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Elements of Morals

by Paul Janet · English · Gutenberg #37016 · 770,058 chars · public domain (US)

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Title: Elements of Morals

Author: Paul Janet

Translator: Caroline Rollin Corson


        
Release date: August 9, 2011 [eBook #37016]
                Most recently updated: January 8, 2021

Language: English

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Produced by Jana Srna, Bryan Ness and the Online Distributed
Proofreading Team at https://www.pgdp.net (This file was
produced from images generously made available by The
Internet Archive.)









  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 _Elements 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.


  CHAPTER                                                           PAGE

     I.--Preliminary Notions                                           1

    II.--Division of Duties.--General Principles of Social
         Morality                                                     33

   III.--Duties of Justice.--Duties toward Human Life                 50

    IV.--Duties Concerning the Property of Others                     63

     V.--Duties toward the Liberty and toward the Honor of
         Others.--Justice, Distributive and Remunerative.--
         Equity                                                       93

    VI.--Duties of Charity and Self-Sacrifice                        111

   VII.--Duties toward the State                                     139

  VIII.--Professional Duties                                         157

    IX.--Duties of Nations among themselves.--International Law      182

     X.--Family Duties                                               190

    XI.--Duties toward One's Self.--Duties relative to the Body      223

   XII.--Duties relative to External Goods                           244

  XIII.--Duties relative to the Intellect                            260

   XIV.--Duties relative to the Will                                 281

    XV.--Religious Morality.--Religious Rights and Duties            299

   XVI.--Moral Medicine and Gymnastics                               315

         Appendix to Chapter VIII                                    341




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 resume 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 resume 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 resume, 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 Heloise_, 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 Caesar send a challenge to Cato, or
    Pompey to Caesar? "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 (_systeme
egalitaire_); 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 inegalitaire_) 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 Moliere's
celebrated scene in _The Miser_ (Act ii., Sc. i.):

    LA FLECHE: 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 FLECHE: 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 FLECHE: 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 FLECHE: That's so: it is just what I said.

    CLEANTE: Is there anything more?

    LA FLECHE: 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., Sec. 3); and Puffendorf (Droit de la
Nature et des Gens, B. iv., ch. xiii., Sec. 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 regime_), the organization of
_maitrises_ 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 publi

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