Montesquieu
 

XXIII.21 On Roman laws on the propagation of the species

The ancient laws of Rome strove to per­suade citi­zens to marry. The senate and the peo­ple often made sta­tu­tes about it, as Augustus says in his ora­tion repor­ted by Dio.1

Dionysius of Halicarnassus2 can­not believe that after the death of three hun­dred five Fabii slaugh­te­red by the Veientes, only a sin­gle child of that lineage remai­ned, because the ancient law, which orde­red every citi­zen to marry and raise all his chil­dren, was still in effect.3

Independently of the laws, the cen­sors kept an eye on mar­ria­ges, and accor­ding to the needs of the repu­blic they pro­mo­ted mar­riage4 both by shame and by penal­ties.

Morals which were begin­ning to be cor­rupt contri­bu­ted greatly to dis­sua­ding citi­zens from mar­riage, which has only trou­bles for those who have lost any sense of the plea­su­res of inno­cence. That is the spi­rit of the ora­tion that Metellus Numidicus deli­ve­red to the peo­ple during his cen­sor­ship. “If it were pos­si­ble to have no wife, we would deli­ver our­sel­ves of this evil ; but as nature has ordai­ned that one can hardly live hap­pily with them or sub­sist without them, we must pay more atten­tion to our pre­ser­va­tion than to pas­sing satis­fac­tions.”5

The cor­rup­tion of morals des­troyed the cen­sor­ship, itself esta­bli­shed to des­troy the cor­rup­tion of morals ; but when that cor­rup­tion beco­mes gene­ra­li­zed, cen­sor­ship has no more force.6

Civil dis­pu­tes, the trium­vi­ra­tes, and pros­crip­tions wea­ke­ned Rome more than any war she had yet waged ; there were few citi­zens remai­ning, and most were unmar­ried. To remedy this last dilemma, Cæsar and Augustus re-esta­bli­shed the cen­sor­ship, and even wan­ted7 to be cen­sors. They made various sta­tu­tes : Cæsar recom­pen­sed those who had many chil­dren8 ; he pro­hi­bi­ted women under forty-five who had nei­ther hus­bands nor chil­dren from wea­ring jewelry and using lit­ters9 : an excel­lent method for atta­cking celi­bacy through vanity. The laws of Augustus were more urgent10 : he impo­sed addi­tio­nal penal­ties on the unmar­ried, and increa­sed the recom­pen­ses for those who were mar­ried and those who had chil­dren.11 Tacitus calls these laws Julian12 ; there is rea­son to believe they had inclu­ded in them the old rules made by the senate, the peo­ple, and the cen­sors.

The law of Augustus encoun­te­red a thou­sand obs­ta­cles, and thirty-four years13 after it was made the Roman knights asked him to revoke it. He had those who were mar­ried stand to one side, and to the other those who were unmar­ried : the lat­ter see­med to be more nume­rous, which sur­pri­sed the citi­zens and confoun­ded them. Augustus, with the gra­vity of the for­mer cen­sors, addres­sed them as fol­lows :

While disea­ses and wars take so many citi­zens from us, what will become of the city if we do not contract more mar­ria­ges ? The state does not consist of hou­ses, por­ti­cos, and public squa­res : it is men who make the state. You will not see, as in the fables, men ari­sing from beneath the earth to look after your affairs. It is not in order to live alone that you remain celi­bate : each of you has ladies to grace his table and his bed, and you seek only peace in your dis­so­lu­te­ness. Will you cite here the exam­ple of the ves­tal vir­gins ? Then if you did not res­pect the laws of modesty, we would have to punish you, like them. You are equally bad citi­zens, whe­ther eve­ryone imi­ta­tes your exam­ple or no one does. My sole objec­tive is the per­ma­nence of the repu­blic. I have increa­sed the penal­ties of those who have not obeyed ; and as for recom­pen­ses, they are such that I doubt vir­tue ever had grea­ter ones : there are les­ser ones that incite a thou­sand men to risk their lives, and would these not per­suade you to take a wife and feed chil­dren ?14

