# The Spirit of Laws (1758)/Book XVIII

BOOK XVIII. Of Laws in the Relation they bear to the Nature of the Soil.
CHAP. I. How the Nature of the Soil has an Influence on the Laws.
Book XVIII. Chap. 1. THE goodness of the land, in any country, naturally establishes subjection and dependance. The husbandmen who compose the principal part of the people, are not very jealous of their liberty; they are too busy and too intent on their own private affairs. A country which overflows with wealth, is afraid of pillage, afraid of an army. "Who is there that forms this goodly party? said Cicero to Atticus, are they the men of commerce and of husbandry? Let us not imagine that these are averse to monarchy, these to whom all governments are equal, as soon as they bestow tranquillity."
Thus monarchy is more frequently found in fruitful countries, and a republican government in those which are not so; and this is sometimes a sufficient compensation for the inconveniences they suffer by the sterility of the land.
The barrenness of the Attic soil, established there a popular government; and the fertility of that of Lacedæmonia an aristocratical form of government. For in those times, Greece was averse to the government of a single person; and aristocracy had the nearest resemblance to that government.
​Book XVIII. Chap. 2.Plutarch says, that the Cilonian sedition having been appeased at Athens, the city fell into its ancient dissensions, and was divided into as many parties as there were kinds of territory in Attica. The men who inhabited the eminences, would by all means have a popular government; those of the plain, demanded a government composed of the chiefs; and they who were near the sea, were for a government made up of both.
CHAP. II. The same Subject continued.
THESE fertile countries are always plains, where the inhabitants are unable to dispute against a stronger body: they are then obliged to submit, and when they have once submitted, the spirit of liberty cannot return; the wealth of the country is a pledge of their fidelity. But in mountainous countries, as they have but little, they may preserve what they have. The liberty they enjoy, or, in other words, the government they are under, is the only blessing worthy of their defence. It reigns therefore more in mountainous and difficult countries, than in those which nature seems to have most favoured.
The mountaineers preserve a more moderate government; because they are not so liable to be conquered. They defend themselves easily, and are attacked with difficulty; ammunition and provisions are collected and carried against them with great expence, for the country furnishes none. It is then more difficult to make war against them, a more hazardous enterprize; and all the laws that ​Book XVIII. Chap. 3.can be made for the safety of the people are there of least use.
CHAP. III. What Countries are best cultivated.
COUNTRIES are not cultivated in proportion to their fertility, but to their liberty; and if we make an imaginary division of the earth, we shall be astonished to see in most ages, deserts in the most fruitful parts, and great nations in those, where nature seems to refuse every thing.
It is natural for a people to leave a bad country to seek a better; and not to leave a good country to seek a worse. Most of the invasions have therefore been made in countries, which nature seems to have formed for happiness: and as nothing is more nearly allied than desolation and invasion, the best countries are most frequently depopulated; while the frightful countries of the north continue always inhabited, from their being almost uninhabitable.
We find by what historians tell us of the passage of the people of Scandinavia, along the banks of the Danube, that this was not a conquest, but only a migration into desert countries.
These happy climates must therefore have been depopulated by other migrations, though we know not the tragical scenes that happened.
"It appears by many monuments of antiquity, says Aristotle, that the Sardinians were a Grecian colony. They were formerly very rich; and Aristeus, so famed for his love of agriculture, ​Book XVIII. Chap. 4, & 5.was their lawgiver. But they are since fallen to decay; for the Carthaginians becoming their masters, destroyed every thing proper for the nourishment of man, and forbad the cultivation of the lands on pain of death." Sardinia was not recovered in the time of Aristotle, nor is it to this day.
The most temperate parts of Persia, Turky, Muscovy, and Poland, have not been able to recover perfectly from the devaluations of the Tartars.
CHAP. IV. New Effects of the Fertility and Barrenness of Countries.
THE barrenness of the earth renders men industrious, sober, inured to hardship, courageous and fit for war: they are obliged to procure by labour what the earth refuses to bestow spontaneously. The fertility of a country gives ease, effeminacy, and a certain fondness for the preservation of life. It has been remarked that the German troops raised in those places where the peasants are rich, as for instance, in Saxony, are not so good as the others. Military laws may provide against this inconvenience by a more severe discipline.
CHAP. V. Of the Inhabitants of Islands.
THE people of the ides have a higher relish for liberty than those of the continent. ​Book XVIII. Chap. 6.Islands are commonly of a small extent; one part of the people cannot be so easily employed to oppress the other; the sea separates them from great empires; so that they cannot be countenanced by tyranny: conquerors are stopped by the sea, the islanders themselves are not involved in conquests, and more easily preserve their laws.
CHAP. VI. Of Countries raised by the Industry of Men.
