The spirit of laws by Charles de Secondat, Baron de Montesquieu


part of Italy to prevent subjects from selling their lands in order to



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part of Italy to prevent subjects from selling their lands in order to
remove their specie into foreign countries. These laws may be good, when
the riches of a state are so connected with the country itself that
there would be great difficulty in transferring them to another. But
since, by the course of exchange, riches are in some degree independent
of any particular state, and since they may with so much ease be
conveyed from one country to another, that must be a bad law which will
not permit persons for their own interest to dispose of their lands,
while they can dispose of their money. It is a bad law, because it gives
an advantage to movable effects, in prejudice to the land; because it
deters strangers from settling in the country; and, in short, because it
may be eluded.

16. The Assistance a State may derive from Bankers. The banker's


business is to change, not to lend, money. If the prince makes use of
them to change his specie, as he never does it but in great affairs, the
least profit he can give for the remittance becomes considerable; and if
they demand large profits, we may be certain that there is a fault in
the administration. On the contrary, when they are employed to advance
specie, their art consists in procuring the greatest profit for the use
of it, without being liable to be charged with usury.

17. Of Public Debts. Some have imagined that it was for the advantage of


a state to be indebted to itself: they thought that this multiplied
riches by increasing the circulation.

Those who are of this opinion have, I believe, confounded a circulating


paper which represents money, or a circulating paper which is the sign
of the profits that a company has or will make by commerce, with a paper
which represents a debt. The first two are extremely advantageous to the
state: the last can never be so; and all that we can expect from it is
that individuals have a good security from the government for their
money. But let us see the inconveniences which result from it.

1. If foreigners possess much paper which represents a debt, they


annually draw out of the nation a considerable sum for interest.

2. In a nation that is thus perpetually in debt, the exchange must be


very low.

3. The taxes raised for the payment of the interest of the debt are an


injury to the manufactures, by raising the price of the artificer's
labour.

4. It takes the true revenue of the state from those who have activity


and industry, to convey it to the indolent; that is, it gives facilities
for labour to those who do not work, and clogs with difficulties those
who do work.

These are its inconveniences: I know of no advantages. Ten persons have


each a yearly income of a thousand crowns, either in land or trade; this
raises to the nation, at five per cent, a capital of two hundred
thousand crowns. If these ten persons employed one-half of their income,
that is, five thousand crowns, in paying the interest of a hundred
thousand crowns, which they had borrowed of others, that still would be
only to the state as two hundred thousand crowns; that is, in the
language of the algebraists, 200,000 crowns -100,000 crowns + 100,000
crowns = 200,000.

People are thrown perhaps into this error by reflecting that the paper


which represents the debt of a nation is the sign of riches; for none
but a rich state can support such paper without falling into decay. And
if it does not fall, it is a proof that the state has other riches
besides. They say that it is not an evil, because there are resources
against it; and that it is an advantage, since these resources surpass
the evil.

18. Of the Payment of Public Debts. It is necessary that there should be


a proportion between the state as creditor and the state as debtor. The
state may be a creditor to infinity, but it can only be a debtor to a
certain degree, and when it surpasses that degree the title of creditor
vanishes.

If the credit of the state has never received the least blemish, it may


do what has been so happily practised in one of the kingdoms of
Europe;[32] that is, it may require a great quantity of specie, and
offer to reimburse every individual, at least if they will not reduce
their interest. When the state borrows, the individuals fix the
interest; when it pays, the interest for the future is fixed by the
state.

It is not sufficient to reduce the interest: it is necessary to erect a


sinking-fund from the advantage of the reduction, in order to pay every
year a part of the capital: a proceeding so happy that its success
increases every day.

When the credit of the state is not entire, there is a new reason for


endeavouring to form a sinking-fund, because this fund being once
established will soon procure the public confidence.

1. If the state is a republic, the government of which is in its own


nature consistent with its entering into projects of a long duration,
the capital of the sinking-fund may be inconsiderable; but it is
necessary in a monarchy for the capital to be much greater.

2. The regulations ought to be so ordered that all the subjects of the


state may support the weight of the establishment of these funds,
because they have all the weight of the establishment of the debt; thus
the creditor of the state, by the sums he contributes, pays himself.

3. There are four classes of men who pay the debts of the state: the


proprietors of the land, those engaged in trade, the labourers and
artificers, and, in fine, the annuitants either of the state or of
private people. Of these four classes the last, in a case of necessity
one would imagine, ought least to be spared, because it is a class
entirely passive, while the state is supported by the active vigour of
the other three. But as it cannot be higher taxed, without destroying
the public confidence, of which the state in general and these three
classes in particular have the utmost need; as a breach in the public
faith cannot be made on a certain number of subjects without seeming to
be made on all; as the class of creditors is always the most exposed to
the projects of ministers, and always in their eye, and under their
immediate inspection, the state is obliged to give them a singular
protection, that the part which is indebted may never have the least
advantage over that which is the creditor.

19. Of lending upon Interest. Specie is the sign of value. It is evident


that he who has occasion for this sign ought to pay for the use of it,
as well as for everything else that he has occasion for. All the
difference is that other things may be either hired or bought; while
money, which is the price of things, can only be hired, and not
bought.[33]

To lend money without interest is certainly an action laudable and


extremely good; but it is obvious that it is only a counsel of religion,
and not a civil law.

