Montesquieu: Of Laws in Relation to the Order of Things Which They Determine

The Spirit of Laws (1751)Charles de Secondat, Baron de Montesquieu

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Of Laws in Relation to the Order of Things Which They Determine1. Idea of this Book.2. Of Laws divine and human.1.2.3.3. Of civil Laws contrary to the Law of Nature.4. The same Subject continued.5. Cases in which we may judge by the Principles of the civil Law in limiting the Principles of the Law of Nature.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.7. That we ought not to decide by the Precepts of Religion what belongs only to the Law of Nature.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.9. That Things which ought to be regulated by the Principles of civil Law can seldom be regulated by those of Religion.10. In what Case we ought to follow the civil Law which permits, and not the Law of Religion which forbids.11. That human Courts of Justice should not be regulated by the Maxims of those Tribunals which relate to the Other Life.12. The same Subject continued.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.14. In what instances Marriages between Relatives shall be regulated by the Laws of Nature: and in what instances by the civil Laws.15. That we should not regulate by the Principles of political Law those Things which depend on the Principles of civil Law.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.17. The same Subject continued.18. That it is necessary to inquire whether the Laws which seem contradictory are of the same Class.19. That we should not decide those Things by the civil Law which ought to be decided by domestic Laws.20. That we ought not to decide by the Principles of the civil Laws those Things which belong to the Law of Nations.21. That we should not decide by political Laws Things which belong to the Law of Nations.22. The unhappy State of the Inca Athualpa.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.24. That the Regulations of the Police are of a different Class from other civil Laws.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. FOOTNOTES
   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, quæstione 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. quæ pertinet ad præcepta 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.