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Ir is remarkable, in the sense of being noticeable and interesting, but not in the sense of being surprising, that Casuistry has fallen into disrepute throughout all Protestant lands. This disrepute is a result partly due to the upright morality which usually follows in the train of the Protestant faith. So far it is honourable, and an evidence of superior illumination. But, in the excess to which it has been pushed, we may trace also a blind and somewhat bigoted reaction of the horror inspired by the abuses of the Popish Confessional. Unfortunately for the interests of scientific ethics, the first cultivators of casuis try had been those who kept in view the professional service of auricular confession. Their purpose was-to assist the reverend confessor in appraising the quality of doubtful actions, in order that he might properly adjust his scale of counsel, of warning, of reproof, and of penance. Some, therefore, in pure simplicity and conscientious discharge of the duty they had assumed, but others, from lubricity of morals or the irritations of curiosity, pushed their investigations into unhallowed paths of speculation. They held aloft a torch for exploring guilty recesses of human life, which it is far better for us all to leave in their original darkness. Crimes that were often all but imaginary, extravagances of erring passion that would never have been known as possibilities to the young and the innocent, were thus published in their most odious details. At first, it is true, the decent draperies of a dead language were suspended before these, abominations: but sooner or later some knave was found, on mercenary motives, to tear away this partial veil ; and thus the vernacular literature of most nations in Southern Europe, was gradually polluted with revelations that had been originally made in the avowed service of religion. Indeed, there was one aspect of such books which proved even more extensively disgusting. Speculations pointed to monstrous offences, bore upon their very face and frontispiece the intimation that they related to cases rare and anomalous. But sometimes casuistry pressed into the most hallowed
recesses of common domestic life. The delicacy of youthful wives, for example, was often not less grievously shocked than the manliness of husbands, by refinements of monkish subtlety applied to cases never meant for religious cognisance-but far better left to the decision of good feeling, of nature, and of pure household morality. Even this revolting use of casuistry, however, did less to injure its name and pretensions than a persuasion, pretty generally diffused, that the main purpose and drift of this science was a sort of hair-splitting process, by which doubts might be applied to the plainest duties of life, or questions raised on the extent of their obligations, for the single benefit of those who sought to evade them. A casuist was viewed, in short, as a kind of lawyer or special pleader in morals, such as those who, in London, are known as Old Bailey practitioners, called in to manage desperate cases to suggest all available advantages-to raise doubts or distinctions where simple morality saw no room for either and generally to teach the art, in nautical phrase, of sailing as near the wind as possible, without fear of absolutely foundering.
Meantime it is certain that casuistry, when soberly applied, is not only a beneficial as well as a very interesting study; but that, by whatever title, it is absolutely indispensable to the practical treatment of morals. We may reject the name: the thing we cannot reject. And accordingly the custom has been, in all English treatises on ethics, to introduce a good deal of casuistry under the idea of special illustration, but without any reference to casuistry as a formal branch of research. Indeed, as society grows complex, the uses of casuistry become more urgent. Even Cicero could not pursue his theme through such barren generalizations as entirely to evade all notice of special cases and Paley has given the chief interest to his very loose investigations of morality, by scattering a selection of such cases over the whole field of his discussion.
The necessity of casuistry might, in fact, be deduced from the very origin and genesis of the word. First
came the general law or rule of action. This was like the major proposition of a syllogism. But next came a special instance or case, so stated as to indicate whether it did or did not fall under the general rule. This, again, was exactly the minor proposition in a syllogism. For example, in logic we say, as the major proposition in a syllogism, Man is mortal. This is the rule. And then "subsuming" (such is the technical phrase-subsuming) Socrates under the rule by a minor proposition-viz. Socrates is a man-we are able mediately to connect him with the predicate of that rule, viz. ergo, Socrates is mortal.* Precisely upon this model arose casuistry. A general rule, or major proposition, was laid downsuppose that he who killed any human being, except under the palliations X, Y, Z, was a murderer. Then, in a minor proposition, the special case of the suicide was considered. It was affirmed, or it was denied, that his case fell under some one of the palliations assigned. And then, finally, accordingly to the negative or affirmative shape of this minor proposition, it was argued, in the conclusion, that the suicide was, or was not, a murderer. Out of these cases, i. e. oblique deflexions from the universal rule (which is also the grammarian's sense of the word case) arose casuistry.
