  yet  far  off,"  daily 
seeing  one  another  and  daily  interchanging  superficial  thoughts, 
but  in  the  depths  of  their  mind  separated  by  a  whole  era  of  civili- 
zation, and  so  affecting  one  another  only  a  little  in  comparison 
with  what  might  have  been  hoped.  But  in  early  societies  there 
were  no  such  great  differences,  and  the  rather  superior  conqueror 
must  have  easily  improved  the  rather  inferior  conquered. 

It  is  in  the  interior  of  these  customary  groups  that  national 
characters  are  formed.  As  I  wrote  a  whole  essay  on  the  man- 
ner of  this  before,  I  cannot  speak  of  it  now.  By  proscribing  non- 
conformist members  for  generations,  and  cherishing  and  reward- 
ing conformist  members,  nonconformists  become  fewer  and 
fewer,  and  conformists  more  and  more.  Most  men  mostly  imi- 
tate what  they  see,  and  catch  the  tone  of  what  they  hear,  and  so 
a  settled  type — a  persistent  character — is  formed.  Nor  is  the 
process  wholly  mental.  I  cannot  agree,  though  the  greatest  au- 
thorities 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  we  call  them 
nations?  In  societies  tyrannically  customary,  uncongenial  minds 
become  first  cowed,  then  melancholy,  then  out  of  health,  and  at 
last  die.  A  Shelley  in  New  England  could  hardly  have  lived, 
and  a  race  of  Shelleys  would  have  been  impossible.  Mr.  Galton 
wishes  that  breeds  of  men  should  be  created  by  matching  men 
with  marked  characteristics  with  womea..of  like  characteristics. 
But  surely  this  is  what  nature  has  been  doing  time  out  of  mind, 
and  most  in  the  rudest  nations -atui-hardest  times.  Nature  dis- 
heartened in  each  generation  the  ill-fitted  members  of  each  cus- 
tomary group,  so  deprived  them  of  their  full  vigor,  or,  if  they 
were  weakly,  killed  them.  The  Spartan  character  was  formed  be- 
cause none  but  people  with  a  Spartan  make  of  mind  could  endure 
a  Spartan  existence.  The  early  Roman  character  was  so  formed 
too.  Perhaps  all  very  marked  national  characters  can  be  traced 


PHYSICS    AND    POLITICS  91 

back  to  a  time  of  rigid  and  pervading  discipline.  In  modern 
times,  when  society  is  more  tolerant,  new  national  characters  are 
neither  so  strong,  so  featurely,  nor  so  uniform. 

In  this  manner  society  was  occupied  in  pre-historic  times, — 
it  is  consistent  with  and  explicable  by  our  general  principle  as  to 
savages,  that  society  should  for  ages  have  been  so  occupied, 
strange  as  that  conclusion  is,  and  incredible  as  it  would  be,  if  we 
had  not  been  taught  by  experience  to  believe  strange  things. 

Secondly,  this  principle  and  this  conception  of  pre-historic 
times  ^S^^toj^aejaa^^g^^  the.  origin , of  the  oldest. and 
strangest  of  social  anomalies — an  anomaly  which  is  among  the 
first  things  history  tells  us — the  existence  of  caste  nations-.  Noth- 
ing is  at  first  sight  stranger  than  the  aspect  of  those  communi- 
ties where  several  nations  seem  to  be  bound  up  together — 
where  each  is  governed  by  its  own  rule  of  law,  where  no  one 
pajs  any  deferjeuGe-ttrthe  rule  of  law  of  any  of  the  others.  But 
if  our  principles  be  true,  these  are  just  the  nations  most  likely  to 
last,  which  would  have  a  special  advantage  in  early  times,  and 
would  probably  not  only  maintain  themselves,  but  conquer  and 
kill  out  others  also.  The  characteristic  necessity  of  early  society 
as  we  have  seen,  is  strict  usage  and  binding  coercive  custom.  But 
the  obvious  result  and  inevitable  evil  of  that  is  monotony  in 
society;  no  one  can  be  much  different  from  his  fellows,  or  can 
cultivate  his  difference. 

Such  societies  are  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 
advantageous.  Little  popular  and  little  deserving  to  be  popular 
now-a-days  as  are  priestly  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  possi- 
ble when  it  was  protected  by  a  notion  that  whoever  hurt  them 
would  certainly  be  punished  by  heaven.  In  this  class  apart  dis- 
coveries were  slowly  made  and  some  beginning  of  mental  dis- 
cipline was  slowly  matured.  But  such  a  community  is  neces- 
sarily unwarlike,  and  the  superstition  which  protects  priests 
from  home  murder  will  not  aid  them  in  conflict  with  the  for- 


92  BAGEHOT 

eigner.  Few  nations  mind  killing  their  enemies'  priests,  and 
many  priestly  civilizations  have  perished  without  record  before 
they  well  began.  But  such  a  civilization  will  not  perish  if  a 
warrior  caste  is  tacked  on  to  it  and  is  bound  to  defend  it.  On  the 
contrary,  such  a  civilization  will  be  singularly  likely  to  live.  The 
head  of  the  sage  will  help  the  arm  of  the  soldier. 

That  a  nation  divided  into  castes  must  be  a  most  difficult  thing 
to  found  is  plain.  Probably  it  could  only  begin  in  a  country  sev- 
eral times  conquered,  and  where  the  boundaries  of  each  caste 
rudely  coincided  with  the  boundaries  of  certain  sets  of  victors 
and  vanquished.  But,  as  we  now  see,  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,  than  a 
nation  of  a  single  lineage  and  one  monotonous  rule.  I  say  "  at 
first,"  because  I  apprehend  that  in  this  case,  as  in  so  many 
others  in  the  puzzling  history  of  progress,  the  very  institutions 
which  most  aid  at  step  number  one  are  precisely  those  which 
most  impede  at  step  number  two.  The  whole  of  a  caste  nation 
is  more  various  than  the  whole  of  a  non-caste  nation,  but  each 
caste  itself  is  more  monotonous  than  anything  is,  or  can  be, 
in  a  non-caste  nation.  Gradually  a  habit  of  action  and  type  of 
mind  forces  itself  on  each  caste,  and  it  is  little  likely  to  be  rid 
of  it,  for  all  who  enter  it  are  taught  in  one  way  and  trained 
to  the  same  employment.  Several  non-caste  nations  have  still 
continued  to  progress.  But  all  caste^  nations  have  stopped 
early,  though  some  have  lasted  long.  Each  color  in  the  singu- 
lar composite  of  these  tesselated  societies  has  an  indelible  and 
invariable  shade. 

Thirdly,  we  see  why  so  few  nations  have  made  rapid  advance, 
and  how  many  have  become  stationary.  It  is  in  the  process  of 
becoming  a  nation,  and  in  order  to  become  such,  that  they  sub- 
jected themselves  to  the  influence  which  has  made  them  station- 
ary. They  could  not  become  a  real  nation  without  binding  them- 
selves by  a  fixed  law  and  usage,  and  it  is  the  fixity  of  that  law 
and  usage  which  has  kept  them  as  they  were  ever  since.  I  wrote 
a  whole  essay  on  this  before^soJL  need  say  nothing  now ;  and  I 
only  name  it  because  it  is  one  of  the  most  important  conse- 
quences of  this  view  of  society,  if  not  indeed  the  most  important. 

Again,  we  can  thus  explain  one  of  the  most  curious  facts  of 
the  present  world.  "  Manner,"  says  a  shrewd  observer,  who  has 
seen  much  of  existing  life,  "  manner  gets  regularly  worse  as  you 


PHYSICS    AND    POLITICS  93 

go  from  the  East  to  the  West;  it  is  best  in  Asia,  not  so  good  in 
Europe,  and  altogether  bad  in  the  western  states  of  America." 
And  the  reason  is  this — an  imposing  manner  is  a  dignified  usage, 
which  tends  to  preserve  itself  and  also  all  other  existing  usages 
along  with  itself.  It  tends  to  induce  the  obedience  of  mankind. 
One  of  the  cleverest  novelists  of  the  present  day  has  a  curious  dis- 
sertation to  settle  why  on  the  hunting-field,  and  in  all  collections 
of  men,  some  men  "  snub  and  some  men  get  snubbed;  "  and  why 
society  recognizes  in  each  case  the  ascendancy  or  the  subordina- 
tion as  if  it  was  right.  "  It  is  not  at  all,"  Mr.  Trollope  fully  ex- 
plains, "  rare  ability  which  gains  the  supremacy ;  very  often  the 
ill-treated  man  is  quite  as  clever  as  the  man  who  ill-treats  him. 
Nor  does  it  absolutely  depend  on  wealth;  for,  though  great 
wealth  is  almost  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/'  the  novelist  adds,  "  let  some  boys 
have  dominion,  and  make  other  boys  slaves."  And  he  decides, 
no  doubt  truly,  that  in  each  case  "  something  in  the  manner  or 
gait "  of  the  supreme  boy  or  man  has  much  to  do  with  it.  On 
this  account  in  early  society  a  dignified  manner  is  of  essential 
importance ;  it  is,  then,  not  only  an  auxiliary  mode  of  acquiring 
respect,  but  a  principal  mode.  The  competing  institutions  which 
have  now  much  superseded  it,  had  not  then  begun.  Ancient  in- 
stitutions or  venerated  laws  did  not  then  exist;  and  the  habitual 
ascendancy  of  grave  manner  was  a  primary  force  in  winning  and 
calming  mankind.  To  this  day  it  is  rare  to  find  a  savage  chief 
without  it;  and  almost  always  they  greatly  excel  in  it.  Only 
last  year  a  red  Indian  chief  came  from  the  prairies  to  see  Presi- 
dent Grant,  and  everybody  declared  that  he  had  the  best  man- 
ners in  Washington.  The  secretaries  and  heads  of  departments 
seemed  vulgar  to  him ;  though,  of  course,  intrinsically  they  were 
infinitely  above  him,  for  he  was  only  "  a  plundering  rascal."  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,  for  nowhere  is  it  less 
thought  of,  or  of  less  use,  than  in  a  rough  English  colony;  the 
essentials  of  civilization  there  depend  on  far  different  influences. 

And  manner,  being  so  useful  and  so  important,  usages  and  *^ 
customs  grow  up  to  develop  it.    Asiatic  society  is  full  of  such 
things,  if  it  should  not  rather  be  said  to  be  composed  of  them. 


94  BAGEHOT 

"  From  the  spirit  and  decision  of  a  public  envoy  upon  cere- 
monies and  forms,"  says  Sir  John  Malcolm,  "  the  Persians  very 
generally  form  their  opinion  of  the  character  of  the  country  he 
represents.  This  fact  I  had  read  in  books,  and  all  I  saw  con- 
vinced me  of  its  truth.  Fortunately  the  Elchee  had  resided  at 
some  of  the  principal  courts  of  India,  whose  usages  are  very 
similar.  He  was,  therefore,  deeply  versed  in  that  important 
science  denominated  '  Kaida-e-nishest-oo-berkhast '  (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,  of  the  con- 
sequence of  every  step  he  took  on  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- 
quently plagued,  from  the  moment  we  landed  at  Ambusheher, 
till  we  reached  Shiraz,  with  daily,  almost  hourly,  drilling,  that 
we  might  be  perfect  in  our  demeanor  at  all  places,  and  under  all 
circumstances.  We  were  carefully  instructed  where  to  ride  in  a 
procession,  where  to  stand  or  sit  within  doors,  when  to  rise  from 
our  seats,  how  far  to  advance  to  meet  a  visitor,  and  to  what  part 
of  the  tent  or  house  we  were  to  follow  him  when  he  departed,  if 
he  was  of  sufficient  rank  to  make  us  stir  a  step. 

"  The  regulations  of  our  risings  and  standings,  and  movings 
and  reseatings,  were,  however,  of  comparatively  less  importance 
than  the  time  and  manner  of  smoking  our  Kellians  and  taking 
our  coffee.  It  is  quite  astonishing  how  much  depends  upon 
coffee  and  tobacco  in  Persia.  Men  are  gratified  or  offended,  ac- 
cording to  the  mode  in  which  these  favorite  refreshments  are 
offered.  You  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  most  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  till 
commanded;  if  equal,  you  exchange  pipes,  and  present  him  with 
coffee,  taking  the  next  cup  yourself;  if  a  little  below  you,  and 
you  wish  to  pay  him  attention,  you  leave  him  to  smoke  his  own 
pipe,  but  the  servant  gives  him,  according  to  your  condescending 
nod,  the  first  cup  of  coffee ;  if  much  inferior,  you  keep  your  dis- 
tance and  maintain  your  rank,  by  taking  the  first  cup  of  coffee 


PHYSICS    AND    POLITICS  95 

yourself,  and  then  directing  the  servant,  by  a  wave  of  the  hand, 
to  help  the  guest. 

"  When  a  visitor  arrives,  the  coffee  and  pipe  are  called  for  to 
welcome  him;  a  second  call  for  these  articles  announces  that  he 
may  depart;  but  this  part  of  the  ceremony  varies  according  to 
the  relative  rank  or  intimacy  of  the  parties. 

"  These  matters  may  appear  light  to  those  with  whom  observ- 
ances of  this  character  are  habits,  not  rules;  but  in  this  country 
they  are  of  primary  consideration,  a  man's  importance  with  him- 
self and  with  others  depending  on  them." 

In  ancient  customary  societies  the  influence  of  manner,  which 
is  a  primary  influence,  has  been  settled  into  rules,  so  that  it  may 
aid  established  usages  and  not  thwart  them — that  it  may,  above 
all,  augment  the  habit  of  going  by  custom,  and  not  break  and 
weaken  it.  Every  aid,  as  we  have  seen,  was  wanted  to  impose  the 
yoke  of  custom  upon  such  societies;  and  impressing  the  power 
of  manner  to  serve  them  was  one  of  the  greatest  aids. 

And  lastly,  we  now  understand  why  order  and  civilization  are  ; 
so  unstable  even  in  progressive  communities.  We  see  frequently 
in  states  what  physiologists  call  "  Atavism  " — the  return,  in  part, 
to  the  unstable  nature  of  their  barbarous  ancestors.  Such  scenes 
of  cruelty  and  horror  as  happened  in  the  great  French  Revolu- 
tion, and  as  happen,  more  or  less,  in  every  great  riot,  have 
always  been  said  to  bring  out  a  secret  and  suppressed  side  of  hu- 
man nature ;  and  we  now  see  that  they  were  the  outbreak  of  in- 
herited passions  long  repressed  by  fixed  custom,  but  starting  into 
life  as  soon  as  that  repression  was  catastrophically  removed,  and 
when  sudden  choice  was  given.  The  irritability  of  mankind,  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  pre-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  carried  everywhere  as  the  passions  of  the 
moment  and  the  ideas  generated  at  the  hour  may  determine. 
But,  thoroughly  to  deal  with  such  phenomena  as  these,  we  must  ^ 
examine  the  mode  in  which  national  characters  can  be  emanci- 
pated from  the  rule  of  custom,  and  can  be  prepared  for  the  use 
of  choice. 


