LAWS
SECTION I
It is difficult to point out a single nation living under a system of good laws. This is not attributable merely to the circumstance that laws are the productions of men, for men have produced works of great utility and excellence; and those who invented and brought to perfection the various arts of life were capable of devising a respectable code of jurisprudence. But laws have proceeded, in almost every state, from the interest of the legislator, from the urgency of the moment, from ignorance, and from superstition, and have accordingly been made at random, and irregularly, just in the same manner in which cities have been built. Take a view of Paris, and observe the contrast between that quarter of it where the fish-market (Halles) is situated, the St. Pierre-aux-bœufs, the streets Brisemiche and Pet-au-diable and the beauty and splendor of the Louvre and the Tuileries. This is a correct image of our laws.
It was only after London had been reduced to ashes that it became at all fit to be inhabited. The streets, after that catastrophe, were widened and straightened. If you are desirous of having good laws, burn those which you have at present, and make fresh ones.
The Romans were without fixed laws for the space of three hundred years; they were obliged to go and request some from the Athenians, who gave them such bad ones that they were almost all of them soon abrogated. How could Athens itself be in possession of a judicious and complete system? That of Draco was necessarily abolished, and that of Solon soon expired.
Our customary or common law of Paris is interpreted differently by four-and-twenty commentaries, which decidedly proves, the same number of times, that it is ill conceived. It is in contradiction to a hundred and forty other usages, all having the force of law in the same nation, and all in contradiction to each other. There are therefore, in a single department in Europe, between the Alps and the Pyrenees, more than forty distinct small populations, who call themselves fellow-countrymen, but who are in reality as much strangers to one another as Tonquin is to Cochin China.
It is the same in all provinces of Spain. It is in Germany much worse. No one there knows what are the rights of the chief or of the members. The inhabitant of the banks of the Elbe is connected with the cultivator of Suabia only in speaking nearly the same language, which, it must be admitted, is rather an unpolished and coarse one.
The English nation has more uniformity; but having extricated itself from servitude and barbarism only by occasional efforts, by fits and convulsive starts, and having even in its state of freedom retained many laws formerly promulgated, either by the great tyrants who contended in rivalship for the throne, or the petty tyrants who seized upon the power and honors of the prelacy, it has formed altogether a body of laws of great vigor and efficacy, but which still exhibit many bruises and wounds, very clumsily patched and plastered.
The intellect of Europe has made greater progress within the last hundred years than the whole world had done before since the days of Brahma, Fohi, Zoroaster, and the Thaut of Egypt. What then is the cause that legislation has made so little?
After the fifth century, we were all savages. Such are the revolutions which take place on the globe; brigands pillaging and cultivators pillaged made up the masses of mankind from the recesses of the Baltic Sea to the Strait of Gibraltar; and when the Arabs made their appearance in the South, the desolation of ravage and confusion was universal.
In our department of Europe, the small number, being composed of daring and ignorant men, used to conquest and completely armed for battle, and the greater number, composed of ignorant, unarmed slaves, scarcely any one of either class knowing how to read or write – not even Charlemagne himself – it happened very naturally that the Roman Church, with its pen and ceremonies, obtained the guidance and government of those who passed their life on horseback with their lances couched and the morion on their heads.
The descendants of the Sicambri, the Burgundians, the Ostrogoths, Visigoths, Lombards, Heruli, etc., felt the necessity of something in the shape of laws. They sought for them where they were to be found. The bishops of Rome knew how to make them in Latin. The barbarians received them with greater respect in consequence of not understanding them. The decretals of the popes, some genuine, others most impudently forged, became the code of the new governors, "regas"; lords, "leus"; and barons, who had appropriated the lands. They were the wolves who suffered themselves to be chained up by the foxes. They retained their ferocity, but it was subjugated by credulity and the fear which credulity naturally produces. Gradually Europe, with the exception of Greece and what still belonged to the Eastern Empire, became subjected to the dominion of Rome, and the poet's verse might be again applied as correctly as before: Romanos rerum dominos gentemque togatam.– Æneid, i, 286.
The subject world shall Rome's dominion own,
And prostrate shall adore the nation of the gown.
