A Philosophical Dictionary, Volume 07

Some murderers once came to the house in which he lived, to kill his master and carry off his treasure. They inquired of the slaves if he was at home, and had much money there. "We assure you, on our oaths," said the slaves, "that he is not at home." But the Essenian said: "The law does not allow lying; I swear to you that he is at home, and that he has a great deal of money." The master was, in consequence, robbed and murdered; the slaves accused the Essenian, before the judges, of having betrayed his master. The Essenian said, that he would tell no lies, and that nothing in the world should induce him to tell one; and he was hanged.

This history was related to me, with many similar ones, on the last voyage I made from India to France. When I arrived, I went to Versailles on business, and saw in the street a beautiful woman, followed by many others who were also beautiful. "Who is that beautiful woman?" said I to the barrister who had accompanied me; for I had a cause then depending before the Parliament of Paris about some dresses that I had had made in India, and I was desirous of having my counsel as much with me as possible. "She is the daughter of the king," said he, "she is amiable and beneficent; it is a great pity that, in no case or circumstance whatever, such a woman as that can become queen of France." "What!" I replied, "if we had the misfortune to lose all her relations and the princes of the blood – which God forbid – would not she, in that case, succeed to the throne of her father?" "No," said the counsellor; "the Salic law expressly forbids it." "And who made this Salic law?" said I to the counsellor. "I do not at all know," said he; "but it is pretended, that among an ancient people called the Salii, who were unable either to read or write, there existed a written law, which enacted, that in the Salic territory a daughter should not inherit any freehold." "And I," said I to him, "I abolish that law; you assure me that this princess is amiable and beneficent; she would, therefore, should the calamity occur of her being the last existing personage of royal blood, have an incontestable right to the crown: my mother inherited from her father; and in the case supposed, I am resolved that this princess shall inherit from hers."

On the ensuing day, my suit was decided in one of the chambers of parliament, and I lost everything by a single vote; my counsellor told me, that in another chamber I should have gained everything by a single vote. "That is a very curious circumstance," said I: "at that rate each chamber proceeds by a different law." "That is just the case," said he: "there are twenty-five commentaries on the common law of Paris: that is to say, it is proved five and twenty times over, that the common law of Paris is equivocal; and if there had been five and twenty chambers of judges, there would be just as many different systems of jurisprudence. We have a province," continued he, "fifteen leagues distant from Paris, called Normandy, where the judgment in your cause would have been very different from what it was here." This statement excited in me a strong desire to see Normandy; and I accordingly went thither with one of my brothers. At the first inn, we met with a young man who was almost in a state of despair. I inquired of him what was his misfortune; he told me it was having an elder brother. "Where," said I, "can be the great calamity of having an elder brother? The brother I have is my elder, and yet we live very happily together." "Alas! sir," said he to me, "the law of this place gives everything to the elder brother, and of course leaves nothing for the younger ones." "That," said I, "is enough, indeed, to disturb and distress you; among us everything is divided equally; and yet, sometimes, brothers have no great affection for one another."

These little adventures occasioned me to make some observations, which of course were very ingenious and profound, upon the subject of laws; and I easily perceived that it was with them as it is with our garments: I must wear a doliman at Constantinople, and a coat at Paris.

"If all human laws," said I, "are matters of convention, nothing is necessary but to make a good bargain." The citizens of Delhi and Agra say that they have made a very bad one with Tamerlane: those of London congratulate themselves on having made a very good one with King William of Orange. A citizen of London once said to me: "Laws are made by necessity, and observed through force." I asked him if force did not also occasionally make laws, and if William, the bastard and conqueror, had not chosen simply to issue his orders without condescending to make any convention or bargain with the English at all. "True," said he, "it was so: we were oxen at that time; William brought us under the yoke, and drove us with a goad; since that period we have been metamorphosed into men; the horns, however, remain with us still, and we use them as weapons against every man who attempts making us work for him and not for ourselves."

