Front Page Titles (by Subject) CHAP. XXI.: Of the Laws of the Romans relating to the Propagation of the Species. - Complete Works, vol. 2 The Spirit of Laws
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CHAP. XXI.: Of the Laws of the Romans relating to the Propagation of the Species. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws 
The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.
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Of the Laws of the Romans relating to the Propagation of the Species.
THE ancient laws of Rome endeavoured greatly to incite the citizens to marriage. The senate and the people made frequent regulations on this subject, as Augustus says in his speech related by Dio* .
Dionysius Halicarnasseus† cannot believe, that after the death of three hundred and five of the Fabii, exterminated by the Veientes, there remained no more of this family but one single child; because the ancient law, which obliged every citizen to marry and to educate all his children‡ , was still in force.
Independently of the laws, the censors had a particular eye upon marriages, and according to the exigencies of the republic, engaged them to it by∥ shame and by punishments.
The corruption of manners that began to take place, contributed vastly to disgust the citizens against marriage, which was painful to those who had no taste for the pleasures of innocence. This is the purport of that speech§ which Metellus Numidicus, when he was censor, made to the people: “If it were possible for us to do without wives, we should deliver ourselves from this evil: but as nature has ordained that we cannot live very happily with them, nor subsist without them, we ought to have more regard to our own preservation, than to transient gratifications.”
The corruption of manners destroyed the censorship, which was itself established to destroy the corruption of manners: for when this depravation became general, the censor lost his power** .
Civil discords, triumvirates, and proscriptions, weakened Rome more than any war she had hitherto engaged in. They left but few citizens* , and the greatest part of them unmarried. To remedy this last evil, Cæsar and Augustus re-established the censorship, and would even be † censors themselves. Cæsar gave ‡ rewards to those who had many children. All ∥ women under forty-five years of age, who had neither husband nor children, were forbid to wear jewels, or to ride in litters; an excellent method thus to attack celibacy by the power of vanity. The laws of Augustus§ were more pressing: he imposed** new penalties on such as were not married, and increased the rewards both of those who were married, and of those who had children. Tacitus calls these Julian laws†† ; to all appearance they were founded on the ancient regulations made by the senate, the people, and the censors.
The law of Augustus met with innumerable obstacles; and thirty-four years∥∥ after it had been made, the Roman knights insisted on its being abolished. He placed on one side such as were married, and on the other side those who were not: these last appeared by far the greatest number; upon which the citizens were astonished and confounded. Augustus, with the gravity of the ancient censors, addressed them in this manner§§ :
“While sickness and war snatch away so many citizens, what must become of this state if marriages are no longer contracted? the city does not consist of houses, of porticos, of public places, but of inhabitants. You do not see men, like those mentioned in Fable, starting out of the earth to take care of your affairs. Your celibacy is not owing to the desire of living alone: for none of you eats or sleeps by himself. You only seek to enjoy your irregularities undisturbed. Do you cite the example of the Vestal Virgins? If you preserve not the laws of chastity, you ought to be punished like them. You are equally bad citizens, whether your example has an influence on the rest of the world, or whether it be disregarded. My only view is the perpetuity of the republic. I have increased the penalties of those who have disobeyed; and with respect to rewards, they are such, as I do not know whether virtue has ever received greater. For less will a thousand men expose life itself; and yet will not these engage you to take a wife, and provide for children?”
He made a law, which was called after his name, Julia, and Papia Poppæa, from the names of the consuls* for part of that year. The greatness of the evil appeared, even in their being elected: Dio† tells us, that they were not married, and that they had no children.
This decree of Augustus was properly a code of laws, and a systematic body of all the regulations that could be made on this subject. The Julian‡ laws were incorporated into it; and received a greater strength. It was so extensive in its use, and had an influence on so many things, that it formed the finest part of the civil law of the Romans.
