Monday, January 13, 2003

The Spirit of Laws - Book VII




8.--Of public Continency

So many are the imperfections that attend the loss of virtue in women, and so greatly are their minds depraved when this principal guard is removed, that in a popular state public incontinency may be considered as the last of miseries, and as a certain forerunner of a change in the constitution.

Hence it is that the sage legislators of republican states have ever required of women a particular gravity of manners. They have proscribed, not only vice, but the very appearance of it. They have banished even all commerce of gallantry--a commerce that produces idleness, that renders the women corrupters, even before they are corrupted, that gives a value to trifles, and debases things of importance: a commerce, in fine, that makes people act entirely by the maxims of ridicule, in which the women are so perfectly skilled.

9.--Of the Condition or State of Women in different Governments

In monarchies women are subject to very little restraint, because as the distinction of ranks calls them to court, there they assume a spirit of liberty, which is almost the only one tolerated in that place. Each courtier avails himself of their charms and passions, in order to advance his fortune: and as their weakness admits not of pride, but of vanity, luxury constantly attends them.

In despotic governments women do not introduce, but are themselves an object of, luxury. They must be in a state of the most rigorous servitude. Every one follows the spirit of the government, and adopts in his own family the customs he sees elsewhere established. As the laws are very severe and executed on the spot, they are afraid lest the liberty of women should expose them to danger. Their quarrels, indiscretions, repugnancies, jealousies, piques, and that art, in fine, which little souls have of interesting great ones, would be attended there with fatal consequences.

Besides, as princes in those countries make a sport of human nature, they allow themselves a multitude of women; and a thousand considerations oblige them to keep those women in close confinement.

In republics women are free by the laws and restrained by manners; luxury is banished thence, and with it corruption and vice.

In the cities of Greece, where they were not under the restraint of a religion which declares that even amongst men regularity of manners is a part of virtue; where a blind passion triumphed with a boundless insolence, and love appeared only in a shape which we dare not mention, while marriage was considered as nothing more than simple friendship;1 such were the virtue, simplicity, and chastity of women in those cities, that in this respect hardly any people were ever known to have had a better and wiser polity.2

10.--Of the domestic Tribunal among the Romans

The Romans had no particular magistrates, like the Greeks, to inspect the conduct of women. The censors had not an eye over them, as over the rest of the republic.

The institution of the domestic tribunal3 supplied the magistracy established among the Greeks.4

The husband summoned the wife's relatives, and tried her in their presence.5 This tribunal preserved the manners of the republic; and at the same time those very manners maintained this tribunal. For it decided not only in respect to the violation of the laws, but also of manners: now, in order to judge of the violation of the latter, manners are requisite.

The penalties inflicted by this tribunal ought to be, and actually were, arbitrary: for all that relates to manners, and to the rules of modesty, can hardly be comprised under one code of laws. It is easy indeed to regulate by laws what we owe to others; but it is very difficult to comprise all we owe to ourselves.

The domestic tribunal inspected the general conduct of women: but there was one crime which, beside the animadversion of this tribunal, was likewise subject to a public accusation. This was adultery; whether that in a republic so great a depravation of manners interested the government; or whether the wife's immorality might render the husband suspected; or whether, in fine, they were afraid lest even honest people might choose that this crime should rather be concealed than punished.

11.--In what Manner the Institutions changed at Rome, together with the Government

As manners were supported by the domestic tribunal, they were also supported by the public accusation; and hence it is that these two things fell together with the public manners, and ended with the republic.6

The establishing of perpetual questions, that is, the division of jurisdiction among the praetors, and the custom gradually introduced of the praetors determining all causes themselves,7 weakened the use of the domestic tribunal. This appears by the surprise of historians, who look upon the decisions which Tiberius caused to be given by this tribunal as singular facts, and as a renewal of the ancient course of pleading.