– DRYDEN.
Almost all treaties being accompanied by the sign of the cross, and by an oath which was frequently administered over some relics, everything was thus brought within the jurisdiction of the Church. Rome, as metropolitan, was supreme judge in causes, from the Cimbrian Chersonesus to Gascony; and a thousand feudal lords, uniting their own peculiar usages with the canon law, produced in the result that monstrous jurisprudence of which there at present exist so many remains. Which would have been better – no laws at all, or such as these?
It was beneficial to an empire of more vast extent than that of Rome to remain for a long time in a state of chaos; for, as every valuable institution was still to be formed, it was easier to build a new edifice than to repair one whose ruins were looked upon as sacred.
The legislatrix of the North, in 1767, collected deputies from all the provinces which contained about twelve hundred thousand square leagues. There were Pagans, Mahometans of the sect of Ali, and others of the sect of Omar, and about twelve different sects of Christians. Every law was distinctly proposed to this new synod; and if it appeared conformable to the interest of all the provinces, it then received the sanction of the empress and the nation.
The first law that was brought forward and carried, was a law of toleration, that the Greek priest might never forget that the Latin priest was his fellow-man; that the Mussulman might bear with his Pagan brother; and that the Roman Catholic might not be tempted to sacrifice his brother Presbyterian.
The empress wrote with her own hand, in this grand council of legislation, "Among so many different creeds, the most injurious error would be intolerance."
It is now unanimously agreed that there is in a state only one authority; that the proper expressions to be used are, "civil power," and "ecclesiastical discipline"; and that the allegory of the two swords is a dogma of discord.
She began with emancipating the serfs of her own particular domain. She emancipated all those of the ecclesiastical domains. She might thus be said to have created men out of slaves.
The prelates and monks were paid out of the public treasury. Punishments were proportioned to crimes, and the punishments were of a useful character; offenders were for the greater part condemned to labor on public works, as the dead man can be of no service to the living.
The torture was abolished, because it punishes a man before he is known to be guilty; because the Romans never put any to the torture but their slaves; and because torture tends to saving the guilty and destroying the innocent.
This important business had proceeded thus far, when Mustapha III., the son of Mahmoud, obliged the empress to suspend her code and proceed to fighting.
SECTION II
I have attempted to discover some ray of light in the mythological times of China which precede Fohi, but I have attempted in vain.
At the period, however, in which Fohi flourished, which was about three thousand years before the new and common era of our northwestern part of the world, I perceive wise and mild laws already established by a beneficent sovereign. The ancient books of the Five Kings, consecrated by the respect of so many ages, treat of the institution of agriculture, of pastoral economy, of domestic economy, of that simple astronomy which regulates the different seasons, and of the music which, by different modulations, summoned men to their respective occupations. Fohi flourished, beyond dispute, more than five thousand years ago. We may therefore form some judgment of the great antiquity of an immense population, thus instructed by an emperor on every topic that could contribute to their happiness. In the laws of that monarch I see nothing but what is mild, useful and amiable.
I was afterwards induced to inspect the code of a small nation, or horde, which arrived about two thousand years after the period of which we have been speaking, from a frightful desert on the banks of the river Jordan, in a country enclosed and bristled with peaked mountains. These laws have been transmitted to ourselves, and are daily held up to us as the model of wisdom. The following are a few of them:
"Not to eat the pelican, nor the ossifrage, nor the griffin, nor the ixion, nor the eel, nor the hare, because the hare ruminates, and has not its foot cloven."
"Against men sleeping with their wives during certain periodical affections, under pain of death to both of the offending parties."
"To exterminate without pity all the unfortunate inhabitants of the land of Canaan, who were not even acquainted with them; to slaughter the whole; to massacre all, men and women, old men, children, and animals, for the greater glory of God."
"To sacrifice to the Lord whatever any man shall have devoted as an anathema to the Lord, and to slay it without power of ransom."
"To burn widows who, not being able to be married again to their brothers-in-law, had otherwise consoled themselves on the highway or elsewhere," etc.
