9. — Of Toleration in point of Religion We are here politicians, and not divines; but the divines themselves must allow that there is a great difference between tolerating and approving a religion.
t " On Laws," book II.
52 MONTESQUIEU When the legislator has believed it a duty to permit the ex- ercise of many religions, it is necessary that he should enforce also a toleration among these religions themselves. It is a prin- ciple that every religion which is persecuted becomes itself persecuting; for as soon as by some accidental turn it arises from persecution, it attacks the religion which persecuted it; not as religion, but as tyranny.
It is necessary, then, that the laws require from the several religions, not only that they shall not embroil the state, but that they shall not raise disturbances among themselves. A citizen does not fulfil the laws by not disturbing the govern- ment; it is requisite that he should not trouble any citizen whomsoever.
lo. — The same Subject continued As there are scarcely any but persecuting religions that have an extraordinary zeal for being established in other places (be- cause a religion that can tolerate others seldom thinks of its own propagation), it must, therefore, be a very good civil law, when the state is already satisfied with the established religion, not to suffer the establishment of another."
This is then a fundamental principle of the political laws in regard to religion; that when the state is at liberty to receive or to reject a new religion it ought to be rejected; when it is received it ought to be tolerated.
II. — Of changing a Religion A prince who undertakes to destroy or to change the es- tablished religion of his kingdom must greatly expose himself. If his government be despotic, he runs a much greater risk of seeing a revolution arise from such a proceeding, than from any tyranny whatsoever, and a revolution is not an uncommon thing in such states. The reason of this is that a state cannot change its religion, manners, and customs in an instant, and with the same rapidity as the prince publishes the ordinance which establishes a new religion.
Besides, the ancient religion is connected with the constitu- « I do not mean to speak in this the end of the preceding chapter, and chapter of the Christian religion; for, the " Defence of the Spirit of Laws," as I have elsewhere observed, the Chris- part II. tian religion is our chief blessing. See THE SPIRIT OF LAWS 53 tion of the kingdom and the new one is not; the former agrees with the dimate and very often the new one is opposed to it. Moreover, the citizens become disgusted with their laws, and look upon the government already established with contempt; they conceive a jealousy against the two religions, instead of a firm belief in one; in a word, these innovations give to the state, at least for some time, both bad citizens and bad be- lievers.
12. — Of penal Laws Penal laws ought to be avoided in respect to religion: they imprint fear, it is true; but as religion has also penal laws which inspire the same passion, the one is effaced by the other, and between these two different kinds of fear the mind becomes hardened.
The threatenings of religion are so terrible, and its promises so great, that when they actuate the mind, whatever efforts the magistrate may use to oblige us to renounce it, he seems to leave us nothing when he deprives us of the exercise of our religion, and to bereave us of nothing when we are allowed to profess it.
It is not, therefore, by filling the soul with the idea of this great object, by hastening her approach to that critical moment in which it ought to be of the highest importance, that religion can be most successfully attacked: a more certain way is, to tempt her by favors, by the conveniences of life, by hopes of fortune; not by that which revives, but by that which ex- tinguishes the sense of her duty; not by that which shocks her, but by that which throws her into indifference at the time when other passions actuate the mind, and those which religion inspires are hushed into silence. As a general rule in changing a religion the invitations should be much stronger than the penalties.
The temper of the human mind has appeared even in the nature of punishments. If we take a survey of the persecutions in Japan,^ we shall find that they were more shocked at cruel torments than at long sufferings, which rather weary than affright, which are the more difficult to surmount, from their appearing less difficult.
V In the " Collection of Voyages that contributed to the establishment of an East India Company," vol. v.
54 MONTESQUlEtf In a word, history sufficiently informs us that penal laws have never had any other effect than to destroy.
13. — 'A most humble Remonstrance to the Inquisitors of Spain and Portugal A Jewess of eighteen years of age, who was burned at Lisbon at the last auto-da-fe, gave occasion to the following little piece, the most idle, I believe, that ever was written. When we at- tempt to prove things so evident we are sure never to convince.
