Moral Philosophy: Ethics, Deontology and Natural Law Part 20

3. The study of Civil and Canon Law flourished in the Middle Ages, while moral science, which is the study of the Natural Law, was still in its infancy. No wonder that the mediaeval jurists occasionally formulated maxims, which can only be squared with the principles of Natural Law by an exceeding amount of interpretation,--which are in fact much better dropped, quoted though they sometimes be by moralists of repute. One such maxim is this, that _a wrong-doer becomes the subject of the injured party by reason of the offence_. Admit this, and you can hardly keep clear of Locke's doctrine of the origin of civil power, (s. ii., _per totum_, p. 307; cf. Suarez, _De Caritate_, d. xiii., s. iv., nn. 5, 6).

4. We have only to repeat about war what we said of self-defence, that all the killing that takes place in it is _incidental_, or _indirect_.

The cannon that you see in Woolwich a.r.s.enal, the powder and torpedoes, have for their end what St. Thomas (_De Potentia_, q. 7, art. 2, ad 10) declares to be the end and object of the soldier, "to upset the foe," to put him _hors de combat_. This is accomplished in such rough and ready fas.h.i.+on, as the business admits of; by means attended with incidental results of extremest horror. But no sooner has the bayonet thrust or the bullet laid the soldier low, and converted him into a non-combatant, than the ambulance men are forward to see that he shall not die. If indeed even in the dust he continues to be aggressive, like the wounded Arabs at Tel-el-Kebir, he must be quieted and repressed a second time. Probably he will not escape with life from a second repression: still, speaking with philosophic precision, we must say that "to quiet, not to kill him," is, or should be, the precise and formal object of the will of his slayer in war. St. Thomas indeed (2a 2ae, q. 64, art. 7, in corp.) seems to allow the soldier fighting against the enemy to mean to kill his man. But by _enemy_ in this pa.s.sage we should probably understand _rebel_. The soldier spoken of is the instrument of the feudal lord bringing back to duty his rebellious va.s.sal. In the Middle Ages, till the end of the fifteenth century, the notion of independent nations scarcely found place.

In war, as all cases of self-defence, the killing is indirect. In capital punishment, on the other hand, the killing is direct: it being _chosen as a deterrent means_, that the offender be "hanged by the neck" till he is "dead, dead, dead." This disposes of the error, that capital punishment is an act of self-defence on the part of the State against evildoers. We may observe finally that by the right of the sword, and by that alone, not in self-defence, not in war, but by the hand of public justice raised against a guilty subject, can human life ever be taken _directly_.

_Reading_.--St. Thos., 2a 2ae, q. 40, art. 1.

SECTION X.--_Of the Scope and Aim of Civil Government_.

1. I beseech the pious reader not to be shocked and scandalised by the conclusions of this section. He will find them in the end a valuable support to theology. The most religious mind can have no difficulty in allowing that cookery, as such, is a business of this world only: that you retain your cook, not to save your soul, but to prepare palatable and wholesome nourishment for your body; that honesty, sobriety, and good temper are officially requisite qualifications, simply inasmuch as the contrary vices would be the plague of your kitchen and the spoiling of your dinner. In a Catholic house the soup on a Friday is made without meat. That restriction is observed, not as a point of culinary art, but because, whereas eternal salvation is the main end of life, and cookery a subordinate end, the latter must be so prosecuted as not to interfere with the former. She who uses ingredients forbidden by the Church, is the worse Christian, but she may be the better cook. Now, to compare a great thing with a little, the State equally with the kitchen is a creation of this world,--there are no nationalities, nor kitchen-ranges either, beyond the grave.

Civil government is a secular concern. The scope and aim intrinsic to it, and attainable by its own proper forces, is a certain temporal good. Suarez (_De Legibus_, III., xi., 7) sets forth that good to be,--"the natural happiness of the perfect human community, whereof the civil legislature has the care, and the happiness of individuals as they are members of such of a community, that they may live therein peaceably and justly, and with a sufficiency of goods for the preservation and comfort of their bodily life, and with so much moral rect.i.tude as is necessary for this external peace and happiness of the commonwealth and the continued preservation of human nature."

