第 87 页

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 repudiated and yet the wife not lose her portion, if for the space of two years he had been incapable of consummating the marriage.[38] He altered his law afterwards, and allowed the poor wretch three years.[39] 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.[40] So bad a reason must have been given on purpose, when such a number of good reasons were at hand.

Paul, the jurist, says[41] that a child grows perfect in the seventh month, and that the ratio of Pythagoras' numbers seems to prove it. It is very extraordinary that they should judge of those things by the ratio of Pythagoras' 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 submit 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[42] 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 administration of a ward's estate; whereas it considers the year commenced as a year complete, when the case is concerning the acquisition of honours. I am very far from censuring a regulation 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 honour.

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:[43] this is the presumption of the law. The Roman 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 lawsuit, or through contempt 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 obscure and ambiguous point; when the law presumes, it gives a fixed rule to the judge.

Plato's law,[44] as I have observed already, required that a punishment should be inflicted on the person who killed himself not with a design of avoiding shame, but through pusillanimity. This law was so far defective that in the only case in which it was impossible to draw from the criminal an acknowledgment 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 effect, 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 retaining this fourth part.[45] This is making a jest of the laws. The Falcidian law became useless: for if the testator had a mind to favour his heir, the latter had no need of the Falcidian law; and if he did not intend to favour him, he forbad him to make use of it.

Care should be taken that the laws be worded in such a manner 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 nobility; 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 action in the quality of a servant of God! This is equally subversive of the ideas of honour, morality, and religion.

There very seldom happens to be a necessity of prohibiting a thing which is not bad under pretence of some imaginary perfection.

There ought to be a certain simplicity and candour 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[46] 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 Capitolinus says[47] that Trajan often refused to give this kind of rescripts, lest a single decision, and frequently a particular favour, should be extended to all cases. Macrinus had resolved to abolish all those rescripts;[48] 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 distinguish 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 public 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 discover therein a kind of perfection, which they recognize because it is impossible for them not to see it; the same authorized 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 constantly 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 tranquillity. 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. Machiavel 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.[49] Harrington was full of the idea of his favourite republic of England, while a crowd of writers saw nothing but confusion where monarchy is abolished. The laws always conform to the passions and prejudices of the legislator; sometimes the latter pass through, and only tincture them; sometimes they remain, and are incorporated with them.

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1. Aristotle, Politics, iv. 11.

2. Book xx. 1.

3. Cecilius says that he never saw nor read of an instance in which this punishment had been inflicted; but it is likely that no such punishment was ever established: the opinion of some civilians, that the law of the Twelve Tables meant only the division of the money arising from the sale of the debtor, seems very probable.

4. De Falsa legatione.

5. Dio, xli.

6. Aristotle, Politics, v. 13.

7. Plutarch, Dionysius.

8. See xxvi. 17, p. 223, above.

9. When the inheritance was too much encumbered they eluded the pontifical law by certain sales, whence come the words sine sacris h?reditas.

10. Laws ix.

11. Tacitus, Annals, vi. 29.

12. Rescript of the Emperor Pius in Leg. 3, §§ 1, 2, ff. de bonis eorum qui ante sententiam mortem sibi consciverunt.

13. Leg. 18, ff. de in fus vocando.

14. See the Law of the Twelve Tables.

15. Rapit in jus. -- Horace, Sat., i. 9. Hence they could not summon those to whom a particular respect was due.

16. See Leg. 18, ff. de in jus vocando.

17. By the ancient French law, witnesses were heard on both sides; hence we find in the Institutions of St. Louis, i. 7, that there was only a pecuniary punishment against false witnesses.

18. Leg. 1, ff. de receptatoribus.

19. Ibid.

20. See what Favorinus says in Aulus Gellius, xx. 1.

21. Compare what Plutarch says in the Lycurgus with the laws of the Digest, title De furtis; and the Institutes, iv, tit. 1, §§ 1, 2, 3.

22. Laws, i.

23. Syrian., in Hermog.

24. The Cornelian law De Sicariis, Institutes, iv, tit. 3, de lege Aquilia, § 7.

25. See Leg. 4, ff. ad leg. Aquil.

26. Ibid.; see the decree of Tassillon added to the law of the Bavarians, de popularib. Legib. art. 4.

27. Ut carmen necessarium. -- Cicero, De Leg. ii, 23.

28. It is the work of Irnerius.

29. Testament. Polit.

30. Appendix to the Theodosian code in the first volume of Father Sirmond's works, p. 737.

31. Aulus Gellius, xx. 1.

32. We find in the verbal process of this ordinance the motives that determined him.

33. In his ordinance of Montel-les-Tours, in the year 1453.

34. They might punish the attorney, without there being any necessity of disturbing the public order.

35. The ordinance of the year 1667 has made some regulations upon this head.

36. Book ii, tit. 37.

37. In Father Sirmond's appendix to the Theodosian code, i.

38. Leg. 1, Cod. de repudiis.

39. See the authentic sed hodie, in the Cod. de repudiis.

40. Leg. 1, ff. de Postulando.

41. Sentences, iv. 9.

42. Della guerra civile di Francia, p. 96.

43. It was made on November 18, 1702.

44. Laws, ix.

45. It is the authentic sed cum testator.

46. Book xii, tit. 2, § 16.

47. See Julius Capitolinus, in Macrinus, 13.

48. Ibid.

49. In his Utopia.

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Book XXX. Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy

1. Of Feudal Laws. I should think my work imperfect were I to pass over in silence an event which never again, perhaps, will happen; 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 remain when the demesne has been ceded; which by vesting several with different kinds of seignory over the same things or persons have diminished the weight of the whole seignory; 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 harmony.

This would require a particular work to itself; but considering 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.[1]

2. Of the Source of Feudal Laws. The conquerors of the Roman empire came from Germany. Though few ancient authors have described their manners, yet we have two of very great weight. C?sar making war against the Germans describes the manners of that nation;[2] and upon these he regulated some of his enterprises.[3] A few pages of C?sar upon this subject are equal to whole volumes.

Tacitus has written an entire work on the manners 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 extant of the laws of the Barbarians, that reading C?sar and Tacitus we imagine we are perusing these codes, and perusing these codes we fancy we are reading C?sar and Tacitus.

But if in this research into the feudal laws I should find myself 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. C?sar says[4] 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[5] 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.[6] They had a strong emulation 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 by 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 neighbouring 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 javelin. 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 dangers 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."