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chapter 21: On the Rights of Citizens 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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On the Rights of Citizens1
i. Citizens under the civil law
There are in general two kinds of civil laws (and the same may be said of natural laws, so far as they are reduced to definite propositions enunciated in words). Some expressly prescribe what is to be done or not to be done, often with the explicit addition of a penal sanction, though the latter is quite commonly left to be tacitly understood. Others simply define what is each man’s own, and what is another’s; by what agreement each right is constituted, transferred, or abolished, etc. Although the latter do not contain an express precept, much less a penal sanction, they do nevertheless teach or forbid something (see pp. 39–40), since a corresponding obligation is attached to every right. The equivalent more or less of the penal sanction in these laws is a permission of civil action or execution, by which each man is to prosecute and obtain his right. Criminal cases derive from the first kind of laws, civil cases from the second. [II.12.4.i]
The author seems here and in the previous section to have before his eyes the same two kinds of laws that we have just distinguished. There he showed how the strength of civil society is added to natural laws in both cases; here he explains how natural laws are more specifically defined by civil laws.
Here arises the familiar and important question, whether civil laws which set other limits of right and wrong than those set by the natural laws, offer immunity of conscience to a person whom they support, if he requires something not due by natural right, or fails to perform something due by natural law. The negative side is championed by, among others, Ames, On Conscience, book V.41.10, etc.,2 the affirmative by Huber, On the Rights of Civil Society, book III.1.3.3 To take a middle way between an outstanding theologian and a learned jurist, I acknowledge that by the act by which one enters civil society, one gives a right to his fellow citizens, in matters relating to the patrimony and within probable limits, to require of him what the laws of the state define as due, and not to give him what the laws do not make due. I also acknowledge that, barring special reasons, everyone who has conceded the same thing to others against himself may rightly have the benefit of this law.
Nevertheless I maintain that there may be reasons of equity, humanity, or good faith which suggest that the rigor of expletive justice4 as defined by the natural law should be tempered at times, and these reasons should have equal weight in mitigating the rigor of the civil laws. This consideration is to be maintained with particular care in the case of a promise, even when it does not suffice to produce a civil obligation, unless there is a countervailing circumstance which would annul the force of the promise even in the natural state. By duly applying these principles we can arrive at a judgment about the duty of an heir in an intestacy to challenge a will which is invalid in civil law or not; of a son of a family in the matter of pleading the senatorial decree Macedonianum,5 and that of a woman in pleading the so-called Velleian decree;6 of a minor, with regard to seeking restitution, and so on. See above all on this subject the elegant discussions of the celebrated Barbeyrac published in French, on The Permission and Benefit of Laws.7 [II.12.7.i]
Moreover, if they [the civil laws] really do conflict [with the divine law], the citizens should not obey them, even if perhaps the conflict is not completely open and beyond all shadow of doubt. For every doubt about the meaning of the divine law which has been revealed to us is to be attributed in the court of God at least to a certain culpable weakness. See our remarks above, at pp. 32–33. [I.1.5.iii] But if the question is about what can most safely be done while the doubt remains, it seems that the only general rule which can be suggested is that one should incline to the side which is supported by the stronger arguments and where the danger of sin appears smaller. But if the arguments look equal on both sides, even when the authority of the civil ruler is included in the calculation, and the considerations which his authority implies (considerations which do not always prevail in these cases), see the author’s discussion at On the Duty of Man and Citizen, I.1.6. Hobbes’s comment is absurd, that the civil laws cannot conflict with natural law, at least in those matters which regard men’s rights,8 as if men, while subjecting their rights, both adventitious and natural, to the civil government for protection, could and would let the ruler deal with them as he pleases. [II.12.8.i]
I have no doubt that many things may rightly be done by subordinates which it would be wrong for superiors to do because they are contrary to the law of prudence or humanity, especially as the judgment to be given about them often depends on particular facts which superiors are presumed to have studied, and of which subordinates are invincibly ignorant. I contend nevertheless that an action done by a subordinate under whatever authority, does not cease to be imputable to him, if in doing it he exercises the power of his own will. And therefore no instruction from a superior legitimizes on the part of a subordinate any of the actions which I said at pp. 37–38 cannot be excused by the second type of coercion. This also settles the view we should hold of the example Pufendorf gives of the citizen who bears arms in an unjust war (see also on this, Grotius, book II, final chapter: much better argued than by Pufendorf).9 It is clumsy to object that a judgment cannot be given on this matter except by those who are present at the secret councils of a prince; for the justice of a war is to be judged not by the persuasive causes, which may indeed be secret, but by the justifying causes, that is, those which are published to the whole world to assert the justice of the war undertaken. [II.12.9.i]
ii. On punishment
[Pufendorf says: “A punishment is an evil one suffers, inflicted in return for an evil one has done; in other words, some painful evil imposed by authority as a means of coercion in view of a past offense.” Carmichael comments:]
