The Spirit Of Laws Part 21

72 Ibid. t.i.t. 14. It seems the first Julian laws allowed three years.-"Speech of Augustus," in Dio, lib. LVI.; Suetonius, "Life of Augustus," cap. x.x.xiv. Other Julian laws granted but one year: the Papian law gave two.-"Frag. Of Ulpian," t.i.t. 14. These laws were not agreeable to the people; Augustus, therefore, softened or strengthened them as they were more or less disposed to comply with them.

73 This was the 35th head of the Papian law.-Leg. 19 ff. "de t.i.tu nuptiarum."

74 See Dio, lib. LIV., anno 736; Suetonius, in "Octavio," cap. x.x.xiv.

75 Dio, lib. LIV.; and in the same Dio, the "Speech of Augustus," lib. LVI.

76 "Frag. of Ulpian," t.i.t. 16, and the 27th law. cod. "de nuptiis."

77 Ibid. t.i.t. 16, sec. 3.

78 See Suetonius in "Claudio," cap. xxiii.

79 Ibid. "Life of Claudius," cap. xxiii., and the "Frag. of Ulpian," t.i.t. 16, sec. 3.

80 Dio, lib. LIV.; "Frag. of Ulpian," t.i.t. 13.

81 "Augustus's speech," in Dio, lib. LVI.

82 "Frag. of Ulpian," cap. xiii., and the 44th law ff. "de ritu nuptiarum."

83 Ibid. t.i.t. 13 and 16.

84 See Law 1, in cod. "de natur. lib."

85 "Novell." 177.

86 Law 37 ff. de operib. libertorum," sec. 7; "Frag. of Ulpian," t.i.t. 16. sec. 2.

87 Frag. of Ulpian," t.i.t. 16, sec. 2.

88 See book XXVI. chap. xiii.

89 Except in certain cases. See the "Frag. of Ulpian." t.i.t. 18, and the only law in cod. "de Caduc. tollend."

90 "Relatum de moderanda Papia Poppaea."-Tacit. "Annal." lib. III. p. 117.

91 He reduced them to the fourth part-Suetonius, in "Nerone," cap. x.

92 See Pliny's "Panegyric."

93 Severus extended even to twenty-five years for the males, and to twenty for the females, the time fixed by the Papian law, as we see by comparing the "Frag. of Ulpian," t.i.t. 16, with what Tertullian says, "Apol." cap. iv.

94 P. Scipio, the Censor, complains, in his speech to the people, of the abuses which were already introduced, that they received the same privileges for adopted as for natural children.-Aulus Gellius, lib. V. cap. xix.

95 See the 31st law ff. "de ritu nuptiarum."

96 Augustus in the Papian law gave them the privilege of mothers. See Dio, lib. LXVI. Numa had granted them the ancient privilege of women who had three children; that is, of having no guardian.-Plutarch, "Life of Numa."

97 This was granted them by Claudius.-Dio, lib. LX.

98 Leg. apud eum, ff. "de manumissionib." sec.1.

99 Dio, lib. LV.

100 See, in Cicero's "Offices," his sentiments on the spirit of speculation.

101 Nazarius, "in panegyrico Constantini," anno 321.

102 See Laws 1, 2, 3, in the Theodosian code "de bonis maternis," "maternique generis," etc., and the only law in the same code, "de bonis quae filiis famil. acquiruntur."

103 Leg. unic. cod. Theod: "de Infirm. pn. caelib. et orbit."

104 Sozomenus, p. 27.

105 Leg. 2 and 3, cod. Theod. "de jur. liber."

106 Leg. Sancimus, cod. "de nuptiis."

107 "Novell." 127, cap. iii.; "Novell." 118; cap. v.

108 Leg. 54 ff. "de condit. et demonst."

109 Leg. 5, sec. 4, "de jure patronatus."

110 Paul, in his "Sentences," lib. III. t.i.t. 4, sec. 15.

111 "Antiquities of Rome," lib. II.

112 Ibid.

113 Lib. IX.

114 Lib. III. "de legib."

115 "De Moribus Germanorum."

116 There is no t.i.tle on this subject in the Digest; the t.i.tle of the Code says nothing of it, any more than the "Novels."

117 "Introduction to the History of Europe," chap. v. of France. This is obviously a numerical blunder, since, according to the Census of 1751, and France was never so populous as at that time, she did not possess twenty millions.-Voltaire.

