Front Page Titles (by Subject) PART III: A more particular examination of the essential parts of sovereignty, or of the different rights of the sovereign, with respect to the internal administration of the state, such as the legislative power, the supreme power in matters of religion, - The Principles of Natural and Politic Law
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PART III: A more particular examination of the essential parts of sovereignty, or of the different rights of the sovereign, with respect to the internal administration of the state, such as the legislative power, the supreme power in matters of religion, - Jean-Jacques Burlamaqui, The Principles of Natural and Politic Law 
The Principles of Natural and Politic Law, trans. Thomas Nugent, ed. and with an Introduction by Peter Korkman (Indianpolis: Liberty Fund, 2006).
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A more particular examination of the essential parts of sovereignty, or of the different rights of the sovereign, with respect to the internal administration of the state, such as the legislative power, the supreme power in matters of religion, the right of inflicting punishments, and that which the sovereign has over the Bona Reipublicae,1 or the goods contained in the commonwealth.
Of the legislative power, and the civil laws which arise from it.
I. We have hitherto explained what2 relates to the nature of civil society in general, of government, and of sovereignty, which is the soul of it. Nothing remains to compleat the plan we laid down, but more par-<153>ticularly to examine the different parts of sovereignty, as well those which directly regard the internal administration of the state, as those which relate to its interests abroad, or to its concerns with foreign powers, which will afford us an opportunity of explaining the principal questions relating to those subjects; and to this purpose we design this and the subsequent part.
II. Among the essential parts of sovereignty, we have given the first rank to the legislative power, that is to say, the right which the sovereign has of giving laws to his subjects, and of directing their actions, or of prescribing the manner in which they ought to regulate their conduct; and it is from hence the civil laws are derived. As this right of the sovereign is, as it were, the essence of sovereignty, order requires that we should begin with the explication of whatever relates to it.
III. We shall not here repeat what we have elsewhere said of the nature of laws in general: But, supposing the principles we have established on that head, we shall only examine the nature and extent of the legislative power in society, and that of the civil laws and decrees of the sovereign from thence derived.
IV. Civil Laws then are all those ordinances by which the sovereign binds his subjects.3 The assemblage or body of those ordinances is what we call the Civil Law. In fine, civil jurisprudence is that science4 or art, by which the civil laws are not only established,<154> but explained in case of obscurity, and are properly applied to human actions.
V. The establishment of civil society ought to be fixed, so as to make a sure and undoubted provision for the happiness and tranquillity of man. For this purpose it was necessary to establish a constant order, and this could only be done by fixed and determinate laws.
VI. We have already observed, that it was necessary to take proper measures to render the laws of nature as effectual as they ought to be, in order to promote the happiness of society; and this is effected by means of the civil laws.5
For, 1°. They serve to make the laws of nature better known.
2°. They give them a new degree of force, and render the observance of them more secure, by means of their sanction, and of the punishments which the sovereign inflicts on those who despise and violate them.
3°. There are several things which the law of nature prescribes only in a general and indeterminate manner; so that the time, the manner, and the application to persons, are left to the prudence and discretion of every individual. It was however necessary, for the order and tranquillity of the state, that all this matter should be regulated; which is done by the civil laws.
4°. They also serve to explain any obscurity that may arise in the maxims of the law of nature.
5°. They qualify or restrain, in various ways, the use of those rights which every man naturally possesses.<155>
6°. Lastly, they determine the forms that are to be observed, and the precautions which ought to be taken, to render the different engagements that people enter into with each other effectual and inviolable; and they ascertain the manner in which a man is to prosecute his rights in the civil court.
VII. In order therefore to form a just idea of the civil laws, we must say, that as civil society is no other than natural society itself, qualified or restrained by the establishment of a sovereign whose business it is to maintain peace and order; in like manner the civil laws are those of nature, perfected in a manner suitable to the state and advantages of society.
VIII. As this is the case, we may very properly distinguish two sorts of civil laws. Some are such with respect to their authority only, and others with regard to their original. To the former class, we refer all the natural laws which serve as rules in civil courts, and which are also confirmed by a new sanction of the sovereign. Such are all laws which determine the crimes that are to be punished by the civil justice; and the obligations upon which an action may commence in the civil court, &c.
As to the civil laws, so called, because of their original, these are arbitrary decrees, which, for their foundation, have only the will of the sovereign, and suppose certain human establishments; or which regulate things relating to the particular advantage of the state, though indifferent in themselves, and undetermined by the law of nature. Such are the laws which prescribe the necessary forms in contracts<156> and testaments, the manner of proceeding in courts of justice, &c. But it must be observed, that all those regulations should tend to the good of the state as well as of individuals, so that they are properly appendages to the law of nature.6
IX. It is of great importance carefully to distinguish in the civil laws, what is natural and essential in them, from what is only adventitious. Those laws of nature, the observance of which is essentially conducive to the peace and tranquillity of mankind, ought certainly to have the force of law in all states; neither is it in the power of the prince to abrogate them. As to the others, which do not so essentially interest the happiness of society, it is not always expedient to give them the force of law, because the controversies about the violation of them would often be very perplexed and intricate, and likewise lay a foundation for an infinite number of litigious suits. Besides, it was proper to give the good and virtuous an opportunity of distinguishing themselves by the practice of those duties, the violation of which incurs no human penalties.
X. What we have said of the nature of civil laws sufficiently shews, that though the legislative be a supreme, yet it is not an arbitrary, power; but, on the contrary, it is limited in several respects.
1°. And as the sovereign holds the legislative power originally of the will of each member of the society, it is evident, that no man can confer on another a right which he has not himself; and consequently the legislative power cannot be extended beyond this<157> limit. The sovereign therefore can neither command nor forbid any other actions than such as are either voluntary or possible.
2°. Besides, the natural laws dispose of human actions antecedently to the civil laws, and men cannot recede from the authority of the former. Therefore, as those primitive laws limit the power of the sovereign, he can determine nothing so as to bind the subject contrary to what they either expressly command or forbid.
XI. But we must be careful not to confound two things entirely distinct, I mean the State of Nature, and the Laws of Nature. The primitive and natural state of man may admit of different changes and modifications, which are left to the disposal of man, and have nothing contrary to his obligations and duties. In this respect, the civil laws may produce a few changes in the natural state, and consequently make some regulations unknown to the law of nature, without containing any thing contrary to that law, which supposes the state of liberty in its full extent, but nevertheless permits mankind to limit and restrain that state, in the manner which appears most to their advantage.
XII. We are however far from being of the opinion of those writers,* who pretend that it is impossible the civil laws should be repugnant to that of nature, because, say they, there is nothing either just or unjust antecedently to the establishment of those laws. What we have above advanced, and the principles<158> we have established in the whole course of this work, sufficiently evince the absurdity of this opinion.7
XIII. It is as ridiculous to assert, that before the establishment of civil laws and society, there was no rule of justice to which mankind were subject, as to pretend that truth and rectitude depend on the will of man, and not on the nature of things. It would have even been impossible for mankind to found societies of any durability, if, antecedently to those societies, there had been neither justice nor injustice, and if they had not, on the contrary, been persuaded that it was just to keep their word, and unjust to break it.
