ribus Germanorum." f See the " Constitutions of Clotaire " d " Silentium per sacerdotes, quibus in the year 560, art. 6.
et coercendi jus est, imperatur."— Ibid. g The last ten chapters of this book, e " Nee Regibus libera aut infinita reunited in Books XXVIII., XXX., potestas. Caeterum neque animadver- and XXXI., form a complete treatise tere, neque vincire, neque verberare, upon the origin and early ages of the nisi sacerdotibus est permissum, non French monarchy, and they should be quasi in poenam, nee Ducis jussu, sed thus read to be understood.— Ed.
BOOK XIX OF LAWS IN RELATION TO THE PRINCIPLES WHICH FORM THE GENERAL SPIRIT, THE MORALS, AND CUSTOMS OF A NATION I. — Of the Subject of this Book THIS subject is very extensive. In that crowd of ideas which presents itself to my mind, I shall be more at- tentive to the order of things than to the things them- selves. I shall be obliged to wander to the right and to the left, that I may investigate and discover the truth.
2. — That it is necessary People's Minds should he prepared for the Reception of the best Laws Nothing could appear more insupportable to the Germans than the tribunal of Varus.^ That which Justinian h erected amongst the Lazi, to proceed against the murderers of their king, appeared to them as an affair most horrid and barbarous. Mithridates,c haranguing against the Romans, reproached them more particularly for their law proceedings.c^ The Parthians could not bear with one of their kings who, having been educated at Rome, rendered himself affable and easy of access to all.^ Liberty itself has appeared intolerable to those nations who have not been accustomed to enjoy it. Thus pure air is sometimes disagreeable to such as have lived in a fenny country.
Balbi, a Venetian, being at Pegu, was introduced to the king.^ When the monarch was informed that they had no king a They cut out the tongues of the ad- e " Prompti aditus, nova comitas, igvocates, and cried, " Viper, don't hiss." notse Partnis virtutes, nova vitia."— —Tacitus. Tacitus.
b Agathias, lib. IV. f He has described this interview, c Justin, lib. XXXVITI. which happened in 1596, in the " Cold " CsHimnias litium."— Justin, lib. lection of Voyages for the establish- XXXVIII. ment of an India Company," vol. iii.
THE SPIRIT OF LAWS at Venice, he burst into such a fit of laughter that he was seized with a cough, and with difficulty could speak to his courtiers. What legislator could propose a popular govern- ment to a people like this?
3. — Of Tyranny There are two sorts of tyranny: one real, which arises from oppression; the other is seated in opinion, and is sure to be left whenever those who govern estabhsh things shocking to the existing ideas of a nation.
Diog tells us that Augustus was desirous of being called Romulus; but having been informed that the people feared that he would cause himself to be crowned king, he changed his design. The old Romans were averse to a king, because they could not suffer any man to enjoy such power; these would not have a king, because they could not bear his man- ners. For though Caesar, the Triumvirs, and Augustus were really invested with regal power, they had preserved all the out- ward appearance of equality, while their private lives were a kind of contrast to the pomp and luxury of foreign monarchs; so that when the Romans were resolved to have no king, this only signified that they would preserve their customs, and not imitate those of the African and Eastern nations.
The same writer informs us that the Romans were exas- perated against Augustus for making certain laws which were too severe; but as soon as he had recalled Pylades, the come- dian, whom the jarring of different factions had driven out of the city, the discontent ceased. A people of this stamp have a more lively sense of tyranny when a player is banished than when they are deprived of their laws.
4. — Of the general Spirit of Mankind Mankind are iftfoerrced by various causes: by the climate, by the religion, by the laws, by the maxims of government, by precedents, morals, and customs; whence is formed a general spirit of nations.
In proportion as, in every country, any one of these causes acts with more force, the others in the same degree are weakg Book LIV. 532.
294 MONTESQUIEU ened. Nature and the climate rule almost alone over the sav- ages; customs govern the Chinese; the laws tyrannize in Japan; morals had formerly all their influence at Sparta; maxims of government, and the ancient simplicity of manners, once prevailed at Rome.
