Moral Philosophy

Chapter V. Of Rights.

Section I. Of the definition and division of Rights.

1. A right is that in virtue of which a person calls anything his own. More elaborately, a right is a moral power residing in a Person, in virtue whereof he refers to himself as well his own actions as also other things, which stand referred to him in preference to other persons. A right is a moral power, as distinguished from physical force or ability. It resides in a person, a being whom we call autocentric, as distinguished from a thing, which is heterocentric. (c. ii., s. i., n. 2, p. 203.) A person is his own, a thing is another's. Every intellectual nature is a person except the Humanity of Christ, an exception which does not concern us here. To the Creator all created personalities are as things, but that again is not our concern in this place, where we treat of the relations between man and man. It will have to be noted hereafter with great emphasis, that the individual man is a person, not a thing and chattel, in relation to the State, and consequently has rights against the State.

2. Every intellectual being has the attribute of reflex consciousness. It may turn its regard in upon itself, and call itself me, and its powers and activities mine. It certainly has the physical ability of acting for self, and using its powers consciously for its own ends. Does this physical ability represent also a moral power? Is the agent justified in exercising it? and are his fellows under a moral obligation of justice to leave him free to exercise it? (Ethics, c. vi., s. i., nn. 5. 6, p. iii.) We have seen that morality consists in acting up to one's own intellectual or rational nature. Since then the calling oneself me, and one's power mine, and the using those powers for purposes which one's reason approves, is the distinguishing feature of an intellectual, or rational, and personal being, that being is morally warranted so to act. He calls himself his own, and his powers his own, and they are his own by the very fact of his calling them so by a natural act. And, as justice is to give to another his own, others are bound in justice to leave him free to dispose of himself and his powers, at least within certain limits. But this would be for man a barren freedom, were he not empowered to lay hold of and make his own some things, nay many things, outside of himself, for man is not self-sufficient, but has many natural necessities, and many psychical cravings to boot. Therefore man's right of preference extends, not only to his own actions, but also to external things, which he may make his own to act upon.

3. Rights are either connatural or acquired. Connatural rights spring from the very being of a man, as he is a person. Such are the rights to life, to honour, to personal liberty -- that is, freedom to go where you will -- to civil liberty -- that is, not being a slave -- also the rights to marry and to acquire property. Acquired rights spring from some deed of man, annexing something to his personality. Such are the rights to property, duly entered upon, to reputation, to the political franchise, and all rights that come by contract. Acquired rights may descend to heirs.

4. Rights again are alienable and inalienable, which division does not coincide with the preceding. Those rights are inalienable, shorn of which a man cannot work out his last end. Some rights are thus permanently and universally inalienable, as the right to life: others are so occasionally and for particular persons.

5. The correlative of right is duty: so that, wherever one man has a right, his neighbours have a duty in justice to leave him free to exercise the same. But the converse is not true, that wherever one Man has a duty towards another, that other has a right to its performance, for there are duties of charity, which do not impart a corresponding right, but only a claim. Duties that correspond to rights are called by English moralists perfect duties. Duties answering to claims only they call imperfect.

6. Of duties, some are positive, which bind always, not for always, as the duty of adoring God. We are always bound to adore, we are not bound to be always adoring. Other duties are negative, and bind always, for always, as the duties of sobriety and chastity. The former class of duties we may more easily be excused from, because they can be deferred, and it is at times morally impossible to take them up. But negative duty, as Mr. Gladstone has finely said, "rises with us in the morning, and goes to rest with us at night: it is the shadow that follows us wheresoever we go, and only leaves us when we leave the light of life."

7. Only a person has rights, as appears by the definition of a right. Again, only persons have duties, for they only have free will. No one has duties without rights, and no man has rights without duties. Infants and idiots, in whom the use of reason is impeded, having notwithstanding rights, are said to have duties also radically. Hence it is wrong to make an idiot commit what is in him a material breach of some negative duty, as of temperance. Positive duties he is excused from.

8. Some have taught that all human rights are consequences of duties; a man having first a duty to perform, and then a right to the means necessary to its performance. But this doctrine appears more pious than probable. For, first, the type and example of sovereign right, God, has no duties. (Ethics, c. vi., s. ii., n. 4, p. 130.) Then again, a man may have a right conjoined with a duty -- not of justice, of course, but of some other virtue, as of religion -- not to use that right. But if rights were consequent upon duties, the right would cease in such a case; and to pretend to exercise it would be a sin against justice, which it is not.

Section II. -- Of the so-called Rights of Animals.

