ity is then unavoidable; and hence it proceeds that their chiefs are not despotic.
If what travellers tell us be true, the constitution of a nation of Louisiana, called the Natchez, is an exception to this. Their chief disposes of the goods of all his subjects, and obliges them to work and toil, according to his pleasure.^ He has a power like that of the grand seignior, and they cannot even refuse him their heads. When the presumptive heir enters the world, they devote all the sucking children to his service during his life. One would imagine that this is the great Sesostris. He is treated in his cottage with as much ceremony as an emperor of Japan or China.
18. — Of the Power of Superstition The prejudices of superstition are superior to all others, and have the strongest influence on the human mind. Thus, though the savage nations have naturally no knowledge of despotic tyranny, still they feel the weight of it. They adore the sun; and if their chief had not imagined that he was the brother of this glorious luminary, they would have thought him a wretch like themselves.
19. — Of the Liberty of the Arabs and the Servitude of the Tartars The Arabs and Tartars are nations of herdsmen and shep- herds. The Arabs find themselves in that situation of which we have been speaking, and are, therefore, free; whilst the Tar- tars (the most singular people on earth) are involved in a po- litical slavery.t^ I have already given reasons for this,c^ and shall now assign some others.
They have no towns, no forests, and but few marshes; their rivers are generally frozen, and they dwell in a level country of an immense extent. They have pasture for their herds and flocks, and consequently property; but they have no kind of retreat, or place of safety. A khan is no sooner overcome than they cut off his head; his children are treated in the same manner,^ and all his subjects belong to the conqueror. These h " Edifying Letters," 20th collection. e We ought not therefore to be astonc When a khan is proclaimed, all the ished at Mahomet, the son of Miriveis, people cry that his word shall be as a who, upon taking Ispahan, put all the sword. princes of the blood to the sword. d Book XVII. chap. 5.
28o MONTESQUIEU are not condemned to a civil slavery, for in that case they would be a burden to a simple people, who have no lands to cultivate, and no need of any domestic service. They, therefore, add to the bulk of the nation; but, instead of civil servitude, a political slavery must naturally be introduced amongst them.
It is apparent that in a country where the several clans make continual war, and are perpetually conquering each other; in a country where, by the death of the chief, the body politic of the vanquished clan is always destroyed, the nation in gen- eral can enjoy but little freedom; for there is not a single party that must not have been often subdued.
A conquered people may preserve some degree of liberty when, by the strength of their situation, they are in a state that will admit of capitulating after their defeat. But the Tartars, always defenceless, being once overcome can never be able to obtain conditions.
I have said, in chapter 2, that the inhabitants of cultivated plains are seldom free. Circumstances have occurred to put the Tartars, who dwell in uncultivated plains, in the same situ- ation.
20. — Of the Law of Nations as practised by the Tartars The Tartars appear to be mild and humane amongst them- selves; and yet they are most cruel conquerors: when they take cities they put the inhabitants to the sword, and imagine that they act humanely if they only sell the people, or dis- tribute them amongst their soldiers.
They have destroyed Asia, from India even to the Mediter- ranean; and all the country which forms the east of Persia they have rendered a desert.
The law of nations is owing, I think, to the following cause. These people having no towns, all their wars are carried on with eagerness and impetuosity. They fight whenever they hope to conquer; and when they have no such hope, they join the stronger army. With such customs, it is contrary to the law of nations that a city incapable of repelling their attack should stop their progress. They regard not cities as an asso- ciation of inhabitants, but as places made to bid defiance to their power. They besiege them without military skill, and ex- THE SPIRIT OF LAWS 281 pose themselves greatly in the attack; and, therefore, revenge themselves on all those who have spilled their blood.
21. — The Civil Law of the Tartars Father Du Halde says that amongst the Tartars the young- est of the males is always the heir, by reason that as soon as the elder brothers are capable of leading a pastoral life they leave the house with a certain number of cattle, given them by their father, and build a new habitation. The last of the males, who continues at home with the father, is then his natural heir.
I have heard that a like custom was also observed in some small districts of England; and we find it still in Brittany, in the Duchy of Rohan, where it obtains with regard to ignoble tenures. This is doubtless a pastoral law conveyed thither by some of the people of Britain, or established by some German nation. By Caesar and Tacitus we are informed that the latter cultivated but little land.