The author declares, that though a Jew he has a respect for the Christian religion; and that he should be glad to take away from the princes who are not Christians, a plausible pretence for persecuting this religion.
" You complain," says he to the Inquisitors, " that the Em- peror of Japan caused all the Christians in his dominions to be burned by a slow fire. But he will answer, we treat you who do not believe like us, as you yourselves treat those who do not believe like you; you can only complain of your weak- ness, which has hindered you from exterminating us, and which has enabled us to exterminate you.
" But it must be confessed, that you are much more cruel than this emperor. You put us to death who believe only what you believe, because we do not believe all that you believe. We follow a religion, which you yourselves know to have been formerly dear to God. We think that God loves it still, and you think that he loves it no more: and because you judge thus, you make those suffer by sword and fire who hold an error so pardonable as to believe that God still loves what he once loved.w " If you are cruel to us, you are much more so to our chil- dren; you cause them to be burned because they follow the inspirations given them by those whom the law of nature and the laws of all nations teach them to regard as gods.
" You deprive yourselves of the advantage you have over the Mahommedans, with respect to the manner in which their re- ligion was established. When they boast of the number of their believers, you tell them that they have obtained them by wThe source of the blindness of the of the decrees of God; and that it is in Jews is their not perceiving that the this lig[ht a consequence of his im- economy of the gospel is in the order mutability.
THE SPIRIT OF LAWS 55 violence, and that they have extended their rehgion by the sword; why then do you establish yours by fire?
" When you would bring us over to you, we object to a source from which you glory to have descended. You reply to us, that though your religion is new, it is divine; and you prove it from its growing amidst the persecutions of pagans, and when watered by the blood of your martyrs; but at present you play the part of the Diocletians, and make us take yours.
" We conjure you, not by the mighty God whom both you and we serve, but by that Christ, who, you tell us, took upon him a human form, to propose himself as an example for you to follow; we conjure you to behave to us as he himself would behave were he upon earth. You would have us become Chris- tians, and you will not be so yourselves.
" But if you will not be Christians, be at least men; treat us as you would, if having only the weak light of justice which nature bestows, you had not a religion to conduct, and a revela- tion to enlighten you.
" If Heaven has had so great a love for you as to make you see the truth, you have received a singular favor; but is it for children who have received the inheritance of their father, to hate those who have not?
" If you have this truth, hide it not from us by the manner in which you propose it. The characteristic of truth is its tri- umph over hearts and minds, and not that impotency which you confess when you would force us to receive it by tortures.
" If you were wise, you would not put us to death for no other reason than because we are unwilling to deceive you. If your Christ is the son of God, we hope he will reward us for being so unwilling to profane his mysteries; and we believe that the God whom both you and we serve will not punish us for having suffered death for a religion which he formerly gave us, only because we believe that he still continues to give it.
" You live in an age in which the light of nature shines more brightly than it has ever done; in which philosophy has en- lightened human understandings; in which the morality of your gospel has been better known; in which the respective rights of mankind with regard to each other and the empire which one conscience has over another are best understood. If you do not, therefore, shake oflf your ancient prejudices, 56 MONTESQUIEU 56 MONTESQUIEU which, whilst unregarded, mingle with your passions, it must be confessed that you are incorrigible, incapable of any degree of light or instruction; and a nation must be very unhappy that gives authority to such men.
" Would you have us frankly tell you our thoughts? You consider us rather as your enemies than as the enemies of your religion; for if you loved your religion you would not suffer it to be corrupted by such gross ignorance.
" It is necessary that we should warn you of one thing; that is, if any one in times to come shall dare to assert, that in the age in which we live, the people of Europe were civilized, you will be cited to prove that they were barbarians; and the idea they will have of you will be such as will dishonor your age, and spread hatred over all your contemporaries."
