Book XVIII.
Of Laws in the Relation They Bear to the Nature of the
Soil.
18.1. 1. How the Nature of the Soil has an Influence on the Laws.
The goodness of the land, in any country, naturally establishes subjection
and dependence. 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;
[1]
"are they the men of
commerce and 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 democracy; and
the fertility of that of Lacedmonia an aristocratic constitution. For in
those times Greece was averse to the government of a single person, and
aristocracy bore the nearest resemblance to that government.
Plutarch says
[2]
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 land in Attica. The men who
inhabited the eminences would, by all means, have a popular government;
those of the flat, open country demanded a government composed of the
chiefs; and they who were near the sea desired a mixture of both.
Footnotes
18.2. 2. The same Subject continued.
These fertile provinces are always of
a level surface, where the inhabitants are unable to dispute against a
stronger power; 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 districts, 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 rugged 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 expense, for the country furnishes
none. It is, then, a more arduous, a more dangerous, enterprise to make
war against them; and all the laws that can be enacted for the safety of
the people are there of least use.
18.3. 3. 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 everything.
It is natural for a people to leave a bad soil to seek a better, and
not to leave a good soil to go in search of worse. Most 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 provinces 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 tragic scenes that happened. "It
appears by many monuments of antiquity," says Aristotle,
[3]
"that the Sardinians were a Grecian colony. They were formerly very rich; and
Aristeus, so famed for his love of agriculture, was their law-giver. But
they have since fallen to decay; for the Carthaginians, becoming their
masters, destroyed everything proper tor the nourishment of man, and
forbade 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, Turkey, Muscovy, and Poland have
not been able to recover perfectly from the devastations of the Tartars.
Footnotes
[3]
Or he who wrote the book "De Mirabilibus."
18.4. 4. 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.
18.5. 5. Of the Inhabitants of Islands.
The inhabitants of islands have a higher relish for liberty than those of
the continent. Islands are commonly of small extent;
[4]
one part of the people cannot be so easily
employed to oppress the other; the sea separates them from great
empires; tyranny cannot so well support itself within a small compass:
conquerors are stopped by the sea; and the islanders, being without the
reach of their arms, more easily preserve their own laws.
Footnotes
[4]
Japan is an exception to this, by its great extent as well as by
its slavery.
18.6. 6. Of Countries raised by the Industry of Man.
Those countries which
the industry of man 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 Kiang-nan and Tsekiang in China; Egypt, and
Holland.
The ancient emperors of China were not conquerors. The first thing
they did to aggrandise 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 that 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 wise
than of a voluptuous nation, rather the lawful authority of a monarch
than the tyrannic sway of a despotic prince. Power was, therefore,
necessarily moderated in that country, as it was formerly in Egypt, and
as it is now 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 too
great an extent of empire, the first legislators of this country were
obliged to make excellent laws, and the government was frequently
obliged to follow them.
18.7. 7. Of human Industry.
Mankind by their industry, 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
[5]
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 expense
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 an industrious people are the source of
blessings which last when they are no more.
Footnotes
[5]
Polybius, lib. x, 25.
18.8. 8. The general Relation of Laws.
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 people who are content with
cultivating the earth. There should be a much greater for the latter
than for those who subsist by their flocks and herds. There must be a
still greater for these than for such as live by hunting.
18.9. 9. Of the Soil of America.
The cause of there being such a number of
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 around their
cottages, the maize grows up presently; and hunting and fishing put the
men in a state of complete abundance. Besides, black cattle, as cows,
buffaloes, &c., thrive there better than carnivorous beasts. The
latter have always reigned in Africa.
We should not, I believe, have all these advantages in Europe if the
land was left uncultivated; it would scarcely produce anything besides
forests of oaks and other barren trees.
18.10. 10. Of Population in the Relation it bears to the Manner of
procuring Subsistence.
Let us see in what proportion countries are
peopled where the inhabitants do not cultivate the earth. As the produce
of uncultivated land is to that of land improved by culture, so the
number of savages in one country is to that of husbandmen in another:
and when the people who cultivate the land cultivate also the arts, this
is also in such proportions as would require a minute detail.
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 constitute a very
small nation.
Their country commonly abounds with forests, which, as the
inhabitants have not the art of draining off the waters, are filled with
bogs; here each troop canton themselves, and form a petty nation.
18.11. 11. Of savage and barbarous Nations.
There is this difference
between savage and barbarous nations: the former are dispersed clans,
which for some particular reason cannot be joined in a body; and the
latter are commonly small nations, capable of being united. The savages
are generally hunters; the barbarians are herdsmen and shepherds.