CHAPTER  V 

THE  AGE  OF  DISCUSSION 
Parti 

THE  greatest  living  contrast  is  between  the  old  Eastern 
and  customary  civilizations  and  the  new  Western  and 
changeable  civilizations.  A  year  or  two  ago  an  in- 
quiry was  made  of  our  most  intelligent  officers  in  the  East, 
not  as  to  whether  the  English  Government  were  really  doing 
good  in  the  East,  but  as  to  whether  the  natives  of  India  them- 
selves thought  we  were  doing  good ;  to  which,  in  a  majority 
of  cases,  the  officers  who  were  the  best  authority,  answered 
thus :  "  No  doubt  you  are  giving  the  Indians  many  great  bene- 
fits: you  give  them  continued  peace,  free  trade,  the  right  to 
live  as  they  like,  subject  to  the  laws  ;  in  these  points  and  others 
they  are  far  better  off  than  they  ever  were ;  but  still  they  cannot 
make  you  out.  What  puzzles  them  is  your  constant  disposi- 
tion to  change,  or  as  you  call  it,  improvement.  Their  own  life 
in  every  detail  being  regulated  by  ancient  usage,  they  cannot 
comprehend  a  policy  which  is  always  bringing  something  new ; 
they  do  not  a  bit  believe  that  the  desire  to  make  them  com- 
fortable 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  to  '  take  away  their  religion ; '  in 
a  word,  that  the  end  and  object  of  all  these  continual  changes  is 
to  make  Indians  not  what  they  are  and  what  they  like  to  be, 
but  something  new  and  different  from  what  they  are,  and  what 
they  would  not  like  to  be."  In  the  East,  in  a  word,  we  are  at- 
tempting to  put  ne^v  wine  into  old  bottles — to  pour  what  we 
can  of  a  civilization^wKose"spirit  is  progress  into  the  form  of 
a  civilization  whose  spirit  is  fixity,  and  whether  we  shall  suc- 
ceed or  not  is  perhaps  the  most  interesting  question  in  an  age 
abounding  almost  beyond  example  in  questions  of  political 

interest. 

96 


PHYSICS    AND    POLITICS  97 

Historical  inquiries  show  that  the  feeling  of  the  Hindoos  is 
the  old  feeling,  and  that  the  feeling  of  the  Englishman  is  a 
modern  feeling.  "  Old  law  rests,"  as  Sir  Henry  Maine  puts  it, 
"  not  on  contract  but  on  status."  The  life  of  ancient  civiliza- 
tion, so  far  as  legal  records  go,  runs  back  to  a  time  when  every 
important  particular  of  life  was  settled  by  a  usage  which  was 
social,  political,  and  religious,  as  we  should  now  say,  all  in 
one — which  those  who  obeyed  it  could  not  have  been  able  to 
analyze,  for  those  distinctions  had  no  place  in  their  mind  and 
language,  but  which  they  felt  to  be  a  usage  of  imperishable 
import,  and  above  all  things  to  be  kept  unchanged.  In  former 
papers  I  have  shown,  or  at  least  tried  to  show,  why  these  cus- 
tomary civilizations  were  the  only  ones  which  suited  an  early 
society;  why,  so  to  say,  they  alone  could  have  been  first;  in 
what  manner  they  had  in  their  very  structure  a  decisive  ad- 
vantage over  all  competitors.  But  now  comes  the  further 
question:  HJixity  is  an  invariable  ingredient  in  early  civiliza- 
tions^ how  then  flid  any  ^VtlBfttfcj1  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  learn  what 
it  is  which  has  caused  progress  in  these  few  cases,  or  the  ab- 
sence of  what  it  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  of  choice  was  first  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  we  should  say,  matters  of  principle.  It 
was  in  the  small  republics  of  Greece  and  Italy  that  the  chain  of  „. 
custom  was  first  broken.  "  Liberty  said,  Let  there  be  light, 
and,  like  a  sunrise  on  the  sea,  Athens  arose,"  says  Shelley,  and 
his  historical  philosophy  is  in  this  case  far  more  correct  than 
is  usual  with  him.  A  free  state — a  state  with  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  is  a  discussion  among  those  persons.  Of  these  the  Greek 
republics  were  the  first  in  history,  if  not  in  time,  and  Athens  . 
was  the  greatest  of  those  republics. 

After  the  event  it  is  easy  to  see  why  the  teaching  of  history 
7 


98  BAGEHOT 

should  be  this  and  nothing  else.  It  is  easy  to  see  why  thejrom- 
mon  discussion  of  common  actions  or  common  interests 
should  become  the  root  of  change  and  progress.  In  early 
society,  originality  inTife  was  forbidden  and  repressed  by  the 
fixed  rule  of  life.  It  may  not  have  been  quite  so  much  so 
in  ancient  Greece  as  in  some  other  parts  of  the  world.  But 
it  was  very  much  so  even  there.  As  a  recent  writer  has  well 
said,  "  Law  then  presented  itself  to  men's  minds  as  something 
venerable  and  unchangeable,  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  fire."  An  ordinary  man  who 
wished  to  strike  out  a  new  path,  to  begin  a  new  and  important 
practice  by  himself,  would  have  been  peremptorily  required 
to  abandon  his  novelties  on  pain  of  death;  he  was  deviating, 
he  would  be  told,  from  the  ordinances  imposed  by  the  gods  on 
his  nation,  and  he  must  not  do  so  to  please  himself.  On  the 
contrary,  others  were  deeply  interested  in  his  actions.  If  he 
disobeyed,  the  gods  might  inflict  grievous  harm  on  all  the  peo- 
ple as  well  as  him.  Each  partner  in  the  most  ancient  kind  of 
partnerships  was  supposed  to  have  the  power  of  attracting  the 
wrath  of  the  divinities  on  the  entire  firm,  upon  the  other  part- 
ners quite  as  much  as  upon  himself.  The  quaking  bystanders 
in  a  superstitious  age  would  soon  have  slain  an  isolated  bold 
man  in  the  beginning  of  his  innovations.  What  Macaulay 
so  relied  on  as  the  incessant  source  of  progress — the  desire 
of  man  to  better  his  condition — was  not  then  permitted  to 
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  first  and  most  natural  subject  upon  which  human  thought 
concerns  itself  is  religion ;  the  first  wish  of  the  half-emanci- 
pated thinker  is  to  use  his  reason  on  the  great  problems  of 
human  destiny — to  find  out  whence  he  came  and  whither  he 
goes,  to  form  for  himself  the  most  reasonable  idea  of  God  which 
he  can  form.  But,  as  Mr.  Grote  happily  said — "  This  is  usually 
what  ancient  times  would  not  let  a  man  do.  His  gens  or  his 
<t>paTpia  required  him  to  believe  as  they  believed."  Toleration 
is  of  all  ideas  the  most  modern,  because  the  notion  that  the  bad 
religion  of  A  cannot  impair,  here  or  hereafter,  the  welfare  of 
B,  is,  strange  to  say,  a  modern  idea.  And  the  help  of  "  science,*' 


j 


PHYSICS    AND    POLITICS 


99 


at  that  stage  of  thought,  is  still  more  nugatory.  Physical  sci- 
ence, as  we  conceive  it — that  is,  the  systematic  investigation 
of  external  nature  in  detail — did  not  then  exist.  A  few  iso- 
lated observations  on  surface  things — a  half-correct  calendar, 
secrets  mainly  of  priestly  invention,  and  in  priestly  custody — • 
were  all  that  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  modern  idea, 
and  is  peculiar  to  a  few  European  countries  even  yet.  In  the 
most  intellectual  city  of  the  ancient  world,  in  its  most  intel- 
lectual age,  Socrates,  its  most  intellectual  inhabitant,  discour- 
aged the  study  of  physics  because  they  engendered  uncertainty, 
and  did  not  augment  human  happiness.  The  kind  of  knowl-  \ 
edge  which  is  most  connected  with  human  progress  now  was 
that  least  connected  with  it  then. 

But  a  government  by  discussion,(if  it  can  be  borne,  at  once 
breaks  down  the  yoke  of  fixed  custom.  The  idea  of  the  two  is 
inconsistent.  As  far  as  it  goes,  the  mere  putting  up  of  a  sub- 
ject to  discussion,  with  the  object  of  being  guided  by  that  dis- 
cussion, is  a  clear  admission  that  that  subject  is  in  no  degree 
settled  by  established  rule,  and  that  men  are  free  to  choose 
in  it.  It  is  an  admission  too  that  there  is  no  sacred  authority 
— no  one  transcendent  and  divinely  appointed  man  whom  in 
that  matter  the  community  is  bound  to  obey.  And  if  a  single 
subject  or  group  of  subjects  be  once  admitted  to  discussion, 
ere  long  the  habit  of  discussion  comes  to  be  established,  the 
sacred  charm  of  use  and  wont  to  be  dissolved.y/'  Democracy," 
it  has  been  said  in  modern  times,  "  is  like  the  grave ;  it  takes, 
but  it  does  not  give."  The  same  is  true  of  "  discussion."  Once 
effectually  submit  a  subject  to  that  ordeal,  and  you  can  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. 

The  only  subjects  which  can  be  first  submitted,  or  which  till - 
a  very  late  age  of  civilization  can  be  submitted  to  discussion 
in  the  community,  are  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, 
to  discuss  these  questions  with  freedom,  and  to  decide  them 


100 


BAGEHOT 


with  discretion,  to  argue  much  on  politics  and  not  to  argue 
ruinously,  an  enormous  advance  in  other  kinds  of  civilization 
may  confidently  be  predicted  for  it.  And  the  reason  is  a  plain 
deduction  from  the  principles  which  we  have  found  to  guide 
early  civilization.  The  first  pre-historic  men  were  passionate 
savages,  with  the  greatest  difficulty  coerced  into  order  and 
compressed  into  a  state.  For  ages  were  spent  in  beginning  that 
order  and  founding  that  state ;  the  only  sufficient  and  effectual 
agent  in  so  doing  was  consecrated  custom ;  but  then  that  cus- 
tom gathered  over  everything,  arrested  all  onward  progress, 
and  stayed  the  originality  of  mankind.  If,  therefore,  a  nation 
is  able  to  gain  the  benefit  of  custom  without  the  evil — if  after 
ages  of  waiting  it  can  have  order  and  choice  together — at  once 
the  fatal  clog  is  removed,  and  the  ordinary  springs  of  progress, 
as  in  a  modern  community  we  conceive  them,  begin  their  elas- 
tic action. 

Discussion,  too,  has  incentives  to  progress  peculiar  to  itself. 
It  gives  a  premium  to  intelligence.  To  set  out  the  arguments 
required  to  determine  political  action  with  such  force  and  effect 
that  they  really  should  determine  it,  is  a  high  and  great  exer- 
tion of  intellect.  Of  course,  all  such  arguments  are  produced 
under  conditions ;  the  argument  abstractedly  best  is  not  neces- 
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  time,  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  unsound.  A  prize  for  argumentative 
mind  is  given  in  free  states,  to  which  no  other  states  have 
anything  to  compare. 

'  Tolerance  too  is  learned  in  discussion,  and,  as  history  shows, 
.  V  is  only  so  learned.  In  all  customary  societies  bigotry  is  the  rul- 
ing principle.  In  rude  places  to  this  day  any  one  who  says 
anything  new  is  looked  on  with  suspicion,  and  is  persecuted 
by  opinion  if  not  injured  by  penalty.  One  of  the  greatest  pains 
to  human  nature  is  fhe  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  ill- 


PHYSICS    AND    POLITICS  101 

founded ;  it  is  certain  that  till  now  there  was  no  place  allotted 
in  your  mind  to  the  new  and  startling  inhabitant,  and  now 
that  it  has  conquered  an  entrance,  you  do  not  at  once  see  which 
of  your  old  ideas  it  will  or  will  not  turn  out,  with  which  of  them 
it  can  be  reconciled,  and  with  which  it  is  at  essential  enmity. 
Naturally,  therefore,  common  men  hate  a  new  idea,  and  are 
disposed  more  or  less  to  ill-treat  the  original  man  who  brings 
it.  Even  nations  with  long  habits  of  discussion  are  intolerant 
enough.  In  England,  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  discussion,  to  be  successful,  requires  tolerance. 
It  fails  wherever,  as  in  a  French  political  assembly,  any  one 
who  hears  anything  which  he  dislikes  tries  to  howl  it  down. 
If  we  know  that  a  nation  is  capable  of  enduring  continuous 
discussion,  we  know  that  it  is  capable  of  practising  with 
equanimity  continuous  tolerance. 

The  power  of  a  government  by  discussion  as  an  instrument 
of  elevation  plainly  depends — other  things  being  equal — on  the 
greatness  or  littleness  of  the  things  to  be  discussed.  There 
are  periods  when  great  ideas  are  "  in  the  air,"  and  when,  from 
some  cause  or  other,  even  common  persons  seem  to  partake  of 
an  unusual  elevation.  The  age  of  Elizabeth  in  England  was 
conspicuously  such  a  time.  The  new  idea  of  the  Reformation  in 
religion,  and  the  enlargement  of  the  moenia  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  forward.  Poetry,  science,  and  architecture, 
different  as  they  are,  and  removed  as  they  all  are  at  first  sight 
from  such  an  influence  as  discussion,  were  suddenly  started 
onward.  Macaulay  would  have  said  you  might  rightly  read 
the  power  of  discussion  "  in  the  poetry  of  Shakespeare,  in  the 
prose  of  Bacon,  in  the  oriels  of  Longleat,  and  the  stately  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.  Jj  any  particular  power  is 
much  prized  in  an  age,  those  possessed  of  that  power  will  be 
imitated;  those  deficient  in  that  power  will  be  despised.  In 


102 


BAGEHOT 


consequence  an  unusual  quantity  of  that  power  will  be  devel- 
oped, and  be  conspicuous.  Within  certain  limits  vigorous  and 
elevated  thought  was  respected  in  Elizabeth's  time,  and,  there- 
fore, vigorous  and  elevated  thinkers  were  many ;  and  the  effect 
went  far  beyond  the  cause :  It  penetrated  into  physical  science, 
for  which  very  few  men  cared ;  and  it  began  a  reform  in  philos- 
ophy to  which  almost  all  were  then  opposed.  In  a  word,  the 
temper  of  the  age  encouraged  originality,  and  in  consequence 
original  men  started  into  prominence,  went  hither  and  thither 
where  they  liked,  arrived  at  goals  which  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 
with  government  by  discussion.  Athens,  Rome,  the  Italian 
republics  of  the  Middle  Ages,  the  communes  and  states-gen- 
eral of  feudal  Europe,  have  all  had  a  special  and  peculiar 
quickening  influence,  which  they  owed  to  their  freedom,  and 
which  states  without  that  freedom  have  never  communicated. 
And  it  has  been  at  the  time  of  great  epochs  of  thought — at  the 
Peloponnesian  war,  at  the  fall  of  the  Roman  Republic,  at  the 
Reformation,  at  the  French  Revolution — that  such  liberty  of 
speaking  and  thinking  have  produced  their  full  effect. 

