=25. The right of self-defense.=--None of the foregoing principles would present the shadow of a difficulty to any except those who are nearer the brute than man, if it were not for an apparent exception to the rule, which is the _case of legitimate self-defense_. To understand properly the solution of this question, it is necessary to examine carefully the nature of the relations which bind men to each other.

Every man is a _moral person_; that is to say, a free being, and for that very reason inviolable in his dignity and in his rights. He is, as Kant says, an _end to himself_, and should not be treated as a _means_. The things of nature are to us but means to satisfy our wants; we may therefore mutilate and destroy them, not as our whims may dictate, but as our wants require. Thus can we cut the finest trees of a forest to make fire of, or for furniture. We even claim a similar right over animals, although it may, perhaps, not be so evident. But we have no such right over man. We can neither mutilate nor destroy him for our use.

And, in fact, to destroy or mutilate through sheer force a member of humanity, is to apply to him the law of compulsion, which is the law of physical nature, and which without reserve governs all physical phenomena: it is to make of man _a thing of nature_, to see in him the body only, and ignore the soul.

The consequence of such conduct is evident: it is that whosoever employs against another the law of compulsion means thereby that he does not recognize between himself and other men any other law but that. Treating them as if they were purely physical agents, he gives us thereby to understand that he recognizes himself, and expects to be treated, as such; he means to take advantage of his strength as long as he is the strongest, but gives us to understand thereby that he is satisfied to submit to strength if he is the weaker.

It is here that the _right of self-defense_ comes in. He who is violently attacked, has the right to oppose to violence just as much strength as there is employed against him. Otherwise, in allowing himself to be knocked down by strength, he would consent to the abas.e.m.e.nt, to the suppression of his own personality; he would in some respect be the accomplice of the violence he is made to suffer. Some Christian sects, straining this point, go so far as to condemn absolutely the right of self-defense; they do not see that this would infallibly bring with it the triumph of brute force, and the suppression of all justice. Such sects may, to a certain extent, manage to exist in civilized societies; but the principle is self-destructive, since not to resist violence is in some respect to be its accomplice.

Yet, whilst admitting the right of self-defense, it is necessary to recognize its limits. "This agent," says M. Renouvier, "whom the right of self-defense treats as a brute, this being is a man, nevertheless, or has been one, or may become such. Hence the doctrine of conscience is to admit this right only when necessary, and not beyond what is necessary." (_Moral Science_, Ch. LVI.) This is, to begin with, a natural consequence of the duties towards one's self, since it is already a surrender of one's dignity to be obliged to act in the capacity of a physical agent, and renounce one's character of a moral person; it is also a duty towards humanity in general, which is represented by every man, even the most violent and the most uncultivated.

=26. Problems.=--The right of legitimate self-defense gives rise to a certain number of problems relative to the law of homicide. M. Jules Simon[17] reduces them to five: homicide in case of self-defense, penalty of death, political a.s.sa.s.sination, duel, and war. In the first case it is implied in what precedes, that legitimate self-defense may go so far as to deprive another man of life; but only in case of absolute necessity.

There remain the four other cases, which are not all of the same order.

=27. The penalty of death.=--The penalty of death in these days has been very much contested, and several States have tried to abolish it.[18]

The following arguments are brought to bear against it:

1. _The inviolability of human life._--The State, it is said, should not give the example of what it proscribes and punishes. Now, it punishes homicide; then it should not itself commit homicide.

2. The possible _mistakes_, which in all other cases can be corrected, but which in this case alone are irreparable.

3. _Experience_, which, it is said, tells against it in certain countries by proving that the number of crimes has not been increased by the suppression of the penalty of death.

4. Finally, the _refinement of manners_, which can no longer bear the idea of capital punishment.

No one of these arguments is wholly decisive.

1. The inviolability of human life is not an absolute thing, at least not for those who admit the right of legitimate self-defense. We shall examine this presently.

2. Judiciary mistakes are very rare, and will become more and more so, as justice becomes more respectful towards the rights of the accused, and through greater publicity, by the intervention of a jury, etc.

3. Experience is not so much of a test as it is said to be, and is often made on too small a scale. The attempts at abolition have not been very numerous. In Tuscany murders have always been very rare on account of the gentleness of manners. In Switzerland, on the contrary, crime is on the increase, and certain cantons have asked for a return to the death penalty. Besides, it is a very difficult experiment to make. How could a society as complicated as ours dare to trust its security to so hazardous an experiment?

4. The refinement of manners may gradually bring about, thanks to the inst.i.tution of the jury, the diminution, perhaps some day the suppression, of the penalty of death, without its being necessary for the State to lay aside this powerful means of defense and intimidation.

The penalty of death, in fact, can be considered legitimate only in the light of the right of self-defense. If society needs this penalty to protect the life of its members, it may be said that it is authorized to use it, on the same ground as each individual to whom we have conceded the right to repel force by force, and to deprive of his own life one who should threaten to take _his_ life.

