9. — That Things which ought to he regulated by the Principles of civil Law can seldom be regulated by those of Religion The laws of religion have a greater sublimity; the civil laws a greater extent.
The laws of perfection drawn from religion have more in view the goodness of the person that observes them than of the society in which they are observed; the civil laws, on the contrary, have more in view the moral goodness of men in general than that of individuals.
Thus, venerable as those ideas are which immediately spring from religion, they ought not always to serve as a first principle to the civil laws; because these have another, the general wel- fare of society.
The Romans made regulations among themselves to preserve the morals of their women; these were political institutions. Upon the establishment of monarchy, they made civil laws on this head, and formed them on the principles of their civil gov- ernment. When the Christian religion became predominant, the new laws that were then made had less relation to the general rectitude of morals, than to the holiness of marriage; they had less regard to the union of the two sexes in a civil, than in a spirit- ual state.
At first, by the Roman law, a husband, who brought back his wife into his house after she had been found guilty of adultery, was punished as an accomplice in her debauch.^ Justinian, from other principles, ordained that during the space of two years he might go and take her again out of the monastery.0 g Leg. II, sec. ult. ff. " ad leg. Juliam a " Nov." 134, Col. 9, cap. x, tit 170.
de adulteriis."
Vol. II.— 5 66 MONTESQUIEU Formerly, when a woman, whose husband was gone to war, heard no longer any tidings of him, she might easily marry again, because she had in her hands the power of making a divorce. The law of Constantine obliged the woman to wait four years, after which she might send the bill of divorce to the general; and, if her husband returned, he could not then charge her with adul- tery.b But Justinian decreed, that let the time be never so long after the departure of her husband, she should not marry unless, by the deposition and oath of the general, she could prove the death of her husband.c Justinian had in view the indissolubility of marriage; but we may safely say that he had it too much in .view. He demanded a positive proof when a negative one was sufficient; he required a thing extremely difficult to give, an ac- count of the fate of a man at a great distance, and exposed to so many accidents; he presumed a crime, that is, a desertion of the husband, when it was so natural to presume his death. He in- jured the commonwealth, by obliging women to live out of mar- riage; he injured individuals, by exposing them to a thousand dangers.
The law of Justinian, which ranked among the causes of di- vorce the consent of the husband and wife to enter into a mon- astery, was entirely opposite to the principles of the civil laws.rf It is natural that the causes of divorce should have their origin in certain impediments which could not be foreseen before mar- riage; but this desire of preserving chastity might be foreseen, since it is in ourselves. This law favors inconstancy in a state which is by its very nature perpetual; it shook the fundamental principle of divorce, which permits the dissolution of one mar- riage only from the hope of another. In short, if we view it in a religious light, it is no more than giving victims to God without a sacrifice.
10. — In what Case we ought to follow the civil Law which permits, and not the Law of Religion which forbids When a religion which prohibits polygamy is introduced into a country where it is permitted, we cannot believe (speaking only as a politician) that the laws of the country ought to sufifer h Leg. 7, " de repudiis, et judicio de d Auth. quod hodie cod. " de repumorib. sublato." diis," c Auth. hodie quantiscumque cod. " de repudiis."
THE SPIRIT OF LAWS 67 a man who has many wives to embrace this rehgion; unless the magistrate or the husband should indemnify them, by restoring them in some way or other to their civil state. Without this their condition would be deplorable; no sooner would they obey the laws than they would find themselves deprived of the greatest advantages of society.
II. — That human Courts of Justice should not be regulated by the Maxims of those Tribunals which relate to the other Life The tribunal of the inquisition, formed by the Christian monks on the idea of the tribunal of penitence, is contrary to all good poHcy. It has everywhere met with a general disHke, and must have sunk under the oppositions it met with, if those who were resolved to establish it had not drawn advantages even from these oppositions.
This tribunal is insupportable in all governments. In mon- archies, it only makes informers and traitors: in republics, it only forms dishonest men; in a despotic state, it is as destructive as the government itself.
12. — The same Subject continued It is one abuse of this tribunal, that of two persons accused of the same crime, he who denies is condemned to die; and he who confesses avoids the punishment. This has its source in mon- astic ideas, where he who denies seems in a state of impenitence and damnation; and he who confesses, in a state of repentance and salvation. But a distinction of this kind can have no relation to human tribunals. Human justice, which sees only the actions, has but one compact with men, namely, that of innocence; di- vine justice, which sees the thoughts, has two, that of innocence and repentance.
