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?
Did the Jews take the custom of fasting from the Egyptians, all of whose rites they imitated, including flagellation and the scape-goat? Why fasted Jesus for forty days in the desert, where He was tempted by the devil – by the "Chathbull"? St. Matthew remarks that after this Lent He was hungry; He was therefore not hungry during the fast.
Why, in days of abstinence, does the Roman Church consider it a crime to eat terrestrial animals, and a good work to be served with soles and salmon? The rich Papist who shall have five hundred francs' worth of fish upon his table shall be saved, and the poor wretch dying with hunger, who shall have eaten four sous' worth of salt pork, shall be damned.
Why must we ask permission of the bishop to eat eggs? If a king ordered his people never to eat eggs, would he not be thought the most ridiculous of tyrants? How strange the aversion of bishops to omelets!
Can we believe that among Papists there have been tribunals imbecile, dull, and barbarous enough to condemn to death poor citizens, who had no other crimes than that of having eaten of horseflesh in Lent? The fact is but too true; I have in my hands a sentence of this kind. What renders it still more strange is that the judges who passed such sentences believed themselves superior to the Iroquois.
Foolish and cruel priests, to whom do you order Lent? Is it to the rich? they take good care to observe it. Is it to the poor? they keep Lent all the year. The unhappy peasant scarcely ever eats meat, and has not wherewithal to buy fish. Fools that you are, when will you correct your absurd laws?
LEPROSY, ETC
This article relates to two powerful divinities, one ancient and the other modern, which have reigned in our hemisphere. The reverend father Dom Calmet, a great antiquarian, that is, a great compiler of what was said in former times and what is repeated at the present day, has confounded lues with leprosy. He maintains that it was the lues with which the worthy Job was afflicted, and he supposes, after a confident and arrogant commentator of the name of Pineida, that the lues and leprosy are precisely the same disorder. Calmet is not a physician, neither is he a reasoner, but he is a citer of authorities; and in his vocation of commentator, citations are always substituted for reasons. When Astruc, in his history of lues, quotes authorities that the disorder came in fact from San Domingo, and that the Spaniards brought it from America, his citations are somewhat more conclusive.
There are two circumstances which, in my opinion, prove that lues originated in America; the first is, the multitude of authors, both medical and surgical, of the sixteenth century, who attest the fact; and the second is, the silence of all the physicians and all the poets of antiquity, who never were acquainted with this disease, and never had even a name for it. I here speak of the silence of physicians and of poets as equally demonstrative. The former, beginning with Hippocrates, would not have failed to describe this malady, to state its symptoms, to apply to it a name, and suggest some remedy. The poets, equally as malicious and sarcastic as physicians are studious and investigative, would have detailed in their satires, with minute particularity, all the symptoms and consequences of this dreadful disorder; you do not find, however, a single verse in Horace or Catullus, in Martial or Juvenal, which has the slightest reference to lues, although they expatiate on all the effects of debauchery with the utmost freedom and delight.
It is very certain that smallpox was not known to the Romans before the sixth century; that the American lues was not introduced into Europe until the fifteenth century; and that leprosy is as different from those two maladies, as palsy from St. Guy's or St. Vitus' dance.
Leprosy was a scabious disease of a dreadful character. The Jews were more subject to it than any other people living in hot climates, because they had neither linen, nor domestic baths. These people were so negligent of cleanliness and the decencies of life that their legislators were obliged to make a law to compel them even to wash their hands.
All that we gained in the end by engaging in the crusades, was leprosy; and of all that we had taken, that was the only thing that remained with us. It was necessary everywhere to build lazarettos, in which to confine the unfortunate victims of a disease at once pestilential and incurable.
Leprosy, as well as fanaticism and usury, had been a distinguishing characteristic of the Jews. These wretched people having no physicians, the priests took upon themselves the management and regulation of leprosy, and made it a concern of religion. This has occasioned some indiscreet and profane critics to remark that the Jews were no better than a nation of savages under the direction of their jugglers. Their priests in fact never cured leprosy, but they cut off from society those who were infected by it, and thus acquired a power of the greatest importance. Every man laboring under this disease was imprisoned, like a thief or a robber; and thus a woman who was desirous of getting rid of her husband had only to secure the sanction of the priest, and the unfortunate husband was shut up – it was the "lettre de cachet" of the day. The Jews and those by whom they were governed were so ignorant that they imagined the moth-holes in garments, and the mildew upon walls, to be the effects of leprosy. They actually conceived their houses and clothes to have leprosy; thus the people themselves, and their very rags and hovels, were all brought under the rod of the priesthood.
One proof that, at the time of the first introduction of the lues, there was no connection between that disorder and leprosy, is that the few lepers that remained at the conclusion of the fifteenth century were offended at any kind of comparison between themselves and those who were affected by lues.
Some of the persons thus affected were in the first instance sent to the hospital for lepers, but were received by them with indignation. The lepers presented a petition to be separated from them; as persons imprisoned for debt or affairs of honor claim a right not to be confounded with the common herd of criminals.
We have already observed that the Parliament of Paris, on March 6, 1496, issued an order, by which all persons laboring under lues, unless they were citizens of Paris, were enjoined to depart within twenty-four hours, under pain of being hanged. This order was neither Christian, legal, nor judicious; but it proves that lues was regarded as a new plague which had nothing in common with leprosy; as lepers were not hanged for residing in Paris, while those afflicted by lues were so.
Men may bring the leprosy on themselves by their uncleanliness and filth, just as is done by a species of animals to which the very lowest of the vulgar may too naturally be compared; but with respect to lues, it was a present made to America by nature. We have already reproached this same nature, at once so kind and so malicious, so sagacious and yet so blind, with defeating her own object by thus poisoning the source of life; and we still sincerely regret that we have found no solution of this dreadful difficulty.
We have seen elsewhere that man in general, one with another, or (as it is expressed) on the average, does not live above two-and-twenty years; and during these two-and-twenty years he is liable to two-and-twenty thousand evils, many of which are incurable.
Yet even in this dreadful state men still strut and figure on the stage of life; they make love at the hazard of destruction; and intrigue, carry on war, and form projects, just as if they were to live in luxury and delight for a thousand ages.