Tuesday, August 30, 2016


There are two classes of persons who may not unfairly be described as the scrupulous and the unscrupulous, if we are careful to forget what Bentham would have called the eulogistic and dyslogistic associations which have been gradually affixed to those words. There are men who, though not more pious than their neighbours, are always doubting whether they may do this or that on a Sunday— whether they can justifiably read a newspaper on that day, and if so, what newspaper, and what parts of it—whether they can safely swear that the Pope hath not, as well as that he ought not, to have, jurisdiction in these islands—and so on of an infinite number of similar things. There are, on the other hand, persons who are substantially quite as good as their scrupulous neighbours, but to whom questions of this kind never present themselves as questions. They will give signatures, make declarations, and occasionally take oaths, with hardly a feeling of uneasiness, although the form of the oath may be open to any quantity of misconstruction. Their remark upon the matter, if their attention were drawn to it, would probably be that it was only a form, and did not signify.

It is not a satisfactory explanation of this diversity of practice and character to say that some people are naturally crotchety, while others are naturally unscrupulous. There are two theories of morality on which the proceedings of these two classes may respectively be justified; and though the adoption of the one or the other is no doubt determined far more often by natural temperament than by any process of speculation, it is worth while to point out the logical basis of conduct which is decided on without reference to logic. The tacit assumption which lies at the root of all scrupulous morality is that morals form a rigid system, standing in precisely the same relation to the conscience as that which legal rules occupy in civil life, so that it is possible to say definitely of a given act, not only that it is right or wrong, but in what precise degree it falls below the standard, and so incurs guilt, or rises above it, and so possesses merit. This is the fundamental principle of casuistry; and it is to the fact that such a conception is possible, and indeed common and influential, that casuists appeal when they are charged with immorality. It is remarkable that the charge should always be brought against them, and that it should always be popular, though many persons who join in it would not be prepared to deny the principles from which the practice objected to is derived. It is closely analogous to the charge of quibbling and hairsplitting which is always brought against lawyers, aud it so happens that one of the most influential and successful books ever written furnishes a complete illustration of the topics which can be urged in favour of it. The book in question is Pascal's Provincial Letters. Their success, both in literature and politics, was so great, that the main position which they enforce derives additional interest, and an additional title to examination from the bare fact that they support it.

Though the earlier Provincial Letters (for the first eleven form the pith of the book) contain several passages which jar on the feelings of an ordinary English reader, the first impression derived from them is, that of all the refutations ever written, they are the most triumphant and conclusive. The condition to which they reduce the Jesuits can be compared to nothing but that to which Lord Macaulay reduced Mr. Robert Montgomery. With hardly any perceptible effort, but with incidental smiling ease, they are shown to be the advocates of theft, murder, calumny, gluttony, magic, and fraudulent bankruptcy. Their object, says their assailant, is to govern the world by pandering to its impatience of the severity of Christian morals, and they carry out their design so completely that they subvert in turn every Christian duty—civil, social, and religious. It is easy to imagine the transport with which such denunciations of an unpopular and justly suspected body were received when they were written, and it is impossible not to sympathize with the genius of the author; but on cooler observation, the Provincial Letters appear less conclusive than they seemed at first, and it will be found that they raise several questions of vast importance to mankind at large, which are even now imperfectly understood, and which deeply affect the daily conduct of our lives and the whole tone of our thoughts.

Between our own conception of morality and that which prevailed amongst both Jesuits and Jansenists two centuries ago, there is one broad and deep difference of principle, on which all subordinate differences depend. According to our modern view, Law and Morals are radically distinct from, and in a certain sense opposed to, each other. A person who never breaks the law at all may be much more wicked than one who breaks it often. A man who goes up to the very verge of breaking it—who stretches out his hand to steal, and draws it back only when the policeman passes—who draws the knife to stab, and is restrained from using it only by the grossest cowardice—is, in the eye of the law, on exactly the same footing as one who never felt a dishonest or murderous emotion. So, again, if a man steals from a dwelling-house to the value of £4 19s., he incurs one penalty; if the property stolen is worth only one shilling more, the penalty is greatly increased, though the wickedness remains the same. In the same way, a crime committed at five minutes past nine on a summer's evening, in broad daylight, is liable to heavier punishment than a similar or more serious offence committed at half-past eight on a winter night. Most people feel that this must be so, though they may not see the cause of it.

