The man of reserve and concealment, though seldom a very amiable character, is not disrespected or despised. He seems to feel coldly towards us, and we feel as coldly towards him. He is not much praised or beloved, but he is as little hated or blamed. He very seldom, however, has occasion to repent of his caution, and is generally disposed rather to value himself upon the prudence of his reserve. Though his conduct, therefore, may have been very faulty, and sometimes even hurtful, he can very seldom be disposed to lay his case before the casuists, or to fancy that he has any occasion for their acquittal or for their approbation.
It is not always so with the man, who, from false information, from inadvertency, from precipitancy and rashness, has involuntarily deceived. Though it should be in a matter of little consequence, in telling a piece of common news, for example, if he is a real lover of truth, he is ashamed of his own carelessness, and never fails to embrace the first opportunity of making the fullest acknowledgments. If it is in a matter of some consequence, his contrition is still greater; and if any unlucky or fatal consequence has followed from his misinformation, he can scarce ever forgive himself. Though not guilty, he feels himself to be in the highest degree, what the ancients called, piacular, and is anxious and eager to make every sort of atonement in his power. Such a person might frequently be disposed to lay his case before the casuists, who have in general been very favourable to him, and though they have sometimes justly condemned him for rashness, they have universally acquitted him of the ignominy of falsehood.
But the man who had the most frequent occasion to consult them, was the man of equivocation and mental reservation, the man who seriously and deliberately meant to deceive, but who, at the same time, wished to flatter himself that he had really told the truth. With him they have dealt variously. When they approved very much of the motives of his deceit, they have sometimes acquitted him, though, to do the casuists justice, they have in general and much more frequently condemned him.
The chief subjects of the works of the casuists, therefore, were the conscientious regard that is due to the rules of justice; how far we 302 ought to respect the life and property of our neighbour; the duty of restitution; the laws of chastity and modesty, and wherein consisted what, in the language of the casuists, were called the sins of concupiscence; the rules of veracity, and the obligation of oaths, promises, and contracts of all kinds.
It may be said in general of the works of the casuists that they attempted, to no purpose, to direct by precise rules what it belongs to feeling and sentiment only to judge of. How is it possible to ascertain by rules the exact point at which, in every case, a delicate sense of justice begins to run into a frivolous and weak scrupulosity of conscience? When is it that secrecy and reserve begin to grow into dissimulation? How far may an agreeable irony be carried, and at what precise point it begins to degenerate into a detestable lie? What is the highest pitch of freedom and ease of behaviour which can be regarded as graceful and becoming, and when is it that it first begins to run into a negligent and thoughtless licentiousness? With regard to all such matters, what would hold good in any one case would scarce do so exactly in any other, and what constitutes the propriety and happiness of behaviour varies in every case with the smallest variety of situation. Books of casuistry, therefore, are generally as useless as they are commonly tiresome. They could be of little use to one who should consult them upon occasion, even supposing their decisions to be just; because, notwithstanding the multitude of cases collected in them, yet upon account of the still greater variety of possible circumstances, it is a chance, if among all those cases there be found one exactly parallel to that under consideration. One, who is really anxious to do his duty, must be very weak, if he can imagine that he has much occasion for them; and with regard to one who is negligent of it, the very style of those writings is not such as is likely to awaken him to more attention. None of them tend to animate us to what is generous and noble. None of them do tend to soften us to what is gentle and humane. Many of them, on the contrary, tend rather to teach us to chicane with our own consciences, and by their vain subtilties serve to authorise innumerable evasive refinements with regard to the most essential articles of our duty. That frivolous accuracy which they attempted to introduce into subjects which do not admit of it, almost necessarily betrayed them into those dangerous errors, and at the same time rendered their works dry and disagreeable, abounding in abstruse and metaphysical distinctions, but incapable of exciting in the heart any of those emotions which it is the principal use of books of morality to excite in the readers.
The two useful parts of moral philosophy, therefore, are Ethics and Jurisprudence: casuistry ought to be rejected altogether; and the ancient moralists appear to have judged much better, who, in treating of the same subjects, did not affect any such nice exactness, but 303 contented themselves with describing, in a general manner, what is the sentiment upon which justice, modesty, and veracity are founded, and what is the ordinary way of acting to which those great virtues would commonly prompt us.
