Montesquieu

Some ancient legis­la­tors like Lycurgus and Romulus divi­ded up lands equally. That could occur only at the foun­ding of a new repu­blic, or else when the old one was so cor­rupt, and peo­ple’s minds were in such a dis­po­si­tion, that the poor thought them­sel­ves obli­ged to seek, and the rich obli­ged to tole­rate, such a remedy.

If, when the legis­la­tor makes such a divi­sion, he does not issue laws to main­tain it, he crea­tes no more than a tran­si­tory cons­ti­tu­tion ; ine­qua­lity will enter on the side which the laws have not defen­ded, and the repu­blic will be lost.

It is the­re­fore neces­sary for this pur­pose to regu­late women’s dowries, dona­tions, suc­ces­sions, tes­ta­ments, in short all means of contrac­ting. For if a man were per­mit­ted to give his pro­perty to who­me­ver and howe­ver he wished, every pri­vate will would jeo­par­dize the pro­vi­sion of the fun­da­men­tal law.

Solon, who allo­wed the trans­mis­sion of pro­perty in Athens to who­me­ver one wished by tes­ta­ment pro­vi­ded there were no chil­dren,1 was contra­dic­ting the ear­lier laws which requi­red pro­perty to remain in the family of the tes­ta­tor ; and he was contra­dic­ting his own laws, for in sup­pres­sing debts he had sought equa­lity.

It was a good law for demo­cracy that for­bade a per­son from clai­ming two inhe­ri­tan­ces.2 It had ori­gi­na­ted in the equal divi­sion of lands and in the por­tions given to each citi­zen. The law had refu­sed to allow one man to have more than one por­tion.

The law requi­ring that the nea­rest rela­tive marry the female heir arose from a simi­lar source. It was ins­ti­tu­ted among the Jews after such a divi­sion. Plato, who bases his laws on this divi­sion, also inclu­des it, and it was an Athenian law.

There was a law in Athens, the spi­rit of which I am not sure anyone has known. Marrying one’s pater­nal half-sis­ter was allo­wed, but not one’s mater­nal half-sis­ter.3 This cus­tom ori­gi­na­ted in repu­blics whose spi­rit was not to place two por­tions of land, and conse­quently two inhe­ri­tan­ces, on the same head. When a man mar­ried his sis­ter on his father’s side, he could have but one inhe­ri­tance, which was his father’s ; but when he mar­ried his mater­nal half-sis­ter, it could hap­pen that the father of that sis­ter, having no male chil­dren, would leave his estate to her, and that conse­quently his bro­ther who had mar­ried her would have two.

Do not argue against me what Philo said : that although in Athens you mar­ried your pater­nal but not your mater­nal sis­ter, in Lacedæmon you could marry your mater­nal but not your pater­nal sis­ter.4 For I find in Strabo that when in Lacedæmon a sis­ter mar­ried her bro­ther, she recei­ved half of her bro­ther’s por­tion as her dowry.5 It is clear that this second law had been made to avert the unde­si­ra­ble conse­quen­ces of the first. To pre­vent the pro­perty of the sis­ter’s family from pas­sing into the bro­ther’s, they gave the sis­ter half of her bro­ther’s pro­perty as a dowry.

Seneca, spea­king of Silanus, who had mar­ried his sis­ter, says that in Athens such per­mis­sion was res­tric­ted, and that it was widely avai­la­ble in Alexandria.6 Under the govern­ment of one, there was lit­tle concern about main­tai­ning the divi­sion of pro­perty.

To main­tain this divi­sion of lands in a demo­cracy, it was a good law that requi­red a father who had seve­ral chil­dren to choose one to inhe­rit his por­tion,7 and offer the others for adop­tion by someone who had no chil­dren, so that the num­ber of citi­zens could be main­tai­ned at parity with the num­ber of sha­res.

Phaleas of Calcedon had thought of a way of making for­tu­nes equal in a repu­blic where they were not. He would have the weal­thy fur­nish dowries to the poor and receive none, and the poor receive money for their daugh­ters and sup­ply none.8 But I do not know that any repu­blic has adap­ted to such a sta­tute. It pla­ces citi­zens under condi­tions so stri­kin­gly dif­fe­rent that they would hate the very equa­lity it was inten­ding to intro­duce. It is some­ti­mes good for laws not to appear to aim so directly at their goal.

Although, in a demo­cracy, real equa­lity is the soul of the state, it is never­the­less so dif­fi­cult to ins­ti­tute that extreme exact­ness in this regard would not always be good. It is enough to esta­blish a cens9 that would reduce or fix the dif­fe­ren­ces up to a point, after which it remains for spe­ci­fic laws to equa­lize the ine­qua­li­ties, so to speak, through char­ged they impo­sed on the weal­thy and the relief they pro­vide to the poor. Only modest wealth can offer or suf­fer these sorts of com­pen­sa­tion ; for immo­de­rate for­tu­nes regard as an insult all the autho­rity and honor that is not allo­ca­ted to them.

All ine­qua­lity in a demo­cracy must derive from the nature of demo­cracy and the prin­ci­ple of equa­lity itself. For exam­ple, it can be fea­red lest per­sons who need conti­nual work in order to live be impo­ve­ri­shed by a magis­tracy, or neglect its func­tions, lest arti­sans glory, lest too many eman­ci­pa­ted sla­ves become more power­ful than the older citi­zens. In these cases equa­lity bet­ween citi­zens10 can be sup­pres­sed in a demo­cracy for the good of the demo­cracy. But it is only an appa­rent equa­lity that is sup­pres­sed : for a man rui­ned by a magis­tracy would be in a worse situa­tion than the other citi­zens, and that same man who would be obli­ged to neglect its func­tions would place the other citi­zens in a worse situa­tion than his own, and so forth.

Plutarch, Life of Solon.

Philolaus of Corinth instituted in Athens that the number of portions of land and of inheritances would always be the same (Aristotle, Politics, book II, ch. xii).

Cornelius Nepos, in the preface. This custom dated from the earliest times. Thus did Abraham say of Sarah, “She is my sister, the daughter of my father and not of my mother” [Genesis 20:12]. The same reasons had caused the same law to be instituted among different peoples.

De specialibus legibus quæ pertinent ad præcepta Decalogi [‘Of special laws pertaining to the precepts of the Decalogue’].

Book X.

Athenis dimidium licet, Alexandriæ totum (Seneca, De morte Claudii [’On the death of Claudius’]).

Plato makes a silmilar law (book III of Laws).

Aristotle, Politics, book II, ch. vii.

Solon excluded from office everyone in the fourth cens.

Solon made four classes : the first, of those who had five hundred mines’ income, in grains and liquid gains ; the second, of those who had three hundred, and could maintain a horse ; the third, of those who only had two hundred ; the fourth, of all those who lived by toil (Plutarch, Life of Solon).