THOSE countries which the industry of men has rendered habitable, and which stand in need of the same industry to provide for their subsistence, require a mild and moderate government. There are principally three of this species, the two fine provinces of Kianguan and Tchekiang in China, Ægypt, and Holland.
The ancient emperors of China were not conquerors. The first thing they did to aggrandize themselves, was what gave the highest proof of their wisdom. They raised from beneath the waters two of the finest provinces of the empire; these owe their existence to the labour of man. And it is the inexpressible fertility of these two provinces which has given Europe such ideas of the felicity of this vast country. But a continual and necessary care to preserve from destruction so considerable a part of the empire, demanded rather the manners of a wife, than of a voluptuous nation; rather the lawful authority of a monarch, than the tyrannic power of a despotic prince. Power was ​Book XVIII. Chap. 6, & 7.therefore necessarily moderated in that country, as it was formerly in Ægypt, and as it is still in that part of the Turkish empire. Power was necessarily moderated as it is in Holland, which nature has made to attend to herself, and not to be abandoned to negligence or caprice.
Thus in spite of the climate of China, where they are naturally led to a servile obedience, in spite of the apprehensions which follow a too great extent of empire, the first legislators of this country were obliged to make most excellent laws, and the government was frequently obliged to follow them.
CHAP. VII. Of the Works of Men.
MEN by their care, and by the influence of good laws have rendered the earth more proper for their abode. We see rivers flow where there have been lakes and marshes: this is a benefit which nature has not bestowed; but it is a benefit maintained and supplied by nature. When the Persians were masters of Asia, they permitted those who conveyed a spring to any place which had not been watered before, to enjoy the benefit for five generations; and as a number of rivulets flowed from mount Taurus, they spared no expence, in directing the course of their streams. At this day, without knowing how they came thither, they are found in the fields and gardens.
Thus as destructive nations produce evils more durable than themselves; the actions of industrious nations are the source of blessings which last, when they are no more.
CHAP. VIII. The general Relation of Laws.
BOOK XVIII. Chap. 8, & 9.THE laws have a very great relation to the manner in which the several nations procure their subsistence. There should be a code of laws of a much larger extent, for a nation attached to trade and navigation, than for a people who are contented with cultivating the earth. There should be a much greater for these, than for a people who live by their flocks and herds. There must be a greater for this last, than for those who live by hunting.
CHAP. IX. Of the Soil of America.
THE cause of there being so many savage nations in America is the fertility of the earth, which spontaneously produces many fruits capable of affording them nourishment. If the women cultivate a spot of land round their cabins, the maiz grows up presently; and hunting and fishing put the men in a state of complete abundance. Besides, black cattle, as cows, buffaloes, &c. succeed there better than carnivorous beasts.
We should not, I believe, have all these advantages in Europe, if the land was left uncultivated; it would produce scarce any thing besides forests of oaks and other barren trees.
CHAP. X. Of the Number of Men with regard to the manner in which they procure Subsistence.
Book XVIII. Chap. 10, & 11.LET us see in what proportion the number of men is found, in nations who do not cultivate the earth. As the produce of uncultivated land, is to the produce of land improved by culture; so the number of savages in one country, is to the number of husbandmen in another: and when the people who cultivate the land, cultivate also the arts, the number of savages is to the number of this people, in the compound proportion of the number of savages to that of the husbandmen; and of the number of husbandmen to that of men who cultivate the arts.
They can scarcely form a great nation. If they are herdsmen and shepherds, they have need of an extensive country to furnish subsistence for a small number; if they live by hunting, their number must be still less, and in order to find the means of life they must form a very small nation.
Their country is commonly full of forests; which, as the men have not the art of draining off the waters, are filled with bogs; here each troop canton themselves, and form a little nation.
CHAP. XI. Of Savage Nations, and Nations of Barbarians.
THERE is this difference between savage and barbarous nations; the first are little dispersed nations, which, for some particular ​Book XVIII. Chap. 12, & 13.reason, cannot be united; and the barbarians are commonly small nations capable of being united. The first are generally nations of hunters; the second of herdsmen and shepherds. This appears plain in the north of Asia. The people of Siberia cannot live in bodies, because they cannot find subsistence; the Tartars may live in bodies for some time, because their herds and flocks may for a time be re-assembled. All the clans may then be re-united, and this is done when one chief has subdued many others; after which they may do two things, either separate, or set out with a design to make a great conquest in some empire in the south.
CHAP. XII. Of the Law of Nations amongst People who do not cultivate the Earth.
AS these people do not live in limited and circumscribed boundaries, many causes of strife arise between them; they dispute the uncultivated land, as we dispute about inheritances. Thus they find frequent occasions for war, in defence of their hunting, their fishing, the pasture for their cattle, and the taking of their slaves; and having no territory, they have many things to regulate by the law of nations, and but few to decide by the civil law.
