Elements of Morals / With Special Application of the Moral Law to the Duties of the Individual and of Society and the State

ELEMENTS of MORALS:

WITH

SPECIAL APPLICATION OF THE MORAL LAW TO THE
DUTIES OF THE INDIVIDUAL AND OF
SOCIETY AND THE STATE.

BY
PAUL JANET,
MEMBER OF THE INSTITUTE, OF THE ACADEMY OF MORAL AND POLITICAL
SCIENCES, AUTHOR OF THEORY OF MORALS, HISTORY OF MORAL
AND POLITICAL PHILOSOPHY, FINAL CAUSES, ETC., ETC.

TRANSLATED BY
Mrs. C. R. CORSON.

A. S. BARNES & CO.,
NEW YORK AND CHICAGO

Copyright, 1884, by A. S. Barnes & Co.

PREFACE.

The Eléments de Morale, by M. Paul Janet, which we here present to the educational world, translated from the latest edition, is, of all the works of that distinguished moralist, the one best adapted to college and school purposes. Its scholarly and methodical arrangement, its clear and direct reasonings, its felicitous examples and illustrations, drawn with rare impartiality from the best ancient and modern writers, make of this study of Ethics, generally so unattractive to young students, one singularly inviting. It is a system of morals, practical rather than theoretical, setting forth man’s duties and the application thereto of the moral law. Starting with Preliminary Notions, M. Janet follows these up with a general division of duties, establishes the general principles of social and individual morality, and chapter by chapter moves from duties to duties, developing each in all its ramifications with unerring clearness, decision, and completeness. Never before, perhaps, was this difficult subject brought to the comprehension of the student with more convincing certainty, and, at the same time, with more vivid and impressive illustrations.

The position of M. Paul Janet is that of the religious moralist.

“He supplies,” says a writer in the British Quarterly Review,[1] in a notice of his Theory of Morals, “the very element to which Mr. Sully gives so little place. He cannot conceive morals without religion. Stated shortly, his position is, that moral good is founded upon a natural and essential good, and that the domains of good and of duty are absolutely equivalent. So far he would seem to follow Kant; but he differs from Kant in denying that there are indefinite duties: every duty, he holds, is definite as to its form; but it is either definite or indefinite as to its application. As religion is simply belief in the Divine goodness, morality must by necessity lead to religion, and is like a flowerless plant if it fail to do so. He holds with Kant that practical faith in the existence of God is the postulate of the moral law. The two things exist or fall together.”

This, as to M. Janet’s position as a moralist; as to his manner of treating his subject, the writer adds:

“... it is beyond our power to set forth, with approach to success, the admirable series of reasonings and illustrations by which his positions are established and maintained.”

M. Janet’s signal merit is the clearness and decision which he gives to the main points of his subject, keeping them ever distinctly in view, and strengthening and supplementing them by substantial and conclusive facts, drawn from the best sources, framing, so to say, his idea in time-honored and irrefutable truths.

The law of duty thus made clear to the comprehension of the student, cannot fail to fix his attention; and between fixing the attention and striking root, the difference is not very great.

C. R. C.

TABLE OF CONTENTS.

ELEMENTS OF MORALS.

CHAPTER I.

PRELIMINARY NOTIONS.

SUMMARY.

Starting point of morals.—Notions of common sense.

Object and divisions of morals.—Practical morality and theoretical morality.

Utility of morals.—Morals are useful: 1, in protecting us against the sophisms which combat them; 2, in fixing principles in the mind; 3, in teaching us to reflect upon the motives of our actions; 4, in preparing us for the difficulties which may arise in practice.

Short résumé of theoretical morality.—Pleasure and the good.—The useful and the honest.—Duty.—Moral conscience and moral sentiment.—Liberty.—Merit and demerit.—Moral responsibility.—Moral sanction.

All sciences have for their starting-point certain elementary notions which are furnished them by the common experience of mankind. There would be no arithmetic if men had not, as their wants increased, begun by counting and calculating, and if they had not already had some ideas of numbers, unity, fractions, etc.; neither would there be any geometry if they had not also had ideas of the round, the square, the straight line. The same is true of morals. They presuppose a certain number of notions existing among all men, at least to some degree. Good and evil, duty and obligation, conscience, liberty and responsibility, virtue and vice, merit and demerit, sanction, punishment and reward, are notions which the philosopher has not invented, but which he has borrowed from common sense, to return them again cleared and deepened.

Let us begin, then, by rapidly enumerating the elementary and common notions, the analysis and elucidation of which is the object of moral science, and explain the terms employed to express them.

1. Starting point of morals: common notions.—All men distinguish the good and the bad, good actions and bad actions. For instance, to love one’s parents, respect other people’s property, to keep one’s word, etc., is right; to harm those who have done us no harm, to deceive and lie, to be ungrateful towards our benefactors, and unfaithful to our friends, etc., is wrong.

To do right is obligatory on every one—that is, it should be done; wrong, on the contrary, should be avoided. Duty is that law by which we are held to do the right and avoid the wrong. It is also called the moral law. This law, like all laws, commands, forbids, and permits.

He who acts and is capable of doing the right and the wrong, and who consequently is held to obey the moral law, is called a moral agent. In order that an agent may be held to obey a law, he must know it and understand it. In morals, as in legislation, no one is supposed to be ignorant of the law. There is, then, in every man a certain knowledge of the law, that is to say, a natural discernment of the right and the wrong. This discernment is what is called conscience, or sometimes the moral sense.

Conscience is an act of the mind, a judgment. But it is not only the mind that is made aware of the right and the wrong: it is the heart. Good and evil, done either by others or by ourselves, awaken in us emotions, affections of diverse nature. These emotions or affections are what collectively constitute the moral sentiment.

It does not suffice that a man know and distinguish the good and the evil, and experience for the one and for the other different sentiments; it is also necessary, in order to be a moral agent, that he be capable of choosing between them; he cannot be commanded to do what he cannot do, nor can he be forbidden to do what he cannot help doing. This power of choosing is called liberty, or free will.

A free agent—one, namely, who can discern between the right and the wrong—is said to be responsible for his actions; that is to say, he can answer for them, give an account of them, suffer their consequences; he is then their real cause. His actions may consequently be attributed to him, put to his account; in other words imputed to him. The agent is responsible, the actions are imputable.

Human actions, we have said, are sometimes good, sometimes bad. These two qualifications have degrees in proportion to the importance or the difficulty of the action. It is thus we call an action suitable, estimable, beautiful, admirable, sublime, etc. On the other hand, a bad action is sometimes but a simple mistake, and sometimes a crime. It is culpable, base, abominable, execrable, etc.

If we observe in an agent the habit of good actions, a constant tendency to conform to the law of duty, this habit or constant tendency is called virtue, and the contrary tendency is called vice.

Whilst man feels himself bound by his conscience to seek the right, he is impelled by his nature to seek pleasure. When he enjoys pleasure without any admixture of pain, he is happy; and the highest degree of possible pleasure with the least degree of possible pain is happiness. Now, experience shows that happiness is not always in harmony with virtue, and that pleasure does not necessarily accompany right doing.

And yet we find such a separation unjust; and we believe in a natural and legitimate connection between pleasure and right, pain and wrong. Pleasure, considered as the consequence of well-doing, is called recompense; and pain, considered as the legitimate consequence of evil, is called punishment.

When a man has done well he thinks, and all other men think, that he has a right to a recompense. When he has done ill they think the contrary, and he himself thinks also that he must atone for his wrong-doing by a chastisement. This principle, by virtue of which we declare a moral agent deserving of happiness or unhappiness according to his good or bad actions, is called the principle of merit and demerit.

The sum total of the rewards and punishments attached to the execution or violation of a law is called sanction; the sanction of the moral law will then be called moral sanction.

All law presupposes a legislator. The moral law will presuppose, then, a moral legislator, and morality consequently raises us to God. All human or earthly sanction being shown by observation to be insufficient, the moral law calls for a religious sanction. It is thus that morality conducts us to the immortality of the soul.

If we go back upon the whole of the ideas we have just briefly expressed, we shall see that at each of the steps we have taken there are always two contraries opposed the one to the other: good and evil, command and prohibition, virtue and vice, merit and demerit, pleasure and pain, reward and punishment.

Human life presents itself, then, under two aspects. Man can choose between the two. This power is liberty. This choice is difficult and laborious; it exacts from us incessant efforts. It is for this reason that life is said to be a trial, and is often represented as a combat. It should therefore not be represented as a play, but rather as a manly and valiant effort. Struggle is its condition, peace its prize.

Such are the fundamental ideas morality has for its object, and of which it seeks, at the same time, both the principles and the applications.

2. What is morality? the object of morality.—Morality may be considered as a science or as an art.

By science we understand a totality of truths connected with each other concerning one and the same object. Science has for its object proper, knowledge.

By art we understand a totality of rules or precepts for directing activity towards a definite end; art has for its object proper, action.

Science is theoretical or speculative; art is practical.

Morality is a science inasmuch as it seeks to know and demonstrate the principles and conditions of morality; it is an art inasmuch as it shows and prescribes to us its applications.

As science, morality may be defined: science of good or science of duty.

As art, morality may be defined: the art of right living or the art of right acting.

3. Division of morality.—Morality is divided into two parts: in one it studies principles, in the other, applications; in the one, duty; in the other, duties.

Hence a theoretical morality and a practical morality. The first may also be called general morality, and the second particular morality, because the first has for its object the study of the common and general character of all our duties, and the other especially that of the particular duties, which vary according to objects and circumstances. It is in the first that morality has especially the character of science, and in the second, the character of art.

4. Utility of morality.—The utility of moral science has been disputed. The ancients questioned whether virtue could be taught. It may also be asked whether it should be taught. Morality, it is said, depends much more upon the heart than upon the reasoning faculties. It is rather by education, example, habit, religion, sentiment, than through theories, that men become habituated to virtue. If this were so, moral science would be of no use.

However, though it may be true that for happiness nothing can take the place of practice, it does not follow that reflection and study may not very efficaciously contribute toward it, and for the following reasons:

1. It often happens that evil has its origin in the sophisms of the mind, sophisms ever at the service of the passions. It is therefore necessary to ward off or prevent these sophisms by a thorough discussion of principles.

2. A careful study of the principles of morality causes them to penetrate deeper into the soul and gives them there greater fixity.

3. Morality consists not only in the actions themselves, but especially in the motives of our actions. An outward morality, wholly of habit and imitation, is not yet the true morality. Morality must needs be accompanied by conscience and reflection. So viewed, moral science is a necessary element of a sound education, and the higher its principles the more the conscience is raised and refined.

4. Life often presents moral problems for our solution. If the mind is not prepared for them it will lack certainty of decision; what above all is to be feared is that it will mostly prefer the easier and the more convenient solution. It should be fortified in advance against its own weakness by acquiring the habit of judging of general questions before events put it to the proof.

Such is the utility of morality. It is of the same service to man as geometry is to the workman; it does not take the place of tact and common sense, but it guides and perfects them.

It is well understood, moreover, that such a study in nowise excludes, it even exacts, the co-operation of all the practical means we have indicated above, which constitute what is called education. Doctrinal teaching is but the complement and confirmation of teaching by practice and by example.

5. Short résumé of theoretical morality.—Theoretical morality should, in fact, precede practical morality, and that is what usually takes place; but as it presents more difficulties and less immediate applications than practical morality, we shall defer the developments it may give rise to, to a subsequent year.[2] The present will be a short résumé, purely elementary, containing only preliminary and strictly necessary notions. It will be an exposition of the common notions we have just enumerated above.

6. Pleasure and the good.—Morality being, as we have said, the science of the good, the first question that presents itself is: What is good?

If we are to believe the first impulses of nature, which instinctively urge us towards the agreeable and cause us to repel all that is painful, the answer to the preceding question would not be difficult; we should have but to reply: “Good is what makes us happy; good is pleasure.”

One can, without doubt, affirm that morality teaches us to be happy, and puts us on the way to true happiness. But it is not, as one might believe, in obeying that blind law of nature which inclines us towards pleasure, that we shall be truly happy. The road morality points out is less easy, but surer.

Some very simple reflections will suffice to show us that it cannot be said absolutely that pleasure is the good and pain the bad. Experience and reasoning easily demonstrate the falsity of this opinion.

1. Pleasure is not always a good, and in certain circumstances it may even become a real evil; and, vice versa, pain is not always an evil, and it may even become a great good. Thus we see, on the one hand, that the pleasures of intemperance bring with them sickness, the loss of health and reason, shortening of life. The pleasures of idleness bring poverty, uselessness, the contempt of men. The pleasures of vengeance and of crime carry with them chastisement, remorse, etc. Conversely, again, we see the most painful troubles and trials bringing with them evident good. The amputation of a limb saves our life; energetic and painstaking work brings comfort, etc. In these different cases, if we consider their results, it is pleasure that is an evil and pain a good.

2. It must be added that among the pleasures there are some that are low, degrading, vulgar; for example, the pleasures of drunkenness; others, again, that are noble and generous, as the heroism of the soldier. Among the pleasures of man there are some he has in common with the beasts, and others that are peculiar to him alone. Shall we put the one kind and the other on the same level? Assuredly not.

3. There are pleasures very keen, which, however, are fleeting, and soon pass away, as the pleasures of the passions; others which are durable and continuous, as those of health, security, domestic comfort, and the respect of mankind. Shall we sacrifice life-long pleasures to pleasures that last but an hour?

4. Other pleasures are very great, but equally uncertain, and dependent on chance; as, for instance, the pleasures of ambition or the pleasures of the gaming-table; others, again, calmer and less intoxicating, but surer, as the pleasures of the family circle.

Pleasures may then be compared in regard to certainty, purity, durability, intensity, etc. Experience teaches that we should not seek pleasures without distinction and choice; that we should use our reason and compare them; that we should sacrifice an uncertain and fleeting present to a durable future; prefer the simple and peaceful pleasures, free from regrets, to the tumultuous and dangerous pleasures of the passions, etc.; in a word, sacrifice the agreeable to the useful.

7. Utility and honesty.—One should prefer, we have just seen, the useful to the agreeable; but the useful itself should not be confounded with the real good—that is, with the honest.

Let us explain the differences between these two ideas.

1. There is no honesty or moral goodness without disinterestedness; and he who never seeks anything but his own personal interest is branded by all as a selfish man.

2. Interest gives only advice; morality gives commands. A man is not obliged to be skillful, but he is obliged to be honest.

3. Personal interest cannot be the foundation of any universal and general law as applicable to others as to ourselves, for the happiness of each depends on his own way of viewing things. Every man takes his pleasure where he finds it, and understands his interest as he pleases; but honesty or justice is the same for all men.

4. The honest is clear and self-evident; the useful is uncertain. Conscience tells every one what is right or wrong; but it requires a long trained experience to calculate all the possible consequences of our actions, and it would often be absolutely impossible for us to foresee them. We cannot, therefore, always know what is useful to us; but we can always know what is right.

5. It is never impossible to do right; but one cannot always carry out his own wishes in order to be happy. The prisoner may always bravely bear his prison, but he cannot always get out of it.

6. We judge ourselves according to the principles of action we recognize. The man who loses in gambling may be troubled and regret his imprudence; but he who is conscious of having cheated in gambling (though he won thereby) must despise himself if he judges himself from the standpoint of moral law. This law must therefore be something else than the principle of personal happiness. For, to be able to say to one’s self, “I am a villain, though I have filled my purse,” requires another principle than that by which one congratulates himself, saying, “I am a prudent man, for I have filled my cash-box.”

7. The idea of punishment or chastisement could not be understood, moreover, if the good only were the useful. A man is not punished for having been awkward; he is punished for being culpable.

8. The good or the honest.—We have just seen that neither pleasure nor usefulness is the legitimate and supreme object of human life. We are certainly permitted to seek pleasure, since nature invites us to it; but we should not make it the aim of life. We are also permitted, and even sometimes commanded, to seek what is useful, since reason demands we see to our self-preservation. But, above pleasure and utility, there is another aim, a higher aim, the real object of human life. This higher and final aim is what we call, according to circumstances, the good, the honest, and the just.

Now, what is honesty?

We distinguish in man a double nature, body and soul; and in the soul itself two parts, one superior, one inferior; one more particularly deserving of the name of soul, the other more carnal, more material, if one may say so, which comes nearer the body. In one class we have intelligence, sentiments, will; in the other, senses, appetites, passions. Now, that which distinguishes man from the lower animal is the power to rise above the senses, appetites, and passions, and to be capable of thinking, loving, and willing.

Thus, moral good consists in preferring what there is best in us to what there is least good; the goods of the soul to the goods of the body; the dignity of human nature to the servitude of animal passions; the noble affections of the heart to the inclinations of a vile selfishness.

In one word, moral good consists in man becoming truly man—that is to say, “A free will, guided by the heart and enlightened by reason.”

Moral good takes different names, according to the relations under which we consider it. For instance, when we consider it as having for its special object the individual man in relation with himself, good becomes what is properly called the honest, and has for its prime object personal dignity. In its relation with other men, good takes the name of the just, and has for its special object the happiness of others. It consists either in not doing to others what we should not wish they should do to us, or in doing to others as we should ourselves wish to be done by. Finally, in its relation to God, the good is called piety or saintliness, and consists in rendering to the Father of men and of the universe what is his due.

9. Duty.—Thus, the honest, the just, and the pious are the different names which moral good takes in its relations to ourselves, to other men, or to God.

Moral good, under these different forms, presents itself always in the same character, namely, imposing on us the obligation to do it as soon as we recognize it, and that, too, without regard to consequences and whatever be our inclinations to the contrary.

Thus, we should tell the truth even though it injures us; we should respect the property of others, though it be necessary to our existence; finally, we should even sacrifice, if necessary, our life for the family and the country.

This law, which prescribes to us the doing right for its own sake, is what is called moral law or the law of duty. It is a sort of constraint, but a moral constraint, and is distinguished from physical constraint by the fact that the latter is dictated by fate and is irresistible, whilst the constraint of duty imposes itself upon our reason without violating our liberty. This kind of necessity, which commands reason alone without constraining the will, is moral obligation.

To say that the right is obligatory is to say, then, that we consider ourselves held to do it, without being forced to do it. On the contrary, if we were to do it by force it would cease to be the right. It must therefore be done freely, and duty may thus be defined an obligation consented to.

Duty presents itself in a two-fold character: it is absolute and universal.

1. It is absolute: that is to say, it imposes its commands unconditionally, without taking account of our desires, our passions, our interests. It is by this that the commands of duty may be distinguished, as we have already said, from the counsels of an interested prudence. The rules or calculations of prudence are nothing but means to reach a certain end, which is the useful. The law of duty, on the contrary, is in itself its own aim. Here the law should be obeyed for its own sake, and not for any other reason. Prudence says: “The end justifies the means.” Duty says: “Do as thou shouldst do, let come what will.”

2. From this first character a second is deduced: duty being absolute, is universal; that is to say, it can be applied to all men in the same manner and under the same circumstances; whence it follows that each must acknowledge that this law is imposed not only on himself, but on all other men also.

To which correspond those two beautiful maxims of the Gospel: “Do to others as thou wishest to be done by. Do not do to others what thou dost not wish they should do to thee.”

The law of duty is not only obligatory in itself, it is so also because it is derived from God, who in his justice and goodness wishes we should submit to it. God being himself the absolutely perfect being, and having created us in his image, wishes, for this very reason, that we should make every effort to imitate him as much as possible, and has thus imposed on us the obligation of being virtuous. It is God we obey in obeying the law of honesty and duty.

10. Moral conscience.—A law cannot be imposed on a free agent without its being known to him; without its being present to his mind—that is to say, without his accepting it as true, and recognizing the necessity of its application in every particular case. This faculty of recognizing the moral law, and applying it in all the circumstances that may present themselves, is what is called conscience.

Conscience is then that act of the mind by which we apply to a particular case, to an action to be performed or already performed, the general rules prescribed by moral law. It is both the power that commands and the inward judge that condemns or absolves. On the one hand it dictates what should be done or avoided; on the other it judges what has been done. Hence it is the condition of the performance of all our duties.

Conscience being the practical judgment which in each particular case decides the right and the wrong, one can ask of man only one thing: namely, to act according to his conscience. At the moment of action there is no other rule. But one must take great care lest by subtle doubts, he obscures either within himself or in others the clear and distinct decisions of conscience.

In fact, men often, to divert themselves from the right when they wish to do certain bad actions, fight their own conscience with sophisms. Under the influence of these sophisms, conscience becomes erroneous; that is to say, it ends by taking good for evil and evil for good, and this is even one of the punishments of those who follow the path of vice: they become at last incapable of discerning between right and wrong. When it is said of a man that he has no conscience, it is not meant that he is really deprived of it (else he were not a man); but that he has fallen into the habit of not consulting it or of holding its decisions in contempt.

By ignorant conscience we mean that conscience which does wrong because it has not yet learned to know what is right. Thus, a child tormenting animals does not always do so out of bad motives: he does not know or does not think that he hurts them. In fact, it is with good as it is with evil; the child is already good or bad before it is able to discern between the one or the other. This is what is called the state of innocence, which in some respects is conscience asleep. But this state cannot last; the child’s conscience, and in general the conscience of all men, must be enlightened. This is the progress of human reason which every day teaches us better to know the difference between good and evil.

It sometimes happens that one is in some respects in doubt between two indications of conscience; not, of course, between duty and passion, which is the highest moral combat, but between two or more duties. This is what is called a doubting or perplexed conscience. In such a case the simplest rule to follow, when it is practicable, is the one expressed by that celebrated maxim: When in doubt, abstain. In cases where it is impossible to absolutely abstain, and where it becomes necessary not only to act but to choose, the rule should always be to choose that part which favors least our interests, for we may always suppose that that which causes our conscience to doubt, is an interested, unobserved motive. If there is no private interest in the matter either on the one side or the other, there remains nothing better to do than to decide according to circumstances. But it is very rare that conscience ever finds itself in such an absolute state of doubt, and there are almost always more reasons on the one side than on the other. The simplest and most general rule in such a case is to chose what seems most probable.

11. Moral Sentiment.—At the same time, as the mind distinguishes between good and evil by a judgment called conscience, the heart experiences emotions or divers affections, which are embraced under the common term moral sentiment. These are the pleasures or pains which arise in our soul at the sight of good or evil, either in ourselves or in others.

In respect to our own actions this sentiment is modified according as the action is to be performed, or is already performed. In the first instance we experience, on the one hand, a certain attraction for the right (that is when passion is not strong enough to stifle it), and on the other, a repugnance or aversion for the wrong (more or less attenuated, according to circumstances, by habit or the violence of the design). Usage has not given any particular names to these two sentiments.

When, on the contrary, the action is performed, the pleasure which results from it, if we have acted rightly, is called moral satisfaction; and if we have acted wrong, remorse, or repentance.

Remorse is a burning pain; and, as the word indicates, the bite that tortures the heart after a culpable action. This pain may be found among the very ones who have no regret for having done wrong, and who would do it over again if they could. It has therefore no moral character whatsoever, and must be considered as a sort of punishment attached to crime by nature herself. “Malice,” said Montaigne, “poisons itself with its own venom. Vice leaves, like an ulcer in the flesh, a repentance in the soul, which, ever scratching itself, draws ever fresh blood.”

Repentance is also, like remorse, a pain which comes from a bad action; but there is coupled with it the regret of having done it, and the wish, if not the firm resolution, never to do it again.

Repentance is a sadness of the soul; remorse is a torture and an anguish. Repentance is almost a virtue; remorse is a punishment; but the one leads to the other, and he who feels no remorse can feel no repentance.

Moral satisfaction, on the contrary, is a peace, a joy, a keen and delicious emotion born from the feeling of having accomplished one’s duty. It is the only remuneration that never fails us.

Among the sentiments called forth by our own actions, there are two which are the natural auxiliaries of the moral sentiment: they are the sentiment of honor and the sentiment of shame.

Honor is a principle which incites us to perform actions which raise us in our own eyes, and to avoid such as would lower us.

Shame is the opposite of honor; it is what we feel when we have done something that lowers us not only in the eyes of others, but in our own. All remorse is more or less accompanied by shame; yet the shame is greater for actions which indicate a certain baseness of soul. For instance, one will feel more ashamed of having told a falsehood than for having struck a person; for having cheated in gambling than for having fought a duel.

Honor and shame are therefore not always an exact measure of the moral value of actions; for be they but brilliant, man will soon rid himself of all shame; this happens, for instance, in cases of prodigality, licentiousness, ambition. One does wrong, not without remorse, but with a certain ostentation which stifles the feelings of shame.

Let us pass now to the sentiments which the actions of others excite in us.

Sympathy, antipathy, kindness, esteem, contempt, respect, enthusiasm, indignation, these are the various terms by which we express the diverse sentiments of the soul touching virtue and vice.

Sympathy is a disposition to share the same impressions with other men; to sympathize with their joy is to share that joy; to sympathize with their grief is to share that grief. It may happen that one sympathizes with the defects of others when they are the same as our own; but, as a general thing, people sympathize above all with the good qualities, and experience only antipathy for the bad. At the theatre, all the spectators, good and bad, wish to see virtue rewarded and crime punished.

The contrary of sympathy is antipathy.

Kindness is the disposition to wish others well. Esteem is a sort of kindness mingled with judgment and reflection, which we feel for those who have acted well, especially in cases of ordinary virtues; for before the higher and more difficult virtues, esteem becomes respect; if it be heroism, respect turns into admiration and enthusiasm; admiration being the feeling of surprise which great actions excite in us, and enthusiasm that same feeling pushed to an extreme; carrying us away from ourselves, as if a god were in us.[3] Contempt is the feeling of aversion we entertain towards him who does wrong; it implies particularly a case of base and shameful actions. When these actions are only condemnable without being odious, the sentiment is one of blame, which, like esteem, is nearer being a judgment than a sentiment. When, finally, it is a case of criminal and revolting actions, the feeling is one of horror or execration.

12. Liberty.—We have already said that man or the moral agent is free, when he is in a condition to choose between right and wrong, and able to do either at his will.

Liberty always supposes one to be in possession of himself. Man is free when he is awake, in a state of reason, and an adult. He is not free, or very little so, when he is asleep, or delirious, or in his first childhood.

Liberty is certified to man.

1. By the inward sentiment which accompanies each of his acts; for instance, at the moment of acting, I feel that I can will or not will to do such or such an action; if I enter on it, I feel that I can discontinue it as long as it is not fully executed; when it is completed, I am convinced that I might have acted otherwise.

2. By the very fact of moral law or duty; I ought, therefore I can. No one is held to do the impossible. If, then, there is in me a law that commands me to do good and avoid evil, it is because I can do either as I wish.

3. By the moral satisfaction which accompanies a good action; by the remorse or repentance which follows a bad one. One does not rejoice over a thing done against his will, and no one reproaches himself for an act committed under compulsion. The first word of all those reproached for a bad action is, that it was not done on purpose, intentionally. They acknowledge thereby that we can only be reproached for an action done wilfully; namely, freely.

4. By the rewards and punishments, and in general by the moral responsibility which is attached to all our actions when they have been committed knowingly. We do not punish actions which are the result of constraint or ignorance.

5. By the exhortations or counsels we give to others. We do not exhort a man to be warm or cold, not to suffer hunger or thirst, because it is well known that this is not a thing dependent on his will. But we exhort him to be honest, because we believe that he can be so if he wishes.

6. By promises: no one promises not to die, not to be sick, etc., but one promises to be present at a certain meeting, to pay a certain sum of money, on such a day, to such a man, because one feels he can do so unless circumstances over which he has no control prevent.

Prejudices against Liberty.—Although men, as we have seen, may have the sense of liberty very strong, and may show it by their acts, by their approbation or blame, etc., yet, on the other hand, they often yield to the force of certain prejudices which seem to contradict the universal belief we have just spoken of.

1. Character.—The principal one of these prejudices is the often expressed opinion that every man is impelled by his own character to perform the actions which accord with this character, and that there is no help against this irresistible necessity of nature; this is often expressed by the common axiom: “One cannot make himself over again.” The same has also been expressed by the poet Destouches in that celebrated line:

Chassez le naturel, il revient au galop.[4]

Nothing is less exact as a fact and more dangerous as a principle, than this pretended immutability of human character, which, if true, would render evil irremediable and incorrigible.

Experience teaches the contrary. No man is wholly deprived of good and bad inclinations; he may develop the one or the other, as he chooses between them.

2. Habits.—Habits in the long run become, it is true, irresistible. It is a fact which has been often observed; but if, on the one hand, an inveterate habit is irresistible, it is not so in the beginning, and man is thus free to prevent the encroachments of bad habits. It is for this reason that moralists warn us above all against the beginnings of habits. “Beware especially of beginnings,” says the Imitation.

3. Passions.—Passions have especially enjoyed the privilege of passing for uncontrollable and irresistible. All great sinners find their excuse in the fatal allurements of passions. “The spirit is willing, but the flesh is weak,” says the Gospel. The remarks we have just made touching the habits, may be equally applied to the passions. It is rare that passions manifest themselves all of a sudden, and with that excess of violence which, breaking upon one unexpectedly and like a delirium, assume, indeed, all the appearances of a fatality. But, as a general thing, passions grow little by little. “Some smaller crimes always precede the greater crimes.” It is especially when the first attacks of a passion begin to show themselves that it should be energetically fought down.

4. Education and circumstances.—The education one has received, the circumstances one finds himself in, may put a limit to his liberty; and man is not wholly responsible for the impulses which he may owe to example and the bad principles in which he may have been brought up. These may, perhaps, be called attenuating circumstances; but they do not go so far as wholly to suppress liberty and responsibility. In the appreciation of other people’s acts, we may allow the attenuating circumstances as large a margin as possible, but in the case of self-government, one should make it as strict and narrow as possible. No one having, in fact, a measure by which he may determine his moral strength in an absolute manner, it is better to aim too high than too low. One should be guided by the principle that nothing is impossible to him who has a strong will; for “we can do a thing when we think we can.” In conclusion, liberty means nothing else but moral strength. Experience certifies that man can become the master of the physical nature which he can subject to his designs; he can gain the mastery over his own body, his passions, his habits, his own disposition; in a word, he can be “master of himself.” In thus ascending, step by step, from exterior nature to the body, from the body to the passions, from the passions to the habits and the character, we arrive at the first motor of action which moves everything without being moved: namely, liberty.

13. Merit and demerit.—We call in general merit the quality by virtue of which a moral agent renders himself worthy of a reward; and demerit that by which he renders himself, so to say, worthy of punishment.

The merit of an action may be determined: 1, by the difficulty of the action; 2, by the importance of the duty.

1. Why, for instance, is there in general very little merit in respecting other people’s property and abstaining from theft? Because education in this respect has so fashioned us, that few men have any temptation to the contrary; and, even were there such a temptation, we should be ashamed to publicly claim any merit for having resisted it.

Why, on the other hand, is there great merit in sacrificing one’s life to the happiness of others? Because we are strongly attached to life, and comparatively very little attached to men in general; to sacrifice what we love most, to what we love but little, from a sense of duty, is evidently very difficult; for this reason, we find in this action a very great merit.

Suppose a man, who had enjoyed in all security of conscience and during a long life, a large fortune which he believes his, and of which he has made the noblest use, should learn all at once, and at the brink of old age, that this fortune belongs to another. Suppose, to render the action still more difficult to perform, that he alone knows the fact, and could consequently in all security keep the fortune if he wishes; aggravate the situation still more by supposing that this fortune belongs to heirs in great poverty, and that in renouncing it the possessor would himself be reduced to utter misery. Imagine, finally, all the circumstances which may render a duty both the strictest and most difficult, and you will have an action the merit of which will be very great.

2. It is not only the difficulty of an action that constitutes its merit, but also the importance of the duty. Thus the merit of a difficulty surmounted, has no more value in morality than it has in poetry, when it stands alone. One may of course impose upon himself a sort of moral gymnastics, and consequently very difficult tasks, though very useless in the end; but these will be considered only in the light of discipline and exercise, and not in that of duty; and this discipline would have to be more or less connected with the life one may be called to lead. For instance, suppose a missionary, called to brave during all his life all kinds of climates and dangers, should exercise himself beforehand in undertakings brave and bold, such undertakings would be both reasonable and meritorious. But he who out of bravado, ostentation, and without any worthy aim, should undertake the climbing to inaccessible mountain-tops, the swimming across an arm of the sea, the fighting openly ferocious animals, etc., he would accomplish actions which, it is true, would not be without merit, since they are brave; but their merit would not be equivalent to that we should attribute to other actions less difficult, but more wise.

As to demerit, it is in proportion to the gravity of duties, and the facility of accomplishing them. The more important a matter, and the easier to fulfil, the more is one culpable in failing to fulfil it.

According to these principles, one may determine as follows the estimation of moral actions:

Human actions, we have said, are divided into two classes: the good and the bad. It is a question among the moralists to determine whether there are any that are to be called indifferent.

Among the good actions, some are beautiful, heroic, sublime; others, proper, right, and honest; among the bad, some are simply censurable, others shameful, criminal, hideous; finally, among the indifferent ones, some are agreeable and allowable, others necessary and unavoidable.

Let us give some examples by which the different characters of human actions may be well understood.

A judge who administers justice without partiality, a merchant who sells his merchandise for no more than it is worth, a debtor who regularly pays his creditor, a soldier punctual at drill, obedient to discipline, and faithful at his post in times of peace or war, a schoolboy doing regularly the task assigned to him, all these persons perform actions good and laudable, but they cannot be called extraordinary. They are approved of, but not admired. To manage one’s fortune economically, not to yield too much to the pleasure of the senses, to tell no lies, to neither strike nor wound others, are so many good, right, proper, and estimable actions; but they cannot be called admirable actions.

Actions are beautiful in proportion to the difficulty of their performance; when they are extremely difficult and perilous, then we call them heroic and sublime; that is, provided they are good actions, for heroism is unfortunately sometimes allied with wrong. He who, like President de Harlay, can say to a very powerful usurper: “It is a sad thing when the servant is allowed to dismiss the master;” he who can say, like Viscount d’Orthez, who made opposition to Charles IX. after St. Bartholomew, saying: “My soldiers are no executioners;” he who, like Boissy d’Anglas, can firmly and resolutely uphold the rights of an assembly in the face of a sanguinary, violent, and rebellious populace; he who, like Morus or Dubourg, would rather die than sacrifice his trust; he who, like Columbus, can venture upon an unknown ocean, and brave the revolt of a rude and superstitious crew, to obey a generous conviction; he who, like Alexander, confides in friendship enough to receive from the hands of his physician a drink reputed poisoned; any man, in short, who devotes himself for his fellow beings, who, in fire, in water, in the depths of the earth, braves death to save life; who, in order to spread the truth, to remain true and honest, to work in the interests of religion, science, or humanity, will suffer hunger and thirst, poverty, slavery, torture, or death, is a hero.

Epictetus was a slave. His master, for some negligence or other, caused him to be beaten. “You will break my leg,” said the sufferer; and the leg broke, indeed, under the blows. “I told you you would break it,” he remarked quietly. This is a hero.