13. — In what Cases, with regard to Marriage, we ought to fol- low the Laws of Religion; and in what Cases we should fol- lotv the civil Laws It has happened in all ages and countries, that religion has been blended with marriages. When certain things have been considered as impure or unlawful, and had nevertheless become necessary, they were obliged to call in religion to legitimate in the one case, and to reprove in others.
68 MONTESQUIEU 68 MONTESQUIEU On the other hand, as marriage is of all human actions that in which society is most interested, it became proper that this should be regulated by the civil laws.
Everything which relates to the nature of marriage, its form, the manner of contracting it, the fruitfulness it occasions, which has made all nations consider it as the object of a particular bene- diction, a benediction which, not being always annexed to it, is supposed to depend on certain superior graces; all this is within the resort of religion.
The consequences of this union with regard to property, the reciprocal advantages, everything which has a relation to the new family, to that from which it sprang, and to that which is ex- pected to arise; all this relates to the civil laws.
As one of the great objects of marriage is to take away that uncertainty which attends unlawful conjunctions, religion here stamps its seal, and the civil laws join theirs to it, to the end that it may be as authentic as possible. Thus, besides the conditions required by religion to make a marriage valid, the civil laws may still exact others.
The civil laws receive this power from their being additional obligations, and not contradictory ones. The law of religion in- sists upon certain ceremonies, the civil laws on the consent of fathers; in this case, they demand something more than that of religion, but they demand nothing contrary to it.
It follows hence, that the religious law must decide wheth- er the bond be indissoluble or not; for if the laws of religion had made the bond indissoluble, and the civil laws had de- clared it might be broken, they would be contradictory to each other.
Sometimes the regulations made by the civil laws with respect to marriage, are not absolutely necessary; such are those estab- lished by the laws, which, instead of annulling the marriage, only punish those who contract it.
Among the Romans, the Papian law declared those marriages illegial which had been prohibited, and yet only subjected them to a penalty; e but a senatus-consultum, made at the instance of the Emperor Marcus Antoninus, declared them void; there then no longer subsisted any such thing as a marriage, wife, dowry, or e See what has been said on this sub- relation they bear to the number of ject, in book XXIII. chap. 21, in the inhabitants.
THE SPIRIT OF LAWS 69 husband/ The civil laws determine according to circumstances: sometimes they are most attentive to repair the evil; at others, to prevent it.
14. — In what instances Marriages between Relatives shall be regulated by the Laws of Nature: and in what instances by the civil Laws With regard to the prohibition of marriage between relatives, it is a thing extremely delicate to fix exactly the point at which the laws of nature stop and where the civil laws begin. For this purpose we must establish some principles.
The marriage of the son with the mother confounds the state of things: the son ought to have an unlimited respect for his mother, the wife an unlimited respect for her husband; therefore the marriage of the mother to her son would subvert the natural state of both.
Besides, nature has forwarded in women the time in which they are able to have children, but has retarded it in men; and, for the same reason, women sooner lose this ability and men later. If the marriage between the mother and the son were permitted, it would almost always be the case that when the husband was capable of entering into the views of nature, the wife would be incapable.
The marriage between the father and the daughter is contrary to nature, as well as the other; but it is not less contrary, because it has not these two obstacles. Thus, the Tartars, who may marry their daughters,g never marry their mothers, as we see in the accounts we have of that nation./t It has ever been the natural duty of fathers to watch over the chastity of their children. Intrusted with the care of their educa- tion, they are obliged to preserve the body in the greatest perfec- tion, and the mind from the least corruption; to encourage what- ever has a tendency to inspire them with virtuous desires, and to nourish a becoming tenderness. Fathers, always employed in preserving the morals of their children, must have a natural aver- sion to everything that can render them corrupt. Marriage, you f See law 16, ff. " de ritu nuptia- bassy stopped in a certain place to rum"; and law 3, sec. i, also Digest, marry Esca his daughter. " A thing " de donationibus inter virum et uxo- permitted," he adds, " by the laws of rem." the Scythians," p. 22.
g This law is very ancient among h " Hist, of the Tartars," part III.
them. Attila, says Priscus, in his em- p. 236.
70 MONTESQUIEU will say, is not a corruption; but before marriage they must speak, they must make their persons beloved, they must seduce; it is this seduction which ought to inspire us with horror.
There should be therefore an insurmountable barrier between those who ought to give the education, and those who are to re- ceive it, in order to prevent every kind of corruption, even though the motive be lawful. Why do fathers so carefully deprive those who are to marry their daughters of their company and famil- iarity?
The horror that arises against the incest of the brother with the sister should proceed from the same source. The desire of fathers and mothers to preserve the morals of their children and families untainted is sufficient to inspire their offspring with a de- testation of everything that can lead to the union of the two sexes.
