The Spirit Of Laws Part 7

If a law which preserves the chast.i.ty of slaves be good in those states where an arbitrary power bears down all before it, how much more will it be so in monarchies, and how much more still in republics?

The law of the Lombards17 has a regulation which ought to be adopted by all governments. "If a master debauches his slave's wife, the slave and his wife shall be restored to their freedom." An admirable expedient, which, without severity, lays a powerful restraint on the incontinence of masters!

The Romans seem to have erred on this head. They allowed an unlimited scope to the master's l.u.s.ts, and, in some measure, denied their slaves the privilege of marrying. It is true, they were the lowest part of the nation; yet there should have been some care taken of their morals, especially as in prohibiting their marriage they corrupted the morals of the citizens.

12.-Danger from the Mult.i.tude of Slaves The mult.i.tude of slaves has different effects in different governments. It is no grievance in a despotic state, where the political servitude of the whole body takes away the sense of civil slavery. Those who are called freedmen in reality are little more so than they who do not come within that cla.s.s; and as the latter, in quality of eunuchs, freedmen, or slaves, have generally the management of all affairs, the condition of a freedman and that of a slave are very nearly allied. This makes it therefore almost a matter of indifference whether in such states the slaves be few or numerous.

But in moderate governments it is a point of the highest importance that there should not be a great number of slaves. The political liberty of those states adds to the value of civil liberty; and he who is deprived of the latter is also bereft of the former. He sees the happiness of a society, of which he is not so much as a member; he sees the security of others fenced by laws, himself without any protection. He perceives that his master has a soul, capable of enlarging itself; while his own labors under a continual depression. Nothing more a.s.similates a man to a beast than living among freedmen, himself a slave. Such people as these are natural enemies of society; and their number must be dangerous.

It is not therefore to be wondered at that moderate governments have been so frequently disturbed by the revolts of slaves, and that this so seldom happens in despotic states.18 13.-Of armed Slaves The danger of arming slaves is not so great in monarchies as in republics. In the former, a warlike people and a body of n.o.bility are a sufficient check upon these armed slaves; whereas the pacific members of a republic would have a hard task to quell a set of men who, having offensive weapons in their hands, would find themselves a match for the citizens.

The Goths, who conquered Spain, spread themselves over the country, and soon became very weak. They made three important regulations: they abolished an ancient custom which prohibited intermarriages with the Romans;19 they enacted that all the freedmen20 belonging to the Fiscus should serve in war, under penalty of being reduced to slavery; and they ordained that each Goth should arm and bring into the field the tenth part of his slaves.21 This was but a small proportion: besides, these slaves thus carried to the field did not form a separate body; they were in the army, and might be said to continue in the family.

14.-The same Subject continued When a whole nation is of a martial temper, the slaves in arms are less to be feared.

By a law of the Alemans, a slave who had committed a clandestine theft22 was liable to the same punishment as a freedman in the like case; but if he was found guilty of an open robbery,23 he was only bound to restore the things so taken. Among the Alemans, courage and intrepidity extenuated the guilt of an action. They employed their slaves in their wars. Most republics have been attentive to dispirit their slaves; but the Alemans, relying on themselves and being always armed, were so far from fearing theirs that they were rather for augmenting their courage; they were the instruments either of their depredations or of their glory.

15.-Precautions to be used in Moderate Governments Lenity and humane treatment may prevent the dangers to be apprehended from the mult.i.tude of slaves in a moderate government. Men grow reconciled to everything, and even to servitude, if not aggravated by the severity of the master. The Athenians treated their slaves with great lenity; and this secured that state from the commotions raised by the slaves among the austere Lacedaemonians.

It does not appear that the primitive Romans met with any trouble from their slaves. Those civil broils which have been compared to the Punic wars were the consequence of their having divested themselves of all humanity towards their slaves.24 A frugal and laborious people generally treat their slaves more kindly than those who are above labor. The primitive Romans used to live, work, and eat with their slaves; in short, they behaved towards them with justice and humanity. The greatest punishment they made them suffer was to make them pa.s.s before their neighbors with a forked piece of wood on their backs. Their manners were sufficient to secure the fidelity of their slaves; so that there was no necessity for laws.