This appears plain in the north of Asia. The people of Siberia
cannot live in bodies, because they are unable to find subsistence; the
Tartars may live in bodies for some time, because their herds and flocks
may for a time be reassembled. All the clans may then be reunited, and
this is effected 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 southern empire.
18.12. 12. Of the Law of Nations among People who do not cultivate the
Earth.
As these people do not live in circumscribed territories, many
causes of strife arise between them; they quarrel about waste land as we
about inheritances. Thus they find frequent occasions for war, in
disputes in relation either to their hunting, their fishing, the pasture
for their cattle, or the violent seizing of their slaves; and as they
are not possessed of landed property, they have many things to regulate
by the law of nations, and but few to decide by the civil law.
18.13. 13. Of the Civil Laws of those Nations who do not cultivate the
Earth.
The division of lands is what principally increases the civil code. Among
nations 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.
Among 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 among 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 a flat open country, where there are
few places of considerable strength, their wives, their children, their
flocks, may become the prey of their enemies.
The laws regulate the division of plunder, and give, like our Salic
laws, a particular attention to theft.
18.14. 14. Of the political State of the People who do not cultivate the
Land.
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 should deprive them of their liberty, they would immediately go
and seek it under another, or retire into the woods, and there live with
their families. The liberty of the man is so great among these people
that it necessarily draws after it that of the citizen.
18.15. 15. Of People who know the Use of Money.
Aristippus, being cast
away, swam and got safely to the next shore, where, beholding
geometrical figures traced in the sand, he was seized with a transport
of joy, judging that he was among Greeks, and not in a nation of
barbarians.
Should you ever happen to be cast by some adventure among an unknown
people; upon seeing a piece of money you may be assured that you have
arrived in a civilised country.
The culture of lands requires the use of money. This culture
supposes many inventions and many 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 are
contained in the bowels of the earth.
[6]
When once they have been
separated, they have easily been applied to their proper use.
Footnotes
[6]
It is thus that Diodorus, v. 35, tells us the shepherds found
gold in the Pyrenean mountains.
18.16. 16. Of Civil Laws among People who know not the Use of Money.
When a people have not the use of money, they are seldom acquainted with any
other injustice than that which arises 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 in a thousand ways. Hence they are forced to have good civil
laws, which spring up with the new practices of iniquity.
In countries where they have no specie, the robber takes only bare
movables, which have no mutual resemblance. But where they make use of
money, the robber takes the signs, and these always resemble each other.
In the former nothing can be concealed, because the robber takes along
with him the proofs of his conviction; but in the latter it is quite the
contrary.
18.17. 17. Of political Laws among 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 quantity, 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 a sign of riches, he may obtain a large quantity of
these signs, and distribute them as he pleases.
The people who have no money have but few wants; and these are
supplied with ease, and in an equal manner. Equality is then
unavoidable; and hence it proceeds that their chiefs are not despotic.
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 obliges them to work and
toil, according to his pleasure.
[7]
He has a power like that of the
grand signior, and they cannot even refuse him their heads. When the
presumptive heir enters the world, they devote all the sucking children
to his service during his life. One would imagine that this is the great
Sesostris. He is treated in his cottage with as much ceremony as an
emperor of Japan or China.
Footnotes
[7]
"Edifying Letters," coll. xx.
18.18. 18. Of the Power of Superstition.
The prejudices of superstition are
superior to all others, and have the strongest influence on the human
mind. Thus, though the savage nations have naturally no knowledge of
despotic tyranny, still they feel the weight of 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 wretch like themselves.
18.19. 19. 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 themselves in that 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.
[8]
I have already given
reasons for this
[9]
and shall now assign some others.
They have no towns, no forests, and but few marshes; their rivers
are generally frozen, and they dwell in a level country of an immense
extent. 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,
[10]
and all his subjects belong to the
conqueror. These are not condemned to a civil slavery, for in that case
they would be a burden to a simple people, who have no lands to
cultivate, and no need of any domestic service. They therefore add to
the bulk of the nation; but instead of civil servitude, a political
slavery must naturally be introduced among 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 often
subdued.
A conquered people may preserve some degree of liberty when, by the
strength of their situation, they are in a state that will admit of
capitulating after their defeat. But the Tartars, always defenceless,
being once overcome, can never be able to obtain conditions.
I have said, in chapter 2, that the inhabitants of cultivated plains
are seldom free. Circumstances have occurred to put the Tartars, who
dwell in uncultivated plains, in the same situation.