14. — Why the Christian Religion is so odious in Japan We have already mentioned the perverse temper of the peo- ple of Japan.-*" The magistrates considered the firmness which Christianity inspires, when they attempted to make the people renounce their faith, as in itself most dangerous; they fancied that it increased their obstinacy. The law of Japan punishes severely the least disobedience. The people were ordered to renounce the Christian religion; they did not renounce it; this was disobeldience; the magistrates punished this crime; and the continuance in disobedience seemed to deserve another punishment.
Punishments among the Japanese are considered as the re- venge of an insult done to the prince; the songs of triumph sung by our martyrs appeared as an outrage against him: the title of martyr provoked the magistrates; in their opinion it signified rebel; they did all in their power to prevent their obtaining it. Then it was that their minds were exasperated, and a horrid struggle was seen between the tribunals that con- demned and the accused who suffered; between the civil laws and those of religion.
X Book IV. chap. xxiv.
THE SPIRIT OF LAWS 57 15. — Of the Propagation of Religion All the people of the East, except the Mahommedans, believe all religions in themselves indifferent. They fear the estab- lishment of another religion, no otherwise than as a change in government. Among the Japanese, where there are many sects, and where the state has had for so long a time an eccle- siastical superior, they never dispute on religion.y It is the same with the people of Siam.s The Calmucks a do more, they make it a point of conscience to tolerate every species of re- ligion; at Calicut it is a maxim of the state, that every religion is good.fr But it does not follow hence, that a religion brought from a far distant country, and quite different in climate, laws, man- ners, and customs, will have all the success to which its holi- ness might entitle it. This is more particularly true in great despotic empires: here strangers are tolerated at first, be- cause there is no attention given to what does not seem to strike at the authority of the prince. As they are extremely ignorant, a European may render himself agreeable by the knowledge he communicates: this is very well in the begin- ning. But as soon as he has any success, when disputes arise and when men who have some interest become informed of it, as their empire, by its very nature, above all things requires tranquillity, and as the least disturbance may overturn it, they proscribe the new religion and those who preach it: disputes between the preachers breaking out, they begin to entertain a distaste for religion on which even those who propose it are not agreed.
y See Kempfer. a " History of the Tartars," part V.
BOOK XXVI OF LAWS IN RELATION TO THE ORDER OF THINGS WHICH THEY DETERMINE I. — Idea of this Book MEN are governed by several kinds of laws; by the law of nature; by the divine law, which is that of religion; by ecclesiastical, otherwise called canon law, which is that of religious polity; by the law of nations, which may be con- sidered as the civil law of the whole globe, in which sense every nation is a citizen; by the general political law, which relates to that human wisdom whence all societies derive their origin; by the particular political law, the object of which is each society; by the law of conquest founded on this, that one nation has been willing and able, or has had a right to offer violence to another; by the civil law of every society, by which a citizen may defend his possessions and his life against the attacks of any other citi- zen; in fine, by domestic law, which proceeds from a society's being divided into several families, all which have need of a par- ticular government. * There are therefore different orders of lavrs, and the sublimity of human reason consists in perfectlj^ knowing to which of these orders the things that are to be determined ought to have a principal relation, and not to throw into confusion those princi- ples which should govern mankind.
2. — Of Laws divine and human We ought not to decide by divine laws what should be decided by human laws; nor determine by human what should be de- termined by divine laws.
These two sorts of laws differ in their origin, in their object, and in their nature.
It is universally acknowledged, that human laws are, in their 58 THE SPIRIT OF LAWS 59 own nature, different from those of religion; this is an important principle: but this principle is itself subject to others, which must be inquired into.
1. It is in the nature of human laws to be subject to all the accidents which can happen, and to vary in proportion as the will of man changes; on the contrary, by the nature of the laws of religion, they are never to vary. Human laws appoint for some good; those of religion for the best: good may have another ob- ject, because there are many kinds of good; but the best is but one, it cannot therefore change. We may alter laws, because they are reputed no more than good; but the institutions of re- ligion are always supposed to be the best.
