The Spirit Of Laws Part 8

They say that the Emperor of Morocco has women of all colors, white, black, and tawny, in his seraglio. But the wretch has scarcely need of a single color.

Besides, the possession of so many wives does not always prevent their entertaining desires for those of others;11 it is with l.u.s.t as with avarice, whose thirst increases by the acquisition of treasure.

In the reign of Justinian, many philosophers, displeased with the constraint of Christianity, retired into Persia. What struck them the most, says Agathias,12 was that polygamy was permitted amongst men who did not even abstain from adultery.

May I not say that a plurality of wives leads to that pa.s.sion which nature disallows? for one depravation always draws on another. I remember that in the revolution which happened at Constantinople, when Sultan Achmet was deposed, history says that the people, having plundered the Kiaya's house, found not a single woman; they tell us that at Algiers,13 in the greatest part of their seraglios, they have none at all.

7.-Of an Equality of Treatment in case of many Wives From the law which permitted a plurality of wives followed that of an equal behavior to each. Mahomet, who allowed of four, would have everything, as provisions, dress, and conjugal duty, equally divided between them. This law is also in force in the Maldivian isles,14 where they are at liberty to marry three wives.

The law of Moses15 even declares that if any one has married his son to a slave, and this son should afterwards espouse a free woman, her food, her raiment, and her duty of marriage shall he not diminish. They might give more to the new wife, but the first was not to have less than she had before.

8.-Of the Separation of Women from Men The prodigious number of wives possessed by those who live in rich and voluptuous countries is a consequence of the law of polygamy. Their separation from men, and their close confinement, naturally follow from the greatness of this number. Domestic order renders this necessary; thus an insolvent debtor seeks to conceal himself from the pursuit of his creditors. There are climates where the impulses of nature have such force that morality has almost none. If a man be left with a woman, the temptation and the fall will be the same thing; the attack certain, the resistance none. In these countries, instead of precepts, they have recourse to bolts and bars.

One of the Chinese cla.s.sic authors considers the man as a prodigy of virtue who, finding a woman alone in a distant apartment, can forbear making use of force.16 9.-Of the Connection between domestic and political Government In a republic the condition of citizens is moderate, equal, mild, and agreeable; everything partakes of the benefit of public liberty. An empire over the women cannot, amongst them, be so well exerted; and where the climate demands this empire, it is most agreeable to a monarchical government. This is one of the reasons why it has ever been difficult to establish a popular government in the east.

On the contrary, the slavery of women is perfectly conformable to the genius of a despotic government, which delights in treating all with severity. Thus at all times have we seen in Asia domestic slavery and despotic government walk hand in hand with an equal pace.

In a government which requires, above all things, that a particular regard be paid to its tranquillity, and where the extreme subordination calls for peace, it is absolutely necessary to shut up the women; for their intrigues would prove fatal to their husbands. A government which has not time to examine into the conduct of its subjects views them with a suspicious eye, only because they appear and suffer themselves to be known.

Let us only suppose that the levity of mind, the indiscretions, the tastes and caprices of our women, attended by their pa.s.sions of a higher and a lower kind, with all their active fire, and in that full liberty with which they appear amongst us, were conveyed into an eastern government, where would be the father of a family who could enjoy a moment's repose? The men would be everywhere suspected, everywhere enemies; the state would be overturned, and the kingdom overflowed with rivers of blood.

10.-The Principle on which the Morals of the East are founded In the case of a multiplicity of wives, the more a family ceases to be united, the more ought the laws to reunite its detached parts in a common centre; and the greater the diversity of interests, the more necessary is it for the laws to bring them back to a common interest.

This is more particularly done by confinement. The women should not only be separated from the men by the walls of the house, but they ought also to be separated in the same enclosure, in such a manner that each may have a distinct household in the same family. Hence each derives all that relates to the practice of morality, modesty, chast.i.ty, reserve, silence, peace, dependence, respect, and love; and, in short, a general direction of her thoughts to that which, in its own nature, is a thing of the greatest importance, a single and entire attachment to her family.

Women have naturally so many duties to fulfil-duties which are peculiarly theirs, that they cannot be sufficiently excluded from everything capable of inspiring other ideas; from everything that goes by the name of amus.e.m.e.nts; and from everything which we call business.