XIV. Such in general is the extent of the legislative power, and the nature of the civil laws, by which that power exerts itself. Hence it follows, that the whole force of civil laws consists in two things, namely, in their Justice and in their Authority.
XV. The authority of the laws consists in the force given them by the person, who, being invested with the legislative power, has a right to enact those laws; and in the Divine Will which commands us to obey him. With regard to the justice of civil laws, it depends on their relation to the good order of society, of which they are the rule, and on the particular advantage of establishing them, according as different conjunctures may require.
XVI. And since the sovereignty, or right of com-<159>manding, is naturally founded on a beneficent Power, it necessarily follows, that the Authority and Justice of laws are two characteristics essential to their nature, in default of which they can produce no real obligation. The power of the sovereign constitutes the authority of his laws, and his beneficence permits him to make none but such as are conformable to equity.
XVII. However certain and incontestable these general principles may be, yet we ought to take care not to abuse them in the application. It is certainly essential to every law that it should be equitable and just; but we must not from thence conclude, that private subjects have a right to refuse obedience to the commands of the sovereign, under a pretence that they do not think them altogether just. For, besides that some allowance is to be made for human infirmity, the opposing the legislative power which constitutes the whole safety of the public, must evidently tend to the subversion of society; and subjects are obliged to suffer the inconveniencies which may arise from some unjust laws, rather than expose the state to ruin by their disobedience.
XVIII. But if the abuse of the legislative power proceeds to excess, and to the subversion of the fundamental principles of the laws of nature, and of the duties which it enjoins, it is certain that, under such circumstances, the subjects are, by the laws of God, not only authorized, but even obliged to refuse obedience to all laws of this kind.<160>
XIX. But this is not sufficient. That the laws may be able to impose a real obligation, and reckoned just and equitable, it is necessary the subjects should have a perfect knowledge of them; now they cannot of themselves know the civil laws, at least those of an arbitrary nature; these are, in some measure, facts of which the people may be ignorant. The sovereign ought therefore to declare his will, and to administer laws and justice, not by arbitrary and hasty decrees, but by mature regulations, duly promulgated.
XX. These principles furnish us with a reflection of great importance to sovereigns. Since the first quality of laws is, that they be known, sovereigns ought to publish them in the clearest manner. In particular, it is absolutely necessary that the laws be written in the language of the country; nay, it is proper that public professors should not use a foreign language in their lectures on jurisprudence. For what can be more repugnant to the principle which directs, that the laws should be perfectly known, than to make use of laws, written in a dead language, which the generality of the people do not understand; and to render the knowledge of those laws attainable only in that language? I cannot help saying, that this is an absurd practice,8 equally contrary to the glory of sovereigns, and to the advantage of subjects.
XXI. If we therefore suppose the civil laws to be accompanied with the conditions above-mentioned, they have certainly the force of obliging the subjects<161> to observe them. Every individual is bound to submit to their regulations, so long as they include nothing contrary to the divine law, whether natural or revealed; and this not only from a dread of the punishments annexed to the violation of them, but also from a principle of conscience, and in consequence of a maxim of natural law, which commands us to obey our lawful sovereign.9
XXII. In order rightly to comprehend this effect of the civil laws, it is to be observed, that the obligation, which they impose, extends not only to external actions, but also to the inward sentiments. The sovereign, by prescribing laws to his subjects, proposes to render them wise and virtuous. If he commands a good action, he is willing it should be done from principle; and when he forbids a crime, he not only prohibits the external action, but also the design or intention.
XXIII. In fact, man being a free agent, is induced to act only in consequence of his judgment, by a determination of his will. As this is the case, the most effectual means, which the sovereign can employ to procure the public happiness and tranquillity, is to work upon the mind, by disposing the hearts of his subjects to wisdom and virtue.
XXIV. Hence it is that public establishments are formed for the education of youth. Academies and professors are appointed for this purpose. The end of these institutions is to inform and instruct man-<162>kind, and to make them early acquainted with the rules of a happy and virtuous life. Thus the sovereign, by means of instruction, has an effectual method of instilling just ideas and notions into the minds of his subjects; and by these means his authority has a very great influence upon the internal actions, the thoughts, and inclinations of those who are subjected to the direction of his laws, so far at least as the nature of the thing will permit.
XXV. We shall close this chapter with the discussion of a question, which naturally presents itself in this place.10
Some ask, whether a subject can innocently execute the unjust commands of a sovereign, or if he ought not rather to refuse absolutely to obey him, even at the hazard of his life? Puffendorf seems to answer this question with a kind of hesitation, but at length he declares for the opinion of Hobbes in the following manner. We must distinguish, he says, whether the sovereign commands us in our own name to do an unjust action, which may be accounted our own; or, whether he orders us to perform it in his name, as instruments in the execution of it, and as an action which he accounts his own. In the latter case, he pretends that we may, without scruple, execute the action ordered by the sovereign, who is then to be considered as the only author of it. Thus, for example, soldiers ought11 to execute the orders of their prince, because they do not act in their own name, but as instruments and in the name of their master.<163> But, on the contrary, it is never lawful to do in our own name, an action that our conscience tells us is unjust or criminal. Thus, for instance, a judge, whatever orders he may have from the prince, ought never to condemn an innocent person, nor a witness depose against the truth.
XXVI. But, in my opinion, this distinction does not remove the difficulty; for in whatever manner we pretend that a subject acts in those cases, whether in his own name, or in that of his prince, his will concurs in some manner or other to the unjust and criminal action, which he executes by order of the sovereign. We must therefore impute either both actions partly to him, or else none at all.
XXVII. The surest way then, is to distinguish between a case where the prince commands a thing evidently unjust, and where the matter is doubtful. As to the former, we must generally, and without any restriction, maintain, that the greatest menaces ought never to induce us, even by the order and in the name of the sovereign, to do a thing which appears to us evidently unjust and criminal; and though we may be very excusable in the sight of man for having been overcome by such a severe trial, yet we shall not be so before the Divine tribunal.