But when the Romans aggrandized themselves; when their slaves were no longer the companions of their labor, but the instruments of their luxury and pride; as they then wanted morals, they had need of laws. It was even necessary for these laws to be of the most terrible kind, in order to establish the safety of those cruel masters who lived with their slaves as in the midst of enemies.

They made the Sillanian senatus-consultum, and other laws,25 which decreed that when a master was murdered all the slaves under the same roof, or in any place so near the house as to be within the hearing of a man's voice, should, without distinction, be condemned to die. Those who in this case sheltered a slave, in order to save him, were punished as murderers;26 he whom his master27 ordered to kill him, and who obeyed, was reputed guilty; even he who did not hinder him from killing himself was liable to be punished.28 If a master was murdered on a journey, they put to death those who were with him and those who fled.29 All these laws took place even against persons whose innocence was proved; the intent of them was to inspire their slaves with a prodigious respect for their master. They were not dependent on the civil government, but on a fault or imperfection of the civil government. They were not derived from the equity of civil laws, since they were contrary to the principle of those laws. They were properly founded on the principles of war, with this difference, that the enemies were in the bosom of the state. The Sillanian senatus-consultum was derived from the law of nations, which requires that a society, however imperfect, should be preserved.

It is a misfortune in government when the magistrates thus find themselves under the necessity of making cruel laws; because they have rendered obedience difficult, they are obliged to increase the penalty of disobedience, or to suspect the slave's fidelity. A prudent legislator foresees the ill consequences of rendering the legislature terrible. The slaves amongst the Romans could have no confidence in the laws; and therefore the laws could have none in them.

16.-Regulations between Masters and Slaves The magistrate ought to take care that the slave has his food and raiment; and this should be regulated by law.

The laws ought to provide that care be taken of them in sickness and old age. Claudius30 decreed that the slaves who in sickness had been abandoned by their masters should, in case they recovered, be emanc.i.p.ated. This law insured their liberty; but should not there have been some care also taken to preserve their lives?

When the law permitted a master to take away the life of his slave, he was invested with a power which he ought to exercise as judge, and not as master; it was necessary, therefore, that the law should ordain those formalities which remove the suspicion of an act of violence.

When fathers, at Rome, were no longer permitted to put their children to death, the magistrates ordained the punishment which the father would have inflicted.31 A like custom between the master and his slaves would be highly reasonable in a country where masters have the power of life and death.

The law of Moses was extremely severe. "If a man struck his servant so that he died under his hand, he was to be punished; but, if he survived a day or two, no punishment ensued, because he was his money."32 Strange that a civil inst.i.tution should thus relax the law of nature!

By a law of the Greeks,33 a slave too severely treated by his master might insist upon being sold to another. In later times there was a law of the same nature at Rome.34 A master displeased with his slave, and a slave with his master, ought to be separated.

When a citizen uses the slave of another ill, the latter ought to have the liberty of complaining before the judge. The laws of Plato,35 and of most nations, took away from slaves the right of natural defence. It was necessary then that they should give them a civil defence.

At Sparta slaves could have no justice against either insults or injuries. So excessive was their misery, that they were not only the slaves of a citizen, but also of the public; they belonged to all, as well as to one. At Rome, when they considered the injury done to a slave, they had regard only to the interest of the master.36 In the breach of the Aquilian law they confounded a wound given to a beast and that given to a slave; they regarded only the diminution of their value. At Athens,37 he who had abused the slave of another was punished severely, and sometimes even with death. The law of Athens was very reasonable in not adding the loss of security to that of liberty.

17.-Of Enfranchis.e.m.e.nts It is easy to perceive that many slaves in a republican government create a necessity of making many free. The evil is, if they have too great a number of slaves they cannot keep them in due bounds; if they have too many freedmen, they cannot live, and must become a burden to the republic: besides, it may be as much in danger from the mult.i.tude of freedmen as from that of slaves. It is necessary, therefore, that the law should have an eye to these two inconveniences.