In order that trade may be successfully carried on, it is necessary that


a price be fixed on the use of specie; but this should be very
inconsiderable. If it be too high, the merchant who sees that it will
cost him more in interest than he can gain by commerce will undertake
nothing; if there is no consideration to be paid for the use of specie,
nobody will lend it; and here too the merchant will undertake nothing.

I am mistaken when I say nobody will lend; the affairs of society will


ever make it necessary. Usury will be established, but with all the
disorders with which it has been constantly attended.

The laws of Mahomet confound usury with lending upon interest. Usury


increases in Mahometan countries in proportion to the severity of the
prohibition. The lender indemnifies himself for the danger he undergoes
of suffering the penalty.

In those eastern countries, the greater part of the people are secure in


nothing; there is hardly any proportion between the actual possession of
a sum and the hopes of receiving it again after having lent it: usury,
then, must be raised in proportion to the danger of insolvency.

20. Of Maritime Usury. The greatness of maritime usury is founded on two


things: the danger of the sea, which makes it proper that those who
expose their specie should not do it without considerable advantage, and
the ease with which the borrower, by means of commerce, speedily
accomplishes a variety of great affairs. But usury, with respect to
landmen, not being founded on either of these two reasons, is either
prohibited by the legislators, or, what is more rational, reduced to
proper bounds.

21. Of Lending by Contract, and the State of Usury among the Romans.


Besides the loans made for the advantage of commerce, there is still a
kind of lending by a civil contract, whence results interest or usury.

As the people of Rome increased every day in power, the magistrates


sought to insinuate themselves in their favour by enacting such laws as
were most agreeable to them. They retrenched capitals; they first
lowered, and at length prohibited, interest; they took away the power of
confining the debtor's body; in fine, the abolition of debts was
contended for whenever a tribune was disposed to render himself popular.

These continual changes, whether made by the laws or by the plebiscita,


naturalised usury at Rome; for the creditors, seeing the people their
debtor, their legislator, and their judge, had no longer any confidence
in their agreements: the people, like a debtor who has lost his credit,
could only tempt them to lend by allowing an exorbitant interest,
especially as the laws applied a remedy to the evil only from time to
time, while the complaints of the people were continual, and constantly
intimidated the creditors. This was the cause that all honest means of
borrowing and lending were abolished at Rome, and that the most
monstrous usury established itself in that city, notwithstanding the
strict prohibition and severity of the law.[34] This evil was a
consequence of the severity of the laws against usury. Laws excessively
good are the source of excessive evil. The borrower found himself under
the necessity of paying for the interest of the money, and for the
danger the creditor underwent of suffering the penalty of the law.

22. The same Subject continued. The primitive Romans had not any laws to


regulate the rate of usury.[35] In the contests which arose on this
subject between the plebeians and the patricians, even in the sedition
on the Mons Sacer, nothing was alleged, on the one hand, but justice,
and on the other, the severity of contracts.[36]

They then only followed private agreements, which, I believe, were most


commonly at twelve per cent per annum. My reason is, that in the ancient
language of the Romans, interest at six per cent was called half-usury,
and interest at three per cent, quarter-usury.[37] Total usury must,
therefore, have been interest at twelve per cent.

But if it be asked how such great interest could be established among a


people almost without commerce, I answer that this people, being very
often obliged to go to war without pay, were under a frequent necessity
of borrowing: and as they incessantly made happy expeditions, they were
commonly well able to pay. This is visible from the recital of the
contests which arose on this subject; they did not then disagree
concerning the avarice of creditors, but said that those who complained
might have been able to pay, had they lived in a more regular
manner.[38]

They then made laws which had only an influence on the present situation


of affairs: they ordained, for instance, that those who enrolled
themselves for the war they were engaged in should not be molested by
their creditors; that those who were in prison should be set at liberty;
that the most indigent should be sent into the colonies; and sometimes
they opened the public treasury. The people, being eased of their
present burdens, became appeased; and as they required nothing for the
future, the senate was far from providing against it.

At the time when the senate maintained the cause of usury with so much


constancy, the Romans were distinguished by an extreme love of
frugality, poverty, and moderation: but the constitution was such that
the principal citizens alone supported all the expenses of government,
while the common people paid nothing. How, then, was it possible to
deprive the former of the liberty of pursuing their debtors, and at the
same time to oblige them to execute their offices, and to support the
republic amidst its most pressing necessities?

Tacitus says that the law of the Twelve Tables fixed the interest at one


per cent.[39] It is evident that he was mistaken, and that he took
another law, of which I am going to speak, for the law of the Twelve
Tables. If this had been regulated in the law of the Twelve Tables, why
did they not make use of its authority in the disputes which afterwards
arose between the creditors and debtors? We find no vestige of this law
upon lending at interest; and let us have ever so little knowledge of
the history of Rome, we shall see that a law like this could not be the
work of the decemvirs.

The Licinian law, made eighty-five years after that of the Twelve


Tables,[40] was one of those temporary regulations of which we have
spoken. It ordained that what had been paid for interest should be
deducted from the principal, and the rest discharged by three equal
payments.

