2. Certain monarchical writers shrink from the recognition of pure democracy as either the first or the last term of the series of polities. They do not recognize it as a polity at all. When there is no governing body distinct from the mass of people at large, a government must be formed, they say, by popular suffrage. Meanwhile, according to them, the sovereign power rests not with the body of electors: either it is not yet created, or it has lapsed: but as soon as the election is made, they see sovereignty breaking forth like the sun rising, in the person, single or composite, who is the object of the people's choice. This would be the correct view of the matter, if no choice were left to the electors, but they were obliged to acquiesce in some prearranged polity, as a Monarchy, or a Council of Ten, and could do nothing more than designate the Monarch or the Council. Under such a restriction the Cardinals elect the Pope. But our electors can institute any polity they see fit. They are a Constituent Assembly. They may fix upon a monarchy or a republic, two or one legislative chambers, a, wide or a narrow franchise, home rule or centralization: or they may erect a Provisional Government for five years with another appeal to the people at the end of that term. More than that. They could impose a protective duty upon corn, or endow the Roman Catholic religion, making such protection or endowment a fundamental law (s. iv., n. 8, p. 323), and withholding from the government, which they proceed to set up, the power of meddling with that law. They are then not only a Constituent but likewise a Legislative Assembly. But this power of making laws and moulding the future constitution of the State, what else is it but sovereign power, and indeed the very highest manifestation of sovereignty?
3. SO far we follow Suarez in his controversy with James I. The natural order of evolution certainly is, that the State should be conceived in pure democracy, and thence develop into other politics. But in speaking as though the natural order had always been the actual order, Suarez seems to have been betrayed by the ardour of controversy into the use of incorrect expressions. It is true in the abstract, as he says, that "no natural reason can be alleged why sovereignty should be fixed upon one person, or one set of persons, rather than upon another, short of the whole community." This is true, inasmuch as in the abstract we view men as men, in which specific character they are all equal. But in the concrete and real life, the primeval citizens who start a commonwealth are rarely alike and equal, as the founders of the American Republic at the separation from Great Britain pretty well were, but some men, or some order of men, will so much excel the rest in ability, position, or possessions, that the rest have really no choice but to acquiesce in those gifted hands holding the sovereignty.
Readings. -- Suarez, De Legibus, III., iii., 6; ib., III., iv., nn. 2, 3, 4; Defensio Fidei, III., ii., nn. 7, 8, 9; Ar., Pol., III., XIV., 12; ib., VIII., x., nn. 7, 8; The Month for July, 1886, pp. 342-345.
1. The great question about civil power is, not whence it first came in remote antiquity, but whence it is now derived and flows continually as from its source, whether from the free consent of subjects so long as that lasts, or whether it obtains independently of their consent. Can subjects overthrow the ruler, or alter the polity itself, as often as they have a mind so to do? or has the ruler a right to his position even against the will of his people? A parallel question is, can a province annexed to an empire secede when it chooses, as South Carolina and other Confederates once attempted secession from the American Union?
2. These questions raise two totally different issues, which must be first carefully distinguished and then severally answered. The first point at issue is whether subjects may dethrone their ruler, a people alter their polity, or a province secede from an empire, at discretion. The second point is, whether the same may be done under pressure of dire injustice. One little matter of phraseology must be rectified before an answer is returned to this first point. The question whether subjects may dethrone their ruler at discretion, from the terms in which it is drawn, can lead to none but a negative answer. From the fact that they are subjects, and this man, or this body of men, their ruler, their allegiance cannot be wholly discretionary. That sovereign is a mere man of straw, there is no soul and substance of sovereign power in him, who may be knocked down and carted away for rubbish, any moment his so-called subjects please. Rousseau is quite clear on this point. The true debateable form of the question is, whether the people, being themselves sovereign, can remove at will the official persons who actually administer the State; whether they can change the polity, and whether the inhabitants of a province can secede. The answer now is simple: all depends upon the polity of the particular country where the case comes for discussion. And if so it be that the constitution makes no provision one way or another, any dispute that may occur must be settled by amicable arrangement among the parties concerned: if they cannot amicably agree, they must fight. To save this last eventuality, it were well that any claim which the people in any country may have to remove princes and statesmen from office, to alter the polity, or to divide the empire, should be made matter of the clearest understanding and most express and unambiguous stipulation. Even so, such a provision must be generally viewed with disfavour by the political philosopher, seeing how it tends to the weakening and undermining of government; whereas the same considerations that make out government to be at all a boon and a necessity to human nature argue incapacity and instability in the governing power to be a deplorable evil. We must add, that where the people keep in their hands any power to alter the polity, or transfer the administration to other hands, there they bold part at least of the sovereignty; and the alteration or transference is effected by them, not as subjects, but as partial ruler.
