VI.
S. N. H. Linguet.
In his “Théorie des lois civiles”, directed principally against Montesquieu’s “L’esprit des lois”, in which Linguet seeks to defend the thesis, “The spirit of the laws is Property”, there are some interesting [[11]]passages. After having shown that private property has been founded upon violence, he treats of the origin of the laws and, at the same time, of the causes of crime, and says:
“Among men all equal, all robust, passionate, sanguinary, and accustomed to arms, dangerous disputes would continually arise. It would be impossible but that chance and intelligence should produce great inequality of fortune. He who believed that he had been injured would wish to get justice for himself. The association formed to secure the booty would be troubled by the difficulty of enjoying it. These inconveniences occurred to the clearest thinkers and they sought to find a remedy. It was a totally new art that they created. But as it is almost always science that misleads, and as truth is never so easy to discover as at a distance from the Doctors, they looked about to see what route they should take.
“They thought that a primary act of violence was incontestably necessary. They could not disavow it, since it was the sole basis of their rights. But they also saw that it was necessary to prevent any further violence, since this would fall upon themselves. They conceived that the primitive usurpation ought to be regarded as a sacred title; but they perceived no less clearly that it was necessary to proscribe any new usurpation, which would contradict the ancient one and destroy it. In order to succeed in this they proposed to authorize only those brigandages which were carried on in common, and to punish severely those persons who dared to commit individual acts of spoliation. In response to their suggestions it was decreed that society should have the right to take everything, but that the members of society, as individuals, should be deprived of this right. They agreed that each should have peaceful possession of the part allotted to him, and that whoever tried to take it from him should be declared a public enemy and prosecuted as such.
“Here, then, in a few words is the source of all human laws. From it spring laws of every kind except the divine law, the source of which is as pure as its author. Upon this basis are founded all imaginable constitutions. This it is which sanctions the law of nations and the civil law, of which the one legitimates conquests, and the other proscribes robbery, only punishing, however, the thefts not committed by a large company. Finally this same principle has directed the steps of all politicians and of all founders of governments and empires.
“They have come by different ways, the details of which it is useless to discuss here, to change the original social anarchy, in which these principles were discovered, into administrations more or less [[12]]imperfect. Violence thus formed the foundation of their rights, but all wished to keep with justice what they got possession of very unjustly. They took precautions to prevent those who assisted them in their wholesale conquest from imitating them in detail. After making sure of the general domain they did not wish any one to be able to dispute the particular distribution of it. They confirmed by regulations all their accomplices in the possession of what they had had the address or the good fortune to seize. They decreed that any one who, seeing these possessions stolen by force, should attempt to secure restitution by the same method, should be punished as guilty of an offense against society.”[12]
In the chapter “Good and Evils which Laws Produce” Linguet pronounces the following trenchant and satirical judgment:
“The aim [of justice and law], as we have said, is to give society a fixed position. There results from them an invariable order which keeps each member in his place. It is by their means that the multitude who do not know them, even while they respect them, submit without repugnance to the small number who are armed by them. In this sense there is nothing so admirable as the law. It is the most sublime invention that ever presented itself to the human mind. It offers to any reflective individual the most satisfying, the most beautiful of spectacles. To restrain force and violence by pacific means; to subjugate the liveliest passions; to assure to painful virtues the preference over easy and delusive vices; to direct the eyes, the hands, and the hearts of men; to subdue them without preventing them from believing themselves free; to prescribe duties capable of securing the repose of docile souls who performed them, and of protecting them against rebellious spirits, who wish to be exempt from them; all this the laws do or ought to do. It would be difficult to join together so much greatness with so many benefits.