22. — Of a Civil Law of the German Nations I shall here explain how that particular passage of the Salic law which is commonly distinguished by the term " the Salic law " relates to the institutions of a people who do not cultivate the earth, or at least who cultivate it but very little.
The Salic law ordains/^ that when a man has left children be- hind him, the males shall succeed to the Salic land in prefer- ence to the females.
To understand the nature of those Salic lands, there needs no more than to search into the usages or customs of the Franks with regard to lands before they left Germany.
Mr. Echard has very plainly proved that the word Salic is derived from Sala, which signifies a house; and, therefore, that the Salic land was the land belonging to the house. I shall proceed further, and examine into the nature of the house, and of the land belonging to the house, among the Germans.
" They dwell not in towns," says Tacitus, " nor can they bear to have their habitations contiguous to those of others; every one leaves a space or small piece of ground about his 282 MONTESQUIEU house, which is inclosed.''^ Tacitus is very exact in this ac- count, for many laws of the barbarian codes have different decrees against those who threw down this inclosure, as well as against such as broke into the housed We learn from Tacitus and Caesar that the lands cultivated by the Germans were given them only for the space of a year, after which they again became public. They had no other patrimony but the house and a piece of land within the in- closure that surrounded it.i It was this particular patrimony which belonged to the males. And, indeed, how could it be- long to the daughters? They were to pass into another habi- tation.
The Salic land was then within that inclosure which be- longed to a German house; this was the only property they had. The Franks, after their conquests, acquired new posses- sions, and continued to call them Salic lands.
When the Franks lived in Germany their wealth consisted of slaves, flocks, horses, arms, etc. The habitation and the small portion of land adjoining it were naturally given to the male children who were to dwell there. But afterwards when the Franks had by conquest acquired large tracts of land, they thought it hard that the daughters and their children should be incapable of enjoying any part of them. Hence it was that they introduced a custom of permitting the father to settle the estate after his death upon his daughter, and her children. They silenced the law; and it appears that these settlements were frequent, since they were entered in the formularies./ Amongst these formularies I find one of a singular nature.^ A grandfather ordained by will that his grandchildren should share his inheritance with his sons and daughters. What then became of the Salic law? In those times either it would not be observed, or the continual use of nominating the daughters to an inheritance had made them consider their ability to succeed as a case authorized by custom.
g " Nullas Germanorum populis urbes i This inclosure is called " Cortis " in habitari satis notum est, ne pati quidem the charters.
inter se junctas sedes; colunt discreti, /See Marculfus, lib. II. form. lo and ut nemus placuit. Vicos locant, non in 12, Append, to Marculf. form. 49, and nostrum morem connexis et cohaerenti- the ancient formularies of " Sirmonbus asdificiis: suam quisque domum dus," form. 22.
manorum." tion.
h The " Law of the Alemans," chap. X., and the " Law of the Bavarians," THE SPIRIT OF LAWS 283 The Salic law had not in view a preference of one sex to the other, much less had it a regard to the perpetuity of a family, a name, or the transmission of land. These things did not enter into the heads of the Germans; it was purely an econom- ical law, which made the house and the land dependent thereon to the males who should dwell in it, and to whom it conse- quently was of most service.
We need here only transcribe the title of the allodial lands of the Salic law; that famous text of which so many have talked, and which so few have read.
" I. If a man dies without issue, his father or mother shall succeed him. 2. If he has neither father nor mother, his brother or sister shall succeed him. 3. If he has neither brother nor sister, the sister of his mother shall succeed him. 4. If his mother has no sister, the sister of his father shall suc- ceed him. 5. If his father has no sister, the nearest relative by the male side shall succeed. 6. Not any part of the Salic land shall pass to the females; but it shall belong to the males; that is, the male children shall succeed their father." I It is plain that the first live articles relate to the inheritance of a man who dies without issue; and the sixth to the succes- sion of him who has children.
When a man dies without children, the law ordains that neither of the two sexes shall have the preference to the other, except in certain cases. In the first two degrees of succession, the advantages of the males and females were the same; in the third and fourth, the females had the preference; and the males in the fifth.