In the year of Rome 398, the tribunes Duellius and Menenius caused a law


to be passed which reduced the interest to one per cent per annum.[41]
it is this law which Tacitus confounds with that of the Twelve
Tables,[42] and this was the first ever made by the Romans to fix the
rate of interest. Ten years after,[43] this usury was reduced
one-half,[44] and in the end entirely abolished;[45] and if we may
believe some authors whom Livy had read, this was under the consulate of
C. Martius Rutilius and Q. Servilius, in the year of Rome 413.[46]

It fared with this law as with all those in which the legislator carries


things to excess: an infinite number of ways were found to elude it.
They enacted, therefore, many others to confirm, correct, and temper it.
Sometimes they quitted the laws to follow the common practice; at
others, the common practice to follow the laws; but in this case, custom
easily prevailed.[47] When a man wanted to borrow, he found an obstacle
in the very law made in his favour; this law must be evaded by the
person it was made to succour, and by the person condemned. Sempronius
Asellus, the prætor, having permitted the debtors to act in conformity
to the laws,[48] was slain by the creditors for attempting to revive the
memory of a severity that could no longer be supported.[49]

I quit the city, in order to cast an eye on the provinces.


I have somewhere else observed that the Roman provinces were exhausted


by a severe and arbitrary government.[50] But this is not all; they were
also ruined by a most shocking usury.

Cicero takes notice that the inhabitants of Salamis wanted to borrow a


sum of money at Rome, but could not, because of the Gabinian law.[51] We
must, therefore, inquire into the nature of this law.

As soon as lending upon interest was forbidden at Rome, they contrived


all sort of means to elude the law;[52] and as their allies,[53] and the
Latins, were not subject to the civil laws of the Romans, they employed
a Latin, or an ally, to lend his name, and personate the creditor. The
law, therefore, had only subjected the creditors to a matter of form,
and the public were not relieved.

The people complained of this artifice; and Marius Sempronius, tribune


of the people, by the authority of the senate, caused a plebiscitum to
be enacted to this purport, that in regard to loans the laws prohibiting
usury between Roman citizens should equally take place between a citizen
and an ally, or a citizen and a Latin.[54]

At that time they gave the name of allies to the people of Italy


properly so called, which extended as far as the Arno and the Rubicon,
and was not governed in the form of a Roman province.

It is an observation of Tacitus[55] that new frauds were constantly


committed, whenever any laws were passed for the preventing of usury.
Finding themselves debarred from lending or borrowing in the name of an
ally, they soon contrived to borrow of some inhabitant of the provinces.

To remedy this abuse they were obliged to enact a new law; and


Gabinius[56] upon the passing of that famous law, which was intended to
prevent the corruption of suffrages, must naturally have reflected that
the best way to attain his end was to discourage the lending upon
interest: these were two objects naturally connected; for usury always
increased at the time of elections,[57] because they stood in need of
money to bribe the voters. It is plain that the Gabinian law had
extended the Senatus Consultum of Marcus Sempronius to the provinces,
since the people of Salamis could not borrow money at Rome because of
that very law. Brutus, under fictitious names, lent them some money[58]
at four per cent a month,[59] and obtained for that purpose two Senatus
Consulta; in the former of which it was expressly mentioned that this
loan should not be considered as an evasion of the law,[60] and that the
governor of Sicily should determine according to the stipulations
mentioned in the bond of the Salaminians.

As lending upon interest was forbidden by the Gabinian law between


provincials and Roman citizens, and the latter at that time had all the
money of the globe in their hands, there was a necessity for tempting
them with the bait of extravagant interest, to the end that the
avaricious might thus lose sight of the danger of losing their money.
And as they were men of great power in Rome, who awed the magistrates
and overruled the laws, they were emboldened to lend, and to extort
great usury. Hence the provinces were successively ravaged by every one
who had any credit in Rome: and as each governor, at entering upon his
province, published his edict[61] wherein he fixed the rate of interest
in what manner he pleased, the legislature played into the hands of
avarice, and the latter served the mean purposes of the legislator.

But the public business must be carried on; and wherever a total


inaction obtains, the state is undone. On some occasions the towns, the
corporate bodies and societies, as well as private people, were under
the necessity of borrowing -- a necessity but too urgent, were it only
to repair the ravages of armies, the rapacity of magistrates, the
extortions of collectors, and the corrupt practices daily introduced;
for never was there at one period so much poverty and opulence. The
senate, being possessed of the executive power, granted, through
necessity, and oftentimes through favour, a permission of borrowing from
Roman citizens, so as to enact decrees for that particular purpose. But
even these decrees were discredited by the law; for they might give
occasion to the people's insisting upon new rates of interest, which
would augment the danger of losing the capital, while they made a
further extension of usury.[62] I shall ever repeat it, that mankind are
governed not by extremes, but by principles of moderation.

He pays least, says Ulpian, who pays latest.[63] This decides the


question whether interest be lawful; that is, whether the creditor can
sell time, and the debtor buy it.

______

1. The salt made use of for this purpose in Abyssinia has this defect,
that it is continually wasting away.

2. Herodotus, Bk. i, tells us that the Lydians found out the art of


coining money; the Greeks learned it from them: the Athenian coin had
the impression of their ancient ox. I have seen one of those pieces in
the Earl of Pembroke's cabinet.

3. It is an ancient custom in Algiers for the father of a family to have


a treasure concealed in the earth. -- Laugier de Tassis, History of the
Kingdom of Algiers.

4. Cæsar, De Bello Civ., iii.


5. Tacitus, Annals, vi. 17.


6. The Laws of the Saxons, 18.


7. See chapter 12 of this book.


8. Supposing a mark of eight ounces of silver to be worth forty-nine


livres, and copper twenty sols per pound.

9. History of the Civil Wars of the Spaniards in the West Indies.


10. In France, Law's project was called by this name.


11. Socrates, History of the Church, ii. 17.


12. There is much specie in a place when there is more specie than


paper; there is little, when there is more paper than specie.