2. There are kingdoms in which the laws are of no value as they depend only on the capricious and fickle humor of the sov- ereign. If in these kingdoms the laws of religion were of the same nature as the human institutions, the laws of religion too would be of no value. It is, however, necessary to the society that it should have something fixed; and it is religion that has this stability.
3. The influence of religion proceeds from its being believed; that of human laws from their being feared. Antiquity accords with religion, because we have frequently a firmer belief in things in proportion to their distance, for we have no ideas annexed to them drawn from those times which can contradict them. Hu- man laws, on the contrary, receive advantage from their novelty, which implies the actual and particular attention of the legislator to put them in execution.
3. — Of civil Laws contrary to the Law of Nature If a slave, says Plato, defends himself, and kills a freeman, he ought to be treated as a parricide.a This is a civil law which punishes self-defence, though dictated by nature.
The law of Henry VIII which condemned a man without be- ing confronted by witnesses was contrary to self-defence. In order to pass sentence of condemnation, it is necessary that the witnesses should know whether the man against whom they make their deposition is he whom they accuse, and that this man be at liberty to say, I am not the person you mean.
The law passed during the same reign, which condemned a Lib. IX. " on Laws."
6o MONTESQUIEU every woman, who, having carried on a criminal commerce did not declare it to the king before her marriage, violated the re- gard due to natural modesty. It is as unreasonable to oblige a woman to make this declaration, as to oblige a man not to at- tempt the defence of his own life.
The law of Henry II which condemned the woman to death who lost her child, in case she did not make known her pregnancy to the magistrate, was not less contrary to self-defence. It would have been sufficient to oblige her to inform one of her nearest relatives, who might watch over the preservation of the infant.
What other information could she give in this situation, so tor- turing to natural modesty? Education has heightened the no- tion of preserving that modesty; and in those critical moments scarcely has she any idea remaining of the loss of life.
There has been much talk of a law in England, which permitted girls seven years old to choose a husband.^ This law was shock- ing in two ways; it had no regard to the time when nature gives maturity to the understanding, nor to that in which she gives maturity to the body.
Among the Romans, a father might oblige his daughter to re- pudiate her husband, though he himself had consented to the marriage.c But it is contrary to nature for a divorce to be in the power of a third person.
A divorce can be agreeable to nature only when it is by con- sent of the two parties, or at least of one of them; but when neither consents it is a monstrous separation. In short, the power of divorce can be given only to those who feel the incon- veniences of marriage, and who are sensible of the moment when it is for their interest to make them cease.
4. — The same Subject continued Gundebald, King of Burgundy, decreed, that if the wife or son of a person guilty of robbery did not reveal the crime, they were to become slaves.^ This was contrary to nature: a wife to in- form against her husband! a son to accuse his father! To avenge one criminal action, they ordained another still more criminal.
The law of Recessuinthus permits the children of the adulterh Mr. Bayle, in his " Criticism on the c See Law s, in the code " de repudiis History of Calvinism," speaks of this et judicio de moribus sublato." law, p. 263. d Law of the Burgundians, tit. 47.
THE SPIRIT OF LAWS 6i ess, or those, of her husband, to accuse her, and to put the slaves of the house to the torture.^ How iniquitous the law, which, to preserve a purity of morals, overturns nature, the origin, the source of all morality!
With pleasure we behold in our theatres a young hero f ex- press as much horror against the discovery of his mother-in-law's guilt, as against the guilt itself. In his surprise, though accused, judged, condemned, proscribed, and covered with infamy, he scarcely dares to reflect on the abominable blood whence Phaedra sprang; he abandons the most tender object, all that is most dear, all that lies nearest his heart, all that can fill him with rage, to deliver himself up to the unmerited vengeance of the gods. It is nature's voice, the sweetest of all sounds, that inspires us with this pleasure.
