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

part of virtue; where a blind passion triumphed with a boundless

Download 3.7 Mb.
Size3.7 Mb.
1   ...   4   5   6   7   8   9   10   11   ...   62

part of virtue; where a blind passion triumphed with a boundless
insolence, and love appeared only in a shape which we dare not mention,
while marriage was considered as nothing more than simple
friendship;[18] such was the virtue, simplicity, and chastity of women
in those cities, that in this respect hardly any people were ever known
to have had a better and wiser polity.[19]

10. Of the domestic Tribunal among the Romans. The Romans had no

particular magistrates, like the Greeks, to inspect the conduct of
women. The censors had not an eye over them, as over the rest of the

The institution of the domestic tribunal[20] supplied the magistracy

established among the Greeks.[21]

The husband summoned the wife's relatives, and tried her in their

presence.[22] This tribunal preserved the manners of the republic; and
at the same time those very manners maintained this tribunal. For it
decided not only in respect to the violation of the laws, but also of
manners: now, in order to judge of the violation of the latter, manners
are requisite. The penalties inflicted by this tribunal ought to be, and
actually were, arbitrary: for all that relates to manners, and to the
rules of modesty, can hardly be comprised under one code of laws. It is
easy indeed to regulate by laws what we owe to others; but it is very
difficult of comprise all we owe to ourselves.

The domestic tribunal inspected the general conduct of women: but there

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

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

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

The establishing of perpetual questions, that is, the division of

jurisdiction among the prætors, and the custom gradually introduced of
the prætors determining all causes themselves,[24] weakened the use of
the domestic tribunal. This appears by the surprise of historians, who
look upon the decisions which Tiberius caused to be given by this
tribunal as singular facts, and as a renewal of the ancient course of

The establishment of monarchy and the change of manners put likewise an

end to public accusations. It might be apprehended lest a dishonest man,
affronted at the slight shown him by a woman, vexed at her refusal, and
irritated even by her virtue, should form a design to destroy her. The
Julian law ordained that a woman should not be accused of adultery till
after her husband had been charged with favouring her irregularities;
which limited greatly, and annihilated, as it were, this sort of
accusation.[25] Sextus Quintus seemed to have been desirous of reviving
the public accusations.[26] But there needs very little reflection to
see that this law would be more improper in such a monarchy as his than
in any other.

12. Of the Guardianship of Women among the Romans. The Roman laws

subjected women to a perpetual guardianship, except they were under
cover and subject to the authority of a husband.[27] This guardianship
was given to the nearest of the male relatives; and by a vulgar
expression[28] it appears they were very much confined. This was proper
for a republic, but not at all necessary in a monarchy.[29]

That the women among the ancient Germans were likewise under a perpetual

tutelage appears from the different codes of the Laws of the
Barbarians.[30] This custom was communicated to the monarchies founded
by those people; but was not of long duration.

13. Of the Punishments decreed by the Emperors against the Incontinence

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

The whole political system in respect to women received a change in the

monarchical state. The question was no longer to oblige them to a
regularity of manners, but to punish their crimes. That new laws were
made to punish their crimes was owing to their leaving those
transgressions unpunished which were not of so criminal a nature.

The frightful dissolution of manners obliged indeed the emperors to

enact laws in order to put some stop to lewdness; but it was not their
intention to establish a general reformation. Of this the positive facts
related by historians are a much stronger proof than all these laws can
be of the contrary. We may see in Dio the conduct of Augustus on this
occasion, and in what manner he eluded, both in his prætorian and
censorian office, the repeated instances that were made him[31] for that

It is true that we find in historians very rigid sentences, passed in

the reigns of Augustus and Tiberius, against the lewdness of some Roman
ladies: but by showing us the spirit of those reigns, at the same time
they demonstrate the spirit of those decisions.

The principal design of Augustus and Tiberius was to punish the

dissoluteness of their relatives. It was not their immorality they
punished, but a particular crime of impiety or high treason[32] of their
own invention, which served to promote a respect for majesty, and
answered their private revenge. Hence it is that the Roman historians
inveigh so bitterly against this tyranny.

The penalty of the Julian law was small.[33] The emperors insisted that

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

One of the most tyrannical proceedings of Tiberius[34] was the abuse he

made of the ancient laws. When he wanted to extend the punishment of a
Roman lady beyond that inflicted by the Julian law, he revived the
domestic tribunal.[35]

These regulations in respect to women concerned only senatorial

families, not the common people. Pretences were wanted to accuse the
great, which were constantly furnished by the dissolute behaviour of the

In fine, what I have above observed, namely, that regularity of manners

is not the principle of monarchy, was never better verified than under
those first emperors; and whoever doubts it need only read Tacitus,
Suetonius, Juvenal, or Martial.

14. Sumptuary Laws among the Romans. We have spoken of public

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

At Rome, besides the general institutions, the censors prevailed on the

magistrates to enact several particular laws for maintaining the
frugality of women. This was the design of the Fannian, Licinian, and
Oppian laws. We may see in Livy[36] the great ferment the senate was in
when the women insisted upon the revocation of the Oppian law. The
abrogation of this law is fixed upon by Valerius Maximus as the period
whence we may date the luxury of the Romans.

15. Of Dowries and Nuptial Advantages in different Constitutions.

Dowries ought to be considerable in monarchies, in order to enable
husbands to support their rank and the established luxury. In republics,
where luxury should never reign,[37] they ought to be moderate; but
there should be hardly any at all in despotic governments, where women
are in some measure slaves.

The community of goods introduced by the French laws between man and

wife is extremely well adapted to a monarchical government; because the
women are thereby interested in domestic affairs, and compelled, as it
were, to take care of their family. It is less so in a republic, where
women are possessed of more virtue. But it would be quite absurd in
despotic governments, where the women themselves generally constitute a
Directory: mrhomepage.nsf

Share with your friends:
1   ...   4   5   6   7   8   9   10   11   ...   62

The database is protected by copyright © 2020
send message

    Main page