3. The second point we raised was, whether a dethronement, or an alteration of polity, or a secession, may be brought about, not indeed at discretion for any cause, but under pressure of dire injustice. it comes to this: May the civil power be resisted when it does grievous wrong? Let us begin our reply with another question: May children strike their parents? No. Not even in self-defence? when the parent is going about to do the child some grievous bodily hurt? That is an unpleasant question, but the answer is plain. We can make no exceptions to the rule of self-defence. Self-defence in extreme cases may raise the arm of a child against its parent: in a similar extremity it may set a people in conflict with their civil ruler. Still we regard with horror the idea of striking a parent, and speak of it generally as a thing never to be done: so should we regard and speak of rebellion. We should not parade it before men's eyes as a deed to be contemplated, admired, and readily put in execution. "I confess to you, Sir," writes Burke, I never liked this continual talk of resistance and revolution, or the practice of making the extreme medicine of the constitution its daily bread."
4. The conditions under which the civil authority may be withstood in self-defence, are fairly stated in the Dublin Review for April, 1865, p. 292. We must premise, that such a course of self-defence once publicly entered upon is like a rock rolled over the brow of a steep mountain: down it rolls and rebounds from point to point, gathering momentum in the descent, till in the end the ruler, once defied, has to be dethroned, the polity subverted, the empire rent, or they who made the resistance must perish.
"Resistance is lawful: -- (1) When a government has become substantially and habitually tyrannical, and that is when it has lost sight of the common good, and pursues its own selfish objects to the manifest detriment of its subjects, especially where their religious interests are concerned. (2) When all legal and pacific means have been tried in vain to recall the ruler to a sense of his duty. (3) When there is a reasonable probability that resistance will be successful, and not entail greater evils than it seeks to remove. (4) When the judgment formed as to the badness of the government, and the prudence of resistance thereto, is not the opinion only of private persons or of a mere party: but is that of the larger and better portion of the people, so that it may morally be considered as the judgment of the community as a whole."
5. Side by side with this we will set the teaching of Leo XIII., Encyclical, Quod Apostolici. "If ever it happens that civil power is wielded by rulers recklessly and beyond all bounds, the doctrine of the Catholic Church does not allow of insurgents rising up against them by independent action (proprio marte), lest the tranquillity of order be more and more disturbed, or society receive greater injury thereby: and when things are come to such a pass that there appears no other ray or hope of preservation, the same authority teaches that a remedy must be sought in the merits of Christian patience and in earnest prayers to God."
The words we have italicized seem to point to, conditions (4) and (3) respectively, as laid down by the writer in the Dublin Review.
For an instance of a king dethroned, not proprio, marte, but with every appearance at least of an act of the whole nation, see the dethronement of Edward II., as related by Walsingham, Historia Anglicana, I., pp. 186, 187, Rolls Series.
6. "We save ourselves the more virulent and destructive diseases of revolution, sedition, and civil war, by submitting to the milder type of a change of ministry. (Times, April 7, 1880.)
7. It is not monarchical governments alone that can ever be resisted lawfully: but what is sauce for the king's goose is sauce also for the people's gander. There is no special sanctity attaching to, democracy.
It might seem that, since resistance requires to. be justified by the approval of "the larger and better portion of the people" (n. 4, condition ) no just resistance can ever be offered to the will of the democratic majority. But the said majority may be in divers ways coerced and cajoled, a mere packed majority, while the malcontents may be, if not "the larger," clearly "the better" portion of the community. (s. iv., n. 5, p. 321.)
Readings. -- St. Thos., De Regimine Principum, 69,; 2a 2ae, q. 42, art. 2; 2a 2ae, q. 69 art. 4, in corp.; Locke, Of Civil Government, nn. 200, 201, 203, 204, 208, 209, 223, 224, 225, 227, 229, 230, 232.
2. That a government may be a working government, as it should be (s. iv., n. 2, p. 319), it must not only make laws, but bear out and enforce its legislation by the sanction of punishment. "If talk and argumentation were sufficient to make men well-behaved, manifold and high should be the reward of talkers. . . . But in fact it appears that talking does very well to incite and stimulate youths of fine mind; and lighting upon a noble character and one of healthy tastes, it may dispose such a person to take up the practice of virtue: but it is wholly unable to move the multitude to goodness; for it is not their nature to obey conscience, but fear, nor to abstain from evil because it is wrong, but because of punishments. The multitude live by feeling: they pursue the pleasures that they like and the means thereto, and shun the opposite pains, but they have no idea, as they have had no taste, of what is right and fair and truly sweet. . . . The man who lives by feeling will not listen to the voice of reason, nor can he appreciate its warning. How is it possible to divert such a one from his course by argument? Speaking generally, we say that passion yields not to argument but to constraint. . . . The multitude obey on compulsion rather than on principle, and from fear of pains and penalties rather than from a sense of right. These are grounds for believing that legislators, while exhorting to virtue and putting certain courses of conduct forward as right and honourable, in the expectation that good men will obey the call, as their habits lead them, should at the same time inflict chastisements and punishments upon the crossgrained and disobedient; and as for the incurably vicious, put them beyond the pale altogether. The result will be, that the decent and conscientious citizen will listen to the voice of reason, while the worthless votary of pleasure is chastened by pain like a beast of burden. . . . Law has a coercive function, appealing to force, notwithstanding that it is a reasoned conclusion of practical wisdom and intelligence. The interference of persons is odious, when it stands out against the tide of passion, even where it is right and proper to interfere; but no odium attaches to statute law enjoining the proper course." (Aristotle, Ethics, X., ix.)