1. Brute beasts, not having understanding and therefore not being persons, cannot have any rights. The conclusion is clear. They are not autocentric. They are of the number of things, which are another's: they are chattels, or cattle. We have no duties to them, -- not of justice, as is shown; not of religion, unless we are to worship them, like the Egyptians of old; not of fidelity, for they are incapable of accepting a promise. The only question can be of charity. Have we duties of charity to the lower animals? Charity is an extension of the love of ourselves to beings like ourselves, in view of our common nature and our common destiny to happiness in God. (c. iv., nn. 1, 2, p. 239.) It is not for the present treatise to prove, but to assume, that our nature is not common to brute beasts but immeasurably above theirs, higher indeed above them than we are below the angels. Man alone speaks, man alone hopes to Contemplate for ever, if not -- in the natural order -- the Face of his Father in Heaven, at least the reflected brightness of that Divine Face. (Ethics, c. ii., s. iv., nn. 3, 4.) We have then no duties of charity, nor duties of any kind, to the lower animals, as neither to stocks and stones.

2. Still we have duties about stones, not to fling them through our neighbour's windows; and we have duties about brute beasts. We must not harm them, when they are our neighbour's property. We must not break out into paroxysms of rage and impatience in dealing with them. It is a miserable way of showing off human pre-eminence, to torture poor brutes in malevolent glee at their pain and helplessness. Such wanton cruelty is especially deplorable, because it disposes the perpetrators to be cruel also to men. As St. Thomas says (1a 2ae, q. 102, art. 6, ad 8):

"Because the passion of pity arises from the afflictions of others, and it happens even to brute animals to feel pain, the affection of pity may arise in man even about the afflictions of animals. Obviously, whoever is practised in the affection of pity towards animals, is thereby more disposed to the affection of pity towards men: whence it is said in Proverbs xii. 10: 'The just regardeth the lives of his beasts, but the bowels of the wicked are cruel.' And therefore the Lord, seeing the Jewish people to be cruel, that He might reclaim them to pity, wished to train them to pity even towards brute beasts, forbidding certain things to be done to animals which seem to touch upon cruelty. And therefore He forbade them to seethe the kid in the mother's milk (Deut. xiv. 21), or to muzzle the treading ox (Dent. xxv. 4), or to kill the old bird with the young." (Deut. xxii. 6, 7.)

3. It is wanton cruelty to vex and annoy a brute beast for sport. This is unworthy of man, and disposes him to inhumanity towards his own species. Yet the converse is not to be relied on: there have been cruel men who have made pets of the brute creation. But there is no shadow of evil resting on the practice of causing pain to brutes in sport, where the pain is not the sport itself, but an incidental concomitant of it. Much more in all that conduces to the sustenance of man may we give pain to brutes, as also in the pursuit of science. Nor are we bound to any anxious care to make this pain as little as may be. Brutes are as things in our regard: so far as they are useful to us, they exist for us, not for themselves; and we do right in using them unsparingly for our need and convenience, though not for our wantonness. If then any special case of pain to a br ute creature be a fact of considerable value for observation in biological science or the medical art, no reasoned considerations of morality can stand in the way of man making the experiment, yet so that even in the quest of science he be mindful of mercy.

4. Altogether it will be found that a sedulous observance of the rights and claims of other men, a mastery over one's own passions, and a reverence for the Creator, give the best assurance of a wise and humane treatment of the lower animals. But to preach kindness to brutes as a primary obligation, and capital point of amendment in the conversion of a sinner, is to treat the symptom and leave unchecked the inward malady.

Reading. -- St. Thos., 2a 2ae, q. 25, art. 3.

Section III. -- Of the right to Honour and Reputation.

1. Honour is the attestation of another's excellence. Reputation is the opinion of many touching another's life and conduct. Honour is paid to a man to his face, whereas his reputation is bruited behind his back. Honour is taken away by insult, reputation by detraction. If the detraction involve a falsehood, it is called calumny or slander. The name backbiting, given to detraction, points to the absence of the person spoken of. But no one meets with an insult except where he is present, either in person or by his representative.

2. Both honour and reputation are goods that a man can call his own, and has a right to, but on different titles. Honour, some honour at least, appertains to a man simply for his being a man: reputation is won by deeds. Honour is primarily a connatural right: reputation is acquired. An entire stranger has no reputation, but a certain honour is his due to start with.

3. As there is a right to honour and a right to reputation, so insult and detraction are sins, not against charity, but against commutative justice, calling for restitution. (Ethics, c. v., s. ix., n. 6, p. 106.) We must tender an apology for an insult, and labour to restore the good name that our detracting tongue has taken away.