We find* parts of it dispersed in the precious fragments of Ulpian, in the laws of the Digest, collected from authors who wrote on the Papian laws, in the historians and others who have cited them, in the Theodosian code, which abolished them, and in the works of the fathers, who have censured them, without doubt, from a laudable zeal for the things of the other life, but with very little knowledge of the affairs of this.
These laws had many heads† , of which we know thirty-five. But to return to my subject as speedily as possible, I shall begin with that head, which Aulus Gellius‡ informs us was the seventh, and relates to the honours and rewards granted by that law.
The Romans, who for the most part sprung from the cities of the Latins, which were Lacedæmonian∥ colonies, and had received a part of their laws even from those cities§ , had, like the Lacedæmonians, such veneration for old age, as to give it all honour and precedency. When the republic wanted citizens, she granted to marriage, and to a number of children, the privileges which had been given to age†† . She granted some to marriage alone, independently of the children which might spring from it: this was called the right of husbands. She gave others to those who had any children, and larger still to those who had three children. These three things must not be confounded. These last had those privileges which married men constantly enjoyed; as for example, a particular place in the theatre* ; they had those which could only be enjoyed by men who had children; and which none could deprive them of but such as had a greater number.
These privileges were very extensive. The married men, who had the most children, were always preferred† , whether in the pursuit, or in the exercise of honours. The consul, who had the most numerous offspring, was the‡ first who received the fasces; he had his choice of the∥ provinces: the senator, who had most children, had his name written first in the catalogue of senators, and was the first in giving his opinion§ in the senate. They might even stand sooner than ordinary for an office, because every child gave a dispensation of a year** . If an inhabitant of Rome had three children, he was exempted from all troublesome offices†† . The free-born women who had three children, and the freed-women who had four, passed‡‡ out of that perpetual tutelage, in which they had been∥∥ held by the ancient laws of Rome.
As they had rewards, they had also penalties§§ . Those who were not married, could receive no advantage from the will of any person that was not a relation††† ; and those who, being married, had no children, could receive only half* . The Romans, says Plutarch† , marry only to be heirs, and not to have them.
The advantages which a man and his wife might receive from each other by will‡ , were limited by law. If they had children of each other, they might receive the whole; if not, they could receive only a tenth part of the succession on the account of marriage; and if they had any children by a former venter, as many tenths as they had children.
If a husband absented himself∥ from his wife on any other cause than the affairs of the republic, he could not inherit from her.
The law gave to a surviving husband or wife two years§ to marry again, and a year and a half in case of a divorce. The fathers who would not suffer their children to marry, or refused to give their daughters a portion, were obliged to do it by the magistrates** .
They were not allowed to betroth, when the marriage was to be deferred for more than two years†† ; and as they could not marry a girl till she was twelve years old, they could not be bethrothed to her, till she was ten. The law would not suffer them to trifle* to no purpose; and under a pretence of being betrothed, to enjoy the privileges of married men.
It was contrary to law for a man of sixty to marry † a woman of fifty. As they had given great privileges to married men, the law would not suffer them to enter into useless marriages. For the same reason, the Calvisian Senatus Consultum declared the marriage of a woman above fifty, with a man less than sixty, to be‡ unequal; so that a woman of fifty years of age could not marry, without incurring the penalties of these laws. Tiberius added∥ to the rigour of the Papian law, and prohibited men of sixty from marrying women under fifty; so that a man of sixty could not marry in any case whatsoever, without incurring the penalty. But Claudius abrogated§ this law made under Tiberius.
All these regulations were more conformable to the climate of Italy, than to that of the North, where a man of sixty years of age has still a considerable degree of strength; and where women of fifty are not always past child-bearing.