We find the manners more pure in the several parts of the East, in proportion as the confinement of women is more strictly observed. In great kingdoms there are necessarily great lords. The greater their wealth, the more enlarged is their ability of keeping their wives in an exact confinement, and of preventing them from entering again into society. Hence it proceeds that in the empires of Turkey, Persia, of the Mogul, China, and j.a.pan, the manners of their wives are admirable.

But the case is not the same in India, where a mult.i.tude of islands and the situation of the land have divided the country into an infinite number of petty states, which from causes that we have not here room to mention are rendered despotic.

There are none there but wretches, some pillaging and others pillaged. Their grandees have very moderate fortunes, and those whom they call rich have only a bare subsistence. The confinement of their women cannot, therefore, be very strict; nor can they make use of any great precautions to keep them within due bounds; hence it proceeds that the corruption of their manners is scarcely to be conceived.

We may there see to what an extreme the vices of a climate indulged in full liberty will carry licentiousness. It is there that nature has a force, and modesty a weakness, which exceed all comprehension. At Patan17 the wanton desires of the women are so outrageous, that the men are obliged to make use of a certain apparel to shelter them from their designs.18 According to Mr. Smith,19 things are not better conducted in the petty kingdoms of Guinea. In these countries the two s.e.xes lose even those laws which properly belong to each.

11.-Of domestic Slavery independently of Polygamy It is not only a plurality of wives which in certain places of the East requires their confinement, but also the climate itself. Those who consider the horrible crimes, the treachery, the dark villainies, the poisonings, the a.s.sa.s.sinations, which the liberty of women has occasioned at Goa and in the Portuguese settlements in the Indies, where religion permits only one wife; and who compare them with the innocence and purity of manners of the women of Turkey, Persia, Hindostan, China, and j.a.pan, will clearly see that it is frequently as necessary to separate them from the men, when they have but one, as when they have many.

These are things which ought to be decided by the climate. What purpose would it answer to shut up women in our northern countries, where their manners are naturally good; where all their pa.s.sions are calm; and where love rules over the heart with so regular and gentle an empire that the least degree of prudence is sufficient to conduct it?

It is a happiness to live in those climates which permit such freedom of converse, where that s.e.x which has most charms seems to embellish society, and where wives, reserving themselves for the pleasures of one, contribute to the amus.e.m.e.nt of all.

12.-Of natural Modesty All nations are equally agreed in fixing contempt and ignominy on the incontinence of women. Nature has dictated this to all. She has established the attack, and she has established too the resistance; and having implanted desires in both, she has given to the one boldness, and to the other shame. To individuals she has granted a long succession of years to attend to their preservation: but to continue the species, she has granted only a moment.

It is then far from being true that to be incontinent is to follow the laws of nature; on the contrary, it is a violation of these laws, which can be observed only by behaving with modesty and discretion.

Besides, it is natural for intelligent beings to feel their imperfections. Nature has, therefore, fixed shame in our minds-a shame of our imperfections.

When, therefore, the physical power of certain climates violates the natural law of the two s.e.xes, and that of intelligent beings, it belongs to the legislature to make civil laws, with a view to opposing the nature of the climate and re-establis.h.i.+ng the primitive laws.

13.-Of Jealousy With respect to nations, we ought to distinguish between the pa.s.sion of jealousy and a jealousy arising from customs, manners, and laws. The one is a hot raging fever; the other, cold, but sometimes terrible, may be joined with indifference and contempt.

The one, an abuse of love, derives its source from love itself. The other depends only on manners, on the customs of a nation, on the laws of the country, and sometimes even on religion.20 It is generally the effect of the physical power of the climate; and, at the same time, the remedy of this physical power.

14.-Of the Eastern Manner of domestic Government Wives are changed so often in the East that they cannot have the power of domestic government. This care is, therefore, committed to the eunuchs, whom they intrust with their keys and the management of their families. "In Persia," says Sir John Chardin, "married women are furnished with clothes as they want them, after the manner of children." Thus that care which seems so well to become them, that care which everywhere else is the first of their concern, does not at all regard them.