4. Calumny is a double sin, one sin against truth, and another sin, the heavier of the two, against justice. If the blackening tale be true, the first sin is absent, but the second is there. The truth of the story is no justification for our publishing it. Though it is wrong to lie, it is not always right to blurt out the truth, especially when we are not asked for it. There are unprofitable disclosures, unseasonable, harmful, and wrongful. But, it will be said, does not a man forego his right to reputation by doing the evil that belies his fair fame ? No, his right remains, unless the evil that he does, either of its own proper working or by the scandal that it gives, be subversive of social order. If he has committed a crime against society, he is to be denounced to the authorities who have charge of society: they will judge him, and, finding him guilty, they will punish him and brand him with infamy. If, again, he does evil, though not immediately against society, yet in the face of society and before the sun; he shocks the public conscience and rends his own reputation. But the evil private and proper to himself that any man works in secret, is not society's care, nor affects his social standing, nor brings any rightful diminution to his good name. If all our secret and personal offences are liable to be made public by any observer, which of us shall abide it? Our character is our public character; and that is not forfeit except for some manner of public sin.

5. Suppose a veteran, long retired, has made a name for military prowess by boasting of battles wherein he never came into danger, is the one old comrade who remembers him for a skulker and a runaway, justified in showing him up? No, for that reputation, however mendaciously got together, is still truly a good possession: it is not a fruit of injustice, therefore it is no matter of restitution: nor is it any instrument of injustice, which the holder is bound to drop: thus, as he is not bound to forego it, now that he has got it, so his neighbour may not rightfully take it from him.

Reading. -- St.Thos., 2a 2ae, q. 73, art. 1.

Section IV. -- Of Contracts.

1. A contract is a bargain productive of an obligation of commutative justice in each of the contracting parties. A bargain is a consent of two wills to the same object. Thus a promise, before it is accepted, is not a bargain. But even after acceptance a promise is not a contract, for the promiser may not choose to bind himself in justice, but only in good faith, while the promisee is under no obligation whatever.

2. There are such things as implicit contract, attached to the bearing of certain offices, whereby a man becomes his brother's keeper. The liability contracted is limited by the nature of the office: thus a physician is officially bound in justice as to his patient's pulse, but not officially as to his purse. Where there is no explicit contract, the duties which the subjects of a person's official care have towards him are not duties of commutative justice. Thus these implicit contracts are not strictly contracts, as failing to carry a full reciprocity.

3. Contracts are either consensual or real, according as they are either complete by the mere consent of the parties, or further require that something should change hands and pass from one to the other. What contracts are consensual, and what real, depends chiefly on positive law. No natural law can tell whether buying and selling, for instance, be a consensual or a real contract. The interest of this particular case is when the goods are lost in transmission: then whichever of the two parties at the time be determined to be the owner, apart from culpable negligence or contrary agreement of the sender, he bears the loss, on the principle, res perit domino.

4. Contracts are otherwise divided as onerous and gratuitous. In an onerous contract either party renders some advantage in return for the advantage that he receives, as when Titius hires the horse of Caius. In a gratuitous contract all the advantage is on one side, as when Titius does not hire but borrows a horse. The Roman lawyers further distinguish contracts, somewhat humorously, into contracts with names and contracts without names, or nominate and innominate, as anatomists name a certain bone the innominate bone, and a certain artery the innominate artery. Innominate contracts are reckoned four: I give on the terms of your giving otherwise than as buying and selling, -- to some forms of this there are English names, as exchange and barter: I do on the terms of your doing: I do on the terms of your giving: I give on the terms of your doing.

Readings. -- De Lugo, De Just et Jure, 22, nn. 1, 2, 5, 6, 9, 16, 17. For buying and selling and the frauds incident thereto, Paley, Moral Philosophy, bk. iii., p. 1 c. vii.

Section V. -- Of Usury.

1. We must distinguish use value and market value. The use value of an article of property is the esteem which the owner has of it from every other point of view except as a thing to sell. Thus a man values his overcoat on a journey as a protection from cold and rain. A book is valued that was held in the dying hand of a parent. This is use value. The market value of an article is the estimate of society, fixing the rate of exchange between that and other articles, so much of one for so much of another, e.g., between mahogany and cedar wood, considered as things to sell.

2. Answering to this twofold value is a twofold exchange, private exchange, which regards use value and commercial exchange, which is founded on market value. If I part with my watch to a sailor for carrying me across an arm of the sea where there is no public ferry, that is private exchange. If I pay the ordinary fare where there is a public ferry, that is commercial exchange.