Both definitions used here are wrong, in that they ignore the purpose of inflicting punishment (for this is all that we are discussing here). It is its purpose which distinguishes a punishment properly so called from parental correction, from compensation for loss wrongfully caused, from guarantee for the future, and from the evils of war; for these too should only be inflicted directly on wrongdoers, i.e., on those who invade our right or prevent us from obtaining it. A better definition of punishment might be, an evil which is rightly inflicted on a wrongdoer because of the wrong he has done, for the purpose of providing security to human society against the commission of similar wrongs in the future on the part of the same man or of others by his example. And since there has to be a right in the punisher to exact the penalty, this certainly implies that there is an obligation on the part of the person punished, if not of active cooperation, at least of nonresistance, to a deserved punishment. It is no objection to this that the penalty is to be inflicted against his will, since even a man who submits to it from consciousness of moral obligation may recoil in horror from the actual punishment as dreadful and painful to him. [II.13.4.i]
It is not always necessary for a penalty to be exacted in the exercise of authority, as may be understood from our remarks at pp. 69–71 and from the passages of Grotius and Locke cited there. [II.13.4.ii]
Sufferings inflicted in the course of fighting in war or battle do not have the nature of punishment. This is not because they are not inflicted in the exercise of authority (see the previous note), but because they are not inflicted specifically to provide security for human society in the future. They are inflicted as necessary means for defending or pursuing the right of an injured party, against those who attack that right or hinder its satisfaction. [II.13.4.iii]
On the right to inflict punishment in the state of nature, see pp. 69– 71. We spoke above (p. 158) about the origin of the power which belongs to the civil ruler in a state to inflict physical punishment on the guilty. At Of the Law of Nature and Nations, VIII.3.1, Pufendorf rightly derives this power of government as exercised against a criminal, not so much from the consent of the criminal himself as of the rest of the citizens. He does not however adequately explain the character and effect of this consent when he says there that it is the act by which individuals oblige themselves not only not to defend, but also to lend their strength, if need be, against anyone whom the ruler of the state is to punish, while at the same time denying that the right of punishment belongs to individuals in the natural state. For these arguments do not prove that the right of punishment itself belongs in the civil state to the supreme ruler and his delegates (the main point in question here), but that he has the right to make use of other men’s strength in inflicting a punishment, assuming that he has the right to punish.
I see no way to clear this matter up except by arguing that the right to inflict punishment on flagrant violators of the natural laws as an unavoidable way of protecting the safety of the human race is indeed common to all men in the natural state (though not equally so to wrongdoers), but that it is devolved by those who subject themselves to civil government on the supreme ruler to exercise on their behalf. In vain would you say, with Titius, that the fact that a person can be punished derives from the crime, if there was no one who could inflict a penalty appropriate to the crime before the agreement of the criminal himself.10 But if individuals may do this in the natural state, then the agreement of the person against whom the right is valid does no more harm in the case of punishment than in the case of other rights, to those who naturally have these rights and have not made an agreement to submit the exercise of them to the same civil government. The reason therefore why criminals should be punished only by a magistrate is not to be found in the consent of the criminals, as the celebrated commentator suggests, but in the consent of the rest of the citizens. This is the only thing that government of territory gives against outsiders, that outsiders may not rightly exact by force either a punishment or anything else that may be due to them from those who live within its boundaries, without first invoking the cognizance of the civil ruler of the territory, in order not to disturb the public peace with unnecessary violence.[II.13.5.i]
The question of the punishment of corporations (universitas) is difficult and complicated. For on the one hand, the author has properly explained that a private penalty cannot be imposed on someone against his will for a public crime, and so nothing can be taken from him which he did not hold in the name and for the benefit of the corporation. On the other hand, it is not equally clear by what right the state as such may be liable to punishment; for states too count as corporations on this view. For as Grotius, and Pufendorf following him, acknowledge, merit and demerit belong to the class of things which are predicated of a corporation, not directly in themselves, but by abstraction from individuals, exactly as we say that a corporation which has many learned or brave individuals is itself learned or brave. For this reason too, as they both recognize, when the men who gave their consent and cooperation to a public crime are dead, the crime too, and the debt of punishment likewise, are extinguished. Thus it seems consonant with these points to speak of the penalty properly so called as owed not by the corporation itself as by the delinquent individuals. There is also the point that the chief purpose for imposing punishment among men, i.e., the terror of the example, is irrelevant, since criminals tend to be deterred from crimes by fear of evils to be inflicted on their persons, not on the corporation of which they are members. It would suffice therefore, at the most, when a public crime has been committed, that the guilty individuals should be punished and the loss be made good by the state itself and that a guarantee for the future be given to the injured party, the corporation’s right being left unimpaired in other respects to the nonguilty. But I do not deny that when a state has shown an intention to harm not one state or another but all states indiscriminately with whom it is not associated by treaty, such a state is rightly outlawed, for the common security of mankind, if the guilty cannot be separated from the innocent.
