Book XXVI. Of Laws in Relation to the Order of Things Which
1. 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 considered
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 citizen; in fine, by domestic law, which proceeds from a society's
being divided into several families, all which have need of a particular
There are therefore different orders of laws, and the sublimity of human
reason consists in perfectly 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 principles 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 determined by divine laws.
These two sorts of laws differ in their origin, in their object, and in
It is universally acknowledged, that human laws are, in their own
nature, different from those of religion; this is an important principle:
but this principle is itself subject to others, which must be inquired
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 object, 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
religion 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 humour of the sovereign. 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. Human 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.1 This is
a civil law which punishes self-defence, though dictated by nature.
The law of Henry VIII which condemned a man without being 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 every woman, who,
having carried on a criminal commerce did not declare it to the king
before she married him, violated the regard due to natural modesty. It is
as unreasonable to oblige a woman to make this declaration, as to oblige a
man not to attempt 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 torturing to
natural modesty? Education has heightened the notion 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.2
This law was shocking 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 repudiate her
husband, though he himself had consented to the marriage.3
But it is contrary to nature for a divorce to be in the power of a third
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 Phædra 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
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
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 states16
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
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
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
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
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.
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 benediction, 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 expected 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 insists 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 whether the bond be
indissoluble or not; for if the laws of religion had made the bond
indissoluble, and the civil laws had declared 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 established by the
laws, which, instead of annulling the marriage, only punish those who
Among the Romans, the Papian law declared those marriages illegal which
had been prohibited, and yet only subjected them to a penalty;30
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 husband.31
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,32
never marry their mothers, as we see in the accounts we have of that
It has ever been the natural duty of fathers to watch over the chastity
of their children. Entrusted with the care of their education, they are
obliged to preserve the body in the greatest perfection, and the mind from
the least corruption; to encourage whatever 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 aversion to everything that can render them corrupt. Marriage, you
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 receive 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 familiarity?
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 detestation 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 children34
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,35
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.36
These principles are so strong and no natural that they have had their
influence almost over all the earth, independently of any communication.
It was not the Romans who taught the inhabitants of Formosa37
that the marriage of relatives of the fourth degree was incestuous; it was
not the Romans that communicated this sentiment to the Arabs;38
it was not they who taught it to the inhabitants of the Maldivian islands.39
But if some nations have not rejected marriages between fathers and
children, sisters and brothers, we have seen in the first book, that
intelligent beings do not always follow the law of nature. Who could have
imagined it! Religious ideas have frequently made men fall into these
mistakes. If the Assyrians and the Persians married their mothers, the
first were influenced by a religious respect for Semiramis, and the second
did it because the religion of Zoroaster gave a preference to these
marriages.40 If the Egyptians
married their sisters, it proceeded from the wildness of the Egyptian
religion, which consecrated these marriages in honour of Isis. As the
spirit of religion leads us to attempt whatever is great and difficult, we
cannot infer that a thing is natural from its being consecrated by a false
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, because 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 commonly dwell in
the same house; there are others where this custom is not known. Among the
first the marriage of cousins-german 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 customs of each country: these are
cases in which the laws depend on the morals, or customs of the
The civil laws forbid marriages when by the customs received in a
certain country they are found to be in the same circumstances 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
circumstance, cousins-german and others dwelling in the house by accident.
This explains why the laws of Moses, those of the Egyptians,41
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
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:42
which is extremely natural, for his new consort becomes the mother of her
sister's children, and not a cruel stepmother.
15. That we should not regulate by the Principles
of political Law 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
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 relate to private property, because the public good consists in every
one's having his property, which was given him by the civil laws,
Cicero maintains that the Agrarian laws were unjust; because the
community was established with no other view than that every one 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 property, or even to retrench
the least part of it by a law, or a political regulation. In this case we
should follow the rigour of the civil law, which is the Palladium of
Thus when the public has occasion for the estate of an individual, it
ought never to act by the rigour 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 individual. It is fully
enough that it can oblige a citizen to sell his inheritance, and that it
can strip him of this great privilege which he holds from the civil law,
the 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, he 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 proprietors at the expense of those who
reaped any advantage from the road.43
They determined at that time by the civil law; in our days, we determine
by the law of politics.
16. 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 subsistence of a state, as that the
state should have civil laws to regulate the disposal of property.
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 obliged 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 welfare 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 reigning
family; but because it is the interest of the state that it should have a
reigning family. The law which regulates the succession 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 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 live 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)44 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 rendering a popular government
odious, that it is, on the contrary, extremely well adapted to prove its
lenity. We should be sensible of this ourselves, if, while banishment is
always considered among us as a penalty, we are able to separate the idea
of ostracism from that of punishment.
Aristotle45 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 nothing 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
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,46 from that very
moment they ceased to use it;47 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 another. Plutarch tells us this
in express terms.48 We know that
Cato lent his wife to Hortensius,49
and Cato was not a man to violate the laws of his country.
On the other hand, a husband who suffered his wife to be debauched, who
did not bring her to justice, or who took her again after her condemnation
was punished.50 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 Lacedæmonian
institution, established with a view of giving the republic 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
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:51 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 enclosure 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 suspicion of his negligence.
But, in countries where women are not guarded, it is ridiculous to
subject those who govern the family to the inquisition of their slaves.
This inquisition may, in certain cases, be at the most a particular
domestic regulation, but never a civil law.
20. That 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 oblige: people are in this state only as they are governed by
civil laws; and because they live under those civil laws, they are free.
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 assistance 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,
cannot 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
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 censure of the sovereign.
The law of nations requires that princes shall send ambassadors; 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
independent; they might be wrongfully accused, if they were liable to be
punished for crimes: if they could be 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 accused before their master, who
becomes either their judge or their accomplice.