XXVIII. Thus a parliament, for instance, commanded by the prince to register an edict manifestly unjust, ought certainly to refuse it. The same I say<164> of a minister of state, whom a prince would oblige to execute a tyrannical or iniquitous order; of an ambassador whose master gives him instructions contrary to honour and justice; or of an officer, whom the sovereign should command to kill a person whose innocence is as clear as the noon-day. In those cases we should nobly exert our courage, and with all our might resist injustice, even at the peril of our lives. It is better to obey God than men. For, in promising obedience to the sovereign, we could never do it but on condition, that he should not order any thing manifestly contrary to the laws of God, whether natural or revealed. To this purpose there is a beautiful passage in a tragedy written by Sophocles. “I did not believe (says Antigone to Creon king of Thebes) that the edicts of a mortal man, as you are, could be of such force, as to supersede the laws of the gods themselves, laws not written indeed, but certain and immutable; for they are not of yesterday or to-day, but established perpetually and for ever, and no one knows when they began. I ought not therefore, for fear of any man, to expose myself, by violating them, to the punishment of the gods.”*
XXIX. But in cases where the matter is doubtful, the best resolution is certainly to obey. The duty of obedience, being a clear obligation, ought to supersede all doubt.12 Otherwise, if the obligation of the subjects, to comply with the commands of their sovereign, permitted them to suspend their<165> obedience till they were convinced of the justice of his commands; this would manifestly annihilate the authority of the prince, and subvert all order and government. It would be necessary that soldiers, executioners, and other inferior officers of court, should understand politics and the civil law, otherwise they might excuse themselves from their duty of obedience, under the pretence that they are not sufficiently convinced of the justice of the orders given them; and this would render the prince incapable of exercising the functions of government. It is therefore the duty of the subject to obey in those circumstances; and if the action be unjust in itself, it cannot be imputed to him, but the whole blame falls on the sovereign.
XXX. Let us here collect the principal views which the sovereign ought to have in the enacting of laws.
1°. He should pay a regard to those primitive rules of justice which God himself has established, and take care that his laws be perfectly conformable to those of the Deity.
2°. The laws should be of such a nature, as to be easily followed and observed. Laws, too difficult to be put in execution, are apt to shake the authority of the magistrate, or to lay a foundation for insurrections.
3°. No laws ought to be made in regard to useless and unnecessary things.
4°. The laws ought to be such, that the subjects may be inclined to observe them rather of their own accord than through necessity. For this reason, the<166> sovereign should only make such laws as are evidently useful, or at least he should explain and make known to the subjects, the reasons and motives that have induced him to enact them.
5°. He ought not to be easily persuaded to change the established laws. Frequent changes in the laws certainly lessens their authority, as well as that of the sovereign.
6°. The prince ought not to grant dispensations without very good reason; otherwise he weakens the laws, and lays a foundation for jealousies, which are ever prejudicial to the state and to individuals.
7°. Laws should be so contrived as to be assisting to each other, that is to say, some should be preparatory to the observance of others, in order to facilitate their execution. Thus, for example, the sumptuary laws, which prescribe bounds to the expences of the subject, contribute greatly to the execution of those ordinances, which impose taxes and public contributions.
8°. A prince, who would make new laws, ought to be particularly attentive to time and conjunctures.
On this principally depends the success of a new law, and the manner in which it is received.
9°. In fine, the most effectual step a sovereign can take to enforce his laws, is to conform to them himself, and to shew the first example, as we have before observed.<167>
Of the right of judging the doctrines taught in the state: Of the care which the sovereign ought to take to form the manners of his subjects.
I. In the enumeration of the essential parts of sovereignty, we have comprehended the right of judging of the doctrines taught in the state, and particularly of every thing relating to religion. This is one of the most considerable prerogatives of the sovereign, which it behoves him to exert according to the rules of justice and prudence. Let us endeavour to shew the necessity of this prerogative, to establish its foundations, and to point out its extent and boundaries.
II. The first duty of the sovereign ought to be to take all possible pains to form the hearts and minds of his people. In vain would it be for him to enact the best laws, and to prescribe rules of conduct in every thing relative to the good of society, if he did not moreover take proper measures to convince his people of the justice and necessity of those rules, and of the advantages naturally arising from the strict observance of them.
III. And indeed, since the principle of all human actions is the will, and the acts of the will depend on the ideas we form of good and evil, as well as of the rewards and punishments, which must follow<168> those acts, so that every one is determined by his own judgment; it is evident that the sovereign ought to take care1 that his subjects be properly instructed from their infancy, in all those principles which can form them to an honest and sober life, and in such doctrines as are agreeable to the end and institution of society. This is the most effectual means of inducing men to a ready and sure obedience, and of forming their manners. Without this, the laws would not have a sufficient force to restrain the subject within the bounds of his duty. So long as men do not obey the laws from principle, their submission is precarious, and uncertain; and they will be ever ready to withdraw their obedience, when they are persuaded they can do it with impunity.
IV. If therefore people’s manner of thinking, or the ideas and opinions commonly received, and to which they are accustomed, have so much influence on their conduct, and so strongly contribute either to the good or evil of the state; and if it be the duty of the sovereign to attend to this article, he ought to neglect nothing that can contribute to the education of youth, to the advancement of the sciences, and to the progress of truth. If this be the case, we must needs grant him a right of judging of the doctrines publicly taught, and of proscribing all those which may be opposite to the public good and tranquillity.
V. It belongs therefore to the sovereign alone to establish academies and public schools of all kinds, and to authorize the respective professors. It is his<169> business to take care that nothing be taught in them, under any pretext, contrary to the fundamental maxims of natural law, to the principles of religion or good politics; in a word, nothing capable of producing impressions prejudicial to the happiness of the state.
VI. But sovereigns ought to be particularly delicate as to the manner of using this prerogative, and not to exert it beyond its just bounds, but to use it only according to the rules of justice and prudence, otherwise great abuses will follow. Thus a particular point or article may be misapprehended, as detrimental to the state, while, in the main, it no way prejudices, but rather is advantageous to society; or princes, whether of their own accord, or at the instigation of wicked ministers, may erect inquisitions with respect to the most indifferent and even the truest opinions, especially in matters of religion.2
VII. Supreme rulers cannot therefore be too much on their guard, against suffering themselves to be imposed on by wicked men, who, under a pretext of public good and tranquillity, seek only their own particular interests, and who use their utmost efforts to render opinions obnoxious, only with a view to ruin men of greater probity than themselves.
VIII. The advancement of the sciences, and the progress of truth, require that a reasonable liberty should be granted to all those who busy themselves in such laudable pursuits, and that we should not<170> condemn a man as a criminal, merely because on certain subjects he has ideas different from those commonly received. Besides, a diversity of ideas and opinions, is so far from obstructing, that it rather facilitates, the progress of truth; provided however that sovereigns take proper measures to oblige men of letters to keep within the bounds of moderation, and that just respect which mankind owe to one another; and that they exert their authority in checking those who grow too warm in their disputes, and break through all rules of decency, so as to injure, calumniate, and render suspected every one that is not in their way of thinking. We must admit, as an indubitable maxim, that truth is of itself very advantageous to mankind, and to society, that no true opinion is contrary to peace and good order, and that all those notions, which, of their nature, are subversive of good order, must certainly be false; otherwise we must assert, that peace and concord are repugnant to the laws of nature.<171>
Of the power of the sovereign in matters of religion.
