The Spirit Of Laws Part 20
Constantine had not take away the decimal laws which granted a greater extent to the donations between man and wife, in proportion to the number of their children. Theodosius, the younger, abrogated even these laws.105 Justinian declared all those marriages valid which had been prohibited by the Papian laws.106 These laws require people to marry again: Justinian granted privileges to those who did not marry again.107 By the ancient inst.i.tutions, the natural right which everyone had to marry and beget children could not be taken away. Thus when they received a legacy,108 on condition of not marrying, or when a patron made his freed-man swear109 that he would neither marry nor beget children, the Papian law annulled both the condition and the oath.110 The clauses on continuing in widowhood established among is contradict the ancient law; and descend from the const.i.tutions of the emperors, founded on ideas of perfection.
There is no law that contains an express abrogation of the privileges and honors which the Romans had granted to marriages, and to a number of children. But where celibacy had the pre-eminence, marriage could not be held in honor; and since they could oblige the officers of the public revenue to renounce so many advantages by the abolition of the penalties, it is easy to perceive that with yet greater ease they might put a stop to the rewards.
The same spiritual reason which had permitted celibacy soon imposed it even as necessary. G.o.d forbid that I should here speak against celibacy as adopted by religion; but who can be silent, when it is built on libertinism: when the two s.e.xes, corrupting each other even by the natural sensations themselves, fly from a union which ought to make them better, to live in that which always renders them worse?
It is a rule drawn from nature, that the more the number of marriages is diminished, the more corrupt are those who have entered into that state; the fewer married men, the less fidelity is there in marriage; as when there are more thieves, more thefts are committed.
22.-Of the Exposing of Children The Roman policy was very good in respect to the exposing of children. Romulus, says Dionysius Halicarna.s.sus,111 laid the citizens under an obligation to educate all their male children, and the eldest of their daughters. If the infants were deformed and monstrous, he permitted the exposing them, after having shown them to five of their nearest neighbors.
Romulus did not suffer them to kill any infants under three years old:112 by which means he reconciled the law that gave to fathers the right over their children of life and death with that which prohibited their being exposed.
We find also in Dionysius Halicarna.s.sus 113 that the law which obliged the citizens to marry, and to educate all their children, was in force in the 277th year of Rome; we see that custom had restrained the law of Romulus which permitted them to expose their younger daughters.
We have no knowledge of what the law of the Twelve Tables (made in the year of Rome 301) appointed with respect to the exposing of children, except from a pa.s.sage of Cicero,114 who, speaking of the office of tribune of the people, says that soon after its birth, like the monstrous infant of the law of the Twelve Tables, it was stifled; the infant that was not monstrous was therefore preserved, and the law of the Twelve Tables made no alteration in the preceding inst.i.tutions.
"The Germans," says Tacitus,115 "never expose their children; among them the best manners have more force than in other places the best laws." The Romans had therefore laws against this custom, and yet they did not follow them. We find no Roman law that permitted the exposing of children;116 this was, without doubt, an abuse introduced towards the decline of the republic, when luxury robbed them of their freedom, when wealth divided was called poverty, when the father believed that all was lost which he gave to his family, and when this family was distinct from his property.
23.-Of the State of the World after the Destruction of the Romans The regulations made by the Romans to increase the number of their citizens had their effect while the republic in the full vigor of her const.i.tution had nothing to repair but the losses she sustained by her courage, by her intrepidity, by her firmness, her love of glory and of virtue. But soon the wisest laws could not re-establish what a dying republic, what a general anarchy, what a military government, what a rigid empire, what a proud despotic power, what a feeble monarchy, what a stupid, weak, and superst.i.tious court had successively pulled down. It might, indeed, be said that they conquered the world only to weaken it, and to deliver it up defenceless to barbarians. The Gothic nations, the Getes, the Saracens and Tartars by turns hara.s.sed them; and soon the barbarians had none to destroy but barbarians. Thus, in fabulous times, after the inundations and the deluge, there arose out of the earth armed men, who exterminated one another.
24.-The Changes which happened in Europe with regard to the Number of the Inhabitants In the state Europe was in one would not imagine it possible for it to be retrieved, especially when under Charlemagne it formed only one vast empire. But by the nature of government at that time it became divided into an infinite number of petty sovereignties, and as the lord or sovereign, who resided in his village or city, was neither great, rich, powerful, nor even safe but by the number of his subjects, everyone employed himself with a singular attention to make his little country flourish. This succeeded in such a manner that notwithstanding the irregularities of government, the want of that knowledge which has since been acquired in commerce, and the numerous wars and disorders incessantly arising, most countries of Europe were better peopled in those days than they are even at present.
I have not time to treat fully of this subject, but I shall cite the prodigious armies engaged in the crusades, composed of men of all countries. Puffendorf says that in the reign of Charles IX there were in France twenty millions of men.117 It is the perpetual reunion of many little states that has produced this diminution. Formerly, every village of France was a capital; there is at present only one large one. Every part of the state was a centre of power; at present all has a relation to one centre, and this centre is in some measure the state itself.