After morality has done its very utmost in clearing up the grounds upon which it rests its decisionsafter it has multiplied its rules to any possible point of circumstantialitythere will always continue to arise cases without end, in the shifting combinations of human action, about which a question will remain whether they do or do not fall under any of these rules. And the best way for seeing this truth illustrated on a broad scale, the shortest way and the most decisive, is—to point our attention to one striking fact, viz. that all law, as
it exists in every civilized land, is nothing but casuistry. Simply because new cases are for ever arising to raise new doubts whether they do or do not fall under the rule of law, therefore it is that law is so inexhaustible. law terminates a dispute for the present by a decision of a court, (which constitutes our "common law,") or by an express act of the legislature, (which constitutes our "statute law.") For a month or two matters flow on smoothly. But then comes a new case, not contemplated or not verbally provided for in the previous rule. is varied by some feature of difference. This feature, it is suspected, makes no essential difference: substantially it may be the old case. Ay-but that is the very point to be decided. And so arises a fresh suit at law, and a fresh decision. For example, after many a decision and many a statute, (all arising out of cases supervening upon cases,) suppose that that great subdivision of jurisprudence called the Bankrupt Laws to have been gradually matured. It has been settled, suppose that he who exercises a trade, and no other whatsoever, shall be entitled to the benefit of the bankrupt laws. So far is fixed:
and people vainly imagine that at length a station of rest is reached, and that in this direction, at least, the onward march of law is barred.
at all. Suddenly a schoolmaster becomes insolvent, and attempts to avail himself of privileges as a technical bankrupt. But then arises a resistance on the part of those who are interested in resisting: and the question is raised-Whether the calling of a schoolmaster can be legally considered a trade? This also is settled: it is solemnly determined that a schoolmaster is a tradesman. But next arises a case, in which, from peculiar variation of the circumstances, it is doubtful whether the teacher can technically be considered a schoolmaster. Suppose that case settled: &
*The ludicrous blunder of Reid (as first published by Lord Kames in his Sketches,) and of countless others, through the last seventy or eighty years, in their critiques on the logic of Aristotle, has been to imagine that such illustrations of syllogism as these were meant for specimens of what syllogism could perform. What an elaborate machinery, it was said, for bringing out the merest self-evident truisms! But just as reasonably it might have been objected, when a mathematician illustrated the process of addition by saying 3+4=7, Behold what pompous nothings! These Aristotelian illustrations were purposely drawn from cases not open to dispute, and simply as exemplifications of the meaning: they were intentionally self-evident.
schoolmaster, sub-distinguished as an XY schoolmaster, is adjudged to come within the meaning of the law. But scarcely is this sub-variety disposed of, than up rises some decomplex case, which is a sub-variety of this sub-variety: and so on for ever.
Hence, therefore, we may see the shortsightedness of Paley in quoting with approbation, and as if it implied a reproach, that the Mussulman religious code contains "not less than seventy-five thousand traditional precepts." True but if this statement shows an excess of circumstantiality in the moral systems of Mussulmans, that result expresses a fact which Paley overlooks-viz. that their moral code is in reality their legal code. It is by aggregation of cases, by the everlasting depullulation of fresh sprouts and shoots from old boughs, that this enormous accumulation takes place: and, therefore, the apparent anomaly is exactly paralleled in our unmanageable superstructure of law, and in the French supplements to their code, which have already far overbuilt the code itself. If names were disre. garded, we and the Mahometans are in the very same circumstances.
Casuistry, therefore, is the science of cases, or of those special varieties which are for ever changing the face of actions as contemplated in general rules. The tendency of such variations is, in all states of complex civilisation, to absolute infinity.* It is our present purpose to state a few of such cases, in order to fix attention upon the interest and the importance which surround them. No modern book of ethics can be worth notice, unless in so far as it selects and argues the more prominent of such cases, as they offer themselves in the economy of daily life. For we repeat that the name, the word casuistry, may be evaded,
but the thing cannot: nor is it evaded in our daily conversations.
