第 71 页

A divorce can be agreeable to nature only when it is by consent 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 inconveniences 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.[4] This was contrary to nature: a wife to inform 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 adulteress, or those of her husband, to accuse her, and to put the slaves of the house to the torture.[5] 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 express 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 Ph?dra 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;[6] it excepted those who were born of a courtesan,[7] those whose chastity had been infamously prostituted by their father, and those to whom he had not given any means of gaining a livelihood.[8]

The law considered that, in the first case, the father being uncertain, he had rendered the natural obligation 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 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 heiress to an estate, not even if she had an only child. Never was there a law, says St. Augustine, more unjust.[9] A formula of Marculfus treats that custom as impious which deprives daughters of the right of succeeding to the estate of their fathers.[10] Justinian gives the appellation of barbarous to the right which the males had formerly of succeeding in prejudice to the daughters.[11] These notions proceeded from their having considered the right of children 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 succession after the death of the person who has had this division can be regulated only by the community, and consequently by political 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,[12] 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 being 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 writers have treated these brothers as usurpers, they have judged only by ideas received from the laws of their own countries.[13]

According to the custom of Numidia,[14] 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.[15]

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[16] 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 prevent 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,[17] 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 obligation of the civil or political law. Hence are derived the different regulations with respect to bastards in the different countries of the world; these are according to the civil or political laws of each country.

7. That we ought not to decide by the Precepts of Religion what belongs only to the Law of Nature. The Abassines have a most severe lent 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.[18] Religion ought, in favour 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 instance of great stupidity in this nation not to defend themselves when their enemies chose to attack them on this day.[19]

Cambyses, laying siege to Pelusium, set in the first rank a great number of those animals which the Egyptians regarded as sacred; 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 Law Things which should be regulated by those of the civil Law. By the civil law of the Romans,[20] 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.[21] 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 account of the infidelity of the husband.[22] This custom, contrary to a regulation made in the Roman laws,[23] was introduced into the ecclesiastic court,[24] where nothing was regarded but the maxims 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 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 renunciation 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.

9. That Things which ought to be 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 welfare 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 government. 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 spiritual 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.[25] Justinian, from other principles, ordained that during the space of two years he might go and take her again out of the monastery.[26]

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 adultery.[27] 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.[28] 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 account 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 injured the commonwealth by obliging women to live out of marriage; he injured individuals by exposing them to a thousand dangers.

The law of Justinian, which ranked among the causes of divorce the consent of the husband and wife to enter into a monastery, was entirely opposite to the principles of the civil laws.[29] It is natural that the causes of divorce should have their origin in certain impediments which could not be foreseen before marriage; but this desire of preserving chastity might be foreseen, since it is in ourselves. This law favours inconstancy in a state which is by its very nature perpetual; it shook the fundamental principle of divorce, which permits the dissolution of one marriage 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 suffer a man who has many wives to embrace this religion; 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.

11. 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 policy. It has everywhere met with a general dislike, 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 monarchies, 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 monastic 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; divine justice, which sees the thoughts, has two, that of innocence and repentance.

13. In what Cases, with regard to Marriage, we ought to follow the Laws of Religion; and in what Cases we should follow 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.