Casuistry

“ This I state as one amongst the many cases of conscience daily occurring in the common business of the world. It would surprise any reader to find how many they are; in fact, a very large volume might be easily collected of such cases as are of ordinary occurrence. Casuistry, the very word casuistry expresses the science which deals with such cases: for as a case, in the declension of a noun, means a falling away, or a deflection from the upright nominative (rectus) , so a case in ethics implies some falling off, or deflection from the high road of catholic morality. ”

“ The casuists, on the other hand, do not so much examine what it is, that might properly be exacted by force, as what it is, that the person who owes the obligation ought to think himself bound to perform from the most sacred and scrupulous regard to the general rules of justice, and from the most conscientious dread, either of wronging his neighbour, or of violating the integrity of his own character. It is the end of jurisprudence to prescribe rules for the decisions of judges and arbiters. It is the end of casuistry to prescribe rules for the conduct of a good man. ”

“ Casuistry, therefore, is the science of cases, or of those special varieties which are forever changing the face of actions as contemplated in general rules. The tendency of such variations is, in all states of complex civilization, to absolute infinity. ”

“ A man in private life may not send another man to be slain because it suits his purpose; a man in public life, that is, as a war minister or as an officer commanding-in-chief may send ten thousand, fifty thousand, men to certain [255] slaughter. So has a diplomatist every title to lie as much as he may need to do in the public service, but he has no right to deceive his personal friend in a private matter. This is not mere casuistry; it is common-sense. Indeed, all effective casuistry is based on common-sense.’
‘The most dangerous casuistry is so, no doubt,’ said Othmar. ”

“ 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. ”

“ On the other hand, Casuistry borrows little from Roman law, and the views of morality contended for have nothing whatever in common with the undertaking of Grotius. All that philosophy of right and wrong which has become famous, or infamous, under the name of Casuistry, had its origin in the distinction between Mortal and Venial Sin. ”

“ It is indeed unnecessary to stray away into the fine details of casuistry—we have only to review superficially the primary rules of the Law which deal with the "five main pillars" in order to arrive at the conclusion that it is in the long run an impossibility for the great mass of the citizens of any civilized state to live up to them. ”

“ In reality, however, the case is worse, If a man did really bring all human actions under the light of any moral system whatever, provided that he could do so sternly, justly, and without favor this way or that, he would perform an exemplary service, such as no man ever has performed. And this is what we mean by casuistry, which is the application of a moral principle to the cases arising in human life. A case means a genuine class of human acts, but differentiated in the way that law cases are. ”

“ Clearly, every great tragedy involves some interesting question of casuistry; and casuistry may repay the debt by suggesting a good plot for a novel. The only question is, whether the extravagant hypothesis, be it purely fantastic or contrived to illustrate a point in ethics, has really been turned to good account. ”

“ There is hardly any perplexity in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle such a point with precision; and accordingly the law of our day shows an increasing tendency to abstain as much as possible from laying down positive rules on the subject. In France, the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances ”

“ But the remedy for bad law is good law, not lawlessness; and casuistry is merely the application of general principles to particular cases, which is involved in any living system of jurisprudence, whether ecclesiastical or secular. If the principles are not to be applied, on the ground that they are too sublime to be soiled by contact with the gross world of business and politics, what remains of them? Denunciations such as Luther launched against the Fuggers and the peasants; aspirations for an idyll of Christian charity and simplicity, such as he advanced in his tract On Trade and Usury. ”

“ For the rigid they may have a stricter morality, but for the lax their casuistry supplies a pliable code of morals, which, by the aid of ingenious distinctions, can find excuses for the worst of crimes. ”

“ Pope was never tired of girding at
“Morality by her false guardians drawn,
Chicane in furs, and casuistry in lawn”
while Fielding has embodied the popular conception of a casuist in Parson Thwackum and Philosopher Square, both of whom only take to argument when they want to reason themselves out of some obvious duty. Still more outspoken is the Savoyard vicar in the Émile (1762) of Jean Jacques Rousseau: “Whence do I get my rules of action? I find them in my heart. All I feel to be good is good; all I feel to be evil is evil. Conscience is the best of casuists ”

“ Consider rather whether this was not his reason for calling on me, that, when he had performed an action very like those which I myself had done, he called me above all men to witness that he had been an imitator of my exploits. But you, O stupidest of all men, do not you perceive, that if it is a crime to have wished that Cæsar should be slain—which you accuse me of having wished—it is a crime also to have rejoiced at his death? For what is the difference between a man who has advised an action, and one who has approved of it? ”

“ But suppose he should yet go further, to the end of his line, which is the end of the law, and the perfect execution of his office—that is, suppose he should carry this poor wretch to a justice of the peace, and he should order the delinquent to be whipped, and sent from parish to parish to the place of her birth or last abode, which not one justice of twenty, through pity or other cause, will do, even this is a great charge upon the country; and yet the business of the nation is itself wholly undone ”

“ No freeman was to be seized or imprisoned, much less condemned and punished, except by judgment of his peers; and justice was neither to be withheld nor delayed—the last concession amounting to a writ of habeas corpus, and upon which that celebrated instrument of justice was founded.
Foreign merchants were to come and go at pleasure without molestation or fear, which they could not do before, being only allowed to remain in the country forty days, and to exhibit their goods at certain fairs. No judges were to be appointed except those learned in the law. ”