The establishment of monarchy and the change of manners put likewise an end to public accusations. It might be apprehended lest a dishonest man, affronted at the slight shown him by a woman, vexed at her refusal, and irritated even by her virtue, should form a design to destroy her. The Julian law ordained that a woman should not be accused of adultery till after her husband had been charged with favoring her irregularities; which limited greatly, and annihilated, as it were, this sort of accusation.8

Sextus Quintus seemed to have been desirous of reviving the public accusation.9 But there needs very little reflection to see that this law would be more improper in such a monarchy as his than in any other.

12.--0f the Guardianship of Women among the Romans

The Roman laws subjected women to a perpetual guardianship, except they were under cover and subject to the authority of a husband.10 This guardianship was given to the nearest of the male relatives: and by a vulgar expression11 it appears they were very much confined. This was proper for a republic, but not at all necessary in a monarchy.12

That the women among the ancient Germans were likewise under a perpetual tutelage appears from the different codes of the Laws of the Barbarians.13 This custom was communicated to the monarchies founded by those people; but was not of long duration.

13--Of the Punishments decreed by the Emperors against the Incontinence of Women

The Julian law ordained a punishment against adultery. But so far was this law, any more than those afterwards made on the same account, from being a mark of regularity of manners, that on the contrary it was a proof of their depravity.

The whole political system in respect to women received a change in the monarchical state. The question was no longer to oblige them to a regularity of manners, but to punish their crimes. That new laws were made to punish their crimes was owing to their leaving those transgressions unpunished which were not of so criminal a nature.

The frightful dissolution of manners obliged indeed the emperors to enact laws in order to put some stop to lewdness; but it was not their intention to establish a general reformation. Of this the positive facts related by historians are a much stronger proof than all these laws can be of the contrary. We may see in Dio the conduct of Augustus on this occasion, and in what manner he eluded, both in his praetorian and censorian office, the repeated instances that were made him.14 for that purpose.

It is true that we find in historians very rigid sentences, passed in the reigns of Augustus and Tiberius, against the lewdness of some Roman ladies: but by showing us the spirit of those reigns, at the same time they demonstrate the Spirit of those decisions.

The principal design of Augustus and Tiberius was to punish the dissoluteness of their relatives. It was not their immorality they punished, but a particular crime of impiety or high treason15 of their own invention, which served to promote a respect for majesty, and answered their private revenge. Hence it is that the Roman historians inveigh so bitterly against this tyranny.

The penalty of the Julian law was small.16 The emperors insisted that in passing sentence the judges should increase the penalty of the law. This was the subject of the invectives of historians. They did not examine whether the women were deserving of punishment, but whether they had violated the law, in order to punish them.

One of the most tyrannical proceedings of Tiberius17 was the abuse he made of the ancient laws. When he wanted to extend the punishment of a Roman lady beyond that inflicted by the Julian law, he revived the domestic tribunal.18

These regulations in respect to women concerned only senatorial families, not the common people. Pretences were wanted to accuse the great, which were constantly furnished by the dissolute behavior of the ladies.

In fine, what I have above observed, namely, that regularity of manners is not the principle of monarchy, was never better verified than under those first emperors; and whoever doubts it need only read Tacitus, Suetonius, Juvenal, or Martial.

14--Sumptuary Laws among the Romans

We have spoken of public incontinence because it is the inseparable companion of luxury. If we leave the motions of the heart at liberty, how shall we be able to restrain the weaknesses of the mind?

At Rome, besides the general institutions, the censors prevailed on the magistrates to enact several particular laws for maintaining the frugality of women. This was the design of the Fannian, Licinian, and Oppian laws. We may see in Livy19 the great ferment the senate was in when the women insisted upon the revocation of the Oppian law. The abrogation of this law is fixed upon by Valerius Maximus as the period whence we may date the luxury of the Romans.

15--0f Dowries and Nuptial Advantages in different Constitutions

Dowries ought to be considerable in monarchies, in order to enable husbands to support their rank and the established luxury. In republics, where luxury should never reign,20 they ought to be moderate; but there should be hardly any at all in despotic governments, where women are in some measure slaves.