5. — How far we should he attentive lest the general Spirit of a Nation he changed Should there happen to be a country whose inhabitants were of a social temper, open-hearted, cheerful, endowed with taste and a faciHty in communicating their thoughts; who were sprightly and agreeable; sometimes imprudent, often indis- creet; and besides had courage, generosity, frankness, and a certain notion of honor, no one ought to endeavor to restrain their manners by laws, unless he would lay a constraint on their virtues. If in general the character be good, the little foibles that may be found in it are of small importance.
They might lay a restraint upon women, enact laws to re- form their manners and to reduce their luxury, but who knows but that by these means they might lose that peculiar taste which would be the source of the wealth of the nation, and that politeness which would render the country frequented by strangers?
It is the business of the legislature to follow the spirit of the nation, when it is not contrary to the principles of government; for we do nothing so well as when we act with freedom, and follow the bent of our natural genius.
If an air of pedantry be given to a nation that is naturally gay, the state will gain no advantage from it, either at home or abroad. Leave it to do frivolous things in the most serious manner, and with gayety the things most serious.
6. — That Everything ought not to he corrected Let them but leave us as we are, said a gentleman of a nation which had a very great resemblance to that we have been de- scribing, and nature will repair whatever is amiss. She has given us a vivacity capable of ofifending, and hurrying us be- yond the bounds of respect: this same vivacity is corrected THE SPIRIT OF LAWS 295 by the politeness it procures, inspiring us with a taste of the world, and, above all, for the conversation of the fair sex.
Let them leave us as we are; our indiscretions joined to our good nature would make the laws which should constrain our sociability not at all proper for us.
7. — Of the Athenians and Lacedcemonians The Athenians, this gentleman adds, were a nation that had some relation to ours. They mingled gayety with business; a stroke of raillery was as agreeable in the senate as in the theatre. This vivacity, which discovered itself in their councils, went along with them in the execution of their resolves. The character of the Spartans was one of gravity, seriousness, severity, and silence. It would have been as difficult to bring over an Athenian by teasing as it would a Spartan by diverting him.
8. — Effects of a sociable Temper The more communicative a people are the more easily they change their habits, because each is in a greater degree a spec- tacle to the other, and the singularities of individuals are better observed. The climate which influences one nation to take pleasure in being communicative, makes it also delight in change, and that which makes it delight in change forms its taste.
The society of the fair sex spoils the manners and forms the taste; the desire of giving greater pleasure than others estab- Hshes the embelHshments of dress; and the desire of pleasing others more than ourselves gives rise to fashions. This fash- ion is a subject of importance; by encouraging a trifling turn of mind, it continually increases the branches of its commerce./* 9. — Of the Vanity and Pride of Nations Vanity is as advantageous to a government as pride is dan- gerous. To be convinced of this we need only represent, on the one hand, the numberless benefits which result from vanity, as industry, the arts, fashions, politeness, and taste; on the other, the infinite evils which spring from the pride of certain nations, as laziness, poverty, a total neglect of everything — in fine, the h Fable of the Bees.
296 MONTESQUIEU destruction of the nations which have happened to fall under their government, as well as of their own. Laziness is the ef- fect of pride; » labor, a consequence of vanity. The pride of a Spaniard leads him to decline labor; the vanity of a French- man to work better than others.
All lazy nations are grave; for those who do not labor re- gard themselves as the sovereigns of those who do.
If we search amongst all nations, we shall find that for the most part gravity, pride, and indolence go hand in hand.
The people of Achim; are proud and lazy; those who have no slaves, hire one, if it be only to carry a quart of rice a hun- dred paces; they would be dishonored if they carried it them- selves.
In many places people let their nails grow, that all may see they do not work.
Women in the Indies k believe it shameful for them to learn to read: this is, they say, the business of their slaves, who sing canticles in the pagodas. In one tribe they do not spin; in another they make nothing but baskets and mats; they are not even to pound rice; and in others they must not go to fetch water. These rules are established by pride, and the same passion makes them followed. There is no necessity for men- tioning that the moral qualities, according as they are blended with others, are productive of different efifects; thus pride, joined to a vast ambition and notions of grandeur, produced such efifects among the Romans as are known to all the world.