Tacitus points out the source of these extravagances. " The sister's children," says he, " are as dear to their uncle as to their own father. There are men who regard this degree of kindred as more strict, and even more holy. They prefer it when they receive hostages."^ Hence it proceeds that our earliest his- torians speak in such strong terms of the love of the kings of the Franks for their sisters and their sisters' children.w And, / " De terra vero Salica in muHerem nexum sanguinis arbitrantur, et in acnulla portio hereditatis transit, sed hoc cipiendis obsidibus magis exigunt, tanyirilis sexus acquirit, hoc est filii in quam ii et animum firmius et domum ipsa hereditate succedunt."— Tit. 62, latius teneant."— " De Moribus Gersec. 6. manorum."
m " Sororum filiis idem apud avun- n See, in " Gregory of Tours," lib.
culum quam apud patrem honor. Qui- VIII. chap, xviii. ana xx., and lib. XI.
dam sanctiorem arctioremque hunc chap. xvi. and xx., the rage of Gontram 284 MONTESQUIEU indeed, if the children of the sister were considered in her brother's house as his own children, it was natural for these to regard their aunt as their mother.
The sister of the mother was preferred to the father's sister; this is explained by other texts of the Salic law. When a woman became a widow,^ she fell under the guardianship of her husband's relatives; the law preferred to this guardianship the relatives by the females before those by the males. Indeed, a woman who entered into a family joining herself with those of her own sex, became more united to her relatives by the female than by the male. Moreover, when a man killed another, and had not wherewithal to pay the pecuniary penalty, the law per- mitted him to deliver up his substance and his relatives were to supply the deficiency./' After the father, mother, and brother, the sister of the mother was to pay, as if this tie had something in it most tender: now the degree of kindred which imposes the burdens ought also to confer the advantages.
The Salic law enjoins that after the father's sister, the suc- cession should be held by the nearest relative male; but if this relative was beyond the fifth degree, he should not inherit. Thus a female of the fifth degree might inherit to the prejudice of a male of the sixth; and this may be seen in the law of the Ripuarian Franks (a faithful interpreter of the Salic law), un- der the title of allodial lands, where it closely adheres to the Salic law on the same subject.?
If the father left issue, the Salic law would have the daughters excluded from the inheritance of the Salic land, and deter- mined that it should belong to the male children.
It would be easy for me to prove that the Salic law did not absolutely exclude the daughters from the possession of the Salic land, but only in the case where they were debarred by their brothers, i. This appears from the letter of the Salic law; which, after having said that the women shall possess none of the Salic land, but only the males, interprets and restrains itself by adding, " that is, the son shall succeed to the inheritance of the father."
2. The text of the Salic law is cleared up by the law of the at Leovigild's ill treatment of Ingunda, p Ibid. tit. 61, sec. i.
his niece, which Childebert, her brother, q " Et deinceps usque ad quintum took up arms to revenge. genuculum qui proximus fuerit in o Salic law, tit. 47. hereditatem succedat." — Tit. 56, sec. 3.
THE SPIRIT OF LAWS 285 Ripuarian Franks, which has also a title on allodial lands very conformable to that of the Salic law.^ 3. The laws of these barbarous nations who all sprang from Germany interpret each other, more particularly as they all have nearly the same spirit. The Saxon law enjoined the father and mother to leave their inheritance to their son, and not to their, daughter; but if there were none but daughters, they were to have the whole inheritance.^ 4. We have two ancient formularies t that state the case in which, according to the Salic law, the daughters were excluded by the males; that is, when they stood in competition with their brother.
5. Another formulary u proves that the daughter succeeded, to the prejudice of the grandson; she was, therefore, excluded only by the son.
6. If daughters had been generally debarred by the Salic law from the inheritance of land, it would be impossible to ex- plain the histories, formularies, and charters which are continu- ally mentioning the lands and possessions of the females un- der the first race.
People have been wrong in asserting that the Salic lands were fief s.^ i. This head is distinguished by the title of allodial lands. 2. Fiefs at first were not hereditary. 3. If the SaHc lands had been fiefs, how could Marculfus treat that custom as impious which excluded the women from inheriting, when the males themselves did not succeed to fiefs? 4. The charters which have been cited to prove that the Salic lands were fiefs only show that they were freeholds. 5. Fiefs were not estab- lished till after the conquest, and the SaHc customs existed long before the Franks left Germany. 6. It was not the SaHc law that formed the establishment of fiefs, by setting bounds to the succession of females; but it was the establishment of fiefs that prescribed limits to the succession of females, and to the regulations of the Salic law.