Joan of Arc, defeated by the English and made a prisoner, threatened with the stake, said to her executioners: “I knew quite well that the English would put me to death; but were there a hundred thousand of them, they should not have this kingdom.” This is a heroine.

Bad actions have their degrees likewise. But here we should call attention to the fact that the worst are those that stand in opposition to the simply good actions; on the contrary, an action which is not heroic is not necessarily bad; and when it is bad it is not to be classed among the most criminal. Some examples will again be necessary to understand these various shades of meaning, which every one feels and recognizes in practice, but which are very difficult to analyze theoretically.

To be respectful towards one’s parents is a good and proper action, but not a heroic one. On the contrary, to strike them, insult them, kill them, are abominable actions, and to be classed among the basest and most hideous that can be committed. To love one’s friends, to be as serviceable to them as possible, shows a straightforward and well-endowed soul; but there is nothing sublime in it. On the other hand, to betray friendship; to slander those that love us; to lie in order to win their favor; to inquire into their secrets for the purpose of using them against them, are black, base, and shameful actions. There is scarcely any merit in not taking what does not belong to us; theft, on the contrary, is the most contemptible of things. Now, not to be able to bear with adversity, to fear death, to shrink from braving the ice of the North Pole, to stay at home when fire or flood threatens our neighbor, may be mean or weak, but not criminal. Let us add, however, that there are cases where heroism becomes obligatory, and where it is criminal not to be heroic. A sea-captain, who has endangered his ship, and who, instead of saving it, leaves his post; a general who, when the moment calls for it, refuses to die at the head of his army, lack courage; the chief of a State who, in times of revolt, or when the country is in peril, fears death; the president of a convention who takes to flight before a rebellion; the physician who runs away before an epidemic; the magistrate who is afraid to be just; all these are truly culpable. Every condition of life has its peculiar heroism, which at certain moments becomes a duty. Yet will it always be true that the more easy an action is, the less excusable is its neglect, and consequently the more odious is it to try to escape from it.

Besides the good or bad actions, there are others which appear to partake of neither the one nor the other of these two characters, which are neither good nor bad, and which for this reason are called indifferent. For instance, to go and take a walk is an action which, considered by itself, is neither good nor bad, although it may become the one or the other according to circumstances. To be asleep, to be awake, to eat, to take exercise, to talk with one’s friends, to read an agreeable book, to play on some instrument, are actions which certainly have nothing bad in themselves, but which, nevertheless, could not be cited as examples of good actions. One would not say, for instance, such a one is an honest man because he plays the violin well; such a one is a scholar because he has a good appetite; still less when actions absolutely necessary come into question, as the act of breathing and sleeping. Actions, then, which are inseparable from the necessities of our existence, have no moral character; they are the same with us as with the animals and plants; they are purely natural actions. There are others, again, that are not necessary, but simply agreeable, which we perform because they suit our tastes and fancies.

It is sufficient that they are not contrary to the right, that one cannot call them bad; but it does not follow from this that they are good, and such are what are called indifferent actions.

Such, at least, is the appearance of things; for, in a more elevated sense, the moralists were right in saying that there is no action absolutely indifferent, and that all actions are in some respect good or bad, according to motive.

14. Moral responsibility.—Man being free, is for this reason responsible for his actions: they can be imputed to him. These two expressions have about the same meaning, only the term responsibility applies to the agent, and imputability to the actions.

The two fundamental conditions of moral responsibility are: 1, the knowledge of good and evil; 2, the liberty of action. In proportion as these two conditions vary, the responsibility will vary.

It follows from this, that idiocy, insanity, delirium in cases of illness—destroying nearly always both conditions of responsibility—namely, discernment and free agency, deprive thereby of all moral character the actions committed in these different states. They are not of a nature to be imputed to a moral agent. Yet are there certain lunatics not wholly insane who may preserve in their lucid state a certain portion of responsibility.

2. Drunkenness. May that be considered a cause of irresponsibility? No, certainly not; for, on the one hand, one is responsible for the very act of drunkenness; and, on the other, one knows that in putting himself in such a condition he exposes himself to all its consequences, and accepts them implicitly. For example, he who puts himself in a state of drunkenness, consents beforehand to all the low, vulgar actions inseparable from that state. As to the violent and dangerous actions which may accidentally result from it, as blows and murders springing from quarrels, one cannot, of course, impute them to the drunken man with the same severity as to the sober man, for he certainly did not explicitly chose them when he put himself into a state of drunkenness; but neither is he wholly innocent of them, for he knew that they were some of the possible consequences of that condition. As to him who puts himself voluntarily into a state of drunkenness, with the express intention of committing a crime and giving himself courage for the act, it is evident that, so far from diminishing thereby his share of responsibility in the action, he, on the contrary, increases it, since he makes violent efforts to keep off all the scruples or hesitations which might keep him from committing it.

3. “No one is held to do impossible things.” According to this theory, it is evident that one is not responsible for an action he has been absolutely unable to accomplish; thus we cannot blame a paralytic, or a child, or an invalid, for not taking up arms in defence of his country. Yet we must not have voluntarily created the impossibility of acting, as it often happened in Rome, where some, in order not to go to war, cut off their thumbs. The same with a debtor who, by circumstances independent of his will (fire, shipwreck, epidemics), is unable to acquit himself: he is excusable; but if he placed himself in circumstances which he knew would disable him, his inability is no longer an excuse.

4. Natural qualities or defects of mind and body cannot be imputed to any one, either for good or for bad. Who would reproach a man for being born blind, or because he became so in consequence of sickness or a blow? The same with the defects of the mind: no one is responsible for having no memory, or for not being bright. Yet as these defects may be corrected by exercise, we are more or less responsible for making no efforts to remedy them. As to the defects or deformities which result from our own fault, as, for example, the consequences of our passions, it is evident that they can justly be imputed to us. Natural qualities cannot be credited to any one. Thus we should not honor people for their physical strength, health, beauty, or even wit; and no one should boast of such advantages, or pride himself on them. However, he who by a wise and laborious life has succeeded in preserving or developing his physical strength, or who, by the effort of his will, has cultivated and perfected his mind, deserves praise; and it is thus that physical and moral advantages may become indirectly legitimate matter for moral approbation.

5. The effects of extraneous causes and events, whatever they may be, whether good or bad, can only be imputed to a man, as he could or should have produced, prevented, or directed them, and has been careful or negligent in doing so. Thus a farmer, according as he works the land entrusted to him well or badly, is made responsible for a good or bad harvest.

6. A final question is that of the responsibility of a man for other people’s actions. Theoretically, no man certainly is responsible for any but his own actions. But human actions are so interlinked with each other that it is very rare that we have not some share, direct or indirect, in the conduct of others. For instance, one is responsible in a certain measure for the conduct of those under him; a father for his children, a master for his servants, and, up to a certain point, an employer for his workmen; 2, one is responsible in a measure for actions which he might have prevented, when, either through negligence or laziness, he did not do so; if you see a man about to kill himself, and make no effort to prevent it, you are not innocent of his death, unless, of course, you did not suspect what he was going to do; 3, you are responsible for other people’s actions when, either by your instigations, or even by a simple approbation, you have co-operated towards them.

15. Moral sanction.—We call the sanction of a law the body of recompenses and punishments attached to the execution or violation of the law. Civil laws, in general, make more use of punishments than rewards; for punishments may appear means sufficient to have the law executed. In education, on the contrary, the commands or laws laid down by a superior, have as much need of rewards as punishments.

But what is to be understood by the terms recompense and punishment? The recompense of a good and virtuous action is the pleasure we derive from it, and for the very reason that it is good and virtuous.

There are to be distinguished, however, two other kinds of rewards, which, though they resemble recompense, are nevertheless very different from it namely, favor and remuneration.

Favor is a pleasure or an advantage bestowed on us, without our having deserved or earned it; a pure expression of the good-will of others towards us. It is thus that a king grants favors to his courtiers, that those in power distribute favors. It is thus we speak of the favors of fortune. Although theoretically there is no reason why we should understand the word favor in a bad sense, yet has it by usage come to signify not only an advantage undeserved, but unworthy; not only a legitimate preference which has its reason in sympathy, but an arbitrary choice more or less contrary to justice. However, although no such ugly signification need be attached to it, a favor, as a gratuitous gift, must always be distinguished from reward, which, on the contrary, implies a remuneration; that is to say, a gift in return for something.

Yet not all remuneration is necessarily a reward; and here we must establish another distinction between reward and remuneration. By remuneration we mean the price we pay for a service rendered us, no matter what motive may determine a person to render us this service; it is for its utility we pay, and for nothing else. The reward, on the contrary, implies the idea of a certain effort to do good. He who renders us a service from affection and devotion, would refuse being paid for it, and, vice versa, he who sells us his work does not ask us for a recompense, but for an equivalent of what he would have earned for himself if he had applied his work to his own wants.

On the contrary, we call every pain or suffering inflicted on an agent for committing a bad action, for no other reason than that it is bad, chastisement or punishment.

Punishment stands against damage or wrong; that is to say, against undeserved harm. The blows of fortune or of men are not always punishments. One may be struck without being punished.

Although we say in a general way that the ills that befall men are often the chastisements of their faults, yet this should not be taken too strictly, otherwise we should too easily transform the merely unfortunate into criminals.

Although recompenses and punishments may be only secondary means by which men may be led to do good and avoid evil, this should not be their essential office nor their real idea.

It is not that the law should be fulfilled that there are rewards and punishments in morality; it is because it has been fulfilled or violated. Such is the true principle of reward. It comes from justice, not utility.

For the same reason, chastisement, in its true sense, should not only be a menace insuring the execution of the law, but a reparation or expiation for its violation. The order of things disturbed by a rebellious will is again re-established by the suffering which is the consequence of the fault committed. In one sense it may be said that punishment is the remedy for the fault. In fact, injustice and vice being, as it were, the diseases of the soul, it is certain that suffering is their remedy; but only on condition that this suffering be accepted by way of chastisement. It is thus that grief has a purifying virtue, and that instead of being considered an evil, it may be called a good.

Another confusion of ideas which should be equally avoided, and which is very common among men, is that which consists in taking the reward itself for a good, and the punishment for an evil.

It is thus that men are often more proud of the titles and honors they have obtained, than of the real merit through which they have won them. It is thus also that they fear the prison more than the crime, and shame more than vice.

It is for this reason that the greatest courage is needed to bear undeserved punishment.

We distinguish generally four species of sanction:

1. Natural sanction; 2, legal sanction; 3, the sanction of public opinion; 4, inward sanction.

1. Natural sanction is that which rests on the natural consequences of our actions. It is natural for sobriety to keep up and establish health, for intemperance to be a cause of disease. It is natural for work to bring with it ease of circumstances, for idleness to be a source of misery and poverty. It is natural that probity should insure security, confidence, and credit; that courage should put off the chances of death; that patience should render life more bearable; that good-will should call forth good-will; that wickedness should drive men from us; that perjury should cause them to distrust us, etc. These facts have ever been verified by experience. The honest is not always the useful; but it is often what is most useful.

2. Legal sanction is above all a penal sanction. It is composed of the chastisements which the law has established for the guilty. There are, in general, few rewards established by the law, and they may be classed among what is called the esteem of men.

3. Another kind of sanction consists in the opinion other men entertain in regard to our actions and character. We have seen that it is in the nature of good actions to inspire esteem, in the nature of the bad to inspire blame and contempt. The honest man generally enjoys public honor and consideration. The dishonest man, even though the law does not reach him, is branded with discredit, aversion, contempt, etc.

4. Finally, a more exact and certain sanction is that which results from the very conscience and moral sentiment mentioned above.

16. The superior sanction: the future life.—These various sanctions being insufficient to satisfy our want of justice, there is required still another, namely, the superior religious sanction.

It is a well-known fact that virtue is not a sufficient shield to protect us against the blows of adversity, and that immorality does not necessarily condemn one to misery and grief. It is evident that a man corrupt and wicked may be born with all the advantages of genius, fortune, health; and that an honest man may have inherited none of these.

There is in this neither injustice nor blind chance; but it proves that the harmony between moral good and happiness is not of this world.

In regard to the pleasures and pains of conscience, it is also evident that they are not sufficient. In fact, the pleasures of the senses may divert and deaden the pangs of remorse; and it must also be said, though it be still more sad, that it sometimes happens that a merciless continuance of misfortune deadens in an honest soul the delight in virtue; and the painful efforts which virtue costs may finally obliterate in a man, tired of life, the calm and sweet enjoyment which it naturally brings with it.

If such is the disproportion and disagreement between the inner pleasures and pains, and the moral merit of him who experiences them, what shall we say of that wholly outward sanction which consists in the rewards and punishments distributed by the unequal justice of man? I do not speak of legal pains alone; it is well known that they often fall upon the innocent, and are spared to the guilty; that they are almost always disproportioned: the law punishing the crime, without taking note of the exact moral value of the action; but I speak also of the pains and rewards of public opinion, esteem, and contempt. Are these always in an exact proportion to merit?

From all these observations it results that the law of harmony between good and happiness is not of this world; that there is always disagreement, or at least disproportion, between moral merit and the pleasures of the senses. Hence the necessity of a superior sanction, the means and time of which are in the hand of God.

“The more I go within myself,” says a philosopher,[5] “the more I consult myself, the more I read these words written in my soul: be just and thou shalt be happy. And yet it is not so, looking at the actual state of things: the wicked prosper, and the just are oppressed. See, also, what indignation arises in us when this expectation is frustrated! The conscience murmurs and rebels against its author; it cries to him, groaning: Thou hast deceived me! I have deceived thee, oh thou rash one? Who has told thee so? Is thy soul annihilated? Hast thou ceased to exist? Oh, Brutus! oh, my son, do not stain thy noble life by putting an end to it; do not leave thy hopes and glory with thy body on the fields of Philippi. Why sayest thou: Virtue is nothing when thou art now about entering into the enjoyment of thine? Thou shalt die, thinkest thou; no, thou shalt live, and it is then I shall keep what I have promised! One would say, hearing the murmurings of impatient mortals, that God owes them a reward before they have shown any merit, and that he is obliged to pay their virtue in advance. Oh! let us first be good; we shall be happy afterwards. Do not let us claim the prize before the victory, nor the salary before the work. ‘It is not in the lists,’ says Plutarch, ‘that the victors in our sacred games are crowned; it is after they have run the course.’”

CHAPTER II.

DIVISION OF DUTIES—GENERAL PRINCIPLES OF SOCIAL MORALITY.

SUMMARY.

Division of duties.—In theory there is but one duty, which is to do right; but this duty is subdivided according to the various relations of man. Hence three classes of duties: duties towards ourselves, towards others, towards God: individual, social, religious morality. We will begin with social morality, which requires the most expounding.

General principles of social duties: to do good; not to do evil.

Different degrees of this double obligation: 1, not to return evil for good (ingratitude); 2, not to do evil to those who have not done us any (injustice and cruelty); 3, not to return evil for evil (revenge); 4, to return good for good (gratitude); 5, to do good to those who have not done us any (charity); 6, to return good for evil (clemency, generosity).

Distinction between the various kinds of social duties: 1, towards the lives of other men; 2, towards their property; 3, towards their family; 4, towards their honor; 5, towards their liberty.

Distinction between the duties of justice and the duties of charity.—Justice is absolute, without restriction, without exception. Charity, although as obligatory as justice, is more independent in its application. It chooses its time and place; its objects and means; its beauty is in its liberty.

We have seen that practical morality or private morality has for its object to acquaint us with the application of theoretical morality. It bears not so much on duty as on duties. The first question, then, that presents itself to us is that of the division of duties.

17. Division of duties.—It has been reasonably asserted that there is in reality but one duty, which is to do good under all circumstances, the same as it has also been said that there is but one virtue: wisdom, or obedience to the laws of reason. But as these two general divisions teach us in reality nothing touching our various actions, which are very numerous, it is useful and necessary to classify the principal circumstances in which we have to act, in order to specify in a more particular manner wherein the general principle which commands us to do good may be applied in each case.

Human actions may then be divided, either in regard to the different beings they have for their object, or in regard to the various faculties to which they relate.

The ancients divided morality particularly in reference to the divers human faculties, and in private morality they considered above all the virtues.

The moderns, on the other hand, have divided morality particularly in its relations to the different objects of our actions; and, in private morality, they have considered, above all, the duties.

The ancients reduced all virtues to four principal ones: prudence, temperance, courage, and justice. This division was transmitted to us, and it is these four virtues which the catechism teaches under the name of cardinal virtues.

The moderns reduced duties to three classes: the duties towards ourselves, towards others, and towards God. Some add a fourth class, namely, duties towards animals.

That portion of morality which treats of the duties towards ourselves, is called individual morality; that which treats of the duties towards God, is called religious morality; that which treats of the duties towards other men, social morality. As to the duties towards animals, they are of so secondary an order, that it is not worth while to classify them apart; we shall include them in social morality.

Social morality is by far the most extended in precepts and applications, the various relations of men with each other being extremely numerous. It may be subdivided into three parts: 1, general duties of social life, or morality properly called social; 2, duties towards the State, or civil morality; 3, duties towards the family, or domestic morality.

We will begin with the study of social morality, social duties towards men in general, and we will first establish their principles and different varieties.

Let us in a few pages rapidly take a summary review of the general principles of social morality.

18. General principles of social duties: to do good, not to do evil.—All human actions, in regard to others, may be reduced to these two precepts: 1, to do good to men; 2, not to do them harm. To this all the virtues of social morality may be reduced. But before exhibiting these virtues and vices more in detail, let us explain what is understood by the expressions to do good and to do evil.

In the most general and apparent sense to do any one good would seem to be to give him pleasure; to do him harm, would seem to be to give him pain. Yet, is it always doing good to a person to procure him pleasure? and is it always doing him harm, to cause him pain? For example, Kant[6] says, “Shall we allow the idler soft cushions; the drunkard wines in abundance; the rogue an agreeable face and manners, to deceive more easily; the violent man audacity and a good fist?” Would it really be doing good to these men to grant them the object of their desires, what may satisfy their passions? On the other hand, the surgeon who amputates a mortified limb, the dentist who pulls out a bad tooth, the teacher who obliges you to learn, the father who corrects your faults or restrains your passions, do they really do you harm because they give you pain? No, certainly not. There are, then, cases where to do some one good is to cause him pain, and to do him harm is to procure him pleasure.

One may reasonably reduce all principles of social morality to these two maxims of the gospel: “Do not do to others what you do not wish them do to you;”—“Do to others as you wish to be done by.” These two maxims are admirable, certainly; but they must be interpreted rightly. If, for instance, we have done wrong, do we generally wish to be corrected and punished? When we are yielding to a passion, do we wish to be repressed in it, have it repelled? On the contrary, do we not rather wish to be allowed to enjoy it, and have the free range of our vices? Is not this generally what we all wish, when the voice of duty is mute and does not silence our passionate feelings? If this is so, should we wish to do to others as we wish in similar circumstances, namely, in the gratification of passions, to be done by? Should we not rather do to them what we should not like them do to us, that is, punish and correct them? It is evidently not in that sense we are to understand the two evangelical maxims; for they would be then no other than maxims of remissness and improper kindness; whilst they, on the contrary, express most admirably a moral truth; only when they speak of what we wish, they mean a true and good wish, not the desires of passion; the same when we recommend men to do good, we mean real good and not apparent good; as also in recommending to do no harm, we mean real harm, not the illusory harm of the senses, imagination and passions.

Thus, to well understand the duties we have to fulfil towards other men, we must understand the distinction between true good and false good. False good is that which consists exclusively in pleasure, all abstraction being made of usefulness or moral value; as, for example, the pleasures of passions. True good is that which independently of pleasure recommends itself either through usefulness or through moral value; as, for instance, health or education. The real evils, of course, are those which injure either the interests of others or their moral dignity, such as misery or corruption. Apparent evils are those which cause us to suffer but a moment and redeem themselves by subsequent advantages: as, for instance, remedies or chastisements.

When we speak of good in regard to others, we should not fear to understand by that their interest, as well as their moral welfare; for, though we should not make our own interest the aim of our actions, it is not so in our relation with others. The seeking of our own happiness has no moral value; but the seeking of other people’s happiness may have one, provided, we repeat, that we do not deceive ourselves touching the real sense of the word happiness, and that we do not understand by it a deceitful and short-lived delight.

“To do to others as we wish to be done by; not to do to them what we do not wish they should do us,” should, therefore, be understood in the sense of an enlightened will, which wills for itself nothing but what is truly conformable either to a proper interest or to virtue. Thus understood (and it is their true sense[7]), these two maxims comprehend perfectly the whole of social morality.

19. Different degrees of this double obligation.—The sense of these two expressions, to do good and to do harm, being now well-defined, let us examine the various cases which may present themselves, in rising, so to say, from the lowest to the highest round of duty. Let us first suppose a certain good or a certain evil, which will not vary in any of the following cases: this is the scale one may observe starting from the least virtue, to which corresponds evidently the greatest vice (by virtue of the principle set forth above[8]), to rise to the highest virtue, to which the least vice corresponds.

1. Not to return evil for good.—This is, one may say (all things being equal), the feeblest of the virtues, as to return evil for good constitutes the greatest of wrongs. Say, for example, homicide: is it not evident that the murder of a benefactor is the most abominable of all? that to rob a benefactor is the most horrible of robberies? that the slander of a benefactor is the most criminal of slanders? On the other hand again, not to kill, not to steal, not to slander, not to deceive a benefactor, is the minimum of moral virtue. To abstain from doing harm to him who has done you good, is a wholly negative virtue, which is simply the absence of a crime. We cannot call that gratitude, for gratitude is a positive virtue, not a negative one; it is all in action, and not in omission; but, before being grateful, the first condition at least, is to be not ungrateful. We shall then say that the greatest of crimes is ingratitude. It is by reason of this principle that the crimes towards parents are the most odious of all; for we have no greater benefactors than our parents, and without mentioning the crimes nature finds repugnant enough, it is evident that the same kind of harm (wounds, blows, insults, negligence, etc.) will always be more blamable when done to parents than to any other benefactors, and to benefactors in general, than to any other men.

2. Not to do harm to those who have not done us any.—The violation of this maxim is the second degree of crime and of sin, somewhat less serious than the preceding one, but still odious enough that to abstain from it is, in many cases, a rather feeble virtue. Not to kill, not to steal, not to deceive, not to expose one’s self to the punishments of the law, are, indeed, of a very feeble moral value; whilst their contraries constitute the basest and most odious of actions.

The kind of vice which injures others without provocation is what is called injustice, and when the pleasure of doing wrong is joined thereto, it is called cruelty. Cruelty is an injustice which rejoices in the harm done to others; injustice contents itself with taking advantage of it. There is, therefore, a higher degree of evil in cruelty than in injustice pure and simple.

The virtue opposed to injustice is justice, which has two degrees and two forms: the one negative, which consists simply in abstaining from doing injury to any one; the second positive, which consists in rendering to each his due. This second form of justice is more difficult than the first, for it is active. It is more difficult to restore to others what we hold as our own, or to pay one’s debts, than to abstain from stealing; it is more difficult to speak well of one’s rivals, than to abstain from slandering them; it is more difficult to give up one’s position to another who deserves it, than to abstain from taking his; and yet there are cases where justice requires one should act instead of simply abstaining.

3. Not to return evil for good.—Here we rise, in some respect, a degree in the moral scale. The two inferior degrees, namely, ingratitude and cruelty, have always and everywhere been considered as crimes. Nowhere has it ever been considered allowable to do harm to those who have done us good. But in nearly all societies, at a certain degree of civilization, has it been considered allowable, and even praiseworthy, to return evil for evil. “To do good to our friends, and harm to our enemies,” is one of the maxims the poets and sages of Greece oftenest repeat. Among the Indians of America, glory consists in ornamenting one’s dwelling with the greatest possible number of scalps taken from conquered enemies. We know about the Corsican vendetta. In one word, the passion of revenge (which consists precisely in returning evil for evil) is one of the most natural and the most profound in the human heart, and it demands a very advanced moral education to comprehend that revenge is contrary to the laws of morality. Now, as the beauty of virtue is in proportion to the difficulty of the passions to be overcome, it is evident that the virtues contrary to revenge, namely: gentleness, clemency, pardon of injuries, are amongst the most beautiful and most sublime. Already among the ancients had morality reached this maxim, that one should not do any harm, namely, even to those who had done us some, as may be seen from the dialogue of Plato, entitled the Crito. “Socrates: One should then commit no injustice whatsoever?” “Crito: No, certainly not.” “Socrates: Then should one not be unjust even towards those who are unjust towards us.”

4. Thus far we have only spoken of the virtues which express themselves negatively, and which consist especially in doing no harm. Let us now consider those which express themselves affirmatively, and which consist in doing good. The first degree is to return good for good: which is gratitude, the contrary of which, as we have seen, is ingratitude; but there are two sorts of ingratitude, as there are two sorts of gratitude. There is a negative ingratitude, as there is a positive ingratitude. The positive ingratitude, which is, as we have seen, the most odious of all crimes, consists in returning evil for good; negative ingratitude consists simply in not returning good for good, namely, in forgetting a kindness. It is not so reprehensible as the former, but it has still a certain character of baseness. Gratitude is also twofold in its degrees and forms: it is negative, inasmuch as it abstains from injuring a benefactor;[9] it is positive, inasmuch as it returns good for good. In one sense, gratitude is a part of justice, for it consists in returning to a benefactor what is due him; but it is also a notable part, and one which deserves being pointed out, for it seems that there is nothing easier than to return good for good; and experience, on the contrary, teaches us that there is nothing more rare. [This is certainly too strongly put.]

5. To do good to those who have done us neither good nor harm. This is what is called charity, which is a degree above the preceding, for in the preceding case we scarcely do more than give back what we have received; in this case we put in something of our own. But to characterize this new degree of virtue, it is necessary to well explain that the question relates to a good that is not due. For justice, we have seen, does not always mean to abstain from evil; it even does good sometimes. To restore a trust to one not expecting it; to do good to him who deserves it; to elect to a position one worthy of it; or, what is still more heroic, to give one’s own position up to him, this evidently is doing good to others, and to those who have not done us any; but these are goods due, which already belong in some respects to those upon whom we confer them. It is not so with the goods which charity distributes. The gifts I make to the poor, the consolations I give to the afflicted, the care I bestow upon the sick, all of which take from my time, my interests, and my life which I endanger to save a fellow-being, are also goods which are my own and not his. I do not return to him what he would otherwise legitimately possess, whether he knows it or not. I give him something of my own; it is a pure gift. This gift is suggested to me by love, not by justice. The contrary of charity or devotion to others is selfishness.

Finally, there is a last degree above all other preceding degrees, namely, to return good for evil. This kind of virtue, the highest of all, has no particular name in the language. Charity, in fact, consists in doing good generally, and comprises the two degrees: to do good to the unfortunate, and return good for evil. Clemency may consist in simply pardoning; it does not necessarily go so far as to return good for evil.

Corneille might as well have called his tragedy of Cinna, the Clemency of Augustus, even if Augustus had merely pardoned Cinna, and not added: “Let us be friends!” Thus has this great and magnificent virtue no name, and as science is powerless in creating words suitable for every-day language, it must rest satisfied with periphrases. Nevertheless, this sublime virtue finds nowhere a grander expression than in those maxims of the Gospel: “You have been told that it was said: Thou shalt love thy neighbor and hate thy enemy: But I say to you: Love your enemies; do good to those that hate you, and pray for those that despitefully use you and persecute you.”

20. Different kinds of social duties.—After the preceding division, which answers to the different degrees of obligation which may exist among men, there is another classification which rests on the various species or kinds of duties which we may have to perform towards our fellow-beings. Let us first briefly state what will be developed at greater length in the following chapters.

1. Duties relating to the life of others.—According to the two maxims cited above, these duties are of two kinds: 1, not to attempt the life of others; 2, to make efforts to save the life of others. All attempt at the life of others is called homicide. When accompanied by perfidy or treason, it is assassination. The murder of parents by children is called parricide; of children by parents (especially at the tenderest age), infanticide; of brothers by brothers, fratricide. All these crimes are most odious, and most repugnant to the human heart. Murder is never permitted, even when the highest interest and the greatest good is at stake. Thus did the ancients err in believing that the murder of a tyrant, or tyrannicide, was not only legitimate, but also honorable and beautiful. However, there is to be excepted the case of legitimate self-defense; for we cannot be forbidden to defend ourselves against him who wishes to deprive us of life. But the duel should not be considered an act of legitimate self-defense: that is evident in the case of the aggressor; and, on the other side, there is only the defense that there has been the consent to be put in peril. As to the question whether an attack on honor is not equivalent to an attack on life, it cannot be said that it is false in all cases; but the abuse of the thing is here so near the principle, that it is wiser to condemn altogether a barbarous practice, of which so deplorable an abuse has been made. Finally, homicide in war, within the conditions authorized by international law, is considered a case of legitimate self-defense.[10]

If murder is the most criminal of actions, and the most revolting to our sensibilities, the action, on the contrary, which consists in saving the life of others is the most beautiful of all. “The good shepherd gives his life for the sheep.”

With the fundamental duty not to attempt the life of other men, is connected, as corollary, the duty not to injure them bodily by blows or wounds, or by dangerous violence done to their health, and, conversely, to assist them in illness.

2. Duties relating to property.—It is evident[11] that man cannot preserve his life and render it happy and comfortable without a certain number of material objects which are his. The legitimate possession of these goods is what is called property.[12] The right of property rests in one respect on social utility, and in the other on human labor. On the one hand, society cannot subsist without a certain order that settles for each what is his own; on the other, it is but right that each should be the proprietor of what he has earned by his work; the right of possession carries with it the right of economizing, and, consequently, the right of forming a capital, and, moreover, the right of using this capital in making it bear interest. Again, the right of preserving implies also the right of transmission; hence the legitimacy of inheritance.

Property once founded upon law, it becomes our duty not to transgress the law. The act of taking what belongs to another is called theft. Theft is absolutely forbidden by the moral law, whatever name it may assume, or under whatever prestige it may present itself. “Thou shalt not steal.” Theft does not consist merely in putting one’s hand into a neighbor’s pocket; it includes all possible ways whereby the property of others may be appropriated. For example, to defraud in regard to the quality of the thing sold; to practice illegal stock-jobbing; to convert to one’s own use a deposit entrusted to one’s care; to borrow without knowing whether one can pay, and after having borrowed, to disown the debt, or refuse to pay it; there are as many forms of theft as there are ways of appropriating the property of others.

Regarding the property of others, the negative duty then consists in not taking what belongs to others. The positive duty consists in assisting others with one’s own property, in relieving their misery. This is called benevolence, which benevolence may be exercised in various ways, either by gift, or by loan. It may also be exercised in kind, that is in giving to others the objects necessary to their maintenance or support, or in money, that is, in furnishing them the means of procuring them; or in work, which is the best of all gifts; for in thus relieving others we procure them the means of helping themselves.

With the duty relating to the property of others, are connected as corollaries, the duties relating to the observance of agreements or contracts; the transmission of property in society being not always done from hand to hand, but by means of promises and writings. To fail in keeping one’s promise, to pervert the sense of solemn contracts, is, on the one side, to appropriate other people’s property, and on the other, to lie and deceive, and thus to fail in a double duty.

3. Duties relating to the families of others.—We have seen above what are the duties of man in his family; there remains to be said a few words touching the duties towards the families of others. One may fail in these duties either by violating the conjugal bond, which is adultery; or by carrying off other people’s children, which is abduction, or by depraving them through bad advice or bad examples, which is corruption.

4. Duties relating to the honor of others.—One may fail in these duties, either by saying to a man (who does not deserve it), wounding and rude things to his face, which are insults, or in speaking ill of others; and here we distinguish two degrees: if what is said is true, it is backbiting; if what is said is false and an invention, it is slander. In general one must not too easily ascribe evil to other men; this kind of defect is what is called rash judgments.

The positive duty respecting other people’s reputation is to be just towards every one, even towards one’s enemies; to speak well of them if they deserve it, and even of those who speak ill of us. It is a duty to entertain a kindly disposition towards men in general, provided this does not go so far as to wink at wrong. In our relations with our neighbors, usage of the world has, in order to avoid quarrels and insults, introduced what is called politeness, which, for being a worldly virtue, is not the less a necessary virtue in the order of society.

5. Duties towards the liberty of others.—These are rather the duties of the State than of the individual. They consist in respecting in others the liberty of conscience, the liberty of labor, individual liberty, personal responsibility, all of which are the natural rights of man. However, private individuals may themselves also fail in this kind of duties. The violation of the liberty of conscience is called intolerance; it consists either in employing force to constrain the consciences, or in imputing bad morals or bad motives to those who do not think as we do. The virtue opposed to intolerance is tolerance, a disposition of the soul which consists, not in approving what we think false, but in respecting in others what we wish they should respect in us, namely, conscience. One may also violate individual liberty, the liberty of labor, in keeping one’s fellow-beings in slavery; but slavery is rather a social institution than an individual act. However, there may be cases where one may seek to injure other people’s work, in restraining others by threats from work; which, for example, takes sometimes place in workmen’s strikes. There is also a certain way of domineering over the freedom of others without restraining it materially, which constitutes real tyranny; it is the dominion which a strong will exercises over a feeble will, and of which it too often is tempted to take advantage. On the contrary, it is a duty, not only to respect the liberty of others, but also to encourage it, to develop it, to enlighten it through education.

6. Duties relating to friendship.—All the preceding duties are the same towards all men. There are others which concern more particularly certain men, those, for example, to whom we are attached either by congeniality of disposition or uniformity of occupation, or a common education, etc., those, namely, whom we call friends. The duties relating to friendship are: 1, to choose well one’s friends; to choose the honest, and enlightened, in order to find in their society encouragement to right-doing. Nothing more dangerous than pleasure-friends or interested friends, united by vices and passions, instead of being united by wisdom and virtue; 2, the friends once chosen, the reciprocal duty is fidelity. They should treat each other with perfect equality and with confidence. They owe each other secrecy when they mutually entrust their dearest interests; they owe each other self-devotion when they need each other’s help. Finally, they owe to each other in a more strict and rigorous a sense, all they generally owe to other men, for the faults or crimes against humanity in general assume a still more odious character when against friends.

21. Professional duties and civic duties.—Such are the general duties of men in relation to each other, when simply viewed as men. But these duties become diversified and specialized according as we view man either in the light of the private functions he fills in society, which are his professional duties, or in the light of the particular society of which he is a member, and which is called the State or the country, and these are the civic duties. (See chapters xii. and xiii.)

22. Distinction between the duties of justice and the duties of charity.—We have said above that all the social duties could be reduced to these two maxims: “Do not do unto others what you do not wish they should do to you. Do to others as you wish to be done by.” These two maxims correspond with what is called: 1, the duties of justice; 2, the duties of charity.