CHAP. XIII. Of the civil Laws of those Nations who do not cultivate the Earth.
THE division of lands is what principally increases the civil code. Amongst nations ​Book XVIII. Chap. 13, & 14.where they have not made this division, there are very few civil laws.
The institutions of these people may be called manners rather than laws.
Amongst such nations as these, the old men, who remember things past, have great authority; they cannot there be distinguished by wealth, but by wisdom and valour.
These people wander and disperse themselves in pasture grounds or in forests. Marriage cannot there have the security which it has amongst us, where it is fixed by the habitation, and where the wife continues in one house; they may then more easily change their wives, possess many, and sometimes mix indifferently like brutes.
Nations of herdsmen and shepherds cannot leave their cattle, which are their subsistence; neither can they separate themselves from their wives, who look after them. All this ought then to go together, especially as living generally in great plains, where there are few places of considerable strength, their wives, their children, their stocks may become the prey of their enemies.
Their laws regulate the division of plunder, and have, like our Salic laws, a particular attention to thefts.
CHAP. XIV. Of the political State of the People who do not cultivate the Lands.
THESE people enjoy great liberty. For as they do not cultivate the earth, they are not fixed, they are wanderers and vagabonds; and if a chief would deprive them of their liberty, they ​Book XVIII. Chap. 15, & 16.would immediately go and seek it under another, or retire into the woods and live there with their families. The liberty of the man is so great among these people, that it necessarily draws after it the liberty of the citizen.
CHAP. XV. Of People who know the Use of Money.
ARISTIPPUS being cast away, swam and got safe to the next shore; where seeing geometrical figures traced in the sand, he was seized with a transport of joy, judging that he was amongst Greeks, and not in a nation of barbarians.
Being alone, and cast by some accident amongst an unknown people; if you see a piece of money, be assured, that you are arrived in a civilized nation.
The culture of lands requires the use of money. This culture supposes many arts and degrees of knowledge; and we always see ingenuity, the arts, and a sense of want, making their progress with an equal pace. All this conduces to the establishment of a sign of value.
Torrents and eruptions have made the discovery that metals were concealed in the earth. When they have once been separated, they have easily been applied to their proper uses.
CHAP. XVI. Of civil Laws amongst People who know not the Use of Money.
WHEN a people have not the use of money, they are seldom acquainted with any other ​Book XVIII. Chap. 16, & 17.injustice than that which springs from violence; and the weak, by uniting, defend themselves from its effects. They have nothing there but political regulations. But where money is established, they are subject to that injustice which proceeds from craft; an injustice that may be exercised a thousand ways. From hence they are forced to have good civil laws, which spring up with the new means, and the several methods of becoming wicked.
In countries where they have no money, the robber takes only bare moveables, which have no resemblance to each other. In countries where they make use of money, the robber takes the signs, and these always resemble each other. In the first nothing can be concealed, because the robber always take along with him the proofs of his conviction; but in the others, it is quite the contrary.
CHAP. XVII. Of political Laws amongst Nations who have not the Use of Money.
THE greatest security of the liberties of a people who do not cultivate the earth, is their not knowing the use of money. What is gained by hunting, fishing, or keeping herds of cattle, cannot be assembled in such great quantities, nor be sufficiently preserved, for one man to find himself in a condition to corrupt many others: but when, instead of this, a man has the sign of riches, he may obtain a large quantity of these signs, and distribute them amongst whom he pleases.
The people who have no money, have but few wants, and these are supplied both with ease, and ​Book XVIII. Chap. 18, & 19.in an equal manner. Equality is then unavoidable; and from hence it proceeds, that their chiefs are not despotic.
CHAP. XVIII. Of the Power of Superstition.
IF what travellers tell us be true, the constitution of a nation of Louisiana, called the Natches, is an exception to this. Their chief disposes of the goods of all his subjects, and makes them labour according to his pleasure. He has a power like that of the grand signor, and they cannot even refuse him their heads. \Vhen the presumptive heir enters into the world, they give him all the sucking children to serve him during his life. One would imagine that this is the great Sesostris. He is treated in his cabin, with as much ceremony as an emperor of Japan or China.
The prejudices of superstition are superior to all other prejudices, and its reasons to all other reasons. Thus, though the savage nations have naturally no knowledge of despotic tyranny, yet this people feel it. They adore the sun , and if their chief had not imagined that he was the brother of this glorious luminary, they would have thought him a miserable wretch like themselves.
CHAP. XIX. Of the Liberty of the Arabs, and the Servitude of the Tartars.
THE Arabs and Tartars are nations of herdsmen and shepherds. The Arabs find ​Book VIII. Chap. 19.themselves in that general situation, of which we have been speaking, and are therefore free: whilst the Tartars (the most singular people on earth) are involved in a political slavery. I have already given some reasons for this, and shall now give others.