13. With the expenses of carriage and insurance deducted.


14. In 1744.


15. See book xx. 23.


16. Pliny, Natural History, xxxiii, art. 13.


17. Ibid.


18. They received ten ounces of copper for twenty.


19. They received sixteen ounces of copper for twenty.


20. Pliny, xxxiii, art. 5.


21. Freinshemius, dec. 2, v.


22. Ibid. They struck also, says the same author, half denarii, called


quinarii; and quarters, called sesterces.

23. An eighth, according to Budæus; according to other authors, a


seventh.

24. Pliny, Natural History, xxxiii, art. 13.


25. Ibid.


26. See Father Joubert, Science of Medals, p. 59, Paris, 1739.


27. Extract of Virtues and Vices.


28. See Savote, part II, 12, and Le Journal des Savants of the 28th of


July, 1681, on a discovery of fifty thousand medals.

29. See Savote, ibid.


30. Ibid.


31. Chapter 21.


32. England.


33. We do not speak here of gold and silver considered as a merchandise.


34. Tacitus, Annals, vi. 16.


35. Usury and interest among the Romans signified the same thing.


36. See Dionysius Halicarnassus, who has described it so well.


37. Usuræ semisses, trientes, quadrantes. See the several titles of the


digests and codes on usury, and especially Leg. 17, with the note, ff.
de usuris.

38. See Appius's speech on this subject, in Dionysius Halicarnassus, v.


39. Annals, vi. 16.


40. In the year of Rome 388. -- Livy, vi. 25.


41. Unciaria usura. -- Ibid., vii. 16.


42. Annals, vi. 16.


43. Under the consulate of L. Manlius Torquatus and C. Plautius,


according to Livy, vii. 27. This is the law mentioned by Tacitus,
Annals, vi.

44. Semiunciaria usura.


45. As Tacitus says. Annals, vi.


46. This law was passed at the instance of M. Genucius, tribune of the


people. -- Livy, vii, towards the end.

47. Verteri jam more foenus receptum erat. -- Appian. On the Civil War,


i.

48. Permisit eos legibus agere. -- Ibid.; and theEpitome of Livy, lxiv.


49. In the year of Rome 663.


50. Book xi. 19.


51. Letters to Atticus, v. 21.


52. Livy, xxxv. 7.


53. Ibid.


54. In the year 561 of Rome. -- See Livy, xxv. 7.


55. Annals, vi. 16.


56. In the year 615 of Rome.


57. See Letters to Atticus, iv. 15, 16.


58. Ibid., vi. i.


59. Pompey having lent 600 talents to King Ariobarzanes, made that


prince pay him thirty Attic talents every thirty days. -- Ibid., v. 21,
vi. 1.

60. Ut neque Salaminiis, neque cui eis dedisset, fraudi esset. -- Ibid.


61. Cicero's edict fixed it to one per cent a month, with interest upon


interest at the expiration of the year. With regard to the farmers of
the republic, he engaged them to grant a respite to their debtors; if
the latter did not pay at the time fixed, he awarded the
interestmentioned in the bond. -- Ibid., vi. 1.

62. See what Lucretius says, in the 21st letter to Atticus, v. There was


even a general Senatus Consultum, to fix the rate of interest at one per
cent per month. See the same letter.

63. Leg. 12, ff. de verb. signif.


------------------------------------------------------------------------

Book XXIII. Of Laws in the Relation They Bear to the Number of


Inhabitants

1. Of Men and Animals with respect to the Multiplication of their


Species.

Delight of human kind,[1] and gods above;


Parent of Rome, propitious Queen of Love;

For when the rising spring adorns the mead,


And a new scene of nature stands display'd;
When teeming buds, and cheerful greens appear,
And western gales unlock the lazy year;
The joyous birds thy welcome first express,
Whose native songs thy genial fire confess:
Then savage beasts bound o'er their slighted food,
Struck with thy darts, and tempt the raging flood:
All nature is thy gift, earth, air, and sea;
Of all that breathes the various progeny,
Stung with delight, is goaded on by thee.
O'er barren mountains, o'er the flow'ry plain,
The leafy forest, and the liquid main,
Extends thy uncontroll'd and boundless reign.
Thro' all the living regions thou dost move,
And scatter'st where thou go'st the kindly seeds of love.
The females of brutes have an almost constant fecundity. But in the
human species, the manner of thinking, the character, the passions, the
humour, the caprice, the idea of preserving beauty, the pain of
child-bearing, and the fatigue of a too numerous family, obstruct
propagation in a thousand different ways.

2. Of Marriage. The natural obligation of the father to provide for his


children has established marriage, which makes known the person who
ought to fulfil this obligation. The people[2] mentioned by Pomponius
Mela[3] had no other way of discovering him but by resemblance.

Among civilised nations, the father is that person on whom the laws, by


the ceremony of marriage, have fixed this duty, because they find in him
the man they want.[4]

Among brutes this is an obligation which the mother can generally


perform; but it is much more extensive among men. Their children indeed
have reason; but this comes only by slow degrees. It is not sufficient
to nourish them; we must also direct them: they can already live; but
they cannot govern themselves.

Illicit conjunctions contribute but little to the propagation of the


species. The father, who is under a natural obligation to nourish and
educate his children, is not then fixed; and the mother, with whom the
obligation remains, finds a thousand obstacles from shame, remorse, the
constraint of her sex, and the rigour of laws; and besides, she
generally wants the means.