Footnotes
[8]
When a khan is proclaimed, all the people cry that his word shall
be as a sword.
[10]
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.
18.20. 20. Of the Law of Nations as practised by the Tartars.
The Tartars appear to be mild and humane among themselves; and yet they are most
cruel conquerors: when they take cities they put the inhabitants to the
sword, and imagine that they act humanely if they only sell the people,
or distribute them among their soldiers.
They have destroyed Asia, from India even to the Mediterranean; and
all the country which forms the east of Persia they have rendered a
desert.
The law of nations is owing, I think, to the following cause. These
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 hope, they join the stronger army. With such customs, it is
contrary to the law of nations that a city incapable of repelling their
attack should stop their progress. They regard not cities as an
association of inhabitants, but as places made to bid defiance to their
power. They besiege them without military skill, and expose themselves
greatly in the attack; and therefore revenge themselves on all those who
have spilled their blood.
18.21. 21. 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 brothers are capable of leading a pastoral life
they leave the house with a certain number of cattle, given them by
their father, and build a new habitation. The last of the males, who
continues at home with the father, is then his natural heir.
I have heard that a like custom was also observed in some small
districts of England; and we find it still in Brittany, in the duchy of
Rohan, where it obtains with regard to ignoble tenures. This is
doubtless a pastoral law conveyed thither by some of the people of
Britain, or established by some German nation. By Csar and Tacitus we
are informed that the latter cultivated but little land.
18.22. 22. Of a Civil Law of the German Nations.
I shall 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
[11]
that, when a man has left children behind
him, the males shall succeed to the Salic land in preference to the
females.
To understand the nature of those Salic lands, there needs no more
than to search into the usages or customs of the Franks with regard to
lands before they left Germany.
Mr. Echard has very plainly proved that the word Salic is derived
from Sala, which signifies a house; and therefore that the Salic land
was the land belonging to the house. I shall proceed further, and
examine into the nature of the house, and of the land belonging to the
house, among the Germans.
"They dwell not in towns," says Tacitus, "nor can they bear to have
their habitations contiguous to those of others; every one leaves a
space or small piece of ground about his house, which is enclosed."
[12]
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 such as broke into the house.
[13]
We learn from Tacitus and Csar 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 enclosure that surrounded it.
[14]
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 habitation.
The Salic land was then within that enclosure which belonged to a
German house; this was the 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 habitation and the small portion of
land adjoining it were naturally given to the male children who were to
dwell there. But afterwards, when the Franks had by conquest acquired
large tracts of land, they thought it hard that the daughters and their
children should be incapable of enjoying any part of them. Hence it was
that they introduced a custom of permitting the father to settle the
estate after his death upon his daughter, and her children. They
silenced the law; and it appears that these settlements were frequent,
since they were entered in the formularies.
[15]
Among these formularies I find one of a singular nature.
[16]
A grandfather ordained by will that his grandchildren should share his
inheritance with his sons and daughters. What then became of the Salic
law? In those times either it would not be observed, or the continual
use of nominating the daughters to an inheritance had made them consider
their ability to succeed as a case authorised 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 an economical law, which made the house and the
land dependent thereon to the males who should dwell in it, and to whom
it consequently was of most service.
We need here only transcribe the title of the Allodial Lands of the
Salic law; that famous text of which so many have talked, and which so
few have read.
"1. 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 relative by the male side 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."
[17]
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 first two 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 points out the source of these extravagances. "The sister's
children," says he, "are as dear to 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."
[18]
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.
[19]
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 became a
widow,
[20]
she fell under the guardianship of her husband's relatives;
the law preferred to this guardianship the relatives 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
relatives by the female than by the male. Moreover, when a man killed
another, and had not wherewithal to pay the pecuniary penalty, the law
permitted him to deliver up his substance, and his relatives were to
supply the deficiency.
[21]
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 degree of kindred which imposes the burdens ought also
to confer the advantages.
The Salic law enjoins that after the father's sister, the succession
should be held by the nearest relative male; but if this relative was
beyond the fifth degree, he should not inherit. Thus a female 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
interpreter of the Salic law), under the title of Allodial Lands, where
it closely adheres to the Salic law on the same subject.
[22]
If the father left issue, the Salic law would have the daughters
excluded from the inheritance of the Salic land, and determined 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 debarred by their brothers. This
appears from the letter of the Salic law; 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
Ripuarian Franks, which has also a title on allodial lands very
conformable to that of the Salic law.