2. The intrinsic scope and aim of civil government is the good of the citizens as citizens. That, we have to show, is not any good of the world to come; nor again the full measure of good requisite for individual well-being in this world. The good of the citizens as such is that which they enjoy in common in their social and political capacity: namely, security, wealth, liberty, commerce, the arts of life, arms, glory, empire, sanitation, and the like, all which goods, of their own nature, reach not beyond this world. True, a certain measure of moral rect.i.tude also is maintained in common, but only "so much as is necessary for the external peace and happiness of the commonwealth," not that rect.i.tude of the whole man which is required in view of the world to come. (Ethics, c. x., n. 4 [3], p. 182.) The intrinsic aim of the State, then, falls short of the next life.

Neither does it cover the entire good of the individual even for this life. The good of the State, and of each citizen as a citizen, which it is the purpose of civil government to procure, is a mere grand outline, within which every man has to fill in for himself the little square of his own personal perfection and happiness. Happiness, as we have seen, lies essentially in inward acts. The conditions of these acts, outward tranquillity and order, are the statesman's care: the acts themselves must be elicited by each individual from his own heart. Happiness also depends greatly on domestic life, the details of which, at least when they stop short of wife-beating, come not within the cognisance of the civil power. It remains, as we have said, that the scope and aim of the State, within its own sphere and the compa.s.s of its own powers, is the temporal prosperity of the body politic, and the prosperity of its members as they are its members and citizens, but not absolutely as they are men. We cannot repeat too often the saying of St. Thomas: "Man is not ordained to the political commonwealth to the full extent of all that he is and has." (1a 2ae, q.

21, art. 4, ad 3.)

3. From this view it appears that the end for which the State exists is indeed an important and necessary good, but it is not all in all to man, not his perfect and final happiness. To guide man to that is the office of the Christian Church in the present order of Providence.

Cook and statesman must so go about the proper ends of their several offices, as not to stand in the way of the Church, compa.s.sing as she does that supreme end to which all other ends are subordinate. This limitation they are bound to observe, not as cook and statesman, but as men and Christians. A perfectly Christian State, as Christian, has a twofold duty. First, it has a _positive_ duty, at the request of the Church, to follow up ecclesiastical laws with corresponding civil enactments, _e.g_., laws against criminous clerks and excommunicates.

On this spiritual ground, being beyond its jurisdiction, the State must be careful not to forestall but to second the precept of spiritual authority. It is no business of the State, as such, to punish a purely religious offence. The second duty of a Christian State, and a more urgent duty even than the former, is the _negative_ one of making no civil enactment to the prejudice of the Church: _e.g._, not to subject clerics to the law of conscription. Useful as their arms might be for the defence of the country, the State must forego that utility for the sake of a higher end.

4. In the order of pure nature, which is the order of philosophy, there is of course no Church. Still there would be, as we have seen (c. i., s. i., n. 8, p. 197), erected on the same lines as the civil power, and working side by side with it, a religious power competent to prescribe and conduct divine wors.h.i.+p. This power the State would be bound to abet and support, both positively and negatively; something in the same manner, but not to the same degree, as the Christian State is bound to abet the Church. The supreme direction of the natural religious power would conveniently be vested in the person of the Civil Ruler. Thus the Roman Emperor was also Chief Pontiff.

5. How in the mere natural, as distinguished from the Christian order, the provinces of marriage and education should be divided between the civil and the religious power, is perhaps not a very profitable enquiry. The only use of it is a polemic use in arguing with men of no Christianity. Among all men of any religion, marriage has ever been regarded as one of those occasions of life that bring man into special relation with G.o.d, and therefore into some dependence on G.o.d's ministers. Education, again, has a religious element, to be superintended by the religious power. Education has a secular element also, the general superintendence of which cannot be denied to the State. Though children are facts of the domestic order, and the care and formation of them belongs primarily to their parents, yet if the parents neglect their charge, the State can claim the right of intervention _ab abusu_. It certainly is within the province of the State to prevent any parent from launching upon the world a brood of young barbarians, ready to disturb the peace of civil society. The practical issue is, who are _barbarians_ and what is understood by _peace_. The Emperor Decius probably considered every Christian child an enemy of the _Pax Romana_. But the misapplication of a maxim does not derogate from its truth. It also belongs to the State to see that no parent behaves _like a Cyclops_ ([Greek: kyklopikos], Ar., _Eth_., X., ix., 13) in his family, ordering his children, not to their good, as a father is bound to do, but to his own tyrannical caprice. For _instruction_, as distinguished from _education_, it is the parent's duty to provide his child with so much of it as is necessary, in the state of society wherein his lot is cast, to enable the child to make his way in the world according to the condition of his father. In many walks of life one might as well be short of a finger as not know how to read and write. Where ignorance is such a disadvantage, the parent is not allowed to let his child grow up ignorant. There, if he neglects to have him taught, the State may step in with compulsory schooling. Compulsory schooling for all indiscriminately, and that up to a high standard, is quite another matter.