Women who have submitted to public prostitution cannot have the


convenience of educating their children: the trouble of education is
incompatible with their station; and they are so corrupt that they can
have no protection from the law.

It follows from all this that public continence is naturally connected


with the propagation of the species.

3. Of the Condition of Children. It is a dictate of reason that when


there is a marriage, children should follow the station or condition of
the father; and that when there is not, they can belong to the mother
only.[5]

4. Of Families. It is almost everywhere a custom for the wife to pass


into the family of the husband. The contrary is without any
inconvenience established at Formosa,[6] where the husband enters into
the family of the wife.

This law, which fixes the family in a succession of persons of the same


sex, greatly contributes, independently of the first motives, to the
propagation of the human species. The family is a kind of property: a
man who has children of a sex which does not perpetuate it is never
satisfied if he has not those who can render it perpetual.

Names, whereby men acquire an idea of a thing which one would imagine


ought not to perish, are extremely proper to inspire every family with a
desire of extending its duration. There are people among whom names
distinguish families: there are others where they only distinguish
persons: the latter have not the same advantage as the former.

5. Of the several Orders of lawful Wives. Laws and religion sometimes


establish many kinds of civil conjunctions; and this is the case among
the Mahometans, where there are several orders of wives, the children of
whom are distinguished by being born in the house, by civil contracts,
or even by the slavery of the mother, and the subsequent acknowledgment
of the father.

It would be contrary to reason that the law should stigmatise the


children for what it approved in the father. All these children ought,
therefore, to succeed, at least if some particular reason does not
oppose it, as in Japan, where none inherit but the children of the wife
given by the emperor. Their policy demands that the gifts of the emperor
should not be too much divided, because they subject them to a kind of
service, like that of our ancient fiefs.

There are countries where a wife of the second rank enjoys nearly the


same honours in a family as in our part of the world are granted to an
only consort: there the children of concubines are deemed to belong to
the first or principal wife. Thus it is also established in China.
Filial respect,[7] and the ceremony of deep mourning, are not due to the
natural mother, but to her appointed by the law.

By means of this fiction they have no bastard children; and where such a


fiction does not take place, it is obvious that a law to legitimatize
the children of concubines must be considered as an act of violence, as
the bulk of the nation would be stigmatised by such a decree. Neither is
there any regulation in those countries with regard to children born in
adultery. The recluse lives of women, the locks, the inclosures, and the
eunuchs render all infidelity to their husbands so difficult, that the
law judges it impossible. Besides, the same sword would exterminate the
mother and the child.

6. Of Bastards in different Governments. They have therefore no such


thing as bastards where polygamy is permitted; this disgrace is known
only in countries in which a man is allowed to marry but one wife. Here
they were obliged to stamp a mark of infamy upon concubinage, and
consequently they were under a necessity of stigmatising the issue of
such unlawful conjunctions.

In republics, where it is necessary that there should be the purest


morals, bastards ought to be more degraded than in monarchies.

The laws made against them at Rome were perhaps too severe; but as the


ancient institutions laid all the citizens under a necessity of
marrying, and as marriages were also softened by the permission to
repudiate or make a divorce, nothing but an extreme corruption of
manners could lead them to concubinage.

It is observable that as the quality of a citizen was a very


considerable thing in a democratic government, where it carried with it
the sovereign power, they frequently made laws in respect to the state
of bastards, which had less relation to the thing itself and to the
honesty of marriage than to the particular constitution of the republic.
Thus the people have sometimes admitted bastards into the number of
citizens, in order to increase their power in opposition to the
great.[8] Thus the Athenians excluded bastards from the privilege of
being citizens, that they might possess a greater share of the corn sent
them by the King of Egypt. In fine, Aristotle informs us that in many
cities where there was not a sufficient number of citizens, their
bastards succeeded to their possessions; and that when there was a
proper number, they did not inherit.[9]

7. Of the Father's Consent to Marriage. The consent of fathers is


founded on their authority, that is, on the right of property. It is
also founded on their love, on their reason, and on the uncertainty of
that of their children, whom youth confines in a state of ignorance and
passion in a state of ebriety.

In the small republics, or singular institutions already mentioned, they


might have laws which gave to magistrates that right of inspection over
the marriages of the children of citizens which nature had already given
to fathers. The love of the public might there equal or surpass all
other love. Thus Plato would have marriages regulated by the
magistrates: this the Lacedæmonian magistrates performed.

But in common institutions, fathers have the disposal of their children


in marriage: their prudence in this respect is always supposed to be
superior to that of a stranger. Nature gives to fathers a desire of
procuring successors to their children, when they have almost lost the
desire of enjoyment themselves. In the several degrees of progeniture,
they see themselves insensibly advancing to a kind of immortality. But
what must be done, if oppression and avarice arise to such a height as
to usurp all the authority of fathers? Let us hear what Thomas Gage says
in regard to the conduct of the Spaniards in the West Indies.[10]

"According to the number of the sons and daughters that are


marriageable, the father's tribute is raised and increased, until they
provide husbands and wives for their sons and daughters, who, as soon as
they are married, are charged with tribute; which, that it may increase,
they will suffer none above fifteen years of age to live unmarried. Nay,
the set time of marriage appointed for the Indians is at fourteen years
for the man, and thirteen for the woman; alleging that they are sooner
ripe for the fruit of wedlock, and sooner ripe in knowledge and malice,
and strength for work and service, than any other people. Nay, sometimes
they force those to marry who are scarcely twelve and thirteen years of
age, if they find them well-limbed and strong in body, explaining a
point of one of the canons, which alloweth fourteen and fifteen years.
Nisi malitia suppleat ætatem."

