Moral Philosophy: Ethics, Deontology and Natural Law Part 19

77), teaching us ordinarily to affect limited monarchy or limited democracy. But as the mean must ever be chosen in _relation to ourselves_, a Constantine or an Athenian Demos may represent the proper polity in place under extraordinary circ.u.mstances.

_Reading_.--_The Month_ for July, 1886, pp. 338, seqq.

SECTION VI.--_Of the Elementary and Original Polity_.

1. "All things are double, one against another." (Ecclus. xlii. 25.) The son of Sirach may have had in view the human body as divisible by a vertical median line into two symmetrical halves. But in each of the halves thus made, the same organ or limb is never repeated twice in exact likeness, nor do any two parts render exactly the same service.

This variety of organs in the bodies of the higher animals is called _differentiation_. As we descend in the animal series we find less and less of differentiation, till we reach the lowest types, which are little more than a mere bag, whence their name of Ascidians. In that State which has London for its capital city, we behold one of the highest types of political existence. Sovereignty is there divided, as usual in modern States, into three branches, Legislative, Judicial, and Executive. Each of these branches is shared among many persons in various modes and degrees, so that in practice it is not easy to enumerate and specify the holders of sovereignty, nor to characterize so complex a polity. At the other end of the scale we may represent to ourselves 250 "squatters" forming an independent State in the far West of America. They are a pure democracy, and the sovereignty belongs to them all jointly. Is a man to be tried for his life? The remaining 249 are his judges. Is a tax to be levied on ardent spirits? The 250 vote it. Is there a call to arms? The 250 marshal themselves to war. That clearly is the condition of minimum differentiation, where one citizen is in all political points the exact counterpart of all the rest. Of all polities it is the most _simple and elementary_ possible. And so far forth as the natural order of evolution in polities, as in all other things, is from simple to compound, this is also the _original_ polity. It is also the _residuary_ polity, that, namely, which comes to be, when all other government in the State vanishes. Thus, if the Powder Plot had succeeded, and King James I., with the royal family, Lords and Commons, with the judges and chief officers of the Executive, had all perished together, the sovereign authority in England would have devolved upon the nation as a whole.

2. Certain monarchical writers shrink from the recognition of pure democracy as either the first or the last term of the series of polities. They do not recognize it as a polity at all. When there is no governing body distinct from the ma.s.s of people at large, a government must be formed, they say, by popular suffrage. Meanwhile, according to them, the sovereign power rests not with the body of electors: either it is not yet created, or it has lapsed: but as soon as the election is made, they see sovereignty breaking forth like the sun rising, in the person, single or composite, who is the object of the people's choice. This would be the correct view of the matter, if no choice were left to the electors, but they were obliged to acquiesce in some prearranged polity, as a Monarchy, or a Council of Ten, and could do nothing more than designate the Monarch or the Council. Under such a restriction the Cardinals elect the Pope. But our electors can inst.i.tute any polity they see fit. They are a Const.i.tuent a.s.sembly. They may fix upon a monarchy or a republic, two or one legislative chambers, a wide or a narrow franchise, home rule or centralization: or they may erect a Provisional Government for five years with another appeal to the people at the end of that term. More than that. They could impose a protective duty upon corn, or endow the Roman Catholic religion, making such protection or endowment a fundamental law (s. iv., n. 8, p. 323), and withholding from the government, which they proceed to set up, the power of meddling with that law. They are then not only a Const.i.tuent but likewise a Legislative a.s.sembly. But this power of making laws and moulding the future const.i.tution of the State, what else is it but sovereign power, and indeed the very highest manifestation of sovereignty?

3. So far we follow Suarez in his controversy with James I. The _natural_ order of evolution certainly is, that the State should be conceived in pure democracy, and thence develop into other polities.