It  is  on  this  account  that  the  discussions  of  savage  tribes 
have  produced  so  little  effect  in  emancipating  those  tribes  from 
their  despotic  customs.  The  oratory  of  the  North  American 
Indian — the  first  savage  whose  peculiarities  fixed  themselves 
in  the  public  imagination — has  become  celebrated,  and  yet  the 
North  American  Indians  were  scarcely,  if  at  all,  better  orators 
than  many  other  savages.  Almost  all  of  the  savages  who  have 
melted  away  before  the  Englishman  were  better  speakers  than 
he  is.  But  the  oratory  of  the  savages  has  led  to  nothing,  and 
was  likely  to  lead  to  nothing.  It  is  a  discussion  not  of  prin- 
ciples, but  of  undertakings ;  its  topics  are  whether  expedition 
A  will  answer,  and  should  be  undertaken;  whether  expedi- 
tion B  will  not  answer,  and  should  not  be  undertaken ;  whether 
village  A  is  the  best  village  to  plunder,  or  whether  village  B 
is  a  better.  Such  discussions  augment  the  vigor  of  language, 
encourage  a  debating  facility,  and  develop  those  gifts  of  de- 
meanor and  of  gesture  which  excite  the  confidence  of  the  hear- 
ers. But  they  do  not  excite  the  speculative  intellect,  do  not 


PHYSICS    AND    POLITICS  103 

lead  men  to  argue  speculative  doctrines,  or  to  question  ancient 
principles.  They,  in  some  material  respects,  improve  the  sheep 
within  the  fold ;  but  they  do  not  help  them  or  incline  them  to 
leap  out  of  the  fold. 

The  next  question,  therefore,  is,  Why  did  discussions  in  some 
cases  relate  to  prolific  ideas,  and  why  did  discussions  in  other 
cases  relate  only  to  isolated  transactions?  The  reply  which 
history  suggests  is  very  clear  and  very  remarkable.  Some 
races  of  men  at  our  earliest  knowledge  of  them  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  process 
of  time  a  struggle,  the  earliest  that  we  know  of,  between  the 
aristocratical  party,  originally  represented  by  the  Senate,  and 
the  popular  party,  represented  by  the  "  general  meeting." 
This  is  plainly  a  question  of  principle,  and  its  being  so  has  led 
to  its  history  being  written  more  than  two  thousand  years  after- 
wards in  a  very  remarkable  manner.  Some  seventy  years  ago 
an  English  country  gentleman  named  Mitford,  who,  like  so 
many  of  his  age,  had  been  terrified  into  aristocratic  opinions  by 
the  first  French  Revolution,  suddenly  found  that  the  history  of 
the  Peloponnesian  War  was  the  reflex  of  his  own  time.  He 
took  up  his  Thucydides,  and  there  he  saw,  as  in  a  mirror,  the 
progress  and  the  struggles  of  his  age.  It  required  some  fresh- 
ness of  mind. to  see  this ;  at  least,  it  had  been  hidden  for  many 
centuries.  All  the  modern  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 
either,  except  that  the  analogy  of  what  he  saw  helped  him  by  a 
telling  object-lesson  to  the  understanding  of  what  he  read. 
Just  as  in  every  country  of  Europe  in  1793  there  were  two  fac- 
tions, one  of  the  old-world  aristocracy,  and  the  other  of  the 
incoming  democracy,  just  so  there  was  in  every  city  of  ancient 
Greece,  in  the  year  400  B.C.,  one  party  of  the  many  and  another 
of  the  few.  This  Mr.  Mitford  perceived,  and  being  a  strong 
aristocrat,  he  wrote  a  "  history/'  which  is  little  except  a  party 
pamphlet,  and  which,  it  must  be  said,  is  even  now  readable  on 
that  very  account.  The  vigor  of  passion  with  which  it  was 
written  puts  life  into  the  words,  and  retains  the  attention  of 


,io4  BAGEHOT 

the  reader.  And  that  is  not  all.  JMrjCfrote,  the  great  scholar 
whom  we  have  had  lately  to  mourn,  also  recognizing  the  iden- 
tity between  the  struggles  of  Athens  and  Sparta  and  the  strug- 
gles of  our  modern  world,  and  taking  violently  the  contrary 
side  to  that  of  Mitford,  being  as  great  a  democrat  as  Mitford 
was  an  aristocrat,  wrote  a  reply,  far  above  Mitford's  history  in 
power  and  learning,  but  being  in  its  main  characteristic  almost 
identical,  being  above  all  things  a  book  of  vigorous  political 
passion,  written  for  persons  who  care  for  politics,  and  not,  as 
almost  all  histories  of  antiquity  are  and  must  be,  the  book  of 
a  man  who  cares  for  scholarship  more  than  for  anything  else, 
written  mainly,  if  not  exclusively,  for  scholars.  And  the  effect 
of  fundamental  political  discussion  was  the  same  in  ancient  as 
in  modern  times.  The  whole  customary  ways  of  thought  were 
at  once  shaken  by  it,  and  shaken  not  only  in  the  closets  of 
philosophers,  but  in  the  common  thought  and  daily  business 
of  ordinary  men.  The  "  liberation  of  humanity/'  as  Goethe 
used  to  call  it — the  deliverance  of  men  from  the  yoke  of  in- 
herited usage,  and  of  rigid,  unquestionable  law — was  begun  in 
Greece,  and  had  many  of  its  greatest  effects,  good  and  evil,  on 
Greece.  It  is  just  because  of  the  analogy  between  the  con- 
troversies of  that  time  and  those  of  our  times  that  some  one  has 
said,  "  Classical  history  is  a  part  of  modern  history ;  it  is 
mediaeval  history  only  which  is  ancient." 

If  there  had  been  no  discussion  of  principle  in  Greece,  prob- 
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  of  living  judges,  maintains 
to  be  the  finest  ever  composed  by  man,  are  not  discussions  of 
principle.  There  is  no  more  tendency  in  them  to  critical  dis- 
quisition than  there  is  to  political  economy.  In  Herodotus 
you  have  the  beginning  of  the  age  of  discussion.  He  belongs 
in  his  essence  to  the  age  which  is  going  out.  He  refers  with 
reverence  to  established  ordinance  and  fixed  religion.  Still, 
in  his  travels  through  Greece,  he  must  have  heard  endless  po- 
litical arguments ;  and  accordingly  you  can  find  in  his  book 
many  incipient  traces  of  abstract  political  disquisition.  The 
discourses  on  democracy,  aristocracy,  and  monarchy,  which 
he  puts  into  the  mouth  of  the  Persian  conspirators  when  the 
monarchy  was  vacant,  have  justly  been  called  absurd,  as 


PHYSICS    AND    POLITICS  105 

speeches  supposed  to  have  been  spoken  by  those  persons.  No 
Asiatic  ever  thought  of  such  things.  You  might  as  well  im- 
agine Saul  or  David  speaking  them  as  those  to  whom  Herod- 
otus attributes  them.  They  are  Greek  speeches,  full  of  free 
Greek  discussion,  and  suggested  by  the  experience,  already 
considerable,  of  the  Greeks  in  the  results  of  discussion.  The 
age  of  debate  is  beginning,  and  even  Herodotus,  the  least  of  a 
wrangler  of  any  man,  and  the  most  of  a  sweet  and  simple  nar- 
rator, felt  the  effect.  When  we  come  to  Thucydides,  the  results 
of  discussion  are  as  full  as  they  have  ever  been;  his  light  is 
pure,  "  dry  light,"  free  from  the  "  humors  "  of  habit,  and  purged 
from  consecrated  usage.  As  Crete's  history  often  reads  like  a 
report  to  Parliament,  so  half  Thucydides  reads  like  a  speech, 
or  materials  for  a  speech,  in  the  Athenian  Assembly.  Of  later 
times  it  is  unnecessary  to  speak.  Every  page  of  Aristotle  and 
Plato  bears  ample  and  indelible  trace  of  the  age  of  discussion 
in  which  they  lived ;  and  thought  cannot  possibly  be  freer. 
The  deliverance  of  the  speculative  intellect  from  traditional' 
and  customary  authority  was  altogether  complete. 

No  doubt  the  "  detachment "  from  prejudice,  and  the  sub- 
jection to  reason,  which  I  ascribe  to  ancient  Athens,  only  went 
down  a  very  little  way  among  the  population  of  it.  Two  great 
classes  of  the  people,  the  slaves  and  women/were  almost  ex- 
cluded from  such  qualities;  even  the  free  population  doubt- 
less contained  a  far  greater  proportion  of  very  ignorant  and 
very  superstitious  persons  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  most  gross  superstition. 
Still,  as  far  as  the  intellectual  and  cultivated  part  of  society  is 
concerned,  the  triumph  of  reason  was  complete;  the  minds 
of  the  highest  philosophers  were  then  as  ready  to  obey  evidence 
and  reason  as  they  have  ever  been  since;  probably  they  were 
more  ready.  The  rule  of  custom  over  them  at  least  had  been 
wholly  broken,  and  the  primary  conditions  of  intellectual  prog- 
ress were  in  that  respect  satisfied. 

It  may  be  said  that  I  am  giving  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 


!06  BAGEHOT 

there  was  progress  in  Judaea  as  well  as  in  Athens.  And  un- 
questionably there  was  progress,  but  it  was  only  progress  upon 
a  single  subject.  If  we  except  religion  and  omit  also  all  that 
the  Jews  had  learned  from  foreigners,  it  may  be  doubted  if 
there  be  much  else  new  between  the  time  of  Samuel  and  that 
of  Malachi.  In  religion  there  was  progress,  but  without  it  there 
was  not  any.  This  was  due  to  the  cause  of  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  religious  teachers — one,  the 
priests,  the  inheritors  of  past  accredited  inspiration ;  the  other, 
the  prophet,  the  possessor  of  a  like  present  inspiration.  Cur- 
tius  describes  the  distinction  well  in  relation  to  the  condition 
of  Greece  with  which  history  first  presents  us : — 

"  The  mantic  art  is  an  institution  totally  different  from  the 
priesthood.  It  is  based  on  the  belief  that  the  gods  are  in  con- 
stant proximity  to  men,  and  in  their  government  of  the  world, 
which  comprehends  everything  both  great  and  small,  will  not 
disdain  to  manifest  their  will;  nay,  it  seems  necessary  that, 
whenever  any  hitch  has  arisen  in  the  moral  system  of  the  human 
world,  this  should  also  manifest  itself  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  special  capacity  is  requisite ;  not  a  capacity 
which  can  be  learnt  like  a  human  art  or  science,  but  rather  a 
peculiar  state  of  grace  in  the  case  of  single  individuals  and 
single  families  whose  ears  and  eyes  are  opened  to  the  divine 
revelations,  and  who  participate  more  largely  than  the  rest  of 
mankind  in  the  divine  spirit.  Accordingly  it  is  their  office  and 
calling  to  assert  themselves  as  organs  of  the  divine  will ;  they 
are  justified  in  opposing  their  authority  to  every  power  of  the 
world.  On  this  head  conflicts  were  unavoidable,  and  the  rem- 
iniscences living  in  the  Greek  people,  of  the  agency  of  a 
Tiresias  and  Calchas,  prove  how  the  Heroic  kings  experienced 
not  only  support  and  aid,  but  also  opposition  and  violent  pro- 
tests, from  the  mouths  of  the  men  of  prophecy." 

In  Judaea  there  was  exactly  the  same  opposition  as  else- 
where. All  that  is  new  comes  from  the  prophets ;  all  which 
is  old  is  retained  by  the  priests.  But  the  peculiarity  of  Judaea — 
a  peculiarity  which  I  do  not  for  a  moment  pretend  that  I  can 


PHYSICS    AND    POLITICS  Io7 

explain — is  that  the  prophetic  revelations  are,  taken  as  a  whole, 
indisputably  improvements;  that  they  contain,  as  time  goes 
on,  at  each  succeeding  epoch,  higher  and  better  views  of  re- 
ligion. But  the  peculiarity  is  not  to  my  present  purpose.  My 
point  is  that  there  is  no  such  spreading  impetus  in  progress 
thus  caused  as  there  is  in  progress  caused  by  discussion.  To 
receive  a  particular  conclusion  upon  the  ipse  dixit,  upon  the 
accepted  authority  of  an  admired  instructor,  is  obviously  not 
so  vivifying  to  the  argumentative  and  questioning  intellect  as 
to  argue  out  conclusions  for  yourself.  Accordingly  the  re- 
ligious progress  caused  by  the  prophets  did  not  break  down 
that  ancient  code  of  authoritative  usage.  On  the  contrary,  the 
two  combined.  In  each  generation  the  conservative  influence 
"  built  the  sepulchres "  and  accepted  the  teaching  of  past 
prophets,  even  while  it  was  slaying  and  persecuting  those  who 
were  living.  But  discussion  and  custom  cannot  be  thus  com- 
bined ;  their  "  method/'  as  modern  philosophers  would  say,  is 
antagonistic.  Accordingly,  the  progress  of  the  classical  states 
gradually  awakened  the  whole  intellect ;  that  of  Judaea  was 
partial  and  improved  religion  only.  And,  therefore,  in  a  history 
of  intellectual  progress,  the  classical  fills  the  superior  and  the 
Jewish  the  inferior  place ;  just  as  in  a  special  history  of  theol- 
ogy only,  the  places  of  the  two  might  be  interchanged. 