3. Aristotle seems hard upon the masses, likening them to brutes who must be governed by the whip. He may be supposed to speak from experience of the men of his time. If humanity has somewhat improved in two and twenty centuries, yet it cannot be contended that the whip is grown unnecessary and beyond the whip the sword. But we must observe a certain modus operandi of punishment which Aristotle has not noted, a more human mode than the terror of slavish fear. just punishment, felt as such, stimulates the conscience to discern and abhor the crime. Men would think little of outraging their own nature by excess, did they not know that the laws of God and man forbid such outrage. Again, they would think little even of those laws, were not the law borne out by the sanction of punishment. A law that may be broken with impunity is taken to be the toying of a legislator not in earnest. Men here are as children. A child is cautioned against lying. He reckons little of the caution: he tells a lie, and a flogging ensues. Thereupon his mind reverts to what he was told: he sees that the warning was meant in earnest. He reflects that it must have been a wicked thing, that he which his father, the object of his fond reverence, chastises so sternly. If the thing had been let pass, he would scarcely have regarded it as wicked. Next time he is more on his guard, not merely because he fears a beating, but because he understands better than before that lying is wrong. The awe in which grown-up people stand of "a red judge," is not simple fear, like that which keeps the wolf from the flock guarded by shepherds and their dogs: but they are alarmed into reflection upon the evil which he is God's minister to avenge, and they are moved to keep the law, "not only for wrath, but for conscience sake." From this we see that for punishment to be really salutary, its justice must be manifest to the culprit, or to the lookers on, at least in their cooler moments. A punishment the justice of which is not discernible, may quell for the moment, but it does not moralise, nor abidingly deter. There must be an apparent proportion between the offence and the punishment. A Draconian code, visiting petty offences with the severity due to high misdemeanours, is more of an irritant than a repressor of crime, because it goes beyond men's consciences.
4. There is in every human breast a strong sense of what the learned call lex talionis, and children tit for tat. "If a man has done to him what he has done to others, that is the straight course of justice;" so says the canon of Rhadamanthus, quoted by Aristotle. (Eth., V., v., 3.) We have argued the fundamental correctness of this rule. (Ethics, c. ix., s. iii., n . 2, p. 169.) It appears in the divine direction given to Noe: " Whoso sheddeth man's blood, his blood shall be shed." (Gen. ix. 6.) It appears in that popular sentiment, which in some parts of America displays itself in the lynching of murderers, who have unduly escaped the hands of the law; and which, under a similar paralysis of law in Corsica, broke out in blood-feuds, whereby the nearest relative of the deceased went about to slay the murderer. Such taking of justice into private bands is morally unlawful, as we have proved. (Ethics, c. ix., s. iii., n. 4, p. 171; Natural Law, c. viii., s. ii., nn. 2, 3, pp. 308, 309.) It is a violent outburst of a natural and reasonable sentiment deprived of its legitimate vent. Unquestionably then there is an apparent and commonly recognized fairness of retribution in the infliction of capital punishment for murder. Thus the first condition of appropriate punishment is satisfied, that it be manifestly proportioned to the crime.
5. Capital punishment is moreover expedient, nay, necessary to the State. The right to inflict it is one of the essential prerogatives of government, one of those prerogatives the sum of which, as we have seen, is a constant quantity everywhere. (s. iv., n. 7, p. 322). No Government can renounce it. The abolition of capital punishment by law only makes the power of inflicting it latent in the State (s. iv., n. 8, p. 323) ; it does not and cannot wholly take the power away. You ask: Is there not hope, that if humanity goes on improving as it has done, capital punishment will become wholly unnecessary? I answer that -- waiving the question of the prospect of improvement -- in a State mainly consisting of God-fearing, conscientious men, the infliction of capital punish- ment would rarely be necessary, but the power to inflict it could never be dispensed with. If men ever become so ideally virtuous, the right of the State to visit gross crime with death cannot hurt them, and it will strengthen their virtue, as all human social virtue will ever need strengthening.