But in speaking as though the natural order had always been the _actual_ order, Suarez seems to have been betrayed by the ardour of controversy into the use of incorrect expressions. It is true in the abstract, as he says, that "no natural reason can be alleged why sovereignty should be fixed upon one person, or one set of persons, rather than upon another, short of the whole community." This is true, inasmuch as in the abstract we view men as men, in which specific character they are all equal. But in the concrete and real life, the primeval citizens who start a commonwealth are rarely alike and equal, as the founders of the American Republic at the separation from Great Britain pretty well were, but some men, or some order of men, will so much excel the rest in ability, position, or possessions, that the rest have really no choice but to acquiesce in those gifted hands holding the sovereignty.

_Readings_.--Suarez, _De Legibus_, III., iii., 6; _ib._, III., iv., nn. 2, 3, 4; _Defensio Fidei_, III., ii., nn. 7, 8, 9; Ar., _Pol._, III., xiv., 12; _ib._, VIII., x., nn. 7, 8; _The Month_ for July, 1886, pp. 342-345.

SECTION VII.--_Of Resistance to Civil Power_.

"When they say the King owes his crown to the choice of his people, they tell us that they mean to say no more than that some of the King's predecessors have been called to the throne by some sort of choice. Thus they hope to render their proposition safe by rendering it nugatory." (Burke, _Reflections on French Revolution_.)

1. The great question about civil power is, not whence it first came in remote antiquity, but whence it is now derived and flows continually as from its source, whether from the free consent of subjects so long as that lasts, or whether it obtains independently of their consent. Can subjects overthrow the ruler, or alter the polity itself, as often as they have a mind so to do? or has the ruler a right to his position even against the will of his people? A parallel question is, can a province annexed to an empire secede when it chooses, as South Carolina and other Confederates once attempted secession from the American Union?

2. These questions raise two totally different issues, which must be first carefully distinguished and then severally answered. The first point at issue is whether subjects may dethrone their ruler, a people alter their polity, or a province secede from an empire, _at discretion_. The second point is, whether the same may be done _under pressure of dire injustice_. One little matter of phraseology must be rectified before an answer is returned to this first point. The question whether _subjects_ may dethrone their _ruler_ at discretion, from the terms in which it is drawn, can lead to none but a negative answer. From the fact that they are subjects, and this man, or this body of men, their ruler, their allegiance cannot be wholly discretionary. That sovereign is a mere man of straw, there is no soul and substance of sovereign power in him, who may be knocked down and carted away for rubbish, any moment his so-called subjects please.

Rousseau is quite clear on this point. The true debateable form of the question is, whether the people, being themselves sovereign, can remove at will the official persons who actually administer the State; whether they can change the polity, and whether the inhabitants of a province can secede. The answer now is simple: all depends upon the polity of the particular country where the case comes for discussion.

And if so it be that the const.i.tution makes no provision one way or another, any dispute that may occur must be settled by amicable arrangement among the parties concerned: if they cannot amicably agree, they must fight. To save this last eventuality, it were well that any claim which the people in any country may have to remove princes and statesmen from office, to alter the polity, or to divide the empire, should be made matter of the clearest understanding and most express and unambiguous stipulation. Even so, such a provision must be generally viewed with disfavour by the political philosopher, seeing how it tends to the weakening and undermining of government; whereas the same considerations that make out government to be at all a boon and a necessity to human nature, argue incapacity and instability in the governing power to be a deplorable evil. We must add, that where the people keep in their hands any power to alter the polity, or transfer the administration to other hands, there they hold part at least of the sovereignty; and the alteration or transference is effected by them, not as subjects, but as partial ruler.

3. The second point we raised was, whether a dethronement, or an alteration of polity, or a secession, may be brought about, not indeed at discretion for any cause, but under pressure of dire injustice. It comes to this: May the civil power be resisted when it does grievous wrong? Let us begin our reply with another question: May children strike their parents? No. Not even in self-defence? when the parent is going about to do the child some grievous bodily hurt? That is an unpleasant question, but the answer is plain. We can make no exceptions to the rule of self-defence. Self-defence in extreme cases may raise the arm of a child against its parent: in a similar extremity it may set a people in conflict with their civil ruler.

