11. 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 dark villainies, 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 Turkey, Persia, Hindostan, 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 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 such freedom of converse, where that sex which has most charms seems to embellish society, and where wives, reserving themselves for the pleasures of one, contribute to the amusement of all.
12. Of natural Modesty. All nations are 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. To individuals she has granted a long succession of years to attend to their preservation: but to continue the species, she has granted only a moment.
It is then far from being true that to be incontinent is to follow the laws of nature; on the contrary, it is a violation of these laws, which can be observed only by behaving with 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, with a view to opposing the nature of the climate and re-establishing the primitive laws.
13. Of Jealousy. 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, may be joined with indifference and contempt.
The one, an abuse of love, derives its source 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.20
It is generally the effect of the physical power of the climate; and, at the same time, the remedy of this physical power.
14. 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 their keys and the management of their families. "In Persia," says Sir John Chardin, "married women are furnished with clothes as they want them, after the manner of children." Thus that care which seems so well to become them, that care which everywhere else is the first of their concern, does not at all regard them.
15. Of Divorce and Repudiation. There is this difference between a divorce and a repudiation, that the former is made by mutual consent, arising from a mutual antipathy; while the latter is formed 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 granting it to women. A husband is the master of the house; he has a thousand ways of confining 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 fresh 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 grant it to women. Nay, in climates where women live in domestic slavery, one would think that the law ought to favour women with the right of repudiation, and husbands only with that of divorce.
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 on account of the barrenness of the woman ought never to take place except where there is only one wife:21 when there are many, this is of no importance to the husband.
A law of the Maldivians permitted them to take again a wife whom they had repudiated.22 A law of Mexico23 forbade their being reunited under pain of death. The law of Mexico was more rational than that of the Maldivians: at the time even 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 passion; 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.
16. Of Repudiation and Divorce amongst the Romans. Romulus permitted a husband to repudiate his wife, if she had committed adultery, prepared poison, or procured false keys. He did not grant to women the right of repudiating their husbands. Plutarch24 calls this a law extremely severe.
As the Athenian law25 gave the power of repudiation to the wife as well as to the husband, and as this right was obtained by the women among 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 inserted in the laws of the Twelve Tables.
Cicero says that the reasons of repudiation sprang from the law of the Twelve Tables.26 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.
The law did not require that they should lay open the causes of divorce27 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 Halicarnassus,28 Valerius Maximus,29 and Aulus Gellius,30 does not appear to me to have the least degree 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 nobody for the space of five hundred and twenty years ever made31 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 grant such right to a whole nation, and yet for nobody to make use of it. Coriolanus, setting out on his exile, advised his32 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 of Rome to have less than they? And how came the laws incessantly to corrupt their manners?
All that is surprising in the fact in question will soon disappear, only by comparing two passages in Plutarch. The regal law33 permitted a husband to repudiate in the three cases already mentioned, and "it enjoined," says Plutarch,34 "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. Nobody had done this before Carvilius Ruga,35 who, as Plutarch says in another place,36 "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 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 against 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 Carvilius had taken an oath to the censors, that by reason of the sterility of his wife he would repudiate her to give children to the republic. This was a yoke which the people saw the censors were going to put upon them. I shall discover, in the prosecution of this work,37 the repugnance which they always felt to regulations of the like kind. But whence can such a contradiction between those authors arise? It is because Plutarch examined into a fact, and the others have recounted a prodigy.
1. "Mahomet married Cadhisja at five, and took her to his bed at eight years 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. — Laugier de Tassis, History of the Kingdom of Algiers, p. 61.
2. See Jornandes, De Regno et tempor. success., and the ecclesiastic historians.
3. See Leg. 7. Cod., De Jud?is et C?licolis, and Nov. 18, cap. v.
4. In Ceylon a man may live on ten sols a month; they eat nothing there but rice and fish. Collection of Voyages that Contributed to the Establishment of the East India Company, ii, part 1.
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 182,072 males, and 223,573 females.
7. Father Du Halde, History of China, iv, p. 4.
8. Albuzeir-el-hassen, one of the 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 that Contributed to the Establishment of the East India Company, i.
10. See Francis Pirard, 27. Edifying Letters, coll. iii, x, 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 of the Bramins never would marry many husbands.
11. This is the reason why women in the East are so carefully concealed.
12. Life and Actions of Justinian, p. 403.
13. Laugier de Tassis, History of the Kingdom of Algiers.
14. See Pirard, Voyages, 12.
15. Exod., 21. 10, 11.
16. "It is an admirable touch-stone, to find by oneself a treasure, and to know the right owner; or to see a beautiful woman in a lonely apartment; or to hear the cries of an enemy, who must perish without our assistance." — Translation of a Chinese piece of morality, which may be seen in Du Halde, iii, p. 151.
17. Collection of Voyages that Contributed to the Establishment of the East India Company, ii, part II, p. 196.
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, 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 that Contributed to the Establishment of the East India Company, p. 348.
19. Voyage to Guinea, part II, p. 192. "When the women happen to meet with a man, they lay hold of him, and threaten to make a complaint to their husbands if he slight their addresses. They steal into a man's bed, and wake him; and if he refuses to comply with their desires, they threaten to suffer themselves to be caught in flagranti."
20. Mahomet desired his followers to watch their wives; a certain Iman, when he was dying, said the same thing; and Confucius preached the same doctrine.
21. It does not follow hence that repudiation on account of sterility should be permitted amongst Christians.
22. They took them again preferably to any other, because in this case there was less expense. — Pirard, Travels.
23. Solis, History of the Conquest of Mexico, p. 499.
25. This was a law of Solon.
26. Mimam res suas sibi habere jussit, ex duodecim tabulis causam addidit. — Philipp, ii. 69.
27. Justinian altered this, Nov. 117, cap. x.
28. Book ii.
29. Book ii. 4.
30. Book iv. 3.
31. According to Dionysius Halicarnassus and Valerius Maximus; and five hundred and twenty-three, according to Aulus Gellius. Neither did they agree in placing this under the same consuls.
32. See the Speech of Veturia in Dionysius Halicarnassus, viii.
33. Plutarch, Romulus.
35. Indeed sterility is not a cause mentioned by the law of Romulus: but to all appearance he was not subject to a confiscation of his effects, since he followed the orders of the censors.
36. In his comparison between Theseus and Romulus.
37. Book xxiii, 21.