5. — Cases, in which we may judge by the Principles of the civil Law in limiting the Principles of the Law of Nature An Athenian law obliged children to provide for their fathers when fallen into poverty; g it excepted those who were born of a courtesan,^ those whose chastity had been infamously prosti- tuted by their father, and those to whom he had not given any means of gaining a livelihood.* The law considered that, in the first case, the father being un- certain, he had rendered the natural obHgation precarious; that in the second, he had sullied the life he had given, and done the greatest injury he could do to his children in depriving them of their reputation; that in the third, he had rendered insupportable a life which had no means of subsistence. The law suspended the natural obligation of children, because the father had violated his; it looked upon the father and the son as no more than two citizens, and determined in respect to them only from civil and political views; ever considering that a good republic ought to have a particular regard to manners. I am apt to think, that Solon's law was a wise regulation in the first two cases, whether that in which nature has left the son in ignorance with regard to his father, or that in which she even seems to ordain he should e In the code of the Visigoths, lib. III. g Under pain of infamy, another under tit. 4, sec. 13. pain of imprisonment.
^Hippolyte; see the " Ph^dre " of A Plutarch, "Life of Solon."
Racine, act. IV. sc. 2. — Ed. « Ibid., and Gallienus, in " exhort, ad art." cap. viii.
62 MONTESQUIEU not own him; but it cannot be approved with respect to the third, where the father had only violated a civil institution.
6. — That the Order of succession or Inheritance depends on the Principles of political or civil Law, and not on those of the Law of Nature The Voconian law ordained that no woman should be left heir- ess to an estate, not even if she had an only child. Never was there a law, says St, Augustine, more unjust./ A formula of Mar- culfus treats that custom as impious which deprives daughters of the right of succeeding to the estate of their fathers.^ Justinian gives the appellation of barbarous to the right which the males had formerly of succeeding in prejudice to the daughters.^ These notions proceeded from their having considered the right of chil- dren to succeed to their father's possessions as a consequence of the law of nature; which it is not.
The law of nature ordains that fathers shall provide for their children; but it does not oblige them to make them their heirs. The division of property, the laws of this division, and the succes- sion after the death of the person who has had this division can be regulated only by the community, and consequently by politi- cal or civil laws.
True it is, that a political or civil order frequently demands that children should succeed to their father's estate; but it does not always make this necessary.
There may be some reasons given why the laws of our fiefs appoint that the eldest of the males, or the nearest relatives of the male side, should have all, and the females nothing, and why, by the laws of the Lombards,*" the sisters, the natural children, the other relatives; and, in their default, the treasury might share the inheritance with the daughters.
It was regulated in some of the dynasties of China, that the brothers of the emperor should succeed to the throne, and that the children should not. If they were willing that the prince should have a certain degree of experience, if they feared his be- ing too young, and if it had become necessary to prevent eunuchs from placing children successively on the throne, they might very justly establish a like order of succession, and when some /"De Civitate Dei," lib. IV. /"Novell." 21.
k Lib. II. cap. xii. m Lib. II. tit. 14, sec. 6, 7, and 8.
THE SPIRIT OF LAWS 63 writers have treated these brothers as usurpers, they have judged only by ideas received from the laws of their own countries.^ According to the custom of Numidia,o Desalces, brother of Gala, succeeded to the kingdom, not Massinissa, his son. And even to this day, among the Arabs in Barbary, where each village has its chief, they adhere to this ancient custom, by choosing the uncle, or some other relative to succeed./' There are monarchies merely elective; and since it is evident that the order of succession ought to be derived from the political or civil laws, it is for these to decide in what cases it is agreeable to reason that the succession be granted to children, and in what cases it ought to be given to others.
In countries where polygamy is established, the prince has many children; and the number of them is much greater in some of these countries than in others. There are states q where it is impossible for the people to maintain the children of the king; they might therefore make it a law that the crown shall devolve, not on the king's children, but on those of his sister.