He saw a list of these taken. It was, says he, a most shameful affair.


Thus in an action which ought to be the most free, the Indians are the
greatest slaves.

8. The same Subject continued. In England the law is frequently abused


by the daughters marrying according to their own fancy without
consulting their parents. This custom is, I am apt to imagine, more
tolerated there than anywhere else from a consideration that as the laws
have not established a monastic celibacy, the daughters have no other
state to choose but that of marriage, and this they cannot refuse. In
France, on the contrary, young women have always the resource of
celibacy; and therefore the law which ordains that they shall wait for
the consent of their fathers may be more agreeable. In this light the
custom of Italy and Spain must be less rational; convents are there
established, and yet they may marry without the consent of their
fathers.

9. Of young Women. Young women who are conducted by marriage alone to


liberty and pleasure, who have a mind which dares not think, a heart
which dares not feel, eyes which dare not see, ears which dare not hear,
who appear only to show themselves silly, condemned without intermission
to trifles and precepts, have sufficient inducements to lead them on to
marriage: it is the young men that want to be encouraged.

10. What it is that determines Marriage. Wherever a place is found in


which two persons can live commodiously, there they enter into marriage.
Nature has a sufficient propensity to it, when unrestrained by the
difficulty of subsistence.

A rising people increase and multiply extremely. This is, because with


them it would be a great inconvenience to live in celibacy; and none to
have many children. The contrary of which is the case when a nation is
formed.

11. Of the Severity of Government. Men who have absolutely nothing, such


as beggars, have many children. This proceeds from their being in the
case of a rising people: it costs the father nothing to give his heart
to his offspring, who even in their infancy are the instruments of this
art. These people multiply in a rich or superstitious country, because
they do not support the burden of society, but are themselves the
burden. But men who are poor, only because they live under a severe
government; who regard their fields less as the source of their
subsistence than as a cause of vexation; these men, I say, have few
children: they have not even subsistence for themselves. How then can
they think of dividing it? They are unable to take care of their own
persons when they are sick. How then can they attend to the wants of
creatures whose infancy is a continual sickness?

It is pretended by some who are apt to talk of things which they have


never examined that the greater the poverty of the subjects, the more
numerous their families: that the more they are loaded with taxes, the
more industriously they endeavour to put themselves in a station in
which they will be able to pay them: two sophisms, which have always
destroyed and will for ever be the destruction of monarchies.

The severity of government may be carried to such an extreme as to make


the natural sentiments destructive of the natural sentiments themselves.
Would the women of America have refused to bear children had their
masters been less cruel?[11]

12. Of the Number of Males and Females in different Countries. I have


already observed that there are born in Europe rather more boys than
girls.[12] It has been remarked that in Japan there are born rather more
girls than boys:[13] all things compared, there must be more fruitful
women in Japan than in Europe, and consequently it must be more
populous.

We are informed that at Bantam there are ten girls to one boy.[14] A


disproportion like this must cause the number of families there to be to
the number of those of other climates as 1 to 5 1/2 which is a
prodigious difference. Their families may be much larger indeed; but
there must be few men in circumstances sufficient to provide for so
large a family.

13. Of Seaport Towns. In seaport towns, where men expose themselves to a


thousand dangers, and go abroad to live or die in distant climates,
there are fewer men than women: and yet we see more children there than
in other places. This proceeds from the greater ease with which they
procure the means of subsistence. Perhaps even the oily parts of fish
are more proper to furnish that matter which contributes to generation.
This may be one of the causes of the infinite number of people in
Japan[15] and China,[16] where they live almost wholly on fish.[17] If
this be the case, certain monastic rules, which oblige the monks to live
on fish, must be contrary to the spirit of the legislator himself.

14. Of the Productions of the Earth which require a greater or less


Number of Men. Pasture-lands are but little peopled, because they find
employment only for a few. Corn-lands employ a great many men, and
vineyards infinitely more.

It has been a frequent complaint in England[18] that the increase of


pasture-land diminished the inhabitants; and it has been observed in
France that the prodigious number of vineyards is one of the great
causes of the multitude of people.

Those countries where coal-pits furnish a proper substance for fuel have


this advantage over others, that not having the same occasion for
forests, the lands may be cultivated.

In countries productive of rice, they are at vast pains in watering the


land: a great number of men must therefore be employed. Besides, there
is less land required to furnish subsistence for a family than in those
which produce other kinds of grain. In fine, the land which is elsewhere
employed in raising cattle serves immediately for the subsistence of
man; and the labour which in other places is performed by cattle is
there performed by men; so that the culture of the soil becomes to man
an immense manufacture.

15. Of the Number of Inhabitants with relation to the Arts. When there


is an agrarian law, and the lands are equally divided, the country may
be extremely well peopled, though there are but few arts; because every
citizen receives from the cultivation of his land whatever is necessary
for his subsistence, and all the citizens together consume all the
fruits of the earth. Thus it was in some republics.