The first consists in not doing wrong, or at least in repairing the wrong already done. Charity consists in doing good, or at least in giving to others what is not really their due. A celebrated writer[13] has made a very subtle and forcible distinction between these two virtues:

“The respect for the rights of others is called justice. All violation of any right whatsoever is an injustice. The greatest of injustices, since it comprises all, is slavery. Slavery is the subjugation of all the faculties of a man for the benefit of another. Moral personality should be respected in you as well as in me, and for the same reason. In regard to myself it has imposed a duty on me; in you it becomes the foundation of a right, and imposes thereby, relatively to you, a new duty on me. I owe you the truth as I owe it to myself, and it is my strict duty to respect the development of your intelligence and not arrest its progress towards the truth. I must also respect your liberty; perhaps even I owe it to you more than I do to myself, for I have not always the right to prevent you from making a mistake.

“I must respect you in your affections, which are a part of yourself; and of all the affections none are more holy than those of the family. To violate the conjugal and paternal right is to violate what a person holds most sacred.

“I owe respect to your body, inasmuch as belonging to you, it is the instrument of your personality. I have neither the right to kill you nor to wound you, unless in self-defense.

“I owe respect to your property, for it is the product of your labor; I owe respect to your labor, which is your very liberty in action; and if your property comes from inheritance, I owe respect to the free will which has transmitted it to you.

“Justice, that is, the respect for the person in all that constitutes his personality, is the first duty of man towards his fellow-man. Is this duty the only one?

“When we have respected the person of others, when we have neither put a restraint upon their liberty, nor smothered their intelligence, nor maltreated their body, nor interfered with their family rights nor their property, can we say that we have fulfilled towards them all moral duties? A wretch is here suffering before us. Is our conscience satisfied if we can assure ourselves that we have not contributed to his sufferings? No; something tells us that it would be well if we should give him bread, help, consolation; and yet this man in pain, who, perhaps, is going to die, has not the least right to the least part of our fortune, were this fortune ever so great; and if he were to use violence to take a farthing from us, he would commit a crime. We shall meet here a new order of duties which do not correspond to rights. Man, we have seen, may resort to force to have his rights respected, but he cannot impose on another a sacrifice, whatever that may be. Justice respects or restores: charity gives.

“One cannot say that to be charitable is not obligatory; but this obligation is by no means as precise and as inflexible as justice. Charity implies sacrifice. Now, who will furnish the rule for sacrifice, the formula for self-renunciation? For justice, the formula is clear: to respect the rights of others. But charity knows neither rule nor limits. It is above all obligation. Its beauty is precisely in its liberty.”

It follows from these considerations that justice is absolute, without restriction, without exception. Charity, whilst it is as obligatory as justice, is more independent in its applications; it chooses its place and its time, considers its objects and means. In a word, as Victor Cousin says, “its beauty is in its liberty.”

Let us not hesitate to borrow from the Apostle St. Paul his admirable exaltation of charity:

“Though I speak with the tongues of men and of angels, and have not charity, I am become as sounding brass or a tinkling cymbal.”

“And though I have the gift of prophecy, and understand all mysteries, and all knowledge, and though I have all faith, so that I could remove mountains, and have not charity, I am nothing.”[14]

“And though I bestowed all my goods to feed the poor, and though I give my body to be burned, and have not charity, it profiteth me nothing.”

“Charity suffereth long, and is kind; charity envieth not; charity vaunteth not itself; is not puffed up.”

“Doth not behave itself unseemely; seeketh not her own; is not easily provoked; thinketh no evil.”

“Beareth all things; believeth all things; endureth all things.”[15]

CHAPTER III.

DUTIES OF JUSTICE—DUTIES TOWARDS HUMAN LIFE.

SUMMARY.

Division of the duties of justice.—Four kinds of duties: 1, towards the life of others; 2, towards the liberty of others; 3, towards the honor of others; 4, towards the property of others.

Duties towards human life.—Avoid homicide, acts of violence, and mutilation. Pascal and the Provinciales.

The right of self-defense.—Right to oppose force to force. Limits of this right.

Problems.—Four very grave problems are bound up in the question of self-defense: 1, the penalty of death; 2, political assassination; 3, the duel; 4, war.

The penalty of death.—The penalty of death is the right of self-defense exercised by society: it is just so far as it is efficacious.

Political assassination.—Murder is always a crime, under whatever pretext it may conceal itself.

The duel.—The duel is at the same time a homicide and a suicide; it is falsely considered justice, since it appeals to chance and skill.

War.—War is the only mode of self-defense existing among nations; it is desirable for the sake of humanity that it may some day disappear; but humanity cannot now exact this sacrifice of the country.

23. Division of social duties.—According to the foregoing distinctions, we will first divide duties into duties of justice and duties of charity.

Let us begin by expounding the duties of justice.

These duties may be summed up in a general manner in the respect for the person of others, and for all that is necessary for the preservation and development of that person. Hence four kinds of duties:

1. Towards the life of other men.

2. Towards their liberty.

3. Towards their honor.

4. Towards their property.

Besides these duties, purely negative, which consist only in doing others no harm, there are also the duties of justice, which may be called positive; and which consist not only in not injuring others, but also in granting each what he has a right to. This is called distributive or remunerative justice, and is the duty of all those who have others under them, and who are commissioned to distribute rewards, titles, or functions.

24. Duties towards the life of men.—We have seen above that self-preservation is the duty of every one, and that one should not attempt one’s own life, nor mutilate one’s self, nor injure one’s health. Now, all these obligations which we have towards ourselves, we have equally towards others; for that which each owes to himself, he owes it to his quality, as man, to his quality as a free and reasonable being, a moral person. It is, as Kant says, humanity itself that each one must respect in his own person; and it is also humanity which each must respect in others. We should not do to others what we do not wish that they should do to us, or what we should not wish to do to ourselves. Now, no one wishes others to attempt his life; no one should wish to attempt it himself. For the same reason he should not wish to attempt the life of others.

These are such self-evident considerations that it is useless to insist on them. Let us add that this duty rests, besides, on one of the most powerful instincts of humanity, the instinct of sympathy for other men, the horror of their sufferings, the horror of spilt blood. Those who are wanting in this sentiment are like monsters in the midst of humanity.

One of the corollaries of this principle is to avoid the blows and wounds which might, through imprudence and unexpectedly, cause death, and which, besides, are in themselves to be condemned, inasmuch as they contribute, if not towards destroying, at least towards mutilating, the person and rendering it unfitted to fulfil its duties and functions. In a word, to avoid scuffles, bodily quarrels, which are unworthy, moreover, from their very brutality, of a reasonable being; all this is comprised in the duty of avoiding homicide. All may be summed up in these words of the Decalogue: “Thou shalt not kill.”

Pascal, in his letter on homicide (xiv. Provinciale), expressed most eloquently the duty concerning the respect for human life:

“Everybody knows, my fathers, that individuals are never permitted to seek the death of any person, and that, even if a man should have ruined us, maimed us, burnt our houses, killed our parents, and was preparing to murder us, to rob us of our honor, that our seeking his death would not be listened to in a court of justice. So that it was necessary to establish public functionaries who seek it in the name of the king, or rather in the name of God. Suppose, then, these public functionaries should seek the death of him who has committed all these crimes, how would they proceed? Would they plunge the dagger in his breast at once? No; the life of man is too important; they would proceed with more consideration; the law has not left it subject to the decision of all sorts of people; but only to that of the judges, whose integrity and sufficiency have been ascertained. And think you that one alone is enough to condemn a man to death? No; there are at least seven required; and among these seven there must not be any one whom the criminal has in any way offended, for fear that his judgment be affected, or corrupted by anger. In short, they can judge him only upon the testimony of witnesses, and according to the other forms prescribed to them; in consequence of which they can conscientiously pronounce upon him only according to law, or judge worthy of death only those whom the law condemns.”

After having thus expounded the innumerable precautions which society has taken, out of respect for human life, touching the persons of criminals, Pascal continues as follows:

“Behold in what way, in the order of justice, the life of man is disposed of; let us see now how you dispose of it.[16] In your new laws there is but one judge, and this judge is the offended party. He is at the same time judge, accuser, and executioner. He seeks himself the death of his enemy; he commands it, he executes him on the spot; and, without respect for either the body or soul of his brother, he kills and damns him for whom Christ died; and all this to avenge an affront, or slander, or an insulting word, or other similar offences for which a judge, although clothed with legal authority, would be considered a criminal if he should condemn to death those who had committed them, because the laws themselves are very far from condemning them.”

Finally, gathering into one word all the evils which homicide comprises, Pascal ends by saying “homicide is the only crime which at the same time destroys the State, the Church, nature, and piety.”

25. The right of self-defense.—None of the foregoing principles would present the shadow of a difficulty to any except those who are nearer the brute than man, if it were not for an apparent exception to the rule, which is the case of legitimate self-defense. To understand properly the solution of this question, it is necessary to examine carefully the nature of the relations which bind men to each other.

Every man is a moral person; that is to say, a free being, and for that very reason inviolable in his dignity and in his rights. He is, as Kant says, an end to himself, and should not be treated as a means. The things of nature are to us but means to satisfy our wants; we may therefore mutilate and destroy them, not as our whims may dictate, but as our wants require. Thus can we cut the finest trees of a forest to make fire of, or for furniture. We even claim a similar right over animals, although it may, perhaps, not be so evident. But we have no such right over man. We can neither mutilate nor destroy him for our use.

And, in fact, to destroy or mutilate through sheer force a member of humanity, is to apply to him the law of compulsion, which is the law of physical nature, and which without reserve governs all physical phenomena: it is to make of man a thing of nature, to see in him the body only, and ignore the soul.

The consequence of such conduct is evident: it is that whosoever employs against another the law of compulsion means thereby that he does not recognize between himself and other men any other law but that. Treating them as if they were purely physical agents, he gives us thereby to understand that he recognizes himself, and expects to be treated, as such; he means to take advantage of his strength as long as he is the strongest, but gives us to understand thereby that he is satisfied to submit to strength if he is the weaker.

It is here that the right of self-defense comes in. He who is violently attacked, has the right to oppose to violence just as much strength as there is employed against him. Otherwise, in allowing himself to be knocked down by strength, he would consent to the abasement, to the suppression of his own personality; he would in some respect be the accomplice of the violence he is made to suffer. Some Christian sects, straining this point, go so far as to condemn absolutely the right of self-defense; they do not see that this would infallibly bring with it the triumph of brute force, and the suppression of all justice. Such sects may, to a certain extent, manage to exist in civilized societies; but the principle is self-destructive, since not to resist violence is in some respect to be its accomplice.

Yet, whilst admitting the right of self-defense, it is necessary to recognize its limits. “This agent,” says M. Renouvier, “whom the right of self-defense treats as a brute, this being is a man, nevertheless, or has been one, or may become such. Hence the doctrine of conscience is to admit this right only when necessary, and not beyond what is necessary.” (Moral Science, Ch. LVI.) This is, to begin with, a natural consequence of the duties towards one’s self, since it is already a surrender of one’s dignity to be obliged to act in the capacity of a physical agent, and renounce one’s character of a moral person; it is also a duty towards humanity in general, which is represented by every man, even the most violent and the most uncultivated.

26. Problems.—The right of legitimate self-defense gives rise to a certain number of problems relative to the law of homicide. M. Jules Simon[17] reduces them to five: homicide in case of self-defense, penalty of death, political assassination, duel, and war. In the first case it is implied in what precedes, that legitimate self-defense may go so far as to deprive another man of life; but only in case of absolute necessity.

There remain the four other cases, which are not all of the same order.

27. The penalty of death.—The penalty of death in these days has been very much contested, and several States have tried to abolish it.[18]

The following arguments are brought to bear against it:

1. The inviolability of human life.—The State, it is said, should not give the example of what it proscribes and punishes. Now, it punishes homicide; then it should not itself commit homicide.

2. The possible mistakes, which in all other cases can be corrected, but which in this case alone are irreparable.

3. Experience, which, it is said, tells against it in certain countries by proving that the number of crimes has not been increased by the suppression of the penalty of death.

4. Finally, the refinement of manners, which can no longer bear the idea of capital punishment.

No one of these arguments is wholly decisive.

1. The inviolability of human life is not an absolute thing, at least not for those who admit the right of legitimate self-defense. We shall examine this presently.

2. Judiciary mistakes are very rare, and will become more and more so, as justice becomes more respectful towards the rights of the accused, and through greater publicity, by the intervention of a jury, etc.

3. Experience is not so much of a test as it is said to be, and is often made on too small a scale. The attempts at abolition have not been very numerous. In Tuscany murders have always been very rare on account of the gentleness of manners. In Switzerland, on the contrary, crime is on the increase, and certain cantons have asked for a return to the death penalty. Besides, it is a very difficult experiment to make. How could a society as complicated as ours dare to trust its security to so hazardous an experiment?

4. The refinement of manners may gradually bring about, thanks to the institution of the jury, the diminution, perhaps some day the suppression, of the penalty of death, without its being necessary for the State to lay aside this powerful means of defense and intimidation.

The penalty of death, in fact, can be considered legitimate only in the light of the right of self-defense. If society needs this penalty to protect the life of its members, it may be said that it is authorized to use it, on the same ground as each individual to whom we have conceded the right to repel force by force, and to deprive of his own life one who should threaten to take his life.

But, it will be objected, the right of self-defense, when ending in homicide, is justifiable only at the moment of the attack, and to ward off a sudden aggression itself threatening murder; but the deed once committed and the criminal in the hands of the law, there is no reason to fear a new aggression from him, and his chances of escape from justice through evasion are too few to justify the violation of a duty so absolute as the respect for human life.

It may be answered that society, by the death penalty, not only defends itself against the criminal himself, but against all those who might be inclined to imitate him. The penalty of death is above all a precautionary means of defense, that is to say, a means of intimidation. The future criminal is warned beforehand of the risks he runs; he accepts voluntarily the punishment he will incur. If society should catch him in the act—flagrante delicto—it would certainly, in order to prevent the crime, since it is the representative of all individuals, have the same rights as the individual of defending himself. But the difficulty of seizing upon the criminal at the moment of commission, can it be considered a circumstance in favor of the criminal, and does society lose its right, because, through the skill and precautions of assassins, it can but very rarely, and scarcely ever, catch them in the act?

The right of society to defend itself by the death penalty does not seem to us, then, to admit any doubt. The whole question is to know whether such a means of defense is really necessary and efficacious. It is, as we have said, a question of experience which it is very difficult to settle, for the reason that we dare not make the experiment. All that can be said is that, as a principle, every man fears death; it is the greatest of fears. There is, therefore, reason to believe that it is the most powerful of the means of intimidation. Besides, it is known that professional criminals estimate with great accuracy offenses and crimes proportionably to their penalties. Thus, those who steal know that they expose themselves to such or such punishment, but they go no farther in order not to incur a more severe punishment; for these the penalty of death is certainly a great item in their plans, and it would be dangerous to relieve them of this menace.

We do not mean to say that in future society may not reach a state of organization strong and enlightened enough to be able to do without such means; but in the present state of things we should consider the attempt to abolish them dangerous for society.

28. Of political assassination.—Concerning this pretended right, so shockingly promulgated in these days by savage factions, we cannot do better than quote the words of M. Jules Simon in his book on Duty:

“Political assassination,” he says, “is essentially worthy of condemnation from whichever side one looks at it. It has the same origin as the penalty of death, with this double difference that, in the application of the penalty of death, it is the State that pronounces the sentence conformably to the law, whilst in political assassination it is the same man who makes the law, pronounces the sentence, and executes it. Now, society, though badly constituted, and the law, though bad, are nevertheless a guaranty, whilst there is none at all against the caprice, passion or false judgment of a single individual. Besides, the legitimacy of the penalty of death is connected with the legitimacy of the power that pronounces it, and the uniformity of the law. Let some tyrannical authority cause a man to be shot at the corner of a street, without form of legal process, that cannot be called penalty of death; it is called murder; and even when the victim should have deserved his death, the government would not be the less criminal for having executed him without trial. If these principles are just, how can we admit the theory of political assassination, which allows the destiny of all to depend upon the conscience of a single individual. We reflect so little upon the rights of men that there are those who will condemn the death penalty and yet approve of political assassination. We judge so badly, that under the Restoration a monument was erected to Georges Cadoudal, and we hear every day the eulogy of Charlotte Corday. The guiltiness of the victim does not legitimate the act of the murderer. It is both unwise and criminal to furnish hatred with such excuses.”

29. The duel.—Does the duel come under the head of legitimate self-defense? No; whatever custom and prejudice may say in its favor.

1. We must first lay aside without discussion all duels bearing on frivolous causes, and they are the largest in number.

2. In many other cases reparation may be obtained through the law, and prejudice alone can prevent having recourse to it. If I am willing to have recourse to law in a case of robbery, why should I not appeal to this same law when my honor is attacked?

3. The duel is an absurd form of justice, because it puts the offender and the one offended on the same level. It is not the guilty one that is punished; it is the awkward one.

4. Social justice has degrees of penalty in proportion to the gravity of the offense, and is applied only after a very severe examination. The aim of the duel is to apply to very unequal offenses one and the same penalty, death (Jules Simon, Le Devoir, IV.), or if there are any degrees, since it does not always result in death, these degrees are the effect of chance. Finally, if in a duel the parties agree to use skill enough to hurt each other as little as possible, is it not as if they confessed to the injustice and insanity of the proceeding?

5. The duel had its origin in superstition: in the Combat of God, in the belief, namely, that God himself would arbitrate by means of the combat, and give the victory to the innocent and strike the guilty.

6. The duel is a homicide or a suicide. It is, therefore, contrary to the duty towards others and the duty towards ourselves. Finally, the duel is contrary to the duty towards society, which forbids each to be his own judge.

J. J. Rousseau, in the Nouvelle Héloïse, has written on the duel and suicide (see further on, Chapter xi.) a letter often quoted, of which we will briefly give the principal passages.

1. One must distinguish between real honor and apparent honor:

What is there in common between the glory of killing a man and the testimony of a righteous soul? What hold can the vain opinion of others have upon true honor, the roots of which are in the depths of the heart? What! the lies of a slanderer can destroy real virtues? Do the insults of a drunkard prove that one deserves them? And can the honor of a sensible man be at the mercy of the first ruffian he meets?

2. The use of force cannot be a title to virtue:

Will you tell me that one must show courage, and that courage suffices to efface the shame and reproach of all other vices? In this case a rogue would have but to fight a duel to cease to be a rogue; the words of a liar would become true if maintained at the point of a sword; and if you were charged with having killed a man, you would go and kill a second one to prove that the charge is not true. Thus, virtue, vice, honor, infamy, truth, falsehood, all derive their being from the event of a fight; a fencing-hall becomes the seat of all justice; might makes right.

3. Antiquity, so rich in heroes and great characters, knew nothing of the duel. There may then exist societies civilized and refined where a man may defend his honor without having to resort to the duel. This is a remarkably striking argument:[19]

Did ever the valiant men of antiquity think of avenging their personal insults by single combats? Did Cæsar send a challenge to Cato, or Pompey to Cæsar? “Other times, other manners,” you’ll say, I know, but true honor does not vary; it does not depend on times or places or prejudices; it can neither pass away nor be born again; it has its eternal source in the heart of the just man and in the unalterable rule of his duties. If the most enlightened, the bravest, the most virtuous nations of the earth knew nothing of the duel, I say that it is not an institution of honor, but rather a frightful and barbarous fashion worthy of its savage origin.

4. It is not true that a man of honor incurs contempt by refusing a duel:

The righteous man whose whole life is pure, who never gave any sign of cowardice, will refuse to stain his hand by a homicide, and will be only the more honored for it. Always ready to serve his country, to protect the feeble, to fulfil the most dangerous duties, and defend in all just and honest encounters, and at the price of his blood, what he holds dear, he will reveal in all his transactions that resolute firmness which always accompanies true courage. In the security of his conscience he walks with head erect; he neither flies from nor seeks his enemy; one can easily see that he fears less to die than to do wrong, and that it is not danger he shuns, but crime.

30. War.—War is the most serious and the most solemn exception to the law which forbids homicide. Not only does it permit homicide, but it commands it. The means thereto are prepared in public; the art of practicing them is a branch of education, and it is glorious to destroy as many enemies as possible.

One cannot fail to see the sad side of war, and how contrary it is to the ideal tendencies of modern society. It is still to be hoped that there will come a time when nations will find a more rational and more humane means of conciliating their differences. But there is no indication of this good time as yet, nor even that it is near, and it is necessary to guard against a false philanthropy, which would imperil the sacred rights of patriotism.

The problem of war in itself belongs rather to the law of nations than to morality properly so called. It will be in studying later the relations of the nations between each other that we shall have to establish as a rule that the right of self-defense exists for them as well as for the individual. The only question in a moral point of view is to know whether the individual, by the sole fact of the order of society, is released from the duty imposed on him not to shed blood. Some religious sects in the early times of Christianity, others in modern times in England and in America (the Quakers), believe that the interdiction of homicide is an absolute thing; they claim the right to be exempt from military duty. The State, of course, never recognized the legitimacy of such a scruple, which would prevent all social subordination and deprive the defense of the country of all its strength. But neither does morality recognize such a right. As a part of a society which is commissioned to defend us, and which can do so only by using force, it is evident that each one should share in the acts by which it undertakes to defend us. For how can malefactors be prosecuted without employing force? The same may be asked as to enemies from without. Now, as society defends every one equally, it cannot make any exception in favor of such or such scruple. It can grant exemptions, but cannot admit that each should exempt himself by the scruples of his conscience.

Certainly it ought not to be maintained that any order given by society releases the individual conscience from all consideration. But obedience to the law is the foundation of social order, and co-operation in the public defense is a duty of absolute necessity. Of course one assumes in this view implicitly the legitimacy of war; but this question will be treated later on by itself, and in accordance with the reasons belonging to it.

CHAPTER IV.

DUTIES CONCERNING THE PROPERTY OF OTHERS.

SUMMARY.

Of property.—Its fundamental principle; work sanctioned by law. Communistic Utopia.—Inequality of wealth: it is founded on nature, but should not be aggravated by the law.—Different forms of the rights of property: loans, trusts, things lost, sales, property properly so called.

Loan.—Is it a duty to loan?—The interest of money.—The question of usury.—Duties of creditor and debtor.—Failures and bankruptcies.—The commodate or things loaned for use.

Trust.—Duties of the depositary and the deponent.

Of the possession in good faith.—The thing lost.

Sales.—Obligations of seller and buyer.

Of property in general.—Violation of property or theft.—The elements which constitute theft.—Simple thefts and qualified thefts.—Abuse of confidence, swindling.—Restitution.

Promises and contracts.—Differences between these two facts.—Strict obligation to keep one’s promises: rare exceptions (practical impossibility, illicit promises, etc.)—Different kinds of contracts.—Conditions of the contract: consent, capacity of contracting parties, a real object, a licit cause.—Rules for the formation of contracts.—Rules for the interpretation of contracts.

The immediate consequence of the right of self-preservation which each has, etc., implies the right of property.

31. Property.—What is property? What is its origin and principle? What objections has it raised? What moral and social reasons justify it, rendering its maintenance both sacred and necessary?

“Property,” says the civil code, “is the right to enjoy and dispose of things in the most absolute manner, provided no use is made of them prohibited by the laws or the rules.” (Art. 544.)

“The right of property,” says the Constitution of ’93, “is that which belongs to every citizen: to enjoy, and dispose at will of his property, his income, of the fruit of his labor and industry.” (Art. 8.)

These are the judicial and political definitions of property. Philosophically, it may be said, that it is the right each man has to make something his own, that is to say, to attribute to himself the exclusive right to enjoy something outside of himself.

We must distinguish between possession and property. Possession is nothing else than actual custody: I may have in my hands an object that is not mine, which has either been loaned to me, or which I may have found; this does not make me its proprietor. Property is the right I have to exclude all others from the use of a thing, even if I should not be in actual possession of it.

32. Origin and fundamental principle of property.—The first property is that of my own body, but thus far it is nothing else than what may be called corporeal liberty. How do we go beyond that? How do we extend this primitive right over things which are outside of ourselves?

Let us first remark that this right of appropriating external things rests on necessity and on the laws of organized beings. It is evident, in fact, that life cannot be preserved otherwise than by a perpetual exchange between the parts of the living body and the particles of the surrounding bodies. Nutrition is assimilation, and, consequently, appropriation. It is, then, necessary that certain things of the external world should become mine, otherwise life is impossible.

Property is then necessary; let us now see by what means it becomes legitimate.

Property has been given several origins: occupation, law, work. According to some, property has for its fundamental principle the right of the first occupant. It is said that man has the right of appropriating a thing not in possession of some one else; the same as at the theatre, the spectator who comes first has the right to take the best place. (Cicero.) So be it; but at the theatre I occupy only the place occupied by my own body; I have not the right to appropriate the whole theatre, or even the pit. It is the same with the right of the first occupant. I have certainly a right to the place my own body would occupy, but no further: for where would my right then stop?

“Will the setting one’s foot,” says J. J. Rousseau, “on a piece of common ground be sufficient to declare one’s self at once the master of it? When Nunez Balboa took on landing possession of the Southern Sea, and of the whole of Southern America in the name of the Crown of Castile, was that enough to exclude from it all the princes of the world? At that rate the Catholic king had but to take all at once possession in his study of the whole universe, relying upon subsequently striking off from his empire what before was in possession of the other princes.” (Contrat social, liv. 1er, Ch. ix.)

The law.—If occupation of itself alone is insufficient in founding the right of property, will it not become legitimate by adding to it convention—that is to say, the law? Property, we have seen, is necessary; but if every one is free to appropriate to himself what he needs, it becomes anarchy; it is, as Hobbes said, “the war of all against all.” It is necessary that the law should fix the property of each in the interest of all. Property, under this new hypothesis, would then mean the part which public authority has fixed or recognized, whether we admit a primitive division made by a magistrate, or a primitive occupation more or less due to chance, but consecrated by law.

Certainly, the reason of social utility plays a great part in the establishment and consecration of property; and it would be absurd not to take this consideration into account. Certainly, even if property were but a fact consecrated by time, by necessity, and by law, it would already by that alone have a very great authority; but we believe that that is not saying enough. Property is not only a consecrated fact, it is also a right. It finds in the law its guaranty, but not its foundation.

The true principle of property is work; and property becomes blended with liberty itself: “liberty and property,” say the English.

Work.—If all the things man has need of were in unlimited number, and if they could be acquired without effort, there would be no property. This, for example, takes place in the case of the atmosphere, of which we all have need, but which belongs to no one. But if the question is of things that cannot be acquired except by a certain effort (as in the case of animals running wild), or even that can be produced only by human effort (as a harvest in a barren ground), these things belong by right to him who conquers them or brings them about.

“I take wild wheat into my hand, I sow it in soil I have dug, and I wait for the earth, aided by rain and sunshine, to do its work. Is the growing crop my property? Where would it be without me? I created it. Who can deny it?... This earth was worth nothing and produced nothing: I dug the soil; I brought from a distance friable and fertilizing earth; I enriched it with manure; it is now fertile for many years to come. This fertility is my work.... The earth belonged to no one; in fertilizing it, I made it mine. According to Locke, nine tenths at least of the produce of the soil should be attributed to human labor.”[20]

It has been said that work is not a sufficient foundation to establish the right of property; that occupation must be added thereto, for otherwise work alone would make us the proprietors of what is already occupied by others; the farmer would become the proprietor of the fields he cultivates from the fact alone that he cultivates them. Occupation is therefore a necessary element of property.

Certainly; but occupation itself has no value except as it already represents labor, and inasmuch as it is labor. The fact of culling a fruit, of seizing an animal, and even of setting foot upon a desert land, is an exercise of my activity which is more or less easy or difficult to accomplish, but which in reality is not the less the result of an effort. It is, then, work itself which lays the foundation of occupation and consecrates it. But when the thing once occupied has become the property of a man by a first work, it can no longer without contradiction become the property of another by a subsequent work. This work applied to the property of others is not the less itself the foundation of property, namely: the price received in exchange of work, which is called salary, and which again by exchange can obtain for us the possession of things not ours.

33. Accumulation and transmission.—The right of appropriation, founded as we have just seen on work, carries with it as its consequence, the right of accumulation and that of transmission.

In fact, if I have acquired a thing, I can either enjoy it actually, or reserve it to enjoy it later; and if I have more than my actual wants require, I can lay aside what to-day is useless to me, but which will be useful to me later. This is what is called saving; and the successive additions to savings is called accumulation. This right cannot be denied to man; for that would be ignoring in him one of his noblest faculties, namely, the faculty of providing for the future. In suppressing this right, the very source of all production, namely, work, would dry up; for it is his thought of the future which, above all, induces man to work to insure his security.

The right of transmission is another consequence of property; for if I have enjoyment myself, I ought to be able to transmit it to others; finally, I can give up my property to obtain in its place the property of others which might be more agreeable or more useful to me; hence the right of exchange, which gives rise to what is called purchase and sale. Of all transmissions, the most natural is that which takes place between a father and his children: this is what is called inheritance. If we were to deprive the head of a family of the right of thinking of his children in the accumulation of the fruits of his labors, we should destroy thereby the most energetic instigation to work there is in the human heart.

34. Individual property and the community.—The adversaries of property have often said that they did not attack property in itself, but only individual property. The soil which, if not the principle, is at least the source of all riches, belongs, they say, not to the individual, but to society; to the State, that is to say, to all, as common and undivided property: each individual is but a consumer, and receives his share from the State, which alone is the true proprietor. This is what is called the community system, or communism, which takes two forms, according as it admits the division to be made in a manner absolutely equal among the co-members of the society, which is the equality system (système égalitaire); or by reason of capacity and works. It is this form of communism which the school of Saint-Simon maintains at this day.

We need not point out the practical impossibility of realizing such a system. Let us confine ourselves to showing its essential vice. If communism means absolute equality (and true communism does), it destroys the main inducement to work: for man assured of his living by the State, has nothing left to stimulate him to personal effort. Work, deprived of the hope of a legitimate remuneration, would be reduced to a strict minimum, and civilization, which lives by work, would rapidly go backward: general wretchedness would be the necessary consequence of this state of things; all would be equally poor and miserable; humanity would go back to its primitive state, to get from which it struggled so hard, and from which it emerged by means of work and property alone. Moreover, as it is absolutely impossible to dispense with work, the State would be obliged to enforce it upon those whom their interest did not spontaneously incline to it; from being free, work would become servile, and the pensioners of the State would in reality be but its slaves.

As to the inequality-communism (communisme inégalitaire) which recommends a remuneration from the State, proportioned to merit and products, that is to say, to capacity and works, it certainly does not so very seriously impair the principle of property and liberty; but, on the one hand, it does not satisfy the instincts of equality,[21] which have at all times inspired the communistic utopias; on the other, it attacks the family instincts by suppressing inheritance; now, if man is interested in his own fate, he interests himself still more, as he grows old, in the fate of his children; in depriving him of the responsibility for their destinies, you deprive him of the most energetic stimulus to work; and the tendency would be, though in a lesser degree, to produce the same evil of general impoverishment, as would communism properly so called. But the principal vice of all communism, whether of equality or inequality, is to substitute the State for the individual, to make of all men functionaries, to commit to the State the destinies of all individuals; in one word, to make of the State a providence.[22]

35. Inequality of riches.—Yet there will always arise in the mind a grave problem: Why are goods created for all, distributed in so unequal and capricious a manner? Why the rich and the poor? and if inequality must exist, why is it not in proportion to inequality of merit and individual work? Why are the idle and prodigal sometimes rich? Why are the poor overwhelmed by both work and poverty?

There are two questions here: 1. Why is there any inequality at all? 2. Why, supposing this inequality must exist, has it no connection with merit or the work of the individual?

Regarding the first point, we cannot deny, unless we should wish to suppress all human responsibility, all free and personal activity—in a word, all liberty—we cannot deny, I say, that the inequality of merit and of work does not authorize and justify a certain inequality in the distribution of property.

But, it is said, this inequality is not always in proportion to the work. It may be answered that as civic laws become more perfect (by the abolition of monopoly, privileges, abuse of rights, such as the feudal rights, etc.,) the distribution of riches will tend to become more and more in proportion to individual merit and efforts. There remain but two sources of inequality which do not proceed from personal work: 1, accidents; 2, hereditary transmission. But in regard to accidents, there is no way of absolutely suppressing the part chance plays in man’s destiny; it can only be corrected and diminished, and thereto tend the institutions of life-assurances, savings-banks, banks of assistance, etc., which are means of equalization growing along with the general progress. As to the inequality produced by inheritance, one of two things is to be considered: either the heir keeps and increases by his own work what he has acquired, and thus succeeds in deserving it; or, on the contrary, he ceases to work and consumes without producing, and in this case he destroys his privilege himself without the State’s meddling with it.

Besides, the question is less concerning the relative well-being of men than their absolute well-being. What use would it be to men to be all equal if they were all miserable? There is certainly more equality in a republic of savages than in our European societies; but how many of our poor Europeans are there who would exchange their condition for an existence among savages? In reality, social progress, in continually increasing general wealth, increases at the same time the well-being of each, without increasing the sum of individual efforts. This superaddition of well-being is in reality gratuitous, as Bastiat has demonstrated. “Hence,” as he says, “with a community increasing in well-being,[23] as by property ever better guaranteed, we leave behind us the community of misery from which we came.”

“Property,” says Bastiat, “tends to transform onerous into gratuitous utility. It is that spur which obliges human intelligence to draw from the inertia of matter its latent natural forces. It struggles, certainly for its own benefit, against the obstacles which make utility onerous; and when the obstacle is overthrown, it is found that its disappearance benefits all. Then the indefatigable proprietor attacks new obstacles, and continually raising the human level, he more and more realizes community, and with it equality in the midst of the great human family.”

36. Duties concerning the property of others.—After having established the right of general property, we have to expound the duties relative to the property of others.

The property of others may be injured in various ways, and in different cases. These cases are: 1, loans; 2, trusts; 3, things lost; 4, sales; 5, property strictly so-called.

37. Loans.—Debts.—The inequality of riches is the cause that among men some have need of what others possess, and yet cannot procure by purchase, for want of means. In this case, the first turn to the second to obtain the temporary enjoyment of the thing they stand in need of; this is called borrowing; the reciprocal act, which consists in conceding for a time the desired object, is called loaning. He who borrows, and who by this very act engages himself to return the thing again, is called debtor (who owes), and he who loans is called creditor; he has a credit on his debtor.

Several questions spring from this, some very simple, others very delicate, and often debated.

38. Rights and duties of the creditor.—Money interest.—Usury.—And first, is it a duty to loan to any that ask you? It is evident that if it is a duty it can be only a duty of charity, or friendliness, but not of strict justice. One is no more obliged to loan to all than to give to all. The duty of loaning, like the duty of giving without discrimination, would be tantamount to the negation of property; for he who would open his money-chest to all unconditionally, however rich he might be, would in a few days be absolutely despoiled. Besides, the same duty weighing equally on those who have received, they in their turn would be obliged to pass their goods over to others, and no one would ever be proprietor. In this case, it would even be better to hand all property over to the State, that it might establish a certain order and fixity in the repartition of it.

It is this doctrine which a Father of the Church, Clement of Alexandria, has expressed in these terms in his treatise: Can any rich man be saved?

