They who have a
genius sufficient to enable them to give laws to their own, or to
another nation, ought to be particularly attentive to the manner of
forming them.
The style ought to be concise. The laws of the Twelve Tables are a
model of conciseness; the very children used to learn them by heart.
[27]
Justinian's Novell were so very diffuse that they were obliged to
abridge them.
[28]
The style should also be plain and simple, a direct expression being
better understood than an indirect one. There is no majesty at all in
the laws of the lower empire; princes are made to speak like
rhetoricians. When the style of laws is inflated, they are looked upon
only as a work of parade and ostentation.
It is an essential article that the words of the laws should excite
in everybody the same ideas. Cardinal Richelieu
[29]
agreed that a
minister might be accused before the king, but he would have the accuser
punished if the facts he proved were not matters of moment. This was
enough to hinder people from telling any truth whatsoever against the
minister, because a matter of moment is entirely relative, and what may
be of moment to one is not so to another.
The law of Honorius punished with death any person that purchased a
freedman as a slave, or that gave him molestation.
[30]
He should not
have made use of so vague an expression; the molestation given a man
depends entirely on the degree of his sensibility.
When the law has to impose a penalty, it should avoid as much as
possible the estimating it in money. The value of money changes from a
thousand causes, and the same denomination continues without the same
thing. Every one knows the story of that impudent fellow at Rome
[31]
who used to give those he met a box on the ear, and afterwards tendered them
the five-and-twenty pence of the law of the Twelve Tables.
When the law has once fixed the idea of things, it should never
return to vague expressions. The ordinance of Louis XIV
[32]
concerning
criminal matters, after an exact enumeration of the causes in which the
king is immediately concerned, adds these words, "and those which in all
times have been subject to the determination of the king's judges"; this
again renders arbitrary what had just been fixed. Charles VII says
[33]
he has been informed that the parties appeal three, four, and six months
after judgment, contrary to the custom of the kingdom in a country where
custom prevailed; he therefore ordains that they shall appeal forthwith,
unless there happens to be some fraud or deceit on the part of the
attorney,
[34]
or unless there be a great or evident cause to discharge
the appeal. The end of this law destroys the beginning, and it destroys
it so effectually, that they used afterwards to appeal during the space
of thirty years.
[35]
The law of the Lombards does not allow a woman that has taken a
religious habit,
[36]
though she has made no vow, to marry; because, says
this law, "if a spouse who has been contracted to a woman only by a ring
cannot without guilt be married to another, for a much stronger reason
the spouse of God or of the blessed Virgin." Now, I say, that in laws
the arguments should be drawn from one reality to another, and not from
reality to figure, or from figure to reality.
A law enacted by Constantine
[37]
ordains that the single testimony
of a bishop should be sufficient without listening to any other
witnesses. This prince took a very short method; he judged of affairs
by persons, and of persons by dignities.
The laws ought not to be subtle; they are designed for people of
common understanding, not as an art of logic, but as the plain reason of
a father of a family.
When there is no necessity for exceptions and limitations in a law,
it is much better to omit them: details of that kind throw people into
new details.
No alteration should be made in a law without sufficient reason.
Justinian ordained that a husband might be repudiated and yet the wife
not lose her portion, if for the space of two years he had been
incapable of consummating the marriage.
[38]
He altered his law
afterwards, and allowed the poor wretch three years.
[39]
But in a case
of that nature two years are as good as three, and three are not worth
more than two.
When a legislator condescends to give the reason of his law it ought
to be worthy of its majesty. A Roman law decrees that a blind man is
incapable to plead, because he cannot see the ornaments of the
magistracy.
[40]
So bad a reason must have been given on purpose, when
such a number of good reasons were at hand.
Paul, the jurist, says
[41]
that a child grows perfect in the seventh
month, and that the ratio of Pythagoras' numbers seems to prove it. It
is very extraordinary that they should judge of those things by the
ratio of Pythagoras' numbers.
Some French lawyers have asserted that when the king made an
acquisition of a new country, the churches became subject to the Regale,
because the king's crown is round. I shall not examine here into the
king's rights, or whether in this case the reason of the civil or
ecclesiastic law ought to submit to that of the law of politics; I shall
only say that those august rights ought to be defended by grave maxims.
Was there ever such a thing known as the real rights of a dignity
founded on the figure of that dignity's sign?
Davila says
[42]
that Charles IX was declared of age in the
parliament of Rouen at the commencement of his fourteenth year, because
the laws require every moment of the time to be reckoned, in cases
relating to the restitution and administration of a ward's estate;
whereas it considers the year commenced as a year complete, when the
case is concerning the acquisition of honours. I am very far from
censuring a regulation which has been hitherto attended with no
inconvenience; I shall only notice that the reason alleged is not the
true one; it is false, that the government of a nation is only an
honour.
In point of presumption, that of the law is far preferable to that
of the man. The French law considers every act of a merchant during the
ten days preceding his bankruptcy as fraudulent:
[43]
this is the
presumption of the law. The Roman law inflicted punishments on the
husband who kept his wife after she had been guilty of adultery, unless
he was induced to do it through fear of the event of a lawsuit, or
through contempt of his own shame; this is the presumption of the man.
The judge must have presumed the motives of the husband's conduct, and
must have determined a very obscure and ambiguous point; when the law
presumes, it gives a fixed rule to the judge.
Plato's law,
[44]
as I have observed already, required that a
punishment should be inflicted on the person who killed himself not with
a design of avoiding shame, but through pusillanimity. This law was so
far defective that in the only case in which it was impossible to draw
from the criminal an acknowledgment of the motive upon which he had
acted, it required the judge to determine concerning these motives.
As useless laws debilitate such as are necessary, so those that may
be easily eluded weaken the legislation. Every law ought to have its
effect, and no one should be suffered to deviate from it by a particular
exception.
The Falcidian law ordained among the Romans, that the heir should
always have the fourth part of the inheritance; another law suffered the
testator to prohibit the heir from retaining this fourth part.
[45]
This
is making a jest of the laws. The Falcidian law became useless: for if
the testator had a mind to favour his heir, the latter had no need of
the Falcidian law; and if he did not intend to favour him, he forbad him
to make use of it.
Care should be taken that the laws be worded in such a manner as not
to be contrary to the very nature of things. In the proscription of the
Prince of Orange, Philip II promises to any man that will kill the
prince to give him, or his heirs, five-and-twenty thousand crowns,
together with the title of nobility; and this upon the word of a king,
and as a servant of God. To promise nobility for such an action! to
ordain such an action in the quality of a servant of God! This is
equally subversive of the ideas of honour, morality, and religion.
There very seldom happens to be a necessity of prohibiting a thing
which is not bad under pretence of some imaginary perfection.
There ought to be a certain simplicity and candour in the laws; made
to punish the iniquity of men, they themselves should be clad with the
robes of innocence. We find in the law of the Visigoths
[46]
that
ridiculous request, by which the Jews were obliged to eat everything
dressed with pork, provided they did not eat the pork itself. This was a
very great cruelty: they were obliged to submit to a law contrary to
their own; and they were obliged to retain nothing more of their own
than what might serve as a mark to distinguish them.