15.-Of Divorce and Repudiation There is this difference between a divorce and a repudiation, that the former is made by mutual consent, arising from a mutual antipathy; while the latter is formed by the will, and for the advantage of one of the two parties, independently of the will and advantage of the other.

The necessity there is sometimes for women to repudiate, and the difficulty there always is in doing it, render that law very tyrannical which gives this right to men without granting it to women. A husband is the master of the house; he has a thousand ways of confining his wife to her duty, or of bringing her back to it; so that in his hands it seems as if repudiation could be only a fresh abuse of power. But a wife who repudiates only makes use of a dreadful kind of remedy. It is always a great misfortune for her to go in search of a second husband, when she has lost the most part of her attractions with another. One of the advantages attending the charms of youth, in the female s.e.x is that in an advanced age the husband is led to complacency and love by the remembrance of past pleasures.

It is then a general rule that in all countries where the laws have given to men the power of repudiating, they ought also to grant it to women. Nay, in climates where women live in domestic slavery, one would think that the law ought to favor women with the right of repudiation, and husbands only with that of divorce.

When wives are confined in a seraglio, the husband ought not to repudiate on account of an opposition of manners; it is the husband's fault if their manners are incompatible.

Repudiation on account of the barrenness of the woman ought never to take place except where there is only one wife:21 when there are many, this is of no importance to the husband.

A law of the Maldivians permitted them to take again a wife whom they had repudiated.22 A law of Mexico23 forbade their being reunited under pain of death. The law of Mexico was more rational than that of the Maldivians: at the time even of the dissolution, it attended to the perpetuity of marriage; instead of this, the law of the Maldivians seemed equally to sport with marriage and repudiation.

The law of Mexico admitted only of divorce. This was a particular reason for their not permitting those who were voluntarily separated to be ever reunited. Repudiation seems chiefly to proceed from a hastiness of temper, and from the dictates of pa.s.sion; while divorce appears to be an affair of deliberation.

Divorces are frequently of great political use: but as to the civil utility, they are established only for the advantage of the husband and wife, and are not always favorable to their children.

16.-Of Repudiation and Divorce amongst the Romans Romulus permitted a husband to repudiate his wife, if she had committed adultery, prepared poison, or procured false keys. He did not grant to women the right of repudiating their husbands. Plutarch24 calls this a law extremely severe.

As the Athenian law25 gave the power of repudiation to the wife as well as to the husband, and as this right was obtained by the women amongst the primitive Romans, notwithstanding the law of Romulus, it is evident that this inst.i.tution was one of those which the deputies of Rome brought from Athens, and which were inserted in the laws of the Twelve Tables.

Cicero says that the reasons of repudiation sprang from the law of the Twelve Tables.26 We cannot then doubt but that this law increased the number of the reasons for repudiation established by Romulus.

The power of divorce was also an appointment, or at least a consequence, of the law of the Twelve Tables. For from the moment that the wife or the husband had separately the right of repudiation, there was a much stronger reason for their having the power of quitting each other by mutual consent.

The law did not require that they should lay open the causes of divorce.27 In the nature of the thing, the reasons for repudiation should be given, while those for a divorce are unnecessary; because, whatever causes the law may admit as sufficient to break a marriage, a mutual antipathy must be stronger than them all.

The following fact, mentioned by Dionysius Halicarna.s.sus,28 Valerius Maximus,29 and Aulus Gellius,30 does not appear to me to have the least degree of probability: though they had at Rome, say they, the power of repudiating a wife, yet they had so much respect for the auspices that n.o.body for the s.p.a.ce of five hundred and twenty years ever made31 use of this right, till Carvilius Ruga repudiated his, because of her sterility. We need only be sensible of the nature of the human mind to perceive how very extraordinary it must be for a law to grant such right to a whole nation, and yet for n.o.body to make use of it. Coriola.n.u.s, setting out on his exile, advised his32 wife to marry a man more happy than himself. We have just been seeing that the law of the Twelve Tables and the manners of the Romans greatly extended the law of Romulus. But to what purpose were these extensions if they never made use of a power to repudiate? Besides, if the citizens had such a respect for the auspices that they would never repudiate, how came the legislators of Rome to have less than they? And how came the laws incessantly to corrupt their manners?