For crimes committed or duties omitted by common counsel, subordinate corporations are normally deprived of certain privileges or sometimes of their very status as corporations. This seems to have the character of a conventional penalty, since corporations are assumed to be constituted, explicitly or tacitly, on that condition by the supreme ruler. [II.13.19.i]
iii. On reputation
[Pufendorf distinguishes between “simple reputation” and “intensive reputation” (or “reputation by distinction” in Barbeyrac’s phrase). The former belongs to the morally good or law-abiding man; the latter is recognized by honor from other men. Carmichael is chiefly concerned to stress the moral foundation of both kinds of reputation. For example, even slaves may have simple reputation:]
It is inhuman and contrary to reason that simple reputation in civil society should be thought lacking in anyone on account of a condition [slavery] which contains no moral turpitude. [II.14.8.i]
[But he is chiefly concerned to stress that the conventional system of honors has a moral basis even where it seems not to:]
Titius carefully points out here that intensive reputation should be divided into two: one is absolute or ethical, and consists of true excellence, either conforming or conformable to the laws, and commands a genuine feeling of honor; the other is hypothetical, or civil, is based on an agreement or law, and produces only external effects in civil life.11 Now we are all aware that these two are different, and do not normally go together. However the abuse of civil reputation should not be confused with its original use and scope, so that one would come to believe that it has nothing in common with true excellence. Here is the way we should look at it. It is natural that those who are regarded as making a greater contribution to promoting the interest and splendor of human society should be honored above the rest and distinguished with greater honors. But if judgments about the application of this prerogative and the distribution of external signs of honor in accordance with it were given from the facts themselves, men would inevitably disagree with each other, and from that disagreement more serious evils would arise to disturb human society more than if precedence were completely neglected. To avoid this situation, the custom has been introduced, and confirmed among citizens by laws, with foreigners by treaties, that as this whole thing pertains to certain external effects in human life, it should be defined by external criteria that have an impact on the senses. For this reason no one who is not totally ignorant of the character of human affairs will be surprised that the actual distinctions made do not coincide exactly with the truth of the matter. That it strays such an immense distance from the truth, is to be attributed to the notable depravity and corruption of men; yet in this matter its effects ought to be tolerated, since they cannot be corrected without more serious disadvantages. [II.14.11.i]
[Similarly Carmichael assigns a moral gradation to Pufendorf’s miscellaneous list of human qualities:]
The qualities surveyed here are not all to be given equal value. Some are material for praise in themselves, for example, the moral virtues and their exercise. Others recommend a man, either because they are not acquired without laudable diligence or because they at least make their possessor more inclined to do good. Intellectual endowments are among these. Others simply bring a man the esteem of providing the means or opportunity for promoting more effectively the interests of the human race; in this category we place the goods of body and of fortune. From this it is clear what qualities have most power to excite a sincere feeling of honor among intelligent men, though in distributing the external marks of honor, almost greater account is usually taken of the things that strike the senses, and especially of the goods of fortune. This is not only because of agreements and laws which ground a perfect right to those distinctions, but also because of the influence of the prevailing manners, on which an imperfect right is often founded. Manners may scarcely be neglected without a stain of boorishness, whether among citizens or between those who live in mutual natural liberty. [II.14.13.1]
iv. On virtues12
The virtues which are particularly relevant here are reviewed by the celebrated Barbeyrac as follows: 1. Piety to God. 2. Justice and love of equity. 3. Fortitude tempered with prudence. 4. Discretion. 5. Moderation of desires. 6. Kindness and mercy. 7. Generosity. The learned commentator illustrates each of these and several other things that Pufendorf says in this chapter with very appropriate reflections of his own and some which he has borrowed from writers of the highest genius. Prominent among these are Montaigne, Charron, La Bruyère, and, above all, the perceptive author of the noble tale Of the Deeds of Telemachus, the whole of which, indeed, from beginning to end, is an elegant and copious commentary on this chapter. See also Buddeus, Practical Philosophy, part III, ch. 5, secs. 3 ff.13 [II.11.2.i]
[Pufendorf gives a summary account of the professions, to which Carmichael adds the following paragraphs in praise of lawyers and doctors14 beginning with this comment:]