He made the law which was named Julia after him,15 and Papia Poppæa from the names of the consuls for part of that year.16 The extent of the dilemma appea­red in their very elec­tion : Dio tells us that they were not mar­ried, and had no chil­dren.17

This law of Augustus was pro­perly a code of laws and a sys­te­ma­tic cor­pus of all the sta­tu­tes that could be made on this sub­ject. The Julian laws were incor­po­ra­ted into it18 and given grea­ter force : they have so many pur­po­ses and such broad influence that they cons­ti­tute the finest part of the Romans’ civil laws.

Their scat­te­red pie­ces can be found in Ulpian’s pre­cious frag­ments,19 in the laws of the digest drawn from the authors who have writ­ten on the Papian laws, in the his­to­rians and other authors who have cited them, in the Theodosian code that abro­ga­ted them, and in the Church fathers who have cen­su­red them, with prai­se­wor­thy zeal, no doubt, for things of the after­life, but with very lit­tle unders­tan­ding of the affairs of this one.

These laws had seve­ral hea­dings, and we know thirty-five of them.20 But get­ting to my sub­ject as directly as I can, I shall begin with the hea­ding which Aulus Gellius21 iden­ti­fies as the seventh, and which regards the honors and recom­pen­ses gran­ted by that law.

The Romans, most of whom came from Latin cities which were Lacedæmonian colo­nies,22 and who had even taken part of their laws from those cities,23 had, like the Lacedæmonians, that res­pect for old age that grants all kinds of honors and pre­ce­dence. When the repu­blic was short of citi­zens, the pre­ro­ga­ti­ves that had been given to age were gran­ted to mar­riage and to the num­ber of chil­dren24 ; some were atta­ched to mar­riage alone, inde­pen­dently of the chil­dren it could pro­duce : this was cal­led the right of hus­bands. Others were gran­ted to those who had chil­dren, and grea­ter ones to those who had three chil­dren. These three things must not be confu­sed. Some were pri­vi­le­ges which mar­ried peo­ple always enjoyed, as for exam­ple a par­ti­cu­lar seat in the thea­tre,25 and there were some which they enjoyed only when peo­ple who had chil­dren, or who had more than they did, did not get them first.

These pri­vi­le­ges were very exten­sive. Married per­sons who had the most chil­dren were always pre­fer­red,26 either in the pur­suit of honors or in the exer­cise of those same honors. The consul who had the most chil­dren was the first to take the fas­ces27 ; he had the choice of pro­vin­ces.28 The sena­tor who had the most chil­dren was the first ins­cri­bed in the cata­lo­gue of sena­tors ; he was first to state his opi­nion in the senate.29 One could accede to magis­tra­cies before the pres­cri­bed age, because each child brought a year’s dis­pen­sa­tion.30 To have three chil­dren in Rome was to be exempt from all per­so­nal char­ges.31 Freeborn women who had three chil­dren, and freed women who had four, were relea­sed32 from that per­pe­tual tute­lage in which33 the ancient laws of Rome held them.

If there were rewards, there were also penal­ties.34 The unmar­ried could receive nothing from the tes­ta­ment of a non-rela­tive,35 and those who, being mar­ried, had no chil­dren, recei­ved only half.36 The Romans, says Plutarch, mar­ried to be heirs, and not to have heirs.37

The advan­ta­ges which a hus­band and wife could give each other by tes­ta­ment were limi­ted by law. They could leave each other eve­ry­thing if they had chil­dren by each other38 ; if they had none, they could, because of the mar­riage, receive the tenth part of the inhe­ri­tance ; and if they had chil­dren from ano­ther mar­riage, they could leave each other as many tenths as they had chil­dren.