All that is surprising in the fact in question will soon disappear, only by comparing two pa.s.sages in Plutarch. The regal law33 permitted a husband to repudiate in the three cases already mentioned, and "it enjoined," says Plutarch,34 "that he who repudiated in any other case should be obliged to give the half of his substance to his wife, and that the other half should be consecrated to Ceres." They might then repudiate in all cases, if they were but willing to submit to the penalty. n.o.body had done this before Carvilius Ruga,35 who, as Plutarch says in another place,36 "put away his wife for her sterility two hundred and thirty years after Romulus." That is, she was repudiated seventy-one years before the law of the Twelve Tables, which extended both the power and causes of repudiation.

The authors I have cited say that Carvilius Ruga loved his wife, but that the censors made him take an oath to put her away, because of her barrenness, to the end that he might give children to the republic; and that this rendered him odious to the people. We must know the genius and temper of the Romans before we can discover the true cause of the hatred they had conceived against Carvilius. He did not fall into disgrace with the people for repudiating his wife; this was an affair that did not at all concern them. But Carvilius had taken an oath to the censors, that by reason of the sterility of his wife he would repudiate her to give children to the republic. This was a yoke which the people saw the censors were going to put upon them. I shall discover, in the prosecution of this work,37 the repugnance which they always felt to regulations of the like kind. But whence can such a contradiction between those authors arise? It is because Plutarch examined into a fact, and the others have recounted a prodigy.

1 "Mahomet married Cadhisja at five, and took her to his bed at eight years old. In the hot countries of Arabia and the Indies, girls are marriageable at eight years of age, and are brought to bed the year after."-Prideaux, "Life of Mahomet." We see women in the kingdom of Algiers pregnant at nine, ten, and eleven years of age. "Hist. of the Kingdom of Algiers," by Logiers de Ta.s.sis, p. 61.

2 See Jornandes, "de Regno et Tempor. Success.," and the ecclesiastic historians.

3 See Law 7 of the Code "de Judaeis et Caelicolis," and Nov. 18, cap. v.

4 In Ceylon a man may live on ten sols a month; they eat nothing there but rice and fish. "Collection of Voyages made to establish an India Company."

5 Dr. Arbuthnot finds that in England the number of boys exceeds that of girls; but people have been to blame to conclude that the case is the same in all climates.

6 See Kempfer, who relates that upon numbering the people of Meaco there were found 182,072 males, and 223,573 females.

7 Du Halde's "Hist. of China," vol. iv.

8 Albuzeir-el-ha.s.sen, one of the Mahommedan Arabs who, in the ninth century, went into India and China, thought this custom a prost.i.tution. And indeed nothing could be more contrary to the ideas of a Mahommedan.

9 "Collection of Voyages for the establishment of an India Company," vol. i.

10 See Francis Pirard, cap. xxvii. "Edifying Letters," 3d and 10th collection, on the Malleami on the Coast of Malabar. This is considered as an abuse of the military profession, as a woman, says Pirard, of the tribe of the Bramins never would marry many husbands.

11 This is the reason why women in the East are so carefully concealed.

12 "Life and Actions of Justinian," p. 403.

13 "History of Algiers," by Logier de Ta.s.sis.

14 See Pirard, cap. xii.

15 Exod. xxi. 10, II.

16 "It is an admirable touch-stone, to find by oneself a treasure, and to know the right owner; or to see a beautiful woman in a lonely apartment; or to hear the cries of an enemy, who must perish without our a.s.sistance." Translation of a Chinese piece of morality, which may be seen in Du Halde, vol. iii. p. 151.

17 "Collection of Voyages for the establishment of an India Company," vol. ii p. 2.

18 In the Maldivian isles the fathers marry their daughters at ten and eleven years of age, because it is a great sin, say they, to suffer them to endure the want of a husband. See Pirard, cap. xii. At Bantam, as soon as a girl is twelve or thirteen years old, she must be married, if they would not have her lead a debauched life. "Collection of Voyages for the establishment of an India Company," p. 348.