With my mind full of all these reflections, I could not help feeling a sensible gratification in thinking, that there exists a natural law entirely independent of all human conventions: The fruit of my labor ought to be my own: I am bound to honor my father and mother: I have no right over the life of my neighbor, nor has my neighbor over mine, etc. But when I considered, that from Chedorlaomer to Mentzel, colonel of hussars, every one kills and plunders his neighbor according to law, and with his patent in his pocket, I was greatly distressed.

I was told that laws existed even among robbers, and that there were laws also in war. I asked what were the laws of war. "They are," said some one, "to hang up a brave officer for maintaining a weak post without cannon; to hang a prisoner, if the enemy have hanged any of yours; to ravage with fire and sword those villages which shall not have delivered up their means of subsistence by an appointed day, agreeably to the commands of the gracious sovereign of the vicinage." "Good," said I, "that is the true spirit of laws." After acquiring a good deal of information, I found that there existed some wise laws, by which a shepherd is condemned to nine years' imprisonment and labor in the galleys, for having given his sheep a little foreign salt. My neighbor was ruined by a suit on account of two oaks belonging to him, which he had cut down in his wood, because he had omitted a mere form of technicality with which it was almost impossible that he should have been acquainted; his wife died, in consequence, in misery; and his son is languishing out a painful existence. I admit that these laws are just, although their execution is a little severe; but I must acknowledge I am no friend to laws which authorize a hundred thousand neighbors loyally to set about cutting one another's throats. It appears to me that the greater part of mankind have received from nature a sufficient portion of what is called common sense for making laws, but that the whole world has not justice enough to make good laws.

Simple and tranquil cultivators, collected from every part of the world, would easily agree that every one should be free to sell the superfluity of his own corn to his neighbor, and that every law contrary to it is both inhuman and absurd; that the value of money, being the representative of commodities, ought no more to be tampered with than the produce of the earth; that the father of a family should be master in his own house; that religion should collect men together, to unite them in kindness and friendship, and not to make them fanatics and persecutors; and that those who labor ought not to be deprived of the fruits of their labor, to endow superstition and idleness. In the course of an hour, thirty laws of this description, all of a nature beneficial to mankind, would be unanimously agreed to.

But let Tamerlane arrive and subjugate India, and you will then see nothing but arbitrary laws. One will oppress and grind down a whole province, merely to enrich one of Tamerlane's collectors of revenue; another will screw up to the crime of high treason, speaking contemptuously of the mistress of a rajah's chief valet; a third will extort from the farmer a moiety of his harvest, and dispute with him the right to the remainder; in short, there will be laws by which a Tartar sergeant will be authorized to seize your children in the cradle – to make one, who is robust, a soldier – to convert another, who is weak, into a eunuch – and thus to leave the father and mother without assistance and without consolation.

But which would be preferable, being Tamerlane's dog or his subject? It is evident that the condition of his dog would be by far the better one.

LAWS (SPIRIT OF)

It would be admirable, if from all the books upon laws by Bodin, Hobbes, Grotius, Puffendorf, Montesquieu, Barbeyrac, and Burlamaqui, some general law was adopted by the whole of the tribunals of Europe upon succession, contracts, revenue offences, etc. But neither the citations of Grotius, nor those of Puffendorf, nor those of the "Spirit of Laws," have ever led to a sentence in the Châtelet of Paris or the Old Bailey of London. We weary ourselves with Grotius, pass some agreeable moments with Montesquieu; but if process be deemed advisable, we run to our attorney.

It has been said that the letter kills, but that in the spirit there is life. It is decidedly the contrary in the book of Montesquieu; the spirit is diffusive, and the letter teaches nothing.

False Citations In The "Spirit Of Laws", And False Consequences Drawn From Them By The Author.

It is observed, that "the English, to favor liberty, have abstracted all the intermediate powers which formed part of their constitution."

On the contrary, they have preserved the Upper House, and the greater part of the jurisdictions which stand between the crown and the people.

"The establishment of a vizier in a despotic state is a fundamental law."