3. Private exchange begins in the need of at least one of the contracting parties. It is an act of charity in the other party to accommodate him by offering the thing needed. If the offer is made otherwise than as a gift, and is accepted, he who avails himself of it is bound in justice to see that the afforder of the accommodation is compensated for the loss that he suffers in affording it. Thus far the recipient is bound in justice, and no further in that virtue. However wholesome or profitable the thing be to him that gets it, the supplier cannot charge for that. but only for the loss that he himself suffers, or the gain that he foregoes, in handing the thing over, or the pains that he takes, or the hardship that he endures, or the risk that he runs, in rendering the service desired. If all the labour to be undergone, or damage incurred, or risk encountered, by the sailor who goes about by private bargain to be my ferryman, is fairly met by the remuneration of a thirty-shilling watch, he has no right to stipulate for any more, not though the passage that be gives me sets me on the way to a throne. The peculiar advantage that I have in prospect does not come out of him, but out of myself. He must not pretend to sell what is not his, what attaches, not to him, but to me. He can only sell his own loss, risk, pains and labour. At the same time, if I have any gentlemanly or generous feeling in me, I shall be forward to bestow extra remuneration on one who has rendered me so timely a service: but this is matter of my gratitude, not of his right and claim in justice. Gratitude must not be put into the bill. And this much of private exchange.

4. Commercial exchange is conducted according to market value. Apart from dire necessity -- and one in dire necessity is not fit to enter into commercial exchanges -- the rule is, that a seller may always ask the market value of his article, however much that may be above what the thing cost him, or the use value which it bears to him. Thus, if one finds in his garden a rare Roman coin -- so far as his tastes go, a paltry bit of metal -- he may sell it for whatever price numismatists will offer: whereas, if there were no market for coins, but only one individual who doted on such things, the finder could make no profit out of that individual, the coin having neither market value with the community, nor use value in the eyes of the finder.

5. As there is a twofold value, and a twofold exchange, so a twofold character is impressed on the great instrument of exchange, money. Money, in one character, is an instrument of private exchange: in its other character, to mercantile men more familiar, it is an instrument of commercial exchange. In the one, it represents use value to the particular owner, more or less to him than it would be to some other owner: in the other, it represents market value, the same to all at the same time.

6. Leo X. in the Fifth Council of Lateran, 1515, ruled that -- "usury is properly interpreted to be the attempt to draw profit and increment, without labour, without cost, and without risk, out of the use of a thing that does not fructify." In 1745 Benedict XIV. wrote in the same sense to the Bishops of Italy: "That kind of sin which is called usury, and which has its proper seat and place in the contract of mutuum, consists in turning that contract, which of its own nature requires the amount returned exactly to balance the amount received, into a ground for demanding a return in excess of the amount received." Mutuum, be it observed, is a loan for a definite period, of some article, the use of which lies in its consumption, as matches, fuel, food, and, in one respect, money. We shall prove this to be properly a gratuitous contract. (s. iv., n. 4, p. 254.)

7. Usury then is no mere taking of exorbitant interest. There is no question of more or less, but it is usury to take any interest at all upon the loan of a piece of property, which

8. When all these four conditions are fulfilled, and yet interest is exacted upon a loan, such interest is usurious and unjust. And why? Simply by reason of the principle that we laid down before, speaking of private exchange (n. 3), a principle that is thus stated by St. Thomas:

"If one party is much benefited by the commodity which he receives of the other, while the other, the seller, is not a loser by going without the article, no extra price must be put on. The reason is, because the benefit that accrues to one party is not from the seller, but from the condition of the buyer. Now no one ought to sell to another that which is not his, though he may sell the loss that he suffers. He, however, who is much benefited by the commodity he receives of another, may spontaneously bestow some extra recompense on the seller: that is the part of one who has the feelings of a gentleman." (2a 2ae, q. 77, art. 1, in corp.)

9. St. Thomas speaks of sales, but the principle applies equally to loans. It is upon loans of money that interest is commonly taken, and of money-loans we speak. Clearly, according to the doctrine stated, the lender can claim the compensation of interest, if he has to pinch himself in order to lend, or lends at a notable risk. He is selling his own loss, or risk, which is loss once removed. But supposing he has other monies in hand, and the security is good, and he has enough still left for all domestic needs, and for all luxuries that he cares to indulge in -- moreover he has nothing absolutely to do with his money, in the event of his not lending it, but to hoard it up in his strong box, and wait long months till he has occasion to use it: in that case, if he lends it he will be no worse off on the day that he gets it back, no worse off in the time while it is away, than if it had never left his coffers. Such is the contract of mutuum, shorn of all accidental attendant circumstances, a contract, which "of its own nature," as Benedict XIV. says, that is, apart from circumstances, "requires the amount returned exactly to balance the amount received." Not though the borrower has profited of the loan to gain kingdoms, is any further return in strict justice to be exacted of him on that precise account.