A feeling equally widespread suggests that in morality such strictness is neither possible nor desirable, and that legal definitions are positive hindrances when our object is to discuss the sin as distinguished from the crime. The fact that, for a particular purpose, people choose to apply the same epithet to three persons, of whom the first treacherously poisons his friend, the second unintentionally kills a constable who lawfully arrests him, and the third jumps into the Thames with her starving child in her arms, is only a source of confusion when we attempt to estimate the guilt of such conduct. Every one must feel that, though all three were equally murderers, their acts were very far indeed from being equally wicked, and even from bearing any kind of relation to each other. The notion of gauging moral guilt has been long, and happily, given up in Protestant countries. We can say that some things are wrong—that some are very wrong indeed, and some abominable; but we have no sort of measure by which we can compare the enormity of different sins, so as to say, for example, whether adultery is worse than burglary with violence, or how many thefts are collectively as bad as a murder.

This contrast between the legal and the moral estimate of a crime is sometimes supposed to arise from the defects of law, and in many cases it does so; but of these defects, if such they are, the one which has most influence in this respect is inseparable from the very notion of law. It is that laws must be definite, and all definitions exclude on the one side and include on the other many cases which are not distinguished by any more tangible difference than the trees on the British and American side of the Canadian frontier.

Thus, for example, theft is a crime which It is necessary to define, and the law defines it accordingly to consist in "taking and carrying away," under certain circumstances, the property of another. Every one has a very vivid notion of what he means by a theft, every one is apt to suppose that his notion is not only vivid but exact, and most people would probably assent without much difficulty to the legal definition of the crime. They would probably admit, for example, that a man who took hold of another person's horse by the bridle, intending to steal him, and then immediately changed his mind, and let go again, had not actually committed theft; but it would be equally clear to popular apprehension that he had committed it if he not only laid hold of the bridle, but mounted and rode off. When, however, the matter is drawn somewhat closer, it assumes a very different appearance; and to any one but a lawyer the definition appears altogether shadowy and absurd when the question of thief or no thief is made to depend on the question whether a man turned over a bale of goods in a cart or whether he only handled it . The attempt to fix the dividing point at which the locuspenitential ends and the crime begins, is exactly like the attempt to say at what precise second the dawn begins, or a man reaches his full stature. Difficult, however, and apparently ludicrous as the task is, it is one which lawyers cannot be relieved from undertaking; for the alternative is the introduction into the law of an element of arbitrary power on the part of judges and juries, which would be a far greater evil than the existence of a debateable land in which it is difficult to determine whether actions are criminal or not .

In former times, the contrast between the definite character of law and the indefinite character of morality was not understood; morality was considered to be subject to rules as precise as law itself; indeed the two subjects can hardly be said to have been separated till very recently. Law was almost universally regarded as something which had an independent existence, like the physical phenomena of gravitation, sound, and light; and morality was considered as a science hardly less complete and definite than arithmetic. One great reason for this was supplied by the practice of confession. The confessor had to allot so much penance for such an act . Of course the criminality of the act, and in many cases the question whether it was a mortal or a venial sin, depended upon an infinite number of surrounding circumstances of aggravation or extenuation. Hence a system gradually sprung up which had a surprising affinity to what is known to modern English lawyers as case law. This system was casuistry, which in Roman Catholic countries is part of the indispensable apparatus of the priesthood, and forms a system of criminal law of the most searching kind. The consequence of assuming the spiritual direction of the consciences of large numbers of people, in respect of all their feelings and actions, is that it is necessary to be provided with a scale setting forth not only whether any particular act is right or wrong, but whether it is right or wrong in a particular degree, and what amount of punishment, in the shape of penance, it has, if wrong, deserved. This, though it is but little understood, is the true point of connection between casuistry and immorality. Dens, and the other writers who have obtained so unenviable a notoriety amongst Protestants, are in reality the Archbolds or Chittys of their profession; and the immorality which may fairly be imputed to them lies in the general conception of morals on which they proceed, and not in the particular unseemly results at which they may have arrived. The respectable legal authors just named, might appear to talk most horrible iniquity if the peculiar circumstances under which they write were not borne in mind. Thus, Mr. Archbold says, "To kill a child in the mother's womb is no murder;" and again, " It is not murder to kill an alien enemy in time of war ;" "Taking away a man's life by perjury is not, it seems, in law murder." The same author teaches that it is not perjury to swear that A. beat B. with a sword, when, in fact, he beat him with a stick; nor, under certain circumstances, to take a false oath before Commissioners of Bankruptcy. He says that, if a carrier appropriates a parcel entrusted to him, it is not theft, and many other doctrines equally subversive of all social order might be extracted from his works; but no one considers them immoral, because they claim only to be legal. Excuses somewhat similar in principle might be offered for the most apparently revolting doctrines of the casuists. The real objection to them is that they applied legal rules to a subject matter which had nothing to do with them.