I. The power of the sovereign, in matters of religion, is of the last importance. Every one knows the disputes which have long subsisted on this topic between the empire and the priesthood, and how fatal the consequences of it have been to states. Hence it is equally necessary, both to sovereigns and subjects, to form just ideas on this article.
II. My opinion is, that the supreme authority in matters of religion, ought necessarily to belong to the sovereign; and the following are my reasons for this assertion.
III. I observe, 1°. that if the interest of society requires that laws should be established in relation to human affairs, that is, to things which properly and directly interest only our temporal happiness; this same interest cannot permit, that we should altogether neglect our spiritual concerns, or those which regard religion, and leave them without any regulation. This has been acknowledged in all ages, and among all nations; and this is the origin of the civil Law properly so called, and of the sacred or ecclesiastic Law. All civilized nations have established these two sorts of law.
IV. But if matters of religion have, in several respects, need of human regulation, the right of deter-<172>mining them in the last resort can belong only to the sovereign.
First Proof. This is incontestably proved by the very nature of sovereignty, which is no more than the right of determining in the last resort, and consequently admits of no power in the society it governs, either superior to, or exempt from, its jurisdiction, but embraces, in its full extent, every thing that can interest the happiness of the state, both sacred and profane.
V. The nature of sovereignty cannot permit any thing, susceptible of human direction, to be withdrawn from its authority; for what is withdrawn from the authority of the sovereign, must either be left independent, or subjected to some other person different from the sovereign himself.
VI. Were no rule established in matters of religion, this would be throw ing it into a confusion and disorder, quite contrary to the good of society, the nature of religion, and the views of the Deity, who is the author of it. But, if we submit these matters to an authority independent of that of the sovereign, we fall into another inconveniency, since thus we establish, in the same society, two sovereign powers independent of each other, which is not only incompatible with the nature of sovereignty, but a contradiction in itself.1
VII. And indeed, if there were several sovereigns in the same society, they might also give contrary orders. But who does not perceive that opposite<173> orders, with respect to the same affair, are manifestly repugnant to the nature of things, and cannot have their effect, nor produce a real obligation? How would it be possible, for instance, that a man, who receives different orders at the same time from two superiors, such as to repair to the camp, and to go to church, should be obliged to obey both? If it be said that he is not obliged to comply with both, there must therefore be some subordination of the one to the other, the inferior will yield to the superior, and it will not be true that they are both sovereign and independent. We may here very properly apply the words of Christ. No man can serve two masters; and a kingdom divided against itself cannot stand.
VIII. Second Proof. I draw my second proof from the end of civil society and sovereignty. The end of sovereignty is certainly the happiness of the people, and the preservation of the state. Now, as religion may several ways either injure or benefit the state, it follows, that the sovereign has a right over religion, at least so far as it can depend on human direction. He, who has a right to the end, has, undoubtedly, a right also to the means.
IX. Now that religion may several ways injure or benefit the state, we have already proved in the first volume of this work.2
1°. All men have constantly acknowledged, that the Deity makes his favours to a state depend principally on the care which the sovereign takes to induce his subjects to honour and serve him.<174>
2°. Religion can of itself contribute greatly to render mankind more obedient to the laws, more attached to their country, and more honest towards one another.
3°. The doctrines and ceremonies of religion have a considerable influence on the morals of people, and on the public happiness. The ideas which mankind imbibed of the Deity, have often misled them to the most preposterous forms of worship, and prompted them to sacrifice human victims. They have even, from those false ideas, drawn arguments in justification of vice, cruelty, and licentiousness, as we may see by reading the ancient poets. Since religion therefore has so much influence over the happiness or misery of society, who can doubt but it is subject to the direction of the sovereign?
X. Third Proof. What we have been affirming evinces, that it is incumbent on the sovereign to make religion, which includes the most valuable interests of mankind, the principal object of his care and application. He ought to promote the eternal, as well as the present and temporal happiness of his subjects: This is therefore a point properly subject to his jurisdiction.3
XI. Fourth Proof. In fine, we can in general acknowledge only two sovereigns, God and the prince. The sovereignty of God is a transcendent, universal, and absolute supremacy, to which even princes themselves are subject; the sovereignty of the prince holds the second rank, and is subordinate to that of God, but in such a manner, that the prince<175> has a right to regulate every thing, which interests the happiness of society, and by its nature is susceptible of human direction.
XII. After having thus established the right of the sovereign in matters of religion, let us examine into the extent and bounds of this prerogative; whereby it will appear, that these bounds are not different from those which the sovereignty admits in all other matters. We have already observed, that the power of the sovereign extended to every thing susceptible of human direction. Hence it follows, that the first boundary we ought to fix to the authority of the sovereign, but which indeed is so obvious as scarce needs mentioning, is, that he can order nothing impossible in its nature, either in religion, or any thing else; as for example, to fly into the air, to believe contradictions, &c.
XIII. The second boundary, but which does not more particularly interest religion than every thing else, is deduced from the Divine laws: for it is evident, that all human authority being subordinate to that of God; whatever the Deity has determined by some law, whether natural or positive, cannot be changed by the sovereign. This is the foundation of that maxim, It is better to obey God than men.
XIV. It is in consequence of these principles, that no human authority can, for example, forbid the preaching of the gospel, or the use of the sacraments, nor establish a new article of faith, nor intro-<176>duce a new worship: for God having given us a rule of religion, and forbidden us to alter this rule, it is not in the power of man to do it; and it would be absurd to imagine that any person whatever can either believe or practice a thing as conducive to his salvation, in opposition to the Divine declaration.
XV. It is also on the footing of the limitations here established, that the sovereign cannot lawfully assume to himself an empire over consciences, as if it were in his power to impose the necessity of believing such or such an article in matters of religion. Nature itself and the divine laws are equally contrary to this pretension. It is therefore no less absurd than impious to endeavour to constrain consciences, and to propagate religion by force of arms. The natural punishment of those who are in an error is to be taught.* As for the rest, we must leave the care of the success to God.
XVI. The authority of the sovereign, in matters of religion, cannot therefore extend beyond the bounds we have assigned to it; but these are the only bounds, neither do I imagine it possible to think of any others. But what is principally to be observed, is, that these limits of the sovereign power, in matters of religion, are not different from those he ought to acknowledge in every other matter; on the contrary, they are precisely the same; and equally agree with all the parts of the sove-<177>reignty, being no less applicable to common subjects than to those of religion. For example, it would be no more lawful for a father to neglect the education of his children, though the prince should order him to neglect it, than it would be for pastors or Christians to abandon the service of God, even if they had been commanded so to do by an impious sovereign. The reason of this is, because the law of God prohibits both, and this law is superior to all human authority.