A  second  experiment  has  been  tried  on  the  same  subject- 
matter.  The  characteristic  of  the  Middle  Ages  may  be  ap- 
proximately— though  only  approximately — described  as  a 
return  to  the  period  of  authoritative  usage  and  as  the  abandon- 
ment of  the  classical  habit  of  independent  and  self-choosing 
thought.  I  do  not  for  an  instant  mean  that  this  is  an  exact 
description  of  the  main  mediaeval  characteristic;  nor  can  I 
discuss  how  far  that  characteristic  was  an  advance  upon  those 
of  previous  times ;  its  friends  say  it  is  far  better  than  the  pe- 
culiarities of  the  classical  period;  its  enemies  that  it  is  far 
worse.  But  both  friends  and  enemies  will  admit  that  the  most 
marked  feature  of  the  Middle  Ages  may  roughly  be  described 
as  I  have  described  it.  And  my  point  is  that  just  as  this 
mediaeval  characteristic  was  that  of  a  return  to  the  essence  of 
the  customary  epoch  which  had  marked  the  pre-Athenian 
times,  so  it  was  dissolved  much  in  the  same  manner  as  the  in- 
fluence of  Athens,  and  other  influences  like  it,^claim  to  have 
dissolved  that  customary  epoch. 


I08  BAGEHOT 

The  principal  agent  in  breaking  up  the  persistent  mediaeval 
customs,  which  were  so  fixed  that  they  seemed  likely  to  last 
forever,  or  till  some  historical  catastrophe  overwhelmed  them, 
was  the  popular  element  in  the  ancient  polity  which  was  every- 
where diffused  in  the  Middle  Ages.  The  Germanic  tribes 
brought  with  them  from  their  ancient  dwelling-place  a  polity 
containing,  like  the  classical,  a  king,  a  council,  and  a  popular 
assembly;  and  wherever  they  went,  they  carried  these  ele- 
ments and  varied  them,  as  force  compelled  or  circumstances 
required.  As  far  as  England  is  concerned,  the  excellent  dis- 
sertations of  Mr.  Freeman  and  Mr.  Stubbs  have  proved  this 
in  the  amplest  manner,  and  brought  it  home  to  persons  who 
cannot  claim  to  possess  much  antiquarian  learning.  The  his- 
tory of  the  English  Constitution,  as  far  as  the  world  cares  for 
it,  is,  in  fact,  the  complex  history  of  the  popular  element  in 
this  ancient  polity,  which  was  sometimes  weaker  and  some 
times  stronger,  but  which  has  never  died  out,  has  commonly 
possessed  great  though  varying  power,  and  is  now  entirely 
predominant.  The  history  of  this  growth  is  the  history  of  the 
English  people ;  and  the  discussions  about  this  constitution 
and  the  discussions  within  it,  the  controversies  as  to  its  struc- 
ture and  the  controversies  as  to  its  true  effects,  have  mainly 
trained  the  English  political  intellect,  in  so  far  as  it  is  trained. 
But  in  much  of  Europe,  and  in  England  particularly,  the  in- 
fluence of  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  an  intellectual  process  think  out  a  religion 
for  himself,  and  that,  as  the  highest  of  all  duties,  he  ought  to 
do  so.  The  influence  of  the  political  discussion,  and  the  in- 
fluence of  the  religious  discussion,  have  been  30  long  and  so 
firmly  combined,  and  have  so  effectually  enforced  one  another, 
that  the  old  notions  of  loyalty,  and  fealty,  and  authority,  as  they 
existed  in  the  Middle  Ages,  have  now  over  the  best  minds  al- 
most no  effect. 

It  is  true  that  the  influence  of  discussion  is  not  the  only 
force  which  has  produced  this  vast  effect.  Both  in  ancient  and 
in  modern  times  other  forces  co-operated  with  it.  Trade,  for 
example,  is  obviously  a  force  which  has  done  much  to  bring 
men  of  differenjt  customs  and  different  beliefs  into  close  con- 


PHYSICS    AND    POLITICS  109 

tiguity,  and  has  thus  aided  to  change  the  customs  and  the  be- 
liefs of  them  all.  Colonization  is  another  such  influence:  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  are  obliged  to  coalesce  with 
and  "  adopt "  useful  bands  and  useful  men,  though  their  an- 
cestral customs  may  not  be  identical,  nay,  though  they  may 
be,  in  fact,  opposite  to  their  own.  In  modern  Europe,  the  ex- 
istence of  a  cosmopolite  Church,  claiming  to  be  above  nations, 
and  really  extending  through  nations,  and  the  scattered  re- 
mains of  Roman  law  and  Roman  civilization  co-operated  with 
the  liberating  influence  of  political  discussion.  And  so  did 
other  causes  also.  But  perhaps  in  no  case  have  these  sub- 
sidiary causes  alone  been  able  to  generate  intellectual  freedom ; 
certainly  in  all  the  most  remarkable  cases  the  influence  of  dis- 
cussion has  presided  at  the  creation  of  that  freedom,  and  has 
been  active  and  dominant  in  it. 

No  doubt  apparent  cases  of  exception  may  easily  be  found. 
It  may  be  said  that  in  the  Court  of  Augustus  there  was  much 
general  intellectual  freedom,  an  almost  entire  detachment  from 
ancient  prejudice,  but  that  there  was  no  free  political  discus- 
sion at  all.  But,  then,  the  ornaments  of  that  time  were  derived 
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  to  inherited  prejudice,  and  favorable  to 
intellectual  exertion.  Yet,  except  in  the  instance  of  the 
Church,  which  is  a  peculiar  subject  that  requires  a  separate  dis- 
cussion, how  little  was  added  to  what  the  republic  left!  The 
power  of  free  interchange  of  ideas  being  wanting,  the  ideas 
themselves  were  barren.  Also,  no  doubt,  much  intellectual 
freedom  may  emanate  from  countries  of  free  political  discus- 
sion, and  penetrate  to  countries  where  that  discussion  is  lim- 
ited. Thus  the  intellectual  freedom  of  France  in  the  eighteenth 
century  was  in  great  part  owing  to  the  proximity  of  and  inces- 
cant  intercourse  with  England  and  Holland.  Voltaire  resided 
among  us ;  and  every  page  of  the  "  Esprit  des  Lois  "  proves 
how  much  Montesquieu  learned  from  living  here.  But,  of 
course,  it  was  only  part  of  the  French  culture  which  was  so  de- 
rived: the  germ  might  be  foreign,  but  the  tissue  was  native. 


Jio 


BAGEHOT 


And  very  naturally,  for  it  would  be  absurd  to  call  the  ancien 
regime  a  government  without  discussion :  discussion  abounded 
there,  only,  by  reason  of  the  bad  form  of  the  government,  it 
was  never  sure  with  ease  and  certainty  to  affect  political  action. 
The  despotism  "  tempered  by  epigram,"  was  a  government 
which  permitted  argument  of  licentious  freedom  within  chang- 
ing limits,  and  which  was  ruled  by  that  argument  spasmod- 
ically and  practically,  though  not  in  name  or  consistently. 

But  though  in  the  earliest  and  in  the  latest  time  government 
by  discussion  has  been  a  principal  organ  for  improving  man- 
kind, yet,  from  its  origin,  it  is  a  plant  of  singular  delicacy.  At 
first  the  chances  are  much  against  its  living.  In  the  begin- 
ning, the  members  of  a  free  state  are  of  necessity  few.  The 
essence  of  it  requires  that  discussion  shall  be  brought  home  to 
those  members.  But  in  early  time,  when  writing  is  difficult, 
reading  rare,  and  representation  undiscovered,  those  who  are 
to  be  guided  by  the  discussion  must  hear  it  with  their  own 
ears,  must  be  brought  face  to  face  with  the  orator,  and  must 
feel  his  influence  for  themselves.  The  first  free  states  were 
little  towns,  smaller  than  any  political  division  which  we  now 
have,  except  the  republic  of  Andorra,  which  is  a  sort  of  vestige 
of  them.  It  is  in  the  market-place  of  the  country  town,  as  we 
should  now  speak,  and  in  petty  matters  concerning  the  market- 
town,  that  discussion  began,  and  thither  all  the  long  train  of  its 
consequences  may  be  traced  back.  Some  historical  inquirers, 
like  myself,  can  hardly  look  at  such  a  place  without  some  senti- 
mental musing,  poor  and  trivial  as  the  thing  seems.  But  such 
small  towns  are  very  feeble.  Numbers  in  the  earliest  wars,  as 
in  the  latest,  are  a  main  source  of  victory.  And  in  early  times 
one  kind  of  state  is  very  common  and  is  exceedingly  numerous. 
In  every  quarter  of  the  globe  we  find  great  populations  com- 
pacted by  traditional  custom  and  consecrated  sentiments,  which 
are  ruled  by  some  soldier — generally  some  soldier  of  a  fpreign 
tribe,  who  has  conquered  them,  and,  as  it  has  been  said, 
"  vaulted  on  the  back  "  of  them,  or  whose  ancestors  have  done 
so.  These  great  populations,  ruled  by  a  single  will,  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 


PHYSICS    AND    POLITICS  in 

been  subjected  also.  Every  schoolboy  must  have  felt  that 
nothing  but  amazing  folly  and  unmatched  mismanagement 
saved  Greece  from  conquest  both  in  the  time  of  Xerxes  and  in 
that  of  Darius.  The  fortunes  of  intellectual  civilization  were 
then  at  the  mercy  of  what  seems  an  insignificant  probability.  If 
the  Persian  leaders  had  only  shown  that  decent  skill  and  ordi- 
nary military  prudence  which  it  was  likely  they  would  show, 
Grecian  freedom  would  have  been  at  an  end.  Athens,  like  so 
many  Ionian  cities  on  the  other  side  of  the  yEgean,  would  have 
been  absorbed  into  a  great  despotism ;  all  we  now  remember 
her  for  we  should  not  remember,  for  it  would  never  have  oc- 
curred. Her  citizens  might  have  been  ingenious  and  imitative 
and  clever ;  they  could  not  certainly  have  been  free  and  orig- 
inal. Rome  was  preserved  from  subjection  to  a  great  empire 
by  her  fortunate  distance  from  one.  The  early  wars  of  Rome 
are  with  cities  like  Rome — about  equal  in  size,  though  inferior 
in  valor.  It  was  only  when  she  had  conquered  Italy  that  she 
began  to  measure  herself  against  Asiatic  despotisms.  She  be- 
came great  enough  to  beat  them  before  she  advanced  far 
enough  to  contend  with  them.  But  such  great  good  fortune 
was  and  must  be  rare.  Unnumbered  little  cities  which  might 
have  rivalled  Rome  or  Athens  doubtless  perished  without  a 
sign  long  before  history  was  imagined.  The  small  size  and 
slight  strength  of  early  free  states  made  them  always  liable 
to  easy  destruction. 

And  their  internal  frailty  is  even  greater.  As  soon  as  dis- 
cussion begins  the  savage  propensities  of  men  break  forth; 
even  in  modern  communities,  where  those  propensities,  too, 
have  been  weakened  by  ages  of  culture,  and  repressed  by  ages 
of  obedience,  as  soon  as  a  vital  topic  for  discussion  is  well 
started  the  keenest  and  most  violent  passions  break  forth. 
Easily  destroyed  as  are  early  free  states  by  forces  from  without, 
they  are  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,  are  the  offspring  either  of 
the  first  constitutions  of  the  classical  nations  or  of  the  first 
constitutions  of  the  Germanic  nations.  All  living  freedom  runs 


II2  BAGEHOT 

back  to  them,  and  those  truths  which  at  first  sight  would  seem 
the  whole  of  historical  freedom,  can  be  traced  to  them.  And 
both  the  Germanic  and  the  classical  nations  belong  to  what 
ethnologists  call  the  Aryan  race.  Plausibly  it  might  be  argued 
that  the  power  of  forming  free  states  was  superior  in  and  pe- 
\  culiar  to  that  family  of  mankind.  But  unfortunately  for  this 
'easy  theory  the  facts  are  inconsistent  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  among  the  most  slavish  divisions  of 
mankind.  To  offer  the  Bengalese  a  free  constitution,  and  to 
expect  them  to  work  one,  would  be  the  maximum  of  human 
folly.  There  then  must  be  something  else  besides  Aryan  de- 
scent which  is  necessary  to  fit  men  for  discussion  and  train 
them  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  republic.  We  do 
not  know  all  the  details  of  its  constitution,  but  we  know 
enough  for  our  present  purpose.  We  know  that  it  was  a  gov- 
ernment in  which  many  proposers  took  part,  and  under  which 
discussion  was  constant,  active,  and  conclusive.  No  doubt 
Tyre,  the  parent  city  of  Carthage,  the  other  colonies  of  Tyre 
besides  Carthage,  and  the  colonies  of  Carthage,  were  all  as  free 
as  Carthage.  We  have  thus  a  whole  group  of  ancient  republics 
of  non- Aryan  race,  and  one  which,  being  more  ancient  than  the 
classical  republics,  could  not  have  borrowed  from  or  imitated 
them,  So  that  the  theory  whicrTwould  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  of 
mankind  were,  as  long  as  we  know  of  them,  possessed  of  a 
polity  which  as  time  went  on  suggested  discussions  of  prin- 
ciple, and  why  the  great  majority  of  mankind  had  nothing  like 
it.  This  is  almost  as  hopeless  as  asking  why  Milton  was  a 
genius  and  why  Bacon  was  a  philosopher.  Indeed  it  is  the 
same,  because  the  causes  which  give  birth  to  the  startling 
varieties  of  individual  character,  and  those  which  give  birth 
to  similar  varieties  of  national  character,  are,  in  fact,  the  same. 
I  have,  indeed,  endeavored  to  show  that  a  marked  type  of  in- 


PHYSICS    AND    POLITICS  113 

dividual  character  once  originating  in  a  nation  and  once 
strongly  preferred  by  it,  is  likely  to  be  fixed  on  it  and  to  be 
permanent  in  it,  from  causes  which  were  stated.  Granted  the 
beginning  of  the  type,  we  may,  I  think,  explain  its  develop- 
ment and  aggravation ;  but  we  cannot  in  the  least  explain  why 
the  incipient  type  of  curious  characters  broke  out,  if  I  may  so 
say,  in  one  place  rather  than  in  another.  Climate  and  "  phys- 
ical "  surroundings,  in  the  largest  sense,  have  unquestionably 
much  influence ;  they  are  one  factor  in  the  cause,  but  they  are 
not  the  only  factor;  for  we  find  most  dissimilar  races  of  men 
living  in  the  same  climate  and  affected  by  the  same  surround- 
ings, and  we  have  every  reason  to  believe  that  those  unlike 
races  have  so  lived  as  neighbors  for  ages.  The  cause  of  types 
must  be  something  outside  the  tribe  acting  on  something  with- 
in— something  inherited  by  the  tribe.  But  what  that  some- 
thing is  I  do  not  know  that  anyone  can  in  the  least  explain. 