If a hus­band absen­ted him­self from his wife for any rea­son other than the affairs of the repu­blic, he could not inhe­ret from her.39

The law allo­wed a sur­vi­ving hus­band or wife two years40 to remarry, and one year and a half in the case of divorce. Fathers who were unwilling to marry their chil­dren off or to endow their daugh­ters were for­ced to do so by the magis­tra­tes.41

Betrothals were not allo­wed if the mar­riage was to be put off for more than two years42 ; and as one could not marry a girl under twelve, one could not betroth her before ten : the law did not per­mit them to enjoy fruit­lessly, and under pre­text of betro­thal, the pri­vi­le­ges of mar­ried per­sons.43

A man who was sixty was pro­hi­bi­ted from mar­rying a woman of fifty.44 Inasmuch as great pri­vi­le­ges had been gran­ted to mar­ried per­sons, the law did not encou­rage fruit­less mar­ria­ges. For the same rea­son, the Calvisian sena­tus consul­tum decla­res une­qual the mar­riage of a woman who was over fifty with a man who was under sixty,45 so a woman who was fifty years old could not marry without incur­ring the penal­ties of those laws. Tiberius added to the seve­rity of the Papian law and for­bade a man of sixty to marry a woman under fifty,46 so that a man of sixty could not marry in any case without incur­ring the penalty ; but Claudius abro­ga­ted what had been done under Tiberius in this res­pect.47

All these pro­vi­sions were more consis­tent with the cli­mate of Italy than with that of the north, where a man of sixty still has some strength, and where women of fifty are not as a gene­ral rule infer­tile.

So as not to limit need­lessly the choi­ces a per­son could make, Augustus allo­wed all the free­born who were not sena­tors48 to marry freed women.49 The Papian law pro­hi­bi­ted sena­tors from mar­rying women who had been freed or who had appea­red on stage50 the free­born were pro­hi­bi­ted from mar­rying women who had led dis­so­lute lives, or acted on the stage, or been convic­ted in a public trial. It must have been some sena­tus consul­tum that had esta­bli­shed this. In the time of the repu­blic, these sorts of laws were not made, because the cen­sors cor­rec­ted the disor­ders that arose in this regard, or pre­ven­ted them from ari­sing.

Constantine having made a law by which he inclu­ded in the pro­hi­bi­tion of the Papian law not only sena­tors but also those who had a consi­de­ra­ble rank in the state,51 with no men­tion of those who were of infe­rior sta­tion : this cons­ti­tu­ted the law of that time ; there remai­ned only the free­born, inclu­ded in the Constantine law, to whom such mar­ria­ges were for­bid­den. Justinian again abro­ga­ted the law of Constantine and allo­wed all sorts of per­sons to contract these mar­ria­ges : that is how we have acqui­red such an unfor­tu­nate free­dom.52

It is clear that the penal­ties applied against those who mar­ried des­pite the law’s pro­hi­bi­tion were the same as those applied against those who did not marry at all. Those mar­ria­ges gave them no civil advan­tage53 ; the dowry54 was null and void after the wife’s death.55

Augustus having assi­gned to the public purse the suc­ces­sions and lega­cies of those whom these laws decla­red ine­li­gi­ble to receive them,56 these laws appea­red more fis­cal than poli­ti­cal and civil. The disaf­fec­tion they already felt for a bur­den that see­med overw­hel­ming was increa­sed by the disaf­fec­tion of fin­ding them­sel­ves conti­nually a prey to the avi­dity of the trea­sury. The result was that under Tiberius they had to modify these laws,57 that Nero lowe­red the recom­pen­ses to infor­mers of the trea­sury,58 that Trajan put a stop to their ban­di­try,59 that Severius modi­fied those laws,60 and that the juris­consults saw them as odious, and in their deci­sions aban­do­ned rigor.

Moreover, the empe­rors evis­ce­ra­ted these laws with the pri­vi­le­ges they gran­ted for the rights of hus­bands, of chil­dren, and of three chil­dren.61 Furthermore, they dis­pen­sed indi­vi­duals from the penal­ties of these laws.62 But laws ins­ti­tu­ted for public uti­lity see­med not to allow for any dis­pen­sa­tion.

