The Spirit Of Laws Part 40
176 "Ut unusquisque liber h.o.m.o innostro regno seniorem quem voluerit in n.o.bis et in nostris fidelibus accipiat," art. 2, of the Declaration of Charles.
177 Capitulary of the year 877, t.i.t. 53, arts. 9 and 10, "apud Carisiac.u.m," "similiter et de nostris va.s.sallis faciendum est," etc. This capitulary relates to another of the same year, and of the same place, art. 3.
178 Capitulary of Aix-la-Chapelle, in the year 813, art. 16, "quod nullus seniorem suum dimittat post quam ab eo acceperit valente solidum unum"; and the Capitulary of Pepin, in the year 783, art. 5.
179 See the Capitulary de Carisiaco in the year 856, arts. 10 and 13, Baluzius's edition, tom. ii. p. 83, in which the King, together with the lords spiritual and temporal, agreed to this: 'Et si aliquis de vobis talis est cui suus senioratus non placet, et illi simulat ut ad alium seniorem melius quam ad illum acaptare possit, veniat ad illum, et ipse tranquillo et pacifico animo donet illi commeatum...et quod Deus illi cupierit et ad alium seniorem acaptare potuerit, pacifice habeat."
180 In the year 757, art. 6, Baluzius's edition, p. 181.
181 Book I. chap. i.
182 At least in Italy and Germany.
183 Book I. of fiefs, chap. i.
184 Ibid.
185 Capitulary of the year 802, art. 7, Baluzius's edition, p. 365.
186 "Apud Marsnam," in the year 847, Baluzius's edition, p. 42.
187 "Volumus ut cujusc.u.mque nostrum h.o.m.o in cujusc.u.mque regno sit, c.u.m seniore suo in hostem, vel aliis suis utilitatibus, pergat, nisi talis regni invasio quam Lantuveri dic.u.n.t, quod absit, acciderit, ut omnis populus illius regni ad eam repellendam communiter pergat," art. 5, ibid. p. 44.
188 "Apud Argentoratum," in Baluzius, Capitularies, tom. ii. p. 39.
189 See the law of Guy, King of the Romans, among those which were added to the Salic law, and to that of the Lombards, t.i.t. 6, sec. 2, in Echard.
190 Some authors pretend that the County of Toulouse had been given away by Charles Martel, and pa.s.sed by inheritance down to Raymond, the last count; but, if this be true, it was owing to some circ.u.mstances which might have been an inducement to choose the Counts of Toulouse from among the children of the last possessor.
191 See his Capitulary of the year 877, t.i.t. 53, arts. 9 and 10, "apud Carisiac.u.m." This capitulary bears relation to another of the same year and place, art. 3.
192 The third Capitulary of the year 812, art. 7, and that of the year 815, art. 6, on the Spaniards. The collection of the Capitularies, book 5, art. 223, and the Capitulary of the year 869, art. 2, and that of the year 877, art. 13, Baluzius's edition.
193 As appears from Otho of Frisingon, "of the actions of Frederic," book II. chap. xxix.
194 See the ordinance of Philip Augustus in the year 1209, in the new collection.
195 Book I. t.i.t. 1.
196 "Sic progressum est, ut ad filios deveniret in quem Dominus hoc vellet beneficium confirmare."-Ibid.
197 At least in Italy and Germany.
198 "Quod hodie ita stabilitum est, ut ad omnes aequaliter veniat."-Book I. of the fiefs, t.i.t. 1.
199 Gerardus Niger and Aubertus de Orto.
200 "c.u.m vero Conradus Romam proficisceretur, pet.i.tum est a fidelibus qui in ejus erant servitio, ut, lege ab eo promulgata, hoc etiam ad nepotes ex filio producere dignaretur, et ut frater fratri sine legitimo haerede defuncto in beneficio quod eorum patris fuit, succedat."-Book I. of fiefs, t.i.t. 1.
201 Cujas has proved it extremely well.
202 "Sciendum est quod beneficium advenientes ex latere, ultra fratres patrueles non progreditur successione alantiquis sapientibus const.i.tutum, licet moderno tempore usque ad septimum geniculum sit usurpatum, quod in masculis descendentibus novo jure in infinitum extenditur."-Ibid.
203 Arnold and his son Louis IV.
204 In the year 926, quoted by Aubert le Mire, "Cod. donationum piarum," chap. xxvii.
205 See the Capitulary of Charles the Bald, in the year 877, "apud Carisiac.u.m," on the importance of Paris, St. Denis, and the castles on the Loire, in those days.