The  following  conditions  may,  I  think,  be  historically  traced 
to  the  nation  capable  of  a  polity  which  suggests  principles  for 
discussion,  and  so  leads  to  progress.  First,  the  nation  must 
possess  the  patria  potestas  in  some  form  so  marked  as  to  give 
family  life  distinctness  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  while  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  the  aggregation  of  families  into  clans  or  i, 
gentes,  and  of  clans  into  nations,  and  then  again  by  the  widen- 
ing of  nations,  so  as  to  include  circumjacent  outsiders,  as  well 
as  the  first  compact  and  sacred  group — the  number  of  parties 
to  a  discussion  was  at  first  augmented  very  slowly.  Thirdly, 
the  number  of  "  open  "  subjects — as  we  should  say  now-a-days 
— that  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 
was  enlarged  but  very  slowly.  If  I  am  at  all  right,  that  area 
could  only  be  enlarged  thus  slowly,  for  custom  was  in  early 
days  the  cement  of  society,  and  if  you  suddenly  questioned  such 
custom  you  would  destroy  society.  But  though  the  existence 
of  these  conditions  may  be  traced  historically,  and  though  the 
reason  of  them  may  be  explained  philosophically,  they  do  not 
8 


II4  BAGEHOT 

completely  solve  the  question  why  some  nations  have  the  polity 
and  some  not;  on  the  contrary,  they  plainly  leave  a  large 
"  residual  phenomenon  "  unexplained  and  unknown. 

Part  II 

In  this  manner  politics  or  discussion  broke  up  the  old  bonds 
of  custom  which  were  now  strangling  mankind,  though  they 
had  once  aided  and  helped  it.  But  this  is  only  one  of  the 
many  gifts  which  those  polities  have  conferred,  are  confer- 
ring, and  will  confer  to  mankind.  I  am  not  going  to  write 
an  eulogium  on  liberty,  but  I  wish  to  set  down  three  points 
which  have  not  been  sufficiently  noticed. 

Civilized  ages  inherit  the  human  nature  which  was  victorious 
in  barbarous  ages,  and  that  nature  is,  in  many  respects,  not  at 
all  suited  to  civilized  circumstances.  A  main  and  principal 
excellence  in  the  early  times  of  the  human  races  is  the  impulse 
to  action.  The  problems  before  men  are  then  plain  and  sim- 
ple. The  man  who  works  hardest,  the  man  who  kills  the  most 
deer,  the  man  who  catches  the  most  fish — even  later  on,  the 
man  who  tends  the  largest  herds,  or  the  man  who  tills  the  larg- 
est field — is  the  man  who  succeeds ;  the  nation  which  is  quick- 
est to  kill  its  enemies,  or  which  kills  most  of  its  enemies,  is  the 
nation  which  succeeds.  All  the  inducements  of  early  society 
tend  to  foster  immediate  action ;  all  its  penalties  fall  on  the 
man  who  pa'iises;  the  traditional  wisdom  of  those  f  times  was 
never  weary  of  inculcating  that  "  delays  are  dangerous,"  and 
that  the  sluggish  man — the  man  "  who  roasteth  not  that  which 
he  took  in  hunting  " — will  not  prosper  on  the  earth,  and,  in- 
deed, will  very  soon  perish  out  of  it.  And  in  consequence  an 
inability  to  stay  quiet,  an  irritable  desire  to  act  directly,  is  one 
of  the  most  conspicuous  failings  of  mankind. 

Pascal  said  that  most  of  the  evils  of  life  arose  from  "  man's 
being  unable  to  sit  still  in  a  room  "  ;  and  though  I  do  not  go 
that  length,  it  is  certain  that  we  should  have  been  a  far  wiser 
race  than  we  are  if  we  had  been  readier  to  sit  quiet — we  should 
have  known  much  better  the  way  in  which  it  was  best  to  act 
when  we  came  to  act.  The  rise  of  physical  science,  the  first 
great  body  of  practical  truth  provable  to  all  men,  exemplifies 
this  in  the  plainest  way.  If  it  had  not  been  for  quiet  people, 


PHYSICS    AND    POLITICS  115 

who  sat  still  and  studied  the  sections  of  the  cone,  if  other  quiet 
people  had  not  sat  still  and  studied  the  theory  of  infinitesimals, 
or  other  quiet  people  had  not  sat  still  and  worked  out  the  doc- 
trine of  chances,  the  most  "  dreamy  moonshine,"  as  the  purely 
practical  mind  would  consider,  of  all  human  pursuits ;  if  "  idle 
star-gazers  "  had  not  watched  long  and  carefully  the  motions 
of  the  heavenly  bodies — our  modern  astronomy  would  have 
been  impossible,  and  without  our  astronomy  "  our  ships,  our 
colonies,  our  seamen,"  all  which  makes  modern  life,  modern  life 
could  not  have  existed.  Ages  of  sedentary,  quiet,  thinking  peo- 
ple were  required  before  that  noisy  existence  began,  and  with- 
out those  pale  preliminary  students  it  never  could  have  been 
brought  into  being.  And  nine-tenths  of  modern  science  is  in 
this  respect  the  same :  it  is  the  produce  of  men  whom  their  con- 
temporaries thought  dreamers — who  were  laughed  at  for  car- 
ing for  what  did  not  concern  them — who,  as  the  proverb  went, 
"  walked  into  a  well  from  looking  at  the  stars  " — who  were  be- 
lieved to  be  useless,  if  anyone  could  be  such.  And  the  con- 
clusion is  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 
of  proved  science  ages  before  there  was.  It  was  the  irritable 
activity,  the  "  wish  to  be  doing  something,"  that  prevented  it. 
Most  men  inherited  a  nature  too  eager  and  too  restless  to  be 
quiet  and  find  out  things;  and  even  worse — with  their  idle 
clamor  they  "  disturbed  the  brooding  hen,"  they  would  not  let 
those  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  if  the  over-activity  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  this  is  only  part, 
and  perhaps  not  the  greatest  part  of  the  harm  that  over-activ- 
ity does.  As  I  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.  But  the  issues  of 
life  are  plain  no  longer.  To  act  rightly  in  modern  society  re- 
quires a  great  deal  of  previous  study,  a  great  deal  of  assimilated 


XI6  BAGEHOT 

information,  a  great  deal  of  sharpened  imagination ;  and  these 
pre-requisites  of  sound  action  require  much  time,  and,  I  was 
going  to  say,  much  "  lying  in  the  sun,"  a  long  period  of  "  mere 
passiveness."  Even  the  art  of  killing  one  another,  which  at 
first  particularly  trained  men  to  be  quick,  now  requires  them 
to  be  slow.  A  hasty  general  is  the  worst  of  generals  now-a- 
days ;  the  best  is  a  sort  of  Von  Moltke,  who  is  passive  if  any 
man  ever  was  passive ;  who  is  "  silent  in  seven  languages  " ; 
who  possesses  more  and  better  accumulated  information  as 
to  the  best  way  of  killing  people  than  anyone  who  ever  lived. 
This  man  plays  a  restrained  and  considerate  game  of  chess 
with  his  enemy.  I  wish  the  art  of  benefiting  men  had  kept  pace 
with  the  art  of  destroying  them ;  for  though  war  has  become 
slow,  philanthropy  has  remained  hasty.  The  most  melancholy 
of  human  reflections,  perhaps,  is  that,  on  the  whole,  it  is  a  ques- 
tion whether  the  benevolence  of  mankind  does  most  good  or 
harm.  Great  good,  no  doubt,  philanthropy  does,  but  then  it 
also  does  great  evil.  It  augments  so  much  vice,  it  multiplies 
so  much  suffering,  it  brings  to  life  such  great  populations  to 
suffer  and  to  be  vicious,  that  it  is  open  to  argument  whether 
it  be  or  be  not  an  evil  to  the  world,  and  this^ls  entirely  because 
excellent  people  fancy  that  they  can  do  much  by  rapid  action — 
that  they  will  most  benefit  the  world  when  they  most  relieve 
their  own  feelings ;  that  as  soon  as  an  evil  is  seen  "  something  " 
ought  to  be  done  to  stay  and  prevent  it.  One  may  incline  to 
hope  that  the  balance  of  good  over  evil  is  in  favor  of  benevo- 
lence ;  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  been  spared  us  if  philan- 
thropists as  well  as  others  had  not  inherited  from  their  bar- 
barous forefathers  a  wild  passion  for  instant  action. 

Even  in  commerce,  which  is  now  the  main  occupation  of 
mankind,  and  one  in  which  there  is  a  ready  test  of  success  and 
failure  wanting  in  many  higher  pursuits,  the  same  disposition 
to  excessive  action  is  very  apparent  to  careful  observers.  Part 
of  every  mania  is  caused  by  the  impossibility  to  get  people  to 
confine  themselves  to  the  amount  of  business  for  which  their 
capital  is  sufficient,  and  in  which  they  can  engage  safely.  In 
some  degree,  of  course,  this  is  caused  by  the  wish  to  get  rich ; 
but  in  a  considerable  degree,  too,  by  the  mere  love  of  activity. 


PHYSICS    AND    POLITICS  117 

There  is  a  greater  propensity  to  action  in  such  men  than  they 
have  the  means  of  gratifying.  Operations  with  their  own  cap- 
ital will  only  occupy  four  hours  of  the  day,  and  they  wish  to 
be  active  and  to  be  industrious  for  eight  hours,  and  so  they 
are  ruined.  If  they  could  only  have  sat  idle  the  other  four 
hours,  they  would  have  been  rich  men.  The  amusements  of 
mankind,  at  least  of  the  English  part  of  mankind,  teach  the 
same  lesson.  Our  shooting,  our  hunting,  our  travelling,  our 
climbing  have  become  laborious  pursuits.  It  is  a  common  say- 
ing abroad  that  "  an  Englishman's  notion  of  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  many  cases  descended  to  those 
who  do  not  find  in  modern  life  any  mode  of  using  that  activity, 
and  of  venting  that  energy. 

Even  the  abstract  speculations  of  mankind  bear  conspicuous 
traces  of  the  same  excessive  impulse.  Every  sort  of  philosophy 
has  been  systematized,  and  yet  as  these  philosophies  utterly 
contradict  one  another,  most  of  them  cannot  be  true.  Un- 
proved abstract  principles  without  number  have  been  eagerly 
caught  up  by  sanguine  men,  and  then  carefully  spun  out  into 
books  and  theories,  which  were  to  explain  the  whole  world. 
But  the  world  goes  clear  against  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  impresses  the  un- 
wary ;  but  cultivated  people  are  very  dubious  about  it.  They 
are  ready  to  receive  hints  and  suggestions,  and  the  smallest  real 
truth  is  ever  welcome.  But  a  large  book  of  deductive  philos- 
ophy is  much  to  be  suspected.  No  doubt  the  deductions  may 
be  right ;  in  most  writers  they  are  so ;  but  where  did  the 
premises  come  from?  Who  is  sure  that  they  are  the  whole 
truth,  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,  and,  therefore,  that  it  will  not  be 
worth  while  to  spend  life  in  reasoning  over  their  consequences. 
In  a  word,  the  superfluous  energy  of  mankind  has  flowed  over 
into  philosophy,  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, 
neither  is  the  new  revolt  from  them  to  be  trusted  in  its  whole 


u8  BAGEHOT 

vigor.  There  is  the  same  original  vice  in  that  also.  There  is 
an  excessive  energy  in  revolutions  if  there  is  such  energy  any- 
where. The  passion  for  action  is  quite  as  ready  to  pull  down 
as  to  build  up ;  probably  it  is  more  ready,  for  the  task  is  easier : 

"  Old  things  need  not  be  therefore  true, 
O  brother  men,  nor  yet  the  new ; 
Ah,  still  awhile  the  old  thought  retain, 
And  yet  consider  it  again." 

But  this  is  exactly  what  the  human  mind  will  not  do.  It 
will  act  somehow  at  once.  It  will  not  "  consider  it  again." 

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  does  do  both  in  the  very  plainest  way.  If 
you  want  to  stop  instant  and  immediate  action,  always  make  it 
a  condition  that  the  action  shall  not  begin  till  a  considerable 
number  of  persons  have  talked  over  it,  and  have  agreed  on  it. 
If  those  persons  be  people  of  different  temperaments,  different 
ideas,  and  different  educations,  you  have  an  almost  infallible 
security  that  nothing,  or  almost  nothing,  will  be  done  with  ex- 
cessive rapidity.  Each  kind  of  persons  will  have  its  spokes- 
man; each  spokesman  will  have  his  characteristic  objection, 
and  each  his  characteristic  counter-proposition,  and  so  in  the 
end  nothing  will  probably  be  done,  or  at  least  only  the  min- 
imum which  is  plainly  urgent.  In  many  cases  this  delay  may 
be  dangerous ;  in  many  cases  quick  action  will  be  preferable. 
A  campaign,  as  Macaulay  well  says,  cannot  be  directed  by  a 
"  debating  society  " ;  and  many  other  kinds  of  action  also 
;require  a  single  and  absolute  general.  But  for  the  purpose 
/now  in  hand — that  of  preventing  hasty  action,  and  insuring 
I  elaborate  consideration — there  is  no  device  like  a  polity  of 
discussion. 

The  enemies  of  this  object — the  people  who  want  to  act 
quickly — see  this  very  distinctly.  They  are  forever  explaining 
that  the  present  is  "  an  age  of  committees,"  that  the  commit- 
tees do  nothing,  that  all  evaporates  in  talk.  Their  great  enemy 
is  parliamentary  government;  they  call  it,  after  Mr.  Carlyle, 
the  "  national  palaver  " ;  they  add  up  the  hours  that  are  con- 
sumed in  it,  and  the  speeches  which  are  made  in  it,  and  they 
sigh  for  a  time  when  England  might  again  be  ruled,  as  it  once 


PHYSICS    AND    POLITICS  119 

was,  by  a  Cromwell — that  is,  when  an  eager,  absolute  man 
might  do  exactly  what  other  eager  men  wished,  and  do  it  im- 
mediately. All  these  invectives  are  perpetual  and  many-sided ; 
they  come  from  philosophers,  each  of  whom  wants  some  new 
scheme  tried;  from  philanthropists,  who  want  some  evil 
abated;  from  revolutionists,  who  want  some  old  institution 
destroyed ;  from  new  eraists,  who  want  their  new  era  started 
forthwith.  And  they  all  are  distinct  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  so  much  evil. 