XVII. However, though the power of the sovereign, in matters of religion, cannot change what God has determined, we may affirm, that those very things are, in some measure, submitted to the authority of the sovereign. Thus, for example, the prince has certainly a right to remove the external obstacles4 which may prevent the observance of the laws of God, and to make such an observance easy. This is even one of his principal duties. Hence also arises his prerogative of regulating the functions of the clergy and the circumstances of external worship, that the whole may be performed with greater decency, so far, at least, as the law of God has left these things to human direction. In a word, it is certain that the supreme magistrate may also give an additional degree of force and obligation to the divine laws, by temporal rewards and punishments. We must therefore acknowledge the right of the sovereign in regard to religion, and that this right cannot belong to any5 power on earth.<178>
XVIII. Yet the defenders of the rights of the priesthood start many difficulties on this subject, which it will be proper to answer. If God, say they, delegates to men the authority he has over his church, it is rather to his pastors and ministers of the gospel, than to sovereigns and magistrates. The power of the magistrate does not belong to the essence of the church. God, on the contrary, has established pastors over his church, and regulated the functions of their ministry; and in their office they are so far from being the vicegerents of sovereigns, that they are not even obliged to pay them an unlimited obedience. Besides, they exercise their functions on the sovereign, as well as on private persons; and the scripture, as well as church history, attribute a right6 of government to them.
Answer. When they say that the power of the magistrate does not belong to the essence of the church, they would explain themselves more properly, if they said that the church may subsist though there were no magistrates. This is true, but we cannot from hence conclude, that the magistrate has no authority over the church; for, by the same reason, we might prove that merchants, physicians, and every person else, do not depend on the sovereign; because it is not essential to merchants, physicians, and mankind in general, to be governed by magistrates. However, reason and scripture subject them to the superior powers.
XIX. 2°. What they add is very true, that God has established pastors, and regulated their functions,<179> and that in this quality they are not the vicegerents of human powers; but it is easy to convince them by examples, that they can draw no consequence from thence to the prejudice of the supreme authority. The function of a physician is from God as the Author of nature; and that of a pastor is derived also from the Deity as the Author of religion. This however does not hinder the physician from having a dependance on the sovereign. The same may be said of agriculture, commerce, and all the arts. Besides, the judges hold their offices and places from the prince, yet they do not receive all the rules they are to follow from him. It is God himself who orders them to take no bribe, and to do nothing through hatred or favour, &c. Nothing more is requisite to shew how unjust a consequence it is to pretend, that, because a thing is established by God, it should be independent of the sovereign.
XX. 3°. But, say they, pastors are not always obliged to obey the supreme magistrate. We agree, but we have observed that this can only take place in matters directly opposite to the law of God; and we have shewn that this right is inherent in every person in common affairs as well as in religion, and consequently does not derogate from the authority of the sovereign.
XXI. 4°. Neither can we deny that the pastoral functions are exercised on kings, not only as members of the church, but also in particular as possessed of the regal power. But this proves nothing; for what function is there that does not regard the sovereign?<180> In particular, does the physician less exercise his profession on the prince, than on other people? Does he not equally prescribe for him a regimen and the medicines necessary for his health? Does not the office of a counsellor regard also the sovereign, and even in his quality of chief magistrate? And yet who ever thought of exempting those persons from a subjection to the supreme authority?
XXII. 5°. But lastly, say they, is it not certain, that scripture and ancient history ascribe the government of the church to pastors? This is also true, but we need only examine into the nature of the government belonging to the ministers of religion, to be convinced that it does not at all diminish the authority of the sovereign.
XXIII. There is a government of simple direction, and a government of authority. The former consists in giving counsel, or teaching the rules which ought to be followed. But it supposes no authority in him who governs, neither does it restrain the liberty of those who are governed, except in as much as the laws inculcated on that occasion imply an obligation of themselves. Such is the government of physicians concerning health, of lawyers with regard to civil affairs, and of counsellors of state with respect to politics. The opinions of those persons are not obligatory in regard to indifferent things; and in necessary affairs they are not binding of themselves, but only so far as they inculcate the laws established by nature, or by the sovereign, and this is the species of government belonging to pastors.<181>
XXIV. But there is also a government of jurisdiction and authority, which implies the right of establishing regulations, and really obliges the subject. This government, arising from the sovereign authority, obliges by the nature of the authority itself, which confers the power of compulsion. But it is to be remarked, that real authority is inseparable from the right of compelling and obliging. These are the criterion by which alone it may be distinguished. It is this last species of government which we ascribe to the sovereign; and of which we affirm that it does not belong to pastors.*
XXV. We therefore say, that the government, belonging to pastors, is that of counsel, instruction and persuasion, whose entire force and authority consists in the word of God, which they ought to teach the people; and by no means in a personal authority. Their power is to declare the orders of the Deity, and goes no farther.
XXVI. If at present we compare these different species of government, we shall easily perceive that they are not opposite to each other, even in matters of religion. The government of simple direction, which we give to pastors, does not clash with the sovereign authority; on the contrary, it may find an advantage in its aid and assistance. Thus there is no contradiction in saying, that the so-<182>vereign governs the pastors, and that he is also governed by them, provided we attend to the different species of government. These are the general principles of this important doctrine, and it is easy to apply them to particular cases.
Of the power of the sovereign over the lives and fortunes of his subjects in criminal cases.
I. The principal end of civil government and society, is to secure to mankind all their natural advantages, and especially their lives. This end necessarily requires that the sovereign should have some right over the lives of his subjects, either in an indirect manner, for the defence of the state, or in a direct manner, for the punishment of crimes.1
II. The power of the prince over the lives of the subjects, with respect to the defence of the state, regards the right of war, of which we shall treat hereafter. Here we intend to speak only of the power of inflicting punishments.
III. The first question which presents itself, is to know the origin and foundation of this part of the sovereign power; a question, which cannot be answered without some difficulty. Punishment, it is said, is an evil which a person suffers in a compulsive way: A man cannot punish himself; and consequently<183> it seems that individuals could not transfer to the sovereign a right which they had not over themselves.2
IV. Some civilians pretend, that when a sovereign inflicts punishments on his subjects, he does it by virtue of their own consent; because, by submitting to his authority, they have promised to acquiesce in every thing he should do with respect to them; and in particular a subject, who determines to commit a crime, consents thereby to suffer the punishment established against the delinquent.
V. But it seems difficult to determine the right of the sovereign on a presumption of this nature, especially with respect to capital punishments; neither is it necessary to have recourse to this pretended consent of criminals, in order to establish the vindicative power. It is better to say that the right of punishing malefactors, derives its origin from that which every individual originally had in the society of nature, to repel the injuries committed against himself, or against the members of the society, which right has been yielded and transferred to the sovereign.3
VI. In a word, the right of executing the laws of nature, and of punishing those who violate them, belongs originally to society in general, and to each individual in particular; otherwise the laws which nature and reason impose on man, would be entirely useless in a state of nature, if no body had the power of putting them in execution, or of punishing the violation of them.<184>
VII. Whoever violates the laws of nature, testifies thereby, that he tramples on the maxims of reason and equity, which God has prescribed for the common safety; and thus he becomes an enemy of mankind. Since therefore every man has an incontestable right to take care of his own preservation and that of society, he may, without doubt, inflict on such a person punishments capable of producing repentance in him, of hindering him from committing the like crimes for the future, and even of deterring others by his example. In a word, the same laws of nature which prohibit vice, do also confer a right of pursuing the perpetrator of it, and of punishing him in a just proportion.