But, it will be objected, the right of self-defense, when ending in homicide, is justifiable only at the moment of the attack, and to ward off a sudden aggression itself threatening murder; but the deed once committed and the criminal in the hands of the law, there is no reason to fear a new aggression from him, and his chances of escape from justice through evasion are too few to justify the violation of a duty so absolute as the respect for human life.

It may be answered that society, by the death penalty, not only defends itself against the criminal himself, but against all those who might be inclined to imitate him. The penalty of death is above all a precautionary means of defense, that is to say, a means of intimidation. The future criminal is warned beforehand of the risks he runs; he accepts voluntarily the punishment he will incur. If society should catch him in the act--_flagrante delicto_--it would certainly, in order to prevent the crime, since it is the representative of all individuals, have the same rights as the individual of defending himself. But the difficulty of seizing upon the criminal at the moment of commission, can it be considered a circ.u.mstance in favor of the criminal, and does society lose its right, because, through the skill and precautions of a.s.sa.s.sins, it can but very rarely, and scarcely ever, catch them in the act?

The right of society to defend itself by the death penalty does not seem to us, then, to admit any doubt. The whole question is to know whether such a means of defense is really necessary and efficacious. It is, as we have said, a question of experience which it is very difficult to settle, for the reason that we dare not make the experiment. All that can be said is that, as a principle, every man fears death; it is the greatest of fears. There is, therefore, reason to believe that it is the most powerful of the means of intimidation. Besides, it is known that professional criminals estimate with great accuracy offenses and crimes proportionably to their penalties. Thus, those who steal know that they expose themselves to such or such punishment, but they go no farther in order not to incur a more severe punishment; for these the penalty of death is certainly a great item in their plans, and it would be dangerous to relieve them of this menace.

We do not mean to say that in future society may not reach a state of organization strong and enlightened enough to be able to do without such means; but in the present state of things we should consider the attempt to abolish them dangerous for society.

=28. Of political a.s.sa.s.sination.=--Concerning this pretended right, so shockingly promulgated in these days by savage factions, we cannot do better than quote the words of M. Jules Simon in his book on _Duty_:

"Political a.s.sa.s.sination," he says, "is essentially worthy of condemnation from whichever side one looks at it. It has the same origin as the penalty of death, with this double difference that, in the application of the penalty of death, it is the State that p.r.o.nounces the sentence conformably to the law, whilst in political a.s.sa.s.sination it is the same man who makes the law, p.r.o.nounces the sentence, and executes it. Now, society, though badly const.i.tuted, and the law, though bad, are nevertheless a guaranty, whilst there is none at all against the caprice, pa.s.sion or false judgment of a single individual. Besides, the legitimacy of the penalty of death is connected with the legitimacy of the power that p.r.o.nounces it, and the uniformity of the law. Let some tyrannical authority cause a man to be shot at the corner of a street, without form of legal process, that cannot be called penalty of death; it is called murder; and even when the victim should have deserved his death, the government would not be the less criminal for having executed him without trial. If these principles are just, how can we admit the theory of political a.s.sa.s.sination, which allows the destiny of all to depend upon the conscience of a single individual. We reflect so little upon the rights of men that there are those who will condemn the death penalty and yet approve of political a.s.sa.s.sination. We judge so badly, that under the Restoration a monument was erected to Georges Cadoudal, and we hear every day the eulogy of Charlotte Corday. The guiltiness of the victim does not legitimate the act of the murderer. It is both unwise and criminal to furnish hatred with such excuses."

=29. The duel.=--Does the duel come under the head of legitimate self-defense? No; whatever custom and prejudice may say in its favor.

1. We must first lay aside without discussion all duels bearing on frivolous causes, and they are the largest in number.

2. In many other cases reparation may be obtained through the law, and prejudice alone can prevent having recourse to it. If I am willing to have recourse to law in a case of robbery, why should I not appeal to this same law when my honor is attacked?

3. The duel is an absurd form of justice, because it puts the offender and the one offended on the same level. It is not the guilty one that is punished; it is the awkward one.

4. Social justice has degrees of penalty in proportion to the gravity of the offense, and is applied only after a very severe examination. The aim of the duel is to apply to very unequal offenses one and the same penalty, death (Jules Simon, _Le Devoir_, IV.), or if there are any degrees, since it does not always result in death, these degrees are the effect of chance. Finally, if in a duel the parties agree to use skill enough to hurt each other as little as possible, is it not as if they confessed to the injustice and insanity of the proceeding?

5. The duel had its origin in superst.i.tion: in the _Combat of G.o.d_, in the belief, namely, that G.o.d 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 Helose_, has written on the duel and suicide (see further on, Chapter xi.) a letter often quoted, of which we will briefly give the princ.i.p.al pa.s.sages.

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 t.i.tle 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 Caesar send a challenge to Cato, or Pompey to Caesar? "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 pa.s.s 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 inst.i.tution 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 a.s.sumes 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.