10. — Of the Character of the Spaniards and Chinese The characters of the several nations are formed of virtues and vices, of good and bad qualities. From the happy mixture of these, great advantages result, and frequently where it would be least expected; there are others whence great evils arise — evils which one would not suspect.
The Spaniards have been in all ages famous for their honi The people who follow the khan of veniences of life, like the Europeans. — Malacamber, those of Carnataca and " Collection of Voyages for the Es- Coromandel, are proud and indolent; tablishment of an India Company," vol.
they consume little, because they are i. p. 54. miserably poor; while the subjects of; See Dampier, vol. iii.
the Mogul and the people of Hindostan k " Edifying Letters," 12th collect, p.
employ themselves, and enjoy the con- 80.
THE SPIRIT OF LAWS 297 esty. Justin I mentions their fidelity in keeping whatever was intrusted to their care; they have frequently suffered death frather than reveal a secret. They have still the same fidelity [for which they were formerly distinguished. All the nations who trade at Cadiz trust their fortunes to the Spaniards, and [have never yet repented it. But this admirable quality, joined ^to their indolence, forms a mixture whence such effects result is to them are most pernicious. The rest of the European na- tions carry on in their very sight all the commerce of their ^monarchy.
The character of the Chinese is formed of another mixture, directly opposite to that of the Spaniards; the precariousness of their subsistence m inspires them with a prodigious activity, and such an excessive desire of gain, that no trading nation can confide in them.w This acknowledged infidelity has secured them the possession of the trade to Japan. No European mer- chant has ever dared to undertake it in their name, how easy soever it might be for them to do it from their maritime prov- inces in the north.
II. — A Rejection II. — A Rejection I have said nothing here with a view to lessen that infinite distance which must ever be between virtue and vice. God forbid that I should be guilty of such an attempt! I would only make my readers comprehend that all political are not all moral vices; and that all moral are not political vices; and that those w^ho make laws which shock the general spirit of a nation ought not to be ignorant of this.
12. — Of Customs and Manners in a despotic State It is a capital maxim, that the manners and customs of a despotic empire ought never to be changed; for nothing would more speedily produce a revolution. The reason is, that in these states there are no laws, that is, none that can be properly called so; there are only manners and customs; and if you overturn these you overturn all.
Laws are established, manners are inspired; these proceed from a general spirit, those from a particular institution: now / By the nature of the soil and climate. m Lib. XLIII.
n Du Halde, vol. ii.
298 MONTESQUIEU it is as dangerous, nay more so, to subvert the general spirit as to change a particular institution.
There is less communication in a country where each, either as superior or inferior, exercises or is oppressed by arbitrary power, than there is in those where liberty reigns in every station. They do not, therefore, so often change their man- ners and behavior. Fixed and established customs have a near resemblance to laws. Thus it is here necessary that a prince or a legislator should less oppose the manners and customs of the people than in any other country upon earth.
Their women are commonly confined, and have no influence in society. In other countries, where they have intercourse v/ith men, their desire of pleasing, and the desire men also have of giving them pleasure, produce a continual change of customs. The two sexes spoil each other; they both lose their distinctive and essential quality; what was naturally fixed be- comes quite unsettled, and their customs and behavior alter every day.
13. — Of the Behavior of the Chinese But China is the place where the customs of the country can never be changed. Besides their women being absolutely separated from the men, their customs, like their morals, are taught in the schools. A man of letters may be known by his easy address.o These things being once taught by precept, and inculcated by grave doctors, become fixed, like the principles of moraHty, and are never changed.
14. — What are the natural Means of changing the Manners and Customs of a Nation We have said that the laws were the particular and precise institutions of a legislator, and manners and customs the in- stitutions of a nation in general. Hence it follows that when these manners and customs are to be changed, it ought not to be done by laws; this would have too much the air of tyranny: it would be better to change them by introducing other man- ners and other customs.