“What division of property could there be among men if no one had anything? If we cannot fulfil the duties of charity without any money, and if at the same time we were commanded to reject riches, would there not be contradiction? Would it not be to say at the same time give and not give, feed and not feed, share and not share?”

It is therefore not a strict duty to loan to all; it is a form of benevolence, and we must put off to another chapter (ch. vi.) the conditions and the degrees of this duty.

But a question which necessarily presents itself here, is to know if, when one loans, it is a duty to deprive one’s self of all remuneration; or if it is, on the contrary, permitted to exact a price over and beyond the sum loaned. This is what is called money interest; and when this interest is or appears excessive, it is called usury. This question, discussed during the whole middle ages, was, before its true principles were established, first resolved by practice and necessity.

It is to-day evident to all sensible minds, that capital, like work, has a right to remuneration. Why? Because without the expectation of this remuneration, the possessor of the capital would forthwith consume it himself or allow it to waste away without use. This will be better understood in considering the two principal forms of remuneration for capital: interest and rent. Interest and rent are both the product of a capital loaned, but with this difference, that rent is the product of a fixed capital (house, field, workshop); while interest is the product of a circulating capital (money or paper).

The interest of capital represents two things: 1, the deprivation of him who loans, and who might consume his capital; 2, the risk he incurs, for capital is never loaned except to be invested, and consequently it may be lost. These are the two fundamental reasons which establish the legitimacy of interest, despite the prejudices which have long condemned it as usury, and the utopias which would establish the gratuity of credit.[24]

The principal reason against the legitimacy of interest is deduced from the sterility of money. “Interest,” says Aristotle, “is money bred from money; and nothing is more contrary to nature.” But, as Bentham remarks (Defense of Usury, letter 10), “if it be true that a sum of money is of itself incapable to breed, it is not the less true that with this same borrowed sum, a man can buy a ram and a sheep, which, at the end of a year, will have produced two or three lambs.” In other terms, as Calvin says, “it is not from the money itself that the benefit comes, it is from the use that is made of it.”

It has been said that he who loans does not deprive himself of his money, since he can do without it. (Proudhon, Letters to Bastiat, 3d letter.) But he does deprive himself of it, since he might have consumed it himself. The proof that a loan is a privation, is the pain men have in economizing and in investing their money. How many men are there who, in possession of a sum of one hundred francs, would not rather spend it than place it on interest?

As to what is called gratuitous credit, it could be possible only by being reciprocal. In fact, if I loan you my house, and you loan me in return your land, supposing they are of equal value, it is evident that, the one being worth as much as the other, and the two services equivalent, we need not pay each other anything; for it would be only an exchange of money. But nothing can be inferred from this, touching the most usual case: namely, where the capital is loaned by the possessor to him who does not possess; for then there is no reciprocity, consequently no gratuity.

As to the rate of interest it varies like all values according to the law of supply and demand in the money market. (See the Cours d’Economie Politique.) The greater the supply of capital the less dear it is. It is, then, the increase of capital that is to diminish interest and bring about a sort of relative gratuity. Every enterprise against capital will produce a contrary result.

As to the rent of capital, it has generally raised fewer objections than interest; for it is easier to understand that if I give myself the trouble to build a house, it is that it will bring me in something; but it is, on the whole, the same thing, with this difference, that circulating capital, running more risks than fixed capital, seems to have a still better right to remuneration.

The lender has then the right to exact a certain amount over and above the sum loaned. Certainly, he cannot exact it, as it often occurs among friends, and for very small sums. But as a principle, one is no more obliged to lend gratuitously, than to give to others gratuitously what they need.

In admitting that the interest of money is a legitimate thing, is one obliged also to admit that the money-lender has a right to fix the rate of interest as high as he wishes? Beyond a certain limit, will not the interest become what we call usury?

To which may be replied:

“1. If the one borrowing consents to pay the price, it is that this service done him does not appear to him too dear. One may borrow at 20 and even 30 per cent., if one foresees a gain of 40. 2. Why not look at the thing from the lender’s standpoint? If the return of the funds appears more or less doubtful, why should he not have the right to protect himself?” (Dictionary of Politics, by Maurice Block.)

These arguments prove, in fact, that it is impossible to determine beforehand and absolutely the rate at which it may be permitted to lend, and there are many cases where a very high interest may be legitimate: for instance, in what is called bottomry-loan, which consists in advances made to shipping merchants on their ships; the law here sanctions very high interest, because of the exceptional risks this kind of enterprise runs.

Does it, however, follow, as some economists seem to think, that there is no occasion to speak of usury, properly so called, that the term usurer is an insult, invented by ignorance, which has no real basis? This we cannot admit. Political economy and morality are two different things.

Even if one should admit that there is no reason for legally fixing the rate of interest, because money is a merchandise like all others which should be left to free circulation, to the free appreciation of the parties, it would not follow that there could be no abuse made of the required interest. Experience proves the contrary. It is not so much the rate of the interest which constitutes the injustice thereof, as the reasons and circumstances of the loan. If, taking advantage of the passions of youth, one loans to a prodigal, knowing him unable to refuse the conditions, because he only listens to pleasure; or if, seducing the ignorant, one dazzles him with magnificent bargains; or, lastly, if profiting by the common desire among peasants to enlarge their grounds, we advance them money, knowing they cannot return it, and secure thereby the property they think they are buying, in all such cases, or similar ones, there is always usury, and morality must condemn such hateful practices.

The hatefulness of usury is brought into strong relief in Molière’s celebrated scene in The Miser (Act ii., Sc. i.):

La Flèche: Suppose that the lender sees all the securities, and that the borrower be of age and of a family of large property, substantial, secure, clear and free from any incumbrances, there will then be drawn up a regular bond before a notary, as honest a man as may be found, who to this effect shall be chosen by the lender, to whom it is of particular importance that the bond be properly drawn up.

Cleante: That’s all right.

La Flèche: The lender not to burden his conscience with any scruples, means to give his money at the low rate of denier eighteen[25] (5, 9 per cent.) only.

Cleante: Denier eighteen? Jolly! That’s honest indeed! No fault to find there!

La Flèche: No. But as the said lender has not with him the sum in question, and, to oblige the borrower, he will himself be obliged to borrow from another at the rate of denier five (20 per cent.), it will be but just that the abovesaid first borrower should pay that interest without prejudice to the other, for it is only to oblige him that the said lender resorts to this loan.

Cleante: The devil! What a Jew! What an Arab is that! That would be at a greater rate than denier four (25 per cent.).

La Flèche: That’s so: it is just what I said.

Cleante: Is there anything more?

La Flèche: But just a small item. Of the fifteen thousand francs that are asked, the lender can give in cash only twelve thousand, and for the thousand crowns remaining, it will be necessary that the borrower take the clothes, stock, jewelry, etc., of which here is the list.

Cleante: The plague on him!

The next scene shows with remarkable energy the spendthrift and the usurer in conflict with each other.[26]

39. Duties of the debtor.—After the duties of the lender and the creditor, let us point out those of the borrower or the debtor. The only duty for him here is to return what he has borrowed: it is the duty of paying one’s debts.

For a long time, the duty of paying one’s debts appeared to be one of those vulgar and commonplace duties intended for the generality of men, but from which the great lords freed themselves easily. The poor creditors have been the laughing stock in comedies.[27] But it is not doubted nowadays that to refuse to pay what one owes, is really taking from the property of others, and appropriating what does not belong to us.

This duty, besides, is so simple and stringent that it is necessary only to mention it without further development. The same principles apply to the various ways in which one may make use of property, and particularly to the three kinds indicated in the Civil Code—the usufruct, the usage, and the right of action. The common obligation in these three cases, mentioned by the Code, is to use the thing belonging to others as a prudent father would, which is to say, to use it as the proprietor himself would use it, without injuring the object, and even improving it as much as possible. It is especially in commerce that the act of paying one’s debts, is not only more obligatory morally, but socially more necessary than anywhere else. The reason of it is that commerce is impossible without credit. By exacting of every merchant the payment of cash, the springs of exchange would dry up; besides, most of the time it would be useless; for in commerce merchandise is constantly bought against merchandise. It would be loss of time, loss of writing, limitation of the market. In commerce one cannot say of him who owes that he is a borrower; for the next day, according to the fluctuations of demand and supply, he may be the lender. But it is just because credit is indispensable in commerce, that the obligations of the debtors are in some respect more stringent; for the greater the confidence, the more stringent the duty. So that commercial honor is like military honor—it does not admit of breaking promises.

40. Failures and bankruptcies.—However strict one should be in commerce in regard to keeping promises, there is nevertheless in the Code cause for distinguishing two different cases of promise-breaking—failure and bankruptcy; and in this second case, there is simple bankruptcy and fraudulent bankruptcy.

Failure is purely and simply the suspension of payments resulting from circumstances independent of the will of him who fails. Bankruptcy, on the contrary, is suspension of payments resulting either from imprudence or from mistakes of the bankrupt.

Simple bankruptcy occurs in the following cases: 1. If the personal expenses of the merchant or the expenses of his house are judged excessive; 2. If he has spent large sums of money in operations of pure chance either in fictitious operations or extravagant purchases; 3. If with the intention of putting off his failure, he has made purchases to sell again below par; 4. If after cessation of payment, he has paid a creditor to the prejudice of all others. (Code of Commerce.)

Bankruptcy is called fraudulent, when the bankrupt has abstracted his books, misrepresented a portion of his assets, or declared himself debtor for sums he does not owe.

It is useless to say that this third case is but another case of theft and deserves the severest denunciation. Simple bankruptcy is already very culpable; and failure itself should be regarded by all merchants as a very great misfortune, which they must avoid at any cost.

41. The commodate or gratuitous loan.—The gratuitous loan or commodate is a contract by which one of the parties gives to the other a thing to be made use of, on the condition that it be returned after having served its purpose. (Code Civ., Art. 1875.)

As a fundamental principle, the receiver must return to the lender the very thing he has loaned him. But in case of loss or deterioration of the thing loaned, resulting from the use made of it, on whom is to fall the loss?

“It cannot be presumed, says Kant (Doctrine of the Law, French translation, p. 146), that the lender should take upon himself all the chances of loss or deterioration of the thing loaned; for it stands to reason that the proprietor, besides granting to the borrower the use of the thing he loans him, would not agree to insure him also against all risks. If, for instance, during a shower, I enter a house, where I borrow a cloak, and this cloak gets to be forever spoiled from coloring matters thrown upon me by mischance, from a window, or if it be stolen from me in a house where I laid it down, it would be considered generally absurd, to say that I had nothing else to do than to send back the cloak, such as it is, or report the theft that has taken place. The case would be very different if, after having asked permission to use a thing, I should insure myself against the loss in case it should suffer any damage at my hands, by begging not to be held responsible for it. No one would think this precaution superfluous and ridiculous, except perhaps the lender, supposing he was a rich and generous man; for it would then be almost an offense not to expect from his generosity the remission of my debt.”

42. The trust.—Trust, in general, is an act by which one receives the thing of another on condition to keep it and restore it in kind. (Code Civ., Art. 1915.)

He who deposits is called deponent (or bailor in England); he who receives the trust is called depositary (in England bailee).

The obligations of the depositary are morally the same as those found in positive law. We have then nothing better to do here than to reproduce the precepts of the Code on this matter.

1. The depositary, in keeping the thing deposited with him, must exercise the same care as with the things belonging to himself (Art. 1927).

2. This obligation becomes still more stringent in the following cases: (a), when the depositary offers himself to receive the thing in trust; (b), when he stipulates for a compensation for the keeping of the thing deposited; (c), when the trust is to the interest of the depositary; (d), when it has been expressly agreed upon that the depositary be answerable for all kinds of mistakes (Art. 1928).

3. The depositary cannot make use of the trust without the express or presumed consent of the deponent (Art 1929).—For example, if a library has been left in my trust, it may be presumed that the deponent would not object to my using it; but if the trust consists in valuable jewelry, it can be only by the express wish of the deponent that I could wear it. The difference is simple and easily understood.

4. The depositary should not seek to know what the things deposited with him are, if they have been left with him in a closed trunk or a sealed envelope (Art. 1931).

5. The depositary must return the identical thing he has received. Thus the trust consisting in specie, must be returned in the same specie.

The obligation to restore the thing deposited in kind, and such as it was when delivered, is evident, and constitutes the very essence of the trust.

However, we should take into account the following circumstances:

1. The depositary is not held responsible in cases of insuperable accidents (Art. 1929).

2. The depositary is only held to return the things deposited with him, in the state wherein they are at the moment of restitution. Deteriorations, through no fault of his, are at the expense of the deponent (Art. 1935).

Such are the obligations of the depositary; as to those of the deponent, they resolve themselves into the following rule:

The deponent is held to reimburse the depositary for any expense he may have incurred in the keeping of the trust, and to indemnify him for any loss the trust may have occasioned him (Art. 1947).

43. Possession in good faith.—Possession in good faith is analogous to trust. In fact, he who possesses in good faith a thing that is not his, is in reality but a depositary, but he is so without knowing it. Hence analogies and differences between these two cases, which it is well to point out.

The following are some rules proposed on this subject by Grotius (De la paix et de la guerre, B. 11, ch. xii., § 3); and Puffendorf (Droit de la Nature et des Gens, B. iv., ch. xiii., § 12). But as these rules appeared excessive to other jurisconsults, we give them here rather as problems than solutions:

1. A possessor in good faith is not obliged to restore a thing which, against his wish, has come to be destroyed or lost, for his good faith stood to him in lieu of property.

2. A possessor in good faith is held to return not only the thing itself, but also its fruits still existing in kind.

3. A possessor in good faith is held to return the thing itself, and the value of the fruit thereof which he has consumed, if there is reason to believe that he would have otherwise consumed as many similar ones.

4. A possessor in good faith is not held to return in kind the value of the fruit he has neglected to gather or to grow.

5. If a possessor in good faith, having received the thing as a present, should afterwards give it to another, he is not obliged to return it, unless he would otherwise have given one of the same value.

6. If a possessor in good faith, having acquired a thing by an onerous title, should afterwards dispose of it in some way or other, he need return but the gain it procured him.

It is necessary to remark here that in this matter morality should be more severe than the strict law; for if morality demands that a possessor be above all mindful of the rights of others, the law should also consider the rights of him who in good faith and ignorance enjoys what belongs to others. Hence, an essential difference between this case and that of the trust.

44. Things lost.—The question of things lost is related to that of possession in good faith. If the thing lost should fall into my hands by a regular acquisition, by purchase, contract, etc. (as, for instance, buying a horse in the market), it is evident that this case comes under possession in good faith, and that it is the business of the law to decide between proprietor and possessor. But if I appropriate to myself the thing lost, knowing it to be lost, and consequently not mine, there is fraud and converting to my own use the property of others. Public opinion was for a long time indulgent towards this kind of appropriation. It seemed that luck gave a certain title to property. The difficulty, moreover, of finding the true owner, seemed to give to him who had found the object a certain right to it. But to-day society plays the part of intermediary, and assumes the duty of restoring the thing lost to its owner. It is, therefore, to the authorities the object must be returned.[28]

For a long time a misjudgment of the same kind allowed wreckers a pretended right to the objects thrown on the strand by the tempest following a wreck.

45. Sale.—Sale is a contract by which one of the parties engages to deliver a thing, and the other to pay for it (Civ. Code, Art. 1982). There are, then, two contracting parties—the seller and the buyer. They are subject to different obligations.

Obligations of the seller.—The seller is held clearly to explain what he engages to do. An obscure and ambiguous agreement is interpreted against the seller (Civ. Code, Art. 1602). Such is the general and fundamental obligation of a sale. It implies, moreover, two others, more particular: 1, that of delivering; 2, that of guaranteeing the thing sold.

The first is very simple, and raises only questions of fact, as in regard to delays, expenses of removal, etc.; it is the business of the law to regulate these details.

The guaranty, in a moral point of view, is of greater importance. The two essential principles in this matter are expressed by the Code in the following terms:

1. The seller is held to his guaranty in proportion to the concealed defects of the thing sold, rendering it improper for the use for which it was destined, or so diminishing this use, that the buyer would not have bought it, or would not have given so much for it, had he known of these defects.

2. The seller is not held to the obvious defects which the buyer may have been able to see himself.

It is to this question of guaranteeing the thing sold, that the conscience-case mentioned by Cicero, in his treatise on Duties, is applicable:

An honest man puts up for sale a house, for defects only known to him; this house is unhealthy and passes for healthy; it is not known that there is not a room in it where there are no serpents; the timber is bad and threatens ruin; but the master alone knows it. I ask if the seller who should not say anything about it to the buyers, and should get for it much more than he has a right to expect, would do a just or unjust thing. “Certainly he would do wrong,” says Antipater; “is it not, in fact, leading a man into error knowingly?” Diogenes, on the contrary, replies: “Were you obliged to buy? You were not even invited to do so. This man put up for sale a house that no longer suited him, and you bought it because it suited you. If any one should advertise: Fine country-house well built, he is not charged with deceit, even though it was neither the one nor the other. And whilst one is not responsible for what he says, you would make one responsible for what he does not say! What would be more ridiculous than a seller who would make known the defects of the thing he puts up for sale? What more absurd than a public crier who, by order of his master, should cry: “Unhealthy house for sale!”

Despite Diogenes’ railleries, Cicero decides in favor of Antipater and the more rigorous solution. The truly honest man, he says, is he who conceals nothing.

If it is a fault not to reveal the defects of the thing sold, it is a still graver one, and one which becomes a fraud, to ascribe to it qualities or advantages it has not. Cicero cites on this subject a charming and well-known anecdote.

The Roman patrician, C. Canius, a man lacking neither in personal attractions nor learning, having gone to Syracuse, not on business, but to do nothing,[29] as he expressed it, said everywhere that he wished to buy a pleasure-house, to which he might invite his friends, and amuse himself with them away from intruders. Upon this report, a certain Pythius, a Syracuse banker, came to tell him that he had a pleasure-house which was not for sale, but which he offered him and begged him to use as his own, inviting him at the same time to supper for the next day. Canius having accepted, Pythius, who in his quality of banker had much influence among people of all professions, assembled some fishermen, requesting them to go fishing the next day in front of his pleasure-house, giving them his orders. Canius did not fail to present himself at the supper hour. He found prepared a splendid banquet, and a multitude of boats before the grounds of his host. Each of the fishermen brought the fish he had caught, and threw them at Pythius’ feet. Canius wondered: “What means this, Pythius? How! so many fish here, and so many boats!” “Nothing to wonder at,” says Pythius; “all the fish of Syracuse come up here. It is here the fishermen come for water. They could not do without this house.” Canius then becomes excited; he presses, solicits Pythius to sell him the house. Pythius first holds back, but at last gives in. The Roman patrician gives him all he asks for it, and buys it all furnished. The contract is drawn up, and the bargain concluded. The next day, Canius invites his friends, and comes himself early in the morning; but not a boat is in sight. He inquires of the first neighbor if it was a holiday with the fishermen, that he did not see any about. “Not that I know of,” replied the neighbor; “but they never come this way, and I did not know, seeing them yesterday, what it all meant.” Canius was no less indignant than surprised. But what remedy? Aquillius, my colleague and friend, had not yet established his formulas on fraudulent acts.[30]

46. The price in selling.—If we adhere to the principles of political economy, the price in selling is entirely free: it depends exclusively upon the agreement between the vender and the buyer, and as it is said, on the relation between the supply and demand. Nothing more unjust than the intervention of the law in commercial relations. If the buyer buys at such or such a price, however high, it is that he still finds it to his interest to buy even at that rate. If the vender sells at such or such a price, however low, it is that he cannot get more, and that it suits him rather to sell at that price than keep the thing.

It is then certain that the value of things being wholly relative, it is impossible to determine in an absolute manner what may be called the just price; for that depends on the frequency and rarity of the thing, on the market, on the wishes of the buyer, and the thousand continually varying circumstances. In short, the sale taking place when one wishing to sell and one wishing to buy, meet each other, it seems that their accord is a proof that the two interested parties have come to an understanding. There would, according to that, never be any unjust sale or purchase. We must consequently consider the definition of commerce given by the socialist, Ch. Fourier: “Commerce is the art of buying for three cents what is worth six, and selling for six what is worth three,” not only as satirical and hyperbolical, but also as unjust and anti-scientific; for we cannot say whether a thing is in itself absolutely worth six cents or three cents.

Does it follow, however, that there can never be any injustice in sale or purchase? If there is no absolute price, there is a medium price resulting from the state of the market. Now, the buyer may not know this medium price; and it is an injustice on the part of the seller to take advantage of this ignorance to sell above that. The same in the case of the vender’s not knowing the price of the thing he has for sale, which the buyer appropriates, paying for it below its real value.

Besides, whilst admitting that the prices are free, and that the law cannot intervene between vender and buyer, it is, however, necessary to admit that there is a certain moderation beyond which injustice begins, if not in a legal, at least in a moral point of view. But it is for particular circumstances to determine this limit; and there is no general rule for it. It is a case where not strict justice, but equity is just.

47. Violation of the property of others.—Theft.—In general, every kind of violation of property under one form or another, is called theft, and this action is condemned by morality. It is expressed by that ancient commandment: Thou shalt not steal.

The following are the various definitions of theft given by the jurists: “By theft is meant every illegal usurpation of the property of others.”[31]—“By theft is meant every fraudulent carrying off for gain a thing belonging to others.”[32] Finally our Code declares that, “whosoever has fraudulently carried off anything that does not belong to him, is guilty of theft.” (Penal Code, Art. 379.)

It takes, then, three elements to constitute theft: 1, carrying off; 2, fraud; 3, the thing of another.

Two kinds of theft are distinguished: the simple thefts and the qualified thefts.

The first are those in which are met the three preceding elements, but without any further aggravating circumstance. The second (qualified thefts) are those which to the three preceding elements add some aggravating circumstances. These circumstances are: 1, the quality of the agents (servants, inn-keepers, drivers or boatmen).

It is clear that this is an aggravating circumstance by reason of the facility given by the more intimate relations in which they stand with the injured persons, and the greater confidence these are obliged to grant them.

2. Times and places.—For example, thefts committed by night are more grave than those committed by day, because it is more difficult to anticipate them, to catch their perpetrators, and because they place the injured person in greater danger. The places that aggravate theft are: 1, the fields; 2, inhabited houses; 3, edifices consecrated to divine worship; 4, highways, etc. It is easy to understand why these different places aggravate the crime by rendering it more easy.

3. Circumstances of execution, as for example: 1, theft committed by several persons; 2, theft by breaking open; 3, theft with an armed hand, etc.

In a word, theft becomes greater in proportion to the difficulty of forestalling it, and its menacing character.

One particular form of theft is swindling. Swindling is a sort of theft, since it is a fraudulent appropriation of the thing of another. But it is characterized by the fact that it does not take place through violence, but through cunning, and in deceiving the victim by fraudulent maneuvers; for instance, in making him believe in the existence of false enterprises, in an imaginary power or credit, in calling forth the hope and fear of a chimerical event, etc.

Embezzlement is a sort of swindling, with this difference, that “if the criminal has betrayed the confidence which has been placed in him, he has not solicited this confidence by criminal maneuvers.” Among these may be classed: 1, taking improper advantage of the wants of a minor; 2, misuse of letters of confidence; 3, embezzlement of trusts; 4, the abstraction of documents produced in court.

We have to point out still several other kinds of theft: for example, theft at gambling or cheating; theft of public moneys or peculation, etc.

In one word, under whatever form it may be concealed, misappropriation of another’s goods is always a theft. In popular opinion it often seems, as if theft really takes place only when the criminal takes violent possession of another’s property. Very often a few false appearances suffice to conceal to the eyes of easy consciences the hatefulness and shamefulness of fraudulent spoliations. One who would scruple to take a piece of money from the purse of another, may have no scruple in deceiving stockholders with fictitious advertisements, and appropriate capital by fraudulent maneuvers. Theft thus committed on a large scale is still more culpable, perhaps, than the act of him who, through want, ignorance, hereditary vices, never knew of any other means of living than by theft.

48. Restitution.—He who has taken possession of anything that belongs to another, or retains it for any cause, is held to restitution as a reparation of his fault. This restitution must be made as soon as possible; otherwise it is necessary to obtain an extension of time from the injured person. If the thing has been lost, restitution should no less be made under some form of compensation. Restitution is independent of the penalty attached to the damage and fault.

49. Promises and contracts.—We have seen above that it is an absolute obligation for man to use language only so as to express the truth. Hence every word given becomes essentially obligatory. But it is as yet only a duty of the man towards himself. We have to see wherein and how the word given may become a duty towards others. This is the case with promises and contracts.

Promises.—A promise is the act whereby one gives his word to another either to give him something or do something for him.

According to jurists, a promise is obligatory only when accepted by him to whom it is made.

Pollicitation (promise) says Pothier,[33] produces no obligation properly so called, and he who has made such a promise may, as long as that promise has not been accepted by him to whom it was made, revoke it; for there can be no obligation without a right acquired by the person to whom it has been made and against the one under obligation. Now, as I cannot of my own free will, transfer to any one a right over my property, if his own will does not concur with mine in accepting it; so I cannot, by my promise, grant any one a right over my person, until that one’s will concurs with mine in acquiring it by the acceptance of my promise.

It may be true that in strict law, and from the standpoint of positive law, the promise may be obligatory only and capable of enforcement when it has been accepted, and accepted in an obvious and open way; but in natural law and in morality, the promise is obligatory in itself. Of course, it is understood that the promise bears on something advantageous to him to whom we make it; for if I promise some one a thrashing, it cannot be maintained that I am obliged to give it to him; and if he to whom I make the promise will not receive what I offer, I am by that very fact relieved from my promise; for one cannot give anything to another against his will; I am under no obligation to him who will not receive anything from me. But if the promise bears on something advantageous to any one, I am obliged to keep it without asking myself whether he to whom I made it, is disposed to accept it; presuming still that he will accept it. It is therefore not the explicit acceptance of a thing that renders the promise obligatory; it is the explicit refusal which relieves one of the promise; and together with that it would be necessary that the refusal be absolute and not contingent; for even then the promise may remain obligatory, at least in its general principles, while undergoing some modification in the execution.

Is one obliged to keep his promise when the fulfillment of it is injurious to those to whom it was made? “No,” says Cicero; for example:

Sol had promised Phaethon, his son, to fulfil all his wishes. Phaethon wished to get on the chariot of his father; he got his wish, but at the same instant he was struck with lightning. It would have been better for him had his father not kept his promise. May we not say the same of the one Theseus claimed of Neptune? This god having made him the promise to grant him three wishes, Theseus wished for the death of his son Hippolytus, whom he suspected of criminal love.[34] How bitter the tears he shed when his wish was accomplished! What shall we say of Agamemnon? He had made a vow to immolate the most beautiful object in his kingdom; this was Iphigenia; and he immolated her; this cruel action was worse than perjury.

The truth of this doctrine cannot be contested. However, it is necessary to understand this exception in the strictest sense, and not to seek in the pretended interest of the person one obliges, a pretext to change one’s mind. For example, if you have promised any one a post which he accepts and desires, you cannot be allowed to relieve yourself of it, by supposing that the post will in reality be a disadvantage to him, and that you will give him a better one another time.

Some other exceptions are pointed out by the moralists and jurists; for example:

1. Necessity relieves of all promise. If, for example, I have promised to go to a meeting and am kept in bed by a serious illness, it is impossible for me to go, and hence I am relieved of my promise.

2. One is not obliged to perform illicit acts: “for,” says Puffendorf, “it would be a contradiction, to be held by civil or moral law, to perform things which the civil or moral law interdicts. It is already doing wrong to promise illicit things, and it is doing wrong twice to perform them.”[35]

3. One cannot promise what belongs to another: for I cannot promise what I cannot dispose of.

50. Contracts.—A contract is an agreement by which one or several persons engage to do or not to do a certain thing for one or several others. (Code Civ., Art. 1101.)

Conditions of the contract (Art. 1108).—Four conditions are necessary to constitute a valid and legitimate agreement:

1. The consent of the parties.

2. The capacity of the contractors.

3. A sure object as a basis for the contract.

4. A licit cause in the obligation.

(1.) The consent.—The consent is the voluntary acceptance of the charges implied in the contract. It is express or implied: express, when it is made manifest by words, writing, or any other kind of expressive signs. It is implied, when, without being expressed by outward signs, it may be deduced, as a manifest consequence of the very nature of the thing, and other circumstances.

All consent presupposes, 1, the use of reason: the insane cannot contract any obligation; children neither;[36] 2, necessary knowledge. Therefore all real consent excludes error, at least “when it falls on the very substance of the thing which is its object.”[37] It is, besides, for the jurists to define with precision what is to be understood by error in matter of contract; 3, the liberty of the contracting parties: whence it follows that consent extorted by constraint and violence is not valid.

(2.) The capacity to make a contract is deduced from the foregoing principles. All those who are not supposed to be able to give an intelligent and free consent, are incapable and cannot make contracts: for instance, persons under age, persons interdicted, insane or idiots, etc.

(3.) The matter of a contract.—“All contract has for its object something that a certain party engages to give, or do or not do.” It is evident that a contract without subject-matter and bearing on nothing, is void, and does not exist.

(4.) The cause of the contract must be real and legal. Contracts are subject here to the same rules as are promises.

The preceding distinctions are all borrowed from the civil law; but they express no less principles of justice and equity which may be resolved into the following rules:

1. No one should take by surprise or extort a consent through artifice or violence.

2. No one should make a contract with one whom he knows to be incapable of understanding the value of the engagement he is called upon to make: for example, with one under age, incapable before the law, but of whom it is known that the parents will pay the debts; or with one feeble-minded, though not yet an interdicted person, etc.

3. No one should contract a fictitious engagement bearing on matters non-existing, or such as have only an imaginary or illegal cause.

Interpretation of contracts.—Jurists give the following rules regarding the interpretation of obscure clauses in contracts. The rules which are to guide the judge in regard to the law are the same as those which are to enlighten the consciences of the interested parties:

“1. One should, in agreements, find out the mutual intention of the contracting parties, rather than stop at the literal sense of the words.” (Art. 1156.)

“2. When a clause is susceptible of a double meaning, one should understand it in the sense in which it may have some effect, rather than in the one in which it would not have any.” (Art. 1157.)

“4. That which is ambiguous is to be interpreted by what is customary in the country where the contract is made.” (Art. 1159.)

“5. One should supply in a contract its customary clauses, though they be not therein expressed.” (Art. 1160.)

“6. All the clauses of agreements are to be interpreted by one another, giving each the sense which results from the entire document.” (Art. 1161.)

“7. If doubtful, the agreement is to be interpreted against the stipulator, and in favor of him who contracted the obligation.” (Art. 1162.)

CHAPTER V.

DUTIES TOWARDS THE LIBERTY AND TOWARDS THE HONOR OF OTHERS.—JUSTICE,
DISTRIBUTIVE AND REMUNERATIVE; EQUITY.

SUMMARY.

Liberty in general.—Natural rights.

Slavery.—Arguments of J. J. Rousseau against slavery, servitude; oppression of work under divers forms.

The honor of others.—Backbiting and slander.

Rash judgments.—Analysis of a treatise of Nicole.—Envy; rancor; delation.

Justice, distributive and remunerative.—To each according to his merits and his works. Equity.

After self-preservation, the most sacred prerogative of man is liberty—that is to say, the right of using his faculties, both physical and moral, without injury to others, at his own risks and perils, and on his own responsibility.

51. Liberty—Natural rights.—The word liberty sums up all that is understood by the natural rights of man, namely, the right to go and come, or individual liberty; the right to use his physical faculties to supply his wants, or liberty of work; the right to exercise his intelligence and reason, or liberty of thought; the right to honor God according to his lights, or liberty of conscience; the right to have a family, a wife and children, or the family right, and finally the right to keep what he has acquired, or the right of property.

52. Slavery.—The privation of all these rights, of all these liberties in an individual, is called slavery. Slavery is the suppression of the human personality. It consists in transforming man into a thing. It takes away from him the right of property and makes of himself a property. The slave is bought and sold as a thing. The fruits of his labor do not belong to him; he cannot come and go at will; he can neither think nor believe freely; in some countries he is interdicted the right of instructing himself; he has no family, or has one temporarily only, since his wife or children may be separately sold; and since the women belong to their masters as their property, there is no bridle against the license of passions.

Although slavery is at the present day well-nigh abolished in the world, still as it is not yet wholly so, and as this abolition is quite recent, and tends constantly to be renewed under one form or another, it is important to sum up the principal reasons that show the immorality and iniquity of this institution.

53. Refutation of slavery—Opinion of J. J. Rousseau.—J. J. Rousseau, in his Contrat Social (I., iv.), combated slavery with as much profundity as eloquence. Let us sum up his arguments with a few citations:

1. Slavery cannot arise from a contract between the master and the slave; for to consent to slavery is to renounce one’s manhood, of which no one can dispose at his will.

To renounce one’s liberty is to renounce one’s manhood, and the rights of humanity, even one’s duties. There is no reparation possible for him that renounces everything. Such a renunciation is incompatible with the nature of man, and is depriving his actions of all morality, and his will of all liberty.

2. Such a contract is contradictory, for the slave giving himself wholly and without reserve, can receive nothing in return.

It is a vain and contradictory agreement to stipulate an absolute authority on one side, and on the other unlimited obedience. Is it not clear that one can be under no obligation towards him of whom one has a right to demand everything? and does not this single condition, without equivalent, without exchange, carry with it the nullity of the act? For what right could my slave have against me, since all he has belongs to me, and that his right being my own, this my right against myself is a word without any sense.

3. Even if one had the right to sell one’s self, one has not the right to sell one’s children. Slavery at least should not be hereditary.

Admitting that one could alienate himself, he could not alienate his children; they are born men and free; their liberty is their own; no one has a right to dispose of it but themselves.

Before they have reached the age of reason, their father may, in their name, stipulate conditions for their welfare, but not give them irrevocably and unconditionally over to another; for such a gift is contrary to the ends of nature, and passes the rights of paternity.

4. Slavery, furthermore, comes not from the right of killing in war; for this right does not exist.

The conqueror, according to Grotius, having the right to kill the conquered enemy, the latter may ransom his life at the expense of his liberty: an agreement all the more legitimate, as it turns to the profit of both.

But it is clear that this pretended right to kill the conquered adversary does not result in any way from the state of war.... One has a right to kill the defenders of the enemy’s State as long as they hold to their arms; but when they lay these down and surrender, and cease to be enemies, they become simply men again, and one has no longer a right on their life.

If war does not give the conqueror the right of massacring the conquered, it does not give him the right of reducing them to slavery.... The right of making of the enemy a slave, does not then follow the right of killing him; it is then an iniquitous exchange to make him buy his life at the price of his liberty, over which one has no right whatsoever.

Montesquieu has also combated slavery; but he has done it under a form of irony, which gives still greater force to his eloquence.

“If I had to defend the right we have had to make slaves of the negroes, this is what I should say:

“The peoples of Europe having exterminated those of America, they were obliged to reduce to slavery those of Africa in order to use them to clear the lands.