25.-The same Subject continued Europe, it is true, has for these two ages past greatly increased its navigation; this has both procured and deprived it of inhabitants. Holland sends every year a great number of mariners to the Indies, of whom not above two-thirds return; the rest either perish or settle in the Indies. The same thing must happen to every other nation concerned in that trade.
We must not judge of Europe as of a particular state engaged alone in an extensive navigation. This state would increase in people, because all the neighboring nations would endeavor to have a share in this commerce, and mariners would arrive from all parts. Europe, separated from the rest of the world by religion,118 by vast seas and deserts, cannot be repaired in this manner.
26.-Consequences From all this we may conclude that Europe is at present in a condition to require laws to be made in favor of the propagation of the human species. The politics of the ancient Greeks incessantly complain of the inconveniences attending a republic, from the excessive number of citizens; but the politics of this age call upon us to take proper means to increase ours.
27.-Of the Law made in France to encourage the Propagation of the Species Louis XIV appointed particular pensions to those who had ten children, and much larger to such as had twelve.119 But it is not sufficient to reward prodigies. In order to communicate a general spirit, which leads to the propagation of the species, it is necessary for us to establish, like the Romans, general rewards, or general penalties.
28.-By what Means we may remedy a Depopulation When a state is depopulated by particular accidents, by wars, pestilence, or famine, there are still resources left. The men who remain may preserve the spirit of industry; they may seek to repair their misfortunes, and calamity itself may make them become more industrious. This evil is almost incurable when the depopulation is prepared beforehand by interior vice and a bad government. When this is the case, men perish with an insensible and habitual disease; born in misery and weakness, in violence or under the influence of a wicked administration, they see themselves destroyed, and frequently without perceiving the cause of their destruction. Of this we have a melancholy proof in the countries desolated by despotic power, or by the excessive advantages of the clergy over the laity.
In vain shall we wait for the succor of children yet unborn to re-establish a state thus depopulated. There is not time for this; men in their solitude are without courage or industry. With land sufficient to nourish a nation, they have scarcely enough to nourish a family. The common people have not even a property in the miseries of the country, that is, in the fallows with which it abounds. The clergy, the prince, the cities, the great men, and some of the princ.i.p.al citizens insensibly become proprietors of all the land which lies uncultivated; the families who are ruined have left their fields, and the laboring man is dest.i.tute.
In this situation they should take the same measures throughout the whole extent of the empire which the Romans took in a part of theirs; they should practise in their distress what these observed in the midst of plenty; that is, they should distribute land to all the families who are in want, and procure them materials for clearing and cultivating it. This distribution ought to be continued so long as there is a man to receive it, and in such a manner as not to lose a moment that can be industriously employed.
29.-Of Hospitals A man is not poor because he has nothing, but because he does not work. The man who without any degree of wealth has an employment is as much at his ease as he who without labor has an income of a hundred crowns a year. He who has no substance, and yet has a trade, is not poorer than he who, possessing ten acres of land, is obliged to cultivate it for his subsistence. The mechanic who gives his art as an inheritance to his children has left them a fortune, which is multiplied in proportion to their number. It is not so with him who, having ten acres of land, divides it among his children.
In trading countries, where many men have no other subsistence but from the arts, the state is frequently obliged to supply the necessities of the aged, the sick, and the orphan. A well-regulated government draws this support from the arts themselves. It gives to some such employment as they are capable of performing; others are taught to work, and this teaching of itself becomes an employment.
The alms given to a naked man in the street do not fulfil the obligations of the state, which owes to every citizen a certain subsistence, a proper nourishment, convenient clothing, and a kind of life not incompatible with health.
Aurengzebe, being asked why he did not build hospitals, said, "I will make my empire so rich that there shall be no need of hospitals."120 He ought to have said, I will begin by rendering my empire rich, and then I will build hospitals.
The riches of the state suppose great industry. Amidst the numerous branches of trade it is impossible but that some must suffer, and consequently the mechanics must be in a momentary necessity.
Whenever this happens, the state is obliged to lend them a ready a.s.sistance, whether it be to prevent the sufferings of the people, or to avoid a rebellion. In this case hospitals, or some equivalent regulations, are necessary to prevent this misery.
But when the nation is poor, private poverty springs from the general calamity, and is, if I may so express myself, the general calamity itself. All the hospitals in the world cannot cure this private poverty; on the contrary, the spirit of indolence, which it constantly inspires, increases the general and consequently the private misery.
Henry VIII,121 resolving to reform the Church of England, ruined the monks, of themselves a lazy set of people, that encouraged laziness in others, because, as they practised hospitality, an infinite number of idle persons, gentlemen and citizens, spent their lives in running from convent to convent. He demolished even the hospitals, in which the lower people found subsistence, as the gentlemen did theirs in the monasteries. Since these changes, the spirit of trade and industry has been established in England.
At Rome, the hospitals place everyone at his ease except those who labor, except those who are industrious, except those who have land, except those who are engaged in trade.
I have observed that wealthy nations have need of hospitals, because fortune subjects them to a thousand accidents; but it is plain that transient a.s.sistance are much better than perpetual foundations. The evil is momentary; it is necessary, therefore, that the succor should be of the same nature, and that it be applied to particular accidents.