Thus when a prince would make great alterations in his kingdom, he should reform by law what is established by law, 0 Du Halde.
THE SPIRIT OF LAWS 299 and change by custom what is settled by custom; for it is very bad policy to change by law what ought to be changed by cus- tom.
The law which obliged the Muscovites to cut off their beards and to shorten their clothes, and the rigor with which Peter I made them crop, even to their knees, the long cloaks of those who entered into the cities, were instances of tyranny. There are means that may be made use of to prevent crimes; these are punishments: there are those for changing our customs; these are examples.
The facility and ease with which that nation has been pol- ished plainly show that this prince had a worse opinion of his people than they deserved; and that they were not brutes, though he was pleased to call them so. The violent measures which he employed were needless; he would have attained his end as well by milder methods.
He himself experienced the facility of bringing about these alterations. The women were shut up, and in some measure slaves; he called them to court; he sent them silks and fine stuffs, and made them dress like the German ladies. This sex immediately relished a manner of life which so greatly flattered their taste, their vanity, and their passions; and by their means it was relished by the men.
What rendered the change the more easy was that their man- ners at that time were foreign to the climate, and had been in- troduced amongst them by conquest and by a mixture of na- tions. Peter I, in giving the manners and customs of Europe to a European nation, found a facility which he did not himself expect. The empire of the climate is the first, the most power- ful, of all empires. He had then no occasion for laws to change the manners and customs of his country; it would have been sufficient to have introduced other manners and other customs.
Nations are in general very tenacious of their customs; to take them away by violence is to render them unhappy: we should not therefore change them, but engage the people to make the change themselves.
All punishment which is not derived from necessity is tyran- nical. The law is not a mere act of power; things in their own nature indifferent are not within its province.
300 MONTESQUIEU 15. — The Influence of domestic Government on the political This alteration in the manners of women will doubtless have a great influence on the government of Muscovy. One natu- rally follows the other: the despotic power of the prince is con- nected with the servitude of women; the liberty of women with the spirit of monarchy.
16. — How some Legislators have confounded the Principles which govern Mankind Manners and customs are those habits which are not estab- lished by legislators, either because they were not able or were not willing to establish them.
There is this difference between laws and manners, that the laws are most adapted to regulate the actions of the subject, and manners to regulate the actions of the man. There is this difference between manners and customs, that the former prin- cipally relate to the interior conduct, the latter to the exterior.
These things have been sometimes confounded.^ Lycurgus made the same code for the laws, manners, and customs, and the legislators of China have done the same.
We ought not to be surprised that the legislators of China and Sparta should confound the laws, manners, and customs; the reason is, their manners represent their laws, and their cus- toms their manners.
The principal object which the legislators of China had in view was to make their subjects live in peace and tranquillity. They would have people filled with a veneration for one an- other, that each should be every moment sensible of his de- pendence on society, and of the obligations he owed to his fel- low-citizens. They therefore gave rules of the most extensive civility.
Thus the inhabitants of the villages of Chinas practise amongst themselves the same ceremonies as those observed by persons of an exalted station; a very proper method of inspiring mild and gentle dispositions, of maintaining peace and good order, and of banishing all the vices which spring from an asperity of temper. In effect, would not the freeing P Moses made the same code for laws founded the ancient customs with the and religion. The old Romans con- laws.
g See Du Halde.
THE SPIRIT OF LAWS them from the rules of civiHty be to search out a method for them to indulge their own humors?
Civility is in this respect of more value than poUteness. Po- liteness flatters the vices of others, and civility prevents ours from being brought to light. It is a barrier which men have placed within themselves to prevent the corruption of each other.
Lycurgus, whose institutions were severe, had no regard to civility in forming the external behavior, he had a view to that warHke spirit with which he would fain inspire his people. A people who were in a continual state of discipline and instruc- tion, and who were endued with equal simplicity and rigor, atoned by their virtues for their want of complaisance.