It had been rea­so­na­ble to grant the right of chil­dren to the ves­tals,63 who were kept by reli­gion in a neces­sary vir­gi­nity ; like­wise they gran­ted the pri­vi­lege of hus­bands64 to sol­diers because they could not marry. It was the cus­tom to exempt empe­rors from the cons­traint of cer­tain civil laws. Thus, Augustus was exemp­ted from the cons­traint of the law limi­ting his abi­lity to eman­ci­pate,65 and the one that res­tric­ted his abi­lity to bequeath.66 All these were merely par­ti­cu­lar ins­tan­ces ; but sub­se­quently dis­pen­sa­tions were given without dis­cre­tion, and the rule became no more than an excep­tion.

Philosophical schools had already intro­du­ced into the empire a spi­rit of detach­ment from busi­ness, which would not have caught on so well in the time of the repu­blic,67 when eve­ryone was busy with the arts of war and peace. Whence a notion of per­fec­tion atta­ched to eve­ry­thing that leads to a spe­cu­la­tive life ; whence detach­ment from the cares and bothers of a family. The Christian reli­gion, coming after phi­lo­so­phy, fixed, so to speak, notions which phi­lo­so­phy had sim­ply pre­pa­red.

Christianity gave its cha­rac­ter to juris­pru­dence, for the empire always has a connec­tion to the pries­thood. One can look at the Theodesian code, which is but a com­pi­la­tion of the ordi­nan­ces of the Christian empe­rors.

A pane­gy­rist of Constantine said to the empe­ror, “Your laws have been made only to cor­rect vices and regu­late mora­lity ; you have remo­ved the arti­fice from the old laws, which see­med to have no other pur­po­ses than to set traps for sim­pli­city.”68

It is cer­tain that Constantine’s chan­ges were based either on ideas rela­ting to the esta­blish­ment of Christianity, or on ideas for­med of its per­fec­tion. From the first objec­tive came those laws that gave such autho­rity to the bishops that they have been the foun­da­tion of eccle­sias­ti­cal juris­dic­tion, whence those laws that wea­ke­ned pater­nal autho­rity by depri­ving the father of the pro­perty of his chil­dren’s assets.69 To extend a new reli­gion, one has to sup­press the extreme depen­dence of chil­dren, who always cling less to what is esta­bli­shed.

The laws made with a view to Christian per­fec­tion were above all those with which he sup­pres­sed the penal­ties from the Papian laws,70 and exemp­ted from them both the unmar­ried and those who, though mar­ried, had no chil­dren.

“Those laws had been ins­ti­tu­ted,” says an eccle­sias­ti­cal his­to­rian, “as if the mul­ti­pli­ca­tion of the human spe­cies could be an effect of our efforts, ins­tead of seeing that this num­ber increa­ses and decrea­ses accor­ding to the order of Providence.”71

The prin­ci­ples of reli­gion have enor­mously influen­ced the pro­pa­ga­tion of the human spe­cies ; at times they have encou­ra­ged it, as among the Jews, the Mohammedans, the Gaurs, and the Chinese ; at times they have ham­pe­red it, as they did among the Romans who had become Christians.

They were always prea­ching conti­nence eve­ryw­here, in other words, that vir­tue which is more per­fect because by its nature it must be prac­ti­ced by very few peo­ple.

