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 r By 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 roul 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 Laivs 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.^ 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 t Leg. I ff. " de Receptatoribus." u 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.
As the civil laws depend on the political institutions, because they 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 zvhich 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.c^ 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 m^y become so opposed to the security and liberty of the citizens, ought to be executed in their presence.
c " Inutilis aetas 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 heart.g Justinian's Novellce were so very dif- fuse that they were obliged to abridge them.^ 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 i 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,^ 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, t " Political Testament." " de Legib." 2. Aristotle avers that be-; '* Aut qualibet manumissione dona- fore the art of writing was discovered, tum 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. 737. forgotten.— Ed. k Aulus Gellius, book XX. chap. i.
h It is the work of Irnerius.
i66 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 th?t 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,« 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.o 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 common 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 pubhc order, mined him. o The ordinance pf 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, tom. i.
THE SPIRIT OF LAWS 167 riage.^ He altered his law afterwards, and allowed the poor wretch three years.-s 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 ^ 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.w 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 rLeg. I, code " de Repudiis."^ _ w See Dupuy, " Traite de la Majorite J See the authentic " Sed hodie," in de nos rois," p. 364, edit. 1655. — Ed.
the code " de Repudiis." x The Chancellor de I'Hopital. — Itiid.
*Leg. I flf. " de Postulando." _ y It was made in the month of No- M In his " Sentences," book IV. tit. p. vember, 1702.
V " Delia guerra civile di Francia," 1 68 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 obscu'.e 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 eflfect, 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.o This is making a jest of the laws. The Falcidian law became useless: for if the testator had a jnind 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.
e Book IX. " of Laws." a It 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 own; 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,c 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.
18. — 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 beb Book XII. tit. 2, sec. 16. c See Julius Capitolinus " in Macrino." d Ibid.
I70 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."
lO.tOl-J") i n'iU loidvi' CHOICE EXAMPLES OF EARLY PRINTING AND ENGRAVING.
Fac-similes from Rare and Curious Books.
isrnihes -v EARLY VENETIAN PRINTING.
From the Thoscanello della Miisica of Pietro Fiorentino. Printed by Bernardo and Matteo de Vitali at Venice in 1523. A copy of the work may be seen in the Bihlioteca Marciana.
.1 Vv'Uii-i;' 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.o 2. — Of the Source of Feudal Laws The conquerors of the Roman Empire came from Germany. Though few ancient aythors have described their manners, yet a " Quantum vertice ad oras ^thereas, tantum radice ad Tartara tendit." — Vergil.
172 MONTESQUIEU we have two of very great weight. Caesar making war against the Germans describes the manners of that nation; b and upon these he regulated some of his enterprises.^ A few pages of Caesar upon this subject are equal to whole volumes.^ Tacitus has written an entire work on the man.iers 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 Csesar 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 Csesar 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.
b Book Vr. _ 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 quem venere d M. Chabrit expresses his astonish- aluntur." — " De Moribus Germanoment 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 javeHn. 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 arms, 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 conh " 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 settHng a kingdom on one of his children i 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.
i See the " Life of Dagobert." the cities of his father's kingdom to j 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,