Still we regard with horror the idea of striking a parent, and speak of it generally as a thing never to be done: so should we regard and speak of rebellion. We should not parade it before men's eyes as a deed to be contemplated, admired, and readily put in execution. "I confess to you, Sir," writes Burke, "I never liked this continual talk of resistance and revolution, or the practice of making the extreme medicine of the const.i.tution its daily bread."

4. The conditions under which the civil authority may be withstood in self-defence, are fairly stated in the _Dublin Review_ for April, 1865, p. 292. We must premise, that such a course of self-defence once publicly entered upon is like a rock rolled over the brow of a steep mountain: down it rolls and rebounds from point to point, gathering momentum in the descent, till in the end the ruler, once defied, has to be dethroned, the polity subverted, the empire rent, or they who made the resistance must perish.

"Resistance is lawful:--(1) When a government has become substantially and habitually tyrannical, and that is when it has lost sight of the common good, and pursues its own selfish objects to the manifest detriment of its subjects, especially where their religious interests are concerned. (2) When all legal and pacific means have been tried in vain to recall the ruler to a sense of his duty. (3) When there is a reasonable probability that resistance will be successful, and not entail greater evils than it seeks to remove. (4) When the judgment formed as to the badness of the government, and the prudence of resistance thereto, is not the opinion only of private persons or of a mere party: but is that of the larger and better portion of the people, so that it may morally be considered as the judgment of the community as a whole."

5. Side by side with this we will set the teaching of Leo XIII., Encyclical, _Quod Apostolici_.

"If ever it happens that civil power is wielded by rulers recklessly and beyond all bounds, the doctrine of the Catholic Church does not allow of insurgents rising up against them _by independent action (proprio marte)_, lest the tranquillity of order be more and more disturbed, or society receive greater injury thereby: and when things are come to such a pa.s.s that _there appears no other ray or hope of preservation_, the same authority teaches that a remedy must be sought in the merits of Christian patience and in earnest prayers to G.o.d."

The words we have italicized seem to point to conditions (4) and (3) respectively, as laid down by the writer in the _Dublin Review_.

For an instance of a king dethroned, not _proprio marte_, but with every appearance at least of an act of the whole nation, see the dethronement of Edward II., as related by Walsingham, _Historia Anglicana_, I., pp. 186, 187, Rolls Series.

6. "We save ourselves the more virulent and destructive diseases of revolution, sedition, and civil war, by submitting to the milder type of a change of ministry." (_Times_, April 7, 1880.)

7. It is not monarchical governments alone that can ever be resisted lawfully: but what is sauce for the king's goose is sauce also for the people's gander. There is no special sanct.i.ty attaching to democracy.

It might seem that, since resistance requires to be justified by the approval of "the larger and better portion of the people" (n. 4, condition [4]) no just resistance can ever be offered to the will of the democratic majority. But the said majority may be in divers ways coerced and cajoled, a mere packed majority, while the malcontents may be, if not "the larger," clearly "the better" portion of the community. (s. iv., n. 5, p. 321.)

_Readings_.--St. Thos., _De Regimine Principum_, i., 6; 2a 2ae, q. 42, art. 2; 2a 2ae, q, 69, art. 4, in corp.; Locke, _Of Civil Government_, nn. 200, 201, 203, 204, 208, 209, 223, 224, 225, 227, 229, 230, 232.

SECTION VIII.--_Of the Right of the sword_.

1. _By the right of the sword_ is technically meant the right of inflicting capital punishment, according to the Apostle's words: "But if thou do that which is evil, fear: for he beareth not the sword in vain." (Rom. xiii. 4.) We commonly call it _the power of life and death_.