That they might not be unnecessarily limited in the choice they were to make, Augustus permitted all the free-born citizens, who were not senators†† , to marry freed-women‡‡ . The Papian∥∥ law forbad the senators marrying freed-women, or those who had been brought to the stage; and from the time of §§ Ulpian, free-born persons were forbid to marry women who had led a disorderly life, who had played in the theatre, or who had been condemned by a public sentence. This must have been established by a decree of the senate. During the time of the republic they had never made laws like these, because the censors corrected this kind of disorders as soon as they arose, or else prevented their rising.
Constantine* made a law, in which he comprehended, in the prohibition of the Papian law, not only the senators, but even such as had a considerable rank in the state, without mentioning persons in an inferior station: this constituted the law of those times. These marriages were therefore no longer forbidden, but to the free-born comprehended in the law of Constantine. Justinian† however abrogated the law of Constantine, and permitted all sorts of persons to contract these marriages: and thus we have acquired so fatal a liberty.
It is evident, that the penalties inflicted on such as married contrary to the prohibition of the law, were the same as those inflicted on persons who did not marry. These marriages did not give them any civil advantage‡ ; for the dowry∥ was confiscated§ after the death of the wife.
Augustus having adjudged the succession and legacies of those, whom these laws had declared incapable, to the public treasury†† , they had the appearance rather of fiscal, than of political and civil laws. The disgust they had already conceived at a burden which appeared too heavy, was increased by their seeing themselves a continual prey to the avidity of the treasury. On this account it became necessary, under Tiberius, that* these laws should be softened, that Nero should lessen the rewards given out of the treasury to the† informers, that Trajan‡ should put a stop to their plundering, that Severus∥ should also moderate these laws, and that the civilians should consider them as odious, and in all their decisions deviate from the literal rigour.
Besides, the emperors enervated§ these laws, by the privileges they granted, of the rights of husbands, of children, and of three children. More than this, they gave†† particular persons a dispensation from the penalties of these laws. But the regulations established for the public utility seemed incapable of admitting an alleviation.
It was highly reasonable, that they should grant the rights of children to the vestals‡‡ , whom religion retained in a necessary virginity: they gave, in the same manner, the privilege of∥∥ married men to soldiers, because they could not marry. It was customary to exempt the emperors from the constraint of certain civil laws. Thus Augustus was freed from the constraint of the law, which limited the power of§§ enfranchising, and of that which set bounds to the right of* bequeathing by testament. These were only particular cases: but, at last, dispensations were given without discretion, and the rule itself became no more than an exception.
The sects of philosophers had already introduced in the empire a disposition that estranged them from business; a disposition which could not gain ground in the time of the† republic, when every body was employed in the arts of war and peace. From hence arose an idea of perfection, as connected with a life of speculation; from hence an estrangement from the cares and embarrassments of a family. The Christian religion coming after this philosophy, fixed, if I may make use of the expression, the ideas which that had only prepared.
Christianity stamped its character on jurisprudence; for empire has ever a connexion with the priesthood. This is visible from the Theodosian code, which is only a collection of the decrees of the Christian emperors.
A panegyrist‡ of Constantine says to that Emperor, “Your laws were made only to correct vice, and to regulate manners: you have stripped the ancient laws of that artifice, which seemed to have no other aim than to lay snares for simplicity.”
It is certain, that the alterations made by Constantine took their rise, either from sentiments relating to the establishment of Christianity, or from ideas conceived of its perfection. From the first proceeded those laws which gave such authority to bishops, and which have been the foundation of the ecclesiastical jurisdiction: from hence those laws which weakened paternal authority* , by depriving the father of his property in the possessions of his children. To extend a new religion, they were obliged to take away the dependance of children, who are always leaft attached to what is already established.
The laws made with a view to Christian perfection were more particularly those by which the† penalties of the Papian laws were abolished; the unmarried were equally exempted from them, with those who being married had no children.
“These laws were established,” says an ecclesiastic ‡ historian, “as if the multiplication of the human species was an effect of our care; instead of being sensible that the number is increased or diminished, according to the order of providence.”