The several laws and decrees of the senate made at Rome, both for and against slaves, sometimes to limit, and at other times to facilitate, their enfranchis.e.m.e.nt, plainly show the embarra.s.sment in which they found themselves in this respect. There were even times in which they durst not make laws. When, under Nero,38 they demanded of the senate permission for the masters to reduce again to slavery the ungrateful freedmen, the emperor declared that it was their duty to decide the affairs of individuals, and to make no general decree.

Much less can I determine what ought to be the regulations of a good republic in such an affair; this depends on too many circ.u.mstances. Let us, however, make some reflections.

A considerable number of freedmen ought not suddenly to be made by a general law. We know that among the Volsinienses39 the freedmen, becoming masters of the suffrages, enacted an abominable law, which gave them the right of lying the first night with the young women married to the free-born.

There are several ways of insensibly introducing new citizens into a republic. The laws may favor the acquiring a peculium, and put slaves into a condition of buying their liberty: they may prescribe a term to servitude, like those of Moses, which limited that of the Hebrew slaves to six years.40 It is easy to enfranchise every year a certain number of those slaves who, by their age, health, or industry, are capable of getting a subsistence. The evil may be even cured in its root, as a great number of slaves are connected with the several employment which are given them; to divide amongst the free-born a part of these employment, for example, commerce or navigation, is diminis.h.i.+ng the number of slaves.

When there are many freedmen, it is necessary that the civil laws should determine what they owe to their patron, or that these duties should be fixed by the contract of enfranchis.e.m.e.nt.

It is certain that their condition should be more favored in the civil than in the political state; because, even in a popular government, the power ought not to fall into the hands of the vulgar.

At Rome, where they had so many freedmen, the political laws with regard to them were admirable. They gave them very little, and excluded them almost from nothing: they had even a share in the legislature, but the resolutions they were capable of taking were almost of no weight. They might bear a part in the public offices, and even in the dignity of the priesthood;41 but this privilege was in some sort rendered useless by the disadvantages they had to encounter in the elections. They had a right to enter into the army; but they were to be registered in a certain cla.s.s of the census before they could be soldiers. Nothing hindered the42 freedmen from being united by marriage with the families of the free-born; but they were not permitted to mix with those of the senator. In short, their children were free-born, though they were not so themselves.

18.-Of Freedmen and Eunuchs Thus in a republican government it is frequently of advantage that the situation of the freedmen be but little below that of the free-born, and that the laws be calculated to remove a dislike of their condition. But in a despotic government, where luxury and arbitrary power prevail, they have nothing to do in this respect; the freedmen generally finding themselves above the free-born. They rule in the court of the prince, and in the palaces of the great; and as they study the foibles and not the virtues of their master, they lead him entirely by the former, not by the latter. Such were the freedmen of Rome in the times of the emperors.

When the princ.i.p.al slaves are eunuchs, let never so many privileges be granted them, they can hardly be regarded as freedmen. For as they are incapable of having a family of their own, they are naturally attached to that of another: and it is only by a kind of fiction that they are considered as citizens.

And yet there are countries where the magistracy is entirely in their hands. "In Tonquin,"43 says Dampier,44 "all the mandarins, civil and military, are eunuchs." They have no families, and though they are naturally avaricious, the master or the prince benefits in the end by this very pa.s.sion.

Dampier tells us, too, that in this country the eunuchs cannot live without women, and therefore marry. The law which permits their marriage may be founded partly on their respect for these eunuchs, and partly on their contempt of the fair s.e.x.

Thus they are trusted with the magistracy, because they have no family; and permitted to marry, because they are magistrates.

Then it is that the sense which remains would fain supply that which they have lost; and the enterprises of despair become a kind of enjoyment. So, in Milton, that spirit who has nothing left but desires, enraged at his degradation, would make use of his impotency itself.

We see in the history of China a great number of laws to deprive eunuchs of all civil and military employment; but they always returned to them again. It seems as if the eunuchs of the east were a necessary evil.