_Readings_.--Suarez, _De Legibus_, III., xi.; _ib_., IV., ii., nn. 3, 4: St. Thos., 1a 2ae, q. 93, art. 3, ad 3; _ib_., q. 96, art. 2; _ib_., q. 98, art. 1, in corp.;_ib._, q. 99, art. 3, in corp.; _ib_., q. 100, art. 2, in corp.

SECTION XI.--_Of Law and Liberty_.

1. The student of Natural Law does not share the vulgar prejudice against civil law and lawyers. He knows it for a precept of the Natural Law, that there should be a State set up, and that this State should proceed to positive legislation. This legislation partly coincides with Natural Law in urging the practice of that limited measure of morality, which is necessary for the State to do its office and to be at all. (s. x., n. 2, p. 355.) This partial enforcement of the Law of Nature is the main work of the criminal law of the State.

But State legislation goes beyond the Natural Law, and in the nature of things must go beyond it. Natural Law leaves a thousand conflicting rights undetermined, which in the interest of society, to save quarrels, must be determined one way or another.

2. An ill.u.s.tration. It is an axiom of Natural Law, that _res perit domino_; that is, the owner bears the loss. If an article under sale perishes before delivery, the loss falls, apart from contracts to the contrary, upon whichever of the two parties is the owner at the time.

So far nature rules. But who is the owner at any given time, and at what stage of the transaction does the dominion pa.s.s? That can only be settled by custom and the law of the land. "If I order a pipe of port from a wine-merchant abroad; at what period the property pa.s.ses from the merchant to me; whether upon delivery of the wine at the merchant's warehouse; upon its being put on s.h.i.+pboard at Oporto; upon the arrival of the s.h.i.+p in England at its destined port; or not till the wine be committed to my servants, or deposited in my cellar; all are questions which admit of no decision but what custom points out."

(Paley, _Mor. Phil_., bk. iii., p. i, c. vii.)

This leads us to remark upon the much admired sentence of Tacitus, _in corruptissima republica plurimae leges_, that not merely the mult.i.tude of transgressions, but the very complexity of a highly developed civilization, requires to be kept in order by a vast body of positive law.

3. Incidentally we may also remark, that the law of the State does not create the right of property; otherwise, abolis.h.i.+ng its own creation, the State could bring in Communism, (c. vii., s. i., p. 278). But finding this right of property unprotected and undetermined, the State by its criminal law protects property against robbers, and by its _civil_ as distinguished from _criminal_ law, it defines numerous open questions between possessors as to manner of acquirement and conditions of tenure.

4. All civil laws bind the conscience: some by way of a categorical imperative, _Do this_: others by way of a disjunctive, _Do this, or being caught acting otherwise, submit to the penalty_. The latter are called _purely penal laws_, an expression, by the way, which has no reference to the days of religious persecution. Civil law binds the conscience categorically whenever the civil ruler so intends. In the absence of express declaration, it must be presumed that he so intends whenever his law is an enforcement of the Natural Law, or a determination of the same; as when the observance is necessary to the preservation of the State, or when the ruler determines what lapse of time shall be necessary for the acquisition of property by prescription. Very frequently, the parties to a contract tacitly accept the dispositions of the civil law as forming part of their agreement; and in this indirect fas.h.i.+on the civil law becomes binding on the conscience. In this way an Englishman who accepts a bill of exchange tacitly binds himself to pay interest at five per cent., if the bill is not met at maturity, for such is the disposition of the English Law. It may be further observed that no prudent legislator would attach a severe penalty to what was not already wrong.