VIII. It is true, in a state of nature, these kinds of chastisements are not inflicted by authority, and the criminal might happen to shelter himself from the punishments he has to dread from other men, or even repel their attacks. But the right of punishment is not for that either less real or less founded. The difficulty of putting it in execution does not destroy it: This was one of the inconveniencies of the primitive state, which men have efficaciously remedied by the establishment of sovereignty.
IX. By following these principles, it is easy to comprehend that the right of a sovereign, to punish crimes, is no other than that natural right which human society and every individual had originally to execute the law of nature, and to take care of their own safety; this natural right has been yielded and transferred to the sovereign, who, by means of<185> the authority with which he is invested, exercises it in such a manner, as it is difficult for wicked men to evade it. Besides, whether we call this natural right of punishing crimes the vindicative power, or whether we refer it to a kind of right of war, is a matter of indifference, neither does it change its nature on that account.
X. This is the true foundation of the right of the sovereign with respect to punishments. This being granted, I define punishment an evil, with which the prince threatens those who are disposed to violate his laws, and which he really inflicts, in a just proportion, whenever they violate them, independently of the reparation of the damage, with a view to some future good, and finally for the safety and peace of society.
XI. I say, 1°. that punishment is an evil, and this evil may be of a different nature, according as it affects the life of a person, his body, his reputation, or his estate. Besides, it is indifferent whether this evil consists in hard and toilsome labour, or in suffering something painful.
XII. I add, in the second place, that it is the sovereign who awards punishments; not that every punishment in general supposes sovereignty, but because we are here speaking of the right of punishing in society, and as a branch of the supreme power. It is therefore the sovereign alone that is empowered to award punishments in society; but individuals cannot do themselves justice, without encroaching on the rights of the prince.<186>
XIII. I say, 3°. with which the sovereign threatens, &c. to denote the chief intention of the prince. He threatens first, and then punishes, if menaces be not sufficient to prevent the crime. Hence it also appears that punishment ever supposes guilt, and consequently we ought not to reckon among punishments, properly so called, the different evils to which men are exposed, without having antecedently committed a crime.
XIV. I add, 4°. that punishment is inflicted independently of the reparation of the damage, to shew that these are two things very distinct, and ought not to be confounded. Every crime is attended with two obligations; the first is, to repair the injury committed; and the second, to suffer the punishment; therefore the delinquent ought to satisfy both. It is also to be observed on this occasion, that the right of punishment in civil society is transferred to the magistrate, who may by his own authority pardon a criminal; but this is not the case with respect to the right of satisfaction or reparation of damages. The magistrate cannot acquit the offender in this article, and the injured person always retains his right; so that he is wronged, if he be hindered from obtaining due satisfaction.4
XV. Lastly, 5°. by saying, that punishment is inflicted with a view to some good; we point out the end which the prince ought to propose to himself in inflicting punishments, and this we shall more particularly explain.<187>
XVI. The sovereign, as such, has not only a right, but is also obliged to punish crimes. The use of punishment is so far from being contrary to equity, that it is absolutely requisite for the public tranquillity. The supreme power would be useless, were it not invested with a right, and armed with a force, sufficient to deter the wicked by the apprehension of some evil, and to make them suffer that evil, when they injure society. It was even necessary that this power should extend so far, as to make them suffer the greatest of natural evils, which is death; in order effectually to repress the most daring audaciousness, and, as it were, to balance the different degrees of human wickedness by a sufficient counterpoise.
XVII. Such is the right of the sovereign. But if he has a right to punish, the criminal must be also under some obligation in this respect; for we cannot possibly conceive a right without an obligation corresponding to it. But wherein does this obligation of the criminal consist? Is he obliged to betray himself, and voluntarily expose himself to punishment? I answer, that this is not necessary for the end proposed in the establishment of punishments; nor can we reasonably require that a man should thus betray himself; but this does not hinder him from being under a real obligation.5
XVIII. 1°. It is certain, that when there is a simple pecuniary punishment, to which a man has been lawfully condemned, he ought to pay<188> it without being forced by the magistrate; not only prudence requires it, but also the rules of justice, according to which we are bound to repair any injury we have committed, and to obey lawful judges.
XIX. 2°. What relates to corporal, and especially to capital, punishments, is attended with greater difficulty. Such is our natural fondness for life,6 and aversion to infamy, that a criminal cannot be under an obligation of accusing himself voluntarily, and presenting himself to punishment; and indeed neither the public good, nor the rights of the person intrusted with the supreme authority, demand it.
XX. 3°. In consequence of this same principle, a criminal may innocently seek his safety in flight, and is not obliged to remain in prison if he perceives the doors open, or if he can easily force them. But it is not lawful for him to procure his liberty by the commission of a new crime, as by cutting the throats of the jailors, or by killing those sent to apprehend him.
XXI. 4°. But, in fine, if we suppose that the criminal is known, that he is taken, that he cannot make his escape from prison, and that, after a mature examination or trial, he is convicted of the crime, and consequently condemned to condign punishment; he is in this case certainly obliged to undergo the punishment, and to acknowledge the lawfulness of his sentence; so that there is no injury<189> done him, nor can he reasonably complain of any one but himself: Much less can he withdraw from punishment by violence, and oppose the magistrate in the exercise of his right. In this properly consists the obligation of the criminal with respect to punishment. Let us now enquire more particularly into the end the sovereign ought to propose to himself in inflicting them.
XXII. In general, it is certain that the prince never ought to inflict punishments but with a view to some public advantage. To make a man suffer merely because he has done a thing, and to attend only to what has passed, is a piece of cruelty condemned by reason; for, after all, it is impossible that the fact should be undone. In short, the right of punishing is a part of sovereignty: now sovereignty is founded ultimately on a beneficent power: it follows therefore, that even when the chief ruler makes use of his power of the sword, he ought to aim at some advantage, or future good, agreeably to what is required of him by the very nature and foundation of his authority.7
XXIII. The principal end of punishment is therefore the welfare8 of society; but as there may be different means of arriving at this end, according to different circumstances, the sovereign also, in inflicting punishments, proposes different and particular views, ever subordinate, and all finally reducible to the principal end above-mentioned. What we have said, agrees with the ob-<190>servation of Grotius.* “In punishments, we must either have the good of the criminal in view, or the advantage of him whose interest it was that the crime should not have been committed, or the good of all indifferently.”
XXIV. Hence the sovereign sometimes proposes to correct the criminal, and make him lose the vicious habit, so as to cure the evil by its contrary, and to take away the sweets of the crime by the bitterness of the punishment. This punishment, if the criminal is reformed by it, tends to the public good. But if he should persevere in his wickedness, the sovereign must have recourse to more violent remedies, and even to death.