1 Montesquieu seems to have forgotten that all the democracies of Greece adopted domestic servitude as the basis of social independence.-Ed.

2 Justinian's "Inst.i.tutes," book I.

3 Excepting a few cannibals.

4 I mean slavery in a strict sense, as formerly among the Romans, and at present in our colonies.

5 "Biblioth. Ang." tom. xiii. part II. art. 3.

6 See "History of the Conquest of Mexico," by Solis, and that of "Peru," by Garcila.s.so de la Vega.

7 Labat's "New Voyage to the Isles of America," vol. iv. p. 114, in 1752, 12mo.

8 The above arguments form a striking instance of the prejudice under which even a liberal mind can labor.-Ed.

9 "Present State of Russia."

10 Dampier's "Voyages," vol. iii.

11 "Polit." lib. I. cap. i.

12 As may be seen in the mines of Hartz, in Lower Saxony, and in those of Hungary.

13 "De Moribus Germanorum."

14 Tacitus, "De Moribus Germanorum," says the master is not to be distinguished from the slave by any delicacy of living.

15 Sir John Chardin's "Travels to Persia."

16 Sir John Chardin. vol. ii., in his description of the market of Izagour.

17 Lib. I. t.i.t. 32, sec. 5.

18 The revolt of the Mamelukes was a different case; this was a body of the militia who usurped the empire.

19 "Law of the Visigoths," lib. III. t.i.t. 1, sec. 1.

20 Ibid. lib. V. t.i.t. 17, sec. 20.

21 Ibid. IX. t.i.t. 2, sec. 9.

22 "Law of the Alemans," cap. v. sec. 3.

23 Ibid. sec. 5, per virtutem.

24 "Sicily," says Florus, "suffered more in the Servile than in the Punic war."-Lib. III.

25 See the whole t.i.tle of the "Senat.-Cons. Sill." in ff.

26 Leg. siquis, sec. 12 ff. "de Senat.-Cons. Sill."

27 When Antony commanded Eros to kill him, it was the same as commanding him to kill himself; because, if he had obeyed, he would have been punished as the murderer of his master.

28 Leg. I, sec. 22 ff. "de Senat.-Cons. Sill."

29 Leg. I, sec. 31 ff. ibid.

30 Xiphilin, in "Claudio."

31 See law 3, in the Code "de patria potestate," by the Emperor Alexander.

32 Lev. xxi. 20.

33 Plutarch on "Superst.i.tion."

34 See the const.i.tution of Antoninus Pius, "Inst.i.tut." lib. I. t.i.t. 7.

35 Lib. IX.

36 This was frequently the spirit of the laws of those nations who came out of Germany, as may be seen by their codes.

37 Demosthenes, "Orat. contra Midi. an," p. 610. Edition of Frankfort, in 1604.

38 "Annals of Tacitus," lib. XIII.

39 Freinshemius's "Supplement," dec. 2, lib. V.

40 Exod. xxi.

41 "Annals" of Tacitus, lib. III.

42 Augustus's speech in Dio, lib. LVI.

43 It was formerly the same in China. The two Mahommedan Arabs who travelled thither in the ninth century use the word eunuch whenever they speak of a governor of the city.

44 Vol. iii.

Book XVI

How the Laws of Domestic Slavery Bear a Relation to the Nature of the Climate 1.-Of domestic Servitude SLAVES are established for the family; but they are not a part of it. Thus I distinguish their servitude from that which the women in some countries suffer, and which I shall properly call domestic servitude.

2.-That in the Countries of the South there is a natural Inequality between the two s.e.xes Women, in hot climates, are marriageable at eight, nine, or ten years of age:1 thus, in those countries, infancy and marriage generally go together. They are old at twenty: their reason, therefore, never accompanies their beauty. When beauty demands the empire, the want of reason forbids the claim; when reason is obtained, beauty is no more. These women ought then to be in a state of dependence; for reason cannot procure in old age that empire which even youth and beauty could not give. It is, therefore, extremely natural that in these places a man, when no law opposes it, should leave one wife to take another, and that polygamy should be introduced.

