* him his own weights, every merchant having three forts, the one heavy for buying, another light for felling, and another of the true ftandard for those who are upon guard. It is poffible, I believe, to explain this contradic tion. their The legiflators of China had two objects in view; they were defirous that the people fhould be fubmiffive and peaceful, and that they fhould alto be laborious and induftrious. By the nature of the foil and climate, their fubfiftence is very precarious; nor can it be any other way fecured, than by the affiftance of industry and labor. When every one obeys, and every one is employed, the flate is in a happy fituation. It is neceffity, and perhaps the nature of the climate, that has given to the Chinese an inconceivable greedinefs for gain, and laws have never been made to put a stop to it. Every thing has been forbidden, when acquired by acts of violence; every thing permitted, when obtained by artifice or labor. Let us not then compare the morals of China with thofe of Europe. Every one in China is obliged to be attentive to what will be for his advantage; if the cheat has been watchful over his own intereft, he who is the dupe ought to have thought of his. At Sparta they were permitted to fteal: In China they are fuffered to deceive. CHA P. XXI, How the Laws ought to have a relation to Manners and Customs. IT is only fingular inftitutions which thus con found laws, manners and cuftoms, things naturally diftinct and separate; but though they are things in themselves different, there is nevertheless a great relation between them. Solon being asked if the laws he had given to the Athenians were the best, he replied, "I have given them the beft they were able to bear." A fine expreffion, that ought to be perfectly understood by all legiflators! When Divine Wifdom faid to the Jews, "I have given you pre * 363. cepts Lange's journal in 1721 and 1722, in voyages to the North, vol. 8. p. cepts which are not good," this fignified that they had only a relative goodness; which is the fponge that wipes out all the difficulties that are to be found in the law of Mofes. CHA P. XXII. The fame Subject continued. WHEN a people have pure and regular manners, their laws become fimple and natural. Plato* fays that Rhadamanthus, who governed a people extremely relig ious, finished every procefs with extraordinary defpatch, adminiftering only the oath on every accufation. But, fays the fame Plato,t when a people are not religious, we fhould never have recourse to an oath, except he who fwears is entirely without intereft, as in the cafe of a judge and a witness. CHAP. XXIII. How the Laws are founded on the Manners of a Peoples At the time when the manners of the Romans were pure, they had no particular law against the embezzlement of the public money. When this crime began to appear, it was thought fo infamous, that to be condemned to reftoret what they had taken, was confidered as a fufficient difgrace: For a proof of this fee the sentence of L. Scipio. THE laws which gave the right of tutelage to the mother, were most attentive to the preservation of the in 3 fant's Of laws, lib. 12. + Ibid. In fimplum. § Livy, lib. 38. fant's perfon; thofe which gave it to the next heir, were moft attentive to the prefervation of the eftate. When the manners of a people are corrupted, it is much better to give the tutelage to the mother. Amongst thofe whofe laws confide in the manners of the fubjects, the guardianfhip is given either to the next heir, or to the mother, and fometimes to both. The If we reflect on the Roman laws, we fhall find that the fpirit of these was conformable to what I have advanced. At the time when the laws of the twelve tables were made, the manners of the Romans were moft admirable. guardianship was given to the neareft relation of the infant, from a confideration that he ought to have the trouble of the tutelage, who might enjoy the advantage of poffeffing the inheritance. They did not imagine the life of the heir in danger, though it was put into a perfon's hands who would reap advantage by his death. But when the manners of Rome were changed, its legiflators changed their conduct. If in the pupilary fubftitution, fays Cai us* and Juftinian,+ the teftator is afraid that the fubftitute will lay any fnares for the pupil, he may leave the vulgart fubftitution open, and put the pupilary into a part of the teftament, which cannot be opened till after a certain time. These fears and precautions were unknown to the primitive Romans. CHA P. XXV. The fame Subject continued. THE Romam law gave the liberty of making prefents before marriage; after the marriage they were not allowed. This was founded on the manners of the Ro mans, Inftitut. lib. ii. tit. 6. § 2. Ozel's compilement at Leyden, in 1658. + Inftitut. lib. ii. de pupil. fubftit. § 3. The form of the vulgar fubftitution ran thus: If fuch a one is unwilling to take the inheritance, I fubftitute in his ftead, &c. the pupilary fubftitution, If fuch a one dies before he arrives at the age of puberty, I fubftitute, &c. mans, who were led to marriage, only by frugality, fimplicity and modefty; but who might fuffer themselves to be feduced by domeftic cares, by complaifance and the happiness of a whole life. A law of the Vifigoths forbade the man giving more to the woman he was to marry than the tenth part of his fubftance, and his giving her any thing during the first year of their marriage. This alfo took its rife from the manners of the country. The legiflators were willing to put a stop to that Spanish oftentation, which only led them to difplay an exceffive liberality in acts of magnificence. The Romans, by their laws, put a stop to fome of the inconveniencies which arofe from the most durable empire in the world, that of virtue; the Spaniards, by theirs, would prevent the bad effects of a tyranny, the most frail and fleeting, that of beauty. CHA P. XXVI. The fame Subject continued. THE lawt of Theodofius and Valentinian drew the causes of repudiation from the ancient manners and customs of the Romans. It placed in the number of these causes the behavior of a husband who beat his wife, in a manner that difgraced the character of a freeborn woman. This caufe was omitted in the following laws : For their manners were in this refpect changed The eastern cuftoms had banished thofe of Europe. The firft eunuch of the emprefs, wife to Juftinian II, threatened her, fays the hiftorian, to chastise her in the fame manner as children are punifhed at fchool. Nothing but established manners, or those which they were feeking to establish, could raise even an idea of this kind. We have feen how the laws follow the manners of a people: Let us now fee how the manners follow the laws. CHAP. 4 * Lib. iii. tit. 1. § 5. + Leg. 8. cod. de repudiis. And the law of the twelve tables. See Cicero's 2d Philippic. CHA P. XXVII. How the Laws contribute to form the Manners, Cuftoms and Character of a Nation. THE cuftoms of an enflaved people are a part of their fervitude; thofe of a free people are a part of their liberty. I have fpoken in the eleventh book of a free people, and have given the principles of their conftitution: Let us now see the effects which follow from this liberty, the character it is capable of forming, and the customs which naturally refult from it. I do not deny that the climate may have produced great part of the laws, manners and cuftoms of this nation; but 1 maintain that its manners and customs have a close connexion with its laws. As there are in this ftate two vifible powers, the legifla tive and executive, and as every citizen has a will of his own, and may at pleafure affert his independence; moft men have a greater fondness for one of these powers than for the other, and the multitude have commonly neither equity nor fenfe enough, to fhow an equal affection to both. As the executive power, by difpofing of all employments, may give great hopes, and no fears, every man who obtains any favor from it, is ready to efpouse its cause; while it is liable to be attacked by thofe who have nothing to hope from it. All the paffions being unreftrained, hatred, envy, jeal. oufy, and an ambitious defire of riches and honors, appear in their full extent: Were it otherwife, the ftate would be in the condition of a man weakened by fickness, who is without paffions, becaufe he is without ftrength. The hatred which arifes between the two parties will always fubfift, because it will always be impotent. These parties being compofed of freemen, if the one becomes too powerful, as a confequence of liberty, it will be foon brought down; while the citizens endeavor to * Chap. 6. raife |