17. — Of the peculiar Quality of the Chinese Government The legislators of China went further.^ They confounded their religion, laws, manners, and customs; all these were morality, all these were virtue. The precepts relating to these four points were what they called rites; and it was in the exact observance of these that the Chinese Government triumphed. They spent their whole youth in learning them, their whole life in the practice. They were taught by their men of letters, and were inculcated by the magistrates; and as they included all the ordinary actions of Hfe, when they found the means of making them strictly observed, China was well governed.
Two things have contributed to the ease with which these rites are engraved on the hearts and minds of the Chinese; one, the difficulty of writing, which, during the greatest part of their lives, wholly employs their attention,-^ because it is nec- essary to prepare them to read and understand the books in which they are comprised; the other, that the ritual precepts having nothing in them that is spiritual, but being merely rules of common practice, are more adapted to convince and strike the mind than things merely intellectual.
Those princes who, instead of ruling by these rites, governed by the force of punishments, wanted to accomplish that by punishments which it is not in their power to produce, that is, r See the classic books from which s It is this which has established Father Du Halde gives us some excel- emulation, which has banished laziness, lent extracts. and cultivated a love of learning.
302 MONTESQUIEU to give habits of morality. By punishments, a subject is very justly cut off from society, v^^ho, having lost the purity of his manners, violates the law^s; but if all the world were to lose their moral habits, would these re-establish them? Punish- ments may be justly inflicted to put a stop to many of the con- sequences of the general evil, but they will not remove the evil itself. Thus when the principles of the Chinese government were discarded, and morality was banished, the state fell into anarchy, and revolutions succeeded.
i8. — A Consequence drawn from the preceding Chapter Hence it follows that the laws of China are not destroyed by conquest. Their customs, manners, laws, and religion be- ing the same thing, they cannot change all these at once; and as it will happen that either the conqueror or the conquered must change, in China it has always been the conqueror. For the manners of the conquering nation not being their customs, nor their customs their laws, nor their laws their religion, it has been more easy for them to conform by degrees to the van- quished people than the latter to them.
There still follows hence a very unhappy consequence, which is, that it is almost impossible for Christianity ever to be es- tablished in China.o The vows of virginity, the assembling of women in churches, their necessary communication with the ministers of religion, their participation in the sacraments, au- ricular confession, extreme unction, the marriage of only one wife — all these overturn the manners and customs of the coun- try, and with the same blow strike at their religion and laws.
The Christian religion, by the establishment of charity, by a public worship, by a participation of the same sacraments, seems to demand that all should be united; while the rites of China seem to ordain that all should be separated.
And as we have seen that this separation h depends, in gen- eral, on the spirit of despotism, this will show us the reason why monarchies, and indeed all moderate governments, are more consistent with the Christian religion.^ a See the reasons given by the Chi- h See book IV. chap, iii., and book nese magistrates in their decrees for XIX. chap. xii.
proscribing the Christian religion. c See book XXIV. chap. iii. *' Edifying Letters," 17th collect.
THE SPIRIT OF LAWS 19. — How this Union of Religion, Laws, Manners, and Customs amongst the Chinese was effected The principal object of government which the Chinese legis- lators had in view was the peace and tranquillity of the em- pire; and subordination appeared to them as the most proper means to maintain it. Filled with this idea, they believed it their duty to inspire a respect for parents, and therefore exerted all their power to effect it. They established an infinite num- ber of rites and ceremonies to do them honor when living, and after their death. It was impossible for them to pay such honors to deceased parents without being led to reverence the living. The ceremonies at the death of a father were more nearly related to religion; those for a living parent had a greater relation to the laws, manners, and customs: however, these were only parts of the same code; but this code was very extensive.
A veneration for their parents was necessarily connected with a suitable respect for all who represented them; such as old men, masters, magistrates, and the sovereign. This respect for parents supposed a return of love towards children, and consequently the same return from old men to the young, from magistrates to those who were under their jurisdiction, and from the emperor to his subjects. This formed the rites, and these rites the general spirit of the nation.