“Sugar would be too dear if the plant that produces it were not cultivated by slaves.

“The people in question are black from head to foot, and they have so flat a nose that it is almost impossible to pity them.

“One cannot conceive that God, who is a being most wise, could have put a soul, and above all a good soul, in so black a body.

“It is impossible for us to suppose that these people are men; because if we supposed them to be men, one might begin to think we are not Christians ourselves.

“Narrow minds exaggerate too much the injustice done to Africans. For if it were as they say, would it not have come to the minds of the princes of Europe, who make so many useless contracts among each other, to make a general one in favor of mercy and of pity?”[38]

54. Servitude—Restrictions of the liberty to work—Oppression of children under age, etc.—Absolute slavery existed in antiquity, and has particularly reappeared since the discovery of America, owing to the difference of the races: the black race being, seemingly, particularly adapted to the cultivation of the torrid zones, and endowed with great physical vitality, became the serving-race par excellence: it has even been hunted down for purposes of procreation; hence that infamous traffic, called slave trade, and which is to-day interdicted by all civilized countries.

But there existed in the Middle Ages, and has subsisted even to these days, in Russia, for example, a relative slavery, less rigorous and odious, but which, though circumscribed within certain limits, was not the less a grave outrage to liberty. The serf was allowed a family, and even a certain amount of money; but the ground which he cultivated could never belong to him; and above all he could not leave this ground, nor make of his work and services the use he wished. It was certainly less of an injustice than slavery; but it was still an injustice. However, this injustice exists to-day no longer than as an historical memory. Morality has no longer anything to do with it.

It is the same with the restrictions formerly imposed on the freedom of work under the old administration (ancien régime), the organization of maîtrises and jurandes,[39] namely, and that of corporations; the work was under regulations: each trade had its corporation, which no one could enter or leave without permission. No one was allowed to encroach upon his neighbor’s trade; the barbers defended themselves against the wig-makers; the bakers against the pastry-cooks; hence much that was wrong, and which those who regret this administration have forgotten.

But here again, it is the object of history to inquire into the good or the evil of these institutions; and these questions belong rather to political economy than to morals.

It is not the same regarding the abuse made of the work of children and minors, or the work of women. Severe laws have forbidden such; but it is always to be feared that manners get the better of the laws. The work of children and women being naturally cheaper than the work of men and adults, one is tempted to make use of it; but the work of children is improper because it is taking advantage of and using up beforehand a constitution not yet established, and also because it is thus depriving children of the means of being educated. As to girls and women, in abusing their strength, one compromises their health, and contributes thereby to the impoverishment of the race.

Among the violations the liberty of work may suffer, we must not forget the threats and violences exercised by the workers themselves and inflicted upon each other. It is not rare, in fact, in times of strikes, to see the workmen who do not work try to impose, by main force, their will on those that are at work. Such violences, which have their source in false ideas of brotherhood (a mistaken esprit de corps), and in a false sense of honor, constitute, nevertheless, even when free from the coarse enmity of laziness and vice, waging war with work and honesty—a grave violation of liberty; and it may be considered a sort of slavery and servitude to suffer them.

It is the same with the attempts by which men try to forbid to women factory work, under pretext that it brings the wages down.

This reason, in the first place, is a bad one, because the woman’s earnings come in the end all back to the family, increasing by that much more the share of each. But by what right should work be prohibited to woman more than to man? Certainly it would be desirable if the woman could stay at home, and busy herself exclusively with the cares of the household; but in the present state of things such an ideal is not possible. It is then necessary that woman, who has, like man, her rights as a moral personality, should be allowed by her every-day work to make a living, under the protection of the laws, and at her own risks and perils.

55. Moral oppression—Inward liberty and responsibility.—The question is not only one of corporal liberty, the liberty to work; the laws in a certain measure provide for that, and one can appeal to their authority for self-protection. But there may exist a sort of moral bondage, which consists in the subordination of one will to another. It is here that the respect we owe to others calls for a more delicate and a more strict sense of justice: for this sort of slavery is not so obvious, and the love we bear to others may be the very thing to lead us into error.

56. Violation of the honor of others—Backbiting and slander.—Among the first rights of a man, there is one sometimes forgotten, although it is one of the most essential, and this is his right to honor.

In our ignorance of most men’s actions, and in all cases of the real motives of these actions, it is a duty for us to respect in others what we wish they should respect in us: namely, our honor and our respectability. In fact, it is very difficult for men to form true judgments regarding each other. For fear of committing an injustice, it is better not to judge at all than to judge wrongly.

There are two ways of violating other people’s honor: backbiting and slander. Backbiting consists in saying evil of others, either deservedly or undeservedly; but when undeservedly, and especially when one knows it to be so, backbiting becomes slander. Backbiting may arise from ill-will or thoughtlessness, and slander is the work of baseness and perfidy.

Backbiting which consists in saying evil of others deservedly, is not in itself an injustice: there is to be recognized the right and jurisdiction of public opinion. The honest man should be held in greater esteem than the rogue, even though the latter cannot be reached by the law. Nevertheless, backbiting becomes an injustice through the abuse that is made of it. It is not a question of severe judgments touching actions deserving blame and contempt. It is a question of thoughtless and unkind judgments, and which we are all too easily and readily inclined to pronounce upon others, forgetting that we deserve ourselves as many and severer ones. How shall we conciliate, however, the just severity which vice deserves, with the spirit of kindness which charity and brotherly love demand of us? On the one hand, an excess of kindness seems to weaken the horror of evil, to put on the same level the honest man and the rogue; on the other, the habit of speaking evil weakens the bonds of human society, sets men against each other, and is always, in a certain measure, a shortcoming of sincerity; for one hardly ever tells to people’s faces the evil one says of them in their absence. It is not easy to find the just medium between these two extremes.

It may be laid down as a principle that, except the case where notorious vices, contrary to honor, comes into question, it is better absolutely to abstain from speaking evil of others. For, either the question is of persons one does not know, or knows imperfectly, and then one is never sure not to be mistaken; and most of the time one judges people on the testimony of others only, or one speaks of persons whom one knows, and with whom one stands in more or less friendly relations; and then backbiting becomes a sort of treason. Even deserved blame should not be a favorite subject of conversation: it is an unwholesome and ungenerous pleasure to lay any stress upon the weakness of others. If, at least, one accepted with it the right of others to judge us with the same severity, such reciprocal liberty might prove of some utility; but the backbiter nowise admits that he may be himself the subject of backbiting; and at the very moment when he criticises others, he would himself be very much offended if he learned that the same persons had, on their side, been doing the same in regard to him.

As to slander, it is not necessary to say much on the subject to show to what degree it is cowardly and criminal. What makes it, above all, cowardly is that it is always very difficult to combat and refute slander. Often, and for a long time, it is not known: at the moment when one hears of it, it has taken roots which nothing can destroy. One does not know who spread it, nor whom to answer. It is, besides, often impossible to prove a negative thing: namely, that one has done no harm, that one has not committed such and such an action, and said such or such a word. One always confronts the well-accredited saying: “There is no smoke without fire.”

The wrong done by slander will be better understood by the description Beaumarchais has given of it:

“Slander, sir—you hardly know how great a thing you hold in contempt: I have seen the best of people crushed by it. Believe me, there is no flat malice, no hateful story, no absurd tale which a skillful mischief-maker cannot make the idlers of a large town believe.... At first, a slight report, just grazing the ground as a swallow does before the storm: murmuring pianissimo, and spinning away, it launches in its course the poisoned arrow. A certain ear is open to take it in, and it is deftly whispered piano, piano, to the next. The harm is done; it sprouts, crawls, makes its way; and rinforzando from mouth to mouth, goes like wildfire; then all at once, you scarcely know how, you see the slander rise before you, whistling, blowing, growing while you look at it. It starts, takes its flight, whirls about, envelops, pulls, carries everything along with it, bursts and thunders, and becomes a general cry, a public crescendo, a universal chorus of hatred and proscription.[40]

57. Rash judgments.—We call rash judgments ill-natured remarks made about others without sufficient knowledge of facts. It is through rash judgments one becomes often the accomplice of slander, without knowing it and without wishing it. Nicole, in his Essais de Morale, has thoroughly treated the question of rash judgments. We have but to give here a short résumé of his Treatise on this subject.

1. Rash judgments are a usurpation of God’s judgment.

Rash judgments being always accompanied by ignorance and want of knowledge, are a manifest injustice and a presumptuous usurpation of God’s authority.

2. This sin has degrees according to the quality of its object, the causes from which it springs, and the effects it produces.

The quality of the object increases it or diminishes it, because the more things are important the more is one obliged to be circumspect and reserved in the judgments one pronounces.[41]

The causes may be very different:

One falls into it sometimes simply from over-hastiness. Sometimes we are led into it through the presumptuous attachment we have for our sentiments. But the most ordinary source of this ignorance is the maliciousness which causes us to see stains and defects in persons which a single eye would never discover in them.... It causes us to feel strongly the least conjectures, and enlarges in our eyes the slightest appearances. We believe them guilty because we should be very glad if they were.

The consequences of rash judgments are sometimes terrible and fatal.

The divisions and hatreds which disturb human society and extinguish charity come generally only from a few indiscreet words that escape us. Moreover, we do not always confine ourselves to simple judgments. We pass from the thoughts of the mind to the promptings of the heart. We conceive aversion and contempt for those we have thoughtlessly condemned, and we inspire the same sentiments in others.

Rash judgments are the source of what we call prejudices; or, rather, prejudices are but rash judgments fixed and permanent.... We portray human beings to ourselves from the inconsiderate remarks made about them before us, and we then adjust all their other actions to the ideas we have formed of them. It serves us as a key whereby to explain the conduct of these persons, and as a rule for our conduct towards them.

3. We are apt to delude ourselves as to the motives of the judgments we pronounce.

The manner in which we conceal from ourselves this defect is very delicate and very difficult to avoid. For it comes from the bad use we make of a maxim very true in itself when viewed generally, but which in private we imperceptibly pervert. This maxim is, that whilst it is forbidden to judge, it is not forbidden to see—that is to say, to give one’s self up to convincing evidence. Thus, in making our judgments pass for views or evidences, we shield them from all that can be said against the rashness of our judgments.

To enable us to distrust this pretended evidence, it would only be necessary to call our attention upon those whom we think guilty of rash judgments in regard to us. They think as we do, that the rashest of their judgments are from observation evidently true. Who, then, will assure us that it is different with us, and that we are the only ones free from this illusion?

4. It is maintained that one cannot help seeing the faults of others: so be it; but one need not make it voluntarily an object.

It may be said that we cannot help but see. But that is not true. It is rare that our mind is so violently struck that it cannot help deciding. It is generally obliged to make an effort to look at things, and it is this voluntary looking at the faults of others which Christian prudence should correct in the persons whose function it is not to correct them.

5. Besides, even if we knew the evil for certain, it is not for us to make it known to others.

Whatever evidence we may think we have of the faults of our neighbor, Christian prudence forbids us to make these known to others when it is not incumbent on us or useful so to do.... This exercise does not only serve in regulating our speech and forestalling the consequences of rash judgments, but it is also of infinite service in regulating the mind and correcting the rashness of judgment at its very source; for one hardly ever allows one’s mind to judge the faults of others, except to speak about them, and if one did not speak of them, one would insensibly stop trying to judge them.

6. But as it is not always possible to avoid judging, it becomes necessary to employ other remedies against the abuse of rash judgments.

(a.) “The remedy for malignity is to fill one’s heart with charity; to think often about the virtues and good qualities of others.

(b.) “The remedy against haste is to accustom one’s self to judge slowly and to take more time in looking at things.

(c.) “The remedy against the too strong attachment to our own sentiments is to continually remember the weakness of our minds and the frequent mistakes we, as well as others, make.”

Nicole goes so far in proscribing rash judgments, that he even forbids them regarding the dead (xxxv.), regarding ourselves (xxxvi.), even when they have good rather than evil for their object (xxxvii.), even regarding abstract maxims of morality (xli.); and he concludes by saying that the only reasonable method is silence! We recognize here the rigorism of the Jansenists.[42] It suffices to say that, as a general principle, one should neither judge nor pronounce without investigation; but one must allow a little more latitude and liberty than does Nicole; for if all men agreed to keep silent, human society would be nothing but a semblance, a word void of sense. How could men get to love each other if they did not know each other? And how could they know each other if they did not talk to each other? We must, therefore, adhere to certain general principles without pretending to bring all words and thoughts under regulations.

58. Of envy and delation.—Among the vices which may lead to the greatest injustices, and which already in themselves are odious as sentiments, the most blameworthy and the vilest is the passion of envy. We call envious him who suffers from the happiness of others, him who hates others because of the advantages they possess and the superiority they enjoy. In the first place, this sentiment is an injustice; for the happiness of one is not the cause of another’s misfortune; the health of one does not make the other sick; Voltaire’s wit is not the cause of the mediocrity of our own talents; beautiful women are not answerable for the ugliness of other women. Let the ill-favored one accuse nature or Providence, and there will be some reason in it, though it is a bad feeling; for it is a want of resignation to a wisdom the motives of which we cannot always divine; but to accuse the favored of fortune, is a shocking baseness of the heart. It is the hateful feature of a celebrated sect of these present days; they desire not the happiness of all, but the misfortune of all. Unable to procure the same advantages to all men, their ideal is general destruction. Their utopia is just the reverse of all other utopias. These believed they could secure to all the advantages reserved to a few. This new utopia, persuaded of the impossibility of the thing, have overthrown the problem and propose to reduce the more fortunate to the wretchedness of the less happy; and as among the number of heads they hit there are still some which retain a few advantages over the others, the work of destruction will go on till they shall have reached the level of universal degradation.

But, without speaking of the social envy, which has had so large a share in the revolutions of our time, what we ought above all to fight against is the individual envy which each of us has so much trouble in defending himself against in presence of the success of his neighbor. It is above all dangerous when disputed goods are in question—things all cannot have at the same time—and which he who is in the enjoyment of them seems thereby to rob the others of: as, for instance, a situation one obtains at the expense of another, be it that he is more deserving of it, or more favored by fortune. In the first case, one should be just enough to recognize the rights of others to these things, and in the second, generous enough to forgive them the favors of chance. It is wanting in personal dignity to begrudge men their chances and good fortune; and even were these chances undeserved, it is still lowering one’s self to do them the honor of envying them.

Envy comes close to another sentiment, less odious perhaps, and less unjust, but which is, nevertheless, unworthy of a right-feeling man; this is resentment, rancor, a vindictive spirit. If we are commanded to return good for good, we are, on the other hand, forbidden to return evil for evil. For centuries it has been said: Eye for eye and tooth for tooth. This is called retaliation (lex talionis). Christian morality has reformed this law of barbarous times. “It is written: eye for eye, tooth for tooth; but I say unto you: Love those who hate you; pray for those who persecute you and speak evil of you.” Without insisting here on the love for enemies (which is a duty of charity and not of justice), we will simply say that the spirit of vengeance is even contrary to justice. Nature, when we have been offended, calls forth in our hearts a spontaneous emotion, which inspires in us an aversion for the cause of the offense. This is a mere revolt of nature, innocent in itself, since it is the principle of the right of self-defense. But we should not yield to this thoughtless impulse; we should combat the desire to return evil for evil; for otherwise we place ourselves on a level with him whom we hate. And here again we should distinguish between anger and rancor. Anger is the immediate impression we receive from the wrong committed, and which may induce us to return evil for evil on the spot; but rancor is hatred coldly kept up; it is the slow and calculated preparation for a revenge; it is the remembrance of wrong carefully nursed: and it is this which is contrary to human dignity. Man should remember good, not evil: he who is capable of hatred is worthy of hatred, and would seem to have beforehand deserved the wrong he has been made to suffer. We do not go so far as to say that wrong must be pardoned as wrong, for that would be siding with injustice; but it should be pardoned to human nature, because it is weak, and we are no less liable to sin than others.

From these feelings of hatred, envy, rancor, covetousness, springs sometimes a vice which lowers the soul and corrupts it: this is delation. To report to one the wrong done by another; to superiors the wrongs done by our colleagues; to friends the evil said of them in their absence; to inform the authorities of the presence and lodgings of an outlaw, such are the faults designated by the term delation, and the essential characteristics of which are, that they are committed without the knowledge of the interested parties. It is evident, besides, that this term can nowise be applied to functionaries commissioned to watch and discover faults, or to those who complain of injustice done them, and finally where great crimes committed against society are in question, to those who, knowing the criminals, report them to the authorities.

59. Distributive and remunerating justice—Equity.—All the acts we have thus far enumerated, and which consist in doing no wrong to others, relate to what may be called negative justice.[43]

There is another kind of justice, more positive, which consists, like charity, in doing good to others, not in the sense of liberality and a gift, but as a debt; only the question then is not a material debt, which obliges to return a thing loaned, or intrusted, or the venal value of that thing; but it is a moral debt in proportion to the merit and services it relates to. This kind of justice, which distributes goods, advantages, praises in proportion to certain efforts, capacities, virtues, is what is called distributive justice, and, inasmuch as it rewards services, remunerating.

Distributive justice goes into effect every time when there is occasion to classify men, to distribute among them offices, ranks, honors, degrees, etc. It is that which especially administrators who distribute places, have to exercise; also, examiners who give diplomas, learned societies who grant prizes, or take in new members; finally, critical judges who appreciate the merit of books, works of art, dramatic productions.

The administrators who have to fill posts, must above all consider the interests of the situation which is to be filled. Favoritism should be strictly excluded: the misuse of testimonials has been often pointed out; it is the plague of our administrations. They have not always all the influence attributed to them; but it is enough that it is thought they have any, to give rise to bad habits and a very serious laxity of morals. They make you believe that success does not wholly depend on conscientious work, and that it requires, above all, the favor of the great (protections). It is, therefore, the duty of administrators to consider the merit of functionaries only, and not their patrons.

But even this rule is far from being sufficient: for personal merit is not everything; is not the only element to be considered; age, length of service, have also their value; for, in order that the State be well served, it is necessary that those who work for it, should have faith in the future; should know that their past services will be taken account of, that as they grow older and their burdens heavier, the State will come to their assistance in raising their functions. Thus must length of service be combined with merit and be itself a part of the merit. In many administrations, the division between these two elements is made by granting vacant posts half to length of service, half to choice. But the choice itself depends on various elements; for personal merit is itself composed of many elements: for example, which should be considered the higher, talent or work? A lively mind will accomplish more work in less time; but it may be negligent, forgetful, disorderly: a substantial mind, always ready, industrious, conscientious, offers better guarantees and more security; yet in difficult transactions, talent offers more resources. This shows how many practical difficulties have to be met in the choice of men. It is for experience and conscience to decide in each particular case. Morality can give no general rules, except negative rules: to avoid nepotism, simony,[44] guard against the arbitrary, against favor, testimonials, etc.

In examinations there are the same dangers to avoid: for here, also, it is unfortunately too much a general belief that favoritism is the rule, and that testimonials go for everything. The first duty is to set aside all personal interest, worldly influence, pressure from without. But all does not end here; for there remains to be seen what rule is to be followed in the choice of candidates.

If the number of those who are to be elected is fixed beforehand, as in contests, there is then already a great difficulty obviated: for there is but to be determined the order of merit of the candidates. But in many examinations the number is not fixed. It becomes then necessary to find a just medium between excess of severity and excess of indulgence. This medium is generally determined through the co-operation of different minds, of which some are inclined to severity and others to indulgence. But one must not trust to this co-operation of others to arrive at a strict justice. It is clear that each, for his own part, must fix upon a mean, and endeavor to adhere to it as strictly as possible. In cases where there is occasion for classification, one must, above all, consider the more substantial qualities, and not allow one’s self to be too easily led away by mere appearances and surface-talent.

Thus, facility of speech, which in itself is a merit, should not have any advantage over sound learning, especially in regard to functions where speech-making plays no part. Presence of mind, ready wit, are also brilliant and precious qualities, but the absence of which does not always denote ignorance and incapacity.

In learned or political societies, which are recruited among themselves, the same principles of independence and impartiality should always predominate, except in cases of difference in circumstances. Talent is here the principal thing to go by, and which should prevail; length of service counts for nothing except where the merit is equal. The interest of science in learned societies, the interest of the State in political societies, should be the prime considerations.

Literary or artistic criticism comes under the same rules, only it has not for its object persons, but works. Here the danger to be feared is not exactly favor, but good fellowship: one upholds the other, the praise is mutual, and all severity is reserved for those who do not belong to the society. But, whether good fellowship or favor, all privilege-preference substituted for the esteem the thing should be held in for its own sake, is contrary to justice. Criticism may, of course, be more or less severe—more or less laudatory; there is as much impropriety in constant blame as in constant praise; one must strike as near as possible a just mean between the two, and this mean may not be the same with the different critics; here comes in the part which individual temperament plays in the matter. But whatever rule each may adopt for himself, they must all apply it to the same end: there must be no undue respect for the person, and the interest of art must be alone considered.

CHAPTER VI.

DUTIES OF CHARITY AND SELF-SACRIFICE.

SUMMARY.

A retrospect of what distinguishes justice and charity.

Duties of kindness.—The lowest degree of charity is kindness: to wish others well leads to doing them good.

Civility.—Personal civility; civility of the mind; civility of the heart.

Modesty.—Modesty is as much a duty to others as to ourselves.

Peace among men.—Analysis of Nicole’s dissertation on the means of preserving peace among men.—Citations from Kant on society virtues.

Duties of friendship.—Citations from Aristotle and Kant.

Duties of benevolence.—Duties minima: services which cost nothing.—Hospitality with the ancients.

Good deeds.—Analysis of Seneca.

Duties of benefactors.—1, The benefaction consists rather in the sentiment than in the thing given; 2, one should not trouble one’s self if the benefaction results in ingratitude; 3, degrees in benefactions: the necessary, the useful, the agreeable; 4, the manner of giving is often better than the gift itself; 5, one should not reproach benefactions; 6, benefaction consists sometimes in refusing; 7, benefaction should be disinterested.

Duties of the person under obligation:—1, Not to be too greedy; 2, a kindness should be accepted cheerfully; 3, one should remember a kindness.

Kant’s rules regarding benevolence and gratitude.

Precautions required by benevolence: Cicero’s rules.

Self-sacrifice.—Different forms of self-sacrifice: The life, the property, the morality of others, etc.; clemency; forgiveness of injuries; love of enemies.

We have said that charity consists, above all, in doing good to men, whilst justice consists in doing them no wrong. It is true, there is a positive justice, as there is a negative justice; and this positive justice consists also in doing good to men, but it is a good which is due them, which belongs to them by right, and which is itself an acknowledgment of that due and that right.

The good done to others in the exercise of the duties of charity is, on the contrary, something we take from our own; it is a gift; whilst the good done in the name of justice, is always a debt.

The lowest degree of the duty of charity consists in what are called duties of kindliness.

60. Duties of kindliness.—The first step to arrive at doing good to men, is to wish them well. Kindliness is the road to benevolence.

Kindliness is that disposition which induces us to give others pleasure; to rejoice over their good fortune, to make them happy themselves, if not by our own kindnesses, if that is not in our power, at least by outward demonstrations of sympathy and affection.

61. Civility.—The lowest degree of this virtue, consists in using gentle and amiable manners in our intercourse with others, in not repelling them by a gruff and unsociable disposition; in wounding no one’s feelings by the affectation of contempt and raillery, etc. This kind of surface-virtue, which is confined to the outward, is what is called civility.

Civility is the ensemble of the forms usage has established to regulate the habitual and daily relations of men with each other. It corresponds in society to the ceremonial of diplomatic life. To avoid the clashes which the rivalries of courts and powers would necessarily carry with them, a code of agreements was established which fix with precision the relations of the diplomatic agents. The same in social life. Civility is composed not of absolute and wholly material rules, but of forms fixed in a general way, yet more or less free in their application, and all the more pleasing as they are the more free. These forms, often laughed at when regarded superficially, have a serious value when we consider that they express the general duty whereby peace is established and maintained among men. (See Nicole, Essais de morale,[45] 1671.)

There is, then, in civility a principle which is essential and a form which is arbitrary. Usage has everywhere established the form of bowing, for instance; everywhere there are conventional expressions wherewith to greet people according to their age, their sex; but these outward manifestations vary according to times and countries.

A distinction has been made between personal civility and the civility of the mind and heart. Civility properly so called is that of the outward manners; but it is worth very little if it is not sustained by the delicacy which says nothing wounding and the true kindliness which seeks to give pleasure: this is what is called civility of the mind and heart.

“The most amiable natural gifts, and the talents made most supple by education, change into defects and vices if they are not inspired by a feeling of kindness. Suppleness, then, is nothing else than perfidy; delicacy nothing else but cunning; this civility lavished upon everybody is nothing else than duplicity.... It is not enough to be a man of the world; one must also be a man of heart.... True civility is that which has its source in justice, in the respect for humanity; it is a form of charity; it is the luxury of virtue.”[46]

62. Modesty.—One of the most essential parts of kindness is modesty. Modesty is certainly a duty we owe to ourselves; but it is also a duty we owe to others. Nothing more fatiguing than people who bring everything back to themselves, and can speak of nothing but themselves. It is not by appearing satisfied with your own accomplishments, but in having others satisfied with them, that you will please; and they will never find you more charming than when, completely forgetting yourself, you will be only occupied with them. To succeed in making them satisfied with themselves, is the true means of having them satisfied with you.

Among remarkable instances of modesty often cited, are those of Turenne and Catinat. The latter having sent in a report of the battle of Marsaglia, had so totally forgotten to mention himself that some one ingenuously asked: “Was the marshal present?”

62 (bis). Peace among men.—“You have but a day to spend on earth,” says Lamennais; “try to spend it in peace.”[47]

Nicole has written an excellent treatise on the means of preserving peace among men (Essais de morale, 1671). Let us give a résumé of it.

Two causes, according to Nicole, produce disunion among men: “either in wounding their feelings we cause them to withdraw from us, or, in being wounded ourselves, we withdraw from them.”

Consequently, “the only means of avoiding such divisions is not to wound the feelings of others, and not to feel one’s self wounded by them.”

1. If we look into the causes which generally give offense, we shall see that they may be reduced to two, which are: “to contradict people in their opinions, and to oppose their passions.”

“1. Opinions.—Men are naturally attached to their opinions, because they desire to rule over others: now we rule through the trust that is placed in us; it is a sort of empire to have one’s opinions received by others.

“For this reason, when one seeks to combat the opinions of a man, one does him in some sort injury. It cannot be done without giving him to understand that he is mistaken; and he does not take pleasure in being mistaken. He who contradicts another on some point, pretends to more knowledge than has he whom he wishes to persuade; he thus presents to him two disagreeable ideas at the same time: one, that he is deficient in knowledge, and the other that he who corrects him surpasses him in intelligence.”

One should, therefore, spare people in their opinions; but among these opinions there are some which must be treated with more regard than others:

“They are those advanced by no one particular person of the place where one may live, but which are established by universal approbation: in running against such opinions, one appears wishing to rise above all the rest.”

Not that one should always scruple in conversation to show that one does not approve some opinions: that would be destroying society, instead of preserving it....

“But it is a thing worth pointing out how one may express his sentiments so gently and agreeably that they give no offense.... For very often it is not so much our sentiments that shock others, as the proud, presumptuous, passionate, disdainful, insulting manner in which we express them.”

There are, then, several mistakes to be avoided:

(a) The first is assumed superiority, that is to say an imperious manner in the expression of one’s sentiments, and which most persons resent, as much because it shows a proud and haughty soul, as because it indicates a domineering spirit tyrannizing over minds.

(b) The second is the decided and dogmatic manner in which an opinion is given; as if it could not be reasonably contradicted.

(c) Vehemence does not belong to the mistakes we have just spoken of. It consists in conveying the impression that one is not only attached to one’s sentiments from conviction, but also passionately, which furnishes many people a reason for suspecting the truth of those sentiments, thus inspiring in them a wholly contrary feeling.

(d) The contempt and insults which enter into disputes, are so obviously shocking, that it is not necessary to warn against them; but it may be well to remark that there are certain rudenesses and incivilities nearly akin to contempt, although they spring from another source. Change of opinion is in itself such a hard thing, and so contrary to nature, that we must not add to it other difficulties.

(e) Finally, hardness, which does not so much consist in the hardness of the terms employed as in the absence of certain softening words, also often shocks those thus addressed, because it implies a sort of indifference and contempt.

2. Passions.—It is not enough to avoid contradicting people’s opinions, or to do so cautiously only; one must also spare their inclinations and their passions, because otherwise, it is impossible to avoid complaints, murmurs, and quarrels.

These inclinations are of three kinds: which may be called just, indifferent, and unjust.

(a) One should never really satisfy the unjust ones; but it is not always necessary to oppose them; for it is wounding others to make one’s self conspicuous without particular reason.... One must always make amends for good and evil ... especially when there are others who could do it with better results than we.

Besides, “this same rule obliges us to choose the least offensive, the gentlest, the least irritating means.”

(b) I call indifferent passions those the objects of which are not bad in themselves, although they may be sought after with a vicious adhesion. Now, in this sort of things we are at greater liberty to yield to the inclinations of others: 1, because we are not their judges; 2, because we do not know whether these affections are not necessary to them (leading them away from still more dangerous objects); 3, because these sorts of affections must be destroyed with prudence and circumspection; 4, because there is reason to fear we might do them more harm in indirectly opposing their innocent passions, than we should do them good in warning them against them.

(c) I call just passions, those in which we are obliged to follow others by reason of some duty, although they might perhaps not be justified in requiring of us such deference.

The peace of society resting thus on reciprocal esteem and love, it is just that men should wish to be esteemed and loved, and should demand outward signs of esteem and love. Upon this rest the rules of civility established among men, and of which we have spoken above.

II. It is not enough to avoid wounding men’s feelings, one should, moreover, not allow one’s self to feel wounded by them, when they themselves fail to treat us as we ought to treat them.

For it is impossible to practice inward peace, if we are so sensitive to all that may be done and said contrary to our inclinations and sentiments; and it is even difficult to prevent the inner dissatisfaction from showing itself outwardly, and inducing us to treat those who have shocked us in a manner calculated to shock them in their turn.

It is, then, necessary to avoid complaining of others, when one has been offended by them. In fact:

... Let us complain of others as much as we please, we shall generally only embitter them the more, without correcting them. We shall be accounted sensitive, proud, haughty ... and if those we complain of have any sort of skill, they will give such an aspect to things that the blame will fall back upon us.

We must then endeavor to establish our peace and quiet on our own reformation and on the moderation of our passions. We cannot dispose of the minds or the tongues of others ... we are enjoined to work on ourselves and to correct our own faults.

There is nothing more useful than to suppress one’s complaining and resentment. It is the surest way to appease differences at their birth and prevent their increase; it is a charity we practice towards ourselves by procuring to ourselves the good of patience ... it is a charity we do to others in bearing with their foibles, in sparing them the little shame they have deserved, and the new faults they might commit in justifying themselves.

But it is not possible for us to observe outwardly such discretion, if we allow our resentment to work inwardly in all its force and violence. The outward complaints come from the inward, and it is very difficult to hold them back, if one’s mind is full of them; they always escape and break through some opening or other.... We must, therefore, also quench the complaints which the soul engenders.

Among the subjects of complaint which other men give us, and which should be treated with contempt, Nicole points out particularly:

“False judgments, slander, rudeness, negligence, reserve, or want of confidence, ingratitude, disagreeable tempers, etc.”

Let us merely repeat what he says of the unfavorable judgments of others regarding us:

“There is a ridiculous oddity in this spite which we feel when we hear of the unfavorable judgments and remarks made about us; for one must have very little knowledge of the world to suppose it generally possible that they would not be made. Princes are talked against in their ante-chambers; their servants mimic them. There is nothing so common as to speak of the defects of one’s friends and pride one’s self in pointing them frankly out to others. There are even occasions when this may be done innocently.... It is, therefore, ridiculous to expect being spared ... for there is no time when we may not be generally sure either that people talk or have talked about us otherwise than we should wish.... We show annoyance at these judgments when they are expressly reported to us ... yet the report itself adds next to nothing to the matter, for before it was made we ought to have been almost sure that we and our faults were unpleasantly commented on.... If this resentment were just, one would then have to be always angry, or never so, because it is unjust. But to keep very quiet, as we do, though we should know that there are people laughing at us, and to be disturbed and upset when we are told what we already knew, is a ridiculous foible.”

63. Social virtues—Kant’s advice.—Kant has also treated the duties of kindness towards men, under the title of Social Virtues.[48]

“It is a duty to one’s self as well as to others to carry the commerce of life to the highest degree of moral perfection; not to isolate one’s self; not only to have the happiness of the world in view ideally, but to cultivate the means which indirectly lead to it; urbanity in social relations, gentleness, reciprocal love and respect, affability and propriety, thus adding the graces to virtue, for this also is a duty of virtue.

“These, it is true, are but external and accessory works, presenting a fine appearance of virtue, which, however, deceives no one, because every one knows how much to think of it. It is but a sort of small coin; but the effort we are obliged to make to bring this appearance as near to the truth as possible, helps the sentiment of virtue greatly along. An easy access, an amiable mode of speech, politeness, hospitality, that gentleness in controversy which keeps off all quarrel—all these forms of sociability are external obligations which put also the others under obligation, and which favor the sentiment of virtue in rendering it at least amiable.

“Here arises the question to know whether one can keep up friendly relations with the vicious.[49] One cannot avoid meeting them; for one would have to quit the world, and we are not ourselves competent judges in respect to them. But when vice becomes a scandal—that is to say, a public example of contempt of the strict laws of duty, thus carrying with it opprobrium—then one should stop all relations one may have had heretofore with the guilty person; for the continuation of this relation would deprive virtue of honor, and make of it a merchandise for the use of whoever were rich enough to corrupt parasites through the pleasures of good living.”

64. Duties of friendship.—Besides the general duties of every kind which link us with all men, for the only reason that they are men, there are particular duties imposed on us toward those of our fellow-beings, to whom we are united by the bonds of friendship.

The duties of friendship have been admirably known and described by the ancients. We could not, therefore, treat this subject better here than by briefly recalling some few passages from Aristotle or Cicero.

According to Aristotle, there are three kinds of friendship: the friendship of pleasure, the friendship of interest, and the friendship of virtue. The latter is the only true one.

“There are three kinds of friendship.... The people who love each other from interested motives, for the use they are to each other, love each other, not for their own sakes, but only inasmuch as they get any good or profit from their mutual relations. It is the same with those who only love each other for pleasure’s sake. When one loves from motives of pleasure only, one really seeks nothing else but this same pleasure. Such friendships are only indirect and accidental. They are very easily broken, because these pretended friends do not long remain the same.

“Utility, interest, have nothing fixed; they vary from one moment to another. The motive which originated the friendship disappearing, the friendship disappears as rapidly with it.