[23]
3. The laws of these barbarous nations who all sprang 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 their daughter; but if there were
none but daughters, they were to have the whole inheritance.
[24]
4. We have two ancient formularies
[25]
that state the case in which,
according to the Salic law, the daughters were excluded by the males;
that is, when they stood in competition with their brother.
5. Another formulary
[26]
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 debarred 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 females under the first race.
People have been wrong in asserting that the Salic lands were
fiefs.
[27]
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 Marculfus 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 show that they were freeholds. 5. Fiefs were not
established till after the conquest, and the Salic customs existed long
before the Franks left Germany. 6. It was not the Salic law that formed
the establishment of fiefs, by setting bounds to the succession of
females; but it was the establishment of fiefs that prescribed limits to
the succession of females, and to the regulations of the Salic law.
After what has been said, one would not imagine that the perpetual
succession of males to the crown of France should have taken its rise
from the Salic law. And yet this is a point indubitably certain. I prove
it from the several codes of the barbarous nations. The Salic law,
[28]
and the law of the Burgundians,
[29]
debarred the daughters from the
right of succeeding to the land in conjunction with their brothers;
neither did they succeed to the crown. The law of the Visigoths,
[30]
on the contrary, permitted the daughters to inherit the land with the
brothers:
[31]
and the women were capable of inheriting the crown.
[32]
Among 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. 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.
Footnotes
[12]
"Nullas Germanorum populis urbes habitari satis notum est, ne
pati quidem inter se junctas sedes; colunt discreti, ut nemus placuit.
Vicos locant, non in nostrum morem connexis et cohærentibus ædifidis:
suam quisque domum spatio circumdat." — "De Moribus Germanorum," 16.
[13]
The Law of the Alemans, chap. 10, and the Law of the Bavarians, tit.
10, sections 1 and 2.
[14]
This inclosure is called Cortis in the charters.
[15]
See Marculfus, lib. ii, form. 10 and 12. Appendix to Marculfus, form.
49, and the ancient formularies of "Sirmondus," form. 22.
[16]
Form. 55, in Lindembroch's collection.
[17]
"De terra vero Salica in mulierem nulla portio hereditatis
transit, sed hoc virilis sexus acquirit, hoc est filii in ipsa
hereditate succedunt." — Tit. 68, section 6.
[18]
"Sororum filiis idem apud avunculum quam apud patrem honor.
Quidam sanctiorem arcti-oremque hunc nexum sanguinis arbitrantur, et in
accipiendis obsidibus magis exigunt, tanquam ii et animum firmius et
domum latius teneant." — "De Moribus Germanorum," 20.
[19]
See, in Gregory of Tours, lib. viii, chaps. 18, 20 and lib. ix, chaps. 16, 20, the rage
of Gontram at Leovigild's ill-treatment of Ingunda, his niece, which
Childebert her brother took up arms to revenge.
[22]
Et deinceps usque ad quintum genuculum qui proximus fuerit in
hereditatem succedat. — Tit. 56, 6.
[24]
Tit. 7, 1: Pater aut mater defuncti, filio non filiæ
hereditatem relinquant; 4, qui defunctus, non filios, sed filias
reliquerit, ad eas omnis hereditas pertineat.
[25]
In Marculfus, lib. ii, form. 12, and in the Appendix to Marculfus,
form. 49.
[26]
Lindembroch's collection, form. 55.
[27]
Du Cange, Pithou, etc.
[29]
Tit. 1, section 3; tit. 16, section 1; tit. 51.
[30]
Book iv, tit. 2, section 1.
[31]
The German nations, says Tacitus, De Moribus Germanorum, 22, had
common customs, as well as those which were peculiar to each.
[32]
Among the Ostrogoths, the crown twice devolved to the males by
means of females; the first time to Athalaricus, through Amalasuntha,
and the second to Theodat, through Amalafreda. Not but that the females
of that nation might have held the crown in their own right; for
Amalasuntha reigned after the death of Athalaricus; nay, even after the
election of Theodat, and in conjunction with that prince. See
Amalasuntha's and Theodat's letters, in "Cassiodorus," lib. x.
18.23. 23. Of the regal Ornaments among the Franks.
A people who do not
cultivate the land have no idea of luxury. We may see, in Tacitus, the
admirable simplicity of the German nations: they had no artificial
elegances of dress; their ornaments were derived from nature. If 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, of the
Burgundians, and the Visigoths wore their long hair for a diadem.
18.24. 24. Of the Marriages of the Kings of the Franks.