In temperate climates, where the charms of women are best preserved, where they arrive later at maturity, and have children at a more advanced season of life, the old age of their husbands in some degree follows theirs; and as they have more reason and knowledge at the time of marriage, if it be only on account of their having continued longer in life, it must naturally introduce a kind of equality between the two s.e.xes; and, in consequence of this, the law of having only one wife.

In cold countries the almost necessary custom of drinking strong liquors establishes intemperance amongst men. Women, who in this respect have a natural restraint, because they are always on the defensive, have, therefore, the advantage of reason over them.

Nature, which has distinguished men by their reason and bodily strength, has set no other bounds to their power than those of this strength and reason. It has given charms to women, and ordained that their ascendant over man shall end with these charms: but in hot countries, these are found only at the beginning, and never in the progress of life.

Thus the law which permits only one wife is physically conformable to the climate of Europe, and not to that of Asia. This is the reason why Mahommedanism was so easily established in Asia, and with such difficulty extended in Europe; why Christianity is maintained in Europe, and has been destroyed in Asia; and, in fine, why the Mahommedans have made such progress in China, and the Christians so little. Human reasons, however, are subordinate to that Supreme Cause who does whatever He pleases, and renders everything subservient to His will.

Some particular reasons induced Valentinian2 to permit polygamy in the empire. That law, so improper for our climates, was abrogated by Theodosius, Arcadius, and Honorius.3 3.-That a Plurality of Wives greatly depends on the Means of supporting them Though in countries where polygamy is once established the number of wives is princ.i.p.ally determined by the opulence of the husband, yet it cannot be said that opulence established polygamy in those states, since poverty may produce the same effect, as I shall prove when I come to speak of the savages.

Polygamy, in powerful nations, is less a luxury in itself than the occasion of great luxury. In hot climates they have few wants, and it costs little to maintain a wife and children;4 they may, therefore, have a great number of wives.

4.-That the Law of Polygamy is an affair that depends on Calculation According to the calculations made in several parts of Europe, there are here born more boys than girls;5 on the contrary, by the accounts we have of Asia, there are there born more girls than boys.6 The law which in Europe allows only one wife, and that in Asia which permits many, have, therefore, a certain relation to the climate.

In the cold climates of Asia there are born, as in Europe, more males than females; and hence, say the Lamas,7 is derived the reason of that law which amongst them permits a woman to have many husbands.8 But it is difficult for me to believe that there are many countries where the disproportion can be great enough for any exigency to justify the introducing either the law in favor of many wives or that of many husbands. This would only imply that a majority of women, or even a majority of men, is more conformable to nature in certain countries than in others.

I confess that if what history tells us be true, that at Bantam there are ten women to one man,9 this must be a case particularly favorable to polygamy.

In all this I only give their reasons, but do not justify their customs.

5.-The Reason of a Law of Malabar In the tribe of the Naires, on the coast of Malabar, the men can have only one wife, while a woman, on the contrary, may have many husbands.10 The origin of this custom is not, I believe, difficult to discover. The Naires are the tribe of n.o.bles, who are the soldiers of all those nations. In Europe soldiers are forbidden to marry; in Malabar, where the climate requires greater indulgence, they are satisfied with rendering marriage as little burdensome to them as possible: they give one wife amongst many men, which consequently diminishes the attachment to a family, and the cares of housekeeping, and leaves them in the free possession of a military spirit.

6.-Of Polygamy considered in itself With regard to polygamy in general, independently of the circ.u.mstances which may render it tolerable, it is not of the least service to mankind, nor to either of the two s.e.xes, whether it be that which abuses or that which is abused. Neither is it of service to the children; for one of its greatest inconveniences is, that the father and mother cannot have the same affection for their offspring; a father cannot love twenty children with the same tenderness as a mother can love two. It is much worse when a wife has many husbands; for then paternal love only is held by this opinion, that a father may believe, if he will, or that others may believe, that certain children belong to him.