6. The abiding necessity of this right of the sword is argued from the strength and frequency of the provocations to deeds of bloodshed and violence that must ever be encountered in human society. What these provocations are, how many and how strong, may be left to the reflection of the student who reads his newspaper, or even his novel. Not the least appalling thing about crime, atrocious crime especially, is the example that it gives and the imitators whom it begets. It is not merely that it sets the perpetrator himself on the downward path, so that, unless detected and punished, a man's first deed of blood is rarely his last: it draws others after him by a fatal fascination. Like the images which the Epicureans supposed all visible objects to slough off and shed into the air around them, such phantoms and images of guilt float about a great crime, enter into the mind of the spectator and of the hearer, and there, upon slight occasion, turn to actual repetitions of the original deed. The one preventive is to append to that deed a punishment, the image of which shall also enter into the mind, excite horror, and disenchant the recipient. This is not to be done by mere banishment of the criminal, nor by his perpetual incarceration. Exile and prison -- particularly in view of the humanity of a modern penitentiary -- do not sufficiently strike the imagination. One sweet hour of revenge will often appear cheap at the price of ten years' penal servitude. There is nothing goes to the heart like death. Death is the most striking of terrors; it is also the penalty that most exactly counterpoises in the scales of justice the commission of a murderous crime. All States need this dread figure of the Sword-bearer standing at the elbow of the Sovereign.
7. But is not every capital sentence a trespass upon the dominion of God, Lord of life and death? No, for that same God it is who has endowed man with a nature that needs to grow up in civil society, which civil society again needs for its maintenance the power to make laws, to sit in judgment on transgressors, and in extreme cases, as we have proved, having tried them and found them guilty, to take away even their lives, to the common terror and horror of the crime. God, who wills human nature to be, wills it to be on the terms on which alone it can be. To that end He has handed over to the civil ruler so much of His own divine power of judgment, as shall enable His human delegate to govern with assurance and effect. That means the right of the sword.
8. It may be objected that to kill any man is to treat him as a thing, not a person, as an hetero-centric, not an autocentric being, which is a proceeding essentially unnatural and wrong. (c. ii., s. i., n. 2, p. 203.) St.Thomas's answer here is peculiarly valuable: "Man by sinning withdraws from the order of reason, and thereby falls from human dignity, so far as that consists in man being naturally free and existent for his own sake [autocentric]; and falls in a manner into the state of servitude proper to beasts, according to that of the Psalm (xlviii. 15): Man when he was in honour did not understand: he hath matched himself with senseless beasts and become like unto them; and Proverbs xi. 29: The fool shall serve the wise. And, therefore, though to kill a man, while he abides in his native dignity, be a thing of itself evil, yet to kill a man who is a sinner may be good, as to kill a beast. For worse is an evil man than a beast, and more noxious, as the Philosopher says." (2a 2ae, q 64, art. 2, ad 3.)
Hence observe: -- (1) That a Utilitarian who denies free will, as many of that school do, stands at some loss whence to show cause why even an innocent man may not be done to death for reasons of State, e.g., as a sanitary precaution. (2) That the State must come to a conclusion about inward dispositions by presumption from overt acts, arguing serious moral guilt before proceeding to capital punishment. To this extent the State is remotely a judge of sin. But it does not punish sin retributively as sin, nor even medicinally. It punishes the violation of its own laws, to deter future offenders. (Ethics, c. ix., s. iii., nn. 4-6, pp. 171-174.)
Readings. -- St.Thos., 2a 2ae, q. 64, art. 2, 3; 2a 2ae, q. 108, art. 3.
2. The Lowland farmer above mentioned might be spoken of as punishing the Highland robber, chastising his insolence, and the like. This is popular phraseology, but it is not accurate. Punishment, an act of vindictive justice, is from superior to inferior. (Ethics, c. v., s. ix., n. 4, p. 104.) War, like other self-defence, is between equals. War is indeed an act of authority, of the authority of each belligerent State over its own subjects, but not of one belligerent over the other. We are not here considering the case of putting down a rebellion: rebels are not properly belligerents, and have no belligerent rights.
3. The study of Civil and Canon Law flourished in the Middle Ages, while moral science, which is the study of the Natural Law, was still in its infancy. No wonder that the mediaeval jurists occasionally formulated maxims, which can only be squared with the principles of Natural Law by an exceeding amount of interpretation, -- which are in fact much better dropped, quoted though they sometimes be by moralists of repute. One such maxim is this, that a wrongdoer becomes the subject of the injured party by reason of the offence. Admit this, and you can hardly keep clear of Locke's doctrine of the origin of civil power. (s. ii., per totum, p. 307; cf. Suarez, De Caritate, d. xiii., s. iv., nn. 5, 6.)