It follows from this that Pascal's attack upon the Jesuits must either go a great deal further than its author intended it to go, or must be considered to apply at least as strongly to the Jansenists as to their opponents. Pascal was the partisan of a system of morality of the most rigid kind; and it is singular that it should not have been more frequently observed, that in the Provincial Letters he continually lays himself open to retorts as to his own views, which it would have been very difficult to parry; and it may be added, that if, upon such a subject, any weight at all is to be attached to facts and history, it is not less difficult to justify his views of morality than to justify those which he attacked. In fact, the Jesuits' views have some advantages over his. Whatever were their faults, they seem to have felt that a system of morality which absolutely condemns the whole existing state of society, and which would, if adopted, bind in iron chains all the energies and all the affections of mankind, stands self-refuted. In their anxiety to bring human life within the pale of salvation, the Jesuits may have stretched their system further than they had any right to stretch it; but if it is once granted (and at that time it was universally admitted) that morality is capable of being reduced to a system at all, the wish that there may be some sort of proportion between that system and the actual state of human society is one to which it is impossible to refuse a considerable degree of sympathy.

The ordinary illustrations of the Jesuits' morals are matter of notoriety, and are circulated principally by those who look upon Jesuits as capita lupina whom it is a Christian duty to invest with every horrible attribute that can be imagined. A few may be mentioned in order to show not so much the extravagances into which they ran, as the legal manner in which they speculated, and in which all persons must of necessity speculate who profess to decide upon the right •and wrong of extreme cases in morality, and to administer a system of what is virtually criminal law in connection with their speculations.

Take, for example, the following: Escobar, as quoted by Pascal, says—" Promises are not obligatory unless the promisor intends to bind himself when he makes them. This intention is not common unless they are confirmed by oath or contract; so that if a person says simply, 'I will do it,' he means, 'I will do it if I do not change my mind;' for he does not mean by what he says to deprive himself of his liberty." Nothing, of course, can sound more dishonest than this: and nothing could be more dishonest than to address such an admonition to a person who wished to evade an obligation. In such a case, the proper advice would of course be to fulfill the promise at the expense of any amount of suffering or loss; but this and similar passages occur not in sermons but in law books, and in judging of their morality the question is, not whether they would make a good impression on an ordinary or on an ill-disposed hearer, but whether there is any considerable class of cases to which they apply. Such a class there undoubtedly is. Escobar's doctrine is no more than the legal maxim, Ex nudo pacto non oritur actio, applied to morals. If a man says to his servant, "Have my clothes brushed to-morrow at half-past six; I shall get up at that hour," it would be absurd to say that he was bound in conscience to get up accordingly. If a person says to another, "I will give you £100," he would surely be at liberty to rescind his promise if he saw grounds of expediency for doing so, unless the person to whom it was made had done anything by way of consideration for it. If he had said, "I will give you £100. to furnish such and such rooms, if you will take a lease of them "—and if the lease were taken, or if the promisee had ordered goods on the faith of a bare promise, and the promisor knew it—it would be highly dishonourable and wicked to retract, whatever might be the loss and inconvenience of fulfilling the engagement . It is, no doubt, easy to put cases in which this or any general rule would sanction unhandsome and even fraudulent conduct, but that is the disadvantage of all express general rules; and the general rule which Pascal's unqualified condemnation of Escobar implies, would be perfectly intolerable. It would run thus—" Promises are obligatory, although it was not the intention of the promisor to oblige himself when he made them; so that if a man says, 'I will do it,' he debars himself from changing his mind, and leaves himself no liberty respecting it." If this were the general understanding of men, and the true interpretation of human language, all intercourse would become impossible. In a vast proportion of cases, a promise in form is meant, and is understood, as a mere intimation of present intention; and all systems of law agree in considering that, to be binding, a contract must be mutual. This obligation is of course enlarged in point of morality by a great number of considerations, which cannot be brought within any inflexible rule; but if we must have an inflexible rule at all, Escobar's (though it may be expressed so loosely and imperfectly as to open a wide door to fraud) is in principle better and truer than Pascal's.