I. The Case of the Jaffa Massacre. -No case in the whole compass of casuistry has been so much argued to and fro-none has been argued with so little profit; for, in fact, the main elements of the moral decision have been left out of view. Let us state the circumstances:-On the 11th of February 1799, Napoleon, then and for seven months before in military possession of Egypt, began his march towards Syria. His object was to break the force of any Turkish invasion, by taking it in fractions. It had become notorious to every person in Egypt, that the Porte rejected the French pretence of having come for the purpose of quelling Mameluke rebellion-the absurdity of which, apart from its ludicrous Quixotism, was evident in the most practical way, viz. by the fact, that the whole reve nues of Egypt were more than swallowed up by the pay and maintenance of the French army. What could the Mamelukes have done worse? Hence it had become certain that the Turks would send an expedition to Egypt; and Napoleon, viewing the garrisons in Syria as the advanced guard of such an expedition, saw the best chance for general victory in meeting those troops beforehand, and destroying them in detail. About nineteen days brought him within view of the Syrian fields. On the last day of February he slept at the Arimathea of the Gospel. In a day or two after his army was before Jaffa, (the Joppa of the Crusaders.)—a weak place, but of some military interest,† from the accident of being the very first fortified town to those entering Palestine from the side of Egypt. On the 4th of March this place was invested; on the 6th, barely forty-eight hours after, it
"To absolute infinity."-We have noticed our own vast pile of law, and that of the French. But neither of us has yet reached the alarming amount of the Roman law, under which the very powers of social movement threatened to break down. Courts could not decide, advocates could not counsel, so innumerable was becoming the task of investigation. This led to the great digest of Justinian. But, had Roman society advanced in wealth, extent, and social development, instead of retrograding, the same result would have returned in a worse shape. The same result now menaces England, and will soon menace her much more.
+ "Of some military interest."-It is singular that some peculiar interest has always settled upon Jaffa, no matter who was the military leader of the time, or what the object of the struggle. From Julius Cæsar, Joppa enjoyed some special privileges and immunities about a century after, in the latter years of Nero, a most tragical catas
murdered as foully as the infants of Bethlehem; resistance being quite hopeless, not only because they had surrendered their arms, but also because, in reliance on Christian honour, they had quietly submitted to have their hands confined with ropes behind their backs. If this blood did not lie heavy on Napoleon's heart in his dying hours, it must have been because a conscience originally callous had been seared by the very number of his atrocities.
Now, having stated the case, let us review the casuistical apologies put forward. What was to be done with these prisoners? There lay the dif culty. Could they be retained according to the common usage with regard to prisoners? No; for there was a scarcity of provisions, barely sufficient for the French army itself. Could they be transported to Egypt by sea? No; for two English line-of-battle ships, the Theseus and the Tiger, were cruising in the offing, and watch
was taken by storm. This fact is in itself important; because it puts an end to the pretence so often brought forward, that the French army had been irritated by a long resistance. Yet, supposing the fact to have been so, how often in the history of war must every reader have met with cases where honourable terms were granted to an enemy merely on account of his obstinate resistance? But then here, it is said, the resistance was wilfully pushed to the arbitration of a storm. Even that might be otherwise stated; but, suppose it true, a storm in military law confers some rights upon the assailants which else they would not have had rights, however, which cease with the day of storming. Nobody denies that the French army might have massacred all whom they met in arms at the time and during the agony of storming. But the question is, Whether a resistance of fortyeight hours could create the right, or in the least degree palliate the atrocity, of putting prisoners to death in colding the interjacent seas of Egypt and blood? Four days after the storming, when all things had settled back into the quiet routine of ordinary life, men going about their affairs as usual, confidence restored, and, above all things, after the faith of a Christian army had been pledged to these prisoners that not a hair of their heads should be touched, the imagination is appalled by this wholesale butchery-even the apologists of Napoleon are shocked by the amount of murder, though justifying its principle. They admit that there were two divisions of the prisoners-one of fifteen hundred, the other of two thousand five hundred. Their combined amount is equal to a little army; in fact, just about that army with which we fought and won the battle of Maida in Calabria. They composed a force equal to about six - English regiments of infantry on the common establishment. Every man of these 4000 soldiers, chiefly brave Albanians-every man of this little army was basely, brutally, in the very spirit of abject poltroonery, murdered
Syria. Could they be transported to Egypt by land? No; for it was not possible to spare a sufficient escort; besides, this plan would have included the separate difficulty as to food. Finally, then, as the sole resource left, could they be turned adrift? No; for this, was but another mode of saying, "Let us fight the matter over again; reinstate yourselves as our enemies; let us leave Jaffa re infectâ, and let all begin again de novo"-since, assuredly, say the French apologists, in a fortnight from that date, the prisoners would have been found swelling the ranks of those Turkish forces whom Napoleon had reason to expect in front.