They have no towns, they have no forests, and but few marshes; their rivers are almost always frozen, and they dwell in an immense plain. They have pasture for their herds and flocks, and consequently property; but they have no kind of retreat, or place of safety. A Khan is no sooner overcome than they cut off his head; his children are treated in the same manner, and all his subjects belong to the conqueror. These are not condemned to a civil slavery; they would in that case be a burthen to a simple nation, who have no lands to cultivate, and no need of any domestic service. They therefore augment the nation; but instead of civil slavery, a political one must naturally be introduced amongst them.
It is apparent, that in a country where the several clans make continual war, and are perpetually conquering each other; in a country, where by the death of the chief, the body politic of the vanquished clan is always destroyed, the nation in general can enjoy but little freedom: for there is not a single party that must not have been a very great number of times subdued.
A conquered people may preserve some degree ​Book XVIII. Chap. 20.of liberty, when by the strength of their situation, they are in a state, that will admit of their capitulating after their defeat. But the Tartars always defenceless, being once overcome, can never be able to stand upon conditions.
I have said in Chap. II. that the inhabitants of cultivated plains are seldom free. Circumstances have concurred to put the Tartars who dwell in uncultivated plains, in the same situation.
CHAP. XX. Of the Law of Nations as practised by the Tartars.
THE Tartars appear to be mild and humane amongst themselves; and yet they are most cruel conquerors: when they take cities, they put the inhabitants to the sword, and imagine that they do them a favour when they sell them, or distribute them amongst their soldiers. They have destroyed Asia, from India, even to the Mediterranean; and all the country which forms the east of Persia they have made a desert.
This law of nations is owing, I think, to the following cause. This people having no towns, all their wars are carried on with eagerness and impetuosity. They fight whenever they hope to conquer; and when they have no such hopes; they join the stronger army. With such customs, it is contrary to their law of nations, that a city which cannot resist, should stop their progress. They regard not cities as an assembly of inhabitants, but as places made to set limits to their power. They besiege them without art, and ​Book XVIII. Chap. 21, & 22.expose themselves greatly in their sieges; and therefore revenge themselves by the blood of all those who have spilt theirs.
CHAP. XXI. The Civil Law of the Tartars.
FATHER Du Halde says, that amongst the Tartars, the youngest of the males is always the heir, by reason that as soon as the elder are capable of leading a pastoral life, they leave the house with a certain number of cattle given them by the father, and go to build a new habitation. The last of the males who continues in the house with the father, is then his natural heir.
I have heard that a like custom was also observed in some small districts of England. This was doubtless a pastoral law conveyed thither by some of the people of Britany, or established by some German nation. We are informed by Cæsar and Tacitus, that these last cultivated but little land.
CHAP. XXII. Of a Civil Law of the German Nations.
ISHALL here explain how that particular passage of the Salic law, which is commonly distinguished by the term The Salic Law, relates to the institutions of a people who do not cultivate the earth, or at least who cultivate it but very little.
The Salic law ordains that when a man has left children behind him, the males shall succeed to the Salic land, to the prejudice of the females.
​Book XVIII. Chap. 22.To understand the nature of those Salic lands, there needs no more than to search into the usages or customs with respect to land amongst the Franks before they came out of Germany.
Mr. Echard has very plainly proved that the word Salic is derived from Sala, which signifies a house; and, that therefore, the Salic land was the land of the house. I shall go farther, and examine what was the house, and what the land belonging to the house, among the Germans.
"They dwell not in towns, says Tacitus, nor can they bear to have their houses joined to those of others; every one leaves a space or small piece of ground about his house, which is inclosed and shut up." Tacitus is very exact in this account; for many laws of the Barbarian codes have different decrees against those who threw down this enclosure, as well as against those who broke into the house.
We learn from Tacitus and Cæsar, that the lands cultivated by the Germans, were given them only for the space of a year; after which they again became public. They had no other patrimony but the house and a piece of land, within the inclosure that surrounded it. It was this particular patrimony which belonged to the males. And indeed how could it belong to the daughters? they were to pass into another house.
The Salic land was then within that enclosure, which belonged to a German house , this was the ​Book XVIII. Chap. 22.only property they had. The Franks after their conquests, acquired new possessions, and continued to call them Salic lands.
When the Franks lived in Germany, their wealth consisted of slaves, flocks, horses, arms, &c. the house and the small portion of land adjoining to it, were naturally given to the male children who were to dwell there. But afterwards when the Franks had by conquest acquired large divisions of land, they thought it hard, that the daughters and their children should be incapable of enjoying any part of them. They introduced a custom of permitting the father to recall his daughter, and her children. They silenced the law; and it appears that these recalls were frequent, since they were entered in the formularies.