XXV. Sometimes the chief ruler proposes to deprive criminals of the means of committing new crimes; as for example, by taking from them the arms which they might use, by shutting them up in prison, by banishing them, or even by putting them to death. At the same time he takes care of the public safety, not only with respect to the criminals themselves, but also with regard to those inclined to commit the like crime, in deterring them by those examples. For this reason, nothing is more agreeable to the end of punishment, than to inflict it with such a solemnity9 as is most proper to make an impression on the minds of the vulgar.
XXVI. All these particular ends of punishment<191> ought to be constantly subordinate, and referred to the principal end, namely, the safety of the public, and the sovereign ought to use them all as means of obtaining that end; so that he should not have recourse to the most rigorous punishments, till those of greater lenity are insufficient to procure the public tranquillity.
XXVII. But here a question arises, whether all actions, contrary to the laws, can be lawfully punished? I answer, that the very end of punishment, and the constitution of human nature, evince there may be actions, in themselves evil, which however it is not necessary for human justice to punish.10
XXVIII. And, 1°. acts purely internal, or simple thoughts which do not discover themselves by any external acts prejudicial to society; for example, the agreeable idea of a bad action, the desire of committing it, the design of it without proceeding to the execution, &c. all these are not subject to the severity of human punishment, even though it should happen that they are afterwards discovered.
XXIX. On this subject we must however make the following remarks. The first is, that if this kind of crimes be not subject to human punishment, it is because the weakness of man does not permit, even for the good of society, that he should be treated with the utmost rigour. We ought to have a just regard for humanity in things, which, though bad in themselves, do not greatly affect the public order and tranquillity. The second remark<192> is, that though acts, purely internal, are not subject to civil punishment, we must not for this reason conclude, that these acts are not under the direction of the civil laws. We have before established the contrary.* In a word, it is evident that the laws of nature expressly condemn such actions, and that they are punished by the Deity.
XXX. 2°. It would be too severe to punish every peccadillo; since human frailty, notwithstanding the greatest caution and attention, cannot avoid a multitude of slips and infirmities. This is a consequence of the toleration due to humanity.
XXXI. 3°. In a word, we must necessarily leave unpunished, those common vices which are the consequences of a general corruption; as for instance, ambition, avarice, inhumanity, ingratitude, hypocrisy, envy, pride, wrath, &c. for if a sovereign wanted to punish such dispositions with rigour, he would be reduced to the necessity of reigning in a desert. It is sufficient to punish those vices when they prompt men to enormous and overt acts.
XXXII. It is not even always necessary to punish crimes in themselves punishable, for there are cases in which the sovereign may pardon; and of this we must judge by the very end of punishment.11 <193>
XXXIII. The public good is the ultimate end of all punishment. If therefore there are circumstances, in which, by pardoning, as much or more advantage is procured than by punishing, then there is no obligation to punish, and the sovereign even ought to shew clemency. Thus if the crime be concealed, or be only known to a few, it is not always necessary, nay it would sometimes be dangerous, to make it public by punishment; for many abstain from evil, rather from their ignorance of vice, than from a knowledge and love of virtue. Cicero observes, with regard to Solon’s having no law against parricide, that this silence of the legislator has been looked upon as a great mark of prudence; forasmuch as he made no prohibition of a thing of which there had been yet no example, lest, by speaking of it, he should seem to give the people a notion of committing it, rather than deter them from it.
We may also consider the personal services which the criminal, or some of his family, have done to the state, and whether he can still be of great advantage to it, so that the impression made by the sight of his punishment be not likely to produce so much good as he himself is capable of doing. Thus at sea, when the pilot has committed a crime, and there is none on board capable of navigating the ship, it would be destroying all those in the vessel to punish him. This example may also be applied to the general of an army.
In a word,12 the public advantage, which is the true measure of punishment, sometimes requires that the sovereign should pardon, because of the great number of criminals. The prudence of government demands<194> that the justice, established for the preservation of society, should not be exercised in such a manner as to subvert the state.
XXXIV. All crimes are not equal, and it is but equity there should be a due proportion between the crime and the punishment. We may judge of the greatness of a crime in general by its object, by the intention and malice of the criminal, and by the prejudice arising to society from it; and to this latter consequence, the two others must be ultimately referred.
XXXV. According to the dignity of the object,13 the action is more or less criminal. We must place, in the first class, those crimes which interest society in general; the next are those which disturb the order of civil society; and last of all those which relate to individuals: the latter are more or less heinous, according to the value of the thing of which they deprive us. Thus he, who slays his father, commits a more horrid murder than if he had killed a stranger. He who insults a magistrate, is more to blame than if he had insulted his equal. A person who adds murder to robbery, is more guilty than he who only strips the traveller of his money.
XXXVI. The greater or lesser degree of malice also contributes very much to the enormity of the crime, and is to be deduced from several circumstances.
1°. From the motives which engage mankind to commit a crime, and which may be more or less easy to resist. Thus he, who robs or murders in cold<195> blood, is more culpable than he who yields to the violence of some furious passion.14
2°. From the particular character of the criminal, which, besides the general reasons, ought to retain him in his duty: “The higher a man’s birth is,” says Juvenal, “or the more exalted he is in dignity, the more enormous is the crime he commits.”* “This takes place especially with respect to princes, and so much the more, because the consequences of their bad actions are fatal to the state, from the number of persons who endeavour to imitate them.” This is the judicious remark made by Cicero.* The same observation may also be applied to magistrates and clergymen.
3°. We must also consider the circumstances of time and place, in which the crime has been committed, the manner of committing it, the instruments used for that purpose, &c.
4°. Lastly, we are to consider whether the criminal has made a custom of committing such a crime, or, if he is but rarely guilty of it; whether he has<196> committed it of his own accord, or been seduced by others, &c.
XXXVII. We may easily perceive that the difference of these circumstances interests the happiness and tranquillity of society, and consequently either augments or diminishes the enormity of the crime.
XXXVIII. There are therefore crimes lesser or greater than others; and consequently they do not all deserve to be punished with equal severity; but the kind and precise degree of punishment depends on the prudence of the sovereign. The following are the principal rules by which he ought to be directed.15
1°. The degree of punishment ought ever to be proportioned to the end of inflicting it, that is, to repress the insolence and malignity of the wicked, and to procure the internal peace and safety of the state. It is upon this principle that we must augment or diminish the rigour of punishment. The punishment is too rigorous, if we can, by milder means obtain the end proposed; and, on the contrary, it is too moderate when it has not a force sufficient to produce these effects, and when the criminals themselves despise it.
2°. According to this principle, every crime may be punished as the public good requires, without considering whether there be an equal or lesser punishment for another crime, which in itself appears more or less heinous: thus robbery, for instance, is of its own nature a less crime than murder; and yet highwaymen may, without injustice, be punished with death, as well as murderers.<197>
3°. The equality which the sovereign ought ever to observe in the exercise of justice, consists in punishing those alike who have trespassed alike; and in not pardoning a person, without very good reason, who has committed a crime for which others have been punished.
