Elements of Morals. Paul Janet
as if they confessed to the injustice and insanity of the proceeding?
5. The duel had its origin in superstition: in the Combat of God, in the belief, namely, that God himself would arbitrate by means of the combat, and give the victory to the innocent and strike the guilty.
6. The duel is a homicide or a suicide. It is, therefore, contrary to the duty towards others and the duty towards ourselves. Finally, the duel is contrary to the duty towards society, which forbids each to be his own judge.
J. J. Rousseau, in the Nouvelle Héloïse, has written on the duel and suicide (see further on, Chapter xi.) a letter often quoted, of which we will briefly give the principal passages.
1. One must distinguish between real honor and apparent honor:
What is there in common between the glory of killing a man and the testimony of a righteous soul? What hold can the vain opinion of others have upon true honor, the roots of which are in the depths of the heart? What! the lies of a slanderer can destroy real virtues? Do the insults of a drunkard prove that one deserves them? And can the honor of a sensible man be at the mercy of the first ruffian he meets?
2. The use of force cannot be a title to virtue:
Will you tell me that one must show courage, and that courage suffices to efface the shame and reproach of all other vices? In this case a rogue would have but to fight a duel to cease to be a rogue; the words of a liar would become true if maintained at the point of a sword; and if you were charged with having killed a man, you would go and kill a second one to prove that the charge is not true. Thus, virtue, vice, honor, infamy, truth, falsehood, all derive their being from the event of a fight; a fencing-hall becomes the seat of all justice; might makes right.
3. Antiquity, so rich in heroes and great characters, knew nothing of the duel. There may then exist societies civilized and refined where a man may defend his honor without having to resort to the duel. This is a remarkably striking argument:[19]
Did ever the valiant men of antiquity think of avenging their personal insults by single combats? Did Cæsar send a challenge to Cato, or Pompey to Cæsar? “Other times, other manners,” you’ll say, I know, but true honor does not vary; it does not depend on times or places or prejudices; it can neither pass away nor be born again; it has its eternal source in the heart of the just man and in the unalterable rule of his duties. If the most enlightened, the bravest, the most virtuous nations of the earth knew nothing of the duel, I say that it is not an institution of honor, but rather a frightful and barbarous fashion worthy of its savage origin.
4. It is not true that a man of honor incurs contempt by refusing a duel:
The righteous man whose whole life is pure, who never gave any sign of cowardice, will refuse to stain his hand by a homicide, and will be only the more honored for it. Always ready to serve his country, to protect the feeble, to fulfil the most dangerous duties, and defend in all just and honest encounters, and at the price of his blood, what he holds dear, he will reveal in all his transactions that resolute firmness which always accompanies true courage. In the security of his conscience he walks with head erect; he neither flies from nor seeks his enemy; one can easily see that he fears less to die than to do wrong, and that it is not danger he shuns, but crime.
30. War.—War is the most serious and the most solemn exception to the law which forbids homicide. Not only does it permit homicide, but it commands it. The means thereto are prepared in public; the art of practicing them is a branch of education, and it is glorious to destroy as many enemies as possible.
One cannot fail to see the sad side of war, and how contrary it is to the ideal tendencies of modern society. It is still to be hoped that there will come a time when nations will find a more rational and more humane means of conciliating their differences. But there is no indication of this good time as yet, nor even that it is near, and it is necessary to guard against a false philanthropy, which would imperil the sacred rights of patriotism.
The problem of war in itself belongs rather to the law of nations than to morality properly so called. It will be in studying later the relations of the nations between each other that we shall have to establish as a rule that the right of self-defense exists for them as well as for the individual. The only question in a moral point of view is to know whether the individual, by the sole fact of the order of society, is released from the duty imposed on him not to shed blood. Some religious sects in the early times of Christianity, others in modern times in England and in America (the Quakers), believe that the interdiction of homicide is an absolute thing; they claim the right to be exempt from military duty. The State, of course, never recognized the legitimacy of such a scruple, which would prevent all social subordination and deprive the defense of the country of all its strength. But neither does morality recognize such a right. As a part of a society which is commissioned to defend us, and which can do so only by using force, it is evident that each one should share in the acts by which it undertakes to defend us. For how can malefactors be prosecuted without employing force? The same may be asked as to enemies from without. Now, as society defends every one equally, it cannot make any exception in favor of such or such scruple. It can grant exemptions, but cannot admit that each should exempt himself by the scruples of his conscience.
Certainly it ought not to be maintained that any order given by society releases the individual conscience from all consideration. But obedience to the law is the foundation of social order, and co-operation in the public defense is a duty of absolute necessity. Of course one assumes in this view implicitly the legitimacy of war; but this question will be treated later on by itself, and in accordance with the reasons belonging to it.
CHAPTER IV.
DUTIES CONCERNING THE PROPERTY OF OTHERS.
SUMMARY.
Of property.—Its fundamental principle; work sanctioned by law. Communistic Utopia.—Inequality of wealth: it is founded on nature, but should not be aggravated by the law.—Different forms of the rights of property: loans, trusts, things lost, sales, property properly so called.
Loan.—Is it a duty to loan?—The interest of money.—The question of usury.—Duties of creditor and debtor.—Failures and bankruptcies.—The commodate or things loaned for use.
Trust.—Duties of the depositary and the deponent.
Of the possession in good faith.—The thing lost.
Sales.—Obligations of seller and buyer.
Of property in general.—Violation of property or theft.—The elements which constitute theft.—Simple thefts and qualified thefts.—Abuse of confidence, swindling.—Restitution.
Promises and contracts.—Differences between these two facts.—Strict obligation to keep one’s promises: rare exceptions (practical impossibility, illicit promises, etc.)—Different kinds of contracts.—Conditions of the contract: consent, capacity of contracting parties, a real object, a licit cause.—Rules for the formation of contracts.—Rules for the interpretation of contracts.
The immediate consequence of the right of self-preservation which each has, etc., implies the right of property.
31. Property.—What is property? What is its origin and principle? What objections has it raised? What moral and social reasons justify it, rendering its maintenance both sacred and necessary?
“Property,” says the civil code, “is the right to enjoy and dispose of things in the most absolute manner, provided no use is made of them prohibited by the laws or the rules.” (Art. 544.)
“The right of property,” says the Constitution of ’93, “is that