2. That a government may be a working government, as it should be (s.

iv., n. 2, p. 319), it must not only make laws, but bear out and enforce its legislation by the sanction of punishment. "If talk and argumentation were sufficient to make men well-behaved, manifold and high should be the reward of talkers.... But in fact it appears that talking does very well to incite and stimulate youths of fine mind; and lighting upon a n.o.ble character and one of healthy tastes, it may dispose such a person to take up the practice of virtue: but it is wholly unable to move the mult.i.tude to goodness; for it is not their nature to obey conscience, but fear, nor to abstain from evil because it is wrong, but because of punishments. The mult.i.tude live by feeling: they pursue the pleasures that they like and the means thereto, and shun the opposite pains, but they have no idea, as they have had no taste, of what is right and fair and truly sweet.... The man who lives by feeling will not listen to the voice of reason, nor can he appreciate its warning. How is it possible to divert such a one from his course by argument? Speaking generally, we say that pa.s.sion yields not to argument but to constraint.... The mult.i.tude obey on compulsion rather than on principle, and from fear of pains and penalties rather than from a sense of right. These are grounds for believing that legislators, while exhorting to virtue and putting certain courses of conduct forward as right and honourable, in the expectation that good men will obey the call, as their habits lead them, should at the same time inflict chastis.e.m.e.nts and punishments upon the crossgrained and disobedient; and as for the incurably vicious, put them beyond the pale altogether. The result will be, that the decent and conscientious citizen will listen to the voice of reason, while the worthless votary of pleasure is chastened by pain like a beast of burden.... Law has a coercive function, appealing to force, notwithstanding that it is a reasoned conclusion of practical wisdom and intelligence. The interference of persons is odious, when it stands out against the tide of pa.s.sion, even where it is right and proper to interfere; but no odium attaches to statute law enjoining the proper course." (Aristotle, _Ethics_, X., ix.)

3. Aristotle seems hard upon the ma.s.ses, likening them to brutes who must be governed by the whip. He may be supposed to speak from experience of the men of his time. If humanity has somewhat improved in two and twenty centuries, yet it cannot be contended that the whip is grown unnecessary and beyond the whip the sword. But we must observe a certain _modus operandi_ of punishment which Aristotle has not noted, a more human mode than the terror of slavish fear. Just punishment, felt as such, stimulates the conscience to discern and abhor the crime. Men would think little of outraging their own nature by excess, did they not know that the laws of G.o.d and man forbid such outrage. Again, they would think little even of those laws, were not the law borne out by the sanction of punishment. A law that may be broken with impunity is taken to be the toying of a legislator not in earnest. Men here are as children. A child is cautioned against lying.

He reckons little of the caution: he tells a lie, and a flogging ensues. Thereupon his mind reverts to what he was told: he sees that the warning was meant in earnest. He reflects that it must have been a wicked thing, that lie which his father, the object of his fond reverence, chastises so sternly. If the thing had been let pa.s.s, he would scarcely have regarded it as wicked. Next time he is more on his guard, not merely because he fears a beating, but because he understands better than before that lying is wrong. The awe in which grown-up people stand of "a red judge," is not simple fear, like that which keeps the wolf from the flock guarded by shepherds and their dogs: but they are alarmed into reflection upon the evil which he is G.o.d's minister to avenge, and they are moved to keep the law, "not only for wrath, but for conscience sake." From this we see that for punishment to be really salutary, its justice must be manifest to the culprit, or to the lookers on, at least in their cooler moments. A punishment the justice of which is not discernible, may quell for the moment, but it does not moralise, nor abidingly deter. There must be an apparent proportion between the offence and the punishment. A Draconian code, visiting petty offences with the severity due to high misdemeanours, is more of an irritant than a represser of crime, because it goes beyond men's consciences.

4. There is in every human breast a strong sense of what the learned call _lex talionis_, and children _t.i.t for tat_. "If a man has done to him what he has done to others, that is the straight course of justice;" so says the canon of Rhadamanthus, quoted by Aristotle.