Principles of religion have had an extraordinary influence on the propagation of the human species. Sometimes they have promoted it, as amongst the Jews, the Mahometans, the Gaurs, and the Chinese; at others, they have put a damp to it, as was the case of the Romans upon their conversion to Christianity.
They every where incessantly preached up continency; a virtue the more perfect, because in its own nature it can be practised but by very few.
Constantine had not taken 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.
By the ancient institutions, the natural right which every one had to marry, and beget children, could not be taken away. Thus when they received a ‡ legacy, on condition of not marrying, or when a patron made his∥ freed-man swear, that he would neither marry nor beget children, the Papian law annulled both the§ condition and the oath. The clauses on continuing in widowhood, established amongst us, contradict the ancient law, and descend from the constitutions of the emperors, founded on ideas of perfection.
There is no law that contains an express abrogation of the privileges and honours, 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 honour; 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. God 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 sexes 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.
[* ]Lib. 56.
[† ]Lib. 2.
[‡ ]In the year of Rome 277.
[∥ ]See what was done in this respect in T. Livy, lib. 45. The Epitome of T. Livy, lib. 59. Aulus Gellius, lib. i. cap. 6. Valerius Maximus, lib. ii. cap. 19.
[§ ]It is in Aulus Gellius, lib. i. cap. 6.
[** ]See what I have said in book v. chap. 19.
[* ]Cæsar, 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.
[† ]See Dio, lib. 43, and Xiphilinus in August.
[‡ ]Dio, lib. 43, Suetonius, life of Cæsar, chap. 20; Appian, lib. 2. of the civil war.
[∥ ]Eusebius, in his Chronicle.
[§ ]Dio, lib. 54.
[** ]In the year of Rome 736.
[†† ]Julias rogationes, Annal. lib. 3.
[∥∥ ]In the year of Rome 762. Dio. lib. 56.
[§§ ]I have abridged this speech, which is of a tedious length; it is to be found in Dio, lib. 56.
[* ]Marcus Papius Mutilus, and Q. Poppæus, Sabinus, Dio, lib. 56.
[‡ ]The 14th title of the fragments of Ulpian distinguishes very rightly between the Julian and the Papian law.
[* ]James Godfrey has made a collection of these.
[† ]The 35th is cited in the 19th law ff. de ritu nuptiarum.
[‡ ]Lib. ii. cap. 15.
[∥ ]Dionys. Halicarnasseus.
[§ ]The deputies of Rome, who were sent to search into the laws of Greece, went to Athens, and to the cities of Italy.
[†† ]Aulus Gellius, lib. ii. cap. 15.
[* ]Suetonius in Augusto, cap. 44.
[† ]Tacitus, lib. 2. Ut numerus liberorum in candidatis præpolleret, quod lex jubebat.
[‡ ]Aulus Gellius, lib. 2. cap. 15.
[∥ ]Tacitus, Ann. lib. 15.
[§ ]See Law 6. sect. 5. de decurion.
[** ]See Law 2. ff. de minorib.
[†† ]Law 1. and 2. ff. de vacatione et excusat. munerum.
[‡‡ ]Frag. of Ulpian, tit. 29. sect. 3.
[∥∥ ]Plutarch, life of Numa.
[§§ ]See the fragments of Ulpian, tit. 14, 15, 16, 17, and 18, which compose one of the most valuable pieces of the ancient civil law of the Romans.
[††† ]Sozom. lib. i. cap. 9. they could receive from their relations. Frag. of Ulpian, tit. 16. sect. 1.
[* ]Sozom. lib. i. cap. 9. et leg. unic. cod. Theod. de Infirm. pœnis cælib. et orbit.
[† ]Moral Works, of the love of fathers towards their children.
[‡ ]See a more particular account of this in the fragm. of Ulpian, tit. 15. and 16.
[∥ ]Fragm. of Ulpian, tit. 16. sect. 1.