118 Mahommedan countries surround it almost on every side.

119 The edict of 1666 in favor of marriages.

120 See Sir John Chardin's "Travels through Persia," vol. viii.

121 See Burnet's "History of the Reformation."

Book XXIV

Of Laws in Relation to Religion Considered in Itself, and in its Doctrines 1.-Of Religion in General AS amidst several degrees of darkness we may form a judgment of those which are the least thick, and among precipices which are the least deep, so we may search among false religions for those that are most conformable to the welfare of society; for those which, though they have not the effect of leading men to the felicity of another life, may contribute most to their happiness in this.

I shall examine, therefore, the several religions of the world, in relation only to the good they produce in civil society, whether I speak of that which has its root in heaven, or of those which spring from the earth.

As in this work I am not a divine but a political writer, I may here advance things which are not otherwise true, than as they correspond with a worldly manner of thinking, not as considered in their relation to truths of a more sublime nature.

With regard to the true religion, a person of the least degree of impartiality must see that I have never pretended to make its interests submit to those of a political nature, but rather to unite them; now, in order to unite, it is necessary that we should know them.

The Christian religion, which ordains that men should love each other, would, without doubt, have every nation blest with the best civil, the best political laws; because these, next to this religion, are the greatest good that men can give and receive.

2.-A Paradox of Mr. Bayle's Mr. Bayle has pretended to prove1 that it is better to be an atheist than an idolater; that is, in other words, that it is less dangerous to have no religion at all than a bad one. "I had rather," said he, "it should be said of me that I had no existence than that I am a villain." This is only a sophism founded on this, that it is of no importance to the human race to believe that a certain man exists, whereas it is extremely useful for them to believe the existence of a G.o.d. From the idea of his non-existence immediately follows that of our independence; or, if we cannot conceive this idea, that of disobedience. To say that religion is not a restraining motive, because it does not always restrain, is equally absurd as to say that the civil laws are not a restraining motive. It is a false way of reasoning against religion to collect, in a large work, a long detail of the evils it has produced, if we do not give at the same time an enumeration of the advantages which have flowed from it. Were I to relate all the evils that have arisen in the world from civil laws, from monarchy, and from republican government, I might tell of frightful things. Were it of no advantage for subjects to have religion, it would still be of some, if princes had it, and if they whitened with foam the only rein which can restrain those who fear not human laws.

A prince who loves and fears religion is a lion, who stoops to the hand that strokes, or to the voice that appeases him. He who fears and hates religion is like the savage beast that growls and bites the chain which prevents his flying on those who come near him. He who has no religion at all is that terrible animal who perceives his liberty only when he tears in pieces and when he devours.

The question is not to know whether it would be better that a certain man or a certain people had no religion than to abuse what they have, but to know what is the least evil, that religion be sometimes abused, or that there be no such restraint as religion on mankind.

To diminish the horror of atheism, they lay too much to the charge of idolatry. It is far from being true that when the ancients raised altars to a particular vice, they intended to show that they loved the vice; this signified, on the contrary, that they hated it. When the Lacedaemonians erected a temple to Fear, it was not to show that this warlike nation desired that he would in the midst of battle possess the hearts of the Lacedaemonians. They had deities to whom they prayed not to inspire them with guilt; and others whom they besought to s.h.i.+eld them from it.

3.-That a moderate Government is most agreeable to the Christian Religion, and a despotic Government to the Mahommedan The Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage with which a prince punishes his subjects, and exercises himself in cruelty.

As this religion forbids the plurality of wives, its princes are less confined, less concealed from their subjects, and consequently have more humanity: they are more disposed to be directed by laws, and more capable of perceiving that they cannot do whatever they please.

While the Mahommedan princes incessantly give or receive death, the religion of the Christians renders their princes less timid, and consequently less cruel. The prince confides in his subjects, and the subjects in the prince. How admirable the religion which, while it only seems to have in view the felicity of the other life, continues the happiness of this!

It is the Christian religion that, in spite of the extent of the empire and the influence of the climate, has hindered despotic power from being established in Ethiopia, and has carried into the heart of Africa the manners and laws of Europe.

The heir to the Empire of Ethiopia2 enjoys a princ.i.p.ality and gives to other subjects an example of love and obedience. Not far thence may we see the Mahommedan shutting up the children of the King of Sennar, at whose death the Council sends to murder them, in favor of the prince who mounts the throne.