Amongst all these formularies I find one of a singular nature. A grandfather recalled his grandchildren to succeed with his sons and daughters. What then became of the Salic law? In those times either it could not be observed, or the continual use of recalling the daughters had made them regard their ability to inherit, as a case authorized by custom.
The Salic law had not in view a preference of one sex to the other, much less had it a regard to the perpetuity of a family, a name, or the transmission of land. These things did not enter into the heads of the Germans; it was purely a law of œconomy which gave the house, and the land dependent on the house, to the males who should dwell in it, and to whom it consequently was of most service.
​Book XVIII. Chap. 22We need here on]y transcribe the title of the Allodial lands of the Salic law, that famous text of which so many have spoken, and which so few have read.
"If a man dies without issue, his father or mother shall succeed him. 2. If he has neither father nor mother, his brother or sister shall succeed him. 3. If he has neither brother nor sister, the sister of his mother shall succeed him. 4. If his mother has no sister, the sister of his father shall succeed him. 5. If his father has no sister, the nearest relation by the male shall succeed. 6. Not any part of the Salic land shall pass to the females; but it shall belong to the males, that is, the male children shall succeed their father."
It is plain that the first five articles relate to the inheritance of a man who dies without issue; and the sixth to the succession of him who has children.
When a man dies without children, the law ordains that neither of the two sexes shall have the preference to the other, except in certain cases. In the two first degrees of succession, the advantages of the males and females were the same; in the third and fourth, the females had the preference, and the males in the fifth.
Tacitus gives us the seeds of these extravagancies: "The sister's childern, says he, are as dear to ​Book XVIII. Chap. 22.their uncle as to their own father. There are men who regard this degree of kindred as more strict, and even more holy. They prefer it when they receive hostages." From hence it proceeds that our earliest historians speak in such strong terms of the love of the kings of the Franks for their sisters, and their sisters children. And indeed if the children of the sister were considered in her brother's house, as his own children, it was natural for these to regard their aunt as their mother.
The sister of the mother was preferred to the father's sister; this is explained by other texts of the Salic law. When a woman was a widow, the sell under the guardianship of her husband's relations; the law preferred to this guardianship the relations by the females before those by the males. Indeed a woman who entered into a family, joining herself with those of her own sex, became more united to her relations by the female than by the male. Moreover, when a man had killed another, and had not wherewithal to pay the pecuniary penalty he had incurred, the law permitted him to deliver up his substance, and his relations were to supply what was wanting. After the father, mother and brother, the sister of the mother was to pay, as if this tie had something in it most tender: now the degrees of kindred which gives the burthens, ought to give also the advantages.
The Salic law enjoins that after the father's sister, the succession should be held by the nearest relation male; but if this relation was beyond the fifth ​Book XVIII. Chap. 22.degree, he should not inherit. Thus a woman of the fifth degree, might inherit to the prejudice of a male of the sixth: and this may be seen in the law of the Ripuarian Franks, (a faithful interpretation of the Salic law) under the title of Allodial lands, where it follows step by step the Salic law on the same subject.
If the father left issue, the Salic law would have the daughters excluded from the inheritance of the Salic land, and that it should belong to the male children.
It would be easy for me to prove that the Salic law did not absolutely exclude the daughters from the possession of the Salic land, but only in the case where they were excluded by their brothers. This appears from the Salic law itself; which after having said that the women shall possess none of the Salic land, but only the males, interprets and restrains itself, by adding, "that is, the son shall succeed to the inheritance of the father."
2. The text of the Salic law is cleared up by the law of the Riparian Franks, which has also a title on allodial lands very conformable to that of the Salic law.
3. The laws of these barbarous nations, who all sprung from Germany, interpret each other, more particularly as they all have nearly the same spirit. The Saxon law enjoined the father and mother to leave their inheritance to their son, and not to ​Book XVIII. Chap. 22.their daughter; but if there were none but daughters, they were to have the whole inheritance.
4. We have two ancient formularies that state the case, in which according to the Salic law the daughters were excluded by the males, that is when they were in competition with their brother.
5. Another formulary proves, that the daughter succeeded to the prejudice of the grandson; she was therefore excluded only by the son.
6. If daughters had been generally excluded by the Salic law from the inheritance of land, it would be impossible to explain the histories, formularies, and charters, which are continually mentioning the lands and possessions of the women, under the first race.
People have been to blame to assert, that the Salic lands were fiefs. 1. This head is distinguished by the title of allodial lands. 2. Fiefs at first were not hereditary. 3. If the Salic lands had been fiefs, how could Marculsus treat that custom as impious which excluded the women from inheriting, when the males themselves did not succeed to fiefs? 4. The charters which have been cited to prove that the Salic lands were fiefs, only prove that they were freeholds. 5. Fiefs were not established till after the conquest, and the Salic customs subsisted long before the Franks left Germany. 6. It was not the Salic law which by setting bounds to the succession of women formed the establishment of fiefs; but it was the establishment of fiefs that set limits to the succession of women, and to the regulations of the Salic law.
