We may there see to what an extreme the vices of a climate indulged in

full liberty will carry licentiousness. It is there that nature has a

force and modesty a weakness, which exceeds all comprehension. At

Patan[17] the wanton desires of the women are so outrageous, that the

men are obliged to make use of a certain apparel to shelter them from

their designs.[18] According to Mr. Smith,[19] things are not better

conducted in the petty kingdoms of Guinea. In these countries the two

sexes lose even those laws which properly belong to each.

11. Of domestic Slavery independently of Polygamy. It is not only a

plurality of wives which in certain places of the East requires their

confinement, but also the climate itself. Those who consider the

horrible crimes, the treachery, the dark villainies, the poisonings, the

assassinations, which the liberty of women has occasioned at Goa and in

the Portuguese settlements in the Indies, where religion permits only

one wife; and who compare them with the innocence and purity of manners

of the women of Turkey, Persia, Hindostan, China, and Japan, will

clearly see that it is frequently as necessary to separate them from the

men, when they have but one, as when they have many.

These are things which ought to be decided by the climate. What purpose

would it answer to shut up women in our northern countries, where their

manners are naturally good; where all their passions are calm; and where

love rules over the heart with so regular and gentle an empire that the

least degree of prudence is sufficient to conduct it?

It is a happiness to live in those climates which permit such freedom of

converse, where that sex which has most charms seems to embellish

society, and where wives, reserving themselves for the pleasures of one,

contribute to the amusement of all.

12. Of natural Modesty. All nations are equally agreed in fixing

contempt and ignominy on the incontinence of women. Nature has dictated

this to all. She has established the attack, and she has established too

the resistance; and having implanted desires in both, she has given to

the one boldness, and to the other shame. To individuals she has granted

a long succession of years to attend to their preservation: but to

continue the species, she has granted only a moment.

It is then far from being true that to be incontinent is to follow the

laws of nature; on the contrary, it is a violation of these laws, which

can be observed only by behaving with modesty and discretion.



Besides, it is natural for intelligent beings to feel their

imperfections. Nature has, therefore, fixed shame in our minds -- a

shame of our imperfections.

When, therefore, the physical power of certain climates violates the

natural law of the two sexes, and that of intelligent beings, it belongs

to the legislature to make civil laws, with a view to opposing the

nature of the climate and re-establishing the primitive laws.

13. Of Jealousy. With respect to nations, we ought to distinguish

between the passion of jealousy and a jealousy arising from customs,

manners, and laws. The one is a hot raging fever; the other, cold, but

sometimes terrible, may be joined with indifference and contempt.



The one, an abuse of love, derives its source from love itself. The

other depends only on manners, on the customs of a nation, on the laws

of the country, and sometimes even on religion.[20]

It is generally the effect of the physical power of the climate; and, at

the same time, the remedy of this physical power.

14. Of the Eastern Manner of domestic Government. Wives are changed so

often in the East that they cannot have the power of domestic

government. This care is, therefore, committed to the eunuchs, whom they

entrust with their keys and the management of their families. "In

Persia," says Sir John Chardin, "married women are furnished with

clothes as they want them, after the manner of children." Thus that care

which seems so well to become them, that care which everywhere else is

the first of their concern, does not at all regard them.

15. Of Divorce and Repudiation. There is this difference between a

divorce and a repudiation, that the former is made by mutual consent,

arising from a mutual antipathy; while the latter is formed by the will,

and for the advantage of one of the two parties, independently of the

will and advantage of the other.

The necessity there is sometimes for women to repudiate, and the

difficulty there always is in doing it, render that law very tyrannical

which gives this right to men without granting it to women. A husband is

the master of the house; he has a thousand ways of confining his wife to

her duty, or of bringing her back to it; so that in his hands it seems

as if repudiation could be only a fresh abuse of power. But a wife who

repudiates only makes use of a dreadful kind of remedy. It is always a

great misfortune for her to go in search of a second husband, when she

has lost the most part of her attractions with another. One of the

advantages attending the charms of youth in the female sex is that in an

advanced age the husband is led to complacency and love by the

remembrance of past pleasures.

It is then a general rule that in all countries where the laws have

given to men the power of repudiating, they ought also to grant it to

women. Nay, in climates where women live in domestic slavery, one would

think that the law ought to favour women with the right of repudiation,

and husbands only with that of divorce.

When wives are confined in a seraglio, the husband ought not to

repudiate on account of an opposition of manners; it is the husband's

fault if their manners are incompatible.

Repudiation on account of the barrenness of the woman ought never to

take place except where there is only one wife:[21] when there are many,

this is of no importance to the husband.

A law of the Maldivians permitted them to take again a wife whom they

had repudiated.[22] A law of Mexico[23] forbade their being reunited

under pain of death. The law of Mexico was more rational than that of

the Maldivians: at the time even of the dissolution, it attended to the

perpetuity of marriage; instead of this, the law of the Maldivians

seemed equally to sport with marriage and repudiation.