“The perfect friendship is that of virtuous people, and who resemble each other in their virtue; for these wish each other well, inasmuch as they are good; and I add that they are good in themselves. Those who wish their friends well from such a noble motive are the friends par excellence. Hence it is that the friendship of such generous hearts lasts as long as they remain good and virtuous themselves; now virtue is a substantial and durable thing. Each of the two friends is in the first place good in himself, and he is, moreover, good to all his friends, for good people are useful to each other, and also mutually agreeable to each other. Such a friendship unites, then, all the conditions. There is nothing more lovely. It is quite natural, however, that such friendships are very rare, because there are very few people of such a disposition. It requires, moreover, time and habit. The proverb is true which says that people can hardly know each other well, ‘before having eaten together bushels of salt.’ In the same way persons cannot be friends before having shown themselves worthy of affection, before reciprocal confidence is established.” (Nicomachean Ethics, liv. viii., ch. vii.)

Friendship, according to Aristotle, consists in loving rather than in being loved.

“Friendship, besides, consists much rather in loving than in being loved. The proof of it is the pleasure mothers experience in lavishing their love.... To love is, then, the great virtue of friends; it is thus that the most unequal of people may be friends; their mutual esteem renders them equals.” (Ch. viii.)

Friendship gives rise to a number of delicate problems: they may be found discussed in great detail in Cicero’s Treatise on Friendship.

65. Kant’s precepts touching friendship.—Among the moderns, Kant is the only moral philosopher who has given friendship a place in practical morality. He has found new and delicate traits to add to the rules of the ancients. He insists above all on what he calls “the difficulties of friendship,” and above all on the difficulty of conciliating “love and respect.”

“To look at the moral aspect of the thing,” he says, “it is certainly a duty to call a friend’s attention to the mistakes he may commit; for it is done for his good, and is consequently a duty of love. But the friend, thus admonished, sees in the thing but a lack of esteem he had not expected, and thinks he has lost something in your mind; or, seeing himself thus observed and criticised, may at least be in constant fear of losing your esteem. Besides, the fact alone of being observed and censured, will already appear to him an offensive thing in itself.

“How much in adversity do we not wish for a friend, especially an effective friend, one finding in his own resources abundant means for helping us? Yet is it a very heavy burden to feel one’s self responsible for the fortunes of another, and called to provide for his necessities.... Then if the one receives a kindness from the other, perhaps there may be yet reason to hope for perfect equality in love; but he could no longer expect perfect equality in respect; for being under obligation to one he cannot oblige in his turn, he feels himself manifestly one degree his inferior.... Friendship is something so tender that if one does not subject this reciprocal abandonment and interchange of thoughts to principles, to fixed rules, which prevent too great a familiarity and limit reciprocal love by the requirements of respect, it will see itself every instant threatened by some interruption.... In any case affection in friendship should not be a passion; for passion is blind in its choice, and evaporates with time.[50]

66. Duties of benevolence.—Duties minima.—From kindness we pass to benevolence. The one resides in sentiment, the other in acts: the first consists in wishing well, the second in doing good.

The least degree of benevolence consists in rendering to others those smaller services which cost us nothing, and which are helpful to them. It is what Puffendorf calls the duties minima of benevolence.[51]

Cicero, in his Treatise on duties (I., xvi.), gives several examples of this kind:

“To show the way to him who asks for it; to forbid no one the use of running water; to give fire to him who has need of it; to give advice in good faith to him who is in doubt.”

Plutarch, in the same sense, says that the Romans never extinguished their lamps after their meals, and always left something on the table to accustom the servants of the house to the duties of humanity. By the law of Moses, the owner of a field was obliged always to leave some corner uncut and not glean the ears that had escaped the reapers. Finally, a Greek poet, Phocylides, expressed in the following lines this minimum of benevolence which every one can exercise:

“Give shelter to those who have none; lead the blind; be merciful to those who have suffered shipwreck; extend a helping hand to the fallen; assist those that have no one to help them out of danger.”

Among these primitive duties, which cost him that fulfills them but little, the ancients put in the first rank hospitality. It is in fact a virtue of primitive times which exists especially among barbarous and savage peoples. In the poems of Homer we see to what degree the guest was held sacred; it is still so among the Arabs and the Indians of America. This virtue, on the contrary, seems to have disappeared with civilization. The reason of it is that among barbarous populations, where security is feeble, it was the point of honor which guaranteed the security of strangers. But as civilization becomes more complicated, as traveling increases, and security becomes greater, mercenary hospitality takes the place of free and private hospitality. Nevertheless, there can always remain some occasion for this primitive virtue in places isolated and separated from the great centres: this, for example, can still be seen in our days in the great wastes of America and Australia.

67. Benefactions—Duties of the benefactor.—The foregoing actions, however praiseworthy they may be, are too simple and too easy to be presented as real acts of benevolence. This term is reserved for the more difficult actions, which may cost us some real sacrifices more or less great, and which, moreover, are important services. These are what are called benefactions.

Seneca, in his Treatise on benefactions, has fixed the principles of benevolence:

1. Benefaction consists especially in the feeling which accompanies it, rather than in the thing given.

“What is a benefaction?” he asks; “it is an act of benevolence which procures joy to him who is the object of it and to him who exercises it: it is a voluntary and spontaneous act. It is then not at the thing done and given that we must look, but at the intention, because the benefaction does not consist in the gift or in the action, but in the disposition of him who gives. The proof of this difference is that the benefaction is always a good, whilst the thing done or given is neither a good nor an evil. The benefaction is then not the money that is counted out to you, the present that is made you; no more than the worship of the gods consists in its fattest victims, but in the uprightness and piety of their worshipers.

“One prefers a hand that opens easily to one that gives largely. He has done little for me, but he could not do any more. That other has given much, but he hesitated, he delayed, he groaned in giving, he gave with ostentation; he proclaimed his good deed; he did not care to please him whom he obliged: it is not to me he gave, it is to his vanity.” (I., vi.)

2. One should do good without caring about ingrates.

“What is after all the wrong the ingrate does you? You have lost your good deed. But there remains to you the most precious part of it: the merit of having done it. There are services one should learn how to render without hope of returns, to people one may presume will be ungrateful, and whom one even knows to have been so. If, for example, I can save from a great peril the children of one who has been ungrateful to me, I shall not hesitate to do so.” (I., x.)

3. There must be degrees in benefactions, and, having to choose, one must first give the necessary, then the useful, then the agreeable.

“The necessary,” says Seneca, “is divided into three classes: the first comprises the things without which one cannot live (for example, to rescue a man from the sword of the enemy, from the rage of tyrants, from proscription, etc.); the second, those without which one should not live (such as liberty, honor, virtue); finally (3d class), our children, our wives, our household gods are objects dearer to us than life.—After the necessary comes the useful; it may be subdivided into a great number of species; it comprises money, honors, and above all the progress in the science of virtue.—Finally come the agreeable things which are innumerable.... Let us seek things which please because they are to the purpose; that are not common; that recall the donor; let us above all beware of useless presents.” (I., xi.)

4. The manner of granting a benefit is more important than the benefit itself.

“The simplest rule to follow is to give as we should ourselves wish to be given to.

“One must above all give heartily, without hesitation ... after a refusal nothing so hard as irresolution.... The most agreeable kindnesses are those one does not expect, which flow naturally; which anticipate their need. It is better to anticipate the request. To forestall this trouble is doubling the good deed.

“There are people who spoil their greatest kindnesses by their silence, their slowness to speak which comes from constraint and moodiness; they promise with the same air with which they would refuse.... Their knit brows, their harangues, their disdain make one regret having obtained the promised thing.

“Nothing more disagreeable than to be a long time in suspense. There are persons who prefer giving up hope to languishing in expectation.... Promptness then enhances the good deed, and tardiness diminishes it.” (II., ii-vi.)

5. One must not reproach good deeds.

“One of the first and most indispensable laws, is not to reproach or even recall to the mind of recipients one’s kindnesses. The tacit agreement between the giver and the receiver is, that the one should immediately forget what he has given, and that the other should never forget what he has received. The frequent mention of kindnesses is a crushing weight to the soul.”

6. Benevolence consists sometimes in refusing.

“If the thing asked for is prejudicial to him who asks for it, then benevolence consists no longer in giving, but in refusing. We should have more regard to the interests of the petitioner than to his wishes. As we refuse patients cold water, arms to angry persons, so should we also refuse a kindness to the most pressing requests, if that kindness is injurious to the interested person.... One should no less consider the end than the principle of kindnesses.”

7. Benevolence must be disinterested.

“It is shameful to do good for any other motive than doing good. If one gave only in the hope of restitution, one would choose the richest in preference to the most worthy.... The least benevolent men would be those who had the best means for being benevolent: the rich, the great, the king, etc. ... As an insult is a thing one should for itself avoid, so benevolence is desirable for its own sake (xv.).... There is no benevolence where there is expectation of profit. I shall give so much; I shall receive so much: this is called a bargain.” (xiv.)

We will put aside the other questions, more curious than useful, raised by Seneca (as, for example, whether one should give to the wicked; whether one may be his own benefactor; whether one may allow himself to be outdone by good deeds, etc.), and consider now the duties of the one under obligation.

68. Duties of the person under obligation.—Gratitude.—After having expounded the duties of the benefactor, we have to ask ourselves what are those of the person under obligation. The principle of all is gratitude; that only comes after the kindness; but there are duties which precede the good deed or accompany it. We shall again cite here Seneca as authority. After having set forth the principles which should actuate the giver, he also sets forth those the receiver should be guided by.

1. The first principle is that we should not be too greedy and receive from any one, but only from those to whom we should like to give ourselves:

“It is a painful thing to be under obligations to people against one’s will. Nothing sweeter, on the contrary, than to receive a kindness from a person one loves.... I must then choose the person of whom I consent to receive anything, and I should even be more particular in regard to kindness-creditors than to money-creditors; to the latter one need only return what he has received from them; this reimbursement done we have acquitted ourselves toward them; in the matter of kindnesses, on the contrary, one should pay more than what he has received.”

2. A second rule is that from the moment one accepts a kindness, he must accept it cheerfully.

“When we have concluded to accept a kindness, let us do it cheerfully.... To accept a kindness with pleasure, is making the first payment of the interest (II., xxii.).—There are people who only consent to receive in secret; they wish neither witnesses to, nor confidants of, the obligations they are contracting. If the benefactor is bound to proclaim his kindness only inasmuch as its publicity will give pleasure to the person he obliges, the one receiving should, on the contrary, call together the crowd. One is at liberty not to accept what he blushes to receive (xxxiii.).... One of the lesser paradoxes of the stoics is, that in receiving a kindness cheerfully, one has already acquitted himself.”

3. One must awaken the remembrance of a good deed: to remember is already to acquit one’s self (xxiv.).

“Which, according to you, is the most culpable, he who feels no gratitude for a kindness, or he who does not even keep it in mind?... It would seem that one thought very little about restitution when he has got so far as to forget the kindness.... To acquit one’s self of a kindness, one needs means, some fortune; but the recollection of it is a gratitude which costs nothing. To withhold a payment which requires neither trouble nor riches, is inexcusable.... The objects memory is busy with never escape it; it only loses those it does not often revert to.”

69. Kant’s rules touching benevolence and gratitude.—To the maxims of the ancients which we have just summed up, let us add a few principles borrowed of a modern moralist, the philosopher Kant:

Benevolence.—Benevolence, when one is rich, and finds in his superfluity the means of making others happy, should never be considered by the benefactor even a meritorious duty. The satisfaction he procures to himself thereby, and which does not cost him any sacrifice, is a means of filling himself with moral sentiments. Therefore must he carefully avoid looking as if he thought he was obliging others; for otherwise his kindness would no longer be one; since he would seem wishing to put under obligation the person to whom he grants it. He should, on the contrary, show himself under obligation, or as honored by the acceptance of his kindness, and consequently fulfill this duty as he would pay a debt he had contracted; or, what is still better, practice benevolence wholly in secret. This virtue is still greater when the means for being benevolent are restricted: it is then he deserves to be considered as very rich morally. (Kant, Doctrine de la Vertu, trad. Fr., p. 128.)

Gratitude.—Gratitude should be considered a holy duty. We call, in fact, holy any moral object regarding which no act could entirely acquit one of the contracted obligation. Now there is no way of acquitting one’s self of a benefit received, because he who receives it cannot refuse to him who grants it the merit and advantage of having been the first in showing his kindness.

The least degree of gratitude is to render to the benefactor equivalent services. It is, also, never to look upon a kindness received as upon a burden one would be glad to be rid of (under pretext that it places the one under obligation in a position inferior to that of his benefactor, which is wounding to his pride). One must, on the contrary, accept it as a moral kindness, that is to say, as furnishing us an opportunity to practice a virtue. (Ibid., p. 130, 132.)

70. Precautions which benevolence requires.—Benevolence should not be exercised without reserve and precaution. In abandoning one’s self to it imprudently, one may do more harm than good. Cicero on this subject recommends three principal precautions:

“One must take care,” he says:

“1. Lest, in wishing to do a person good, one does harm, either to him or to others;

“2. In the second place, let not our benevolence exceed our means;

“3. Finally, let every one be treated according to his deserts.”

1. Those, in fact, whose benevolence injures him who is the object thereof, should be looked upon as flatterers, rather than generous men. Those who injure some, to be generous towards others (as, for example, to omit paying one’s debts, in order to exercise charity), commit the same injustice as if they appropriated what belongs to others. Thus, when Sylla and Cæsar transferred to strangers the property of lawful owners, they were not generous; liberality may exist then where justice is absent.

2. The second precaution is to exercise our benevolence according to our means. Those who wish to be more benevolent than they can afford, are in the first place unjust to their family; since the property, to the inheritance of which it has a right, goes thus over to strangers. Such generosity often leads, moreover, to the enriching of one’s self at the expense of others, in order to provide for liberalities. One sees, thus, many people, more vain than generous, pass for being benevolent. It becomes then a borrowed virtue, which has more of vanity than liberality.

3. The third rule is, whilst dispensing our liberalities, to proportion them to merit; to consider the morals of him who is their object, the attachment he shows us, the different relations he may have with us; lastly, the services he may have rendered us. It were desirable he had all these titles to our benevolence; but if he has them not all, the greatest and largest in numbers should weigh most in the scales.

71. Self-devotion—Self-abnegation—Sacrifice.—When charity reaches the highest degree; when it requires we should give to others what we hold most dear—as, for instance, life, fortune, etc.—it takes another name and is called devotion, self-abnegation, sacrifice. These three words, with various shadings, express the idea of a precious gift of which one deprives himself to benefit others. One may devote one’s self to others in various ways, in choosing for one’s object either the life, or welfare, or liberty, or the morality and intelligence of others. Let us examine these various forms of devotion.

72. The nature of the benefit.—Diverse forms of self-devotion.—The life, the welfare, the morality of others, etc.—Sacrificing one’s life for others.—Justice requires we should not attack the life of others; charity requires more: it demands that we make every effort to save the life of our fellow-beings, even sometimes at the cost of our own.

This duty, which is a duty of charity for men in general, is a duty of justice for the physician and all those who have care of the sick. The physician owes his devotion to the patient, as the soldier owes his to his country. In both these cases medical duty, military duty, devotion is a strict duty. It is at the same time a duty towards men and a duty towards the profession. It is in both cases what may be called the honor of the flag. Thus do we every year see a certain number of young hospital physicians die, like soldiers on the field of honor.

The duty of attending the sick and being thereby exposed to contagion, falls alike on all who have chosen this profession: sisters of charity, the nurses, the male and female attendants in infirmaries. It is also a duty in the family; the parents owe themselves to their children; the servants themselves should assume in a certain measure the same responsibility, although it is the duty of the masters to spare them as much as possible. Moreover, it is known how common this devotion is, especially with mothers, and how many of them die of the illness they have contracted at the bedside of their children. In all these circumstances, it is of course not forbidden to be cautious, and wisdom requires one should not go beyond the strictly necessary; but the necessary is obligatory; and on whom should it fall more naturally than on the parents?

Besides the illnesses which threaten the lives of men, there are dangers more sudden, more violent, more terrible, which arise from the invasion of the forces of nature: fire and water are the most terrible; conflagrations, inundations, shipwrecks, catastrophes of all kinds imperil the lives of men.

Here the question is no longer one of slow and leisurely attentions. To save a life which a minute later will be extinguished, there is wanted a sudden resolution, a well-tested courage, and the will to risk one’s life for that of another. In these terrible circumstances there are some men who seem to be more naturally called than others to sacrifice themselves; for example, firemen and sailors. It is certain that it is those who are the more familiar with the element it is necessary to combat, that are most called to do so, and for whom self-devotion becomes a greater duty. But it is not always possible to have them immediately at hand; in a sudden catastrophe, all must take their share of the peril; all must be ready to give their life for others if they can do so with some utility.

Devotion towards the wretched.—Next to health and life, what men most esteem are material goods and that which is called fortune. Certainly, we should not encourage this estimation men have for material goods; one should as much as possible teach them to do without them; and the saying that happiness resides rather in a small competence than in riches, is most true. But it is not less true that the material things are absolutely necessary to life, and that the absence of these things is in every respect prejudicial to man, since health, life, and even the interests of the soul and mind, depend on these material goods. How can we educate ourselves without eating? How can we improve the heart and soul when want impels us to all sorts of temptations? Finally, suffering itself, though morality commands us to bear it with courage, is a legitimate object of sympathy. From all these considerations arises, for those who possess anything, the obligation to come to the assistance of those who have nothing: this is what is called gift. This obligation can be satisfied in many ways, but the mode should certainly consist with the dignity and responsibility of those who are the object of the gift. Experience has shown that an ill-understood charity encourages idleness and often rewards and perpetuates vice. It is therefore work which should above all be furnished to the poor: the loan should generally be preferred to the gift; but finally, whatever precautions one may take, and whatever be the causes of the misery, there comes always a moment when, in presence of hunger, illness, supreme want, one must give; must deprive himself for others. As to the particular rules which govern benevolence, we have given them above in speaking of benefactions.

Consolations, exhortations, instructions. After the duties toward the body come the duties toward the soul: and this distinction has place for others as for ourselves. It is not enough to insure and save the lives of men, and give them the daily bread; one must also nourish their souls, their intelligences, their moral weaknesses, which also need sustenance. Thence three different obligations: to console the afflicted; to exhort the weak; to instruct the ignorant. The consoling of the afflicted is a virtue, which needs no rule, and does not admit of any. One does not console by order, by processes, by principles. Here the heart is better than strict laws. Listen to your heart; it will teach you how to be merciful without being indiscreet; how to touch without wounding; how to say enough without saying too much. In respect to poor people, one often consoles them by relieving their misery, and the duty here blends with benevolence. After the consolation come the exhortations. The duty here becomes more and more delicate. It is no easy thing to advise men; we have not even always a right to do so; for it is attributing to ourselves a certain superiority over them. This duty of exhortation is therefore an affectation of pride rather than an inspiration of fraternity. It is especially with children, with young people, that good exhortations properly made can be useful. In a few words, moderate and just, one may often recall to them their duties of respect towards themselves, and of economy, sobriety, devotion towards their relatives. Finally comes the duty of instruction. Here it is not the office of all, but only of those who are charged with this function. Yet may we contribute our share towards the instruction of children either by money-contributions, or by visiting the schools, or by encouragement-societies; in a word, by all sorts of auxiliary means. Such are the principal duties in regard to souls.

73. Clemency.—Pardon of injuries.—Love of enemies.—The foregoing duties consist not only in returning good for evil, but also in doing good to those who have not done us any. A superior degree of charity, which is called generosity, consists in returning good for evil, in forgiving the wicked,—not the wrong they have done to others, but the wrong they have done to ourselves. This, in the case of sovereigns, is called clemency. The saying of Louis XII. is well known, having pardoned the enemies he had had before taking the crown: “The king,” said he, “should forget the injuries done to the duke of Orleans.” The great Condé was moved to tears over Corneille’s celebrated lines in Cinna:

“Let us be friends, Cinna; it is I who invite thee:
I gave thee thy life as to my enemy,
And despite the fury of thy cowardly designs,
I still give it thee, as to my murderer.”

The duty of returning good for evil goes even further than clemency and the pardon of injuries: for this is nothing more than to abstain from wronging one’s enemies. But we should do more: we must be capable of doing good to our enemies when they deserve it, or need it; and further still, we should try to carry the virtue even so far as to interdict ourselves any feeling of pride, which would naturally arise in a heart great enough to avenge itself by benefits.

The philosopher Spinoza has admirably expressed this doctrine: “Hatred must be overcome not by hatred, but by love and generosity.”

74. Duties of kindness towards animals.—Among the moralists, there are some who do not admit that we have any duties towards beings inferior to man, namely, animals; others, on the contrary, do not admit any duties towards any above man, consequently towards God; others, in fine, deny that man has any towards himself. There are scarcely any duties, except those towards our fellow-beings, that have not been questioned by one or the other of the moralists: some connecting the latter with the duties towards ourselves, or the duties towards God.

According to us, there are four classes of duties, and these four classes are not reducible the one to the other.[52]

No one can deny from a practical point of view that there are duties towards animals; for we know very well that it is not permitted to maltreat them or cause them unnecessary pain; and every enlightened conscience condemns cruelty to animals. Therefore can there be here question only of a speculative scruple. It can be very well seen that there is a duty here; but it is, they say, a duty towards ourselves; for it is our duty not to be cruel, and cruelty toward animals accustoms us too easily to cruelty toward men. But this is a very useless subtlety, and too roundabout a way to express a very simple thing. We prefer simply saying that kindness toward an animal is a duty toward that animal.

Besides, the reasons given against the duties toward animals, appear to us more specious than substantial. It is said that animals, having neither will nor intelligence, are not persons, but things; that, consequently, they have no rights, and that we can have no duties toward what has no rights.

These are inadmissible subtleties. One can, in law terms, divide all objects of nature into persons and things; and animals, not being persons, are things, in the sense that they can be appropriated. But, strictly speaking, can a being endowed with sensibility be called a thing? Is it true, moreover, that an animal has no intelligence, no will—that consequently it has not any vestige of personality? Is it true again that an animal has no kind of rights? This, in the first place, is to suppose what is in question. And, moreover, does not conscience say to us that an animal which has served us long years with affection has thereby acquired a certain right to our gratitude? And, finally, is it really true that we have only duties towards those that have duties towards us? That were a very perilous maxim in social morality. We are told not to be cruel to animals in order not to become cruel towards men. But if one were sure not to become cruel towards men, would it follow therefrom that it is permitted to be so towards animals? No, it will be said; but it is because cruelty, though its object be only animals, is in itself a vice, base and unworthy of man. One should not conclude from that, that cruelty is a direct crime against them. But for the same reason it might be maintained that we have no duties toward others, and only toward ourselves; injustice, cruelty, are odious vices in themselves; goodness and justice, noble qualities; we should shun the one and avoid the other out of respect for ourselves, and regardless of the object of these vices and virtues. If, despite these considerations, it is then thought better to make, nevertheless, a distinction between the duties toward others and those toward ourselves, there should for the same reason be made a distinct class of the duties toward animals. Finally, if we owe nothing to animals, it is not very clear why acts hypothetically indifferent should be treated as cruelties; nor why such acts should be considered as lowering and dishonoring the character.

On the whole, and to avoid all theoretical difficulties, it may be said that we have duties, if not toward animals, at least in regard to animals.

Our duties in regard to animals, are they, however, of a kind to make us doubt our right to destroy or reduce them to servitude?

The destruction of animals may have two causes; it may be for our defense, it may be for our subsistence. As to the first there is no difficulty; the right of legitimate self-defense authorizes us to destroy what would otherwise destroy us. Between us and beasts injurious to man there is evidently a state of natural war, and in that state the law is that might makes right. This same law is the one which regulates the relations of the animals between themselves: it is also their law in regard to us. The lion, for instance, might not always be as tenderly inclined as the lion of Androcles or the lion of Florence: it would not be well to trust it. We need not, therefore, even theoretically, entertain any scruples concerning the destruction of injurious animals.

Is it the same with the destruction of animals intended for our nourishment? Is this destruction innocent, or must we, as did the Pythagoreans or Brahmins of old (for superstitious reasons, however), interdict all animal food?[53] This question has been so well solved by general usage that it is scarcely necessary to raise it. It is not likely men will ever think of giving up animal food, and no one regrets having eaten of a good roast. Yet for those who like to find out the reason of things, it is a problem to know whether we have the right to do what we do without remorse and scruples; and whether a universal and apparently indestructible practice is also a legitimate and innocent practice. Man, according to us, in living on flesh, is justified by nature herself, who made him a carnivorous creature. Every being is authorized to perform the acts which result from its organization.[54] The human organization, as the nature of the teeth and the whole digestive system indicate, is prepared to nourish itself with flesh. In many countries even all other nourishment is impossible; there are peoples whose very situation makes them necessarily hunters, fishermen, or shepherds; it is only in some countries highly favored, and, thanks to scientific cultivation, the result of civilization, that vegetable food could be made abundant enough to suffice, and hardly that for large masses of population; for we know quite well what disasters follow upon a scarcity of crops. What would be the result if the human race were deprived of half its means of subsistence? Add to this that, whatever may have been said against it, animal food mixed in a certain measure with vegetable food, is indispensable to the health and vigor of the human race.

As to the servitude of animals and the labor we impose on them, its justification lies first in the principle of legitimate self-defense, to which we have just now alluded. Many of our domestic races would, in a savage state, become veritable wild beasts. The wild hog is, they say, the wild boar; the wild dog, the jackal; the wild cat belongs to the leopard and tiger family. In reducing these sorts of animals to servitude, and in making of them companions and help-mates in our work, we thereby deliver ourselves from dangerous enemies. Domestication is better than destruction. Add to this, that if we except the first animals which have passed from the savage state to the domestic state (which, as to our domestic races, is lost in the night of time and escapes all responsibility), the present animals, born in servitude, know no other state, do not suffer from a want of liberty, and find even, thanks to our cares, a more certain subsistence than if they were free. They are, it is true, sacrificed by us to our wants, but they would be so by other animals in the savage state. Whether a sheep be eaten by men or wolves, it is not to be more pitied for that, one way or the other.

The right of man over animals being set aside, there remains an essential duty respecting them, namely: not to make them suffer without necessity.

Fontenelle relates that, having gone one day to see Malebranche,[55] at the fathers of the Oratoire, a dog of the house, big with young, entered the room and rolled about at the feet of the father. After having tried in vain to drive it away, Malebranche gave the dog a kick which caused it to utter a cry of pain and Fontenelle a cry of compassion: “Oh, pshaw!” said father Malebranche, coolly, “do you not know that these things do not feel?”

How could this philosopher be sure that these things did not feel? Is not the animal organized in the same manner as man? Has he not the same senses, the same nervous system? Does he not give the same signs of impressions received? Why should not the cry of the animal express pain as does the cry of a child? When man is not perverted by custom, cruelty, or the spirit of system, he cannot see the sufferings of animals without suffering himself, a manifest proof that there is something in common between them and us, for sympathy is by reason of similitude.

Animals, then, suffer; this is undeniable; they have, like ourselves, a physical sensibility; but they have also a certain moral sensibility; they are capable of attachment, of gratitude, of fidelity; of love for their little ones, of reciprocal affection. From this physical and moral analogy between men and animals, there obviously results the obligation of inflicting upon them no useless suffering. Madame Necker de Saussure[56] relates the story of a child who, finding himself in a garden where a tamed quail was freely running about beside the cage of a bird of prey, yielded to the temptation of seizing the poor quail and giving it to the bird to devour. The hero of this adventure relates himself the punishment inflicted on him:

“At dinner—there was a great deal of company that day—the master of the house began to relate the scene, coolly and without any remarks, simply naming me. When he was through, there was a moment of general silence, where every one looked at me with a kind of horror. I heard some words exchanged among the guests, and without any one’s directly speaking to me, I could understand that everybody thought me a monster.”

Connected with the cruelty toward animals are certain barbarous games where animals are made to fight with each other for our pleasure. Such are the bull-fights in Spain; the cock-fights in England; we do not go so far as to rank the chase among inhuman games, because, on the one hand, it has for its object to destroy the animals injurious to our forests and crops, and to furnish us useful food; and on the other, it is an exercise favorable to health, and exercises certain faculties of the soul; but the chase must at least not be a massacre, and must have for its end utility.

Brutality toward the animals which render us the greatest services, and which we see every day loaded beyond their strength, and beaten to bear up under the load, is also an odious act, and doubly wrong, as it is both contrary to humanity and contrary to our interests, since these animals, overloaded and beaten, will not be long in succumbing to the violence of their persecutors.

Nor can we consider as absolutely indifferent the act of killing or selling (except in cases of extreme necessity) a domestic animal that has served us a long time, and whose attachment we have experienced. “Among the conquerors at the Olympic Games,” the ancients tell us, “many share the distinctions which they receive with the horses which have helped to procure them; they provide for them a happy old age; they accord them an honorable burial, and sometimes even raise a monument over their graves.”

“It is not reasonable,” says Plutarch, “to use things which have life and feeling, as we would use a shoe or any other instrument, throwing it away when worn out and ruined by dint of service done; if it were for no other cause than to induce and stimulate us to constant compassion, we should accustom ourselves to gentleness and charitableness, even to performing the humblest offices of kindness; as for me, I should never have the heart to sell an ox who for a long time had ploughed my land, because, by reason of old age, he can no longer work.”

A very serious question has been raised these latter times, namely, the question of vivisection, and how far, in a scientific point of view, we have a right to practice on living animals. The point is not to interdict to science what is the indispensable condition of its progress and propagation; but we should limit ourself to the strictly necessary, and not with revolting prodigality multiply sacrifices that are not absolutely useful.

One of the principal reasons for condemning cruelty toward animals, is that through the instinct of imitation and sympathy men may get into the habit of doing to others what they have seen practiced on animals. There is a story of a child who caused his brother to suffer the same death he had just seen inflicted on an animal.[57]

The men who are brutal toward animals are likewise so toward each other, and treat with the same cruelty their wives and children.

It is by reason of these considerations of social utility and humanity that the law in France decided to interfere to prevent and punish the bad treatment inflicted upon animals;[58] and the consequences of this measure have been most happy.

CHAPTER VII.

DUTIES TOWARD THE STATE.

SUMMARY.

Three groups of societies among men: Humanity, the family, the country, or the State.

Analysis of patriotism.

Foundation of the State.—Law and rights. Public authority: distinction between society and the State. The three powers. Sovereignty. The right of punishment.

Duties toward the State: 1. Obedience to the laws.—The Crito of Plato. Pretended exceptions to this principle. Criticising the laws is not disobedience.

2. Respect to magistrates.—The magistrates being the representatives of the laws, to respect them is to respect the law itself; to insult them is to insult the law.

3. The ballot.—Obligation to vote. The character of the ballot: 1, disinterested; 2, free; 3, enlightened.

4. Taxes.—Immorality of frauds against the State.

5. Military service.—Legal and moral obligation. Attempts to escape it: 1, by mutilations; 2, by simulated infirmities; 3, by desertion; want of discipline.

6. Educational obligation.

Civil courage.—Noted example: Boissy d’Anglas.

75. Three groups of societies.—Cicero and Fénélon remark that there are three sorts of societies among men: the first comprises the whole of humanity; the last, which is the most circumscribed, is what is called the family. But between the family and the human race in general, there is an intermediate society, larger than the one and more circumscribed than the other, and this is what is called the country.

76. Patriotism.—The sentiment which binds us to the country, and which, articulated, becomes a duty, is what is called patriotism. We have already given elsewhere,[59] an analysis of patriotism. Let us repeat what we have said:

Patriotism is one of our most complex sentiments: it is in fact composed of many distinct elements: it is, in the first place, the love of the soil where we were born; and this soil is at first the narrow territory where our youth passed, and which we embraced entire with the eyes and recollections: it is the native village, the native city. But if this is the first sense of country, it falls far short of embracing the whole country. The love for the native church steeple is not patriotism: it is even its opposite often. The soil must extend, widen, and from the natal house, must gradually embrace, by successive additions, the village, the town, the county, the province, the whole country. But what is to determine the extent of this territory? Who is to decide that it shall go so far and no farther? There enter into it many elements: first, the inhabitants, the fellow-citizens, fellow-countrymen; a soil deserted would not be a country; to the love of the territory there must be added the love of those who inhabit it with us, or of our fellow-countrymen; to the nomadic people the country is only their tribe. Conversely, the citizens without the soil are not the country either, for exile in common is not the less exile. Finally, the union of soil and fellow-citizens may still not be the country, at least not all the country; a conquered nation may preserve its soil and its inhabitants, and have lost the country: as Poland, for instance. What, then, are the ties to determine the existence of a country? There are a large number of them, such as the unity of language, the unity of laws, the unity of the flag, historic tradition, and, finally, above all, the unity of government and of an accepted government. A country exists only where there is an independent political state. This political unity does not suffice when the other ties are wanting; when it is a constraint, when peoples united under the same government have different manners, customs, traditions; conversely, unity of language and community of habits, will neither be sufficient when the political unity or a certain form of political unity is wanting. But what, before everything else, constitutes the country, is a common spirit, a common soul, in short, a common name, which fuses into one all these separate facts of which no single one is absolutely necessary, but of which each forms an additional element to the strength of the country. Finally, as a last condition, the association which is to become a country must not, as was the case with the Roman empire, extend over too much territory; for beyond certain limits, patriotism relaxes.

Nature has endowed us with this sentiment of patriotism. There is no one that does not love his country better than other countries, that is not flattered by national glory, that does not suffer from the humiliations and miseries of his native country. But this sentiment is more or less strong, according to temperaments. Often it is nothing more than a sentiment, and does not express itself in actions. It is the reflective faculties which make of patriotism a duty, which duty demands that sentiment pass into action; demands of all the citizens the same acts, whatever be the personal inclinations of each.

The duties imposed on each man in regard to the particular society of which he is a member, are called civil duties. He, himself, in regard to this society, is what is called a citizen; finally, the society itself, considered as one and the same person, of which the citizens are the members, is what is called the State or the city.

On the whole, there is no difference between country and State. Country is at the same time Society and soil. It is called by that name (State) when looked upon in the light of a family of which the citizens are the children, and also when considered in its relations with other nations and other societies. The State is that same society considered interiorly and in itself, not as to its soil and territory, but as to the members that compose it, and in as far as these members form one and the same body and are governed by laws. The country is a more concrete and more vivid expression, which appeals more to the feelings; the State is a more abstract expression, which addresses itself to reason. Besides, we shall understand better what is meant by the State, when we shall have explained the nature of public authority and the laws.

77. Foundation of the State—Rights.—To understand the nature of the State and what is called authority, sovereignty, magistracy, law, one must begin with the notion of rights and of the different kinds of rights.

Duty is the law which imposes on us obligations either toward ourselves or toward others; it is a moral necessity ([p. 11]). Rights is the power we have to exercise and develop our faculties conformably to our destiny, provided we allow other men the same power: it is a moral power (Leibnitz). Each man, by reason of his enjoying liberty and intelligence, is a person, and should not be treated as a thing. “Man is a thing sacred to man,” said the ancients. He is inviolable in his personality and in all that constitutes the development of his personality.