22. The unhappy State of the Inca Athualpa.
The principles we have just been establishing were cruelly violated by the
Spaniards. The Inca Athualpa52
could not be tried by the law of nations: they tried him by political and
civil laws; they accused him for putting to death some of his own
subjects, for having many wives &c., and to fill up the measure of
their stupidity, they condemned him, not by the political and civil laws
of his own country, but by the political and civil laws of theirs.
23. That when, by some Circumstance, the
political Law becomes destructive to the State, we ought to decide by such
a political Law as will preserve it, which sometimes becomes a Law of
Nations. When that political law which has established in the kingdom
a certain order of succession becomes destructive to the body politic for
whose sake it was established, there is not the least room to doubt but
another political law may be made to change this order; and so far would
this law be from opposing the first that it would in the main be entirely
conformable to it, since both would depend on this principle, that
THE SAFETY OF THE PEOPLE IS THE SUPREME LAW.
I have said53 that a great state
becoming accessory to another is itself weakened, and even weakens the
principal. We know that it is for the interest of the state to have the
supreme magistrate within itself, that the public revenues be well
administered, and that its specie be not sent abroad to enrich another
country. It is of importance that he who is to govern has not imbibed
foreign maxims; these are less agreeable than those already established.
Besides, men have an extravagant fondness for their own laws and customs:
these constitute the happiness of every community; and, as we learn from
the histories of all nations, are rarely changed without violent
commotions and a great effusion of blood.
It follows hence, that if a great state has for its heir the possessor
of a great state, the former may reasonably exclude him, because a change
in the order of succession must be of service to both countries. Thus a
law of Russia, made in the beginning of the reign of Elizabeth, most
wisely excluded from the possession of the crown every heir who possessed
another monarchy; thus the law of Portugal disqualifies every stranger who
lays claim to the crown by right of blood.
But if a nation may exclude, it may with greater reason be allowed a
right to oblige a prince to renounce. If the people fear that a certain
marriage will be attended with such consequences as shall rob the nation
of its independence, or dismember some of its provinces, it may very
justly oblige the contractors and their descendants to renounce all right
over them; while he who renounces, and those to whose prejudice he
renounces, have the less reason to complain, as the state might originally
have made a law to exclude them.
24. That the Regulations of the Police are of a
different Class from other civil Laws. There are criminals whom the
magistrate punishes, there are others whom he reproves. The former are
subject to the power of the law, the latter to his authority: those are
cut off from society; these they oblige to live according to the rules of
In the exercise of the Police, it is rather the magistrate who punishes,
than the law; in the sentence passed on crimes, it is rather the law which
punishes, than the magistrate. The business of the Police consists in
affairs which arise every instant, and are commonly of a trifling nature:
there is then but little need of formalities. The actions of the Police
are quick; they are exercised over things which return every day: it would
be therefore improper for it to inflict severe punishments. It is
continually employed about minute particulars; great examples are
therefore not designed for its purpose. It is governed rather by
regulations than laws; those who are subject to its jurisdiction are
incessantly under the eye of the magistrate: it is therefore his fault if
they fall into excess. Thus we ought not to confound a flagrant violation
of the laws, with a simple breach of the Police; these things are of a
Hence it follows, that the laws of an Italian republic,54
where bearing fire-arms is punished as a capital crime and where it is not
more fatal to make an ill use of them than to carry them, is not agreeable
to the nature of things.
It follows, moreover, that the applauded action of that emperor who
caused a baker to be impaled whom he found guilty of a fraud, was the
action of a sultan who knew not how to be just without committing an
outrage on justice.
25. That we should not follow the general
Disposition of the civil Law, in things which ought to be subject to
particular Rules drawn from their own Nature. Is it a good law that
all civil obligations passed between sailors in a ship in the course of a
voyage should be null? Francis Pirard tells us55
that, in his time, it was not observed by the Portuguese, though it was by
the French. Men who are together only for a short time, who have no wants,
since they are provided for by the prince; who have only one object in
view, that of their voyage; who are no longer in society, but are only the
inhabitants of a ship, ought not to contract obligations that were never
introduced but to support the burden of civil society.
In the same spirit was the law of the Rhodians, made at a time when they
always followed the coasts; it ordained that those who during a tempest
stayed in a vessel should have ship and cargo, and those who quitted it
should have nothing.
16. See the Collection of Voyages
that Contributed to the Establishment of the East India Company, iv,
part I, p. 114. And Mr. Smith, Voyage to Guinea, part II, p. 150,
concerning the kingdom of Juida.
17. See Edifying Letters,
coll. xiv, and the Voyages that Contributed to the Establishment of
the East India Company, iii, part II, p. 644.
18. Collection of Voyages that
Contributed to the Establishment of the East India Company, iv, part
I, pp. 35, 103.
19. As they did when Pompey besieged
the Temple. Dio, xxxvii, 16.
30. See what has been said on this
subject, in book xxiii. 21, in the relation they bear to the number of
31. See Leg. 16, ff. de
ritu nuptiarum, and Leg. 3, § 1; also Dig. de
donationibus inter virum et uxorem.
32. This law is very ancient among
them. Attila, says Priscus, in his embassy stopped in a certain place to
marry Esca his daughter. "A thing permitted," he adds, "by
the laws of the Scythians," p. 22.
35. Among the Romans they had the
same name; the cousins-german were called brothers.
36. It was thus at Rome in the first
ages, till the people made a law to permit them; they were willing to
favour a man extremely popular, who had married his cousin-german.
Plutarch's treatise entitled Questions Concerning the Affairs of the
37. Collection of Voyages to the
Indies, v, part 1. An account of the state of the isle of Formosa.