10. But now an altered case. Suppose land is purchaseable, and it is proposed to stock a farm with cattle, and rear them, and convey them to a large town where there is a brisk demand for meat -- the supposition is not always verified, nor any supposition like it, but suppose it verified in some one case -- then, though the lender has other monies in hand for the needs of his household, and the security is good, yet the money is not so lent as, that he foregoes no occasion of lawful gain by lending it. He foregoes the purchase of land and farm stock, or at least delays it, and delay is loss where profit is perennial. On that score of gain forfeited he may exact interest on the money that he lends, which interest will be no usury. The title of interest here given is recognized by divines as lucrum cessans, "interruption of profit." The interest is taken, so far as it goes upon a lawful title, not upon the fact of the borrower's profit -- that is irrelevant -- but upon the profit that the lender might have made, had he kept the money in hand.

11. This latter case (n. 10) represents that putting of money out to interest, which is an essential feature of modern commerce. The former case (n. 9) is the aspect that money-lending commonly bore in the Middle Ages. In those days land was hard to buy, agriculture backward, roads bad, seas unnavigable, carrying-trade precarious, messages slow, raids and marauders frequent, population sparse, commerce confined to a few centres, mines unworked, manufactures mostly domestic, capital yet unformed. Men kept their money in their cellars, or deposited it for safety in religious houses: whence the stories of treasure-trove belonging to those days. They took out the coin as they wanted it to spend on housekeeping, or on war, or feasting. It was very hard, next to impossible, to lay out money so as to make more money by it. Money was in those days really barren -- a resource for housekeeping, not for trade -- a medium of private, not of commercial exchange -- a representative of use value, not of market value. Apart from risk of non-repayment, to take interest for money that you had no use for but to hoard, was getting "a breed of barren metal:" it was taking up what you laid not down: it was making profit out of your neighbour's need, or your neighbour's gain, where there was no corresponding need unsatisfied, or gain forfeited, on your part: it was that "attempt to draw profit and increment, without labour, without cost, and without risk, out of the use of a thing that does not fructify," which the Fifth Lateran Council defines to be usury.

12. In our time, thanks to steam and electricity, the increase of population, and continued peace, the whole world has become one trading community, representing now more, now less abundant opportunities for the investment of money, and the conversion of it into other lucrative commodities. Money consequently with us is not a mere medium of private exchange for the purposes of housekeeping: it is a medium of commercial exchange. It represents, not use value, but market value. To be a thousand pounds out of pocket for a year means an opportunity of gain irretrievably lost, gain that could have been made otherwise than by money-lending. Where this is so, and so far as it is so, the lender may without violation of justice point to lucrum cessans, gain lost, and arrange beforehand with the borrower for being reimbursed with interest.

13. The transition from mediaeval housekeeping, with its use values and private exchange, to the mercantile society of modern times, was not made in a day, nor went on everywhere at the same rate. It was a growth of ages. In great cities commerce rapidly ripened, and was well on towards maturity five centuries ago. Then the conditions that render interest lawful, and mark it off from usury, readily came to obtain. But those centres were isolated. Like the centres of ossification, which appear here and there in cartilage when it is being converted into bone, they were separated one from another by large tracts remaining in the primitive condition. Here you might have a great city, Hamburg or Genoa, an early type of commercial enterprise, and, fifty miles inland, society was in its infancy, and the great city was as part of another world. Hence the same transaction, as described by the letter of the law, might mean lawful interest in the city, and usury out in the country-the two were so disconnected. In such a situation the legislator has to choose between forbidding interest here and allowing usury there; between restraining speculation and licensing oppression. The mediaeval legislator chose the former alternative. Church and State together enacted a number of laws to restrain the taking of interest, laws that, like the clothes of infancy, are not to be scorned as absurd restrictions, merely because they are inapplicable now, and would not fit the modern growth of nations. At this day the State has repealed those laws, and the Church has officially signified that she no longer insists on them. Still she maintains dogmatically that there is such a sin as usury, and what it is, as defined in the Fifth Council of Lateran.

Readings. -- St.Thos., 1a 2ae, q. 77, art. 1; Ar., Pol., I., ix.; St. Thos., 2a 2ae, q. 77, art. 4; The Month for September, 1886; The Nineteenth Century for September, 1877, pp. 181, seq.

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