Thence follows an immediate consequence: it is, that every man being man by the same title, no one can claim for himself a right which he is not willing to recognize at the same time in another; hence the equality of rights. Besides, the liberty of one cannot, without contradiction, suppress the liberty of another, whence this other definition: Right is the accord of liberties.

78. The rights of man.—What are the principal rights of man? They are: the right of self-preservation; the right of going and coming, or individual liberty; the liberty of work; the right of property; the liberty of thought; the liberty of conscience; the right of family, etc.

We have also seen that man ([p. 52]) has a final right which is the guaranty and the sanction of all others; it is the right of preventing by force every attempt at his rights; to constrain others to respect his rights, and lastly, to punish every violation of his rights. This is what is called the right of self-defense.

79. Public authority.—Man having, as we have just seen, the right of self-defense by opposing force to any attack, possesses, when alone, and far from all human help, this right in all its plenitude. But it is easy to see the dangers and inexpediency of such a right in a society. Each man, in fact, when he meets with opposition to his will and desires, always thinks himself injured in his rights. If every one were free to defend himself in all circumstances, the right of self-defense would keep men constantly under arms; and society, without a regulating power to check their doings, would soon, as the philosopher Hobbes expressed it, be “the war of all against all.” Hence the necessity of the State—that is to say, of a disinterested power—taking in hand the defense of all, and insuring the proper exercise of the right of self-defense by suppressing its abuses. This is what is called public authority.

80. Society and the State.—We must distinguish between society and the State, or natural society and civil society.

Society is the union which exists between men, without distinction of frontiers—without exterior restraint—and for the sole reason that they are men. An Englishman and an Indian, as Locke says, meeting in the waste forests of America (Robinson and Friday), are, from the fact alone of their common nature, in a state of society.

The civil society or State is an assemblage of men subject to a common authority, to common laws—that is to say, a society whose members may be constrained by public force to respect their reciprocal rights.

81. The three powers.—There results from that, that two necessary elements enter into the idea of the State: laws and force. The laws are the general rules which establish beforehand and fix after deliberation, and abstractly, the rights of each; force is the physical restraint the public power is armed with to have the laws executed. Hence two powers in the State, the legislative power and the executive power—one that makes the law; the other that executes it, and to which may generally be added a third, namely, judiciary power, which, on its part, is empowered to apply and interpret the law.[60]

82. Sovereignty.—These three powers emanate from a common source which is called sovereign. In all States, the sovereign is the authority which is in possession of the three preceding powers and delegates them. In an absolute monarchy, the sovereign is the monarch, who of himself exercises the legislative and executive power, sometimes even the judicial power. In a democracy, the sovereign is the universality of the citizens, or the people, which delegates the three powers, and even in some cases exercises them.

As to the basis of sovereignty, two systems face each other: the divine right and the sovereignty of the people. In the first, the authority emanates from God, who transmits it to chosen families; in the second, societies, like individuals, are free arbiters, and belong to themselves; they are answerable for their destinies; and this can only be true of the entire society; for why should certain classes rather than others have the privilege to decide about the fate of each? The sovereignty of the people is then nothing else than the right of each to participate in public power, either of himself or through his representatives. This principle tends more and more to predominate in civilized States.

83. Political liberty.—Political liberty means all the guaranties which insure to every citizen the legitimate exercise of his natural rights; political liberty is, then, the sanction of civil liberty.

The principal of these guaranties are: 1, the right of suffrage, which insures to every one his share of sovereignty; 2, the separation of powers, which puts into different hands the executive, legislative, and judicial powers; 3, the liberty of the press, which insures the right of minorities, and allows them to employ argument to change or modify the ideas and opinions of the majority.

84. The right of punishment.—The right of punishment in a State is nothing else than the right of restraint, which, as we have already seen, is inherent in the very idea of the State; for the State only exists to insure to each the exercise of his rights, and it can only do so by restraint and the use of force. How far can this right of force go? Can it, for example, go so far as the taking of life even? This is a mooted question between publicists, and upon which we have, moreover, already expressed ourselves ([p. 55 et seq.]).

After having in these summary views resolved the principle upon which the State rests,[61] and the essential elements which enter into the idea, we are better prepared to approach what constitutes the object proper of civil morality, namely, the duties of citizens toward the country or the State.

85. Civil duties.—These duties are the following: Obedience to the laws; respect of magistrates; the ballot; military service; educational obligations.

86. Obedience to the laws.—The first of the civil duties, is obedience to the laws. The reason is evident. The State rests on the law. It is the law which substitutes, for the will of individuals, always more or less carried away by passion or governed by self-interest, a general, impartial, and disinterested rule. The law is the guaranty of all: it opposes itself to force, or rather puts force in the service of justice, instead of making of justice the slave of force. Pascal says: “Not being able to make that which is just, strong, men have wished that what is strong should be just.” This is the jest of a misanthrope. Certainly the laws are not always as just as they might be, despite the efforts made to render them so: the reason of it is, the extreme complexity of interests between which it is difficult to find a true balance and just equilibrium; but such as they are, they are infinitely more just than the right of the strongest, which would alone reign if there were no laws.

The empire of the laws is then that which secures order in a society, and consequently procures for each of its members security and peace, and through these, the means of devoting himself to his work, whether intellectual or material, and of reaping the fruits thereof.

At the same time that the law guarantees order within, it also insures the independence of the nation from without. For a nation without laws, or which no longer obeys its laws, falls into anarchy and becomes the prey of the first conqueror who presents himself, as is shown by the history of Poland.

It is especially in democratic or republican states, that obedience to the laws is necessary, as it is there the most difficult.

Montesquieu has shown with great sagacity the difficulty and thereby the necessity of obedience to the laws in a democracy; in fact, what in other governments is obtained by constraint, in a democracy depends only upon the will of the citizens.

“It is clear,” says Montesquieu, “that in a monarchy, where he who causes the laws to be executed is above the laws, there is less virtue requisite than in a popular government, where he who causes the laws to be executed, feels that he is himself subject to them, and will have to bear the consequence of their violation.

“It is further clear that a monarch who, through bad advice or negligence, ceases to have the laws executed, may easily repair the evil; he has but to change counselors or correct himself of his negligence. But when in a popular government, the laws have ceased to be executed, as this can only happen through the corruption of the republic, the State is already lost.”

Montesquieu then describes, in the strongest and liveliest colors, a republican state where the laws have ceased to be enforced.

“They were free with the laws; they wish to be free without them. Each citizen is as a slave escaped from the house of his master. What before was called maxim, is now called severity; what was rule is now annoying restraint; what was attention, is now fear. The republic has become booty, and its strength is no longer anything more than the power of a few and the license of all.”

In the republics of Athens and Rome, as long as they were prosperous and great, the empire of the laws was admirable. Socrates, in his prison, gave of this a sublime example. He was unjustly condemned by his fellow-citizens to drink the hemlock, namely, to die by poison. Meanwhile, his friends pressed him to resort to flight; and everything leads to the belief that this would have been quite easy, as the judges themselves almost wished to be relieved of the responsibility of his death. Yet Socrates resisted, and refused to employ this means of safety. The principal reason given by him was, that, having been condemned by the laws of his country, he could save himself only by violating these laws.

This is what Plato has expressed in the dialogue entitled Crito. The laws of the country are represented as addressing a speech to Socrates; it is called the Prosopopœia[62] of Crito:

“Socrates,” they will say to me, “was that our agreement, or was it not rather that thou shouldst submit to the judgments rendered by the republic?... What cause of complaint hast thou against us that thou shouldst try to destroy us? Dost thou not, in the first place, owe us thy life? Was it not under our auspices that thy father took to himself the companion that gave thee birth? If thou owest us thy birth and education, canst thou deny that thou art our child and servant? And if this be so, thinkest thou thy rights equal to ours; and that thou art permitted to make us suffer for what we make thee suffer? What! in the case of a father or a master, if thou hadst one, thou wouldst not have the right to do to him what he would do to thee; to speak to him insultingly if he insulted thee; to strike him, if he struck thee, nor anything like it; and thou shouldst hold such a right toward thy country! and if we had sentenced thee to death, thinking the sentence just, thou shouldst undertake to destroy us!... Does not thy wisdom teach thee that the country has a greater right to thy respect and homage, that it is more august and more wise before the gods and the sages, than father, mother, and all ancestors; that the country in its anger must be respected, that one must convince it of its error through persuasion, or obey its commands, suffer without murmuring whatever it orders to be suffered, even to be beaten and loaded with chains?... What else then dost thou do?” they would proceed to say, “than violate the treaty that binds thee to us, and trample under foot thy agreement?... In suffering thy sentence, thou diest an honorable victim of the iniquity, not of the laws, but of men; but if thou takest to flight, thou repellest unworthily injustice by injustice, evil by evil, and thou violatest the treaty whereby thou wert under obligation to us: thou imperilest those it was thy duty to protect, thou imperilest thyself, thy friends, thy country, and us. We shall be thy enemies all thy life; and when thou shalt descend to the dead, our sisters, the laws of Hades, knowing that thou hast tried thy best to destroy us here, will not receive thee very favorably.”

Pretended Exceptions.—The duty of obedience to the laws must then be admitted as a principle; but is this duty absolute? is it not susceptible of some exceptions? A learned theologian of the XVI. century, a Jesuit, Suarez (Traité des lois, III., iv.), admits three exceptions to the obedience due to the law: 1, if a law is unjust—for an unjust law is no law—not only is one not obliged to accept, but even, when accepted, one is not obliged to obey it; 2, if it is too hard; for then one may reasonably presume that the law was not made by the prince with the absolute intention that it should be obeyed, but rather as an experiment; now, under this supposition one can always begin by not observing it;—3, if, in fact, the majority of the people have ceased to observe it, even though the first who had commenced should have sinned; the minority is not obliged to observe what the majority has abandoned: for one cannot suppose the prince to intend obliging such or such individuals to observe it, when the community at large have ceased observing it.

These exceptions, proposed by Suarez, are inadmissible, at least the two first. To authorize disobedience to unjust laws is introducing into society an inward principle of destruction. All law is supposed to be just, otherwise it is arbitrariness and not law. Every man finds always the law that punishes him unjust. If there are unjust laws, which is possible, we must ask their abrogation; and, in these our days, the liberty of the press is ready to give satisfaction to the need of criticism; but, in the meantime, we must obey. The second exception is not tenable either. To say that it is permitted to disobey a law when it is too hard, in supposing that the prince only made it for an experiment, is to permit the eluding of all the laws: for every law is hard for somebody; and there is, besides, no determining the hardness of laws. Such an appreciation is, moreover, fictitious; a prince who makes a law is supposed a priori to wish it executed: to say that he only meant to try us therewith is a wholly gratuitous invention. Certainly one may by such conduct succeed in wearing a law out when the prince is feeble; but it is not the less unjust, and no State could resist such a cause of dissolution. As to the third exception, it can be admitted that there are laws fallen into disuse, and which are no longer applied by any one because they stand in contradiction to the manners, and are no longer of any use; but, except in such case, it is nowise permitted to say that it is sufficient for the majority to disobey to entitle the minority to do the same. For instance, if it pleased the majority to engage in smuggling, or to make false declarations in the matter of taxes, it would nowise acquit the good citizens from continuing to fulfill their duty.

Now, if it is an absolute duty to obey a law, we must, at the same time, admit as a corrective, the right of criticising the law. This right is the right of the minority, and it is recognized to-day in all civilized countries. A law may, in fact, be unjust or erroneous: it may have been introduced by passion, by party-spirit; even without having been originally unjust, it may have become so in time through change in manners; it may also be the work of ignorance, prejudice, etc.; and thereby hurtful. Hence the necessity of what is called the liberty of the press, the inviolable guaranty of the minorities. But the right of criticising the law is not the right of insulting it. Discussion is not insult. Every law is entitled to respect because it is a law; it is the expression of the public reason, the public will, of sovereignty. One may try to persuade the sovereign by reasoning, and induce him to change the law; one should not inspire contempt which leads unavoidably to disobedience.

87. Respect for magistrates.—Another duty, which is the corollary to obedience to the laws, is the respect for the magistrate. The magistrate—that is, the functionary, whoever he be, in charge of the execution of the laws—should be obeyed, not only because he represents force, but also because he is the expression of the law. For this reason, he should be for all an object of respect. The person is nothing; it is the authority itself that is entitled to respect, and not such or such an individual. Many ignorant persons are always disposed to regard the functionary as a tyrant, and every act of authority, an act of oppression. This is a puerile and lamentable prejudice. The greatest oppression is always that of individual passions, and the most dangerous of despotisms is anarchy: for then it is the right of the strongest which alone predominates. Authority, whatever it be, makes the maintenance of order its special interest, and order is the guaranty of every one. The magistrate is, moreover, entitled to respect, as he represents the country; if the country be a family, the authority of the magistrate should be regarded the same as that of the head of the family, an authority entitled to respect even in its errors.

88. The ballot.—Of all the special obligations which we have enumerated, the most important to point out is that of the ballot, because it is free and left entirely at the will of the citizens.

In regard to the other obligations, constraint may, up to a certain point, supply the good will; he who does not pay his taxes from a sense of duty, is obliged to pay them from necessity; but the ballot is free; one may vote or not vote; one may vote for whom he pleases: there is no other restraint than the sense of duty; for this reason, it is necessary to insist on this kind of obligation.

1. It is a duty to vote. What in fact the law demands, in granting to the citizens the right of suffrage, is that the will of the citizens be made manifest, and that the decisions about to be taken, be those of the majority. This principle of the right of the majorities has often been questioned: for, it is said, why might not the majority be mistaken? Certainly, but why might not the minority be also mistaken? The majority is a rule which puts an end to disputes and forestalls the appeal to force. The minorities certainly may have cause for complaint, for no rule is absolutely perfect; but they have the chance of becoming majorities in their turn. This is seen in all free States, where the majority is constantly being modified with the time. If such is the principle of elective governments (whatever be the measure or extension of the electoral right), it can be seen of what importance it is that the true majority show itself; and this can only take place through the greatest possible number of voters. If, for example, half of the citizens abstain, and that of the half that vote, one-half alone, plus one, constitute the majority, it follows that it is a fourth of the citizens that make the law; which would seem to be reversing the principle of majorities. This is certainly not absolutely unjust, for it may be said that those who do not vote admit implicitly the result obtained; but this negative compliance has not the same value as a positive compliance.

To abstain from voting may have two causes: either indifference, or ignorance of the questions propounded, and consequently the impossibility of deciding one way or another. In the first case, especially is the abstaining culpable. No citizen has the right to be indifferent to public affairs. Skepticism in this matter is want of patriotism. In the second case, the question is a more delicate one. How can I vote? it may be said. I understand nothing about the question; I have no opinion; I have no preference as to candidates. To combat this evil, it is, of course, necessary that education gain a larger development, and that liberty enter into customs and manners. There will be seen then a greater and greater number of citizens understandingly interested in public affairs. But even in the present state of things, a man may still fulfill his duty in consulting enlightened men, in choosing some one in whom he may have confidence; in short, in making every effort to gain information.

2. The vote should be disinterested. The question here is not only one concerning the venality of the vote, which is a shameful act, punishable, moreover, by the laws; but it embraces disinterestedness in a wider sense. One should in voting consider the interests of the country alone, and in nowise, or at least, only secondarily, the interests of localities, unless the question be precisely as to those latter interests, when voting for municipal officers.

3. The vote should be free. The electors or representatives of an assembly should obey their conscience alone: they should repel all pressure, as well that from committees arrogating omnipotence, as from the power itself.

4. In fine, the vote should be enlightened. Each voter should gather information touching the matter in hand, the candidates, their morality, their general fitness for their duty, their opinions. In order to vote with knowledge of the facts, one must have some education. That, of course, depends on our parents; but what depends on us, is to develop the education already obtained; we must read the papers, but not one only, or we may become the slaves of a watch word and of bigoted minds; we must also gather information from men more enlightened, etc.

89. Taxes.—It is a duty to pay the taxes; for, without the contributions of each citizen, the State would have no budget, and could not set the offices it is commissioned with, to work.

How could justice be rendered, instruction be given, the territory be defended, the roads kept up, without money? This money, besides, is voted by the representatives of the country, elected for that purpose. But if the State is not to tax the citizens without their consent and supervision, they in their turn should not refuse it their money. Certainly, this evil is not much to be feared, for in the absence of good will, there is still the constraint which can be brought to bear upon refractory citizens. Yet there are still means of defrauding the law. The common people believe too readily that to deceive the State is not deceiving; they do not scruple to make false declarations where declarations are required, to pass prohibited goods over the frontier, etc.; which are so many ways of refusing to pay the taxes.

90. Military service, as are the taxes, is obligatory by law, and consequently does not depend on individual choice. But it is not enough to do our duty because we are obliged to do it; we must also do it conscientiously and heartily.

“It is not enough to pay out of one’s purse,” says a moralist;[63] “one must also pay with one’s person.” Certainly, it is not for any one’s pleasure that he leaves his parents and friends, his work and habits, to go to do military service in barracks, and, if needs be, to fight on the frontiers. But who will defend the country in case of attack if it be not its young and robust men? And must they not learn the use of arms in order to be efficient on the day when the country shall need them? This is why there are armies. Certainly, it would be a thousand times better if there were no need of this, if all nations were just enough never to make war with each other. But whilst this ideal is being realized, the least any one can do is to hold himself in readiness to defend his liberty, his honor.... Thanks to a good army, one not only can remain quiet at home, but the humblest citizen is respected wherever he goes, wherever his interests take him. In looking carefully at the matter it can be seen that even in respect to simple interests, the time spent in the service of the flag, is nothing in comparison with the advantages derived from it. Is it not because others have been there before us that we have been enabled to grow up peacefully and happy to the age of manhood? Is it not just that we should take their place and in our turn watch over the country? And when we return, others will take our place, and we, in our turn, shall be enabled to raise a family, attend to our business, and lead a quiet and contented life.

Let us add to these judicious remarks that military service is a school of discipline, order, obedience, courage, patience, and as such, contributes to strengthening the mind and body, to developing personality, to forming good citizens.

The principal infractions of the duty of military service are: 1, mutilations by which some render themselves improper for service; 2, simulated infirmities by which one tries to escape from the obligation; 3, desertion in times of war, and what is more criminal still, passing over to the enemy; 4, insubordination or disobedience to superiors.

This latter vice is the most important to point out, the others being more or less rare; but insubordination is an evil most frequent in our armies, and a most dangerous evil. Military operations have become so complicated and difficult in these days, that nothing is possible without the strictest obedience on the part of soldiers. In times when individual valor was almost everything, insubordination might have presented fewer inconveniences; but in these days, all is done through masses, and if the men do not obey, the armies are necessarily beaten because they cannot oppose an equal force to the enemy. Suppose the enemy to be 50,000 men strong in a certain place, that you yourself belong to a body of 50,000, and that you all together reach the same place at the same time as the enemy: you are equal in numbers, one against one, and you have at least as many chances as they; and if, besides, you have other qualities which they have not, you will have more chances. But if in the corps you belong to, there is no discipline, if every one disobeys—if, for example, when the order for marching is given, each starts when he pleases, and marches but as he pleases, you will arrive too late, and the enemy will have taken the best positions; there is then one chance lost. If, moreover, through the disorder in your ranks, you do not all arrive together, if there are but 25,000 men in a line, the others remaining behind, these 25,000 will be overwhelmed. As for those who do not reach the spot, think you they will escape the consequences of the battle? By no means; the disorder will not save them; it will deliver them defenseless into the hands of the pursuing enemy. Now, all disorder is followed by similar consequences. On the other hand, the obedience of the soldier being sure, the army is as one man who lends himself to all the plans, all the combinations; who takes advantage of all the happy chances, who runs less dangers because the business proceeds more rapidly, and that with less means one obtains more results. Such are the reasons for the punctilious discipline required of soldiers. We are treated as machines, you will say. Yes; if you resist: for then constraint becomes indispensable; but if you understand the necessity of the discipline, if you submit to it on your own accord, then are you no longer machines: you are men. The only way of not being a machine is then precisely to obey freely.

It has often been asked, in these days, whether the soldier is always obliged to obey, even such orders as his conscience disapproves of. These are dangerous questions to raise, and they tend to imperil discipline without much profit to morality. No doubt if a soldier were ordered to commit a crime—as, for example, to go and kill a defenseless man—he would have the right to refuse doing it. At the time of the massacre of St. Bartholomew, an order was sent to all the provinces to follow the example of Paris. One of the governors, the Viscount Orthez, replied that his soldiers did not do executioner’s service; and this answer was admired by all the world. But these are very rare cases; and it is dangerous for such uncertain eventualities to inspire mistrust against order and discipline, which are the certain guaranties of the defense and independence of a country.

91. Educational obligation.—The duty to instruct children results from the natural relations between parents and children. The obligation to raise children implies, in fact, the obligation to instruct them. There is no more education without instruction than instruction without education. To-day educational obligation is inserted in the law, and has its sanction therein. But parents owe it to themselves to obey the law without constraint.

92. Civil courage.—We have already spoken above of civil courage as opposed to military courage. But here is the place to return to this subject. Let us recall a fine page by J. Barni in his book on Morality in Democracy:

The stoics defined courage admirably: Virtue combating for equity. Civil courage might be defined: virtue defending the liberty and rights of citizens against tyranny, whether this tyranny be that of the masses or a despot’s. As much courage, and perhaps more, is demanded in the first case as in the second; it is less easy to resist a crowd than a single man, were there nothing more to be feared than unpopularity, one of the disadvantages hardest to brave. How much more difficult when it comes to risking a popularity already acquired? Yet must one, if necessary, be able to make the sacrifice. True civil courage shows itself the same in all cases. Thus, Socrates, this type of civil virtue, as he was of all other virtues, refused, at the peril of his life, to obey the iniquitous orders of the tyrant Critias; and he resisted with no less courage the people, who, contrary to justice and law, asked for the death of the generals who conquered at Arginusæ. Another name presents itself to the memory, namely, that of Boissy d’Anglas, immortalized for the heroism he showed as president of the National Convention, the 1st Prairial, year II. (20 May, 1795). Assailed by the clamors of the crowd which had invaded the Assembly, threatened by the guns which were pointed at him, he remains impassible; and without even appearing to be aware of the danger he is running, he reminds the crowd of the respect due to national representatives. They cry: “We do not want thy Assembly; the people is here; thou art the president of the people; sign, says one, the decree shall be good, or I kill thee!” He quietly replied: “Life to me is a trifle; you speak of committing a great crime; I am a representative of the people; I am president of the convention;” and he refused to sign. The head of a representative of the people who had just been massacred by the populace for having attempted to prevent the invasion of the Convention, is presented to him on the end of a pike; he salutes it and remains firm at his post. This is a great example of civil courage.

CHAPTER VIII.

PROFESSIONAL DUTIES.

SUMMARY.

Professional duties: founded on the division of social work.

The absence of a profession—Leisure.—Is it a duty to have a profession? Rules for the choice of a profession.

Division of social professions.—Plato’s theory; the Saint Simonian theory; Fichte’s theory. Résumé and synthesis of these theories.

Mechanic and industrial professions.—Employers and employees.—Workmen and farmers.

Military duties.

Public functions.—Elective functions; the magistracy and the bar.

Science.—Teaching.—Medicine.—The arts and letters.

93. Division of social work.—Independently of the general duties to which man is held, as man or member of a particular group (family, country), there are still others relating to the situation he holds in society, to the part he plays therein, to his particular line of work. Society is, in fact, a sort of great enterprise where all pursue a common end, namely, the greatest happiness or the greatest morality of the human species; but as this end is very complex, it is necessary that the parts to be played toward reaching it be divided; and, as in industrial pursuits, unity of purpose, rapidity of execution, perfection of work, cannot be obtained except by division of labor, so is there also in society a sort of social division of labor, which allots to each his share of the common work. The special work each is appointed to accomplish in society is what is called a profession, and the peculiar duties of each profession are the professional duties.

94. The absence of a profession—Leisure.—The first question to be considered is, whether a man should have a profession, or if, having received from his family a sufficient fortune to live without doing anything, he has a right to dispense with all profession and give himself up to what is called leisure. Some schools have condemned leisure absolutely, have denounced what they call idlers as the enemies of society. This is a rather delicate question, and concerning which one must guard against arriving at a too absolute conclusion.

And, in the first place, there cannot be question here of approving or permitting that sort of foolish and shameful leisure to which some young prodigals, without sense of dignity and morality, are given, who dissipate in disorder hereditary fortunes, or the wealth obtained by the indefatigable labor of their fathers. It is sometimes said that this does more good than harm, because fortunes pass thus from hand to hand, and each profits by it in his turn. But who does not know that to make a good use of a fortune is more profitable to society than dissipation? However that may be, nothing is more unworthy of youth than this nameless idleness, where all the strength of the body and soul, the energy of character, the life of the intelligence, all the gifts of nature are squandered. There have been sometimes seen superior souls who rose from such disorders victorious over themselves, and stronger for the combat of life. But how rare such examples! How often does it not, on the contrary, happen that the idleness of his youth determines the whole course of the man’s life?

Sometimes, it is true, one may choose a life of leisure designedly, not with an idea of dissipation, but, on the contrary, with that of being free to do great things. Certain independent minds believe that a profession deprives a person of his liberty, narrows him, fastens him down to mean and monotonous occupations, subjects him to conventional and narrow modes of thinking—in short, that a positive kind of work weakens and lowers the mind. There is some truth in these remarks. Everybody has observed how men of different professions differ in their mode of thinking. What more different than a physician, a man of letters, a soldier, a merchant? All these men thought about the same in their youth; they see each other twenty years later; each has undergone a peculiar bent; each has his particular physiognomy, costume, etc. Not only has the profession absorbed the man, but it has also deadened his individuality. One may conceive, then, how some ambitious minds may expect to escape the yoke and preserve their liberty in renouncing all professions. To be subject to no fixed and prescribed occupation, to depend upon no master, to nobly cultivate the mind in every direction, to make vast experiments, to be a stranger to nothing, bound to nothing, is not that, seemingly, the height of human happiness? Some men of genius have followed this system, and found no bad results from it. Descartes relates to us in his Discours sur la Méthode (Part I.), that, during nine years of his life, he did nothing but “roll about the world, hither and thither, trying to be a spectator, rather than an actor, in the comedies played therein.” He tells us further, that he employed his “youth in traveling, in visiting courts and armies, in associating with people of various humors and conditions, in gathering divers experiences, in testing himself in the encounters chance favored him with, etc.” That this may be an admirable school, a marvelously instructive arena for well-endowed minds, no one will doubt; but what is possible and useful to a Descartes or a Pascal, will it suit the majority of men? Is it not to be feared that this wandering in every direction, this habit of having nowhere a foot-hold, may make the mind superficial and weaken its energy?

He who renounces being an actor, to be only a spectator, as did Descartes, takes too easy a part; he frees himself from all responsibility: this may sharpen the mind, but there will always remain some radical deficiency. Force of character, however, and personal superiority may set at naught all these conclusions—sound as they in general are in theory.[64]

It may, therefore, be doubtful whether a life of leisure, with some exceptions, be good for him who gives himself up to it; but what is not legitimate, is the kind of jealousy and envy which those who work often entertain against those who have nothing to do. There is a legitimate leisure and nobly employed. For example, a legitimate leisure is that which, obtained through hereditary fortune, is engaged in gratuitously serving the country, in study, in the management of property, the cultivation of land, in travels devoted to observation and the amelioration of human things, in a noble intercourse with society. It is a grievous error to wish to blot out of societies all existence that has not gain for its end, and is not connected with daily wants. Property and riches are true social functions, and among the most difficult of functions. Those who know how to use them with profit, fill one of the most useful parts in society, and cannot be said to be without a profession.

95. Of the choice of a profession.—If it is necessary in society to have a profession, it is important that it be well chosen. He who is not in his right place, is wanting in some essential quality to fill the one he occupies:

“If the abbé de Carignan had yielded to the wishes of Madame de Soissons, his mother, what glory would not the house of Savoy have been deprived of! The empire would have been deprived of one of its greatest captains, one of the bulwarks of Christianity. Prince Eugene was a very great man in the profession they wished to interdict him; what would he have been in the profession they wished him to embrace? M. de Retz insisted absolutely that his youngest son should be an ecclesiastic, despite the repugnance he manifested for this profession, despite the scandalous conduct he indulged in to escape from it. This duke [M. de Retz] gives to the church a sacrilegious priest, to Paris a sanguinary archbishop, to the kingdom a great rebel, and deprives his house of the last prop that could have sustained it.”[65]

One should, therefore, study his vocation, not decide too quickly, get information on the nature and duties of different professions; then consult his taste, but without allowing himself to be carried away by illusory, proud, inconsistent fancies; consult wise and enlightened persons; finally, if necessary, make certain experiments, taking care, however, to stop in time.

96. Division of social professions.—It would be impossible to make a survey of all the professions society is composed of: it were an infinite labor. We must, therefore, bring the professions down to a certain number of types or classes, which allow the reducing of the rules of professional morality to a small number. Several philosophers have busied themselves in dividing and classifying social occupations. We shall recall only the principal ones of these divisions.

Plato has reduced the different social functions to four classes, namely: 1, magistrates; 2, warriors; 3, farmers; 4, artisans. The two first classes are the governing classes; the two others are the classes governed. The two first apply themselves to moral things: education, science, the defense of the country; the others to material life. This classification of Plato is somewhat too general for our modern societies, which comprise more varied and numerous elements: these divisions, nevertheless, are important, and should be taken account of in morals.

Since Plato, there is scarcely any but the socialist Saint-Simon who attempted to classify the social careers. He reduces them to three groups: industrials, artists, and scientists (savants). The meaning of this classification is this: the object of human labor, according to Saint-Simon, is the cultivation of the globe—that is to say, the greatest possible production; but this is the object of productive labor; it is what is called industry. Now, the cultivation of nature requires a knowledge of nature’s laws, namely, science. Science and invention are, then, the two great branches of social activity. According to Saint-Simon, work—that is to say, industry—must take the place of war; science, that of the laws. Hence no warriors, no magistrates; or, rather, the scientists (savants) should be the true magistrates. Science and industry, however, having only relation to material nature, Saint-Simon thought there was a part to be given to the moral order, to the beautiful or the good; hence a third class, which he now calls artists, now moralists and philosophers, and to whom a sort of religious rôle is assigned. It will be seen that this theory is absolutely artificial and utopian, that it has relation to an imaginary system, and not to the order of things as it is: it is an ingenious conception, but quite impracticable.

One of the greatest of modern moralists, the German philosopher Fichte, assigned, in his Practical Morality, a part to the doctrine of professional duties; and he began by giving a theory of the professions more complete and satisfactory than any of the preceding ones.

Fichte makes of the special professions two great divisions: 1, those which have for their object the keeping up of material life; 2, those which have for their object the keeping up of intellectual and moral life. On the one side, mechanical labor; on the other, intellectual and moral labor.

The object of mechanical labor is production, manufacture, and exchange of produce; hence three functions: those of producers, manufacturers, and merchants.

The moral and spiritual labor has also three objects: 1, the administration of justice in the State; 2, the theoretic culture of intelligence; 3, the moral culture of the will. Hence three classes: 1, public functions; 2, science and instruction; 3, the Church and the clergy. Lastly, there is in human nature a faculty which serves as a link between the theoretical and the practical faculties: it is the esthetic sense; the sense of the beautiful; hence a last class, that of artists.

This theory is more scientific than that of the Saint-Simonians, but it is still somewhat defective; it is not clear, for example, in a moral point of view, that there is a great difference of duties between the producers, manufacturers, and merchants: they are economical rather than moral distinctions. Plato’s division is better, when he puts the farmers in opposition to the artisans. It is certain that there are, especially in these days, interesting moral questions, which differ according as the workmen live in the city or in the country. We therefore prefer on this point Plato’s division; and we will treat, on the one side, industry and commerce, and on the other agriculture; and in each of these divisions we will distinguish those who direct or remunerate the work, namely, contractors, masters, proprietors, capitalists in some degree, and those who work with their hands and receive wages.

In characterizing the second class of careers, those which have moral interests for their object, we will again borrow of Plato one of the names of his division, namely, the defense of the State. As to the administration of justice in the State, it is divided, as we have already said, into three powers: the executive, legislative, and judicial powers. Hence three orders of functions: administration, deputation, and the magistracy, with which latter is connected the bar.

As to science, it is either speculative or practical.

In the first case, it only concerns the individual; we have spoken of it under individual duties (ch. iv.). In the second case, it has for its object application, and bears either on things or on men.

Applied to things, science is associated with the industry we have already spoken of. Applied to men, it is medicine, in respect to bodies; morality or religion, in respect to hearts and souls.

Lastly, along with the sciences which seek the true, there are the letters and the arts which treat of and produce the beautiful. Hence a last class, namely, poets, writers, artists.

Such is about the outline of what a system of social professions might be. A treatise of professional morality which would be in harmony with this outline, would be all one science, the elements of which scarcely exist, being dispersed in a multitude of works, or rather in the practice and interior life of each profession. We will content ourselves with a few general indications.

97. I. Mechanical and industrial professions.—1. Employers and employees.—The professions which have for their object the material cultivation of the globe, and particularly industry and commerce, are divided into two great classes: 1, on one side, those who, having capital, undertake and direct the works; 2, those who execute them with their arms and receive wages. The first are the employers; the second the employees. What are the respective duties of these two classes?

98. Duties of employers.—The duties of all those who, by virtue of their capital legitimately acquired, or by virtue of their intelligence, command, direct and pay for the work done by men, are the following:

1. They should raise the wages of the workmen as high as the state of the market permits; and they should not wait to be compelled to it by strikes or threats of strikes. Conversely, they should not, from weakness or want of foresight, yield to every threat of the kind; for in raising the wages unreasonably high, one may disable himself from entering into foreign competition, or may cause the ruin of the humbler manufacturers who have not sufficient capital.

2. Capitalists, employers and masters should obey strictly the laws established for the protection of childhood. They should employ the work of minors within proper limits, and according to the conditions fixed by the law.

3. Their task is not done when they have secured to the workmen and their children the share of work and wages which is their due, even when they are content to claim nothing beyond justice. They have yet to fulfill toward their subordinates the duties of protection and benevolence; they must assist them, relieve them, be it in accidents happening to them in the work they are engaged in, or in illness. They must spare them suspensions of work as much as possible; in short, they must, through all sorts of establishments—schools, mutual-help societies, workmen-cities (cités ouvrières), etc.—encourage education, economy, property, yet without forcing upon them anything that would diminish their own responsibility or impair their personal dignity.

99. Duties of workingmen.—The duties of workingmen should correspond to those of the employers.

1. The workingmen owe it to themselves not to cherish in their hearts feelings of hatred, envy, covetousness, and revolt against the employers. Division of work requires that in industrial matters some should direct and others be directed. Material exploitation requires capital; and those who bring this capital, the fruit of former work, are as necessary to the workingmen to utilize their work as these are to the first in utilizing their capital.