A judicious critic has remarked that this is as much as to say that the office of the mayors of the palace was a fundamental office. Constantine was highly despotic, yet had no grand vizier. Louis XIV. was less despotic, and had no first minister. The popes are sufficiently despotic, and yet seldom possess them.

"The sale of employments is good in monarchical states, because it makes it the profession of persons of family to undertake employments, which they would not fulfil from disinterested motives alone."

Is it Montesquieu who writes these odious lines? What! because the vices of Francis I. deranged the public finances, must we sell to ignorant young men the right of deciding upon the honor, fortune, and lives of the people? What! is it good in a monarchy, that the office of magistrate should become a family provision? If this infamy was salutary, some other country would have adopted it as well as France; but there is not another monarchy on earth which has merited the opprobrium. This monstrous anomaly sprang from the prodigality of a ruined and spendthrift monarch, and the vanity of certain citizens whose fathers possessed money; and the wretched abuse has always been weakly attacked, because it was felt that reimbursement would be difficult. It would be a thousand times better, said a great jurisconsult, to sell the treasure of all the convents, and the plate of all the churches, than to sell justice. When Francis I. seized the silver grating of St. Martin, he did harm to no one; St. Martin complained not, and parted very easily with his screen; but to sell the place of judge, and at the same time make the judge swear that he has not bought it, is a base sacrilege.

Let us complain that Montesquieu has dishonored his work by such paradoxes – but at the same time let us pardon him. His uncle purchased the office of a provincial president, and bequeathed it to him. Human nature is to be recognized in everything, and there are none of us without weakness.

"Behold how industriously the Muscovite government seeks to emerge from despotism."

Is it in abolishing the patriarchate and the active militia of the strelitzes; in being the absolute master of the troops, of the revenue, and of the church, of which the functionaries are paid from the public treasury alone? or is it proved by making laws to render that power as sacred as it is mighty? It is melancholy, that in so many citations and so many maxims, the contrary of what is asserted should be almost always the truth.

"The luxury of those who possess the necessaries of life only, will be zero; the luxury of those who possess as much again, will be equal to one; of those who possess double the means of the latter, three; and so on."

The latter will possess three times the excess beyond the necessaries of life; but it by no means follows that he will possess three times as many luxuries; for he may be thrice as avaricious, or may employ the superfluity in commerce, or in portions to his daughters. These propositions are not affairs of arithmetic, and such calculations are miserable quackery.

"The Samnites had a fine custom, which must have produced admirable results. The young man declared the most worthy chose a wife where he pleased; he who had the next number of suffrages in his favor followed, and so on throughout."

The author has mistaken the Sunites, a people of Scythia, for the Samnites, in the neighborhood of Rome. He quotes a fragment of Nicholas de Demas, preserved by Stobæus: but is the said Nicholas a sufficient authority? This fine custom would moreover be very injurious in a well-governed country; for if the judges should be deceived in the young man declared the most worthy; if the female selected should not like him; or if he were objectionable in the eyes of the girl's parents, very fatal results might follow.

"On reading the admirable work of Tacitus on the manners of the Germans, it will be seen that it is from them the English drew the idea of their political government. That admirable system originated in the woods."

The houses of peers and of commons, and the English courts of law and equity, found in the woods! Who would have supposed it? Without doubt, the English owe their squadrons and their commerce to the manners of the Germans; and the sermons of Tillotson to those pious German sorcerers who sacrificed their prisoners, and judged of their success in war by the manner in which the blood flowed. We must believe, also, that the English are indebted for their fine manufactures to the laudable practice of the Germans, who, as Tacitus observers, preferred robbery to toil.

"Aristotle ranked among monarchies the governments both of Persia and Lacedæmon; but who cannot perceive that the one was a despotism, the other a republic?"

Who, on the contrary, cannot perceive that Lacedæmon had a single king for four hundred years, and two kings until the extinction of the Heraclidæ, a period of about a thousand years? We know that no king was despotic of right, not even in Persia; but every bold and dissembling prince who amasses money, becomes despotic in a little time, either in Persia or Lacedæmon; and, therefore, Aristotle distinguishes every state possessing perpetual and hereditary chiefs, from republics.

