26.8. 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.
By the civil law of the Romans,
[19]
he who took a thing privately from a sacred place
was punished only for the guilt of theft; by the canon law, he was
punished for the crime of sacrilege.
[20]
The canon law takes cognizance
of the place; the civil laws of the fact. But to attend only to the
place is neither to reflect on the nature and definition of a theft, nor
on the nature and definition of sacrilege.
As the husband may demand a separation by reason of the infidelity
of his wife, the wife might formerly demand it on account of the
infidelity of the husband.
[21]
This custom, contrary to a regulation
made in the Roman laws,
[22]
was introduced into the ecclesiastic
court,
[23]
where nothing was regarded but the maxims of canon law; and
indeed, if we consider marriage as a thing merely spiritual, and as
relating only to the things of another life, the violation is in both
cases the same, but the political and civil laws of almost all nations
have, with reason, made a distinction between them. They have required
from the women a degree of reserve and continency which they have not
exacted from the men, because in women, a violation of chastity supposes
a renunciation of all virtue; because women, by violating the laws of
marriage, quit the state of their natural dependence; because nature has
marked the infidelity of women with certain signs; and, in fine, because
the children of the wife born in adultery necessarily belong and are an
expense to the husband, while the children produced by the adultery of
the husband are not the wife's, nor are an expense to the wife.
Footnotes
[19]
Leg., 5, ff. ad. leg. Juliam peculatus.
[20]
Cap. quisquis 17, qustione 4. Cujas, Observat., xiii. 19, tom. iii.
[21]
Beaumanoir, "Ancient Customs of Beauvoisis," chap. 18, section 6.
[22]
Leg. 1. Cod. ad. leg. Jul. de adulteriis.
[23]
At present they do not take cognizance of these things in
France.