The community of goods introduced by the French laws between man and wife is extremely well adapted to a monarchical government; because the women are thereby interested in domestic affairs, and compelled, as it were, to take care of their family. It is less so in a republic, where women are possessed of more virtue. But it would be quite absurd in despotic governments, where the women themselves generally constitute a part of the master's property.

As women are in a state that furnishes sufficient inducements to marriage, the advantages which the law gives them over the husband's property are of no service to society. But in a republic they would be extremely prejudicial, because riches are productive of luxury. In despotic governments the profits accruing from marriage ought to be mere subsistence, and no more.

1 "In respect to true love," says Plutarch, " the women have nothing to say to it." In his "Treatise of Love," p.600. He spoke in the style of his time. See Xenophon in the dialogue entitled "Hiero."

2 At Athens there was a particular magistrate who inspected the conduct of women.

3 Romulus instituted this tribunal, as appears from Dionysius Halicarnassus, book II. p.96.

4 See in Livy book XXXIX., the use that was made of this tribunal at the time of the conspiracy of the Bacchanalians (They gave the name of conspiracy against the republic to assemblies in which the morals of women and young people were debauched)

5 It appears from Dionys. Haficarn. lib. II., that Romulus's institution was, that in ordinary cases the husband should sit as judge in the presence of the wife's relatives, but that in heinous crimes he should determine in conjunction with five of them. Hence Ulpian, tit. 6, secs 9, 12, and 13, distinguishes in respect to the different judgments of manners between those which he calls important, and those which are less so; mores, graviores, leviores.

6 "Judicio de moribus (quod antea quidem in antiquis legibus positum erat, non autem frequentabatur) penitus abolito."-Leg. II, "Cod. de repud."

7 Judicia extraordinaria.

8 It was entirely abolished by Constantine: "It is a shame," said he, "that settled marriages should he disturbed by the presumption of strangers."

9 Sextus Ouintus ordained that, if a husband did not come and make his complaint to him of his wife's infidelity, he should be put to death. See Leti.

10 Nisi convenissent in manum viri.

11 Ne sis mihi patruus oro.

l2 The Papian law ordained, under Augustus, that women who had borne three children should be exempt from this tutelage.

13 This tutelage was by the Germans called Mundeburdium.

14 Upon their bringing him a young man who had married a woman with whom he had before carried on an illicit commerce, he hesitated a long while, not daring to approve or to punish these things. At length recollecting himself, "Seditions," says he, "have been the cause of very great evils; let us forget them." Dio, book LIV. The Senate having desired him to give them some regulations in respect to women's morals, he evaded their petition by telling them that they should chastitise their wives in the same manner as he did his; upon which they desired him to tell them how he behaved to his wife. (I think a very indiscreet question.)

15 "Culpam inter viros et foeminas vulgatum gravi nomine laesarum re- ligionum appellando, clementiam majorum suasque ipse leges egrediebatur." --Tacit. "Annal." lib. III.

16 This law is given in the Digest, but without mentioning the penalty. It is supposed it was only relegatio, because that of incest was only deportatio. Leg. si quis viduam, ff. de quaest.

17 "Proprium id Tiberia fuit scelera nuper reperta priscis verbis obtegere."-- Tacit.

18 "Adulterii graviorem paonam deprecatus, ut exemplo majorum propinquis suis ultra ducentesimum lapidem re- moveretur, suasit. Adultero Manlio Italia atque Africa interdictum est."-- Tacit. "Annal." lib. II.

19 Dec. 4. lib. IV.

20 Marseilles was the wisest of all the republics in its time; here it was ordained that dowries should not exceed one hundred crowns in money, and five in clothes, as Strabo observes, lib. IV. Strabo further allows a small sum in gold ornaments to serve in the decoration of the bride.