19 "Voyage to Guinea," part second. "When the women happen to meet with a man, they lay hold of him, and threaten to make a complaint to their husbands if he slight their addresses. They steal into a man's bed, and wake him; and if he refuses to comply with their desires, they threaten to suffer themselves to be caught in flagranti."

20 Mahomet desired his followers to watch their wives; a certain Iman, when he was dying, said the same thing; and Confucius preached the same doctrine.

21 It does not follow hence that repudiation on account of sterility should be permitted amongst Christians.

22 They took them again preferably to any other, because in this case there was less expense. Pirard's "Travels."

23 "Hist. of the Conquest of Mexico," by Solis, p. 499.

24 "Life of Romulus."

25 This was a law of Solon.

26 "Mimam res suas sibi habere jussit, ex duodecim tabulis causam addidit."-Philip. ii.

27 Justinian altered this, Nov. 117, cap. x.

28 Lib. II.

29 Ibid., cap. iv.

30 Lib. IV. cap. iii. 8.

31 According to Dionys. Halicarn. And Valerius Maximus; and five hundred and twenty-three, according to Aulus Gellius. Neither did they agree in placing this under the same consuls.

32 See the "Speech of Veturia" in Dionys. Halicarn. lib. VIII.

33 Plutarch's "Life of Romulus."

34 Ibid.

35 Indeed sterility is not a cause mentioned by the law of Romulus: but to all appearance he was not subject to a confiscation of his effects, since he followed the orders of the censors.

36 In his comparison between Theseus and Romulus.

37 Book XXIII. chap. iii.

Book XVII

How the Laws of Political Servitude Bear a Relation to the Nature of the Climate 1.-Of political Servitude POLITICAL servitude does not less depend on the nature of the climate than that which is civil and domestic; and this we shall now demonstrate.

2.-The Difference between Nations in point of Courage We have already observed that great heat enervates the strength and courage of men, and that in cold climates they have a certain vigor of body and mind, which renders them patient and intrepid, and qualifies them for arduous enterprises. This remark holds good, not only between different nations, but even in the different parts of the same country. In the north of China1 people are more courageous than those in the south; and those in the south of Corea2 have less bravery than those in the north.

We ought not, then, to be astonished that the effeminacy of the people in hot climates has almost always rendered them slaves; and that the bravery of those in cold climates has enabled them to maintain their liberties. This is an effect which springs from a natural cause.

This has also been found true in America; the despotic empires of Mexico and Peru were near the Line, and almost all the little free nations were, and are still, near the Poles.

3.-Of the Climate of Asia The relations of travellers3 inform us "that the vast continent of the north of Asia, which extends from forty degrees or thereabouts to the pole, and from the frontiers of Muscovy even to the eastern ocean, is in an extremely cold climate; that this immense tract of land is divided by a chain of mountains which run from west to east, leaving Siberia on the north, and Great Tartary on the south; that the climate of Siberia is so cold that, excepting a few places, it is unsusceptible of cultivation; and that, though the Russians have settlements all along the Irtis, they cultivate nothing; that this country produces only some little firs and shrubs; that the natives of the country are divided into wretched hordes or tribes, like those of Canada; that the reason of this cold proceeds, on the one hand, from the height of the land, and on the other from the mountains, which, in proportion as they run from south to north, are levelled in such a manner that the north wind everywhere blows without opposition; that this wind, which renders Nova Zembla uninhabitable, blowing in Siberia makes it a barren waste; that in Europe, on the contrary, the mountains of Norway and Lapland are admirable bulwarks, which cover the northern countries from the wind; so that at Stockholm, which is about fifty-nine degrees lat.i.tude, the earth produces plants, fruits, and corn; and that about Abo, which is sixty-one degrees, and even to sixty-three and sixty-four, there are mines of silver, and the land is fruitful enough."

