How the Laws Should Relate to Manners and Customs

Chapters 21-22: How the Laws Should Relate to Manners and Customs

It is only singular institutions which thus confound laws, manners, and customs — things naturally distinct and separate; but though they are 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 best they were able to bear"24 — a fine expression, that ought to be perfectly understood by all legislators! When Divine Wisdom said to the Jews, “I have given you precepts which are not good,” this signified that they had only a relative goodness; which is the sponge that wipes out all the difficulties in the law of Moses.

When a people have pure and regular manners, their laws become simple and natural. Plato25 says that Rhadamanthus, who governed a nation extremely religious, finished every process with extraordinary despatch, administering only the oath on each accusation. “But,” says the same Plato,26 “when a people are not religious we should never have recourse to an oath, except he who swears is entirely disinterested, as in the case of a judge and a witness.”

Chapters 23-24: How the Laws are founded on the Manners of a People

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 so infamous, that to be condemned to restore27 what they had taken was considered as a sufficient disgrace: for a proof of this, see the sentence of L. Scipio.28

The laws which gave the right of tutelage to the mother were most attentive to the preservation of the infant’s person; those which granted it to the next heir were most attentive to the preservation of the state.

When the manners of a people are corrupted, it is much better to give the tutelage to the mother. Among those whose laws confide in the manners of the subjects, the guardianship is granted either to the next heir or to the mother, and sometimes to both.

If we reflect on the Roman laws, we shall find that the spirit 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 most admirable.

The guardianship was given to the nearest relative of the infant, from a consideration that he ought to have the trouble of the tutelage who might enjoy the advantage of possessing the inheritance. They did not imagine the life of the heir in danger though it was put into a person’s hands who would reap a benefit by his death.

But when the manners of Rome were changed, her legislators altered their conduct. “If, in the pupillary substitution,” say Gaius29 and Justinian,30 “the testator is afraid that the substitute will lay any snares for the pupil, he may leave the vulgar substitution open,31 and put the pupillary into a part of the testament, which cannot be opened till after a certain time.” These fears and precautions were unknown to the primitive Romans.

The Roman law gave the liberty of making presents before marriage; after the marriage they were not allowed. This was founded on the manners of the Romans, who were led to marriage only by frugality, simplicity, and modesty; but might suffer themselves to be seduced by domestic cares, by complacency, and the constant tenor of conjugal felicity.

A law of the Visigoths forbade the man giving more to the woman he was to marry than the tenth part of his substance, and his giving her anything during the first year of their marriage.

This also took its rise from the manners of the country. The legislators were willing to put a stop to that Spanish ostentation which only led them to display an excessive liberality in acts of magnificence.

The Romans by their laws put a stop to some of the inconveniences which arose 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 transitory — that of beauty.

The law of Theodosius and Valentinian33 drew the causes of repudiation from the ancient manners and customs of the Romans.34

It placed in the number of these causes the behaviour of the husband who beat his wife35 in a manner that disgraced the character of a free-born woman. This cause was omitted in the following laws:36 for their manners, in this respect, had undergone a change, the eastern customs having banished those of Europe.

The first eunuch of the empress, wife to Justinian II, threatened, says the historian, to chastise her in the same manner as children are punished at school. Nothing but established manners, or those which they were seeking to establish, could raise even an idea of this kind.

We have seen how the laws follow the manners of a people; let us now observe how the manners follow the laws.