After what has been said, one would not imagine that the perpetual succession of the males to the crown of France should have taken its rise from the Salic ​Book XVIII. Chap. 23.law. And yet ibis is a point indubitably certain. I prove it from the several codes of the barbarous nations. The Salic law and the law of the Burgundians refused the daughters the right of succeeding to the land in conjunction with their brothers; neither did they succeed to the crown. The law of the Visigoths on the contrary, permitted the daughters to inherit the land with the brothers; and the women were capable of inheriting the crown. Amongst these people the regulations of the civil law had an effect on the political.
This was not the only case in which the political law of the Franks gave way to the civil law. By the Salic law all the brothers succeeded equally to the land, and this was also decreed by a law of the Burgundians. Thus in the kingdom of the Franks, and in that of the Burgundians, all the brothers succeeded to the crown; if we except a few murders and usurpations which took place amongst the Burgundians.
CHAP. XXIII. Of the Ornaments of Royalty.
A PEOPLE who do not cultivate the land, have not so much as an idea of luxury. We may see in Tacitus the admirable simplicity of the German nations; the arts were not employed in their ornaments; these were founded in nature. It the family of their chief was to be distinguished by any sign, it was no other than that which nature bestowed. The kings of the Franks ​Book XVIII. Chap. 24, & 25.of the Burgundians, and the Visigoths, had their long hair for a diadem.
CHAP. XXIV. Of the Marriages of the Kings of the Franks.
I HAVE already said, that with people who do not cultivate the earth, marriages are less fixed than with others, and that they generally take many wives. "The Germans were almost the only people of all the barbarous nations, who were satisfied with one wife, if we except, says Tacitus, some persons, who, not from a disoluteness of manners, but because of their nobility, had many."
This explains the reason why the kings of the first race had so great a number of wives. These marriages were less a proof of incontinence, than an attribute of dignity: and it would have wounded them in a tender point to have deprived them of such a prerogative. This explains the reason why the example of the kings was not followed by the subjects.
CHAP. XXV. Childeric.
"MARRIAGES amongst the Germans, says Tacitus, are strictly observed. Vice ​Book XVIII. Chap.26.is not there a subject of ridicule. To corrupt or be corrupted, is not called a point of fashion; or a manner of spending life: there are few examples in this populous nation of the violation of conjugal faith."
This was the reason of the expulsion of Childeric: he shocked their rigid virtue, which conquest had not had time to corrupt.
CHAP. XXVI. Of the Time when the Kings of the Franks became of Age.
BARBARIANS who do not cultivate the earth, have, strictly speaking, no jurisdiction, and are, as we have already said, rather governed by the law of nations, than by civil laws. They are therefore always armed. Thus Tacitus tells us, "that the Germans undertook no affairs either of a public or private nature, unarmed." They gave their opinion by a sign with their arms. As soon as they could carry them, they were presented to the assembly; they put a javelin into their hands: from that moment they were out of their infancy; they had been a part of the family, now they became a part of the republic.
​Book XVIII. Chap. 26.Childebert II. was fifteen years old, when Gontram his uncle declared that he was of age, and capable of governing by himself. "I have put, says he, this javelin into thy hands, as a token, that I have given thee all my kingdom;" and then turning towards the assembly, he added, "you see that my son Childebert is become a man; obey him."
We find in the Ripuarian laws, that the age of fifteen, the ability of bearing arms, and majority went together. It is there said; "that if a Ripuarian dies, or is killed, and leaves a son behind him, that son can neither prosecute, nor be prosecuted, till he has completely attained the age of fifteen; and then he may either answer for himself, or chuse a champion." It was necessary that his mind should be sufficiently formed, that he might be able to defend himself in court; and that his body should have all the strength that was proper for his defence in combat. Amongst the Burgundians, who also made use of combat in their judiciary proceedings, they were of age at fifteen.
Agathias tells us, that the arms of the Franks were light. They might therefore be of age at fifteen. In succeeding times the arms they made use of were heavy, and they were already greatly so in the time of Charlemain, as appears by our ​Book XVIII. Chap. 27.capitularies and romances. Those who had fiefs, and were consequently obliged to do military service, were not then of age, till they were twenty one years old.
CHAP. XXVII. The same Subject continued.