After what has been said, one would not imagine that the per- petual succession of males to the crown of France should have rTit. s6. tin Marculfus, lib. II. form. 12, and J Ibid., 7, sec. i: " Pater aut mater de- in the Appendix to Marculfus, form. 49.
functi, filio non filiae hereditatem re- u Lindembroch's collection, form. 55.
linquant '*; sec. 4, " qui defunctus, non v Ducange, Pithou, etc.
filios, sed filias reliquerit, ad eas omnis hcrcditas pcrtineat.
286 MONTESQUIEU taken its rise from the Salic law. And yet this is a point in- dubitably certain. I prove it from the several codes of the barbarous nations. The Salic law,w and the law of the Bur- gundians,^ debarred the daughters from the right of succeed- ing to the land in conjunction with their brothers; neither did they succeed to the crown. The law of the VisigothSj^ on the contrary, permitted the daughters to inherit the land with the brothers: z and the women were capable of inheriting the crown. o Amongst these people the regulations of the civil law had an effect on the political.
This was not the only case in which the political law of the Franks gave way to the civil. By the Salic law, all the brothers succeeded equally to the land, and this was also decreed by a law of the Burgundians. Thus, in the kingdom of the Franks, and in that of the Burgundians, all the brothers succeeded to the crown, if we except a few murders and usurpations which took place amongst the Burgundians. - 23. — Of the regal Ornaments among the Franks A people who do not cultivate the land have no idea of lux- ury. We may see, in Tacitus, the admirable simplicity of the German nations: they had no artificial elegances of dress; their ornaments were derived from nature. If the family of their chief was to be distinguished by any sign, it was no other than that which nature bestowed. The kings of the Franks, of the Burgundians, and the Visigoths wore their long hair for a diadem.
24. — Of the Marriages of the Kings of the Franks I have already mentioned that with people who do not cul- tivate the earth, marriages are less fixed than with others, and that they generally take many wives. " Of all the barbarous na- tions the Germans were almost the only people who were satw Tit. 62. might have held the crown in their own jr Tit. I, sec. 3; tit. 14, sec. i; and tit. right; for Amalasuntha reigned after 51. the death of Athalaricus; nay, even afy Lib. IV. tit. 2, sec. i. ter the election of Theodat, and in cons Among the Ostrogoths, the crown junction with that prince. See Amatwice devolved to the males by means lasuntha's and Theodat's letters, in of females; the first time to Athalaricus, " Cassiodorus," lib. X.
through Amalasuntha, and the second a The German nations, says Tacitus, to Theodat, through Amalafreda, Not had common customs, as well as those but that the females of that nation which were peculiar to each.
THE SPIRIT OF LAWS 287 isfied with one wiiefi if we except," says Tacitus, " some persons who, not from a dissoluteness of manners, but because of their nobiHty, had many.'V This explains the reason why the kings of the first race had so great a number of wives. These marriages were less a proof of incontinence than a consequence of dignity: and it would have wounded them in a tender point to have deprived them of such a prerogative.^ This also explains the reason why the example of the kings was not followed by the subjects.
25. — Childeric 25. — Childeric " The laws of matrimony amongst the Germans," says Taci- tus, " are strictly observed. Vice is not there a subject of ridicule. To corrupt or be corrupted is not called fashion, or the custom of the age: e there are few examples in this populous nation of the violation of conjugal faith."/^ This was the reason of the expulsion of Childeric: he shocked their rigid virtue, which conquest had not had time to corrupt.
26. — Of the Time when the Kings of the Franks became of age Barbarians who do not cultivate the earth have strictly speaking, no jurisdiction, and are, as we have already remem- bered, rather governed by the law of nations than by civil in- stitutions. They are, therefore, always armed. Thus Tacitus tells us " that the Germans undertook no affairs either of a public or private nature unarmed."^: They gave their vote by the sound of their arms./^ As soon as they could carry them, they were presented to the assembly; i they put a javelin into their hands; / and from that moment they were out of their min- ority: they had been a part of the family, now they became a part of the republic.^ b " Prope soli Barbarorum singulis g " Nihil neque publicae neque priuxoribus contenti sunt." — " De Moribus vatae rei nisi armati agunt." — Ibid.