4. We have only to repeat about war what we said of self-defence, that all the killing that takes place in it is incidental, or indirect. The cannon that you see in Woolwich Arsenal, the powder and torpedoes, have for their end what St. Thomas (De Potentia, q. 7, art. 2, ad 10) declares to be the end and object of the soldier, "to upset the foe," to put him hors de combat. This is accomplished in such rough and ready fashion, as the business admits of; by means attended with incidental results of extremest horror. But no sooner has the bayonet thrust or the bullet laid the soldier low, and converted him into a non-combatant, than the ambulance men are forward to see that he shall not die. If indeed even in the dust he continues to be aggressive, like the wounded Arabs at Tel-el-Kebir, he must be quieted and repressed a second time. Probably he will not escape with life from a second repression: still, speaking with philosophic precision, we must say that "to quiet, not to kill him," is, or should be, the precise and formal object of the will of his slayer in war. St. Thomas indeed (2a 2ae, q. 64, art. 7, in corp.) seems to allow the soldier fighting against the enemy to mean to kill his man. But by enemy in this passage we should probably understand rebel. The soldier spoken of is the in. strument of the feudal lord bringing back to duty his rebellious vassal. In the Middle Ages, till the end of the fifteenth century, the notion of independent nations scarcely found place. In war, as all cases of self-defence, the killing is indirect. In capital punishment, on the other hand, the killing is direct: it being chosen as a deterrent means, that the offender be "hanged by the neck" till he is "dead, dead, dead." This disposes of the error, that capital punishment is an act of self-defence on the part of the State against evildoers. We may observe finally that by the right of the sword, and by that alone, not in self-defence, not in war, but by the hand of public justice raised against a guilty subject, can human life ever be taken directly.
Reading. -- St. Thos., 2a 2ae, q. 40, art. 1.
2. The intrinsic scope and aim of civil government is the good of the citizens as citizens. That, we have to show, is not any good of the. world to come; nor again the full measure of good requisite for individual well-being in this world. The good of the citizens as such is that which they enjoy in common in their social and political capacity: namely, security, wealth, liberty, commerce, the arts of life, arms, glory, empire, sanitation, and the like, all which goods, of their own nature, reach not beyond this world. True, a certain measure of moral rectitude also is maintained in common, but only "so much as is necessary for the external peace and happiness of the commonwealth," not that rectitude of the whole man which is required in view of the world to come. (Ethics, c. x., n. 4 , p. 182.) The intrinsic aim of the State, then, falls short of the next life. Neither does it cover the entire good of the individual even for this life. The good of the State, and of each citizen as a citizen, which it is the purpose of civil government to procure, is a mere grand outline, within which every man has to fill in for himself the little square of his own personal perfection and happiness. Happiness, as we have seen, lies essentially in inward acts. The conditions of these acts outward tranquillity and order, are the statesman's care: the acts themselves must be elicited by each individual from his own heart. Happiness also depends greatly on domestic life, the details of which, at least when they stop short of wife-beating, come not within the cognisance of, the civil power. It remains, as we have said, that the scope and aim of the State, within its own sphere and the compass of its own powers, is the temporal prosperity of the body politic, and the prosperity of its members as they are its members and citizens, but not absolutely as they are men. We cannot repeat too often the saying of St. Thomas: "Man is not ordained to the political commonwealth to the full extent of all that he is and has." (1a 2ae, q.21, art. 4, ad 3.)
3. From this view it appears that the end for which the State exists is indeed an important and necessary good, but it is not all in all to man, not his perfect and final happiness. To guide man to that is the office of the Christian Church in the present order of Providence. Cook and statesman must so go about the proper ends of their several offices, as not to stand in the way of the Church, compassing as she does that supreme end to which all other ends are subordinate. This limitation they are bound to observe, not as cook and statesman, but as men and Christians. A perfectly Christian State, as Christian, has a twofold duty. First, it has a Positive duty, at the request of the Church, to follow up ecclesiastical laws with corresponding civil enactments, e.g., laws against criminous clerks and excommunicates. On this spiritual ground, being beyond its jurisdiction, the State must be careful not to forestall but to second the precept of spiritual authority. It is no business of the State, as such, to punish a purely religious offence. The second duty of a Christian State, and a more urgent duty even than the former, is the negative one of making no civil enactment to the prejudice of the Church: e.g., not to subject clerics to the law of conscription. Useful as their arms might be for the defence of the country, the State must forego that utility for the sake of a higher end.
4. In the order of pure nature, which is the order of philosophy, there is of course no Church. Still there would be, as we have seen (c. i., s. i., n. 8, p. 197), erected on the same lines as the civil power, and working side by side with it, a religious power competent to prescribe and conduct divine worship. This power the State would be bound to abet and support, both positively and negatively; something in the same manner, but not to the same degree, as the Christian State is bound to abet the Church. The supreme direction of the natural religious power would conveniently be vested in the person of the Civil Ruler. Thus the Roman Emperor was also Chief Pontiff.