5. In Roman times it was part of the flattery of the imperial jurists to their master, to tell him that he was above the laws, _legibus solutus_. In the trial of Louis XVI., the Sovereign People, or they who called themselves such, dispensed with certain legal formalities on that same plea. Against the law at Athens, the generals who had fought at Arginusae were condemned by one collective sentence, the anger of the Sovereign People being too impatient to vote on them separately, as the law required. Hereupon we must observe in the first place, that the Supreme Ruler, whether one man or a mult.i.tude, can never be brought to trial in his own court for any legal offence. As all justice requires two terms: no power can do justice on itself.

(_Ethics_, c. v., s. ix., n. 1, p. 102.) This truth is embodied in the English maxim, that _the king can do no wrong_. Again, the Sovereign is either expressly or virtually exempted from the compa.s.s of many laws, _e.g_. those which concern the flying of certain flags or ensigns, and other petty matters. Thirdly, we have the principle, that no being can give a law to himself. (_Ethics_, c. vi. s. ii., n. 3, p.

117.) Lastly, we must observe that there is no law so fundamental but what the Supreme Power, taken in its entirety, can alter it, and by consequence dispense from it. From these considerations it follows that the Sovereign--the complete and absolute Sovereign, be he one man or many--lies under no legal obligation to obey any law of his own making as such. It does not follow that he is perfectly free to ignore the laws. He is bound in conscience and before G.o.d to make his government effectual; and effectual it cannot be, if the laws are despised; and despised they will be, if the Sovereign gives scandal by ignoring them in his own practice. Therefore the Sovereign, be he King, Council, or a.s.sembly, is bound in conscience and before G.o.d, though not legally of his own jurisdiction, so far himself to stand to the observance of the law as not to render it nugatory in the eyes and practice of others.

6. Law and liberty are like the strings and meshes of a net. In the one limit of minimum of mesh, the net pa.s.ses into sack-cloth, where nothing could get through. In the other limit of maximum of mesh, the net vanishes, and everything would get through. We cannot praise in the abstract either a large mesh or a small one: the right size is according to the purpose for which the net is to be used in each particular case. So neither can law nor liberty be praised, as Burke says, "on a simple view of the subject, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction." We can only praise either as it is "clothed in circ.u.mstances." Commonly we are led to praise the one by getting too much of the other. Confounded in a tangle of fussy, vexatious, perhaps malicious restrictions, men cry loudly for liberty. When people all about us are doing things by their own sweet will, we are converted to praise of regulation and discipline and the wholesome restraint of law.

_Readings_.--St. Thos., 1a 2ae, q. 96, art. 5, ad 3; Suarez, _De Legibus_, III., x.x.xv.; _ib_., V., iv.; Ruskin, _Seven Lamps of Architecture_, c. vii., ---- I, 2.

SECTION XII.--_Of Liberty of Opinion_.

1. We are here dealing with liberty only so far as it means exemption from State control. So far as the State is concerned, a man has the fullest liberty to hold in his heart the most seditious opinions, and to think the foulest thoughts, so long as they do not appear in his public language and conduct. The heart is free from all mere human law, resting in subjection to His law alone, and in responsibility to His judgment, who is the Searcher of Hearts.

2. We are dealing then not properly with opinion, but with the public expression of opinion. We are dealing with that expression as controllable by the State, not acting in deference to the invitation of any religious power, but of its own initiative and proper authority, in view of its own end, scope and aim, which is social order and public prosperity for this life. (s. x., nn. 2, 3, p. 355.)

3. That there are doctrines dangerous to social order, cannot be denied, unless we are to cease to believe in any influence of thought upon conduct. It is important to the State, that men should have the greatest possible horror of crime. (s. viii., nn. 3, 6, pp. 345, 348.) This horror is notably impaired when all idea of sin is taken away.

Now the idea of sin vanishes with that of G.o.d. (_Ethics_, c, vi., s.

ii., nn. 6, 7, 13, pp. 119, 123.) Therefore to pull down the idea of G.o.d among a nation of theists, whether by the wiles of a courtly Professor at a University, or by the tub-thumping blasphemy of an itinerant lecturer, is to injure the State. The tub-thumper however is the more easily reached by the civil authority, especially when his discourses raise a tumult among the people. But where attacks upon theism have become common, and unbelief is already rampant among the ma.s.ses, for the State to interfere with either "leader of thought,"

high or low, would be a shutting of the stable-door after the steed was stolen. Similarly we should speak of those who subvert the received notions touching the sanct.i.ty of the marriage-tie and the law of external purity generally, the obligation of civil allegiance, the rights of property and of life.