Before we take one step in replying to these arguments, let us cite two parallel cases from history: they are interesting for themselves, and they show how other armies, not Christian, have treated the selfsame difficulty in practice. The first shall be a leaf taken from the great book of Pagan experience; the second from Mahome
trophe happened at Joppa to the Syrian pirates, by which the very same number perished as in the Napoleon massacre, viz. something above 4000. In the 200 years of the Crusades, Joppa revived again into military verdure. The fact is, that the shore of Syria is pre-eminently deficient in natural harbours, or facilities for harbours-those which exist have been formed by art and severe contest with the opposition of nature. Hence their extreme paucity, and hence their disproportionate importance in every possible war.
tan: and both were cases in which
the parties called on to cut the knot had been irritated to madness by the parties lying at their disposal.
1. The Pagan Decision.-In that Jewish war of more than three years' duration, which terminated in the de. struction of Jerusalem, two cities on the lake of Gennesaret were besieged by Vespasian.. One of these was Tiberias: the other Tariche. Both had been defended with desperation; and from their peculiar situation upon water, and amongst profound precipices, the Roman battering apparatus had not been found applicable to their walls. Consequently the resistance and the loss to the Romans had been unexampled. At the latter siege Vespasian was present in person. Six thousand five hundred had perished of the enemy. A number of prisoners remained, amounting to about 40,000. What was to be done with them? great council was held, at which the commander-in-chief presided, assisted (as Napoleon) by his whole staff. Many of the officers were strongly for having the whole put to death: they used the very arguments of the French "that, being people now destitute of habitations, they would infallibly urge any cities which received them into a war:" fighting, in fact, henceforward upon a double impulse-viz. the original one of insurrection, and a new one of revenge. Vespasian was sensible of all this; and he himself remarked, that, if they had any indulgence of flight conceded, they would assuredly use it against the authors of that indulgence. But still, as an answer to all objections, he insisted on the solitary fact, that he had pledged the Roman faith for the security of their lives; "and to offer violence, after he had given them his right hand, was what he could not bear to think of." Such are the simple words of Josephus. In the end, overpowered by his council, Vespasian made a sort of compromise. Twelve hundred, as persons who could not have faced the hardships of captivity and travel, he gave up to the sword. Six thousand select young men were transported as labourers into Greece, with a view to Nero's scheme, then in agitation, for cutting through the isthmus of Corinth; the main body, amounting to thirty thousand, were sold for slaves; and all the rest, who happened to be subjects of Agrippa, as a mark of cour
tesy to that prince, were placed at his disposal. Now, in this case, it will be alleged that perhaps the main feature of Napoleon's case was not realized, viz. the want of provisions. Every Roman soldier carried on his shoulders a load of seventeen days' provision, expressly in preparation for such di lemmas; and Palestine was then rank with population, gathered into towns. This objection will be noticed immediately: but, meantime, let it be remembered that the prisoners personally appeared before their conquerors in far worse circumstances than the garrison of Jaffa, except as to the one circumstance (in which both parties stood on equal ground) of having had their lives guaranteed. For the prisoners of Gennesaret were chiefly aliens and fugitives from justice, who had no national or local interest in the cities which they had tempted or forced into insurrection; they were clothed with no military character whatever; in short, they were pure vagrant incendiaries. And the populous condition of Palestine availed little towards the execution of Vespasian's sentence: nobody in that land would have bought such prisoners: nor, if they would, were there any means available, in the agitated state of the Jewish people, for maintaining their purchase. It would, therefore, be necessary to escort them to Cæsarea, as the nearest Roman port for shipping them: thence perhaps to Alexandria, in order to benefit by the corn vessels: and from Alexandria the voyage to remoter places would be pursued at great cost and labour-all so many objections exactly corresponding to those of Napoleon, and yet all overruled by the single consideration of a Roman (viz. a Pagan) right hand pledged to the fulfilment of a promise. As to the twelve hundred old and helpless people massacred in cold blood, as regarded themselves it was merciful doom, and one which many of the Jerusalem captives afterwards eagerly courted. But still it was a shocking case. It was felt to be so by many Romans themselves: Vespasian was overruled in that instance: and the horror which settled upon the mind of Titus, his elder son, from that very case amongst others, made him tender of human life, and anxiously merciful, through the great tragedies which were now beginning to unroll themselves.