We shall now show the relation which things in appearance the most indifferent may bear to the fundamental constitution of China. This empire is formed on the plan of a government of a family. If you diminish the paternal authority, or even if you retrench the ceremonies which express your respect for it, you weaken the reverence due to magistrates, who are con- sidered as fathers; nor would the magistrates have the same care of the people, whom they ought to look upon as their chil- dren; and that tender relation which subsists between the prince and his subjects would insensibly be lost. Retrench but one of these habits and you overturn the state. It is a thing in itself very indifferent whether the daughter-in-law rises every morning to pay such and such duties to her mother-in-law; but if we consider that these exterior habits incessantly revive an idea necessary to be imprinted on all minds — an idea that 304 MONTESQUIEU forms the ruling spirit of the empire — we shall see that it is necessary that such or such a particular action be performed.
20. — Explanation of a Paradox relating to the Chinese It is very remarkable that the Chinese, whose lives are guided by rites, are nevertheless the greatest cheats upon earth. This appears chiefly in their trade, which, in spite of its natural tendency, has never been able to make them honest. He who buys of them ought to carry with him his own weights; d every merchant having three sorts, the one heavy for buying, an- other light for selling, and another of the true standard for those who are upon their guard. It is possible, I believe, to explain this contradiction.
The legislators of China had two objects in view: they were desirous that the people should be submissive and peaceful, and that they should also be laborious and industrious. By the nature of the soil and climate, their subsistence is very precari- ous; nor can it be in any other way secured than by industry and labor.
When everyone obeys, and everyone is employed, the state is in a happy situation. It is necessity, and perhaps the nature of the climate, that have given to the Chinese an inconceivable greediness for gain, and laws have never been made to restrain it. Everything has been forbidden when acquired by acts of violence; everything permitted when obtained by artifice or labor. Let us not then compare the morals of China with those of Europe. Everyone in China is obliged to be attentive to what will be for his advantage; if the cheat has been watchful over his own interest, he who is the dupe ought to be atten- tive to his. At Sparta they were permitted to steal; in China they are suffered to deceive.
21. — How the Laws ought to have a Relation to Manners and Customs It is only singular institutions which thus confound laws, manners, and customs — ^things naturally distinct and separate; but though they are in themselves different, there is neverthe- less a great relation between them.
d Lange's Journal in 1721 and 1722, in " Voyages to the North," vol. viii. p.
THE SPIRIT OF LAWS- 305 Solon being asked if the laws he had given to the Athenians were the best, he repHed, " I have given them the best they were able to bear " e — a fine expression that ought to be per- fectly understood by all legislators! When Divine Wisdom said to the Jews, " I have given you precepts which are not good," this signified that they had only a relative goodness; which is the sponge that wipes out all the difficulties in the law of Moses.
22. — The same Subject continued When a people have pure and regular manners, their laws become simple and natural. Plato f says that Rhadamanthus, who governed a nation extremely religious, finished every process with extraordinary despatch, administering only the oath on each accusation. " But," says the same Plato,s: " when a people are not religious we should never have recourse to an oath, except he who swears is entirely disinterested, as in the case of a judge and a witness."
23. — How the Laws are founded on the Manners of a People At the time when the manners of the Romans were pure, they had no particular law against the embezzlement of the public money. When this crime began to appear, it was thought so infamous, that to be condemned to restore h what they had taken was considered as a sufficient disgrace: for a proof of this, see the sentence of L. Scipio.« 24. — The same Subject continued The laws which gave the right of tutelage to the mother were most attentive to the preservation of the infant's person; those which granted it to the next heir were most attentive to the preservation of the state. When the manners of a people are corrupted, it is much better to give the tutelage to the mother. Amongst those whose laws confide in the manners of the sub- jects, the guardianship is granted either to the next heir or to the mother, and sometimes to both.
If we reflect on the Roman laws, we shall find that the spirit of these was conformable to what I have advanced. At the e Plutarch, " Life of Solon." 9. /? Tbid. XII.
/"Of Laws," lib. XII. /i " In simplum."
JLivy, lib. XXXVIII.
3o6 MONTESQUIEU