I have already
mentioned that with people who do not cultivate the earth, marriages are
less fixed than with others, and that they generally take many wives.
"Of all the barbarous nations the Germans were almost the only people
who were satisfied with one wife,
[33]
if we except," says Tacitus, "some
persons who, not from a dissoluteness of manners, but because of their
nobility, had may."
[34]
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 a consequence of dignity: and it would have wounded
them in a tender point to have deprived them of such a prerogative.
[35]
This also explains the reason why the example of the kings was not
followed by the subjects.
Footnotes
[33]
"Prope soli Barbarorum singulis uxoribus contenti stint." — "De
Moribus Germanorum," 18.
[34]
"Exceptis admodum paucis qui non libidine, sed ob nobilitatem,
plurimis nuptiis ambiuntur."-- Ibid.
[35]
See Fredegarius, "Chronicle" of the year 628.
18.25. 25. Childeric.
"The laws of matrimony amongst the Germans," says
Tacitus, "are strictly observed. Vice is not there a subject of
ridicule. To corrupt or be corrupted is not called fashion, or the
custom of the age:
[36]
there are few examples in this populous nation of
the violation of conjugal faith."
[37]
This was the reason of the expulsion of Childeric: he shocked their
rigid virtue, which conquest had not had time to corrupt.
Footnotes
[36]
"Severa matrimonia . . . nemo illic vitia ridet, nec corrumpere
et corrumpi sæculum vocatur." — "De Moribus Germanorum," 19.
[37]
"Paucissima in tam numerosa gente adulteria." -- Ibid.
18.26. 26. 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 remembered, rather governed by
the law of nations than by civil institutions. They are, therefore,
always armed. Thus Tacitus tells us "that the Germans undertook no
affairs either of a public or private nature unarmed."
[38]
They gave their vote by the sound of their arms.
[39]
As soon as they could carry
them, they were presented to the assembly;
[40]
they put a javelin into
their hands;
[41]
and from that moment they were out of their minority:
they had been a part of the family, now they became a part of the
republic.
[42]
"The eagles," said the king of the Ostrogoths,
[43]
"cease to feed
their young ones as soon as their wings and talons are formed; the
latter have no need of assistance when they are able themselves to seize
their prey: it would be a disgrace if the young people in our armies
were thought to be of an age unfit for managing their estates or
regulating the conduct of their lives. It is virtue that constitutes
full age among the Goths."
Childebert II was fifteen years old when Gontram, his uncle,
declared that he was of age, and capable of governing by himself.
[44]
We find in the Ripuarian laws that the age of fifteen, the ability of
bearing arms, and majority, went together. It is there said
[45]
"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 choose a champion." It was necessary that his mind should be
sufficiently formed to be able to defend himself in court; and that his
body should have all the strength that was proper for his defence in
single combat. Among the Burgundians,
[46]
who also made use of this
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 Charlemagne, as appears by our capitularies and romances. Those
who had fiefs,
[47]
and were consequently obliged to do military service,
were not then of age till they were twenty-one years old.
[48]
Footnotes
[38]
"Nihil neque publicæ neque privatæ rei nisi armati agunt." — Ibid.,
13.
[39]
"Si displicuit sententia, fremitu aspernantur; sin placuit,
frameas concutiunt." -- Ibid., 11.
[40]
"Sed arma sumere non ante cuiquam moris, quam civitas suffecturum
probaverit." -- Ibid., 13.
[41]
"Tum in ipso concilia vel principum aliquis, vel pater, vel
propinquus, scuto, frameaque juvenem ornant."
[42]
"Hæc apud illos toga, hic primus juventæ honos; ante hoc domni pars
videntur, mox reipublicæ."
[43]
Theodoric in "Cassiodorus," lib. i, ep. 38.
[44]
"He was scarcely five years old," says Gregory of Tours, lib. v, cap. 1,
when he succeeded to his father, in the year 575. Gontram declared him
of age in the year 585; he was, therefore, at that time no more than
fifteen.
[47]
There was no change in the time with regard to the common
people.
[48]
St. Louis was not of age till twenty-one; this was altered by an
edict of Charles V in the year 1374.
18.27. 27. 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 proclaimed kings, because they were of too tender an age to be
present at the assembly. They were not yet kings, but they had a right
to the regal dignity as soon as they were able to bear arms; and in the
meantime, Clotildis, their grandmother, governed the state.
[49]
But their uncles Clotarius and Childebert assassinated them, and divided
their kingdom. This was the cause that in the following ages princes in
their minority were proclaimed kings immediately after the death of
their fathers. Thus Duke Gondovald saved Childebert II from the cruelty
of Chilperic, and caused him to be proclaimed king when he was only five
years old.