Something indeed, not unlike the doctrine of the casuists, seems to have been attempted by several philosophers. There is something of this kind in the third book of Cicero’s Offices, where he endeavours like a casuist, to give rules for our conduct in many nice cases, in which it is difficult to determine whereabouts the point of propriety may lie. It appears too, from many passages in the same book, that several other philosophers had attempted something of the same kind before him. Neither he nor they, however, appear to have aimed at giving a complete system of this sort, but only meant to show how situations may occur, in which it is doubtful, whether the highest propriety of conduct consists in observing or in receding from what, in ordinary cases, are the rules of our duty.
Every system of positive law may be regarded as a more or less imperfect attempt towards a system of natural jurisprudence, or towards an enumeration of the particular rules of justice. As the violation of justice is what men will never submit to from one another, the public magistrate is under a necessity of employing the power of the commonwealth to enforce the practice of this virtue. Without this precaution, civil society would become a scene of bloodshed and disorder, every man revenging himself at his own hand whenever he fancied he was injured. To prevent the confusion which would attend upon every man’s doing justice to himself, the magistrate, in all governments that have acquired any considerable authority, undertakes to do justice to all, and promises to hear and to redress every complaint of injury. In all well-governed states, too, not only judges are appointed for determining the controversies of individuals, but rules are prescribed for regulating the decisions of those judges; and these rules are, in general, intended to coincide with those of natural justice. It does not, indeed, always happen that they do so in every instance. Sometimes what is called the constitution of the state, that is, the interest of the government; sometimes the interest of particular orders of men who tyrannize the government, warp the positive laws of the country from what natural justice would prescribe. In some countries, the rudeness and barbarism of the people hinder the natural sentiments of justice from arriving at that accuracy and precision which, in more civilized nations, they naturally attain to. Their laws are, like their manners, gross and rude and undistinguishing. In other countries the unfortunate constitution of their courts of judicature hinders any regular system of jurisprudence from ever establishing itself among them, though the improved manners of the people may be such as would admit of the most accurate. In no country do the decisions of positive 304 law coincide exactly, in every case, with the rules which the natural sense of justice would dictate. Systems of positive law, therefore, though they deserve the greatest authority, as the records of the sentiments of mankind in different ages and nations, yet can never be regarded as accurate systems of the rules of natural justice.
It might have been expected that the reasonings of lawyers, upon the different imperfections and improvements of the laws of different countries, should have given occasion to an inquiry into what were the natural rules of justice independent of all positive institution. It might have been expected that these reasonings should have led them to aim at establishing a system of what might properly be called natural jurisprudence, or a theory of the general principles which ought to run through and be the foundation of the laws of all nations. But though the reasonings of lawyers did produce something of this kind, and though no man has treated systematically of the laws of any particular country, without intermixing in his work many observations of this sort; it was very late in the world before any such general system was thought of, or before the philosophy of law was treated of by itself, and without regard to the particular institutions of any one nation. In none of the ancient moralists, do we find any attempt towards a particular enumeration of the rules of justice. Cicero in his Offices, and Aristotle in his Ethics, treat of justice in the same general manner in which they treat of all the other virtues. In the laws of Cicero and Plato, where we might naturally have expected some attempts towards an enumeration of those rules of natural equity, which ought to be enforced by the positive laws of every country, there is, however, nothing of this kind. Their laws are laws of police, not of justice. Grotius seems to have been the first who attempted to give the world any thing like a system of those principles which ought to run through, and be the foundation of the laws of all nations; and his treatise of the laws of war and peace, with all its imperfections, is perhaps at this day the most complete work that has yet been given upon this subject. I shall in another discourse endeavour to give an account of the general principles of law and government, and of the different revolutions they have undergone in the different ages and periods of society, not only in what concerns justice, but in what concerns police, revenue, and arms, and whatever else is the object of law. I shall not, therefore, at present, enter into any further detail concerning the history of jurisprudence.