The  same  accusation  against  our  age  sometimes  takes  a 
more  general  form.  It  is  alleged  that  our  energies  are  dimin- 
ishing; that  ordinary  and  average  men  have  not  the  quick 
determination  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,  but  that  no  one  now 
so  acts.  And  I  hope  that  in  fact  this  is  true,  for  according  to 
me,  it  proves  that  the  hereditary  barbaric  impulse  is  decaying 
and  dying  out.  So  far  from  thinking  the  quality  attributed 
to  us  a  defect,  I  wish  that  those  who  complain  of  it  were  far 
more  right  than  I  much  fear  they  are.  Still,  certainly,  eager 
and  violent  action  is  somewhat  diminished,  though  only  by  a 
small  fraction  of  what  it  ought  to  be.  And  I  believe  that  this 
is  in  great  part  due,  in  England  at  least,  to  our  government 
by  discussion,  which  has  fostered  a  general  intellectual  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  view,  which  we  know  we  want, 
and  which  we  think  we  know  how  to  obtain,  we  can  act  well 
enough.  The  campaigns  of  our  soldiers  are  as  energetic  as 
any  campaigns  ever  were ;  the  speculations  of  our  merchants 
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  how  incomplete  these  old 
ideas  were ;  how  almost  by  chance  one  seized  on  one  nation, 


120 


BAGEHOT 


and  anotner  on  another ;  how  often  one  set  of  men  have  perse- 
cuted another  set  for  opinions  on  subjects  of  which  neither, 
we  now  perceive,  knew  anything.  It  might  be  well  if  a  greater 
number  of  effectual  demonstrations  existed  among  mankind; 
but  while  no  such  demonstrations  exist,  and  while  the  evidence 
which  completely  convinces  one  man  seems  to  another  trifling 
and  insufficient,  let  us  recognize  the  plain  position  of  inevit- 
able doubt.  Let  us  not  be  bigots  with  a  doubt,  and  persecu- 
tors without  a  creed.  We  are  beginning  to  see  this,  and  we  are 
railed  at  for  so  beginning.  But  it  is  a  great  benefit,  and  it  is 
to  the  incessant  prevalence  of  detective  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. 

This  is  one  of  the  unrecognized  benefits  of  free  government, 
one  of  the  modes  in  which  it  counteracts  the  excessive  inherited 
impulses  of  humanity.  There  is  another  also  for  which  it  does 
the  same,  but  which  I  can  only  touch  delicately,  and  which  at 
first  sight  will  seem  ridiculous.  The  most  successful  races, 
other  things  being  equal,  are  those  which  multiply  the  fastest. 
In  the  conflicts  of  mankind  numbers  have  ever  been  a  great 
power.  The  most  numerous  group  has  always  had  an  ad- 
vantage over  the  less  numerous,  and  the  fastest  breeding  group 
has  always  tended  to  be  the  most  numerous.  In  consequence, 
human  nature  has  descended  into  a  comparatively  unconten- 
tious  civilization,  with  a  desire  far  in  excess  of  what  is  needed ; 
with  a  "  felt  want,"  as  political  economists  would  say,  alto- 
gether greater  than  the  "  real  want."  A  walk  in  London  is 
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  spoiled 
lives,  how  many  broken  hearts,  how  many  wasted  bodies,  how 
many  ruined  minds,  how  much  misery  pretending  to  be  gay, 
how  much  gaiety  feeling  itself  to  be  miserable,  how  much 
after  mental  pain,  how  much  eating  and  transmitted  disease. 
And  in  the  moral  part  of  the  world,  how  many  minds  are  racked 
by  incessant  anxiety,  how  many  thoughtful  imaginations 
which  might  have  left  something  to  mankind  are  debased  to 
mean  cares,  how  much  every  successive  generation  sacrifices 
to  the  next,  how  little  does  any  of  them  make  of  itself  in  com- 


PHYSICS    AND    POLITICS 


121 


parison  with  what  might  be.  And  how  many  Irelands  have 
there  been  in  the  world  where  men  would  have  been  contented 
and  happy  if  they  had  only  been  fewer ;  how  many  more  Ire- 
lands  would  there  have  been  if  the  intrusive  numbers  had  not 
been  kept  down  by  infanticide  and  vice  and  misery.  How 
painful  is  the  conclusion  that  it  is  dubious  whether  all  the  ma- 
chines and  inventions  of  mankind  "  have  yet  lightened  the 
day's  labor  of  a  human  being."  They  have  enabled  more  peo- 
ple to  exist,  but  these  people  work  just  as  hard  and  are  just 
as  mean  and  miserable  as  the  elder  and  the  fewer. 

But  it  will  be  said  of  this  passion  just  as  it  was  said  of  the 
passion  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  tend  to  diminish  it — I 
think  it  does  and  may.  Xo  show  that  I  am  not  making  premises 
to  support  a  conclusion  so  abnormal,  I  will  quote  a  passage 
from  Mr.  Spencer,  the  philosopher  who  has  done  most  to  illus- 
trate this  subject  :— 

"  That  future  progress  of  civilization  which  the  never-ceas- 
ing pressure  of  population  must  produce,  will  be  accompanied 
by  an  enhanced  cost  of  Individuation,  both  in  structure  and 
function ;  and  more  especially  in  nervous  structure  and  func- 
tion. The  peaceful  struggle  for  existence  in  societies  ever 
growing  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  fountain  of  energy  for  men  who  have  to  hold  their 
places  and  rear  their  families  under  the  intensifying  competi- 
tion of  social  life,  is,  other  things  equal,  the  correlative  of 
larger  brain.  Those  higher  feelings  presupposed  by  the  better 
self-regulation  which,  in  a  better  society,  can  alone  enable  the 
individual  to  leave  a  persistent  posterity,  are,  other  things 
equal,  the  correlatives  of  a  more  complex  brain;  as  are  also 
those  more  numerous,  more  varied,  more  general,  and  more 
abstract  ideas,  which  must  also  become  increasingly  requisite 
for  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  tissue  and 


122 


BAGEHOT 


. 


greater  consumption  of  materials  to  repair  it.  So  that  both  in 
original  cost  of  construction  and  in  subsequent  cost  of  work- 
ing, the  nervous  system  must  become  a  heavier  tax  on  the 
organism.  Already  the  brain  of  the  civilized  man  is  larger 
by  nearly  thirty  per  cent,  than  the  brain  of  the  savage.  Al- 
ready, too,  it  presents  an  increased  heterogeneity — especially 
in  the  distribution  of  its  convolutions.  And  further  changes 
like  these  which  have  taken  place  under  the  discipline  of  civi- 
lized life,  we  infer  will  continue  to  take  place.  .  .  .  But 
everywhere  and  always,  evolution  is  antagonistic  to  procrea- 
tive  dissolution.  Whether  it  be  in  greater  growth  of  the 
organs  which  subserve  self-maintenance,  whether  it  be  in 
their  added  complexity  of  structure,  or  whether  it  be  in  their 
higher  activity,  the  abstraction  of  the  required  materials  im- 
plies a  diminished  reserve  of  materials  for  race-maintenance. 
And  we  have  seen  reason  to  believe  that  this  antagonism  be- 
tween Individuation  and  Genesis  becomes  unusually  marked 
where  the  nervous  system  is  concerned,  because  of  the  costli- 
ness of  nervous  structure  and  function.  In  §  346  was  pointed 
out  the  apparent  connection  between  high  cerebral  develop- 
ment and  prolonged  delay  of  sexual  maturity;  and  in  §§  366, 
367,  the  evidence  went  to  show  that  where  exceptional  fertility 
exists  there  is  sluggishness  of  mind,  and  that  where  there  has 
been  during  education  excessive  expenditure  in  mental  ac- 
tion, there  frequently  follows  a  complete  or  partial  infertility. 
Hence  the  particular  kind  of  further  evolution  which  Man  is 
hereafter  to  undergo  is  one  which,  more  than  any  other,  may 
be  expected  to  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- 
ticular cases  this  may  not  be  true ;  such  men  may  even  have 
many  children — they  may  be  men  in  all  ways  of  unusual  power 
and  vigor.  But  they  will  not  have  their  maximum  of  posterity 
— will  not  have  so  many  as  they  would  have  had  if  they  had 
been  careless  or  thoughtless  men ;  and  so,  upon  an  average, 
the  issue  of  such  intellectualized  men  will  be  less  numerous 
than  those  of  the  unintellectual. 

Now,  supposing  this  philosophical  doctrine  to  be  true — and 
the  best  philosophers,  I  think,  believe  it — its  application  to  the 


PHYSICS    AND    POLITICS  123 

case  in  hand  is  plain.  Nothing  promotes  intellect  like  intel- 
lectual discussion,  and  nothing  promotes  intellectual  discus- 
sion so  much  as  government  by  discussion.  The  perpetual  at- 
mosphere of  intellectual  inquiry  acts  powerfully,  as  everyone 
may  see  by  looking  about  him  in  London,  upon  the  constitu- 
tion both  of  men  and  women.  There  is  only  a  certain  quantum 
of  power  in  each  of  our  race ;  if  it  goes  in  one  way  it  is  spent, 
and  cannot  go  in  another.  The  intellectual  atmosphere  ab- 
stracts strength  to  intellectual  matters ;  it  tends  to  divert  that 
strength  which  the  circumstances  of  early  society  directed  to 
the  multiplication  of  numbers;  and  as  a  polity  of  discussion 
tends,  above  all  things,  to  produce^n-intellectual  atmosphere, 
the  two  things  which  seemed  so  far  off  have  been  shown  to  be 
near,  and  free  government  has,  in  a  second  case,  been  shown 
to  tend  to  cure  an  inherited  excess  of  human  nature. 

Lastly,  a  polity  of  discussion  not  only  tends  to  diminish 
our  inherited  defects,  but  also,  in  one  case  at  least,  to  augment 
a  heritable  excellence.  It  tends  to  strengthen  and  increased 
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  essay  to  elucidate  completely.  This 
quality  I  call  animated  moderation. 

If  anyone  were  asked  to  describe  what  it  is  which  distin- 
guishes the  writings  of  a  man  of  genius  who  is  also  a  great  man 
of  the  world  from  all  other  writings,  I  think  he  would  use 
these  same  words,  "  animated  moderation."  He  would  say 
that  such  writings  are  never  slow,  are  never  excessive,  are 
never  exaggerated;  that  they  are  always  instinct  with  judg- 
ment, and  yet  that  judgment  is  never  a  dull  judgment;  that 
they  have  as  much  spirit  in  them  as  would  go  to  make  a  wild 
writer,  and  yet  that  every  line  of  them  is  the  product  of  a 
sane  and  sound  writer.  The  best  and  almost  perfect  instance 
of  this  in  English  is  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  education 
and  a  vicious  age,  all  at  once  he  loses  himself  in  excesses. 
Still,  Homer,  and  Shakespeare  at  his  best,  and  Scott,  though 
in  other  respects  so  unequal  to  them,  have  this  remarkable 
quality  in  common — this  union  of  life  with  measure,  of  spirit 
with  reasonableness. 


I24  BAGEHOT 

In  action  it  is  equally  this  quality  in  which  the  English — 
at  least  so  I  claim  it  for  them — excel  all  other  nations.  There 
is  an  infinite  deal  to  be  laid  against  us,  and  as  we  are  unpopular 
with  most  others,  and  as  we  are  always  grumbling  at  ourselves, 
there  is  no  want  of  people  to  say  it.  But,  after  all,  in  a  certain 
sense,  England  is  a  success  in  the  world ;  her  career  has  had 
many  faults,  but  still  it  has  been  a  fine  and  winning  career 
upon  the  whole.  And  this  on  account  of  the  exact  possession 
of  this  particular  quality.  What  is  the  making  of  a  successful 
merchant  ?  That  he  has  plenty  of  energy,  and  yet  that  he  does 
not  go  too  far.  And  if  you  ask  for  a  description  of  a  great 
practical  Englishman,  you  will  be  sure  to  have  this,  or  some- 
thing like  it,  "  Oh,  he  has  plenty  of  go  in  him ;  but  he  knows 
when  to  pull  up."  He  may  have  all  other  defects  in  him ;  he 
may  be  coarse,  he  may  be  illiterate,  he  may  be  stupid  to  talk  to ; 
still  this  great  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  he  does  stop,  or  why  he  continued 
to  move  as  long  as  he,  in  fact,  moved ;  but  still,  as  by  a  rough 
instinct,  he  pulls  up  pretty  much  where  he  should,  though  he 
was  going  at  such  a  pace  before. 

There  is  no  better  example  of  this  quality  in  English  states- 
men than  Lord  Palmerston.  There  are,  of  course,  many  most 
serious  accusations  to  be  made  against  him.  The  sort  of  hom- 
age with  which  he  was  regarded  in  the  last  years  of  his  life  has 
passed  away;  the  spell  is  broken,  and  the  magic  cannot  be 
again  revived.  We  may  think  that  his  information  was  meagre, 
that  his  imagination  was  narrow,  that  his  aims  were  short- 
sighted and  faulty.  But  though  we  may  often  object  to  his 
objects,  we  rarely  find  much  to  criticise  in  his  means.  "  He 
went,"  it  has  been  said,  "  with  a  great  swing  " ;  but  he  never 
tumbled  over ;  he  always  managed  to  pull  up  "  before  there 
was  any  danger."  He  was  an  odd  man  to  have  inherited 
Hampden's  motto ;  still,  in  fact,  there  was  a  great  trace  in  him 
of  mediocria  firma — 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  more 
than,  any  other  multiplies  good  results  in  practical  life.  It 
enables  men  to  see  what  is  good ;  it  gives  them  intellect  enough 


PHYSICS    AND    POLITICS  125 

for  sufficient  perception ;  but  it  does  not  make  men  all  intel- 
lect; it  does  not  "sickly  them  o'er  with  the  pale  cast  of 
thought " ;  it  enables  them  to  do  the  good  things  they  see  to 
be  good,  as  well  as  to  see  that  they  are  good.  And  it  is  plain 
that  a  government  by  popular  discussion  tends  to  produce 
this  quality.  A  strongly  idiosyncratic  mind,  violently  disposed 
to  extremes  of  opinion,  is  soon  weeded  out  of  political  life, 
and  a  bodiless  thinker,  an  ineffectual  scholar,  cannot  even  live 
there  for  a  day.  A  vigorous  moderateness  in  mind  and  body 
is  the  rule  of  a  polity  which  works  by  discussion ;  and,  upon 
the  whole,  it  is  the  kind  of  temper  most  suited  to  the  active 
life  of  such  a  being  as  man  in  such  a  world  as  the  present  one. 

These  three  great  benefits  of  free  government,  though  great, 
are  entirely  secondary  to  its  continued  usefulness  in  the  mode 
in  which  it  originally  was  useful.  The  first  great  benefit  was 
the  deliverance  of  mankind  from  the  superannuated  yoke  of 
customary  law,  by  the  gradual  development  of  an  inquisitive 
originality.  And  it  continues  to  produce  that  effect  upon  per- 
sons apparently  far  remote  from  its  influence,  and  on  subjects 
with  which  it  has  nothing  to  do.  Thus  Mr.  Mundella,  a  most 
experienced  and  capable  judge,  tells  us  that  the  English 
artisan,  though  so  much  less  sober,  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  suggestions  from  him  than  from  any  other.) 