1 Dryden's "Lucrece."
2 The Garamantes.
3 Lib. I. cap. viii.
4 "Pater est quem nuptiae demonstrant."
5 For this reason, among nations that have slaves, the child almost always follows the station or condition of the mother.
6 Du Halde, tom, i. p. 165.
7 Ibid. tom. ii. p.129.
8 Aristotle, "Polit." lib. VI. cap. iv.
9 Ibid. lib. III. cap. iii.
10 "A New Survey of the West Indies," by Thomas Gage, p. 345, 3d edit.
11 "A New Survey of the West Indies," by Thomas Gage, p. 97, 3d edit.
12 Book XVI. chap. iv.
13 See Kempfer, who gives a computation of the people of Meaco.
14 "Collection of Voyages that contributed to the establishment of the East India Company," vol. i. p. 347.
15 j.a.pan is composed of a number of isles, where there are many banks, and the sea is there extremely full of fish.
16 China abounds in rivers.
17 See Du Halde, tom. ii. pp. 139-142.
18 The greatest number of the proprietors of land, says Bishop Burnet, finding more profit in selling their wool than their corn, enclosed their estates; the commons, ready to perish with hunger, rose up in arms; they insisted on a division of the lands: the young king even wrote on this subject. And proclamations were made against those who enclosed their lands.-"Abridgment of the History of the Reformation.
19 Dampier's "Voyages," vol. ii. p. 41.
20 Ibid. p. 167.
21 See the "Collection of Voyages that contributed to the establishment of the East India Company," vol. i. part I. pp. 182, 188.
22 In valor, discipline, and military exercises.
23 The Gauls, who were in the same circ.u.mstances, acted in the same manner.
24 "Repub." lib. V.
25 Ibid.
26 "Polit." lib. VII. cap. xvi.
27 Ibid.
28 Ibid. lib. III. cap. iii.
29 Sixty pounds sterling.
30 Lib. VI.
31 Lib. VII. p. 496.
32 I have treated of this in the "Considerations on the Causes of the Rise and Declension of the Roman Grandueur."
33 Lib. LVI.
34 Lib. II.
35 In the year of Rome 277.
36 See what was done in this respect in T. Livy, lib. XLV.; the "Epitome" of T. Livy, lib. LIX.; Aulus Gellius, lib. I. cap. vi.; Valerius Maximus, lib. II. cap. xix.
37 It is in Aulus Gellius, lib. I. cap. vi.
38 See what I have said in book V. chap. xix.
39 Caesar, after the Civil War, having made a survey of the Roman citizens, found there were no more than one hundred and fifty thousand heads of families.-Florus's "Epitome of Livy," 17th decad.
40 See Dio, lib. XLIII., and Xiphilinus in "August."
41 Dio, lib. XLIII.; Suetonius, "Life of Caesar," chap. xx.; Appian, lib. II. of the "Civil War."
42 Eusebius, in his "Chronicle."
43 Dio, lib. LIV.
44 In the year of Rome 736.
45 "Julias rogationes."-Annal." lib. III.
46 In the year of Rome 762.-Dio, lib. LVI.
47 I have abridged this speech, which is of tedious length; it is to be found in Dio, lib. LVI.
48 Marcus Papius Mutilus and Q. Poppaeus Sabinus.-Dio, lib. LVI.
49 Ibid.
50 The 14th t.i.tle of the "Fragments of Ulpian" distinguishes very rightly between the Julian and the Papian law.
51 James G.o.dfrey has made a collection of these.
52 The 35th is cited in the 19th law ff. "de ritu nuptiarum."
53 Lib. II. cap. xv.
54 Dionysius Halicarna.s.sus.
55 The deputies of Rome, who were sent to search into the laws of Greece, went to Athens, and to the cities of Italy.
56 Aulus Gellius, lib. II. cap. xv.
57 Suetonius, in "Augusto," cap. xliv.
58 Tacitus, lib. II.: "Ut numerus liberorum in candidatis praepolleret, quod lex jubebat."
59 Aulus Gellius, lib. II. cap. xv.
60 Tacitus, "Annal." lib, XV.
61 See Law 6, sec. 5, "de Decurion."
62 See Law 2 ff. "de minorib."
63 Law 1st and 2d ff. "de vacatione et excusat. munerum."
64 "Frag. of Ulpian," t.i.t. 29, sec. 3.
65 Plutarch, "Life of Numa."
66 See the "Fragments of Ulpian," t.i.t. 14, 15, 16, 17, and 18, which compose one of the most valuable pieces of the ancient civil law of the Romans.
67 Sozom. lib. I. cap. ix. They could receive from their relatives.-"Frag. Of Ulpian," t.i.t. 16, sec. 1.
68 Ibid.; and leg. unic. cod. Theod. "de Infirm. pnis caelib. et orbit."
69 "Moral Works," "Of the love of Fathers towards their Children."
70 See a more particular account of this in the "Frag. of Ulpian," t.i.t. 15 and 16.
71 Ibid. t.i.t. 16, sec. 1.