Let us set before our eyes, on the one hand, the continual ma.s.sacres of the kings and generals of the Greeks and Romans, and, on the other, the destruction of people and cities by those famous conquerors Timur Beg and Jenghiz Khan, who ravaged Asia, and we shall see that we owe to Christianity, in government, a certain political law; and in war, a certain law of nations-benefits which human nature can never sufficiently acknowledge.

It is owing to this law of nations that among us victory leaves these great advantages to the conquered, life, liberty, laws, wealth, and always religion, when the conqueror is not blind to his own interest.

We may truly say that the people of Europe are not at present more disunited than the people and the armies, or even the armies among themselves were, under the Roman Empire when it had become a despotic and military government. On the one hand, the armies engaged in war against each other, and, on the other, they pillaged the cities, and divided or confiscated the lands.

4.-Consequences from the Character of the Christian Religion, and that of the Mahommedan From the characters of the Christian and Mahommedan religions, we ought, without any further examination, to embrace the one and reject the other: for it is much easier to prove that religion ought to humanize the manners of men than that any particular religion is true.

It is a misfortune to human nature when religion is given by a conqueror. The Mahommedan religion, which speaks only by the sword, acts still upon men with that destructive spirit with which it was founded.

The history of Sabbaco,3 one of the pastoral kings of Egypt, is very extraordinary. The tutelar G.o.d of Thebes, appearing to him in a dream, ordered him to put to death all the priests of Egypt. He judged that the G.o.ds were displeased at his being on the throne, since they commanded him to commit an action contrary to their ordinary pleasure; and, therefore, he retired into Ethopia.

5-That the Catholic Religion is most agreeable to a Monarchy, and the Protestant to a Republic When a religion is introduced and fixed in a state, it is commonly such as is most suitable to the plan of government there established; for those who receive it, and those who are the cause of its being received, have scarcely any other idea of policy than that of the state in which they were born.

When the Christian religion, two centuries ago, became un-happily divided into Catholic and Protestant, the people of the North embraced the Protestant, and those of the South adhered still to the Catholic.

The reason is plain: the people of the north have, and will forever have, a spirit of liberty and independence, which the people of the south have not; and, therefore, a religion which has no visible head is more agreeable to the independence of the climate than that which has one.

In the countries themselves where the Protestant religion became established, the revolutions were made pursuant to the several plans of political government. Luther having great princes on his side would never have been able to make them relish an ecclesiastical authority that had no exterior pre-eminence; while Calvin, having to do with people who lived under republican governments, or with obscure citizens in monarchies, might very well avoid establis.h.i.+ng dignities and preferments.

Each of these two religions was believed to be perfect; the Calvinist judging his most conformable to what Christ had said, and the Lutheran to what the Apostles had practised.

6.-Another of Mr. Bayle's Paradoxes Mr. Bayle, after having abused all religions, endeavors to sully Christianity: he boldly a.s.serts that true Christians cannot form a government of any duration. Why not? Citizens of this profession being infinitely enlightened with respect to the various duties of life, and having the warmest zeal to fulfil them, must be perfectly sensible of the rights of natural defence. The more they believe themselves indebted to religion, the more they would think due to their country. The principles of Christianity, deeply engraved on the heart, would be infinitely more powerful than the false honor of monarchies, than the humane virtues of republics, or the servile fear of despotic states.

It is astonis.h.i.+ng that this great man should not be able to distinguish between the orders for the establishment of Christianity and Christianity itself; and that he should be liable to be charged with not knowing the spirit of his own religion. When the legislator, instead of laws, has given counsels, this is because he knew that if these counsels were ordained as laws they would be contrary to the spirit of the laws themselves.

7.-Of the Laws of Perfection in Religion Human laws, made to direct the will, ought to give precepts, and not counsels; religion, made to influence the heart, should give many counsels, and few precepts.

When, for instance, it gives rules, not for what is good, but for what is better; not to direct to what is right, but to what is perfect; it is expedient that these should be counsels, and not laws: for perfection can have no relation to the universality of men or things. Besides, if these were laws, there would be a necessity for an infinite number of others, to make people observe the first. Celibacy was advised by Christianity; when they made it a law in respect to a certain order of men, it became necessary to make new ones every day, in order to oblige those men to observe it.4 The legislator wearied himself, and he wearied society, to make men execute by precept what those who love perfection would have executed as counsel.