The law of Mexico admitted only of divorce. This was a particular reason

for their not permitting those who were voluntarily separated to be ever

reunited. Repudiation seems chiefly to proceed from a hastiness of

temper, and from the dictates of passion; while divorce appears to be an

affair of deliberation.

Divorces are frequently of great political use: but as to the civil

utility, they are established only for the advantage of the husband and

wife, and are not always favourable to their children.

16. Of Repudiation and Divorce amongst the Romans. Romulus permitted a

husband to repudiate his wife, if she had committed adultery, prepared

poison, or procured false keys. He did not grant to women the right of

repudiating their husbands. Plutarch[24] calls this a law extremely

severe.

As the Athenian law[25] gave the power of repudiation to the wife as

well as to the husband, and as this right was obtained by the women

among the primitive Romans, notwithstanding the law of Romulus, it is

evident that this institution was one of those which the deputies of

Rome brought from Athens, and which were inserted in the laws of the

Twelve Tables.

Cicero says that the reasons of repudiation sprang from the law of the

Twelve Tables.[26] We cannot then doubt but that this law increased the

number of the reasons for repudiation established by Romulus.

The power of divorce was also an appointment, or at least a consequence,

of the law of the Twelve Tables. For from the moment that the wife or

the husband had separately the right of repudiation, there was a much

stronger reason for their having the power of quitting each other by

mutual consent.

The law did not require that they should lay open the causes of

divorce[27] In the nature of the thing, the reasons for repudiation

should be given, while those for a divorce are unnecessary; because,

whatever causes the law may admit as sufficient to break a marriage, a

mutual antipathy must be stronger than them all.

The following fact, mentioned by Dionysius Halicarnassus,[28] Valerius

Maximus,[29] and Aulus Gellius,[30] does not appear to me to have the

least degree of probability: though they had at Rome, say they, the

power of repudiating a wife, yet they had so much respect for the

auspices that nobody for the space of five hundred and twenty years ever

made[31] use of this right, till Carvilius Ruga repudiated his, because

of her sterility. We need only be sensible of the nature of the human

mind to perceive how very extraordinary it must be for a law to grant

such right to a whole nation, and yet for nobody to make use of it.

Coriolanus, setting out on his exile, advised his[32] wife to marry a

man more happy than himself. We have just been seeing that the law of

the Twelve Tables and the manners of the Romans greatly extended the law

of Romulus. But to what purpose were these extensions if they never made

use of a power to repudiate? Besides, if the citizens had such a respect

for the auspices that they would never repudiate, how came the

legislators of Rome to have less than they? And how came the laws

incessantly to corrupt their manners?

All that is surprising in the fact in question will soon disappear, only

by comparing two passages in Plutarch. The regal law[33] permitted a

husband to repudiate in the three cases already mentioned, and "it

enjoined," says Plutarch,[34] "that he who repudiated in any other case

should be obliged to give the half of his substance to his wife, and

that the other half should be consecrated to Ceres." They might then

repudiate in all cases, if they were but willing to submit to the

penalty. Nobody had done this before Carvilius Ruga,[35] who, as

Plutarch says in another place,[36] "put away his wife for her sterility

two hundred and thirty years after Romulus." That is, she was repudiated

seventy-one years before the law of the Twelve Tables, which extended

both the power and causes of repudiation.

The authors I have cited say that Carvilius Ruga loved his wife, but

that the censors made him take an oath to put her away, because of her

barrenness, to the end that he might give children to the republic; and

that this rendered him odious to the people. We must know the genius and

temper of the Romans before we can discover the true cause of the hatred

they had conceived against Carvilius. He did not fall into disgrace with

the people for repudiating his wife; this was an affair that did not at

all concern them. But Carvilius had taken an oath to the censors, that

by reason of the sterility of his wife he would repudiate her to give

children to the republic. This was a yoke which the people saw the

censors were going to put upon them. I shall discover, in the

prosecution of this work,[37] the repugnance which they always felt to

regulations of the like kind. But whence can such a contradiction

between those authors arise? It is because Plutarch examined into a

fact, and the others have recounted a prodigy.

______

------------------------------------------------------------------------

______

1. Father Du Halde, i, p. 112.

2. The Chinese books make mention of this. Ibid., iv, p. 448.

3. See Travels to the North, viii; the History of the Tartars; and

Father Du Halde, iv.

4. Tartary is, then, a kind of flat mountain.

5. As Vouty V, emperor of the fifth dynasty.

6. The Scythians thrice conquered Asia, and thrice were driven thence.

Justin, ii. 3.

7. This is in no way contrary to what I shall say in book xxviii. 20

concerning the manner of thinking among the German nations in respect to

the cudgel; let the instrument be what it will, the power or action of

beating was always considered by them as an affront.

8. The waters lose themselves or evaporate before or after their streams

are united.

9. The petty barbarous nations of America are called by the Spaniards

Indios Bravos and are much more difficult to subdue than the great

empires of Mexico and Peru.

------------------------------------------------------------------------

Book XVIII. Of Laws in the Relation They Bear to the Nature

of the Soil

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 Lacedæmonia 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 Cæsar and Tacitus we

are informed that the latter cultivated but little land.

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 Cæsar 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.