WE have seen that the Germans did not appear in their assemblies, before they were of age; they were a part of the family but not of the republic. This was the reason that the children of Clodomir king of Orleans, and conqueror of Burgundy, were not declared kings, because they of too tender an age to be present at the assembly. They were not yet kings, but they had a right to be kings as soon as they were able to bear arms; and in the mean time Clotildis their grandmother governed the state. But their uncles Clotarius and Childebert assassinated them, and divided their kingdom. This action was the cause that in the following ages, princes in their minority were declared kings immediately after the death of their fathers. Thus duke Gondovald saved Childebert II. from the cruelty of Chilperic, and caused him to be declared king when he was only five years old.
​Book XVIII. Chap. 28.But even in this chance they followed the original spirit of the nation; for the acts did not pass in the name of the young king. So that the Franks had a double administration, the one which concerned the person of the infant king, and the other which regarded the kingdom; and in the fiefs there was a difference between the guardianship and the civil administration.
CHAP. XXVIII. Of the sanguinary Temper of the Kings of tie Franks.
CLOVIS was not the only prince amongst the Franks who had invaded Gaul. Many of his relations had entered this country with particular tribes; but as he had much greater success, and could give considerable establishments to those that followed him, the Franks ran to him from all the tribes, so that the other chiefs found themselves too weak to resist him. He formed a design of exterminating his whole race, and he succeeded. He feared, says Gregory of Tours, lest the Franks should chufe another chief. His children and successors followed this practice to the utmost of their power. Thus the brother, the uncle, the nephew, and what is still worse, the father or the son, were perpetually conspiring against their whole family. The law continually divided the monarchy; while fear, ambition, and cruelty, wanted to reunite it.
CHAP. XXIX. Of the national Assemblies of the Franks.
Book XVIII. Chap. 29.IT has been remarked above that nations who do not cultivate the land enjoy great liberty. This was the case of the Germans. Tacitus says, that they gave their kings, or chiefs, a very moderate degree of power; and Cæsar adds farther, that in times of peace, they had no common magistrates; but their princes distributed justice in each village. Thus, as Gregory of Tours sufficiently proves, the Franks in Germany had no king.
"The princes, says Tacitus, deliberate on small matters; while affairs of great importance are laid before the whole nation; but in such a manner, that these very affairs, which are under the cognizance of the people, are at the same time laid before the princes." This custom was observed by them after their conquests, as may be seen in all their records.
Tacitus says, that capital crimes might be carried before the assembly. It was the same after the conquest, when the great vassals were tried before that body.
CHAP. XXX. Of the Authority of the Clergy under the first Race.
Book XVIII. Chap. 30.THE priests of barbarous nations are commonly invested with power, because they have both that authority which is due to them from their religious character, and that influence which amongst such a people arises from superstition. Thus we see in Tacitus, that priests were held in great veneration by the Germans, and that they presided in the assembly of the people. They alone were permitttd to chastise, to bind, to smite; which they did, not by order of the prince, or as his ministers of justice; but as by an inspiration of that Deity who was always supposed to be present with those who made war.
We ought not to be astonished if from the very beginning of the first race, we see bishops the dispensers of justice, if we see them appear in the assemblies of the nation, if they have such a prodigious influence on the minds of kings, and if they acquire so large a share of property.
* ↑ Lib. 17.
* ↑ Life of Solon.
* ↑ Or he who wrote the book De Mirabiubus.
* ↑ Japan is an exception to this, by its great extent as well as by its slavery.
* ↑ Polybius, I. 10.
* ↑ It is thus that Diodorus tells us the shepherds found gold in the Pyrenean mountains.
* ↑ Edifying letters, 20th Collect.
* ↑ When a Khan is proclaimed, all the people cry: that his word shall be as a sword.
* ↑ Book XVII. c. 5.
* ↑ We ought not therefore to be astonished at Mahomet the son of Miriveis, who, upon taking Ispahan, put all the princes of the blood to the sword.
* ↑ Tit. 62.
* ↑ Nullas Germanorum populis urbes babitari satis motum est, ne pati quidem inter se junctas sedes; colunt discreti, ut nemus placuit. Vicos locant, non in nostrum morem connexis & cohærentibus ædisiciis, suam quisque domum spatio circumdat. De moribus Germanorum.
* ↑ The law of the ALemans, c. 10. and the law of the Bavarians, tit. 10. §. 1, and 2.
* ↑ This enclosure is called Cortis, in the charters.
* ↑ See Marculsus, 1, 2. form. 10, & 12. Append. to Marculs. form., 49. and the ancient formularies of Sirmondus form. 22.
* ↑ Form. 55. in Lindembroch's collection.
* ↑ De terra vero Salica in mulierem nulla portio bereditatis transit, sed boc virilis sexus acquirit, boc est silii in spsa hereditate succedunt. Tit, 62. § 6.
* ↑ Sororum silis idem apud avunculum quam apud patrem honor. Suidam sanetiorem aretioremque hunc nexum sanguinis arbitrantur, in accipienis absidibus magis exigunt, tanquam ii amiunm sirius domum latius teneant. De morib. Germanorum.