(_Eth_., V., v., 3.) We have argued the fundamental correctness of this rule. (_Ethics_, c. ix., s. iii., n. 2, p. 169.) It appears in the divine direction given to Nod: "Whoso sheddeth man's blood, his blood shall be shed." (Gen. ix. 6.) It appears in that popular sentiment, which in some parts of America displays itself in the lynching of murderers, who have unduly escaped the hands of the law; and which, under a similar paralysis of law in Corsica, broke out in blood-feuds, whereby the nearest relative of the deceased went about to slay the murderer. Such taking of justice into private hands is morally unlawful, as we have proved. (_Ethics_, c. ix., s. iii., n. 4, p. 171; _Natural Law_, c. viii., s. ii., nn. 2, 3, pp. 308, 309.) It is a violent outburst of a natural and reasonable sentiment deprived of its legitimate vent. Unquestionably then there is an apparent and commonly recognized fairness of retribution in the infliction of capital punishment for murder. Thus the first condition of appropriate punishment is satisfied, that it be _manifestly proportioned to the crime_.

5. Capital punishment is moreover expedient, nay, necessary to the State. The right to inflict it is one of the essential prerogatives of government, one of those prerogatives the sum of which, as we have seen, is a constant quant.i.ty everywhere, (s. iv., n. 7, p. 322). No Government can renounce it. The abolition of capital punishment by law only makes the power of inflicting it _latent_ in the State (s. iv., n. 8, p. 323); it does not and cannot wholly take the power away. You ask: Is there not hope, that if humanity goes on improving as it has done, capital punishment will become wholly unnecessary? I answer that--waiving the question of the prospect of improvement--in a State mainly consisting of G.o.d-fearing, conscientious men, the _infliction_ of capital punishment would rarely be necessary, but the _power to inflict it_ could never be dispensed with. If men ever become so ideally virtuous, the right of the State to visit gross crime with death cannot hurt them, and it will strengthen their virtue, as all human social virtue will ever need strengthening.

6. The abiding necessity of this _right of the sword_ is argued from the strength and frequency of the provocations to deeds of bloodshed and violence that must ever be encountered in human society. What these provocations are, how many and how strong, may be left to the reflection of the student who reads his newspaper, or even his novel.

Not the least appalling thing about crime, atrocious crime especially, is the example that it gives and the imitators whom it begets. It is not merely that it sets the perpetrator himself on the downward path, so that, unless detected and punished, a man's first deed of blood is rarely his last: it draws others after him by a fatal fascination.

Like the images which the Epicureans supposed all visible objects to slough off and shed into the air around them, such phantoms and images of guilt float about a great crime, enter into the mind of the spectator and of the hearer, and there, upon slight occasion, turn to actual repet.i.tions of the original deed. The one preventive is to append to that deed a punishment, the image of which shall also enter into the mind, excite horror, and disenchant the recipient. This is not to be done by mere banishment of the criminal, nor by his perpetual incarceration. Exile and prison--particularly in view of the humanity of a modern penitentiary--do not sufficiently strike the imagination. One sweet hour of revenge will often appear cheap at the price of ten years' penal servitude. There is nothing goes to the heart like death. Death is the most striking of terrors; it is also the penalty that most exactly counterpoises in the scales of justice the commission of a murderous crime. All States need this dread figure of the Sword-bearer standing at the elbow of the Sovereign.

7. But is not every capital sentence a trespa.s.s upon the dominion of G.o.d, Lord of life and death? No, for that same G.o.d it is who has endowed man with a nature that needs to grow up in civil society, which civil society again needs for its maintenance the power to make laws, to sit in judgment on transgressors, and in extreme cases, as we have proved, having tried them and found them guilty, to take away even their lives, to the common terror and horror of the crime. G.o.d, who wills human nature to be, wills it to be on the terms on which alone it can be. To that end He has handed over to the civil ruler so much of His own divine power of judgment, as shall enable His human delegate to govern with a.s.surance and effect. That means the right of the sword.