Again,  upon  plausible  grounds — looking,  for  example,  to 
the  position  of  Locke  and  Newton  in  the  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  which  makes 
them  strike  out  as  many,  if  not  more,  first-rate  and  original 
suggestions  than  nations  of  greater  scientific  culture  and  more 
diffused  scientific  interest.  In  both  cases  I  believe  the  reason 
of  the  English  originality  to  be  that  government  by  discus- 
sion quickens  and  enlivens  thought  all  through  society;  that 
it  makes  people  think  no  harm  may  come  of  thinking ;  that  in 
England  this  force  has  long  been  operating,  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  to  use  it  in  any 
other  way,  than  a  despotic  government.  And  so  rare  is  great 


I26  BAGEHOT 


originality  among  mankind,  and  so  great  are  its  fruits,  that  this 
one  benefit  of  free  government  probably  outweighs  what  are 
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." 


bdniob. 

ni   (i\  T 
•  roc»q-  o 


CHOICE  EXAMPLES   OF  CLASSIC  SCULPTURE. 


NIOBE  AND  HER  DA  UGHTER. 

Photo-engraving  from  the  original  marble  group  in  the  Uffip  Gallery  at  Florence. 

Niobe,  according  to  the  myth,  was  the  wife  of  Amphion,  King  of  Thebes,  and" 
the  happy  mother  of  seven  sons  and  seven  daughters.  Her  former  playmate,  Lato, 
[was  married  to  Jupiter,  and  when  the  worship  of  Lato  was  established  in  Thebes, 
Niobe,  forgetting  that  she  was  only  a  mortal,  drove  in  her  chariot  to  the  temple  and 
commanded  the  Theban  women  not  to  join  in  the  worship.  Niobe  also  asserted 
that  she  was  superior  to  Lato,  who  had  but  two  children,  while  she  had  fourteen. 
Out  of  revenge  Lato  induced  her  son,  Apollo,  the  god  of  the  Silver  Bow.  and 
Diana,  her  daughter,  famous  as  a  huntress,  to  descend  to  earth  and  slay  all 
the  children  of  Niobe.  In  1583  a  large  number  of  statues  representing  this  sub- 
ject were  found  in  Rome.  They  were  purchased  by  the  Grand  Duke  of  Tuscany, 
who  placed  them  in  the  Villa  Medici.  In  1775  they  were  removed  to  the  palace  of 
the  Uffizi  in  Florence.  The  group  at  present  comprises  fourteen  statues.  Niobe, 
clasping  her  youngest  child,  who  has' fled  to  her  for  protection,  is  the  central  figure. 
The  group  probably  once  adorned  the  pediment  of  a  temple  in  Greece.  It  has 
never  been  decided  whether  the  statues  were  the  work  of  Scopas  or  Praxiteles  or  the 
work  of  some  other  sculptor  in  imitation  of  their  respective  styles.  Nothing  is 
known  of  the  time  when  these  specimens  of  art  were  transported  from  Greece. 


CHAPTER  VI 

VERIFIABLE    PROGRESS    POLITICALLY    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  irKhVidual  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 
ft  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  natural — what  is  the  cause  or  set  of  causes  which 

127 


J28  BAGEHOT 

have  prevented  that  progress  in  the  vast  majority  of  cases,  and 
produced  it  in  the  feeble  minority.  But  there  is  a  preliminary 
difficulty:  What  is  progress,  and  what  is  decline?  Even  in  the 
animal  world  there  is  no  applicable  rule  accepted  by  physiolo- 
gists, which  settles  what  animals  are  higher  or  lower  than  others; 
there  are  controversies  about  it.  Still  more  then  in  the  more 
complex  combinations  and  politics  of  human  beings  it  is  likely 
to  be  hard  to  find  an  agreed  criterion  for  saying  which  nation  is 
before  another,  or  what  age  of  a  nation  was  marching  forward 
and  which  was  falling  back.  Archbishop  Manning  would  have 
one  rule  of  progress  and  decline;  Professor  Huxley,  in  most 
important  points,  quite  an  opposite  rule;  what  one  would  set 
down  as  an  advance  the  other  would  set  down  as  a  retreat.  Each 
has  a  distinct  end  which  he  wishes  and  a  distinct  calamity  which 
he  fears,  but  the  desire  of  the  one  is  pretty  near  the  fear  of  the 
other;  books  would  not  hold  the  controversy  between  them. 
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  could  any  common  inquirer 
venture  to  say  whether  he  was  right  or  wrong? 

I  am  afraid  that  I  must,  as  Sir  William  Hamilton  used  to  say, 
"  truncate  a  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  think  there  is  such  a  thing  as  "  verifiable  prog- 
*  ress,"  if  we  may  say  so ;  that  is,  progress  which  ninety-nine  hun- 
dredths  or  more  of  mankind  will  admit  to  be  such,  against  which 
there  is  no  established  or  organized  opposition  creed,  and  the 
objectors  to  which,  essentially  varying  in  opinion  themselves, 
and  believing  one  one  thing  and  another  the  reverse,  may  be 
safely  and  altogether  rejected. 

Let  us  consider  in  what  a  village  of  English  colonists  is  su- 
perior to  a  tribe  of  Australian  natives  who  roam  about  them. 
Indisputably  in  one,  and  that  a  main  sense,  they  are  superior. 
They  can  beat  the  Australians  in  war  when  they  like ;  they  can 
take  from  them  anything  they  like,  and  kill  any  of  them  they 
choose.  As  a  rule,  in  all  the  outlying  and  uncontested  districts 
of  the  world,  the  aboriginal  native  lies  at  the  mercy  of  the  in- 
truding 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  129 

The  English  have  all  manner  of  books,  utensils,  and  machines 
which  the  others  do  not  use,  value,  or  understand.  And  in 
addition,  and  beyond  particular  inventions,  there  is  a  general 
strength  which  is  capable  of  being  used  in  conquering  a  thou- 
sand difficulties,  and  is  an  abiding  source  of  happiness,  because 
those  who  possess  it  always  feel  that  they  can  use  it. 

If  we  omit  the  higher  but  disputed  topics  of  morals  and  relig- 
ion, we  shall  find,  I  think,  that  the  plainer  and  agreed-on  superi- 
orities of  the  Englishmen  are  these :  first,  that  they  have  a  greater  ^, 
command  over  the  powers  of  nature  upon  the  whole.  Though 
they  may  fall  short  of  individual  Australians  in  certain  feats  of 
petty  skill,  though  they  may  not  throw  the  boomerang  as  well, 
or  light  a  fire  with  earthsticks  as  well,  yet  on  the  whole,  twenty 
Englishmen  with  their  implements  and  skill  can  change  the  ma- 
terial world  immeasurably  more  than  twenty  Australians  and 
their  machines.  Secondly,  that  this  power  is  not  external  only  ^ 
it  is  also  internal.  The  English  not  only  possess  better  machines 
for  moving  nature,  but  are  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  man 
can  do,  and  is  ready  to  do,  better  and  more  precisely  than  the 
barbarian.  Thirdly,  civilized  man  not  only  has  greater  powers^ 
over  nature,  but  knows  better  how  to  use  them,  and  by  better 
I  here  mean  better  for  the  health  and  comfort  of  his  present  body 
and  mind.  He  can  lay  up  for  old  age,  which  a  savage  having  no 
durable  means  of  sustenance  cannot;  he  is  ready  to  lay  up  be- 
cause he  can  distinctly  foresee  the  future,  which  the  vague^ 
minded  savage  cannot;  he  is  mainly  desirous  of  gentle,  contin- 
uous pleasure,  whereas  the  barbarian  likes  wild  excitement,  and 
longs  for  stupefying  repletion.  Much,  if  not  all,  of  these  three 
ways  may  be  summed  up  in  Mr.  Spencer's  phrase,  that  progress 
is  an  increase  of  adaptation  of  man  to  his  environment,  that  is,  of 
his  internal  powerslinH^wishes  to  Tiis^xternal  lot  andlife.  Some- 
thing of  it  too  is  expressed  in  the  old  pagan  idea  "  mens  sana  in 
corpore  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  went  back  to  his  savage  tribe  and  said  that  he  had  "  tried 
9 


I3o  BAGEHOT 

civilization  for  forty  years,  and  it  was  not  worth  the  trouble." 
But  we  need  not  take  account  of  the  mistaken  ideas  of  unfit  men 
and  beaten  races.  On  the  whole  the  plainer  sort  of  civilization, 
the  simpler  moral  training,  and  the  more  elementary  education 
are  plain  benefits.  And  though  there  may  be  doubt  as  to  the 
edges  of  the  conception  yet  there  certainly  is  a  broad  road  of 
"  verifiable  progress  "  which  not  only  discoverers  and  admirers 
will  like,  but  which  all  those  who  come  upon  it  will  use  and 
value. 

Unless  some  kind  of  abstraction  like  this  is  made  in  the  sub- 
ject the  great  problem  "  What  causes  progress?  "  will,  I  am  con- 
fident, long  remain  unsolved.  Unless  we  are  content  to  solve 
simple  problems  first,  the  whole  history  of  philosophy  teaches 
that  we  shall  never  solve  hard  problems.  This  is  the  maxim  of 
scientific  humility  so  often  insisted  on  by  the  highest  inquirers 
that,  in  investigations,  as  in  life,  those  "  who  exalt  themselves 
shall  be  abased,  and  those  who  humble  themselves  shall  be  ex- 
alted;" and  though  we  may  seem  mean  only  to  look  for  the 
laws  of  plain  comfort  and  simple  present  happiness,  yet  we  must 
work  out  that  simple  case  first,  before  we  encounfer  the  incredi- 
bly harder  additional  difficulties  of  the  higher  art,  morals,  and 
religion. 

The  difficulty  of  solving  the  problem  even  thus  limited  is  ex- 
ceedingly great.  The  most  palpable  facts  are  exactly  the  con- 
trary to  what  we  should  expect.  Lord  Macaulay  tells  us  that 
"  In  every  experimental  science  there  is  a  tendency  towards  per- 
fection. In  every  human  being  there  is  a  tendency  to  ameliorate 
his  condition ; "  and  these  two  principles  operating  everywhere 
and  always,  might  well  have  been  expected  to  "  carry  mankind 
rapidly  forward."  Indeed,  taking  verifiable  progress  in  the  sense 
which  has  just  been  given  to  it,  we  may  say  that  nature  gives 
"*  a  prize  to  every  single  step  in  it.  Everyone  that  makes  an  in- 
vention that  benefits  himself  or  those  around  him,  is  likely  to  be 
more  comfortable  himself  and  to  be  more  respected  by  those 
around  him.  To  produce  new  things  "  serviceable  to  man's  life 
and  conducive  to  man's  estate,"  is,  we  should  say,  likely  to  bring 
increased  happiness  to  the  producer.  It  often  brings  immense 
reward  certainly  now ;  a  new  form  of  good  steel  pen,  a  way  of 
making  some  kind  of  clothes  a  little  better  or  a  little  cheaper, 
have  brought  men  great  fortunes.  And  there  is  the  same  kind 


PHYSICS    AND    POLITICS  131 

of  prize  for  industrial  improvement  in  the  earliest  times  as  in 
the  latest ;  though  the  benefits  so  obtainable  in  early  society  are 
poor  indeed  in  comparison  with  those  of  advanced  society.  Nat- 
ure is  like  a  schoolmaster,  at  least  in  this,  she  gives  her  finest 
prizes  to  her  high  and  most  instructed  classes.  Still,  even  in  the 
earliest  society,  nature  helps  those  who  can  help  themselves,  and 
helps  them  very  much. 

All  this  should  have  made  the  progress  of  mankind — progress 
at  least  in  this  limited  sense — exceedingly  common ;  but,  in  fact, 
any  progress  is  extremely  rare.  As  a  rule  (and  as  has  been  in- 
sisted on  before)  a  stationary  state  is  by  far  the  most  frequent 
condition  of  man,  as  far  as  history  describes  that  condition ;  the  . 
progressive  state  is  only  a  rare  and  an  occasional  exception. 

Before  history  began  there  must  have  been  in  the  nation  which 
writes  it  much  progress ;  else  there  could  have  been  no  history. 
It  is  a  great  advance  in  civilization  to  be  able  to  describe  the 
common  facts  of  life,  and  perhaps,  if  we  were  to  examine  it,  we 
should  find  that  it  was  at  least  an  equal  adv^irce~1xrwisfe-4Oxde-v 
scribe  them.  But  very  few  races  have  made  this  step  of  prog- 
ress; very  fe^v  have  been  capable  even  of  the  meanest  sort  of 
history;  and  as  for  writing  such  a  history  as  that  of  Thucydides, 
most  nations  could  as  soon  have  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. 

Why,  then,  have  not  the  obvious  and  natural  causes  of  prog- 
ress (as  we  should  call  them)  produced  those  obvious  and  natural 
effects  ?  Why  have  the  real  fortunes  of  mankind  been  so  different 
from  the  fortunes  which  we  should  expect?  This  is  the  problem 
which  in  various  forms  I  have  taken  up  in  these  papers,  and  this 
is  the  outline  of  the  solution  which  I  have  attempted  to  propose. 