[50]
But even in this change they followed the original spirit of the
nation; for the public acts did not pass in the name of the young
monarch. 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.
Footnotes
[49]
It appears from Gregory of Tours, lib. iii, 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.
[50]
Ibid., v. 1: "Vix lustro ætatis uno jam peracto qui die Dominicæ
Natalis regnare cœpit."
18.28. 28. Of Adoption among the Germans.
As the Germans became of age by
the wielding of arms, so they were adopted by the same sign. Thus
Gontram, willing to declare his nephew Childebert of age and to adopt
him for his son, made use of these words: "I have put this javelin into
thy hands as a token that I have given thee all my kingdom."
[51]
Then, turning towards the assembly, he added, "You see that my son Childebert
is grown a man; obey him." Theodoric, king of the Ostrogoths, intending
to adopt the king of the Heruli, wrote to him thus:
[52]
"It is a noble custom of ours to be adopted by arms; for men of courage alone deserve
to be our children. Such is the efficacy of this act, that whoever is
the object of it had rather die than submit to anything ignominious.
Therefore, in compliance with the national usage, and because you are a
man of courage, we adopt you for our son by these bucklers, these
swords, these horses, which we send you as a present."
Footnotes
[52]
In "Cassiodorus," lib. iv, ep. 2.
18.29. 29. Of the sanguinary Temper of the Kings of the Franks.
Clovis was not the only prince amongst the Franks who had invaded Gaul. Many of his
relatives had penetrated into this country with particular tribes; but
as he had met with much greater success, and could grant considerable
settlements to such as followed him, the Franks flocked to him from all
parts, so that the other chiefs found themselves too weak to resist him.
He formed a design of exterminating his whole race, and he
succeeded.
[53]
He feared, says Gregory of Tours,
[54]
lest the Franks
should choose 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.
Footnotes
[53]
Gregory of Tours, lib. ii.
18.30. 30. Of the national Assemblies of the Franks.
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;
[55]
and Csar adds
further that in times of peace they had no common magistrates; but their
princes administered justice in each village.
[56]
Thus, as Gregory of
Tours
[57]
sufficiently proves, the Franks in Germany had no king.
"The princes," says Tacitus, "deliberate on matters of no great
concern; while affairs of importance are submitted to 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."
[58]
This custom was observed by them after their conquests, as
may be seen in all their records.
[59]
Tacitus says that capital crimes might be carried before the
assembly.
[60]
It was the same after the conquest, when the great vassals
were tried before that body.
Footnotes
[55]
"Nec Regibus libera aut infinita potestas. Cæterum neque
animadvertere, neque vincire, neque verberare, &c." — "De Moribus
Germanorum," 7.
[56]
"In pace nullus est communis magistratus, sed principes regionum
atque pagorum inter suos jus dicunt." — "De Bello Gall.," lib. vi. 22.
[58]
"De minoribus principes consultant, de majoribus omnes; ita tamen
ut ea quorum penes plebem arbitrium est, apud principes pertractentur."
-- "De Moribus Germanorum," 11.
[59]
"Lex consensu Populi fit et constitutione Regis." — "Capitularies
of Charles the Bald," year 864, art. 6.
[60]
"Licet apud Concilium accusare et discrimen capitis intendere." --
"De Moribus Germanorum," 12.
18.31. 31. Of the Authority of the Clergy under the first Race.
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 among such a people is the offspring of
superstition. Thus we see in Tacitus that priests were held in great
veneration by the Germans, and that they presided in the assemblies of
the people.
[61]
They alone were permitted
[62]
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 ever supposed to be
present with those who made war.
We ought not, therefore, to be astonished when, from the very
beginning of the first race, we meet with bishops the dispensers of
justice,
[63]
when we see them appear in the assemblies of the nation;
when they have such a prodigious influence on the minds of sovereigns;
and when they acquire so large a share of property.
Footnotes
[61]
"Silentium per sacerdotes, quibus et coercendi jus est,
imperatur." — Ibid., 11.
[62]
"Nec Regibus libera aut infinita potestas. Cæterum neque
animadvertere, neque vincire, neque verberare, nisi sacerdotibus est
permissum, non quasi in pœnam, nec Ducis jussu, sed velut Deo
imperante, quem adesse, bellatoribus credunt." -- Ibid., 7.
[63]
See the "Constitutions of Clotarius," year 560, art. 6.