We see also in these relations "that Great Tartary, situated to the south of Siberia, is also exceedingly cold; that the country will not admit of cultivation; that nothing can be found but pasturage for flocks and herds; that trees will not grow there, but only brambles, as in Iceland; that there are, near China and India, some countries where there grows a kind of millet, but that neither corn nor rice will ripen; that there is scarcely a place in Chinese Tartary at forty-three, forty-four, and forty-five degrees where it does not freeze seven or eight months in the year, so that it is cold as Iceland, though it might be imagined, from its situation, to be as hot as the south of France; that there are no cities, except four or five towards the eastern ocean, and some which the Chinese, for political reasons, have built near China; that in the rest of Great Tartary there are only a few situated in Buchar, Turkestan, and Cathay; that the reason of this extreme cold proceeds from the nature of the nitrous earth, full of saltpetre and sand, and more particularly from the height of the land. Father Verbiest found that a certain place, eighty leagues north of the great wall, towards the source of Kavamhuran, exceeded the height of the sea near Pekin three thousand geometrical paces; that this height4 is the cause that though almost all the great rivers of Asia have their source in this country, there is, however, so great a want of water that it can be inhabited only near the rivers and lakes."

These facts being laid down, I reason thus: Asia has properly no temperate zone, as the places situated in a very cold climate immediately touch upon those which are exceedingly hot, that is, Turkey, Persia, India, China, Corea, and j.a.pan.

In Europe, on the contrary, the temperate zone is very extensive, though situated in climates widely different from each other; there being no affinity between the climates of Spain and Italy and those of Norway and Sweden. But as the climate grows insensibly cold upon our advancing from south to north, nearly in proportion to the lat.i.tude of each country, it thence follows that each resembles the country joining it; that there is no very extraordinary difference between them, and that, as I have just said, the temperate zone is very extensive.

Hence it comes that in Asia the strong nations are opposed to the weak; the warlike, brave, and active people touch immediately upon those who are indolent, effeminate, and timorous; the one must, therefore, conquer, and the other be conquered. In Europe, on the contrary, strong nations are opposed to the strong; and those who join each other have nearly the same courage. This is the grand reason of the weakness of Asia, and of the strength of Europe; of the liberty of Europe, and of the slavery of Asia: a cause that I do not recollect ever to have seen remarked. Hence it proceeds that liberty in Asia never increases; whilst in Europe it is enlarged or diminished, according to particular circ.u.mstances.

The Russian n.o.bility have indeed been reduced to slavery by the ambition of one of their princes; but they have always discovered those marks of impatience and discontent which are never to be seen in the southern climates. Have they not been able for a short time to establish an aristocratic government? Another of the northern kingdoms has lost its laws: but we may trust to the climate that they are not lost in such a manner as never to be recovered.

4.-The Consequences resulting from this What we have now said is perfectly conformable to history. Asia has been subdued thirteen times; eleven by the northern nations, and twice by those of the south. In the early ages it was conquered three times by the Scythians; afterwards it was subdued once by the Medes, and once by the Persians; again by the Greeks, the Arabs, the Moguls, the Turks, the Tartars, the Persians, and the Afghans. I mention only the Upper Asia, and say nothing of the invasions made in the rest of the south of that part of the world which has most frequently suffered prodigious revolutions.

In Europe, on the contrary, since the establishment of the Greek and Phnician colonies, we know but of four great changes; the first caused by the conquest of the Romans; the second by the inundation of barbarians, who destroyed those very Romans; the third by the victories of Charlemagne; and the last by the invasions of the Normans. And if this be rightly examined, we shall find, even in these changes, a general strength diffused through all the parts of Europe. We know the difficulty which the Romans met with in conquering Europe, and the ease and facility with which they invaded Asia. We are sensible of the difficulties the northern nations had to encounter in overturning the Roman empire; of the wars and labors of Charlemagne; and of the several enterprises of the Normans. The destroyers were incessantly destroyed.

5.-That when the People in the North of Asia and those of the North of Europe made Conquests, the Effects of the Conquest were not the same The nations in the north of Europe conquered as freemen; the people in the north of Asia conquered as slaves, and subdued others only to gratify the ambition of a master.

The reason is, that the people of Tartary, the natural conquerors of Asia, are themselves enslaved. They are incessantly making conquests in the south of Asia, where they form empires: but that part of the nation which continues in the country finds that it is subject to a great master, who, being despotic in the South, will likewise be so in the North, and exercising an arbitrary power over the vanquished subjects, pretends to the same over the conquerors. This is at present most conspicuous in that vast country called Chinese Tartary, which is governed by the emperor, with a power almost as despotic as that of China itself, and which he every day extends by his conquests.