"People of warm climates are timid, like old men; those of cold countries are courageous, like young ones."

We should take great care how general propositions escape us. No one has ever been able to make a Laplander or an Esquimaux warlike, while the Arabs in fourscore years conquered a territory which exceeded that of the whole Roman Empire. This maxim of M. Montesquieu is equally erroneous with all the rest on the subject of climate.

"Louis XIII. was extremely averse to passing a law which made the negroes of the French colonies slaves; but when he was given to understand that it was the most certain way of converting them, he consented."

Where did the author pick up this anecdote? The first arrangement for the treatment of the negroes was made in 1673, thirty years after the death of Louis XIII. This resembles the refusal of Francis I. to listen to the project of Christopher Columbus, who had discovered the Antilles before Francis I. was born.

"The Romans never exhibited any jealousy on the score of commerce. It was as a rival, not as a commercial nation, that they attacked Carthage."

It was both as a warlike and as a commercial nation, as the learned Huet proves in his "Commerce of the Ancients," when he shows that the Romans were addicted to commerce a long time before the first Punic war.

"The sterility of the territory of Athens established a popular government there, and the fertility of that of Lacedæmon an aristocratic one."

Whence this chimera? From enslaved Athens we still derive cotton, silk, rice, corn, oil, and skins; and from the country of Lacedæmon nothing. Athens was twenty times richer than Lacedæmon. With respect to the comparative fertility of the soil, it is necessary to visit those countries to appreciate it; but the form of a government is never attributed to the greater or less fertility. Venice had very little corn when her nobles governed. Genoa is assuredly not fertile, and yet is an aristocracy. Geneva is a more popular state, and has not the means of existing a fortnight upon its own productions. Sweden, which is equally poor, has for a long time submitted to the yoke of a monarchy; while fertile Poland is aristocratic. I cannot conceive how general rules can be established, which may be falsified upon the slightest appeal to experience.

"In Europe, empires have never been able to exist." Yet the Roman Empire existed for five hundred years, and that of the Turks has maintained itself since the year 1453.

"The duration of the great empires of Asia is principally owing to the prevalence of vast plains." M. Montesquieu forgets the mountains which cross Natolia and Syria, Caucasus, Taurus, Ararat, Imaus, and others, the ramifications of which extend throughout Asia.

After thus convincing ourselves that errors abound in the "Spirit of Laws"; after everybody is satisfied that this work wants method, and possesses neither plan nor order, it is proper to inquire into that which really forms its merit, and which has led to its great reputation.

In the first place, it is written with great wit, while the authors of all the other books on this subject are tedious. It was on this account that a lady, who possessed as much wit as Montesquieu, observed, that his book was "l'esprit sur les lois." It can never be more correctly defined.

A still stronger reason is that the book exhibits grand views, attacks tyranny, superstition, and grinding taxation – three things which mankind detest. The author consoles slaves in lamenting their fetters, and the slaves in return applaud him.

One of the most bitter and absurd of his enemies, who contributed most by his rage to exalt the name of Montesquieu throughout Europe, was the journalist of the Convulsionaries. He called him a Spinozist and deist; that is to say, he accused him at the same time of not believing in God and of believing in God alone.

He reproaches him with his esteem for Marcus Aurelius, Epictetus, and the Stoics; and for not loving Jansenists – the Abbé de St. Cyran and Father Quesnel. He asserts that he has committed an unpardonable crime in calling Bayle a great man.

He pretends that the "Spirit of Laws" is one of those monstrous works with which France has been inundated since the Bull Unigenitus, which has corrupted the consciences of all people.

This tatterdemalion from his garret, deriving at least three hundred per cent. from his ecclesiastical gazette, declaimed like a fool against interest upon money at the legal rate. He was seconded by some pedants of his own sort; and the whole concluded in their resembling the slaves placed at the foot of the statue of Louis XIV.; they are crushed, and gnaw their own flesh in revenge.