5. How in the mere natural, as distinguished from the Christian order, the provinces of marriage and education should be divided between the civil and the religious power, is perhaps not a very profitable enquiry. The only use of it is a polemic use in arguing with men of no Christianity. Among all, men of any religion, marriage has ever been regarded as one of those occasions of life that bring man into special relation with God, and therefore into some dependence on God's ministers. Education, again, has a religious element, to be superintended by the religious power. Education has a secular element also, the general superintendence of which cannot be denied to the State. Though children are facts of the domestic order, and the care and formation of them belongs primarily to their parents, yet if the parents neglect their charge, the State can claim the right of intervention ab abusu. It certainly is within the province of the State to prevent any parent from launching upon the world a brood of young barbarians; ready to disturb the peace of civil society. The practical issue is, who are barbarians and what is understood by peace. The Emperor Decius probably considered every Christian child an enemy of the Pax Romana. But the misapplication of a maxim does not derogate from its truth. It also belongs to the State to see that no parent behaves like a Cyclops (kuklôpikôs, Ar., Eth., X., ix., 13) in his family, ordering his children, not to their good, as a father is bound to do, but to his own tyrannical caprice. For instruction, as distinguished from education, it is the parent's duty to provide his child with so much of it as is necessary, in the state of society wherein his lot is cast, to enable the child to make his way in the world according to the condition of his father. In many walks of life one might as well be short of a finger as not know how to read and write. Where ignorance is such a disadvantage, the parent is not allowed to let his child grow up ignorant. There, if he neglects to have him taught, the State may step in with compulsory schooling. Compulsory schooling for all indiscriminately, and that up to a high standard, is quite another matter.
Readings. -- Suarez, De Legibus, III., ib., IV., nn. 3, 4: St. Thos., 1a 2ae, q. 93, art. 3, ad 3; ib., q. 96, art. 2; ib., q. 98, art. 1, in corp.; ib., q. 99, art. 3, in corp.; ib., q. 100, art. 2, in corp.
2. An illustration. It is an axiom of Natural Law, that res perit domino, that is, the owner bears the loss. If an article under sale perishes before delivery, the loss falls, apart from contracts to the contrary, upon whichever of the two parties is the owner at the time. So far nature rules. But who is the owner at any given time, and at what stage of the transaction does the dominion pass? That can only be settled by custom and the law of the land. "If I order a pipe of port from a wine-merchant abroad; at what period the property passes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse; upon its being put on shipboard at Oporto; upon the arrival of the ship in England at its destined port; or not till the wine be committed to my servants, or deposited in my cellar; all are questions which admit of no decision but what custom points out." (Paley, Mor. Phil., bk. iii., p. C. vii.)
This leads us to remark upon the much admired sentence of Tacitus, in corruptissima republica plurimae leges, that not merely the multitude of transgressions, but the very complexity of a highly developed civilization, requires to be kept in order by a vast body of positive law.
3. Incidentally we may also remark, that the law of the State does not create the right of property; otherwise, abolishing its own creation, the State could bring in Communism. (c. vii., s. i., p. 278.) But finding this right of property unprotected and undetermined, the State by its criminal law protects property against robbers, and by its civil as distinguished from criminal law, it defines numerous open questions between possessors as to manner of acquirement and conditions of tenure.
4. All civil laws bind the conscience: some by way of a categorical imperative, Do this: others by way of a disjunctive, Do this, or being caught acting otherwise, submit to the Penalty. The latter are called purely penal laws, an expression, by the way, which has no reference to the days of religious persecution. Civil law binds the conscience categorically whenever the civil ruler so intends. In the absence of express declaration, it must be presumed that he so intends whenever his law is an enforcement of the Natural Law, or a determination of the same; as when the observance is necessary to the preservation of the State, or when the ruler determines what lapse of time shall be necessary for the acquisition of property by prescription. Very frequently, the parties to a contract tacitly accept the dispositions of the civil law as forming part of their agreement; and in this indirect fashion the civil law becomes binding on the conscience. In this way an Englishman who accepts a bill of exchange tacitly binds himself to pay interest at five per cent., if the bill is not met at maturity, for such is the disposition of the English Law. It may be further observed that no prudent legislator would attach a severe penalty to what was not already wrong.
5. In Roman times it was part of the flattery of the imperial jurists to their master, to tell him that he was above the laws, legibus solutus. In the trial of Louis XVI., the Sovereign People, or they who called themselves such, dispensed with certain legal formalities on that same plea. Against the law at Athens, the generals who had fought at Arginusae were condemned by one collective sentence, the anger of the Sovereign People being too impatient to vote on them separately, as the law required. Hereupon we must observe in the first place, that the Supreme Ruler, whether one man or a multitude, can never be brought to trial in his own court for any legal offence. As all justice requires two terms: no power can do justice on itself. (Ethics, c. v., s. ix., n. i, p. 102.) This truth is embodied in the English maxim, that the king can do no wrong. Again, the Sovereign is either expressly or virtually exempted from the compass of many laws, e.g. those which concern the flying of certain flags or ensigns, and other petty matters. Thirdly, we have the principle, that no being can give a law to himself. (Ethics, c. vi. s. ii., n. 3, p. 17.) Lastly, we must observe that there is no law so fundamental but what the Supreme Power, taken in its entirety, can alter it, and by consequence dispense from it. From these considerations it follows that the Sovereign -- the complete and absolute Sovereign, be he one man or many -- lies under no legal obligation to obey any law of his own making as such. It does not follow that he is perfectly free to ignore the laws. He is bound in conscience and before God to make his government effectual; and effectual it cannot be, if the laws are despised; and despised they will be, if the Sovereign gives scandal by ignoring them in his own practice. Therefore the Sovereign, be he King, Council, or Assembly, is bound in conscience and before God, though not legally of his own jurisdiction, so far himself to stand to the observance of the law as not to render it nugatory in the eyes and practice of others.
