26.3. 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
person.
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.
Footnotes
[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.