A Jesuit, who was formerly a missionary among the cannibals, at the time when Canada still belonged to the king of France, related to me that once, as he was explaining these Jewish laws to his neophytes, a little impudent Frenchman, who was present at the catechising, cried out, "They are the laws of cannibals." One of the Indians replied to him, "You are to know, Mr. Flippant, that we are people of some decency and kindness. We never had among us any such laws; and if we had not some kindness and decency, we should treat you as an inhabitant of Canaan, in order to teach you civil language."
It appears upon a comparison of the code of the Chinese with that of the Hebrews, that laws naturally follow the manners of the people who make them. If vultures and doves had laws, they would undoubtedly be of a very different character.
SECTION III
Sheep live in society very mildly and agreeably; their character passes for being a very gentle one, because we do not see the prodigious quantity of animals devoured by them. We may, however, conceive that they eat them very innocently and without knowing it, just as we do when we eat Sassenage cheese. The republic of sheep is a faithful image of the age of gold.
A hen-roost exhibits the most perfect representation of monarchy. There is no king comparable to a cock. If he marches haughtily and fiercely in the midst of his people, it is not out of vanity. If the enemy is advancing, he does not content himself with issuing an order to his subjects to go and be killed for him, in virtue of his unfailing knowledge and resistless power; he goes in person himself, ranges his young troops behind him, and fights to the last gasp. If he conquers, it is himself who sings the "Te Deum." In his civil or domestic life, there is nothing so gallant, so respectable, and so disinterested. Whether he has in his royal beak a grain of corn or a grub-worm, he bestows it on the first of his female subjects that comes within his presence. In short, Solomon in his harem was not to be compared to a cock in a farm-yard.
If it be true that bees are governed by a queen to whom all her subjects make love, that is a more perfect government still.
Ants are considered as constituting an excellent democracy. This is superior to every other state, as all are, in consequence of such a constitution, on terms of equality, and every individual is employed for the happiness of all. The republic of beavers is superior even to that of ants; at least, if we may judge by their performances in masonry.
Monkeys are more like merry-andrews than a regularly governed people; they do not appear associated under fixed and fundamental laws, like the species previously noticed.
We resemble monkeys more than any other animals in the talent of imitation, in the levity of our ideas, and in that inconstancy which has always prevented our having uniform and durable laws.
When nature formed our species, and imparted to us a certain portion of instinct, self-love for our own preservation, benevolence for the safety and comfort of others, love which is common to every class of animal being, and the inexplicable gift of combining more ideas than all the inferior animals together – after bestowing on us this outfit she said to us: "Go, and do the best you can."
There is not a good code of laws in any single country. The reason is obvious: laws have been made for particular purposes, according to time, place, exigencies, and not with general and systematic views.
When the exigencies upon which laws were founded are changed or removed, the laws themselves become ridiculous. Thus the law which forbade eating pork and drinking wine was perfectly reasonable in Arabia, where pork and wine are injurious; but at Constantinople it is absurd.
The law which confers the whole fief or landed property on the eldest son, is a very good one in a time of general anarchy and pillage. The eldest is then the commander of the castle, which sooner or later will be attacked by brigands; the younger brothers will be his chief officers, and the laborers his soldiers. All that is to be apprehended is that the younger brother may assassinate or poison the elder, his liege lord, in order to become himself the master of the premises; but such instances are uncommon, because nature has so combined our instincts and passions, that we feel a stronger horror against assassinating our elder brother, than we feel a desire to succeed to his authority and estate. But this law, which was suitable enough to the owners of the gloomy, secluded, and turreted mansions, in the days of Chilperic, is detestable when the case relates wholly to the division of family property in a civilized and well-governed city.
To the disgrace of mankind, the laws of play or gaming are, it is well known, the only ones that are throughout just, clear, inviolable, and carried into impartial and perfect execution. Why is the Indian who laid down the laws of a game of chess willingly and promptly obeyed all over the world, while the decretals of the popes, for example, are at present an object of horror and contempt? The reason is, that the inventor of chess combined everything with caution and exactness for the satisfaction of the players, and that the popes in their decretals looked solely to their own advantage. The Indian was desirous at once of exercising the minds of men and furnishing them with amusement; the popes were desirous of debasing and brutifying them. Accordingly, the game of chess has remained substantially the same for upwards of five thousand years, and is common to all the inhabitants of the earth; while the decretals are known only at Spoleto, Orvieto, and Loretto, and are there secretly despised even by the most shallow and contemptible of the practitioners.