No one will take it amiss, I think, if I am reluctant to omit altogether from this list the two noble orders of the educated professions in one or other of which a good part of the youth of the university are expected to take their place one day. No one will take it amiss either that I have not chosen to separate advocates from judges; I have described their duties more in the words of their great teacher, Quintilian, than in my own, so that no one will complain that the subject is defined too rigidly. The evidence of truth itself forced from Cicero an acknowledgment of these duties though he did not always fulfill them. His words are quoted by Ammianus, book XXX, ch. 4, which the editors of the fragments have assigned to the fourth book of Cicero, On the Commonwealth:
Since nothing in the republic should be so uncorrupted as the giving of a vote or the declaring of an opinion, I do not understand why he who has corrupted it with money is deserving of punishment while he who has corrupted it with eloquence is even rewarded with praise. Indeed he seems to me to do more harm who corrupts a judge with an oration than with money, because no one can corrupt a prudent man with money but one can corrupt him with words.15
Let those who devote themselves to pleading cases, the high priests of Justice, not open the safe harbor of their eloquence to pirates, but look at the merits of each case before they take it up. Once they have taken up a case, let them work at it faithfully; but let them never think that they should put their case above truth and justice; and let them not hesitate to drop a case which seemed good when they took it but which they recognize to be wicked as the process unfolds, simply because they have always spoken the truth to their client: for they are not to deceive a litigant with vain hopes nor knowingly maintain an unjust case before the judges, either by misrepresenting the truth of the facts or by not scrupling to assert about the state of the law what they would blush to pronounce if they were giving judgment from the bench or lecturing in the classroom. It will be no impediment to the administration of justice but rather a help if the role of the advocate is guided by religion.
Those who offer their skills for the healing of the sick should give serious and sustained attention to learning their art and always improving their proficiency, as well as to investigating the case of each patient carefully; let them not take excessive fees by unduly prolonging the treatment, but prescribe the best remedies for each case, the same remedies, in fact, that they would apply to themselves in a similar case and give to their nearest and dearest.
[1.] From the notes to bk. II, ch. 12, “On Civil Laws in Particular”; bk. II, ch. 13, “On the Right of Life and Death”; bk. II, ch. 15, “On the Power of Sovereign Authority over Property within the State”; bk. II, ch. 11, “On the Duty of Sovereigns”; and bk. II, ch. 18, “On the Duties of Citizens.”
[2.] Amesius, De Conscientia et eius jure.
[3.] Huber, De Jure Civitatis, pp. 487–94.
[4.] justitia expletrix: for this term, see above, pp. 43–44.
[5.] This law restricted or prevented the bringing of an action for payment of a loan made to a son of a family.
[6.] This law forbade women to undertake liability for others, e.g., in standing surety for loans.
[7.] Barbeyrac, Discours sur la permission des loix, and Discours sur le bénéfice des loix. Both tracts were bound with Barbeyrac’s translation of Pufendorf’s Les devoirs de l’homme et du citoyen (1718; 1735).
[8.] Hobbes, On the Citizen, XIV.10, p. 159; Leviathan (1946), ch. 26, pp. 174–75.
[9.] Grotius, Rights of War and Peace, II.XXVI.1–6, pp. 507–15; and Pufendorf, Of the Law of Nature and Nations, VIII.I.6. Barbeyrac devoted a long note to Pufendorf’s discussion, arguing forcefully that citizens cannot execute iniquitous orders “without making themselves Accomplices of the Iniquity of him that gives them” (n. 2, pp. 750–51).
[10.] Titius, Observationes, no. 643.
[11.] Ibid., no. 666.
[12.] From the notes to bk. II, ch. 11, “On the Duty of Sovereigns”; and bk. II, ch. 18, “On the Duties of Citizens.”
[13.] Barbeyrac’s extensive discussion of the virtues that should be cultivated by sovereigns is set out in notes to Pufendorf, Of the Law of Nature and Nations, VII.IX.1– 4 (pp. 731–38). All of the references to the authors mentioned by Carmichael may be found there. The Spavan abridgement (1716) contains an adaptation of the same discussion at vol. II, pp. 249–73. Carmichael’s perfunctory treatment of the subject is consistent with his view that virtues are best understood as corollaries of the various rights and obligations of men and citizens. See above, pp. 18 and 43. It is not surprising on the other hand that Barbeyrac should have been more receptive to skeptical and humanistic writing on the virtues; while Barbeyrac maintained that natural law theories were the best antidote to skepticism, he frequently attempted, as we have seen, to incorporate the insights of skeptical authors in his exposition. See p. xv and 146, n. 3.
[14.] Loosely summarized from Quintilian, Education of the Orator, 12.7 ff.
[15.] This passage of Cicero, which is quoted by Ammianus Marcellinus, Roman History, XXX.4, is now assigned by editors to bk. 5 of Cicero, On the Commonwealth (De republica, 5.11, fr. 2).