206 See above, chap. 30.
207 See the Salic Law, and the law of the Ripuarians, in the t.i.tle of "allodia."
208 See the Capitulary of the year 817, which contains the first part.i.tion made by Louis the Debonnaire among his children.
209 See his two letters upon this subject, the t.i.tle of one of which is "de divisione imperii."
210 See the ordinance of Philip Augustus, in the year 1209, on the fiefs.
211 We find several of these conventions in the charters, as in the register book of Vendome, and that of the abbey in St. Cyprian in Poitou, of which Mr. Galland has given some extracts, p. 55.
212 But they could not abridge the fiefs; that is, abolish a portion of it.
213 They fixed the portion which they could dismember.
214 This was the reason that the lords obliged the widow to marry again.
215 Most of the great families had their particular laws of succession. See what M. de la Thauma.s.siere says concerning the families of Berri.
216 We see in the Capitulary of the year 817, "apud Carisiac.u.m," art. 3, Baluzius's edition, tom. ii. p. 269, the moment in which the kings caused the fiefs to be administered in order to preserve them for the minors; an example followed by the lords, and which gave rise to what we have mentioned by the name of "the guardianship of a n.o.bleman's children."
217 We find the formula thereof in the second Capitulary of the year 802. See also that of the year 854, art. 13, and others.
218 M. du Cange in the word "hominium," p. 1163, and in the word "fidelitas," p. 474, cites the charters of the ancient homages where these differences are found, and a great number of authorities which may be seen. In paying homage, the va.s.sal put his hand on that of his lord, and took his oath; the oath of fealty was made by swearing on the gospels. The homage was performed kneeling, the oath of fealty standing. None but the lord could receive homage, but his officers might take the oath of fealty.-See Littleton, secs. 91, 92, faith and homage, that is, fidelity and homage.
219 Capitularies of Charles the Bald in the year 860, "post reditum a Confluentibus," art. 3, Baluzius's edition, p.145.
220 Ibid. art. 1.
221 "Lib. de administratione sua."
222 Anno 757, chap. xvii.
223 "Ta.s.silo venit in va.s.satico se commendans, per ma.n.u.s sacramenta juravit multa et innumerabilia, reliquiis sanctorum ma.n.u.s imponens et fidelitatem promisit regi Pippino." One would think that here was an homage and an oath of fealty. See the note 218 preceding page.
224 Book IV. "de feudis," t.i.t. 59.
225 In the t.i.tle of "allodia."
226 "Somme Rurale," book I. t.i.t. 76, p. 447.
227 According to an ordinance of St. Louis, in the year 1246, to settle the customs of Anjou and Maine; those who shall have the care of the heiress of a fief shall give security to the lord, that she shall not be married without his consent.
228 Decision 155, No. 8 and 204; and No. 38.
229 In Capell. Thol. decision 453.
230 "aeneid," lib. III. v. 523.
Book I
Of Laws in General 1.-Of the Relation of Laws to different Beings LAWS, in their most general signification, are the necessary relations arising from the nature of things. In this sense all beings have their laws: the Deity1 His laws, the material world its laws, the intelligence superior to man their laws, the beasts their laws, man his laws.
They who a.s.sert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can any thing be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings?
There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations of these to one another.
G.o.d is related to the universe, as Creator and Preserver; the laws by which He created all things are those by which He preserves them. He acts according to these rules, because He knows them; He knows them, because He made them; and He made them, because they are in relation of His Wisdom and power.
Since we observe that the world, though formed by the motion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws; and could we imagine another world, it must also have constant rules, or it would inevitably perish.
Thus the creation, which seems an arbitrary act, supposes laws as invariable as those of the fatality of the Atheists. It would be absurd to say that the Creator might govern the world without those rules, since without them it could not subsist.
These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, or lost, according to the relations of the quant.i.ty of matter and velocity; each diversity is uniformity, each change is constancy.
Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal.
We must therefore acknowledge relations of justice antecedent to the positive law by which they are established: as, for instance, if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to show their grat.i.tude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence; if one intelligent being injures another, it deserves a retaliation; and so on.
But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws; and even those of their own inst.i.tuting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a particular movement, we cannot determine. Be that as it may, they have not a more intimate relation to G.o.d than the rest of the material world; and sensation is of no other use to them than in the relation they have either to other particular beings or to themselves.
