英文版論法的精神-10

9. Of the Condition or State of Women in different Governments. In monarchies women are subject to very little restraint, because as the distinction of ranks calls them to court, there they assume a spirit of liberty, which is almost the only one tolerated in that place. Each courtier avails himself of their charms and passions, in order to advance his fortune: and as their weakness admits not of pride, but of vanity, luxury constantly attends them.

In despotic governments women do not introduce, but are themselves an object of, luxury. They must be in a state of the most rigorous servitude. Every one follows the spirit of the government, and adopts in his own family the customs he sees elsewhere established. As the laws are very severe and executed on the spot, they are afraid lest the liberty of women should expose them to danger. Their quarrels, indiscretions, repugnancies, jealousies, piques, and that art, in fine, which little souls have of interesting great ones, would be attended there with fatal consequences.

Besides, as princes in those countries make a sport of human nature, they allow themselves a multitude of women; and a thousand considerations oblige them to keep those women in close confinement.

In republics women are free by the laws and restrained by manners; luxury is banished thence, and with it corruption and vice.

In the cities of Greece, where they were not under the restraint of a religion which declares that even amongst men regularity of manners is a 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 republic.

The institution of the domestic tribunal20 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 republic.23

The establishing of perpetual questions, that is, the division of jurisdiction among the pr?tors, and the custom gradually introduced of the pr?tors 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 pleading.

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 expression28 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 pr?torian and censorian office, the repeated instances that were made him31 for that purpose.

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 treason32 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 Tiberius34 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 ladies.

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 Livy36 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 part of the master's property.

As women are in a state that furnishes sufficient inducements to marriage, the advantages which the law gives them over the husband's property are of no service to society. But in a republic they would be extremely prejudicial, because riches are productive of luxury. In despotic governments the profits accruing from marriage ought to be mere subsistence, and no more.

16. An excellent Custom of the Samnites. The Samnites had a custom which in so small a republic, and especially in their situation, must have been productive of admirable effects. The young people were all convened in one place, and their conduct was examined. He that was declared the best of the whole assembly had leave given him to take which girl he pleased for his wife; the second best chose after him; and so on.38 Admirable institution! The only recommendation that young men could have on this occasion was their virtue and the services done their country. He who had the greatest share of these endowments chose which girl he liked out of the whole nation. Love, beauty, chastity, virtue, birth, and even wealth itself, were all, in some measure, the dowry of virtue. A nobler and grander recompense, less chargeable to a petty state, and more capable of influencing both sexes, could scarcely be imagined.

The Samnites were descended from the Laced?monians; and Plato, whose institutes are only an improvement of those of Lycurgus, enacted nearly the same law.39

17. Of Female Administration. It is contrary to reason and nature that women should reign in families, as was customary among the Egyptians; but not that they should govern an empire. In the former case the state of their natural weakness does not permit them to have the pre-eminence; in the latter their very weakness generally gives them more lenity and moderation, qualifications fitter for a good administration than roughness and severity.

In the Indies they are very easy under a female government; and it is settled that if the male issue be not of a mother of the same blood, the females born of a mother of the blood-royal must succeed.40 And then they have a certain number of persons who assist them to bear the weight of the government. According to Mr. Smith,41 they are very easy in Africa under female administration. If to this we add the example of England and Russia, we shall find that they succeed alike both in moderate and despotic governments.