Montesquieu was almost always in error with the learned, because he was not learned; but he was always right against the fanatics and promoters of slavery. Europe owes him eternal gratitude.

LENT

SECTION I

Our questions on Lent will merely regard the police. It appeared useful to have a time in the year in which we should eat fewer oxen, calves, lambs, and poultry. Young fowls and pigeons are not ready in February and March, the time in which Lent falls; and it is good to cease the carnage for some weeks in countries in which pastures are not so fertile as those of England and Holland.

The magistrates of police have very wisely ordered that meat should be a little dearer at Paris during this time, and that the profit should be given to the hospitals. It is an almost insensible tribute paid by luxury and gluttony to indigence; for it is the rich who are not able to keep Lent – the poor fast all the year.

There are very few farming men who eat meat once a month. If they ate of it every day, there would not be enough for the most flourishing kingdom. Twenty millions of pounds of meat a day would make seven thousand three hundred millions of pounds a year. This calculation is alarming.

The small number of the rich, financiers, prelates, principal magistrates, great lords, and great ladies who condescend to have maigre served at their tables, fast during six weeks on soles, salmon, turbots, sturgeons, etc.

One of our most famous financiers had couriers, who for a hundred crowns brought him fresh sea fish every day to Paris. This expense supported the couriers, the dealers who sold the horses, the fishermen who furnished the fish, the makers of nets, constructors of boats, and the druggists from whom were procured the refined spices which give to a fish a taste superior to that of meat. Lucullus could not have kept Lent more voluptuously.

It should further be remarked that fresh sea fish, in coming to Paris, pays a considerable tax. The secretaries of the rich, their valets de chambre, ladies' maids, and stewards, partake of the dessert of Crœsus, and fast as deliciously as he.

It is not the same with the poor; not only if for four sous they partake of a small portion of tough mutton do they commit a great sin, but they seek in vain for this miserable aliment. What do they therefore feed upon? Chestnuts, rye bread, the cheeses which they have pressed from the milk of their cows, goats or sheep, and some few of the eggs of their poultry.

There are churches which forbid them the eggs and the milk. What then remains for them to eat? Nothing. They consent to fast; but they consent not to die. It is absolutely necessary that they should live, if it be only to cultivate the lands of the fat rectors and lazy monks.

We therefore ask, if it belongs not to the magistrates of the police of the kingdom, charged with watching over the health of the inhabitants, to give them permission to eat the cheeses which their own hands have formed, and the eggs which their fowls have laid?

It appears that milk, eggs, cheese, and all which can nourish the farmer, are regulated by the police, and not by a religious rule.

We hear not that Jesus Christ forbade omelets to His apostles; He said to them: "Eat such things as are set before you."

The Holy Church has ordained Lent, but in quality of the Church it commands it only to the heart; it can inflict spiritual pains alone; it cannot as formerly burn a poor man, who, having only some rusty bacon, put a slice of it on a piece of black bread the day after Shrove Tuesday.

Sometimes in the provinces the pastors go beyond their duty, and forgetting the rights of the magistracy, undertake to go among the innkeepers and cooks, to see if they have not some ounces of meat in their saucepans, some old fowls on their hooks, or some eggs in a cupboard; for eggs are forbidden in Lent. They intimidate the poor people, and proceed to violence towards the unfortunates, who know not that it belongs alone to the magistracy to interfere. It is an odious and punishable inquisition.

The magistrates alone can be rightly informed of the more or less abundant provisions required by the poor people of the provinces. The clergy have occupations more sublime. Should it not therefore belong to the magistrates to regulate what the people eat in Lent? Who should pry into the legal consumption of a country if not the police of that country?

SECTION II

Did the first who were advised to fast put themselves under this regimen by order of the physician, for indigestion? The want of appetite which we feel in grief – was it the first origin of fast-days prescribed in melancholy religions?