The prohibition of marriage between cousins-german has the same origin. In the early ages, that is, in the times of innocence; in the ages when luxury was unknown it was customary for chil- dren » upon their marriage not to remove from their parents, but settle in the same house; as a small habitation was at that time sufficient for a large family; the children of two brothers, or cousins-german,;' were considered both by others and themselves as brothers. The estrangement then between the brothers and sisters as to marriage subsisted also between the cousins-german.fe These principles are so strong and so natural that they have had their influence almost over all the earth, independently of any communication. It was not the Romans who taught the inhabi- tants of Formosa,/ that the marriage of relatives of the fourth de- gree was incestuous; it was not the Romans that communicated this sentiment to the Arabs; w it was not they who taught it to the inhabitants of the Maldivian islands.^ But if some nations have not rejected marriages between fath- ers and children, sisters and brothers, we have seen in the first book, that intelligent beings do always follow the law of nature. Who could have imagined it! Religious ideas have frequently t It was thus among the ancient Ro- cousin-german. — Plutarch's treatise en- mans, titled " Questions concerning the afj Among the Romans they had the fairs of the Romans." same name; the cousins-german were /"Collection of Voyages to the In- called brothers. dies," vol. v. part I. An account of the k It was thus at Rome in the first ages, state of the isle of Formosa.
till the people made a law to permit m Koran, chapter " on Women."
them; they were willing to favor a man n See Francis Pirard. extremely popular, who had married his THE SPIRIT OF LAWS 71 made men fall into these mistakes. If the Assyrians and the Per- sians married their mothers, the first were influenced by a relig- ious respect for Semiramis, and the second did it because the re- ligion of Zoroaster gave a preference to these marriages.o If the Egyptians married their sisters, it proceeded from the wild- ness of the Egyptian religion, which consecrated these marriages in honor of Isis. As the spirit of religion leads us to attempt whatever is great and difficult, we cannot infer that a thing is nat- ural from its being consecrated by a false religion.
The principle which informs us that marriages between fathers and children, between brothers and sisters, are prohibited in order to preserve natural modesty in families will help us to the discovery of those marriages that are forbidden by the law of nature, and of those which can be so only by the civil law.
As children dwell, or are supposed to dwell in their father's house, and consequently the son-in-law with the mother-in-law, the father-in-law with the daughter-in-law, or wife's daughter, the marriage between them is forbidden by the law of nature. In this case the resemblance has the same effect as the reality, be- cause it springs from the same cause; the civil law neither can, nor ought to permit these marriages.
There are nations, as we have already observed, among whom cousins-german are considered as brothers, because they com- monly dwell in the same house; there are others where this cus- tom is not known. Among the first the marriage of cousins-ger- man ought to be regarded as contrary to nature; not so among the others.
But the laws of nature cannot be local. Therefore, when these marriages are forbidden or permitted, they are, according to the circumstances, permitted or forbidden by a civil law.
It is not a necessary custom for the brother-in-law and the sister-in-law to dwell in the same house. The marriage between them is not then prohibited to preserve chastity in the family; and the law which forbids or permits it is not a law of nature, but a civil law, regulated by circumstances and dependent on the cus- toms of each country: these are cases in which the laws depend on the morals, or customs of the inhabitants. i, The civil laws forbid marriages when by the customs received o They were considered as more hon- quae pertinet ad prsecepta. deCalogi." orable. See Philo, " de specialibus legib. Paris 1640, p. 778.
'(LIBRARY 72 MONTESQUIEU in a certain country they are found to be in the same circum- stances as those forbidden by the law of nature; and they permit them when this is not the case. The prohibitions of the laws of nature are invariable, because the thing on which they depend is invariable; the father, the mother, and the children necessarily dwell in the same house. But the prohibitions of the civil laws are accidental, because they depend on an accidental circum- stance, cousins-german and others dwelling in the house by acci- dent.
This explains why the laws of Moses, those of the Egyptians,/* and of many other nations permitted the marriage of the brother- in-law with the sister-in-law; whilst these very marriages were disallowed by other nations.
In the Indies they have a very natural reason for admitting this sort of marriages. The uncle is there considered as the father and is obliged to maintain and educate his nephew as if he were his own child; this proceeds from the disposition of this people, which is good-natured and full of humanity. This law or this custom has produced another; if a husband has lost his wife, he does not fail to marry her sister: q which is extremely natural, for his new consort becomes the mother of her sister's children, and not a cruel step-mother.
15. — That we should not regulate by the Principles of political Laws those Things which depend on the Principles of civil Law As men have given up their natural independence to live under political laws, they have given up the natural community of goods to live under civil laws.