2. The workingmen owe their work to the establishment which pays them; it is as much their interest as their duty. The result of laziness and intemperance is misery. We cannot enough deplore the use of what is called the Mondays—a day of rest over and beyond the legitimate and necessary Sunday. It is certain that one day of rest in a week is absolutely a necessity. No man can nor ought (except in circumstances unavoidable) work without interruption the whole year through. But the week’s day of rest once secure, all that is over and above that, is taken from what belongs to the family and the provisions against old age.

3. Supposing that, in consequence of the progress of industry, the number of hours of rest could be increased—that, for example, the hours of the day’s work could be reduced—these hours of rest should then be devoted to the family, to the cultivation of the mind, and not to the fatal pleasures of intoxication.

The workingmen have certainly a right to ask, as far as they are worthy of it, equality of consideration and influence in society; and all our modern laws are so constituted as to insure them this equality. It rests with them, therefore, to render themselves worthy of this new equality by their morals and their education. To have their children educated; to educate themselves; to occupy their leisure with family interests, in reading, in innocent and elevating recreations (music, the theatre, gardening, if possible), it is by all such pursuits that the workingmen will reduce or entirely remove the inequality of manners and education which may still exist between them and their superiors.

4. Workingmen cannot be blamed for seeking to defend their interests and increase their comforts; in so doing they only do what all men should do. They have also the right, in order to get satisfaction, to attach to their work such conditions as they may reasonably desire: it is the law of demand and supply, common to all industries. In short, as an individual refusal to work is a means absolutely inefficacious to bring about an increase of wages, it must be admitted that the workingmen have a right to act in concert and collectively to refuse to work, and, collectively, to make their conditions; hence the right of strikes recognized to-day by the law. But this right, granted to the principle of the liberty of work, must not be turned against this principle. The workingmen who freely refuse to work should not stand in the way of those who, finding their demands ill-founded, persist in continuing to work under the existing conditions. All violence, all threats to force into the strike him who is opposed thereto, is an injustice and a tyranny. This violence is condemned by law; but as it is easily disguised, it cannot always be reached; it is, therefore, through the morals one must act upon it—through persuasion and education. The workmen must gradually adopt the morals of liberty, must respect each other. For the same reason they should respect women’s work; should not interdict to their wives and daughters the right of improving their condition by work. Unquestionably it is much to be desired that woman should become more and more centred in domestic duties, the care of her household and family. This is her principal part in the social work. But as long as the imperfect condition of the laboring classes does not permit this state of things, it may be said that the workmen work against themselves in trying to close the field of industry to women.

The tendency toward the equality of wages, as the ideal of the remuneration of work, is also to be condemned. Nothing is more contrary to the spirit of the times, which demands that every one be treated according to his work. Capacity, painstaking, personal efforts, are elements that demand to be proportionately remunerated. Let us add, that it is the duty of head masters, in the case of a good will, succumbing to physical inability, to conciliate benevolence and equity with justice; this, however, is only an exceptional case. But, as a principle, each one should be rewarded only for what he has done. Otherwise there would be an inducement to indifference and idleness.

100. Workmen and farmers.—Having considered workmen in their relations with their masters, let us consider them now on a line with farmers; for, according as one lives in the city or in the country, there is a great difference in manners, and consequently in duties. The workmen who live in the city are for that very reason more apt to acquire new ideas and general information; they have many more means of educating themselves; the very pleasures of the city afford them opportunities to cultivate their mind. Besides, living nearer to each other, they are more disposed to consider their common interests and turn them to account. Hence advantages and disadvantages. The advantages are, the superiority of intellectual culture, the greater aptitude in conceiving general ideas, a stronger interest in public affairs; in all these respects, city-life presents advantages over country-life. But hence also arise great dangers. The workingmen, quite ready to admit general ideas, but without sufficient information and political experience to control them, abandon themselves readily to utopian preachings and instigations to revolt. Further, very much preoccupied with their common interests, they are too much disposed to think only of their own class, and to form, as it were, a class apart in society and in the nation. Hence for the workmen a double duty: 1, to obtain enough information not to blindly follow all demagogues; 2, to learn to consider their interests as connected with all those of the other classes and professions.

Farmers are indebted to the country-life for certain advantages, which carry with them, at the same time, certain disadvantages. The farmer is generally more attached to social stability than the more or less shifting inhabitants of the towns; he thinks much of property; he does not like to change in his manners and ideas. He is thereby a powerful support to conservatism and the spirit of tradition, without which society could not live and last. He has, moreover, had till now the great merit of not singling himself out, of not separating his interests from those of the country in general. Thus, on these two points—opposition to utopias, preservation of social unity—the countryman serves as a counterpoise to all the opposite tendencies in the workmen. But these very qualities are, perhaps, the result of certain defects: namely, the absence of information and enlightenment. The countryman sees not very much beyond his church-steeple; material life occupies and absorbs him wholly; individual and personal interests are absolutely predominant in him. He is but little disposed to give his children any education; and he is disposed to look upon them as so many instruments of work less expensive than others. The idea of a general country, general interests surpassing private interests, is more or less wanting in him. What it is necessary to persuade the countryman of, is the usefulness of education. He should be inspired with a taste for liberty, which is a security to him and his family, as well as to all the other classes of society. The workman in becoming better informed, the farmer more informed, they will gradually blend with the middle classes, and there will then be no longer those oppositions of classes and interests so dangerous at the present day. (See Appendix.)

101. II. Military duties.—We have already considered military duties, as the duty of citizens toward the State; we have now to consider here military duties in themselves, as special duties, peculiar to a certain class of citizens, to a certain social profession.

1. It is useless to say that the peculiar virtue and special duty of the military class is courage. We have but to refer the reader to what will be said further on (ch. xiv.) touching the virtue of courage, in regard to the duties of man toward himself.

2. Patriotism is a duty of all classes and all professions; but it is particularly one with those who are commissioned to defend the country: it is, therefore, the military virtue par excellence.

3. Fidelity to the flag.—This duty is implied in the two preceding ones. The duty of courage, in fact, implies that one should not flee before the enemy: it is the crime of desertion; that one should not pass over to the enemy: it is the crime of defection or treason. This latter crime has become very rare, and has even wholly disappeared in modern France. Formerly there was seen a Condé, the great Condé fighting against the French at the head of Spanish troops; and so great a fault scarcely injured his reputation; in our days, a simple suspicion, and that an unjust one, blackened the whole life of a Marshal of France.[66]

4. Obedience and discipline. (See above, Duties toward the State, preceding chapter.)

102. III. Public functions—Administration—Deputation—Magistracy—The Bar.—The public functions are the divers acts which compose the government of a State. We even include the elective functions (deputation, general councils, town councils, etc.), because, whilst they have their origin in election, they are, nevertheless, functions, the purpose of which is the common weal, public interests. For the same reason, though the bar is a free profession, it is so connected with magistracy, it is so necessary a dependency of the judicial power, that it is thereby itself a sort of public power.

103. Functionaries.—We call functionaries, more particularly, those who take part in the administration of the country and the execution of its laws. This admitted, the principal duties of functionaries are:

1. The Knowledge of the laws they are commissioned to execute. Power is only legitimate as far as it is guaranteed by competency. Ignorance in public functions has for its results injustice, since arbitrariness takes then the place of the law; administrative disorder, since the law has precisely for its object to establish rules and maintain traditions; negligence, since ignorant of the principles by which affairs ought to be settled, conclusions are kept off as much as possible. But one must not defer obtaining administrative information till called to take a share in the administration. A general information should be acquired beforehand; for, once engaged in administrative affairs, there is then no longer time to acquire it.

To go to work is, therefore, the first duty of those who would be prepared for public functions; and this duty of work continues with the functions; for after general information has been obtained, comes the special and technical information, where there is always something new to learn.

2. The second duty of functionaries of any degree, is exactitude and assiduity. The most brilliant qualities, and the largest and amplest mind for public affairs, will render but inefficient service—at any rate, a service very inferior to what could be expected of them, if these qualities are counterbalanced and paralyzed by negligence, laziness, disorder, inexactness. One must not forget that all negligence in public affairs is a denial of justice to some one. An administrative decision, whatever it be, has always for its result to satisfy the just, or to deny the unjust, claims of some one. To retard a case through negligence, may therefore deprive some one of what he has a right to. There are, of course, necessary delays which arise from the complication of affairs, and order itself requires that everything come in time; but delays occasioned by our own fault are a wrong toward others.

3. Integrity and discretion are also among the most important duties of functionaries. The first bears especially upon what concerns finances; but there are everywhere more or less opportunities to fail in probity. For example, there is nothing more shameful than to sell one’s influence; this is what is called extortion. An administrator given to extortion is the shame and ruin of the State. As to discretion, it is again a duty which depends on the nature of things. It is especially obligatory when persons are in question, and still more so in certain careers—as, for example, in diplomacy.

4. Justice.—The strict duty of every administrator or functionary, is to have no other rule than the law; to avoid arbitrariness and favor, to have no regard to persons. This duty, it must be said, whilst it is the most necessary, is also the most difficult to exercise, and one which requires most courage and will. Public opinion, unfortunately, encourages in this respect, the weaknesses of officials; it is convinced, and spreads everywhere this conviction, that all is due to favoritism, that it is not the most deserving that succeed, but the best recommended. Everybody complains of it, and everybody helps toward it. There is unquestionably much exaggeration in these complaints. Favor is not everything in this world. It is too much the interest of administrators that they should have industrious and intelligent assistants, and that they should employ every means to choose them well; and in public affairs, the interests of the common weal always predominate in the end. It is, nevertheless, an evil that so unfavorable a prejudice should exist; and it is absolutely a duty with functionaries to uproot it, in showing it to be false.

104. Elective functions—Deputation—Elective councils.—There is a whole class of functionaries, if it be permitted to say so, who owe their origin to election, and who are the mandataries of the people, either in municipal councils, or in general councils, or in the great elective bodies of the State, the Senate and House of Representatives. (See Civil instruction.) The principle of the sovereignty of the people requires that for all its interests, communal, departmental or national, the country have a deliberative voice by means of its representatives. The duties of these mandataries are generally the same in any degree of rank.

1. Fidelity to the mandate.—The representative is the interpreter of certain opinions, of certain tendencies, and although the majority which have elected him comprise very diverse elements, there exists an average of opinions, and it is this average which the deputy represents, or should represent. He would, therefore, fail in his duty if, once elected, he passed over to his opponents, or, if wishing to do so, he did not tender his resignation. However, this fidelity to the mandate should not be carried so far as to accept what is called the imperative mandate, which is the negation of all liberty in the representative, and makes of him a simple voting machine. The representative is a representative precisely because he is empowered, on his own responsibility, to find the best means to carry out the wishes of his constituents.

2. Independence.—The deputy, senator, municipal, or departmental officer should be independent both in regard to the authorities and in regard to the electors. From the authorities he should receive no favors; he should not sell his vote in any interest whatsoever; from the electors he has to receive advice only, but no orders. Outside their office as electors, the electors are nothing but simple individuals. As such they may try to influence representatives, but they have otherwise no other title before the representatives of the electoral corps. The representative should, above all, avoid making himself the servant of the electors, for the satisfaction of their private interests and passions. It is often thought that independence only consists in resisting courts and princes; there is no less independence, and sometimes even is there more merit and courage required to resist the tyranny of the masses, and especially that of popular leaders. The deputy should, we have said, be faithful to his trust—that is to say, to the general line of politics adopted by the political party to which he belongs; but within these general limits it is for him to assume the responsibility, for it is for this very reason that he is elected a representative. Let us, moreover, add that fidelity to opinions should not degenerate into party spirit, and that there is an interest which should supersede all others, namely, the interest of the country.

3. The spirit of conciliation and the spirit of discipline.—Political liberty, more than any other political principle, requires the spirit of concession. If each, indeed, fortifies himself in his own opinions, without ever making a concession, all having the right to do the same, it is evident that no common conclusion can be arrived at. The consequence of the liberum veto,[67] pushed to excess, is paralysis of power or anarchy. Nothing is done; and in politics, when nothing is done, all becomes disorganized, dissolved. It is, therefore, necessary that whilst preserving their independence, the representatives sent forth by the electors should endeavor to render government possible; they should not overstep the limits of their trust by confounding legislative power with executive power; they should try to harmonize with the other bodies of the State—in short, they ought each to sacrifice the necessary amount of their individual opinion to bring about a common opinion. In a free government it is no more a duty to belong to the majority than to the opposition, since the opposition may, in its turn, become majority; but whether belonging to the one or to the other, the representative should subordinate his particular views to the common interest; otherwise the parties scatter, which, in the long run, can only be profitable to despotism.

105. Judicial power.—The magistracy and the bar.—The judicial power is exercised by magistrates called judges: it is they who decide about quarrels between individuals: this is what is called civil justice; they also decide about the punishments inflicted on criminals who have made attempts upon a life or property; and this is penal justice. The duties of the magistrate are easily deduced from these obligations.

1. Impartiality and neutrality.—The judge must necessarily remain neutral among all parties; he should have no regard to persons, should render equal justice to the rich and to the poor, to the high and to the low. Equality before the law, which is one of the principles of our modern institutions, should not only be a principle in the abstract; it should also be a practical principle, and be brought before the eyes of the judges as one among the first of their obligations.

2. Integrity and disinterestedness.—No less strict a duty for the judges, and which it is scarcely necessary to point out, is integrity. The magistrate should be free from all suspicion of venality. Under the old régime, as may be seen in Racine’s comedy of The Pleaders, the judges were not always free from such suspicion. Of course, it is but a comedy; but such a comedy could no longer be written nowadays; it would no longer be understood; our morals are too much improved for that. The obligation should, nevertheless, be pointed out.

3. Impartiality and integrity concern above all civil justice. The duty which more especially concerns criminal justice, is equity; namely, a moderate justice, intermediary between a dangerous lenity and an excessive severity. In truth, in most cases, at least in the graver cases, the judge has scarcely anything more to do than to apply the law. It is for the jury, a sort of free and irresponsible magistracy, to decide upon the culpability or innocence of the prisoners. It is for the jury to find a just medium between harshness and lenity. But the juryman who, above all, judges as a man, and often recoils from responsibility, should fear the excess of lenity: the judge, on the contrary, accustomed to repression, and above all preoccupied with the interests of society, should rather defend himself against excess of rigor and severity.

4. Knowledge.—What is for most men but a luxury, becomes in such or such a profession a strict duty. The knowledge of the laws, for example, is, for the magistrate, as the knowledge of the human body for the physician, a strict obligation. He who wishes to enter the magistracy, should therefore carry the study of the law as far as his youth permits it; but he should not stop his studies the moment he has entered upon his career. He has always something to learn; he should keep himself informed of the progress jurisprudence is making. It is useless to say that, independently of this general work, the special and thorough study of each case brought before him is for the judge a duty still more strict.

Alongside of the magistracy, and co-operating with it, is placed the bar, which is charged with the defense of private interests from a civil or criminal point of view.

From a civil point of view, the trial is between two citizens, each claiming his right in the case; they are what is called pleaders, and the trial itself is called a law-suit. The pleaders, not knowing the laws, need an intermediary to explain and defend their cause, bring it clearly to the comprehension of the magistrates and enforce its reasons. This is the part of the lawyers.

From a criminal point of view, the trial is not between two individuals; but between society and the criminal. Society, to defend itself, employs what is called a public prosecutor; the criminal needs a counsel. The part of a counsel belongs again to the lawyers.

The duties of lawyers are varied according as the cases are civil or criminal cases.

In civil law-suits, the absolute duty is the following: not to take up bad cases. Only it is necessary to understand well this principle. It is generally believed that a bad case is the losing one, and a good case the winning one. Thus would there in every law-suit be a lawyer who failed in his duty: the one, namely, who lost the case. This is a false idea, which very unjustly throws in many minds discredit upon the profession of the law.

Certainly there are cases where the law is so clear, jurisprudence so established, the morality so evident and imperious, that a suit having the three against itself, may be called a bad case; and the lawyer who can allow his client to believe the suit defensible, and who employs his skill and eloquence in defending it, fails in his professional duty. But this is not generally the case. In most cases, it is very difficult to tell beforehand who is right, who wrong, and precisely because it is difficult, are there judges whose proper function it is to decide. Now, in order that the judge may decide, he must be acquainted with all the details of the case; all possible reasons from both sides must be laid before him. Everybody knows that one can never of one’s own account find in favor of a solution or conclusion, all the reasons which the interested party can; now, it is just that these reasons be set forth: this is the business of the lawyers. One must not forget that in every law-suit there is a pro and a con. It is for this very reason there is a suit. The lawyers are specially here to plead for the pro and con, each from his own standpoint. One could very well understand, for example, that the court should have at its disposal functionaries commissioned to prepare the cases and plead for the contending parties: one would take up Peter’s cause, the other, Paul’s; this is just the part of the lawyers, with this difference, that the choice of the lawyer is left to the client, because it is but just that a deputy be chosen by him he is supposed to represent.

In criminal cases there are equally very delicate questions. How can a lawyer defend as innocent one who is guilty? Were it not an actual lie? And yet society does not allow that any accused, whoever he be, be left without counsel; and when none present themselves, it provides one, charging him to save the life of the accused if he can. It is the interest of society that no innocent person be condemned, and that even the guilty should not be punished beyond what he deserves; in short, it takes care that all the reasons that can be brought forth to attenuate the gravity of an offense be well weighed, and even set forth in a manner to arouse pity and sympathy. Such is the business of the lawyers.

It is evident that these considerations, which show the lawyer’s profession to be one so legitimate and exalted, should not be improperly understood. These general rules must be interpreted with delicacy of feeling and conscience.

106. IV. Science—Teaching—Medicine—The letters and arts.—Beside the social powers which make, execute and apply the laws, there is science, which instructs men, enlightens them, directs their work, and which even, setting utility aside, is yet in itself an object of disinterested research. Side by side with the sciences are the letters and arts, which pursue and express the beautiful, as science pursues the true. Finally, to science and art are added morality and religion, whose object is the good. The moralists, it is true, do not constitute a particular profession in society, or at least their part is blended with teaching in general; religion has its interpreters, who find in their dogmas and traditions the rules of their duties. It is not the business of lay morality to teach these. Let us, therefore, content ourselves with a few principles concerning the sciences and letters.

107. Science—Duties of Scientists.—Science may be cultivated in two different ways and from two different standpoints: 1, for itself; 2, for its social advantages—for the services it renders to men. There is but a small number of men who have a natural taste for pure science, and the leisure to give themselves up to the love of it; but those who choose such a life contract thereby certain duties.

The first of all is the love of truth. The only object for the scientist to pursue is truth. He must, therefore, lay aside all interests and passions antagonistic to truth; and, above all, personal interest which inclines one to prefer one theme to another, because of the advantages it may bring; this is, however, so gross a motive, that it would not be supposed to exist with a true scholar; yet are there other causes of error no less dangerous—for example, the interest of a cause—of a conviction which is dear to us; the interest of our self-love, which makes us persist in error known to be such; the spirit of system, by which one shows his peculiar forte, etc. All these passions should give way before the pure love of truth.

108. The communication of science—Teaching.—The principal duty of those who are possessed of science is to communicate it to other men. Certainly, all men are not called to be scholars; but all should in some degree have their intelligence cultivated by instruction. Hence the duty of teaching imposed upon scholars; but this duty brings with it many others.

1. The masters who teach others should themselves first be educated. Hence the duty of intellectual work, not merely to acquire knowledge, without which one cannot be a teacher, but to preserve and increase it. The teacher should, therefore, set an example to his pupil of assiduous and continuous intellectual work.

2. The teacher should love his pupils—children, if he is called upon to teach children; young men, if he is to address young men. The teacher should not only think of the science he teaches, but of the fruits his pupils are to reap from it; one can only be interested in what he loves. A teacher indifferent toward the young, will never make the necessary effort to lead and educate them.

3. The teacher, in teaching, should unite in a just measure discipline and liberty. Instruction naturally presupposes one that knows and one that does not know; and it is necessary that the one should direct the other; hence the necessity of discipline. But the purpose of instruction is to teach to do without the master—to be one’s own master in thought and conduct; hence the necessity of liberty. This liberty should grow along with the instruction, and, of course, proportionately to age; but, at any age, one should take advantage of the faculties of a child, and make it as much as possible find out by itself what is within its reach.

4. The teacher should not separate instruction from education. He should not only communicate knowledge—he should above all form men, characters, wills. Instruction is, besides, already in itself an education. Can one instruct without accustoming young minds to work, to obedience, to correct habits of thought; without putting into their hands good books; without giving them good examples? It is most true that one does not form men with pure and abstract science alone,—it is necessary to add the letters, history, morality, religion. The teacher, besides, should study the character of his pupils, should, through work and moral and physical exercises, put down presumption, correct unmanliness, combat selfishness, anticipate or restrain the passions.

109. Applied science—Industry—Medicine.—Science may find its application in two ways, either to things, or to men. Applied to things, it is called industry; applied to men, medicine. There are no special duties concerning industrial pursuits. Engineers, private or in the service of the State, employed in civil or military works, have no other duties then the general duties of functionaries, military-men, employees, etc. It is not the same with medicine. There are here obligations of a special and graver nature.

110. Duties of the physician—His knowledge.—Knowledge is an obligation in every profession; everywhere it is indispensable to know the thing one is engaged in; but, in medicine, ignorance is of a much more serious character: for it may end in manslaughter. How can any one attend the sick if he knows nothing of the human body; if he is ignorant of the symptoms of a disease? He has, it is true, the resource of doing nothing; but might not this also be manslaughter? Does he not then take the place of him who knows and might save the patient?

2. Secrecy.—The physician is above all held to secrecy. He must not make known the diseases which have been revealed to him. This is what is called medical secrecy. This obligation may in certain cases give rise to the most serious troubles of conscience; but, as a principle, it may be said that secrecy is as absolute a duty for the physician as it is for the father-confessor.

3. Courage.—The physician, we have seen, has his point d’honneur, like the military-man; he often runs equally great dangers: he must, if necessary, devote himself and risk his life. He requires also a great moral courage, when he is brought before a serious illness where, at the moment of a dangerous operation, when his hand must be as firm as his mind, he needs all the self-possession he can command.

4. Duties toward the sick: Kindness and severity.—The physician should be firm in the treatment of his patients; he should insist that his prescriptions be unconditionally followed, for his responsibility rests on this: he should rather give up the case than consent to a dangerous disobedience. At the same time he must encourage the patient, raise his strength by inspiring him with confidence, which is half the cure. He must also, without deceiving it, uphold the courage of the family. In some cases it may be necessary to tell the patient the danger he is in.

111. Writers and artists.—The morality of writers and artists is, as in all the preceding cases, determined by the object these persons devote their lives to. The object of the writer and artist is the realization of the beautiful, either in speech or writing (literature), or through color and lines (painting, sculpture), or through sound (music). In all these arts, the leading thought should be the interests of the art one is cultivating. One should as much as possible beware turning it into a trade—that is to say, into a mercenary art, having gain only for its object. Certainly one must live, and it is rare that writers, poets, artists, have at their command resources enough to do without the pecuniary fruit of pen or hand; but the attainment of the beautiful should be preferred to that of the useful: study, the imitation of the great masters, contempt for fashion, striving after all that is delicate, noble, pure, the avoiding of all that is low, frivolous, factitious: such are the principles which should regulate the morality of artist and writer. It is useless to add that they should seek their success in what elevates the soul, and not in what corrupts and degrades it. Coarseness, brutality, license, should be absolutely condemned. Better to devote one’s self to a useful and humble profession than employ one’s talent in depraving morals, and degrading souls.

The duties of the poet have been eloquently expressed by Boileau in his Art poétique.

1. It is a duty to devote one’s self to poetry and the fine arts only when one has a decided vocation for them.

“Be rather a mason, if that be your talent.”

2. The poet should listen to good advice.

“Make choice of a solid and wholesome censor.”

3. The poet and artist should, in their verses and works, be the interpreters of virtue.

“Let your soul and your morals, depicted in your works,
Never present of you but noble images.”

Love, then, virtue; nourish your soul therewith.

“The verse always savors of the baseness of the heart.”

4. They must avoid jealousies and rivalries.

“Flee, above all, flee base jealousies.”

5. They must prefer glory to gain.

“Work for glory and let no sordid gain
Ever be the object of a noble writer.”

CHAPTER IX.

DUTIES OF NATIONS AMONG THEMSELVES—INTERNATIONAL LAW.

SUMMARY.

General principles of international law.—They are the principles of the natural law applied to the relations nations sustain to each other.

Of war.—War founded on the right of self-defense. The reasons for a just war.

Defensive and offensive wars.—This division does not necessarily correspond to that of just or unjust wars.—Precautions and preparations.—Duties in times of war: to reconcile as much as possible the rights of humanity with those of patriotism.—Rights of war concerning the enemy’s property.—Conquest.—Neutrality.

International treaties: their character; their forms; their different species.—Essential conditions for public treaties: they are the same as for private contracts.

Observance of treaties.—Obligatory character of treaties: testimony of Cardinal Richelieu.

The human race being divided into divers particular societies called States or nations, those different bodies stand toward each other as individuals; they are subject to the primitive laws existing naturally among all men, and they are obliged to practice certain duties toward each other.

112. International law.—General principles.—It is this body of laws which is called international law, and which is nothing more than the natural law itself, or the moral law applied to nations.

It is by virtue of this natural law that the nations ought to consider each other equals, and independent of each other; that they should not injure each other, and should make each other, on the contrary, reparation for injury done. Hence the right of self-defense in case of attack, of repelling and restraining by force whatever violence may threaten or oppress them.

When nations practice toward each other the prescriptions of the natural law, they are in a state of peace with each other; when they are obliged to resort to force to repel injustice, they are in a state of war.

113. War.—It is evident that in all nations the ruler, whoever he be (the people, nobles, or king), ought to have the right to carry on war; for it is nothing else than the right of self-defense, and this right is the same for the nation as for individuals. War is, then, legitimate in principle; but in fact, it may be just or unjust according as it takes place for good or bad reasons, and sometimes for no reason at all.

114. Reasons of a just war.—It is not easy to say in advance and in a general manner, what may be the reasons of a just war; for they vary according to circumstances; they may be all reduced to one fundamental principle, namely, the defense of the national territory when threatened. Moreover, a war may be undertaken not only in self-defense, but to protect allies when they are unjustly attacked. As for the following reasons, more or less frequently alleged as pretexts for war, good morality cannot justify them:

1. Thus, the fear of the powerful neighbor, giving, for example, as a pretext that he erects new citadels on his lands, organizes an army, increases his troops, etc., is not a sufficiently just reason for war.

2. Utility does not give the same right as necessity: for example, arms could not legitimately be resorted to in order to gain possession of a place which might suit our convenience, and be proper to protect our frontiers.

3. The same may be said of the desire to change dwelling-place, to leave marshes, deserts, in order to settle in a more fertile country.

4. It is no less unjust to make attempt upon the rights and liberties of a people under pretext that they are less intelligent or less civilized than we are. The cause of civilization is, then, not a cause for just war so long as we have not ourselves been attacked by barbarians.

5. Nor is it just to conquer a people under pretext that our conquest may be to its advantage, bring it riches, or liberty, or morality, etc.

115. Defensive and offensive wars.—We distinguish two kinds of war, defensive and offensive. The first consists in defending the national territory, the second, in attacking the enemy’s territory.

It would be a mistake to confound defensive and offensive wars with just and unjust wars, and to believe that only the defensive wars are just, and all offensive ones unjust. This distinction has nothing to do with the causes of the war, but concerns the manner of engaging in it; sometimes one’s interest lies in allowing one’s self to be attacked, sometimes in attacking. He who has done us injustice may very well wait for us to come to him, instead of carrying arms to us; this does not prove him to be in the right. He who, on the contrary, takes up arms to obtain reparation for an injustice or an insult, does not prove thereby that he is in the wrong.

116. Precautions and preparations.—Even in the case of just causes, there are certain precautions and preparations necessary in order that the war be called a just one.

1. The subject must be of great consequence. It is criminal, for a frivolous cause, to expose men to all the evils that accompany a war, even the most fortunate.

2. There must be some probability of success: for it would be criminally rash to expose one’s self foolhardily to certain destruction and, to avoid a lesser evil, throw one’s self into a greater.

3. If we had no gentler means at our disposal.

There are two ways of settling a dispute between nations, without recourse to arms: 1, an amicable conference between the parties; 2, the intervention of a disinterested third party, or arbitrament. A third means, much rarer and now abandoned, is that of casting lots. When all the means of settling the difficulty amicably have been exhausted, there remains, before taking up arms, a final obligation, namely, to declare to the enemy the resolution of employing the last means: this is what is called a declaration of war.

117. Duties in times of war.—War having become a sad and unavoidable necessity between nations, and the use of force determined on, it behooves as much as possible to restrict it in its effects, and to reconcile the rights of humanity with those of justice. Hence, certain rules established by jurisconsults who have treated these matters, and notably Grotius, the founder of international law.

The fundamental principle of the right of war is the following: All that has a morally necessary connection with the purpose of the war is allowed, but nothing more. In fact, it would be wholly useless to have the right to do a thing, if, to accomplish it, one could not employ the necessary means thereto; but, on the other hand, it would not be just if, under the pretext of only defending one’s rights, one should believe that everything is permitted, and should resort to the last extremities.

From this general principle are deduced the following consequences, which are only its applications:

1. It is certain that it is lawful to kill the enemy’s soldiers, and, in fact, the purpose of the war being to constrain the enemy to recognize the justice of our cause, it would be vain to take up arms if one could not use them. It is then one of the cases where manslaughter may be considered innocent, and justified by the right of personal self-defense. (See above, Ch. iii., p. 50.)

2. However, the right of death upon the enemy has its limits. As a principle, it only extends to those who carry arms, and not to private individuals who do not defend themselves, arms in hand. Such can only accidentally become the victims of the war: for instance, it is impossible in a battle to protect the inhabitants of a disputed village against the balls of either party; but we should not knowingly strike dead those who do not defend themselves.

3. Strangers should be allowed to quit a country exposed to war; and if obliged to stay, they should be no further exposed than to share its inevitable perils with the other citizens.

4. Prisoners of war should be neither killed nor reduced to slavery, but simply prevented from doing mischief.

As to the means employed to deprive an enemy of his life, humanity, with just reason, interdicts the use of certain cowardly and perfidious means; as, for instance, poisoned bullets, or too cruel means of destruction, or lastly, assassination.

Thus, it would be odious to send traitors secretly charged to kill the hostile general. There is, besides, no example of such attempts in modern wars, and the human conscience would unanimously reprove them.

Thus much concerning the rights war gives over the lives of enemies. Let us consider now the duties regarding property.

1. War gives the right to destroy the property of the enemy; it is what is called the right of ravage. But ravage should not be pursued for its own sake, but only to weaken the enemy. Thus we should as much as possible spare public monuments, works of art, etc.

2. It is a right of war to acquire and appropriate things belonging to the enemy until agreement as to the moneys due, including the expenses of the war.

3. It is by virtue of these principles that, in case of naval encounters, it is justifiable to take possession of the enemy’s vessels, and not only of men-of-war, but of merchant-men and the goods they carry.

4. This right upon the enemy’s property is only the sovereign’s; he alone has a right to appropriate, in the name of the State, the property of the invaded territory, by way of restitution or guaranty; but war does not confer upon single individuals the right of taking possession of people’s property and appropriating it: this is simply pillage.

118. Conquest.—We call right of conquest the right which belongs to a State to bring under its sovereignty the whole or part of another State, by virtue of the right of war. Conquest, it will be seen, is but the right of the strongest. It is contrary to the principle of modern political societies, which requires that the State rest on the free contract of citizens, and that a people should only be subject to laws consented to.

It is not easy to have an official authentication of this consent; but it is certain that there are annexations that are voluntary, and others that are not. The latter, it must be hoped, will become less and less frequent as the idea of justice among nations develops.

119. Neutrality.—We call neutrality the situation of States which, in a case of war, side with neither the one nor the other of the belligerents, but remain at peace with the two parties. They are, therefore, obliged to practice toward them the laws of natural right impartially: if, for example, they render to one a service of humanity, they must not refuse the same service to the other. They must not furnish means of hostility to either the one or the other, or they must furnish them to both. They must lend their good offices for a settlement if they have any chance of being listened to.

These rules are very simple; but, practically, the situation of neutrals is a very delicate one, and gives rise to numerous difficulties, for the solution of which, resort must be had to the special treatises on the law of nations.

120. International treaties: their characters: their forms.—We have seen that nations have among each other, the same as individuals, obligations and rights which they derive from the natural law. But there are other obligations and other rights which are no longer based on nature, but on special contracts or usages. The international law which bears on usages is called customary right; that which comes from compacts, is called conventional right. The compacts between States are called treaties.

Treaties are equal or unequal, according as they promise equal or unequal things; personal or real, according as they relate only to certain persons, and during their lives, or as they are independent of persons and last as long as the State itself; pure and simple or conditional; in the first case the stipulations are absolute; in the second they depend on certain conditions.

There are different species of treaties according to their different objects: treaties of alliance; treaties of boundaries; treaties of cession; treaties of navigation and commerce; treaties of neutrality; treaties of peace.

121. Essential conditions of public treaties.—As a principle, the rules which govern international compacts are (with the exception of a few differences) the same as those which govern private compacts. There are three fundamental conditions: 1, the consent; 2, a licit cause; 3, the capacity of the contracting parties. (See above, 92.)

The consent should be: 1, declared; 2, free; 3, mutual.

The licit causes are those which are physically possible or morally legitimate; the illicit causes are those which are contrary to morality, as, for example, would be the establishment of slavery.

The capacity of making a compact belongs to the sovereign of the State alone; but it is necessary that this sovereign be really invested with the power. A sovereign stripped of his sovereignty has no power to make compacts, although he might have all the most legitimate rights; and, on the other hand, a usurping power can legitimately make compacts. The reason of this is, that foreign nations are not capable to decide what with another people constitutes the legitimacy or non-legitimacy of power: there is for them, therefore, only the power de facto. Yet this is but the general rule. There may be cases where a foreign government may refuse to recognize a usurper’s power.

122. Observance of treaties.—The obligation to observe treaties is based on the natural law. Whether compacts take place between States or individuals, it matters little. The States, in respect to each other, are like private individuals. Certain publicists, particularly Machiavelli, have maintained that the obligation to observe treaties only lasts as long as these accord with our interests. As much as to say that one should not make any compacts. Besides, Machiavelli’s opinion is in such disrepute that it is almost useless to discuss it. We will content ourselves with setting against it the following beautiful thought of a great politician:

Kings should be very careful in making treaties, but when once made, they must observe them religiously. I know very well that many politicians teach the contrary; but without stopping to consider what Christianity has to say regarding these maxims, I maintain that, since the loss of honor is greater than that of life, a great prince should rather risk his person, and even the loss of his State, than break his word, which he cannot break without losing his reputation, consequently, his greatest strength as a sovereign. (Cardinal de Richelieu, Testament politique, 2^e partie, ch. vi.)

CHAPTER X.