8. It may be objected that to kill any man is to treat him as a _thing_, not a person, as an _heterocentric_, not an _autocentric_ being, which is a proceeding essentially unnatural and wrong, (c. ii., s. i., n. 2, p. 203.) St. Thomas's answer here is peculiarly valuable:

"Man by sinning withdraws from the order of reason, and thereby falls from human dignity, so far as that consists in man being naturally free and existent for his own sake [autocentric]; and falls in a manner into the state of servitude proper to beasts, according to that of the Psalm (xlviii. 15): _Man when he was in honour did not understand: he hath matched himself with senseless beasts and become like unto them_; and Proverbs xi. 29: _The fool shall serve the wise_.

And therefore, though to kill a man, while he abides in his native dignity, be a thing of itself evil, yet to kill a man who is a sinner may be good, as to kill a beast. For worse is an evil man than a beast, and more noxious, as the Philosopher says." (2a 2ae, q. 64, art.

2, ad 3.)

Hence observe:--(1) That a Utilitarian who denies free will, as many of that school do, stands at some loss whence to show cause why even an innocent man may not be done to death for reasons of State, _e.g._, as a sanitary precaution.

(2) That the State must come to a conclusion about inward dispositions by presumption from overt acts, arguing serious moral guilt before proceeding to capital punishment. To this extent the State is remotely a judge of sin. But it does not punish sin _retributively_ as sin, nor even _medicinally_. It punishes the violation of its own laws, to _deter_ future offenders. (_Ethics_, c. ix., s. iii., nn. 4-6, pp.

171-174.)

_Readings_.--St. Thos., 2a 2ae, q. 64, art. 2, 3; 2a 2ae, q. 108, art.

3.

SECTION IX.--_Of War_.

1. War, a science by itself, has no interest for the philosopher except as an instance on a grand scale of self-defence. When the theory of self-defence has been mastered (c. ii. s. ii., p. 208), little further remains to be said about war. In a State, the self-defence of citizen against citizen is confined to the moment of immediate physical aggression. But in a region where the State is powerless and practically non-existent, self-defence a.s.sumes a far greater amplitude. (S. ii., n, 2, p. 309.) When the Highland chief lifted the cattle of the Lowland farmer, and the King of Scotland lay unconcerned and unable to intervene, feasting at Holyrood, or fighting on the English border, then, if there were a fair hope of recovering the booty without a disproportionate effusion of blood, the farmer did right to arm his people, march after the robber, and fight him for the stolen oxen, as the gallant Baron of Bradwardine would fain have done.

(_Waverley_, c. xv.) Here is the right of self-defence in its full development, including the right of private war. But in a private individual this is an undesirable, rank, and luxuriant growth; and when the individual comes to live, as it should be his aim to live, in a well-organized State, the growth is pruned and cut down: he may then defend himself for the instant when the State cannot defend him; but after the wrong is done, he must hold his hand, and quietly apply to the State to procure him rest.i.tution and redress. But there is no State of States, no King of Kings, upon earth; therefore, when of two independent States the one has wronged, or is about to wrong the other, and will not desist nor make amends, nothing is left for it; Nature has made no other provision, but they must fight. They must fall back upon the steel and the shotted gun, the _ratio ultima regum_.

2. The Lowland farmer above mentioned might be spoken of as _punis.h.i.+ng_ the Highland robber, _chastising_ his insolence, and the like. This is popular phraseology, but it is not accurate. Punishment, an act of _vindictive justice_, is from superior to inferior.

(_Ethics_, c. v., s. ix., n. 4, p. 104.) War, like other self-defence, is between equals. War is indeed an act of authority, of the authority of each belligerent State over its own subjects, but not of one belligerent over the other. We are not here considering the case of putting down a rebellion: rebels are not properly belligerents, and have no belligerent rights.