[§ ]Fragm. of Ulpian, tit. 14. It seems the first Julian laws allowed three years. Speech of Augustus in Dio, lib. 56. Suetonius, life of Augustus, cap. 34. Other Julian laws granted but one year: the Papian law gave two. Fragm. of Ulpian, tit. 14. These laws were not agreeable to the people; Augustus therefore softened or strengthened them, as they were more or less disposed to comply with them.
[** ]This was the 35th head of the Papian law. Leg. 19. ff. de ritu nuptiarum.
[†† ]See Dio, lib. 54. anno 736. Suetonius in Octavio, cap. 34.
[* ]Dio, lib. 54. and in the same Dio, the speech of Augustus, lib. 56.
[† ]Fragm. of Ulpian, tit. 16. and the 27th law, cod. de nuptiis.
[‡ ]Frag. of Ulpian, tit. 16. sect. 3.
[∥ ]See Suetonius in Claudio, cap. 23.
[§ ]See Suetonius, life of Claudius, cap. 23. and the Fragm. of Ulpian, tit. 16. sect. 3.
[†† ]Dio, lib. 54. Fragm. of Ulpian, tit, 13.
[‡‡ ]Augustus’s speech in Dio, lib. 56.
[∥∥ ]Fragm. of Ulpian, cap. 13. and the 44th law, ff. de ritu nuptiarum.
[§§ ]Fragm. of Ulpian, tit. 13, and 16.
[* ]See Law 1. in cod. de natur. lib,
[† ]Novell. 177.
[‡ ]Law 37. ff. de operib. libertorum, sect. 7. Frag. of Ulpian, tit. 16. sect. 2.
[∥ ]Fragm. of Ulpian, tit. 16. sect. 2.
[§ ]See book xxvi. chap. 13.
[†† ]Except in certain cases. See the Fragment of Ulpian, tit. 18. and the only law in Cod. de Caduc. tollend.
[* ]Relatum de moderanda Papia Poppæa. Tacit. Annal. lib. iii. page 117.
[† ]He reduced them to the fourth part. Suetonius in Nerone, cap. 10.
[‡ ]See Pliny’s panegyric.
[∥ ]Severus extended even to twenty-five years for the males, and to twenty for the females, the time fixed by the Papian law, as we see by comparing the Fragment of Ulpian, tit. 16, with what Tertullian says, Apol. cap. 4.
[§ ]P. Scipio, the censor, complains, in his speech to the people, of the abuses which were already introduced; that they received the same privileges for adopted, as for natural children. Aulus Gellius, lib. 5. cap. 19.
[†† ]See the 31st law, ff. de ritu nuptiarum.
[‡‡ ]Augustus, in the Papian law, gave them the privilege of mothers. See Dio, lib. 66. Numa had granted them the ancient privilege of women who had three children, that is, of having no guardian. Plutarch, life of Numa.
[∥∥ ]This was granted them by Claudius. Dio, lib. 60.
[§§ ]Leg. apud cum ff. de manumissionib. sect. 1.
[* ]Dio, lib. 55.
[† ]See in Cicero’s Offices, his sentiments on this spirit of speculation.
[‡ ]Nazarius in panegyrico Constantini, anno 321.
[* ]See Law 1, 2, 3, in the Theodosian code, de bonis maternis maternique generis, &c. and the only law in the same code, de bonis quæ filiis famil. acquiruntur.
[† ]Leg. unic. cod. Theod. de infirm. pan. cælib. & orbit.
[‡ ]Sozomenus, page 27.
[∥ ]Leg. 2. & 3. cod. Theod. de jur liber.
[* ]Leg. Sancimus, cod. de nuptiis.
[† ]Novell. 127. cap 3. Novell. 118. cap. 5.
[‡ ]Leg. 54. ff. de condit. et demonst.
[∥ ]Leg. 5. sect. 4. de jure patronatus.
[§ ]Paul, in his sentences, lib. iii. tit. 4. sect. 15.