4. It will be objected: "The doctrines that you wish to express as inimical to the peace of the commonwealth, possibly may be true. Did not the first heralds of Christianity trouble the peace of the Roman world?" We reply: Let the new teachers come to us as those apostolic men came, "in weakness and in fear and in much trembling," and yet withal "in the showing of the spirit and power," with an "exhortation not of uncleanness," nor upon "an occasion of covetousness," "holily and justly and without blame" (1 Cor. ii. 3, 4; 1 Thess. ii. 3, 5, 10); and we will receive them as angels of G.o.d, even to the plucking out of our own eyes, if need be, and giving to them. (Gal. iv. 15.) Any hostile reception that they may meet with at first from a misapplication of our principle, will soon be made up for by welcome and veneration. There is no principle that may not be momentarily misapplied in all good faith. But the mistake in this case will readily be rectified.

5. But, writes J. S. Mill, _On Liberty_, "we can never be sure that the opinion we are endeavouring to stifle is a false opinion." If we cannot, then is there no such thing as certainty upon any point of morals, politics, or religion. a.s.sa.s.sination of tyrants, whether in public or private life, may be wickedness, or it may be a laudable outburst of public spirit, who knows? Which of us is sure that all property is not theft? Plato's views on marriage and infanticide may be correct: the Nihilist may be your true politician; and all our religious knowledge dwindles down to the confession of Protagoras: "Concerning G.o.ds, I find no clear evidence whether they are or are not, or what manner of beings they are." These are the sceptical tremors which this denial induces. But even scepticism has its proof, which Mill furnishes as follows: "All silencing of discussion is an a.s.sumption of infallibility." The very name _infallibility_ has an effect upon the modern Englishman like that of _Popery_ upon his forefathers. It shakes his nerves, obscures his judgment, and scares his seated reason to leap up from her throne. But after we have recovered from our fright, we recollect that, whereas infallibility is an all-round attribute, compa.s.sing an entire subject, certainty goes out to one particular point on the circ.u.mference; we may then be certain without being infallible. Extremely fallible as I am in geography, I am nevertheless certain that Tunis is in Africa.

Silencing discussion is an a.s.sumption, not of infallibility, but of certainty. The man who never dares a.s.sume that he is certain of anything, so certain as to close his ears to all further discussion, comes nothing short of a universal sceptic.

6. We are told, free discussion promotes discovery. Yes, free discussion in philosophical circles, free discussion among competent persons. But free discussion of a subject among the incompetent and the incapable, and the pa.s.sionate and the prejudiced, is not good for the cause of truth; and if the subject be practical and momentous, it is not good for the disputants either, nor for the community. If we allow that the science and practice of morality is not advanced by free debate of ethical questions in nurseries and boarding-schools, we must also bear in mind that a vast proportion of the human family remain all their lives long, for the purpose of such discussions, as incompetent as children. The mult.i.tude cannot be philosophers. They have neither time, nor intelligence, nor love of hard thinking sufficient to arrive at the final and adequate _why_ and _wherefore_ of their every duty. Though capable of doing right, they are quite incapable of doing so philosophically. They do it according as they are led by custom and authority. Their inheritance is the traditionary wisdom of mankind, which they live upon as an infant on his estate, not understanding whence their support comes. It is dangerous to batter them with objections against the received moral law. You will overthrow them, not confirm them by the result of your reasonings: you will perplex their intellect, you will confound their good purpose, you will awaken their evil pa.s.sions. Surely it is a more necessary point to secure that right be done somehow, than that it be philosophically done. The one is difficult enough, the other quite impossible for the ma.s.s of mankind. Therefore, adapting to our purpose the old Greek oracle: "let us not disturb the foundations of popular morality: they are better undisturbed"--

[Greek: Mae kinei Kamarinan akinaetos gar ameinoon]

7. But is it not immoral to interfere with conscience, and to attempt to stifle sincere convictions? The State, we repeat, has nothing to do with conscience as such, nor with the inward convictions of any man.