* ↑ See in Gregory of Tours, lib. 8. c 18, and 20. and lib. 9. c. 16, and 20. the rage of Gontram at Leovigild's ill treatment of Ingunda his niece, which Childebert her brother took up arms to revenge.
* ↑ Salic law, tit. 47.
* ↑ Ibid. tit. 61. §. 1.
* ↑ Et deinceps usque ad quintam genuculum qui proximus suerit in heriditatem succedat. Tit. 56. §. 3.
* ↑ 56.
* ↑ Tit. 7. §. 1. Pater aut mater defuneti, silo non siliæ hereditat em relinquant; §. 4. qui desunetus, non silios, sed silias reliquerit, ad cas omnis bereditas pertineat.
* ↑ In Marculsus, 1. 2 form. 12. and in the Appendix to Marculsus, form. 49.
* ↑ Lindembroch's collection form 55.
* ↑ Ducange, Pithou, &c.
* ↑ Tit. 62.
* ↑ Tit. 1. § 3 tit. 14. §. 1. & tit 54.
* ↑ Lib. 4. tit. 2. § 1.
* ↑ The German nations, says Tacitus, had common customs, and also those which were peculiar to each.
* ↑ Props soli Barbarorum singulis uxoribus contenti sunt. De morib. Germanorum.
* ↑ Exceptis admodum paucis qui non libidine, sed ob nobilitattm, plurimis nuptiis ambiuntur. Ibid.
* ↑ See Fredegarius's chronicle of the year 628.
* ↑ Severa matrimonia—nemo illic vitia ridet, nec corrumpere corrumpi sæculum vocatur. De moribus Germanorum.
* ↑ Paucissima in tam numerosu gente adulteria. Ibid.
* ↑ Nibil neque publicæ neque privatre rei nisi armati agunt. Ibid.
* ↑ Si diseplicait sentcntia, sremitu aspernantur; sin placuit, frameas concutiunt. Ibid.
* ↑ Sed arma semere ante cuiquam moris quam civitas suffecturum probaverit.
* ↑ Tum in ipso concilio vel principum aliquis, vel pater, vel propinquus, seuto framedque juvenem ornant.
* ↑ Hæc apud illos toga, bic primus juventæ bonos; ante hoc domus pars videntur, mox reipublicæ.
* ↑ He was scarcely five years old, says Gregory of Tours, 1. 5. c. 1. when he succeeded to his father in the fear 575. Gontram declares him of age in the year 585, he was therefore at that time no more than fifteen.
* ↑ Gontramnus datâ in Childeberti manu hastâ dixit: hoc est indicium quod tibi omne regnum meum tradidi. Ibid 1. 7. c. 33.
* ↑ Gontram declared that his nephew Childebert, who was already king, was out of his minority, and besides he made him his heir.
* ↑ Tit. 81.
* ↑ Tit. 87.
* ↑ There was no change in the time in regard to the common people.
* ↑ St. Lewis was not of age till twenty one; this was changed by an edict of Charles V. in the year 1374.
* ↑ It appears from Gregory of Tours. 1. 2. that she chose two natives of Burgundy, which had been conquered by Clodomir, to raise them to the see of Tours, which also belonged to Clodomir.
* ↑ Gregory of Tours, 1. 5. c. 1. vix lustro œtatis uno jam peracto, qui die Dominicœ Natalis regnare cœpit.
* ↑ Gregory of Tours, 1. 2.
* ↑ Ibid.
* ↑ Nee Regibus libera aut insinita potestas. Cœterum neque animadveriere, nequt vincire, neque verberare, &c. De morib, Germ.
* ↑ In pace nuilus est communis magistratus, sed principes regionum qtque pagerum inter suos jus dicunt. De bello Gall. lib. 6.
* ↑ Lib. 2.
* ↑ De mmoribus principes consultaut. de majoribus omnes; ita tamen ut ca quorum penes plebem arbitrium est, apud principes pertractentur. De morib, Germ.
* ↑ Lex consensu Populi sit constitutione Regis. Capitularies of Charles the Bald, Anno 864. art. 6.
* ↑ Licet apud Concilium accusare discrimen capitis intendere. De morib. Germ.
* ↑ Silentium per sacerdotes, quitus coercendi jus est, imperatur. De morib Germ.
* ↑ Nec legibus libera aut infinita potestas. Cœterùm neque animadvertere, neque vincire. neque verberare, nisi sacerdotibus est permisfum, non quasi in pœnam, nec Ducis jussu, sed velut Deo imperante, quem adesse bellatoribui credunt. De morib. Germ.
* ↑ See the constitutions of Clotarius in the year 560. art. 6.