By the first, they acquired liberty; by the second, property. We should not decide by the laws of liberty, which, as we have already said, is only the government of the community, what ought to be decided by the laws concerning property. It is a paralogism to say, that the good of the individual should give way to that of the public; this can never take place, except when the government of the community, or, in other words, the liberty of the subject is concerned; this does not affect such cases as re- late to private property, because the public good consists in everyp See Law 8, of the Code " de incestis q " Edifying Letters," 4th, 403.
et inutilibus nuptiis. ' THE SPIRIT OF LAWS 73 one's having his property, which was given him by the civil laws, invariably preserved.
Cicero maintains, that the Agrarian laws were unjust; because the community was established with no other view than that everyone might be able to preserve his property.
Let us, therefore, lay down a certain maxim, that whenever the public good happens to be the matter in question, it is not for the advantage of the public to deprive an individual of his prop- erty, or even to retrench the least part of it by a law, or a po- litical regulation. In this case we should follow the rigor of the civil law, which is the palladium of property.
Thus when the public has occasion for the estate of an individ- ual, it ought never to act by the rigor of political law; it is here that the civil law ought to triumph, which, with the eyes of a mother, regards every individual as the whole community.
If the political magistrate would erect a public edifice, or make a new road, he must indemnify those who are injured by it; the public is in this respect like an individual who treats with an in- dividual. It is fully enough that it can oblige a citizen to sell his inheritance, and that it can strip him of the great privilege, which he holds from the civil law, of not being forced to alienate his possessions.
After the nations which subverted the Roman Empire had abused their very conquests, the spirit of liberty called them back to that of equity. They exercised the most barbarous laws with moderation: and if any one should doubt the truth of this, they need only read Beaumanoir's admirable work on jurisprudence, written in the twelfth century.
They mended the highways in his time as we do at present. He says, that when a highway could not be repaired, they made a new one as near the old as possible; but indemnified the pro- prietors at the expense of those who reaped any advantage from the road.*" They determined at that time by the civil law; incur days, we determine by the law of politics.
r " The lord appointed collectors to by the count, and the clergy to the receive the toll from the peasant, the bishop." — Beaumanoir, chap. xxii. gentlemen were obliged to contribute 74 MONTESQUIEU i6. — That we ought not to decide by the Rules of the civil Law when it is proper to decide by those of the political Law Most difficulties on this subject may be easily solved by not confounding the rules derived from property with those which spring from liberty.
Is the demesne of a state or government alienable, or is it not? This question ought to be decided by the political law, and not by the civil. It ought not to be decided by the civil law, because it is as necessary that there should be demesnes for the subsist- ence of a state, as that the state should have civil laws to regulate the disposal of prdperty.
If then they alienate the demesne, the state will be forced to make a new fund for another. But this expedient overturns the political government, because, by the nature of the thing, for every demesne that shall be established, the subject will always be obHged to pay more, and the sovereign to receive less; in a word, the demesne is necessary, and the alienation is not.
The order of succession is, in monarchies, founded on the wel- fare of the state; this makes it necessary that such an order should be fixed to avoid the misfortunes, which I have said must arise in a despotic kingdom, where all is uncertain, because all is arbitrary.
The order of succession is not fixed for the sake of the reign- ing family; but because it is the interest of the state that it should have a reigning family. The law which regulates the suc- cession of individuals is a civil law, whose view is the interest of individuals; that which regulates the succession to monarchy is a political law, which has in view the welfare and preservation of the kingdom.
It follows hence, that when the political law has established an order of succession in government, and this order is at an end, it is absurd to reclaim the succession in virtue of the civil law of any nation whatsoever. One particular society does not make laws for another society. The civil laws of the Romans are no more applicable than any other civil laws. They themselves did not make use of them when they proceeded against kings; and the maxims by which they judged kings are so abominable, that they ought never to be revived.
It follows also hence, that when the political law has obliged THE SPIRIT OF LAWS 75 a family to renounce the succession, it is absurd to insist upon the restitutions drawn from the civil law. Restitutions are in the law, and may be good against those who Uve in the law: but they are not proper for such as have been raised up for the law, and who live for the law.
It is ridiculous to pretend to decide the rights of kingdoms, of nations, and of the whole globe by the same maxims on which (to make use of an expression of Cicero) s we should determine the right of a gutter between individuals.
17. — The same Subject continued Ostracism ought to be examined by the rules of politics, and not by those of the civil law; and so far is this custom from ren- dering a popular government odious, that it is, on the contrary, extremely well adapted to prove its lenity. We should be sensi- ble of this ourselves, if, while banishment is always considered among us as a penalty, we are able to separate the idea of ostra- cism from that of punishment.
