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 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 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 extravagantfondness 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 reasonablyexclude 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 wiselyexcluded 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 society.

　　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 different order.

　　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.

--------------------------------------------------------------------------------

　　1. Laws, ix.

　　2. M. Bayle, in his Criticism on the History of Calvinism, speaks of this law, p. 263.

　　3. See Leg. 5. Cod. de repudiis et judicio de moribus sublato.

　　4. Law of the Burgundians, tit. 47.

　　5. In the Code of the Visigoths, iii, tit. 4, § 13.

　　6. Under pain of infamy, another under pain of imprisonment.

　　7. Plutarch. Solon.

　　8. Ibid., and Gallien, in Exhort. ad Art., 8.

　　9. City of God, iii. 21.

　　10. Book ii. 12.

　　11. Nov. 21.

　　12. Book ii, tit. 14, § 6, 7, and 8.

　　13. Father Du Halde on the Second Dynasty.

　　14. Livy, xxix. 29.

　　15. Shaw, Travels, i, p. 402.

　　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.

　　20. Leg., 5, ff. ad. leg. Juliam peculatus.

　　21. Cap. quisquis 17, qu?stione 4. Cujas, Observat., xiii. 19, tom. iii.

　　22. Beaumanoir, Ancient Customs of Beauvoisis, 18, § 6.

　　23. Leg. 1. Cod. ad. leg. Jul. de adulteriis.

　　24. At present they do not take cognizance of these things in France.

　　25. Leg. ii, § ult., ff. ad. leg. Jul. de adultenis.

　　26. Nov. 134. Col. 9, cap. x, tit. 170.

　　27. Leg. 7, Cod. de repudiis, et juricio de morib. sublato.

　　28. Auth. Hodie quantiscumque. Cod. de repudiis.

　　29. Auth. Quod hodie. Cod. de repudiis.

　　30. See what has been said on this subject, in book xxiii. 21, in the relation they bear to the number of inhabitants.

　　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.

　　33. History of the Tartars, part III, p. 256.

　　34. It was thus among the ancient Romans.

　　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 Romans.

　　37. Collection of Voyages to the Indies, v, part 1. An account of the state of the isle of Formosa.

　　38. Koran, chapter "On Women."

　　39. See Francis Pirard.

　　40. They were considered as more honourable. See Philo, De Specialibus legib. qu? pertinet ad pr?cepta decalogi, p. 778, Paris, 1640.

　　41. See Leg. 8, Cod. de incestis et inutilibus nuptiis.

　　42. Edifying Letters, coll. xiv, p. 403.

　　43. "The lord appointed collectors to receive the toll from the peasant, the gentlemen were obliged to contribute by the count, and the clergy to the bishop." - Beaumanoir, 25, §§ 13, 17.

　　44. De Leg., i.

　　45. Politics, iii. 13.

　　46. Hyperbolus. See Plutarch, Aristides.

　　47. It was found opposite to the spirit of the legislator. See below, xxix. 7.

　　48. Plutarch in his comparison between Lycurgus and Numa.

　　49. Plutarch, Cato the Younger.

　　50. Leg. 11 § ult., ff. ad. leg. Jul. de adulteriis.

　　51. Law of the Visigoths, iii, tit. 4, § 6.

　　52. See Garcilasso de la Vega, p. 108.

　　53. See v. 14; viii. 16-20; ix. 4-7; and x. 9, 10.

　　54. Venice.

　　55. Chapter 14, part XII.
关键字:英文版论法的精神
生词表: