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 by such a political Law cls 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 is the supreme law.
I have said,fc 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.
I 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 oflf from so- ciety; these they obhge 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 which ought to be subject to particular Rules drawn from their own Nature Is it a good law that all civil obligations passed between sailors in a ship in the course of a voyage should be null? Francis Pirard tells us d that, in his time, it was not observed by the Portuguese, though it was by the French. Men who are to- gether only for a short time, who have no wants, since they are provided for by the prince, who have only one object in view, that of their voyage, who are no longer in society, but are only the inhabitants of a ship, ought not to contract obligations that were never introduced but to support the burden of civil society.
In the same spirit was the law of the Rhodians made at a time when they always followed the coasts; it ordained, that those who during a tempest stayed in a vessel should have ship and cargo, and those who quitted it should have nothing.
CHOICE EXAMPLES OF CLASSIC SCULPTURE THE LAO COON.
Photo-engraving frotn the original marble group in the Vatican, at Rcyme.
Agesander, Aihenodorus 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 Thymbrasan 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 Laocoon and his two sons, and destroyed them. The Laocoon group was discovered in 1506, near the baths of Titus, probably in the ruins of the palace of the Emperor Titus.
■ f^^^l B^^'Hll^ l^gfiS^^^H 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 hceres, 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 " Fra^. of Ulpian," sec. 8, b " Ast si intestate moritur cui suus tit. 26. " Inst." tit. 3, " in praemio ad haeres nee extabit, agnatus proximus S. C. TertuUianum." familiam habeto." " Fragment of the 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 TulHus, 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, see. 3. 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, filled 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 i 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 g Dionysius Halicarnassus proves, by lished only by the constitutions of the a law of Numa, that the law which per- emperors. Leg. i iif. " de militari testamitted 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 writinfr.
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. lo, 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. 10, sec. 2. o " Instit." lib. II. tit. lo, 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 hceredes, 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.M The epitome of Livy, where he speaks of this law, says no more: v it appears from Cicero w and St. Augustin,J^ 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 « " Sanxit...ne quis haeredem called " fidei commissum." " Instit." virginem neve mulierem faceret." — lib. II. tit. 23, " in prsemio." Cicero's " Second Oration against Vers " Ad liberos matris intestatae hseredit res." as," leg. 12 Tab., " non pertinebat, quia, v " Legem tulit, ne quis haeredem foeminae suos haeredes non habent." mulierem institueret." — Lib. IV. Ulpian, " Frag." tit. 26, sec. 7. w " Second Oration against Verres."
i It was proposed by Ouintus Vo- x " Of the City of God," lib. III.
conius, Tribune of the ptople. 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.y 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,c 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.d 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 pros Lib. XXVII. cap. vj. hiberetur, ne qua majorem centum a " Instit." lib. 111. tit. 22. millibus nummum hsereditatem posset b Ibid. adire."-Lib. LXVI.
c " Nemo censuit plus Fadiae dandum, e " Qui census esset." — " Second Oraquam posset ad earn lege Voconia per- tion against Verres."
venire."—" De finibus boni et mali," lib.
VI.
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 has 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,g 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 csrarii, 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 Ccerites tabulcej We have elsewhere observed that the Roman laws did not admit of fiduciary bequests. The hopes of evading the Vof " 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.fe 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 Gallus 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: w 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 prohibition.*?
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 m Sextilius said he had sworn to ob- o The same difference occurs in sevserve 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.
90 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.** 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.