Aristotle t tells us, it is universally allowed, that this practice has something in it both humane and popular. If in those times and places where this sentence was executed they found noth- ing in it that appeared odious; is it for us who see things at such a distance to think otherwise than the accuser, the judges and the accused themselves?
And if we consider that this judgment of the people loaded the person with glory on whom it was passed; that when at Athens it fell upon a man without merit," from that very moment they ceased to use it; ^' we shall find that numbers of people have obtained a false idea of it; for it was an admirable law that could prevent the ill consequences which the glory of a citizen might produce by loading him with new glory.
18. — That it is necessary to inquire whether the Laws which seem contradictory are of the same Class At Rome the husband was permitted to lend his wife to an- other. Plutarch tells us this in express terms.w We know that i Lib. I. " of Laws." v It was found opposite to the spirit * " Repub." lib. III. cap. xiii. of the legislator.
M Hyperbolus. See Plutarch, " Life w Plutarch in his " comparison beof Aristides." tween Lycurgus and Numa. ' 76 MONTESQUIEU Cato lent his wife to Hortensius,-*^ and Cato was not a man to violate the laws of his country.
On the other hand, a husband who suflfered his wife to be de- bauched, who did not bring her to justice, or who took her again after her condemnation was punished.^ These laws seem to contradict each other, and yet are not contradictory. The law which permitted a Roman to lend his wife was visibly a Lace- daemonian institution, established with a view of giving the re- public children of a good species, if I may be allowed the term; the other had in view the preservation of morals. The first was a law of politics, the second a civil law.
19. — That we should not decide those Things by the civil Law which ought to be decided by domestic Laws The law of the Visigoths enjoins that the slaves of the house shall be obliged to bind the man and woman they surprise in adultery, and to present them to the husband and to the judge; -s a terrible law, which puts into the hands of such mean persons, the care of public, domestic, and private vengeance!
This law can be nowhere proper but in the seraglios of the East, where the slave who has the charge of the inclosure is deemed an accomplice upon the discovery of the least infidelity. He seizes the criminals, not so much with a view to bring them to justice, as to do justice to himself, and to obtain a scrutiny into the circumstances of the action, in order to remove the sus- picion of his negligence.
But, in countries where women are not guarded, it is ridicu- lous to subject those who govern the family to the inquisition of their slaves.
The inquisition may, in certain cases, be at the most a particu- lar domestic regulation, but never a civil law.
20. — TJiat we ought not to decide by the Principles of the civil Laws those Things which belong to the Law of Nations Liberty consists principally in not being forced to do a thing, where the laws do not obUge: people are in this state only as they are governed by civil laws; and because they live under those civil laws, they are free.
ir Plutarch, "Life of Cato." « Law of the Visigoths, lib. III. tit.
vLeg. II, sec. ult. ff. " ad leg. Jul. de 4, sec. 6. adulteriis."
THE SPIRIT OF LAWS __^ 77 It follows hence, that princes who live not among themselves under civil laws are not free; they are governed by force; they may continually force, or be forced. Hence it follows, that treaties made by force are as obligatory as those made by free consent. When we, who live under civil laws, are, contrary to law, constrained to enter into a contract we may, by the assist- ance of the law, recover from the effects of violence: but a prince, who is always in that state in which he forces, or is forced, can- not complain of a treaty which he has been compelled to sign. This would be to complain of his natural state; it would seem as if he would be a prince with respect to other princes, and as if other princes should be subjects with respect to him; that is, it would be contrary to the nature of things.
21. — That we should not decide by political Laws Things which belong to the Law of Nations Political laws demand that every man be subject to the natural and civil courts of the country where he resides, and to the cen- sure of the sovereign.
The law of nations requires that princes shall send ambassa- dors; and a reason drawn from the nature of things does not permit these ambassadors to depend either on the sovereign to whom they are sent, or on his tribunals. They are the voice of the prince who sends them, and this voice ought to be free; no obstacle should hinder the execution of their office: they may frequently offend, because they speak for a man entirely inde- pendent; they might be wrongfully accused, if they were liable to be punished for crimes; if they could be arrested arrested for debts, these might be forged. Thus a prince, who has naturally a bold and enterprising spirit, would speak by the mouth of a man who had everything to fear. We must then be guided, with respect to ambassadors, by reasons drawn from the law of nations, and not by those derived from political law. But if they make an ill use of their representative character, a stop may be put to it by sending them back. They may even be ac- cused before their master, who becomes either their judge or their accomplice.
78 MONTESQUIEU 22. — The unhappy state of the Ynca Athualpa