“ The crown lawyers, baffled by this unanswerable statement, then unblushingly took their stand on the doctrine that the king was bound by no laws, but all laws proceeded from the grace of the king, and that this was a right which all monarchs had reserved from time immemorial. It was a pitiful sight to see men to whom the nation looked for the sound and faithful maintenance of the constitution,—namely, the judges, following in this outrageous course, and echoing the barefaced violation of common sense uttered by the attorney and solicitor general ”

“ If I occupy the time which I legitimately might in speaking, I shall reap the fruit of my labour, industry, and diligence; and by this prosecution I shall make it manifest that no one in the memory of man appears ever to have come before a court of justice better prepared, more vigilant, or with his cause better got up. But while I am getting this credit for my industry, there is great danger lest the criminal may escape. ”

“ In the matter of justice the shire-moot acted as a court of appeal from the inferior courts. The influence of the great landowners over it must have been considerable, for the verdict was given by the twelve senior thegns. The methods of trial in this and the other courts of old England in criminal cases were three in number, a statement of innocence on oath, compurgation and ordeal. Compurgation was a mode of defence by which a man was held to have established his innocence if he could get twelve men to swear that he was not guilty of the crime in question. ”

“ Let us not, to our own destruction, awake these sleeping lions, by raking up a company of old records which have lain for so many ages by the wall, forgotten and neglected. To all my afflictions, add not this, my lords, the most severe of any, that I for my other sins—not for my treasons—be the means of introducing a precedent so pernicious, that in a few years the kingdom will be in the condition expressed in a statute of Henry IV., that no man shall know by what rule to govern his words and actions. ”

“ Let the ensigns of your power be terrible to drivers-away of cattle, to thieves and robbers; but let innocence rejoice when she sees the tokens of approaching succour. Let no one pervert your will by bribes: the sword of justice is sheathed when gold is taken. Receive then for this Indiction the dignity of Count in such and such a Province. So use your power that you may be able to defend your actions when reduced to a private station, though indeed, if you serve us well in this office, we are minded to promote you to yet higher dignities.'
2. Formula of a Praeses. ”

“ We do not thereby abrogate, but rather confirm, the previously existing body of law.
'Let this edict be read in your splendid assembly, and exhibited for thirty days by the Praefect of the City in the most conspicuous places. Thus shall our civilitas be recognised, and truculent men lose their confidence. What insolent subjects [615] can indulge in violence when the Sovereign condemns it? Our armies fight that there may be peace at home. Let the Judges do their duty fearlessly, and avoid foul corruption.'
20. King Athalaric to all the Judges of the Provinces. ”

“ Under a just Quaestor the mind of an innocent man is at rest: only the wicked become anxious as to the success of their evil designs; and thus the bad lose their hope of plunder, while more earnestness is shown in the practice of virtue. It is his to safeguard the just rights of all men: temperate in expenditure, lavish in his zeal for justice, incapable of deception, prompt in succour. He serves that Sovereign mind before which all bow: through his lips must he speak who has not an equal in the land.'
5. King Theodoric to the Sajo Mannila.
Abuses of the Cursus Publicus. ”

“ In the unanimous opinion of the Court, two Justices not participating, the function of this Court upon the Government's confession of error was described with particularity:
'The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. ”

“ Others are arraigned for violating the laws, but we are to be condemned for putting them in execution, though our offices made it imperative upon us, and we were bound by the express commands of the sovereign, to whom the execution of the law is committed by the constitution. If we are to be sacrificed to the clamours of those whom our duty has obliged us to punish, I entreat that the cause of our suffering may be kept a profound secret ”

“ When a layman found himself in doubt, his duty was not to consult his conscience, but to take the advice of his confessor; while the confessor himself was bound to follow the rules laid down by the casuistical experts, who delivered themselves of a kind of “counsel’s opinion” on all knotty points of practical morality. But experts proverbially differ: what was to be done when they disagreed? Suppose, for instance, that some casuists held it wrong to dance on Sunday, while others held it perfectly lawful. ”

“ Whatever action we take is a precedent.
I cannot state too strongly my belief that if the courts are to retain their independence, they must decide cases taken on the merits. A confession of error by a litigant is, of course, an important factor to take into account in studying a record. [4] It may disclose an intervening decision on a question of law that undermines the lower court's conclusion; it may disclose perjury by an important witness or newly discovered evidence; it may disclose other factors which weaken the conclusion of the lower court. ”

“ It is difficult to imagine circumstances more favorable for crime. If I consult only interest, I ought not to hesitate to return the deposit. If I hesitate, in the system of interest, I am senseless, and I revolt against the law of my nature. Doubt alone, in the impunity that is assured me, would betray in me a principle different from interest. ”

“ The party alleging a guilty intention is compelled, it must be remembered, to extract evidence of it from acts and preparations designed to conceal it, and to rely on such facts of suspicious aspect as accident, carelessness, or the natural incongruity between truth and falsehood, may develop. We are here inquiring into a purpose. Where the guilty purpose is hidden under the guise of a lawful enterprise, with such skill and adroitness as the slave-traders are well known to have exhibited, those suspicious facts are apt to be few and insignificant. ”