But if the State is sincerely convinced, that the convictions openly professed and propagated by some of its subjects are subversive of social order and public morality, whose sincere conviction is it that must carry the day in practice? It is of the essence of government that the convictions, sincere or otherwise, of the governed shall on certain practical issues be waived in the external observance in favour of the convictions of the ruling power. After all, this talk of conscience and sincere convictions is but the canting phrase of the day, according to which conscience means mere wild humour and headstrong self-will. Such teachings as those which we would have the State to suppress, _e.g.: An oath is a folly: There is no law of purity: There is no harm in doing anything that does not annoy your neighbour_: are not the teachings of men sincerely convinced: they deserve no respect, consideration, or tenderness on that score. We do not say, that the teachers of these monstrosities are not convinced, but that they are not honestly and conscientiously convinced: they have blinded themselves, and become the guilty authors of their own delusion. Not all strong convictions are honestly come by or virtuously entertained.

8. Arraigned for their utterances, men protest their sincerity, as parties indicted for murder do their innocence. We can set but small store by such protestations. It is a question of evidence to come from other sources than from the accused person's own mouth. A man indeed must be held to be sincere until he is proved to be the contrary. That is the general rule. But there are what Roman lawyers call _praesumptiones juris_; circ.u.mstances which, if proved, will induce the court to take a certain view of a case, and give judgment accordingly, unless by further evidence that view is proved to be a false one. Now when a man proclaims some blatant and atrocious error in a matter bearing directly upon public morals--and it is for the restraint of these errors alone that we are arguing--there is a decided _praesumptio juris_, that the error in him, however doggedly he maintains it, is not a sincere, candid, and innocently formed conviction. The light of nature is not so feeble as that, among civilized men. Let the offender be admonished and given time to think: but if, for all warning to the contrary, the wilful man will have his way, and still propagate his error to the confusion of society, he must be treated like any other virtuous and well-meaning criminal: he must be restrained and coerced to the extent that the interests of society require.

9. At the same time it must be confessed that when an error, however flagrant and pestilential, has ceased to shock and scandalize the general body of the commonwealth; when the people listen to the doctrine without indignation, and their worst sentence upon it p.r.o.nounces it merely "queer," there is little hope of legal restraints there enduring long or effecting much. Penalties for the expression of opinion are available only so far as they tally with the common feeling of the country. When public opinion ceases to bear them out, it is better not to enforce them: for that were but to provoke resentment and make martyrs. No regulations can be maintained except in a congenial atmosphere. Allowance too must be made for the danger of driving the evil to burrow underground.

10. The censors.h.i.+p of opinions even in a model State would vary in method according to men and times. The censors.h.i.+p of the Press in particular might be either by _Imprimatur_ required before printing, or by liability to prosecution after. The _Imprimatur_ might be either for all books, or only for a certain cla.s.s. It might be either obligatory, or merely matter of counsel, to obtain it. We are not to adopt promiscuously all the praiseworthy inst.i.tutions of our forefathers.

_Readings_.--Cardinal Newman, _Letter to Duke of Norfolk_, -- 5; _The Month_ for June, 1883, pp. 200, seqq.

APPENDIX

Of the precepts of Natural Law, some are more simple and of wider extension; others are derivative, complex, and extend to fewer cases.

It is a question of more and less, and no hard and fast line of demarcation can be drawn between them. The former however are called _primary_, the latter _secondary_ precepts. Again, the nature of man is the same in all men and at all periods of history for its essential elements, but admits of wide, accidental variation and declension for the worse. Thirdly, it is clear that Natural Law is a law good and suitable for human nature to observe. Starting from these three axioms, we apply the reasoning of St. Thomas, 1a 2ae, q. 96, art. 2, not to human law alone, of which he is speaking, but to sundry secondary precepts of Natural Law. These are his words:

"A law is laid down as a rule or measure of human acts. Now a measure ought to be h.o.m.ogeneous with the thing measured. Hence laws also must be imposed upon men according to their condition. As Isidore says: 'A law ought to be possible both according to nature and according to the custom of the country.' Now the power or faculty of action proceeds from interior habit or disposition. The same thing is not possible to him who has no habit of virtue, that is possible to a virtuous man; as the same thing is not possible to a boy and to a grown man, and therefore the same rule is not laid down for children as for adults.

Many things are allowed to children, that in adults are visited with legal punishment or with blame, and in like manner many things must be allowed to men not perfect in virtue, which would be intolerable in virtuous men."