Montesquieu
 

XXVI.3 On civil laws that are contrary to natural law

If a slave, says Plato, defends him­self and kills a free man, he must be trea­ted like a par­ri­cide.1 That is a civil law that puni­shes natu­ral defense.

The law which, under Henry VIII, condem­ned a man without being confron­ted by the wit­nes­ses was contrary to natu­ral defense ; indeed, in order to condemn, it is indis­pen­sa­ble for the wit­nes­ses to know that the man against whom they depose is the one who is accu­sed, and that he be able to say : I am not the man you mean.

The law pas­sed in that same reign that condem­ned any girl who, having had illi­cit inter­course with someone, did not declare it to the king before she mar­ried him, vio­la­ted the defense of natu­ral modesty ; it is as unrea­so­na­ble to require a girl to make that decla­ra­tion as to ask a man not to try to defend his life.

The law of Henry II that condemns to death a girl whose child has peri­shed, in the case where she has not decla­red her pre­gnancy to the magis­trate, is not less contrary to natu­ral defense. It suf­fi­ced to oblige her to inform one of her clo­sest female rela­ti­ves, who could look out for the pre­ser­va­tion of the child.

Gundebald, king of Burgundy, wished to reduce to sla­very the wife or the son of a man who had sto­len some­thing if they did not reveal the crime.2 This law was unna­tu­ral : a woman should accuse her hus­band ! A son, his father’s accu­ser ! To avenge a cri­mi­nal act, they man­da­ted one even more cri­mi­nal.

Much has been said of an English law that allo­wed a girl of seven to choose her­self a hus­band.3 This law was revol­ting in two ways : it took no account of the time of matu­rity that nature has given to the mind, nor to the time of matu­rity which nature has given to the body.

A father could, among the Romans, oblige his daugh­ter to repu­diate her hus­band, even though he had him­self consen­ted to the mar­riage.4 But it is unna­tu­ral to put divorce into the hands of a third per­son.

If divorce is in kee­ping with nature, that is only when the two par­ties, or at least one of them, consent to it ; and when nei­ther consents, it is a mons­trous divorce. Finally, access to divorce can be offe­red only to those who have the bur­dens of mar­riage, and who feel the moment when it is in their inte­rest to put an end to them.

Book IX of Laws.

Law of the Burgundians, tit. 47.

Mr. Bayle mentions this law in his Critique of the History of Calvinism, p. 293.

See law 5 of the Codex, De repudiis et judicio de moribus sublato.