Constantine had not sup­pres­sed the deci­mal laws that gave a grea­ter exten­sion to the gifts the hus­band and wife could make to each other in pro­por­tion to the num­ber of their chil­dren. Theodosius the Younger again abro­ga­ted those laws.72

Justinian decla­red valid all the mar­ria­ges which the Papian laws had for­bid­den.73 These laws requi­red peo­ple to remarry ; Justinian offe­red advan­ta­ges to those who would not remarry.74

By the old laws, the natu­ral right anyone has to marry and have chil­dren could not be taken away ; thus, when someone recei­ved a legacy condi­tio­nal on not mar­rying,75 when a patron for­ced his freed slave to swear he would not marry and would have no chil­dren,76 the Papian law annul­led both that condi­tion and that oath. The clau­ses while conti­nuing in widow­hood which we have ins­ti­tu­ted thus contra­dict the ancient right, and come down from the cons­ti­tu­tions of the empe­rors based on notions of per­fec­tion.

There is no law that contains an expli­cit abro­ga­tion of the pri­vi­le­ges and honors which the pagan Romans had confer­red on mar­ria­ges and the num­ber of chil­dren, but where celi­bacy had pree­mi­nence there could no lon­ger be an honor for mar­riage ; and since they were able to oblige the tax col­lec­tors to give up such pro­fits by the abo­li­tion of penal­ties, it is easy to see that it was even sim­pler to sup­press the recom­pen­ses.

The same rea­son of spi­ri­tua­lity that had made them allow celi­bacy soon impo­sed even the neces­sity of celi­bacy. God for­bid I should be spea­king here against the celi­bacy which reli­gion has adop­ted ; but who could hold his ton­gue against a celi­bacy occa­sio­ned by liber­ti­nism, one where the two sexes, cor­rup­ting each other through natu­ral sen­ti­ments them­sel­ves, flee a union meant to make them bet­ter, in order to live in the union that always makes them worse ?

It is a rule drawn from nature that the more you decrease the num­ber of mar­ria­ges that could be, the more you cor­rupt the ones there are ; the fewer mar­ried per­sons there are, the less fide­lity there is in mar­ria­ges, as when there are more thie­ves, there are more thefts.

Book LVI.

Book II.

Roman year 277.

On what they did in this regard, see Livy, book XLV ; the Epitome of Livy, book LIX ; Aulus Gellius, book I, ch. vi ; Valerius Maximus, book II, ch. xix.

It is in Aulus Gellius, book I, ch. vi.

See what I have said in book V, ch. xix.

See Dio, book XLIII, and Xiphil. in Aug.

Dio, book XLIII ; Suetonius, Life of Cæsar, ch. xx ; Appian, book II of the Civil Wars.

Eusebius, in his Chronicle.

Dio, book LIV.

Roman year 736.

Julias Rogationes, Annals, book III.

Year 762 of Rome, Dio, book LVI.

I have shortened this oration, which is overwhelmingly long ; it is recorded in Dio, book LVI.

[Montesquieu appears to be referring to the Lex Julia maritandis ordinibus and the Lex Julia de adulteriis et de pudicitia, 18 BCE, after the name Gaius Julius Caesar Octavianus.]

[The latter (Lex Papia Poppæa) appears to be separate, subsequent legislation dating from 9 CE.]

Ibid.

Title 14 of Ulpian’s Fragmenta clearly distinguish the Julian law from the Papian law.

Jacques Godefroy has made a compilation of these.

The 35th is cited in law Loi 19 and following, De ritu Nuptiarum.

Book II, ch. xv.

Dionysius of Halicarnassus.

The Deputies of Rome who were sent to find Greek laws went to Athens and into the cities of Italy.

Aulus Gellius, book II. ch. xv.

Suetonius, in Augusto, ch. xliv.

Tacitus, book II. Ut numerus liberorum in candidatis præpolleret, quod lex jubebat.

Aulus Gellius, book II. ch. xv.

Tacitus, Annals, book XV.

See Law VI, §5, of Decurion.

See Law II following De minoribus.

Laws I and II following De vacatione et excusatione munerum.

Fragmenta of Ulpian, tit. 29, §3.

Plutarch, Life of Numa.

See Ulpian’s Fragmenta, tit. 14, 15, 16, 17 and 18, which are one of the finest parts of ancient Roman jurisprudence.