Germanorum." h " Si displicuit sententia, fremitu c " Exceptis admodum paucis qui non aspernantur; sin placuit, frameas conlibidine, sed ob nobilitatem, plurimis cutiunt." — Ibid, nuptiis ambiuntur." — Ibid. t " Sed arma sumere non ante cuid See Fredegarius's " Chronicle of the quam moris, quam civitas suffecturum Year 628." probaverit."
e " Severa matrimonia nemo illic; " Turn in ipso concilio vel princivitia ridet, nee corrumpere et corrumpi pum aliquis, vel pater, vel propinquus, sseculum vocatur."— " De Moribus Ger- scuto, frameaque juvenem ornant.'
manorum." k " Hsec apud illos toga, hie primus / " Paucissima in tam numerosa gente juventae honos; ante hoc domus pars adulteria." — Ibid. videntur, mox reipublicse."
288 MONTESQUIEU " The eagles," said the King of the Ostrogoths,/ " cease to feed their young ones as soon as their wings and talons are formed; the latter have no need of assistance when they are able themselves to seize their prey: it would be a disgrace if the young people in our armies were thought to be of an age un- fit for managing their estates or regulating the conduct of their lives. It is virtue that constitutes full age among the Goths."
Childebert II was fifteen years old when Gontram, his uncle, declared that he was of age, and capable of governing by him- self.w We find in the Ripuarian laws that the age of fifteen, the ability of bearing arms and majority, went together. It is there said n " that if a Ripuarian dies, or is killed, and leaves a son behind him, that son can neither prosecute, nor be prose- cuted, till he has completely attained the age of fifteen; and then he may either answer for himself or choose a champion." It was necessary that his mind should be sufficiently formed to be able to defend himself in court; and that his body should have all the strength that was proper for his defence in single combat. Amongst the Burgundians,o who also made use of this combat in their judiciary proceedings, they were of age at fifteen.
Agathias tells us that the arms of the Franks were Hght: they might, therefore, be of age at fifteen. In succeeding times the arms they made use of were heavy, and they were already greatly so in the time of Charlemagne, as appears by our capit- ularies and romances. Those who had fiefs,/' and were conse- quently obliged to do military sefrvice, were not then of age till they were twenty-one years old.9 27. — The same Subject continued We have seen that the Germans did not appear in their as- semblies before they were of age; they were a part of the family, but not of the republic. This was the reason that the children of Clodomir, King of Orleans, and conqueror of Bur- gundy, were not proclaimed kings, because they were of too / Theodoric in " Cassiod." lib. I. ep. n Tit. 81.
m He was scarcely five years old, says p There was no change in the time " Gregory of Tours," lib. V. cap. i., with regard to the common people, when he succeeded to his father, in the g St. Louis was not of age till t\yentyyear 575. Gontram declared him of age one; this was altered by an edict of in the year 585; he was, therefore, at Charles V in the year 1374. that time no more than fifteen.
THE SPIRIT OF LAWS 289 tender an age to be present at the assembly. They were not yet kings, but they had a right to the regal dignity as soon as they were able to bear arms; and in the meantime, Clotilda, their grandmother, governed the state. >' But their uncles, Clotaire and Childebert, assassinated them, and divided their kingdom. This was the cause that in the following ages princes in their minority were proclaimed kings immediately after the death of their fathers. Thus Duke Gondovald saved Childebert II from the cruelty of Chilperic, and caused him to be pro- claimed king when he was only five years old.^ But even in this change they followed the original spirit of the nation; for the public acts did not pass in the name of the young monarch. So that the Franks had a double administra- tion: the one which concerned the person of the infant king, and the other which regarded the kingdom; and in the fiefs there was a difiference between the guardianship and the civil administration.