The  progress  of  man  requires  the  co-operation  of  men  for  its 
development.  That  which  any  one  man  or  any  one  family  could 
invent  for  themselves  is  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,  that  isolated  man  (if  he  ever  existed  in  any  shape  which 
could  be  called  man)f4night  very  easily  have  ceased  to  exist. 
The  first  principk-eithe  subject  is  that  man  can  only  make  prog- 


I32  BAGEHOT 

ress  in  "co-operative  groups; "  I  might  say  tribes  and  nations, 
but  I  use  the  less  common  word  because  few  people  would  at 
once  see  that  tribes  and  nations  are  co-operative  groups,  and 
that  it  is  their  being  so  which  makes  their  value;  that  unless  you 
can  make  a  strong  co-operative  bond,  your  society  will  be  con- 
quered and  killed  out  by  some  other  society  which  has  such  a 
bond;  and  the  second  principle  is  that  the  members  of  such  a 
group  should  be  similar  enough  to  one  another  to  co-operate 
easily  and  readily  together.  The  co-operation  in  all  such  cases 
depends  on  a  felt  union  of  heart  and  spirit ;  and  this  is  only  felt 
when  there  is  a  great  degree  of  real  likeness  in  mind  and  feeling, 
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  strongest  yokes  (as  we 
should  think  if  it  were  to  be  reimposed  now)  and  the  most  terri- 
ble tyrannies  ever  known  among  men — the  authority  of  "  cus- 
tomary law."  In  its  earlier  stage  this  is  no  pleasant  power — no 
"  rose-water  "  authority,  as  Carlyle  would  have  called  it — but  a 
stern,  incessant,  implacable  rule.  And  the  rule  is  often  of  most 
childish  origin,  beginning  in  a  casual  superstition  or  local  acci- 
dent. "  These  people,"  says  Captain  Palmer  of  the  Fiji,  "  are 
very  conservative.  A  chief  was  one  day  going  over  a  mountain- 
path  followed  by  a  long  string  of  his  people,  when  he  happened 
to  stumble  and  fall;  all  the  rest  of  the  people  immediately  did  the 
same  except  one  man,  who  was  set  upon  by  the  rest  to  know 
whether  he  considered  himself  better  than  the  chief."  What  can 
be  worse  than  a  life  regulated  by  that  sort  of  obedience,  and  that 
sort  of  imitation?  This  is,  of  course,  a  bad  specimen,  but  the 
nature  of  customary  law  as  we  everywhere  find  it  in  its  earliest 
stages  is  that  of  coarse,  casual,  comprehensive  usage,  beginning, 
we  cannot  tell  how,  deciding,  we  cannot  tell  why,  but  ruling 
everyone  in  almost  every  action  with  an  inflexible  grasp. 
r^The  necessity  of  thus  forming  co-operative  groups  by  fixed 
|  customs  explains  the  necessity  of  isolation  in  early  society.  As 
a  matter  of  fact  all  great  nations  have  been  prepared  in  privacy 
and  in  secret.  They  have  been  composed  far  away  from  all  dis- 
traction. Greece,  Rome,  Judaea,  were  framed  each  by  itself,  and 
the  antipathy  of  each  to  men  of  different  race  and  different  speech 
is  one  of  their  most  marked  peculiarities,  and  quite  their  strong- 
est common  property.  And  the  instinct  of  early  ages  is  a  right 


PHYSICS    AND    POLITICS 


'33 


guide  for  the  needs  of  early  ages.  Intercourse  with  foreigners 
then  broke  down  in  states  the  fixed  rules  which  were  forming 
their  characters,  so  as  to  be  a  cause  of  weak  fibre  of  mind,  of  de- 
sultory and  unsettled  action;  the  living  spectacle  of  an  admitted 
unbelief  destroys  the  binding  authority  of  religious  custom  and 
snaps  the  social  cord. 

Thus  we  see  the  use  of  a  sort  of  "  preliminary  "  age  in  socie- 
ties, when  trade  is  bad  because  it  prevents  the  separation  of  na- 
tions, because  it  infuses  distracting  ideas  among  occupied  com- 
munities, because  it  "  brings  alien  minds  to  alien  shores."  And 
as  the  trade  which  we  now  think  of  as  an  incalculable  good  is  in 
that  age  a  formidable  evil  and  destructive  calamity ;  so  war  and 
conquest,  which  we  commonly  and  justly  see  to  be  now  evils, 
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.  Conquest  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  characters  which  do  win  in  war  are  the  j 
characters  which  we  should  wish  to  win  in  war. 

Similarly,  the  best  institutions  have  a  natural  military  advan- 
tage over  bad  institutions,  'the  first  great  victory  of  civilization 
was  the  conquest  of  nations  with  ill-defined  families  having  legal 
descent  through  the  mother  only,  by  nations  of  definite  families 
tracing  descent  through  the  father  as  well  as  the  mother,  or 
through  the  father  only.  Such  compact  families  are  a  much 
better  basis  for  military  discipline  than  the  ill-bound  families 
which  indeed  seem  hardly  to  be  families  at  all,  where  "  paternity  " 
is,  for  tribal  purposes,  an  unrecognized  idea,  and  where  only  the 
physical  fact  of  "  maternity  "  is  thought  to  be  certain  enough  to 
be  the  foundation  of  law  or  custom.  The  nations  with  a  thor- 
oughly compacted  family  system  have  "possessed  the  earth," 
that  is,  they  have  taken  all  the  finest  districts  in  the  most  com- 
peted-for  parts;  and  the  nations  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, 
and  that,  if  it  were  not  for  the  living  testimony  of  a  great  multi- 
tude of  scattered  communities  which  are  "  fashioned  after  the 


I34  BAGEHOT 

structure  of  the  elder  world,"  we  should  hardly  admit  the  possi- 
bility of  something  so  contrary  to  all  which  we  have  lived 
amongst  and  which  we  have  been  used  to  think  of.  After  such 
an  example  of  the  fragmentary  nature  of  the  evidence  it  is  in 
comparison  easy  to  believe  that  hundreds  of  strange  institutions 
may  have  passed  away  and  have  left  behind  them  not  only  no 
memorial,  but  not  even  a  trace  or  a  vestige  to  help  the  imagina- 
tion to  figure  what  they  were. 

I  cannot  expand  the  subject,  but  in  the  same  way  the  better 
religions  have  had  a  great  physical  advantage,  if  I  may  say  so, 
over  the  worse.  They  have  given  what  I  may  call  a  confidence  in 
the  universe.  The  savage  subjected  to  a  mean  superstition  is 
afraid  to  walk  simply  about  the  world — he  cannot  do  this  because 
it  is  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 

th  oiiavos  &purros  kptveaQai  vepl  irttrpijs, 

the  belief  of  the  Roman  that  he  was  to  trust  in  the  gods  of  Rome, 
for  those  gods  are  stronger  than  all  others ;  the  belief  of  Crom- 
well's soldiery  that  they  were  "  to  trust  in  God  and  keep  their 
powder  dry,"  are  great  steps  in  upward  progress,  using  progress 
in  its  narrowest  sense.  They  all  enabled  those  who  believed 
them  "  to  take  the  world  as  it  comes,"  to  be  guided  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  I  may  call  the  fortifying  religions,  that  is  to  say, 
those  which  lay  the  plainest  stress  on  the  manly  parts  of  morality 
— upon  valor,  on  truth  and  industry — have  had  plainly  the  most 
obvious  effect  in  strengthening  the  races  which  believed  them, 
and  in  making  those  races  the  winning  races. 

No  doubt  many  sorts  of  primitive  improvement  are  pernicious 
Ito  war;  an  exquisite  sense  of  beauty,  a  love  of  meditation,  a  ten- 
dency to  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  are  the  virtues  of  other  ages.  The  first  work  of  the  first 
ages  is  to  bind  men  together  in  the  strong  bond  of  a  rough, 
coarse,  harsh  custom;  and  the  incessant  conflict  of  nations  ef- 


PHYSICS    AND    POLITICS  135 

fects  this  in  the  best  way.  Every  nation  is  an  "  hereditary  co- 
operative group,"  bound  by  a  fixed  custom;  and  out  of  those 
groups  those  conquer  which  have  the  most  binding  and  most 
invigorating  customs,  and  these  are,  as  a  rough  rule,  the  best 
customs.  The  majority  of  the  "  groups  "  which  win  and  conquer 
are  better  than  the  majority  of  those  which  fail  and  perish,  and 
thus  the  first  world  grew  better  and  was  improved. 

This  early  customary  world  no  doubt  continued  for  ages.  The 
first  history  delineates  great  monarchies,  each  composed  of  a 
hundred  customary  groups,  all  of  which  believed  themselves  to 
be  of  enormous  antiquity,  and  all  of  which  must  have  existed 
for  very  many  generations.  The  first  historical  world  is  not  a 
new-looking  thing  but  a  very  ancient,  and  according  to  principle 
it  is  necessary  that  it  should  exist  for  ages.  If  human  nature  was 
to  be  gradually  improved,  each  generation  must  be  born  better 
tamed,  more  calm,  more  capable  of  civilization — in  a  word,  more 
legal  than  the  one  before  it,  and  such  inherited  improvements 
are  always  slow  and  dubious.  Though  a  few  gifted  people  niay 
advance  much,  the  mass  of  each  generation  can  improve  but  very 
little  on  the  generation  which  preceded  it;  and  even  the  slight 
improvement  so  gained  is  liable  to  be  destroyed  by  some  mys- 
terious atavism — some  strange  recurrence  to  a  primitive  past. 
Long  ages  of  dreary  monotony  are  the  first  facts  in  the  history 
of  human  communities,  but  those  ages  were  not  lost  to  man- 
kind, for  it  was  then  that  was  formed  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  the  great  majority  of  cases — the  progress  of 
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  how 
slowly,  and  in  how  few  cases  this  yoke  of  custom  was  removed. 
It  was  "  government  by  discussion  "  which  broke  the  bond  of 
ages  and  set  free  the  originality  of  mankind.  Then,  and  then 
only,  the  motives  which  Lord  Macaulay  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 


BAGEHOT 

he  is  pegged  down  by  ancient  usage;  then  the  tendency  in  each 
mechanical  art  towards  perfection  begins  to  have  force,  because 
the  artist  is  at  last  allowed  to  seek  perfection,  after  having  been 
forced  for  ages  to  move  in  the  straight  furrow  of  the  old  fixed 

way. 

As  soon  as  this  great  step  upwards  is  once  made,  all  or  almost 
all  the  higher  gifts  and  graces  of  humanity  have  a  rapid  and  a 
definite  effect  on  "  verifiable  progress  " — on  progress  in  the  nar- 
rowest, because  in  the  most  universally  admitted  sense  of  the 
term.  Success  in  life,  then,  depends,  as  we  have  seen,  more  than 
v  anything  else  on  "  animated  moderation,"  on  a  certain  combina- 
tion of  energy  of  mind  and  balance  of  mind,  hard  to  attain  and 
harder  to  keep.  And  this  subtle  excellence  is  aided  by  all  the 
finer  graces  of  humanity.  It  is  a  matter  of  common  observation 
that,  though  often  separated,  fine  taste  and  fine  judgment  go  very 
much  together,  and  especially  that  a  man  with  gross  want  of 
taste,  though  he  may  act  sensibly  and  correctly  for  a  while,  is  yet 
apt  to  break  out,  sooner  or  later,  into  gross  practical  error.  /  In 
metaphysics,  probably  both  taste  and  judgment  involve  wh&t  is 
termed  "  poise  of  mind,"  that  is  the  power  of  true  passiveness — 
the  faculty  of  "  waiting  "  till  the  stream  of  impressions,  whether 
those  of  life  or  those  of  art,  have  done  all  that  they  have  to  do, 
and  cut  their  full  type  plainly  upon  the  mind.  The  ill-judging 
and  the  untasteful  are  both  over-eager;  both  move  too  quick  and 
blur  the  image.  In  this  way  the  union  between  a  subtle  sense  of 
beauty  and  a  subtle  discretion  in  conduct  is  a  natural  one,  be- 
cause it  rests  on  the  common  possession  of  a  fine  power,  though, 
in  matter  of  fact,  that  union  may  be  often  disturbed.^A  complex 
sea  of  forces  and  passions  troubles  men  in  life  and  action,  which 
in  the  calmer  region  of  art  are  hardly  to  be  felt  at  all.  And, 
therefore,  the  cultivation  of  a  fine  taste  tends  to  promote  the 
function  of  a  fine  judgment,  which  is  a  main  help  in  the  complex 
world  of  civilized  existence.  Just  so  too  the  manner  in  which 
the  more  delicate  parts  of  religion  daily  work  in  producing  that 
"  moderation  "  which,  upon  the  whole,  and  as  a  rule,  is  essential 
to  long  success,  defining  success  even  in  its  most  narrow  and 
mundane  way,  might  be  worked  out  in  a  hundred  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  life,  which 


PHYSICS    AND    POLITICS 


137 


makes  both  men  and  nations  in  excessive  haste  to  be  rich  and 
famous,  often  makes  them  do  too  much  and  do  it  ill,  and  so  often 
leaves  them  at  last  without  money  and  without  respect. 

But  there  is  no  need  to  expand  this  further.  The  principle  is 
plain  that,  though  these  better  and  higher  graces  of  humanity 
are  impediments  and  encumbrances  in  the  early  fighting  period, 
yet  that  in  the  later  era  they  are  among  the  greatest  helps  and 
benefits,  and  that  as  soon  as  governments  by  discussion  have  be- 
come strong  enough  to  secure  a  stable  existence,  and  as  soon  as 
they  have  broken  the  fixed  rule  of  old  custom,  and  have  awak- 
ened the  dormant  inventiveness  of  men,  then,  for  the  first  time, 
almost  every  part  of  human  nature  begins  to  spring  forward,  and  \ 
begins  to  contribute  its  quota  even  to  the  narrowest,  even  to 
"  verifiable  "  progress.  And  this  is  the  true  reason  of  all  those  / 
panegyrics  on  liberty  which  are  often  so  measured  in  expression 
but  are  in  essence  so  true  to  life  and  nature.  Liberty  is  the 
strengthening  and  developing  power — the  light  and  heat  of 
political  nature;  and  when  some  "Csesarism"  exhibits  as  it  some- 
times will  an  originality  of  mind,  it  is  only  because  it  has  man- 
aged to  make  its  own  the  products  of  past  free  times  or  neighbor- 
ing free  countries;  and  even  that  originality  is  only  brief  and 
frail,  and  after  a  little  while,  when  tested  by  a  generation  or  two, 
in  time  of  need  it  falls  away. 

In  a  complete  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  the  most  wealth  and  the  most  "  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  is  on  these  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  curious  a  manner  such  great 
secrets  were  to  be  discovered.  And  many  nations,  therefore, 
which  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 


I38  BAGEHOT 

there  were  no  "  Bradshaw  "  and  no  one  knew  the  time  at  which 
trains  started,  a  man  who  caught  the  express  would  not  be  a 
wiser  or  a  more  business-like  man  than  he  who  missed  it,  and  yet 
he  would  arrive  whole  hours  sooner  at  the  capital  both  are  go- 
ing to.  And  unless  I  misread  the  matter,  such  was  often  the  case 
with  early  knowledge.  At  any  rate,  before  a  complete  theory  of 
"  verifiable  progress  "  could  be  made,  it  would  have  to  be  settled 
whether  this  is  so  or  not,  and  the  conditions  of  the  development 
of  physical  science  would  have  to  be  fully  stated ;  obviously  you 
cannot  explain  the  development  of  human  comfort  unless  you 
know  the  way  in  which  men  learn  and  discover  comfortable 
things.  Then  again,  for  a  complete  discussion,  whether  of  prog- 
ress or  degradation,  a  whole  course  of  analysis  is  necessary  as  to 
the  effect  of  natural  agencies  on  man,  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  discussion  upon  them  may 
bring  out  others  which  are  truer  and  better. 


0 


o 


I 


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JC 
179 


1900 
v.2 


Montesquieu,  Charles  Louis 

de  Second at,  baron  de  La  Brede 

et  de 

The  spirit  of  laws.   Rev.  ed.