Not only did Pascal misrepresent his antagonists by overlooking the essential conditions of the problem which, in common with them, he seems to have considered as soluble—the problem of framing a system of general rules by which the degree of immorality of any given action whatever may be determined — but the extraordinary rigidity and harshness of his own system laid him under some difficulties from which they are exempt. For example, he is greatly scandalized at the following passage from Escobar:—" Is it permitted to eat and drink as much as we please (tout son saoul),without necessity and for mere pleasure? Certainly, according to Sanchez, if it does not hurt our health, for it is permitted to the natural appetite to enjoy the actions which belong to it." If this maxim is wrong, and if any systematic view of the subject can be taken, there would seem to be no possibility of stopping short of the principle that it is wrong to eat or drink as much as we like for mere pleasure and without necessity, and although it would not hurt our health to do so. A man eats half a dozen strawberries (being as much as he wants—tout son saoul) after dinner—is this a sin? If Escobar is wrong, it would seem that it is. Suppose the half-dozen become a dozen, two dozen, three dozen, or more, is it possible to draw any better line with regard to the lawfulness of the indulgence (considerations of selfishness and decency being out of the question), than that which Escobar actually does draw? A late traveller in Siberia came upon a wilderness full of wild raspberries. If he had had the requisite appetite and digestion, why might he not have eaten a cart-load of them, if he had no other way of passing his time? If the principle which Pascal appears to imply were the true one, no one would ever take a meal without sin; for even the prisoners in a gaol eat some part of their food merely because it pleases their palates. Illustrations of Pascal's views in this respect might be multiplied to almost any extent. It seems a fair inference, from one passage of his book, to suppose that he maintained that it was a duty to give in alms the whole of our superfluous property; and from another, that he considered all desire to rise in the social scale, even (as he expressly says) by legitimate modes, as being sins of ambition. In a third passage, he distinctly maintains that it is wrong to lend money at interest. Usury, he says, consists in receiving back more money than you lent. In short, his views lead logically to consequences as fatal to human society as those which he attacks.

The whole point and force of the Provincial Letters lies in the assumption that there is a code of morality which can be put into an express systematic form, according to which all actions must be regulated, and which the maxims of the Jesuits either evaded or overthrew. The conclusion deducible from this, the most eloquent and memorable of all denunciations of casuistry, is, that the system which Pascal invested with these glorious attributes was arbitrary, and in many respects false; and that, if it had been strictly applied to the purpose to which Jausenists and Jesuits alike contended that systems of morality ought to be applied, it would have speedily reduced the world to a monastery or a wilderness. If it is admitted that it is a formal duty to give to the poor all superfluities, one of three results is inevitable—either the world must go on and prosper in and by wickedness; or it must be turned into a huge waste of listless sloth and beggary; or the word "superfluity" must be defined in such a manner as to avert this consequence. It is this evasion with which Pascal so bitterly reproaches the Jesuits. Certainly it would have been better to deny than to evade the obligation, but it was a less evil to evade than it would have been to enforce it. Indeed, the evasion can hardly be called dishonest . The Jesuits said that whatever was necessary for the maintenance of a man's state and position in society, according to his rank, was not part of his superfluities. From this, says Pascal, they drew the consequence that few people had any superfluities; but the consequence and the principle stand on different grounds.

Casuistry will never be fully disposed of, and finally laid on one side, till people have learnt that morality must be to a great extent indefinite, and that moral definitions are, in reality, little more than descriptions. This view, however, like the casuistical theory, has its inconveniences. The most important of them is that it constantly tends to make the feelings or conscience of an individual the test of right or wrong for all mankind, and thus the greatest laxity or the most rigid asceticism may be held up as the only right and sensible course, according to the temper of the person who makes the assertion. When Theodore Hook signed the Thirty-nine Articles, adding, " Forty, if you like "—when importers perjured themselves by the hour under the system of custom-house oaths; and when, on the other hand, Wesley maintained that to save money was robbery of the poor—they all erred in erecting a personal instead of a general standard of right and wrong. Hook probably would not have committed forgery, nor would the importers of French wine have perjured themselves at the Old Bailey, nor would Wesley have admitted that property was a robbery; but it was merely a personal sentiment which would have prevented them from doing so; for, if they had generalized upon their own conduct, it could have been justified only by propositions which would have involved these consequences.

How these two opposite theories are to be harmonized, what is the meeting-point of law and morals, how we are to know when it is wise to be scrupulous and when not, are questions of vast interest and importance which cannot be discussed here. But it is very desirable, in the midst of the petty squabbles which arise on these topics, to remember the vast questions which underlie them. The reflection that such questions exist might go far to allay the violence of many of our popular controversialists, if they were capable of entertaining it.

Saturday Review, November 27, 1858

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