Sozomen, book I, ch. ix ; they could receive from relatives (Ulpian’s Fragmenta, tit. 16, §1).

Sozomen, book I, ch. ix, and the single law in Codex Theodeodosianus, De infirmandis pœnis cælibatus et orbitatis.

Moralia, “On the love of fathers for their children.”

See a longer detail of this in Ulpian, Fragmenta, tit. 15 and 16.

Ulpian, Fragmenta, tit. 16, §1.

Ulpian, Fragmenta, title 14. It appears that the first Julian laws allowed there years. Oration of Augustus in Dio, book LVI. Suetonius, Life of Augustus, ch. xxxiv. Other Julian laws granted only one year ; finally, the Papian law granted two (Ulpian, Fragmenta, tit. 14). These laws were not well received by the people, and Augustus tempered or reinforced them, depending on how willing they were to put up with them.

It was the 35th heading of the Papian law, Law 19 following De ritu Nuptiarum.

See Dio, book LIV, year 736. Suetonius, in Octavian, ch. xxxiv.

See Dio, book LIV, and in the same Dio, the speech of Augustus, book LVI.

Ulpian, Fragmenta, tit. 16 and Law 27, Codex, De nuptiis.

Ulpian, Fragmenta, tit. 16, §3.

See Suetonius, in Claudius, ch. xxiii.

See Suetonius, Life of Claudius, ch. xxiii, and Ulpian, Fragmenta, tit. 16, §3.

Dion, book LIV, Ulpian, Fragmenta, tit. 13.

Speech of Augustus, in Dio, book LVI.

Ulpian, Fragmenta, ch. xiii, and Law XLIV following De ritu Nuptiarum, at the end.] ; and in the time of Ulpian[[See Ulpian, Fragmenta, tit. 13 and 16.

See Law I in Cod. de Nat. lib.

Novella 117.

Law XXXVII. following De operib. libertorum, §7. Fragm. of Ulpian, tit. 16, §2.

Ulpian, Fragmenta, tit. 16, §2.

See above, ch. xiii in book XXVI.

Except in certain cases. See Ulpian, Fragmenta, tit. 18, and the single law in Codex De caducis tollendis.

Relatum de moderanda Pappia Poppæa, Tacitus, Annals, book III, p. 117.

He reduced them to the fourth part, Suetonius, in Nerone, ch. x.

See Panegyric of Pliny.

Severius brought down to 25 years for the males, and 20 for the girls, the time of dispensations from the Papian law, as we see in confronting Ulpian (Fragmenta, tit. 16) with what Tertullian says about it (Apologeticus, ch. iv).

Publius Scipio, censor, in his oration to the people on morals, complains of the abuse that had already been introduced, that the adoptive son afforded the same privilege as the natural son (Aulus Gellius, book V, ch. xix).

See Law XXXI following, De ritu Nuptiarum.

Augustus, with the Papian law, gave them the same privilege as to mothers ; see Dio, book LVI. Numa had given them the old privilege of women who had three children, which is to have no curator (Plutarch, Life of Numa).

Claudius granted it to them (Dio, book LX).

Apud eum law, following De manumissionib, §1.

Dio, book LV.

See, in Cicero’s De Officiis, his thoughts on this spirit of speculation.

Nazarius, in Panegyricus Constantini, in the year 321.

See Laws 1, 2, 3, in the Theodosian Code, De bonis maternis, maternique generis, etc., and single law in the same Codex, De bonis quæ filiis familias ex matrimonio acquiruntur.

Single law in Codex Theodosianus, De infirmandis pœnis cælibatdus et orbitatis.

Sozomen, p. 27.

Laws 2 and 3, Codex Theodosianus, De jure liberorum.

Law “Sancimus,” Codex, De nuptiis.

Nouvella 127, ch. iii ; Novella 118, ch. v.

Law 54 following De conditionibus et demonstrationibus.

Law 5, §4, De jure patronatus.