Essays, or discourses, vol. 2 (of 4)

by Benito Jerónimo Feijoo

LII. It is true, that where the law is obscure, we have authority to interpret and construe it in a benign sense; but in this construction, we should not lose sight of the exigence of the public safety, nor the dictates of natural equity: and acting in this manner, is not clemency but justice. We may also in virtue of the principle which is called Epeikeyan, that allows of a wise and moderate interpretation of the law, lessen, or even in many cases omit, the penalties which the law decrees. This also is not lenity but justice, because upon such occasions, we are rather obliged to conform to the intention of the legislature, than the letter of the law; and such cases frequently occur in small offences, because, upon an examination of the nature of these things, it often appears to the eye of Prudence, that greater inconveniences would attend the punishing, than the tolerating them. Following the letter of the penal law, without admitting any exceptions, even in those cases where the legislature could not intend, nor prudence suppose it was meant to bind, is what is called justice in extreme, or summum jus, which with great reason is termed extreme injustice; therefore, acting contrary to the letter of the law in these instances, is likewise not clemency, but justice. Aristotle, who very well understood the nature of things appertaining to Ethics, judges the Epiekeyan, to be a principle, or part of justice. From all that has been said, it may be inferred, that requesting favour or compassion of a Judge, or supposing him capable of shewing any in the discharge of his duty, is an absurdity, and calling things by improper names; for if he acts according to the law, reasonably and rightly understood, he does justice; if contrary to it, he does injustice. In what are called casos omissos, and when the law is obscure, there are general rules for interpreting it and supplying the defects, which interpretations have the force of laws; so that there is no middle path between justice and injustice, for a Judge to walk in; because there are no means, by which he can act conformable to law, and contrary to law. God keep you.

ON THE IMPUNITY OF LYING.

SECT. I.

I. Two common errors present themselves to me with respect to the subject-matter of this discourse, the one theoretical, the other practical. The theoretical is derived from lying among men being reputed as infamous, or as a vice nearly bordering upon infamy. Let us admit, for argument’s sake, the divisions the theologians make of a lie, into officious, jocose, and pernicious. Let us admit also, that a pernicious lie is reputed in the common opinion as it deserves to be reputed, and that it is treated with all possible abhorrence, so that those who are noted for telling lies to the prejudice of their neighbours, are generally considered as the pests of society; but notwithstanding all this, my remarks will be principally confined to officious and jocose lies; that is, to such as are not intended to injure a third person, but are only told to entertain, or because they may be of some utility to a man’s self, or to some other person. I must also premise, that I mean to treat this point more as a politician, than as a moral theologian. The theologians estimate officious, and jocose lies, as venal sins; nor should I or any one else in a moral light, represent them blacker. But if viewed in a political light, my sentiment is, that the common opinion is excessively favourable and indulgent to this species of vice.

II. And what is the reason of this excessive indulgence? Why the reason is, because this sort of lie is not considered as an affront offered to any man. The being noted for an officious or jocose liar, does not take from any man the honour, which in other respects is thought due to him. A gentleman, let him tell as many of these sort of lies as he will, is still looked upon as a gentleman; a nobleman also, notwithstanding his being remarked for this vice, is considered as a nobleman, and a prince as a prince. But this appears to me repugnant to all reason. Lying is infamous, bad, and vile; and a liar is unworthy of human society; he is an impostor, who traiterously avails himself of the good faith of other men, in order to deceive them. The most precious intercourse among men, is that of a frank and reciprocal communication of their souls; with which, they in conversation lay open and disclose to each other, the affections of their wills, the sentiments of their mind, and all that is treasured up in their memories. Now what is a liar, but a solemn circumventor of this inestimable commerce? what, but a deceiver, who imposes on us delusions for realities? what but a circulator of false money, who passes the iron of a lie for the gold of truth? and finally, what can there be found in this man, that should excuse him from being discarded and rejected by all others, as a nuisance to company, a vile contaminator of conversation, and as a detestable falsifier of all intelligence and information?

SECT. II.

III. I cannot help remarking a monstrous contradiction, that is very frequent in this matter. If a man of any rank or figure in the world, is told to his face that he lies, he considers himself as very seriously injured, and according to the cruel laws of human honour, is esteemed as having put up with a very gross affront, if he does not demand of the man who told him so, a very sanguinary satisfaction; but I would be glad to know, how telling a man he lies, can be a very serious injury, if lying is not esteemed a very serious defect in him who is addicted to it; or how a man can be considered as affronted, because he is told he lies, if the action of lying is not scandalous or unworthy. The degree of reproach annexed to a vice, is generally estimated according to the light in which that vice is considered by the world at large. If the vice is not held to be such a one, as tarnishes a man’s honour, his honour will not be deemed wounded by the commission of it; and it may be said of a man in such a case, that his honour is not injured. This being a notorious fact, the inference I would draw from the before-mentioned observation, is, that the frequency of lying, lessens in the generality of mankind, the abhorrence, which natural reason left to itself, has of this vice; but notwithstanding this custom, it has not diminished so thoroughly, but that there still remains in the soul of man, a clear conviction, that lying is a baseness.

IV. I am confirmed in this opinion, by the observation, that a man’s denying what he has said, is looked upon as an opprobrium to him. And why is this? why because it amounts to a confession that he had before told a lie. The opprobrium cannot lie in the truth of what he now confesses; and therefore must consist in the lie which he told before. Confessing that he has lied, is a mark of sincerity, and no one need blush for having been sincere; therefore all the ignominy must be annexed to the lie. This, I say, makes it manifest to me, that their native sentiment of this matter is not so obscured in mankind, but that it represents a lie to them as a most unworthy and a vile thing.

SECT. III.

V. The practical error in this matter, is derived from a lie’s going unpunished, and from the laws not having prescribed any punishment for liars. Why is there no bridle to curb the propensity men have to deceive one another? and why should a man be allowed to lie to what amount he pleases at free cost? Although men are not contented with enjoying a total indemnity in this case, but frequently glory in what they have done, and go on to insult those they have imposed on, and to treat the sincerity of other men as imprudence; is not this an abominable offence, and such a one as deserves to be punished?