SECTION IV
During the reigns of Vespasian and Titus, when the Romans were disembowelling the Jews, a rich Israelite fled with all the gold he had accumulated by his occupation as a usurer, and conveyed to Ezion-Geber the whole of his family, which consisted of his wife, then far advanced in years, a son, and a daughter; he had in his train two eunuchs, one of whom acted as a cook, and the other as a laborer and vine-dresser; and a pious Essenian, who knew the Pentateuch completely by heart, acted as his almoner. All these embarked at the port of Ezion-Geber, traversed the sea commonly called Red, although it is far from being so, and entered the Persian Gulf to go in search of the land of Ophir, without knowing where it was. A dreadful tempest soon after this came on, which drove the Hebrew family towards the coast of India; and the vessel was wrecked on one of the Maldive islands now called Padrabranca, but which was at that time uninhabited.
The old usurer and his wife were drowned; the son and daughter, the two eunuchs, and the almoner were saved. They took as much of the provisions out of the wreck as they were able; erected for themselves little cabins on the island, and lived there with considerable convenience and comfort. You are aware that the island of Padrabranca is within five degrees of the line, and that it furnishes the largest cocoanuts and the best pineapples in the world; it was pleasant to have such a lovely asylum at a time when the favorite people of God were elsewhere exposed to persecution and massacre; but the Essenian could not refrain from tears when he reflected, that perhaps those on that happy island were the only Jews remaining on the earth, and that the seed of Abraham was to be annihilated.
"Its restoration depends entirely upon you," said the young Jew; "marry my sister." "I would willingly," said the almoner, "but it is against the law. I am an Essenian; I have made a vow never to marry; the law enjoins the strictest observance of a vow; the Jewish race may come to an end, if it must be so; but I will certainly not marry your sister in order to prevent it, beautiful and amiable as I admit she is."
"My two eunuchs," resumed the Jew, "can be of no service in this affair; I will therefore marry her myself, if you have no objection; and you shall bestow the usual marriage benediction."
"I had a hundred times rather be disembowelled by the Roman soldiers," said the almoner, "than to be instrumental to your committing incest; were she your sister by the father's side only, the law would allow of your marriage; but as she is your sister by the same mother, such a marriage would be abominable."
"I can readily admit," returned the young man, "that it would be a crime at Jerusalem, where I might see many other young women, one of whom I might marry; but in the isle of Padrabranca, where I see nothing but cocoanuts, pineapples, and oysters, I consider the case to be very allowable."
The Jew accordingly married his sister, and had a daughter by her, notwithstanding all the protestations of the Essenian; and this was the only offspring of a marriage which one of them thought very legitimate, and the other absolutely abominable.
After the expiration of fourteen years, the mother died; and the father said to the almoner, "Have you at length got rid of your old prejudices? Will you marry my daughter?" "God preserve me from it," said the Essenian. "Then," said the father, "I will marry her myself, come what will of it; for I cannot bear that the seed of Abraham should be totally annihilated." The Essenian, struck with inexpressible horror, would dwell no longer with a man who thus violated and defiled the law, and fled. The new-married man loudly called after him, saying, "Stay here, my friend. I am observing the law of nature, and doing good to my country; do not abandon your friends." The other suffered him to call, and continue to call, in vain; his head was full of the law; and he stopped not till he had reached, by swimming, another island.
This was the large island of Attola, highly populous and civilized; as soon as he landed he was made a slave. He complained bitterly of the inhospitable manner in which he had been received; he was told that such was the law, and that, ever since the island had been very nearly surprised and taken by the inhabitants of that of Ada, it had been wisely enacted that all strangers landing at Attola should be made slaves. "It is impossible that can ever be a law," said the Essenian, "for it is not in the Pentateuch." He was told in reply, that it was to be found in the digest of the country; and he remained a slave: fortunately he had a kind and wealthy master, who treated him very well, and to whom he became strongly attached.
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.