In our present situation, in which lands are unequally distributed, they


produce much more than those who cultivate them are able to consume; if
the arts, therefore, should be neglected, and nothing minded but
agriculture, the country could not be peopled. Those who cultivate, or
employ others to cultivate, having corn to spare, nothing would engage
them to work the following year; the fruits of the earth would not be
consumed by the indolent; for these would have nothing with which they
could purchase them. It is necessary, then, that the arts should be
established, in order that the produce of the land may be consumed by
the labourer and the artificer. In a word, it is now proper that many
should cultivate much more than is necessary for their own use. For this
purpose they must have a desire of enjoying superfluities; and these
they can receive only from the artificer.

The machines designed to abridge art are not always useful. If a piece


of workmanship is of a moderate price, such as is equally agreeable to
the maker and the buyer, those machines which would render the
manufacture more simple, or, in other words, diminish the number of
workmen, would be pernicious. And if water-mills were not everywhere
established, I should not have believed them so useful as is pretended,
because they have deprived an infinite multitude of their employment, a
vast number of persons of the use of water, and great part of the land
of its fertility.

16. The Concern of the Legislator in the Propagation of the Species.


Regulations on the number of citizens depend greatly on circumstances.
There are countries in which nature does all; the legislator then has
nothing to do. What need is there of inducing men by laws to propagation
when a fruitful climate yields a sufficient number of inhabitants?
Sometimes the climate is more favourable than the soil; the people
multiply, and are destroyed by famine: this is the case of China. Hence
a father sells his daughters and exposes his children. In Tonquin,[19]
the same causes produce the same effects; so we need not, like the
Arabian travellers mentioned by Renaudot, search for the origin of this
in their sentiments on the metempsychosis.[20]

For the same reason, the religion of the Isle of Formosa does not suffer


the women to bring their children into the world till they are
thirty-five years of age:[21] the priestess, before this age, by
bruising the belly procures abortion.

17. Of Greece and the Number of its Inhabitants. That effect which in


certain countries of the East springs from physical causes was produced
in Greece by the nature of the government. The Greeks were a great
nation, composed of cities, each of which had a distinct government and
separate laws. They had no more the spirit of conquest and ambition than
those of Switzerland, Holland, and Germany have at this day. In every
republic the legislator had in view the happiness of the citizens at
home, and their power abroad, lest it should prove inferior to that of
the neighbouring cities.[22] Thus, with the enjoyment of a small
territory and great happiness, it was easy for the number of the
citizens to increase to such a degree as to become burdensome. This
obliged them incessantly to send out colonies,[23] and, as the Swiss do
now, to let their men out to war. Nothing was neglected that could
hinder the too great multiplication of children.

They had among them republics, whose constitution was very remarkable.


The nations they had subdued were obliged to provide subsistence for the
citizens. The Lacedæmonians were fed by the Helotes, the Cretans by the
Periecians, and the Thessalians by the Penestes. They were obliged to
have only a certain number of freemen, that their slaves might be able
to furnish them with subsistence. It is a received maxim in our days,
that it is necessary to limit the number of regular troops: now the
Lacedæmonians were an army maintained by the peasants: it was proper,
therefore, that this army should be limited; without this the freemen,
who had all the advantages of society, would increase beyond number, and
the labourers be overloaded.

The politics of the Greeks were particularly employed in regulating the


number of citizens. Plato fixes them at five thousand and forty,[24] and
he would have them stop or encourage propagation, as was most
convenient, by honours, shame, and the advice of the old men; he would
even regulate the number of marriages in such a manner that the republic
might be recruited without being overcharged.[25]

If the laws of a country, says Aristotle, forbid the exposing of


children, the number of those brought forth ought to be limited.[26] If
they have more than the number prescribed by law, he advises to make the
women miscarry before the foetus be formed.[27]

The same author mentions the infamous means made use of by the Cretans


to prevent their having too great a number of children -- a proceeding
too indecent to repeat.

There are places, says Aristotle again[28] where the laws give the


privilege of being citizens to strangers, or to bastards, or to those
whose mothers only are citizens; but as soon as they have a sufficient
number of people this privilege ceases. The savages of Canada burn their
prisoners; but when they have empty cottages to give them, they receive
them into their nation.

Sir William Petty, in his calculations, supposes that a man in England


is worth what he would sell for at Algiers.[29] This can be true only
with respect to England. There are countries where a man is worth
nothing; there are others where he is worth less than nothing.

18. Of the State and Number of People before the Romans. Italy, Sicily,


Asia Minor, Gaul, and Germany were nearly in the same state as Greece;
full of small nations that abounded with inhabitants, they had no need
of laws to increase their number.

19. Of the Depopulation of the Globe. All these little republics were


swallowed up in a large one, and the globe insensibly became
depopulated: in order to be convinced of this, we need only consider the
state of Italy and Greece before and after the victories of the Romans.

"You will ask me," says Livy,[30] "where the Volsci could find soldiers


to support the war, after having been so often defeated. There must have
been formerly an infinite number of people in those countries, which at
present would be little better than a desert, were it not for a few
soldiers and Roman slaves."

"The Oracles have ceased," says Plutarch, "because the places where they


spoke are destroyed. At present we can scarcely find in Greece three
thousand men fit to bear arms."

"I shall not describe," says Strabo,[31] "Epirus and the adjacent


places, because these countries are entirely deserted. This
depopulation, which began long ago, still continues; so that the Roman
soldiers encamp in the houses they have abandoned." We find the cause of
this in Polybius, who says that Paulus æmilius, after his victory,
destroyed seventy cities of Epirus, and carried away a hundred and fifty
thousand slaves.

