Imatges de pÓgina

That law should never be in contradiction to usage; for, if the usage is good, the law is worth nothing.*



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 Brise-miche and Pet-au-diable, and the beauty and splendour of the Louvre and the Tuilleries. 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

* See the commentary on L'Esprit des Lois, vol. i. Politics and Legislation.

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 each other as Tonquin is to Cochin China. It is the same in all the 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 Swabia 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 honours of the prelacy, it has formed altogether a body of laws of great vigour and efficacy, but which still exhibits 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 Brama, 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. 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 Straits 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 num

ber, 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, &c. 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, 'leuds;' 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.

VIRGIL'S Eneid, i. 286.
The subject world shall Rome's dominion own,
And prostrate shall adore the nation of the gown.



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 mon


* See the article ABUSE.

strous jurisprudence of which there at present exist so many remains.

Which would have been best-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 the 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 out of slaves to have created men.

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 labour 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 leads to saving the guilty and destroying the innocent.

This important business had advanced thus far, when Mustapha III., the son of Mahmoud, obliged the empress to suspend her code and proceed to fighting.


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 north-western part of the world, I perceive mild and wise 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 we have been speaking of, from a frightful desert on the banks of the river Jordan, in a country inclosed and bristled with peaked mountains. These laws have been transmitted down to our

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