A prodigious number of children would expose the state to the most dreadful civil wars. The order of succession which gives the crown to the children of the sister, the number of whom is not larger than those of a prince who has only one wife, must pre- vent these inconveniences.
There are people among whom reasons of state, or some maxims of religion, have made it necessary that the crown should be always fixed in a certain family: hence, in India, proceeds the jealousy of their tribes,^ and the fear of losing the descent; they have there conceived that never to want princes of the blood royal, they ought to take the children of the eldest sister of the king.
A general maxim: it is an obligation of the law of nature to provide for our children; but to make them our successors is an obHgation of the civil or political law. Hence are derived the dif- ferent regulations with respect to bastards in the different coun- tries of the world; these are according to the civil or political laws of each country.
n Du Halde " on the Second Dynas- p. 114. And Mr. Smith's " Voyage to ty." Guinea," part II. p. 150, concerning the o Livy, decad. 3, lib. VI. kingdom of Judia.
q See the " Collection of Voyages that the " Voyages that contributed to the contributed to the establishment of an establishment of an East India Corn- East India Company," vol. iv. part I. pany," vol. iii. part II. p. 644.
64 MONTESQUIEU 7. — That we ought not to decide by the Precepts of Religion what belongs only to the Law of Nature The Abyssinians have a most severe fast of fifty days, which weakens them to such a degree, that for a long time they are incapable of business: the Turks do not fail to attack them after their lent.J Religion ought, in favor of the natural right of self- defence, to set bounds to these customs.
The Jews were obliged to keep the Sabbath; but it was an in- stance of great stupidity in this nation not to defend themselves when their enemies chose to attack them on this day.^ Cambyses laying siege to Pelusium, set in the first rank a great number of those animals which the Egyptians regarded as sa- cred; the consequence was, that the soldiers of the garrison durst not molest them. Who does not see that self-defence is a duty superior to every precept?
8. — That we ought not to regulate by the Principles of the canon Lazu Things which should be regulated by those of the civil Law By the civil law of the Romans « he who took a thing privately from a sacred place was punished only for the guilt of theft; by the canon law, he was punished for the crime of sacrilege.^ The canon law takes cognizance of the place; the civil laws of the fact. But to attend only to the place is neither to reflect on the nature and definition of a theft, nor on the nature and definition of sacrilege.
As the husband may demand a separation by reason of the infidelity of his wife, the wife might formerly demand it, on ac- count of the infidelity of the husband.w This custom, contrary to a regulation made in the Roman laws,^ was introduced into the ecclesiastic court,^ where nothing was regarded but the max- ims of canon law; and indeed, if we consider marriage as a thing merely spiritual, and as relating only to the things of another life, the violation is in both cases the same, but the political and civil laws of almost all nations have, with reason, made a distinction s " Collection of Voyages that con- " Cujas " observat. lib. XIII. cap. xix.
tributcd to the establishment of an East torn. iii.
India Company," vol. iv. pp. 35 and 103. w Beaumanoir " on the ancient cust As they did when Pompey besieged toms of Beauvoisis," chap, xviii.
the Temple. Dio. XXXVI.— Ed. x Law of the first Code, " ad leg.
« Leg. ff. " ad leg. Juliam peculatus." Juliam de adulteriis."
V Capite quisquis 17, quxstione 4. y At present they do not take cogniz* ance of these things in France.
THE SPIRIT OF LAWS 65 between them. They have required from the women a degree of reserve and continency, which they have not exacted from the men; because in women, a violation of chastity supposes a re- nunciation of all virtue; because women, by violating the laws of marriage, quit the state of their natural dependence; because nature has marked the infidelity of women with certain signs; and, in fine, because the children of the wife born in adultery necessarily belong and are an expense to the husband, while the children produced by the adultery of the husband are not the wife's, nor are an expense to the wife.