20. That the Romans were under the Necessity of making Laws to encourage


the Propagation of the Species. The Romans, by destroying others, were
themselves destroyed: incessantly in action, in the heat of battle, and
in the most violent attempts, they wore out like a weapon kept
constantly in use.

I shall not here speak of the attention with which they applied


themselves to procure citizens in the room of those they lost,[32] of
the associations they entered into, the privileges they bestowed, and of
that immense nursery of citizens, their slaves. I shall mention what
they did to recruit the number, not of their citizens, but of their men;
and as these were the people in the world who knew best how to adapt
their laws to their projects, an examination of their conduct in this
respect cannot be a matter of indifference.

21. Of the Laws of the Romans relating to the Propagation of the


Species. The ancient laws of Rome endeavoured greatly to incite the
citizens to marriage. The senate and the people made frequent
regulations on this subject, as Augustus says in his speech related by
Dio.[33]

Dionysius Halicarnassus[34] cannot believe that after the death of three


hundred and five of the Fabii, exterminated by the Veientes, there
remained no more of this family than one single child; because the
ancient law, which obliged every citizen to marry and to educate all his
children, was still in force.[35]

Independently of the laws, the censors had a particular eye upon


marriages, and according to the exigencies of the republic engaged them
to it by shame and by punishments.[36]

The corruption of manners that began to take place contributed vastly to


disgust the citizens with marriage, which was painful to those who had
no taste for the pleasures of innocence. This is the purport of that
speech which Metellus Numidicus, when he was censor, made to the
people:[37] "If it were possible for us to do without wives, we should
deliver ourselves from this evil: but as nature has ordained that we
cannot live very happily with them, nor subsist without them, we ought
to have more regard to our own preservation than to transient
gratifications."

The corruption of manners destroyed the censorship, which was itself


established to destroy the corruption of manners: for when this
depravation became general, the censor lost his power.[38]

Civil discords, triumvirates, and proscriptions weakened Rome more than


any war she had hitherto engaged in. They left but few citizens,[39] and
the greatest part of them unmarried. To remedy this last evil, Cæsar and
Augustus re-established the censorship, and would even be censors
themselves.[40] Cæsar gave rewards to those who had many children.[41]
All women under forty-five years of age who had neither husband nor
children were forbidden to wear jewels or to ride in litters;[42] an
excellent method thus to attack celibacy by the power of vanity. The
laws of Augustus were more pressing;[43] he imposed new penalties on
such as were not married,[44] and increased the rewards both of those
who were married and of those who had children. Tacitus calls these
Julian laws;[45] to all appearance they were founded on the ancient
regulations made by the senate, the people, and the censors.

The law of Augustus met with innumerable obstacles, and thirty-four


years after it had been made the Roman knights insisted on its being
abolished.[46] He placed on one side such as were married, and on the
other side those who were not: these last appeared by far the greatest
number; upon which the citizens were astonished and confounded.
Augustus, with the gravity of the ancient censors, addressed them in
this manner:[47]

"While sickness and war snatch away so many citizens, what must become


of this state if marriages are no longer contracted? The city does not
consist of houses, of porticos, of public places, but of inhabitants.
You do not see men like those mentioned in Fable starting out of the
earth to take care of your affairs. Your celibacy is not owing to the
desire of living alone; for none of you eats or sleeps by himself. You
only seek to enjoy your irregularities undisturbed. Do you cite the
example of the Vestal Virgins? If you preserve not the laws of chastity,
you ought to be punished like them. You are equally bad citizens,
whether your example has an influence on the rest of the world, or
whether it be disregarded. My only view is the perpetuity of the
republic. I have increased the penalties of those who have disobeyed;
and with respect to rewards, they are such as I do not know whether
virtue has ever received greater. For less will a thousand men expose
life itself; and yet will not these engage you to take a wife and
provide for children?"

He made a law, which was called after his name, Julia and Papia Poppæa,


from the names of the consuls for part of that year.[48] The greatness
of the evil appeared even in their being elected: Dio tells us that they
were not married, and that they had no children.[49]

This decree of Augustus was properly a code of laws, and a systematic


body of all the regulations that could be made on this subject. The
Julian laws were incorporated in it, and received greater strength.[50]
It was so extensive in its use, and had an influence on so many things,
that it formed the finest part of the civil law of the Romans.

We find parts of it dispersed in the precious fragments of Ulpian,[51]


in the Laws of the Digest, collected from authors who wrote on the
Papian laws, in the historians and others who have cited them, in the
Theodosian code which abolished them, and in the works of the fathers,
who have censured them, without doubt from a laudable zeal for the
things of the other life, but with very little knowledge of the affairs
of this.

These laws had many heads,[52] of which we know thirty-five. But to


return to my subject as speedily as possible, I shall begin with that
head which Aulus Gellius informs us was the seventh, and relates to the
honours and rewards granted by that law.[53]

The Romans, who for the most part sprang from the cities of the Latins,


which were Lacedæmonian colonies,[54] and had received a part of their
laws even from those cities,[55] had, like the Lacedæmonians, such
veneration for old age as to give it all honour and precedence. When the
republic wanted citizens, she granted to marriage and to the number of
children the privileges which had been given to age.[56] She granted
some to marriage alone, independent of the children which might spring
from it: this was called the right of husbands. She gave others to those
who had any children, and larger still to those who had three children.
These three things must not be confounded. These last had those
privileges which married men constantly enjoyed; as, for example, a
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