8.-Of the Connection between the moral Laws and those of Religion In a country so unfortunate as to have a religion that G.o.d has not revealed, it is necessary for it to be agreeable to morality; because even a false religion is the best security we can have of the probity of men.

The princ.i.p.al points of religion of the inhabitants of Pegu5 are, not to commit murder, not to steal, to avoid uncleanliness, not to give the least uneasiness to their neighbor, but to do him, on the contrary, all the good in their power. With these rules they think they should be saved in any religion whatsoever. Hence it proceeds that those people, though poor and proud, behave with gentleness and compa.s.sion to the unhappy.

9.-Of the Essenes The Essenes6 made a vow to observe justice to mankind, to do no ill to any person, upon whatsoever account, to keep faith with all the world, to hate injustice, to command with modesty, always to side with truth, and to fly from all unlawful gain.

10.-Of the Sect of Stoics The several sects of philosophy among the ancients were a species of religion. Never were any principles more worthy of human nature, and more proper to form the good man, than those of the Stoics; and if I could for a moment cease to think that I am a Christian, I should not be able to hinder myself from ranking the destruction of the sect of Zeno among the misfortunes that have befallen the human race.

It carried to excess only those things in which there is true greatness-the contempt of pleasure and of pain.

It was this sect alone that made citizens; this alone that made great men; this alone great emperors.

Laying aside for a moment revealed truths, let us search through all nature, and we shall not find a n.o.bler object than the Antoninuses; even Julian himself-Julian (a commendation thus wrested from me will not render me an accomplice of his apostasy)-no, there has not been a prince since his reign more worthy to govern mankind.

While the Stoics looked upon riches, human grandeur, grief, disquietudes, and pleasures as vanity, they were entirely employed in laboring for the happiness of mankind, and in exercising the duties of society. It seems as if they regarded that sacred spirit, which they believed to dwell within them, as a kind of favorable providence watchful over the human race.

Born for society, they all believed that it was their destiny to labor for it; with so much the less fatigue, their rewards were all within themselves. Happy by their philosophy alone, it seemed as if only the happiness of others could increase theirs.

11.-Of Contemplation Men being made to preserve, to nourish, to clothe themselves, and do all the actions of society, religion ought not to give them too contemplative a life.7 The Mahommedans become speculative by habit; they pray five times a day, and each time they are obliged to cast behind them everything which has any concern with this world: this forms them for speculation. Add to this that indifference for all things which is inspired by the doctrine of unalterable fate.

If other causes besides these concur to disengage their affections; for instance, if the severity of the government, if the laws concerning the property of land, give them a precarious spirit-all is lost.

The religion of the Gaurs formerly rendered Persia a flouris.h.i.+ng kingdom; it corrected the bad effects of despotic power. The same empire is now destroyed by the Mahommedan religion.

12.-Of Penances Penances ought to be joined with the idea of labor, not with that of idleness; with the idea of good, not with that of supereminence; with the idea of frugality, not with that of avarice.

13.-Of inexpiable Crimes It appears from a pa.s.sage of the books of the pontiffs, quoted by Cicero,8 that they had among the Romans inexpiable crimes:9 and it is on this that Zozymus founds the narration so proper to blacken the motives of Constantine's conversion; and Julian, that bitter raillery on this conversion in his Caesars.

The Pagan religion, indeed, which prohibited only some of the grosser crimes, and which stopped the hand but meddled not with the heart, might have crimes that were inexpiable; but a religion which bridles all the pa.s.sions; which is not more jealous of actions than of thoughts and desires; which holds us not by a few chains but by an infinite number of threads; which, leaving human justice aside, establishes another kind of justice; which is so ordered as to lead us continually from repentance to love, and from love to repentance; which puts between the judge and the criminal a greater mediator, between the just and the mediator a great judge-a religion like this ought not to have inexpiable crimes. But while it gives fear and hope to all, it makes us sufficiently sensible that though there is no crime in its own nature inexpiable, yet a whole criminal life may be so; that it is extremely dangerous to affront mercy by new crimes and new expiations; that an uneasiness on account of ancient debts, from which we are never entirely free, ought to make us afraid of contracting new ones, of filling up the measure, and going even to that point where paternal goodness is limited.

14.-In what Manner Religion has an Influence on Civil Laws As both religion and the civil laws ought to have a peculiar tendency to render men good citizens, it is evident that when one of these deviates from this end, the tendency of the other ought to be strengthened. The less severity there is in religion, the more there ought to be in the civil laws.