By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation; positive laws they have none, because they are not connected by knowledge. And yet they do not invariably conform to their natural laws; these are better observed by vegetables, that have neither understanding nor sense.
Brutes are deprived of the high advantages which we have; but they have some which we have not. They have not our hopes, but they are without our fears; they are subject like us to death, but without knowing it; even most of them are more attentive than we to self-preservation, and do not make so bad a use of their pa.s.sions.
Man, as a physical being, is like other bodies governed by invariable laws. As an intelligent being, he incessantly transgresses the laws established by G.o.d, and changes those of his own inst.i.tuting. He is left to his private direction, though a limited being, and subject, like all finite intelligence, to ignorance and error: even his imperfect knowledge he loses; and as a sensible creature, he is hurried away by a thousand impetuous pa.s.sions. Such a being might every instant forget his Creator; G.o.d has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have, therefore, by political and civil laws, confined him to his duty.
2.-Of the Laws of Nature Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature.
The law which, impressing on our minds the idea of a Creator, inclines us towards Him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had acquired any knowledge. Plain it is that his first ideas would not be of a speculative nature; he would think of the preservation of his being, before he would investigate its origin. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests,2 trembling at the motion of a leaf, and flying from every shadow.
In this state every man, instead of being sensible of his equality, would fancy himself inferior. There would, therefore, be no danger of their attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of subduing one another is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding.
Hobbes3 inquires, "For what reason go men armed, and have locks and keys to fasten their doors, if they be not naturally in a state of war?" But is it not obvious that he attributes to mankind before the establishment of society what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence?
Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would induce men to shun one another; but the marks of this fear being reciprocal, would soon engage them to a.s.sociate. Besides, this a.s.sociation would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of s.e.xes would enhance this pleasure, and the natural inclination they have for each other would form a third law.
Besides the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Man kind have, therefore, a new motive of uniting; and a fourth law of nature results from the desire of living in society.
3.-Of positive Laws As soon as man enters into a state of society he loses the sense of his weakness; equality ceases, and then commences the state of war.4 Each particular society begins to feel its strength, whence arises a state of war between different nations. The individuals likewise of each society become sensible of their force; hence the princ.i.p.al advantages of this society they endeavor to convert to their own emolument, which const.i.tutes a state of war between individuals.
These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of politic law. They have also another sort of laws, as they stand in relation to each other; by which is understood the civil law.
The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests.
The object of war is victory; that of victory is conquest; and that of conquest preservation. From this and the preceding principle all those rules are derived which const.i.tute the law of nations.
All countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners: for they send and receive amba.s.sadors, and understand the rights of war and peace. The mischief is that their law of nations is not founded on true principles.
Besides the law of nations relating to all societies, there is a polity or civil const.i.tution for each particularly considered. No society can subsist without a form of government. "The united strength of individuals," as Gravina5 well observes, "const.i.tutes what we call the body politic."
The general strength may be in the hands of a single person, or of many. Some think that nature having established paternal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing. For if the power of a father relates to a single government, that of brothers after the death of a father, and that of cousins-german after the decease of brothers, refer to a government of many. The political power necessarily comprehends the union of several families.
Better is it to say that the government most conformable to nature is that which best agrees with the humor and disposition of the people in whose favor it is established.
The strength of individuals cannot be united without a conjunction of all their wills. "The conjunction of those wills," as Gravina again very justly observes, "is what we call the civil state."
Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied.
They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.
They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil inst.i.tutions.
They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the princ.i.p.al occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the const.i.tution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all of which different lights they ought to be considered.
This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together const.i.tute what I call the Spirit of Laws.
I have not separated the political from the civil inst.i.tutions, as I do not pretend to treat of laws, but of their spirit; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to follow the natural order of laws as that of these relations and objects.
I shall first examine the relations which laws bear to the nature and principle of each government; and as this principle has a strong influence on laws, I shall make it my study to understand it thoroughly: and if I can but once establish it, the laws will soon appear to flow thence as from their source. I shall proceed afterwards to other and more particular relations.
1 "Law," says Plutarch, "is the king of mortal and immortal beings." See his treatise ent.i.tled "A Discourse to an unlearned Prince."
2 Witness the savage found in the forests of Hanover, who was carried over to England during the reign of George I.