28. — Of Adoption among the Germans As the Germans became of age by the wielding of arms, so they were adopted by the same sign. This Gontram, willing to declare his nephew Childebert of age and to adopt him for his son, made use of these words: " I have put this javelin into thy hands as a token that I have given thee all my kingdom."^ Then, turning towards the assembly, he added, " You see that my son Childebert is grown a man; obey him." Theodoric, King of the Ostrogoths, intending to adopt the King of the Heruli, wrote to him thus: w " It is a noble custom of ours to be adopted by arms; for men of courage alone deserve to be our children. Such is the efificacy of this act, that whoever is the ob- ject of it had rather die than submit to anything ignominious. Therefore, in compliance with the national usage, and because you are a man of courage, we adopt you for our son by these bucklers, these swords, these horses, which we send you as a present."
fit appears from "Gregory of 5 " Gregory of Tours," lib. V. cap. i.: Tours," lib. III., that she chose two " vix lustro setatis uno jam peracto qui natives of Burgundy, which had been die Dominicae Natalis regnare coeptt?'
conquered by Clodomir, to raise them t See " Gregory of Tours," lib. VII.
to the see of Tours, which also belonged cap. xxiii.
to Clodomir. u In " Cassiod." lib. IV. ep. 2.
290 MONTESQUIEU 29. — Of the sanguinary Temper of the Kings of the Franks Clovis was not the only prince amongst the Franks who had invaded Gaul. Many of his relatives had penetrated into this country with particular tribes; but as he had met with much greater success, and could grant considerable settlements to such as followed him, the Franks flocked to him from all parts, so that the other chiefs found themselves too weak to resist him. He formed a design of exterminating his whole house, and he succeeded.'z^ He feared, says Gregory of Tours,w lest the Franks should choose another chief. His children and succes- sors followed this practice to the utmost of their power. Thus the brother, the uncle, the nephew, and, what is still worse, the father or the son, were perpetually conspiring against their whole family. The law continually divided the monarchy; while fear, ambition, and cruelty wanted to reunite it.
30. — Of the national Assemblies of the Franks It has been remarked above that nations who do not cul- tivate the land enjoy great liberty.
This was the case of the Germans. Tacitus says that they gave their kings, or chiefs, a very moderate degree of power; x and Caesar adds further that in times of peace they had no com- mon magistrates; but their princes administered justice in each village.^ Thus, as Gregory of Tours^ sufficiently proves, the Franks in Germany had no king.
" The princes," says Tacitus, " deliberate on matters of no great concern; while affairs of importance are submitted to the whole nation, but in such a manner that these very afifairs which are under the cognizance of the people are at the same time laid before the princes. "o This custom was observed by them after their conquests, as may be seen in all their records.^ Tacitus says that capital crimes might be carried before the V " Gregory of Tours," lib. II. 2 Lib. II.
«/ Ibid. a " De minoribus principes con- *• " Nee Regibus libera aut infinita sultant, de majoribus omnes; ita tamen potestas. Caeterum neque animadver- ut ca quorum penes plebem arbitrium tere, neque vincire, neque verberare," est, apud principes pertractentur." — etc. — " De Moribus Germanorum." " De Moribus Germanorum."
y " In pace nullus est communis h " Lex consensu Populi fit et conmagistratus, sed principes regionum stitutione Regis." — " Capitularies of atque pagorum inter suos jus dicunt." Charles the Bald," anno 864, art. 6. -•* De Bello Gall." lib. VI.
THE SPIRIT OF LAWS 291 assembly.<^ It was the same after the conquest, when the great vassals were tried before that body.
31. — Of the Authority of the Clergy under the first Race The priests of barbarous nations are commonly invested with power, because they have both that authority which is due to them from their religious character, and that influence which amongst such a people is the offspring of superstition. Thus we see in Tacitus that priests were held in great veneration by the Germans, and that they presided in the assemblies of the people.^ They alone were permitted e to chastise, to bind, to smite; which they did, not by order of the prince, or as his ministers of justice, but as by an inspiration of that Deity ever supposed to be present with those who made war.
We ought not, therefore, to be astonished when, from the very beginning of the first race, we meet with bishops the dis- pensers of justice; f when we see them appear in the assemblies of the nation; when they have such a prodigious influence on the minds of sovereigns; and when they acquire so large a share of property.g c " Licet apud Concilium accusare et velut Deo imperante, quern adesse beldiscrimen capitis intendere." — " De Mo- latoribus credunt." — Ibid,