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.

　　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 contract it.

　　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 nation.33

　　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" title="n.腐化；贪污；贿赂">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" title="n.腐化；贪污；贿赂">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" title="n.腐化；贪污；贿赂">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, dependently" title="ad.独立地；自由地">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 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, 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 inhabitants.

　　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 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: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 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 relate to private property, because the public good consists in every 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 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 property.

　　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 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,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 Laced?monian 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 civil law.
关键字:英文版论法的精神
生词表: