The Spirit of Laws (1758)/Book XVI

by Montesquieu

BOOK XVI.
How the Laws of domestic Slavery have a Relation to the Nature of the Climate.

CHAP. I.
Of domestic Servitude.

Book XVI.
Chap. 1, & 2.SLAVES are established for the family; but they are not a part of it. Thus I distinguish their servitude from that which the women in some countries suffer, and which I shall properly call domestic servitude.

CHAP. II.
That in the Countries of the South there is a natural Inequality between the two Sexes.

WOMEN, in hot climates, are^[1] marriageable at eight, nine, or ten years of age; thus, in those countries, infancy and marriage almost always go together. They are old at twenty: Their reason therefore never accompanies their beauty. When beauty demands the empire, the want of reason forbids the claim; when reason is obtained, beauty Book XVI.
Chap. 2.is no more. These women ought then to be in a state of dependance; for reason cannot procure in old age, that empire, which even youth and beauty could not give. It is therefore extremely natural that in these places, a man, when no law opposes it, should leave one wife to take another, and that polygamy should be introduced.

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

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

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

Thus the law which permits only one wife, is physically conformable to the climate of Europe, and not to that of Asia. This is the reason why Mahometanism was established with such facility Book XVI.
Chap. 3, & 4.in Asia, and so difficultly extended in Europe; why Christianity is maintained in Europe, and has been destroyed in Asia; and in fine, why the Mahometans have made such progress in China, and the Christians so little.

Some particular reasons induced Valentinian^[2] to permit polygamy in the empire. That law, so improper for our climates, was abrogated^[3] by Theodosius, Arcadius, and Honorius.

CHAP. III.
That a Plurality of Wives depends greatly on the Means of supporting them.

THOUGH in countries where polygamy is once established, the number of wives is principally determined by the riches of the husband; yet it cannot be said that riches established polygamy in these states; since poverty may produce the same effect, as I shall prove when I come to speak of the savages.

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

CHAP. IV.
That the Law of Polygamy is an Affair that depends on Calculation.

ACCORDING to the calculations made in several parts of Europe, there are here Book XVI.
Chap. 4.born more boys than girls^[5]; on the contrary, by the accounts we have of Asia, there are there born more^[6] girls than boys. The law which in Europe allows only one wife, and that in Asia which permits many, have therefore a certain relation to the climate.

In the cold climates of Asia, there are born as in Europe, more males than females; and from hence, say the^[7] Lamas, is derived the reason of that law, which amongst them, permits of a woman to have^[8] many husbands.

But it is difficult for me to believe that there are many countries, where the disproportion can be great enough for any exigency to justify the introducing either the law in favour of many wives, or that of many husbands. This would only imply, that a majority of women, or even a majority of men, is more conformable to nature in certain countries than in others.

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

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

CHAP. V.
The Reason of a Law of Malabar.

Book XVI.
Chap. 5, & 6.IN the tribe of the^[10] Naires, on the coast of Malabar, the men can have only one wife, while a woman, on the contrary, may have many husbands. The origin of this custom is not I believe difficult to discover. The Naires are the tribe of nobles, who are the soldiers of all those nations. In Europe, soldiers are forbid to marry: in Malabar, where the climate requires greater indulgence, they are satisfied with rendering marriage as little burthensome to them as possible; they give a wife amongst many men, which consequently diminishes the attachment to a family, and the cares of housekeeping, and leaves them in the free possession of a military spirit.

CHAP. VI.
Of Polygamy considered in itself.

WITH regard to polygamy in general, independently of the circumstances which may render it tolerable, it is not of the lead service to mankind, nor to either of the two sexes, whether it be that which abuses, or that which is abused. Neither is it of service to the children; for one of its greatest inconveniencies is, that the father and mother cannot have the same affection for their Book XVI.
Chap. 6, & 7.offspring; a father cannot love twenty children with the same tenderness as a mother can love two. It is much worse when a wife has many husbands; for then paternal love is only held by this opinion, that a father may believe, if he will, or that others may believe, that certain children belong to him.

May I not say that a plurality of wives leads to that passion 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 they found not a single woman; they tell us that at^[11] Algiers, in the greatest part of their seraglios, they have none at all.

Besides, the possession of many wives does not always prevent their entertaining desires^[12] for those of others: it is with lust as with avarice, whose thirst increases by the acquisition of treasures.

In the reign of Justinian, many philosophers, displeased with the constraint of Christianity, retired into Persia. What struck them the most, says Agathias^[13], was, that polygamy was permitted amonogst men who did not even abstain from adultery.

CHAP. VII.
Of an Equality of Treatment in Case of many Wives.

FROM the law which permitted a plurality of wives followed that of an equal behaviour Book XVI.
Chap. 7, & 8.to each. Mahomet, who allowed of four, would have every thing, as provisions, dress, and conjugal duty, equally divided between them. This law is also in force in the Maldiyian isles^[14] where they are at liberty to marry three wives.

The law of Moses^[15] even declares, that if any one has married his son to a slave, and this son should marry afterwards a free woman, he shall diminish nothing of her food, her raiment or respect. They might give more to the new wife; but the first was not to have less than she had before.

CHAP. VIII.
Of the Separation of Women from Men.

THE prodigious number of wives possessed by those who live in rich and voluptuous nations, 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 strength 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 classic 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].

CHAP. IX.
Of the Connexion between domestic and political Government.

Book XVI.
Chap. 9.IN a republic the condition of citizens is limited, equal, mild, and agreeable; every thing 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 always 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 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, Book XVI.
Chap. 9, & 10.the indiscretions, the tastes and disgusts of our women, attended by their passions 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 every where suspected, every where enemies; the state would be overturned, and the kingdom overflowed with rivers of blood.

CHAP. X.
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 center; and the greater the diversity of interests, the more necessary it is 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 houshold in the same family. From hence each derives all that relates to the practice of morality, modesty, chastity, reserve, silence, peace, dependance, 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 intire attachment to her family.

Book XVI.
Chap. 10.Women have naturally so many duties to fulfil, duties which are peculiarly theirs; that they cannot be enough excluded from every thing capable of inspiring other ideas; from every thing that goes by the name of amusements; and from every thing 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. From hence it proceeds, that in the empires of Turky, Persia, of the Mogul, China, and Japan, the manners of their wives are admirable.

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

There are none there but the wretches who pillage, and the wretches who are 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; from 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 strength, Book XVI.
Chap. 10, & 11.and modesty a weakness, that exceeds all comprehension. At Patan^[17] the wanton desires^[18] of the women are so outragious, that the men are obliged to make use of a certain apparel to shelter them from their designs. In these countries, the two sexes lose even those laws which properly belong to each.

CHAP. XI.
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 black villanies, the poisonings, the assassinations, 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 Turky, Persia, Mogulstan, China, and Japan, 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 passions are calm; and where love rules over Book XVI.
Chap. 11, & 12.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 a communication between each other, where that sex which has most charms seems to imbellish society, and where wives reserving themselves for the pleasures of one, contribute to the amusement of all.

CHAP. XII.
Of natural Modesty.

ALL nations arc 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. She has given to individuals a long extent of years in which they are to seek their own preservation; but to perpetuate themselves, she has given only a moment.

It is then far from being true, that to be incontinent is to follow the laws of nature; since this is, on the contrary, a violation of these laws, which can be followed only by 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 sexes, and that of intelligent beings; it belongs to the legislature to make civil laws, to oppose the nature of the climate, and to re-establish the primitive laws.

CHAP. XIII.
Of Jealousy.

Book XVI.
Chap. 13, & 14.WITH respect to nations we ought to distinguish between the passion of jealousy, and a jealousy arising from customs, manners, and laws. The one is a hot raging fever; the other, cold, but sometimes terrible, and may be joined with indifference and contempt.

The one, which is an abuse of love, derives its birth 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^[19].

It is almost always the effect of the physical power of the climate; and at the same time, the remedy of this physical power.

CHAP. XIV.
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 entrust with all their keys, and the management of all the houshold affairs. "In Persia, says Sir John Chardin, they give wives their cloaths, as we do to children." Thus that care which seems so well to become them, that care which every where else is the first of their cares, does not at all concern them.

CHAP. XV.
Of Divorce and Repudiation.

Book XVI.
Chap. 15.THERE is this difference between a divorce and a repudiation, that a divorce is made by a mutual consent occasioned by a mutual antipathy; while a repudiation is made, 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 giving it to women. A husband is the master of the house; he has a thousand ways of keeping 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 new 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 sex, 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 give it to women. Nay, in climates where women live in domestic slavery, one would think that the law ought to permit women the right of repudiation, and to husbands only that of divorce.

Book XVI.
Chap. 15.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 because of the barrenness of the woman, ought never to take place but where there is only one wife; when there are many, this is of no importance to the husband.

A law of the Maldivians^[20] permitted them to take again a wife whom they had repudiated. A law O f Mexico^[21] forbad their being reunited under pain of death. The law of Mexico was more rational than that of the Maldivians: at the time even s 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 some of the passions; 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 favourable to their children.

CHAP. XVI.
Of Repudiation and Divorce amongst the Romans.

Book XVI.
Chap. 16.ROMULUS permitted a husband to repudiate his wife, if she had committed adultery, prepared poison, or procured false keys. He did not give to women the right of repudiating their husbands. Plutarch^[22] calls this, a law extremely severe.

As the Athenian law gave^[23] 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 institution was one of those which the deputies of Rome brought from Athens, and which were inferred into the laws of the twelve tables.

Cicero^[24] says that the reasons of repudiation sprung from the law of the twelve tables. 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.

Book XVI.
Chap. 16.The law did not require that they should lay open the^[25] causes of divorce. 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 Halicarnassensis^[26], Valerius Maximus^[27], and Aulus Gellius^[28], does not appear to me to have the least decree 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 no body, for the space of five hundred and twenty years, ever made^[29] 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 give such right to a whole nation, and yet for no body to make use of it. Coriolanus setting out on his exile, advised his^[30] 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 Book XVI.
Chap. 16.of Rome to have less than they? and how came the laws incessntly to corrupt their manners?

All that is surprizing in the fact in question, will soon disappear, only by comparing two passages in Plutarch. The regal law^[31] permitted a husband to repudiate in the three cases already mentioned, and "it enjoined, says Plutarch^[32], 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. No body had done this before Carvilius Ruga^[33]; who, as Plutarch says in another place^[34], "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 the 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 for 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 Book XVI.
Chap. 16.Carvilius had taken an oath to the censors, that because of the sterility of his wife, he would repudiate her to give children to the republic. This Was a yoak which the people saw the censors were going to put upon them. I shall discover in the prosecution of this work^[35], the repugnance which they always felt for regulations of the like kind. We should explain the laws by the laws, and history by history.

 

1. Mahomet married Cadhisia at five, and took her to his bed at eight ye;irs 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 Tossis, p. 61.
2. See Jor... and the eccele...
3. See law 7. of the Code de Judersi Caeleos, and Nov. 18. c. 5.
4. In Ceylan 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 182072 males and 223573 females.
7. Du Halde's Hist. of China, Vol. 4.
8. Albuzeit-el-hassen, one of the two Mahometan Arabs, who, in the ninth century, went into India and China, thought this custom a prostitution. And indeed nothing could be more contrary to the ideas of a Mahometan.
9. Collection of voyages for the establishment of an India company. Vol. 1.
10. See Francis Pirnrd, c. 27. Edifying Letters, 3d and l0th 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 ot the Bramins never would marry many husbands.
11. Hist. of Aleiers by Logier de Tassis.
12. This is the reason why women in the East are so carefully concealed.
13. Life and actions of Justinian, p. 403.
14. See Pirard, c. 12.
15. Exod. xxi. 10, 11.
16. It is an admirable touch stone, to find by one's self a treasure whose master is known, or a beautiful woman in a distant apartment, or to hear the voice of an enemy who must perish without our assistance." Translation of a Chinese piece of morality, which may be seen in Du Halde, Vol. 3. p, 151.
17. Collectionof voyages for the establishment of and India company, Vol. 2, 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, c. 12. 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. Mahomet desired his followers to watch their wires; a certain Iman when he was dying said the same thing; and Confucius preached the same doctrine.
20. They took them again preferably to any other, because, in this case, there was less expence, Pirard's Travels.
21. Hist. of the conquest of Mexico by Solis, p. 499.
22. Life of Romulus.
23. This was a law of Solon.
24. Mimam res suas sibi habere jussit, ex duodecim tabulis causam addidit. Philip, 2d.
25. Justinian altered this. Nov. 117. c. 10.
26. Lib. 2.
27. Lib. 2. c. 4.
28. Lib. 4. c. 3.
29. According to Dionys. Halic. and Valerius Maximus, and five hundred and twenty three according to Aulus Gellius. So also they did not agree in placing this under the same consuls.
30. See the speech of Veturia in Dionys, Halie. lib.
31. Plutarch, life of Romulus.
32. Ibid.
33. Indeed sterility is not a cause mentioned by the law of Romuius; but to all appearance, he was not subject to a confiscation of his effects, since he followed the orders of the censors.
34. In his comparison between Theseus and Romulus.
35. Book 23. c. 21.