6. Law and liberty are like the strings and meshes of a net. In the one limit of minimum of mesh, the net passes into sack-cloth, where nothing could get through. In the other limit of maximum of mesh, the net vanishes, and everything would get through. We cannot praise in the abstract either a large mesh or a small one: the right size is according to the purpose for which the net is to be used in each particular case. So neither can law nor liberty be praised, as Burke says, "on a simple view of the subject, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction." We can only praise either as it is "clothed in circumstances." Commonly we are led to praise the one by getting too much of the other. Confounded in a tangle of fussy, vexatious, perhaps malicious restrictions, men cry loudly for liberty. When people all about us are doing things by their own sweet will, we are converted to praise of regulation and discipline and the wholesome restraint of law.
Readings. -- St. Thos., 1a 2ae, q. 96, art. 5, ad 3; Suarez, De Legibus, III., xxxv.; ib., V., iv.; Ruskin, Seven Lamps of Architecture, c. vii., ## 1, 2.
2. We are dealing then not properly with opinion, but with the public expression of opinion. We are dealing with that expression as controllable by the State, not acting in deference to the invitation of any religious power, but of its own initiative and proper authority, in view of its own end, scope and aim, which is social order and public prosperity for this life. (s. x., nn. 2, 3, p. 355.)
3. That there are doctrines dangerous to social order, cannot be denied, unless we are to cease to believe in any influence of thought upon conduct. It is important to the State, that men should have the greatest possible horror of crime. (s. viii., nn. 3, 6, pp. 345, 348.) This horror is notably impaired when all idea of sin is taken away. Now the idea of sin vanishes with that of God. (Ethics, c, vi s. ii., nn. 6, 7, 13, pp. 119, 123.) Therefore to pull down the idea of God among a nation of theists, whether by the wiles of a courtly Professor at a University, or by the tub-thumping blasphemy of an itinerant lecturer, is to injure the State. The tub-thumper however is the more easily reached by the civil authority, especially when his discourses raise a tumult among the people. But where attacks upon theism have become common, and unbelief is already rampant among the masses, for the State to interfere with either "leader of thought," high or low, would be a shutting of the stable-door after the. steed was stolen. Similarly we should speak of those who subvert the received notions touching the sanctity of the marriage-tie and the law of external purity gencrally, the obligation of civil allegiance, the rights of property and of life.
4. It will be objected: "The doctrines that you wish to express as inimical to the peace of the commonwealth, possibly may be true. Did not the first heralds of Christianity trouble the peace of the Roman world?" We reply: Let the new teachers come to us as those apostolic men came, "in weakness and in fear and in much trembling," and yet withal "in the showing of the spirit and power," with an "exhortation not of uncleanness," nor upon "an occasion of covetousness," " holily and justly and without blame" (1 Cor. ii. 3, 4; 1 Thess. ii. 3, 5, 10); and we will receive them as angels of God, even to the plucking out of our own eyes, if need be, and giving to them. (Gal. iv. 15.) Any hostile reception that they may meet with at first from a misapplication of our principle, will soon be made up for by welcome and veneration. There is no principle that may not be momentarily misapplied in all good faith. But the mistake in this case will readily be rectified.
5. But, writes J. S. Mill, On Liberty, "we can never be sure that the opinion we are endeavouring to stifle is a false opinion." If we cannot, then is there no such thing as certainty upon any point of morals, politics, or religion. Assassination of tyrants, whether in public or private life, may be wickedness, or it maybe a laudable outburst of public spirit, who knows? Which of us is sure that all property is not theft? Plato's views on marriage and infanticide may be correct: the Nihilist may be your true politician; and all our religious knowledge dwindles down to the confession of Protagoras: "Concerning Gods, I find no clear evidence whether they are or are not, or what manner of beings they are." These are the sceptical tremors which this denial induces. But even scepticism has its proof, which Mill furnishes as follows: "All silencing of discussion is an assumption of infallibility." The very name infallibility has an effect upon the modern Englishman like that of Popery upon his forefathers. It shakes his nerves, obscures his judgment, and scares his seated reason to leap up from her throne. But after we have recovered from our fright, we recollect that, whereas infallibility is an all-round attribute, compassing an entire subject, certainty goes out to one particular point on the circumference; we may then be certain without being infallible. Extremely fallible as I am in geography, I am nevertheless certain that Tunis is in Africa. Silencing discussion is an assumption, not of infallibility, but of certainty. The man who never dares assume that he is certain of anything, so certain as to close his ears to all further discussion, comes nothing short of a universal sceptic.
6. We are told, free discussion Promotes discovery. Yes, free discussion in philosophical circles, free discussion among competent persons. But free discussion of a subject among the incompetent and the incapable, and the passionate and the prejudiced, is not good for the cause of truth; and if the subject be practical and momentous, it is not good for the disputants either, nor for the community. If we allow that the science and practice of morality is not advanced by free debate of ethical questions in nurseries and boarding-schools, we must also bear in mind that a vast proportion of the human family remain all their lives long, for the purpose of such discussions, as incompetent as children. The multitude cannot be philosophers. They have neither time, nor intelligence, nor love of hard thinking sufficient to arrive at the final and adequate why and wherefore of their every duty. Though capable of doing right, they are quite incapable of doing so philosophically. They do it according as they are led by custom and authority. Their inheritance is the traditionary wisdom of mankind, which they live upon as an infant on his estate, not understanding whence their support comes. It is dangerous to batter them with objections against the received moral law. You will overthrow them, not confirm them by the result of your reasonings: you will perplex their intellect, you will confound their good purpose, you will awaken their evil passions. Surely it is a more necessary point to secure that right be done somehow, than that it be philosophically done. The one is difficult enough, the other quite impossible for the mass of mankind. Therefore, adapting to our purpose the old Greek oracle: "let us not disturb the foundations of popular morality: they are better undisturbed" -- Mê kinei Kamarinan akinêtos gar ameinôn.
7. But is it not immoral to interfere with conscience, and to attempt to stifle sincere convictions? The State, we repeat, has nothing to do with conscience as such, nor with the inward convictions of any man. But if the State is sincerely convinced, that the convictions openly professed and propagated by some of its subjects are subversive of social order and public morality, whose sincere conviction is it that must carry the day in practice? It is of the essence of government that the convictions, sincere or otherwise, of the governed shall on certain practical issues be waived in the external observance in favour of the convictions of the ruling power. After all, this talk of conscience and sincere convictions is but the canting phrase of the day, according to which conscience means mere wild humour and headstrong self-will. Such teachings as those which we would have the State to suppress, e.g.: An oath is a folly: There is no law of Purity: There is no harm in doing anything that does not annoy your neighbour: are not the teachings of men sincerely convinced: they deserve no respect, consideration, or tenderness on that score. We do not say, that the teachers of these monstrosities are not convinced, but that they are not honestly and conscientiously convinced: they have blinded themselves, and become the guilty authors of their own delusion. Not all strong convictions are honestly come by or virtuously entertained.
8. Arraigned for their utterances, men protest their sincerity, as parties indicted for murder do their innocence. We can set but small store by such protestations. It is a question of evidence to come from other sources than from the accused person's own mouth. A man indeed must be held to be sincere until he is proved to be the contrary. That is the general rule. But there are what Roman lawyers call praesumptiones juris; circumstances which, if proved, will induce the court to take a certain view of a case, and give judgment accordingly, unless by further evidence that view is proved to be a false one. Now when a man proclaims some blatant and atrocious error in a matter bearing directly upon public morals -- and it is for the restraint of these errors alone that we are arguing -- there is a decided praesumptio juris, that the error in him, however doggedly he maintains it, is not a sincere, candid, and innocently formed conviction. The light of nature is not so feeble as that, among civilized men. Let the offender be admonished and given time to think: but if, for all warning to the contrary, the wilful man will have his way, and still propagate his error to the confusion of society, he must be treated like any other virtuous and well-meaning criminal -- he Must be restrained and coerced to the extent that the interests of society require.
9. At the same time it must be confessed that when an error, however flagrant and pestilential, has ceased to shock and scandalize the general body of the commonwealth: when the people listen to the doctrine without indignation, and their worst sentence upon it pronounces it merely "queer," there is little hope of legal restraints there enduring long or effecting much. Penalties for the expression of opinion are available only so far as they tally with the common feeling of the country. When public opinion ceases to bear them out, it is better not to enforce them: for that were but to provoke resentment and make martyrs. No regulations can be maintained except in a congenial atmosphere. Allowance too must be made for the danger of driving the evil to burrow underground.
10. The censorship of opinions even in a model State would vary in method according to men and times. The censorship of the Press in particular might be either by Imprimatur required before printing, or by liability to prosecution after. The Imprimatur might be either for all books, or only for a certain class. It might be either obligatory, or merely matter of counsel, to obtain it. We are not to adopt promiscuously all the praiseworthy institutions of our forefathers.
Readings. -- Cardinal Newman, Letter to Duke of Norfolk, # 5; The Month for June, 1883, pp. 200, seqq.
Previous Chapter - - - Next Chapter