4°. It must be also observed, that we cannot multiply the kinds and degrees of punishment in infinitum; and as there is no greater punishment than death, it is necessary that certain crimes, though unequal in themselves, should be equally subject to capital punishment. All that can be said, is, that death may be more or less terrible, according as we employ16 a milder or shorter method to deprive a person of life.
5°. We ought, as much as possible, to incline to the merciful side, when there are not strong reasons for the contrary. This is the second part of clemency. The first consists in a total exemption from punishment, when the good of the state permits it. This is also one of the rules of the Roman law.*
6°. On the contrary, it is sometimes necessary and convenient to heighten the punishment, and to set such an example as may intimidate the wicked, when the evil can be prevented only by violent remedies.† <198>
7°. The same punishment does not make the same impression on all kinds of people, and consequently has not the same force to deter them from vice. We ought therefore to consider, both in the general penal sanction and in the application of it, the person of the criminal, and, in that, all those qualities of age, sex, state, riches, strength, and the like, which may either increase or diminish the sense of punishment. A particular fine, for instance, will distress a beggar, while it is nothing to a rich man: The same mark of ignominy will be very mortifying to a person of honour and quality, which would pass for a trifle with a vulgar fellow. Men have more strength to support punishments than women, and full-grown people more than those of tender years, &c. Let us also observe, that it belongs to the justice and prudence of government, always to follow the order of judgment and of the judiciary procedure in the infliction of punishments. This is necessary, not only that we may not commit injustice in an affair of such importance, but also that the sovereign may be secured against all suspicion of injustice and partiality. However, there are sometimes extraordinary and pressing circumstances, where the good of the state and the public safety do not permit us exactly to observe all the formalities of the criminal procedure; and provided, in those circumstances, the crime be duly proved, the sovereign may judge summarily, and without delay punish a criminal, whose punishment cannot be deferred without imminent danger to the state. Lastly, it is also a rule of prudence, that if we cannot chastise a criminal without exposing the state to great danger, the sovereign ought not<199> only to grant a pardon, but also to do it in such a manner as that it may appear rather to be the effect of clemency than of necessity.
XXXIX. What we have said relates to punishments inflicted for crimes of which a person is the sole and proper author. With respect to crimes committed by several, the following observations may serve as principles.
1°. It is certain that those, who are really accomplices in the crime, ought to be punished in proportion to the share they have in it, and according as they ought to be considered as principal causes, or subordinate and collateral instruments. In these cases, such persons suffer rather for their own crime than for that of another.
2°. As for crimes committed by a body or community, those only are really culpable who have given their actual consent to them; but they, who have been of a contrary opinion, are absolutely innocent. Thus Alexander, having given orders to sell all the Thebans after the taking of their city, excepted those, who, in the public deliberations, had opposed the breaking of the alliance with the Macedonians.
3°. Hence it is,17 that, with respect to crimes committed by a multitude, reasons of state and humanity direct, that we should principally punish those who are the ring-leaders, and pardon the rest. The severity of the sovereign to some will repress the audaciousness of the most resolute; and his clemency to others will gain him the hearts of the multitude.* <200>
4°. If the ring-leaders have sheltered themselves by flight, or otherwise, or if they have all an equal share in the crime, we must have recourse to a decimation, or other means, to punish some of them. By this method the terror reaches all, while but few fall under the punishment.
XL. Besides, it is a certain and inviolable rule, that no person can be lawfully punished for the crime of another, in which he has had no share. All merit and demerit is intirely personal and incommunicable; and we have no right to punish any but those who deserve it.18
XLI. It sometimes happens, however, that innocent persons suffer on account of the crimes of others; but we must make two remarks on this subject.
1°. Not every thing that occasions uneasiness, pain, or loss to a person, is properly a punishment; for example, when subjects suffer some grievances from the miscarriages and crimes of their prince, it is not, in respect to them, a punishment, but a misfortune.
The second remark is, that these kinds of evils, or indirect punishments, if we may call them so, are inseparable from the constitution of human affairs.
XLII. Thus if we confiscate the effects of a person, his children suffer indeed for it; but it is not properly a punishment to them, since those effects ought to belong to them only on supposition their father had kept them till his death. In a word, we must either almost entirely abolish the use of punishments, or<201> acknowledge, that these inconveniencies, inseparable from the constitution of human affairs, and from the particular relations which men have to each other, have nothing in themselves unjust.19
XLIII. Lastly, it is to be observed, that there are crimes so enormous, so essentially affecting in regard to society, that the public good authorizes the sovereign to take the strongest precautions against them, and even, if necessary, to make part of the punishment fall on the persons most dear to the criminal. Thus the children of traitors, or state criminals, may be excluded from honours and preferments. The father is severely punished by this method, since he sees he is the cause why the persons dearest to him are reduced to live in obscurity. But this is not properly a punishment in regard to the children; for the sovereign, having a right to give public employments to whom he pleases, may, when the public good requires it, exclude even persons who have done nothing to render themselves unworthy of these preferments. I confess that this is a hardship, but necessity authorizes it, to the end that the tenderness of a parent for his offspring may render him more cautious to undertake nothing against the state. But equity ought always to direct those judgments, and to mitigate them according to circumstances.
XLIV. I am not of opinion that we can exceed these bounds, neither does the public good require it. It is therefore a real piece of injustice, established among several nations, namely, to banish or kill the<202> children of a tyrant or traitor, and sometimes all his relations, though they were no accomplices in his crimes. This is sufficient to give us a right idea of the famous law of Arcadius* the Christian emperor.
Of the power of sovereigns over the Bona Reipublicae,1or the goods contained in the commonwealth.
I. The right of the sovereign over the goods contained in the commonwealth, relates either to the goods of the subject,2 or to those which belong to the commonwealth itself as such.
II. The right of the prince over the goods of the subject may be established two different ways; for either it may be founded on the very nature of the sovereignty, or on the particular manner in which it was acquired.
III. If we suppose, that a chief ruler possesses, with a full right of property, all the goods contained in the commonwealth, and that he has collected, as it were, his own subjects, who originally hold their estates of him, then it is certain that the sovereign has as absolute a power over those estates, as every master of a family has over his own patrimony; and that the subjects cannot enjoy or dispose of those<203> goods or estates, but so far as the sovereign permits. In these circumstances, while the sovereign has remitted nothing of his right by irrevocable grants, his subjects possess their estates in a precarious manner, revocable at pleasure, whenever the prince thinks fit; they can only supply themselves with sustenance and other necessaries from them: In this case the sovereignty is accompanied with a right of absolute property.
IV. But, 1°. this manner of establishing the power of the sovereign over the goods of the subjects cannot be of great use; and if it has sometimes taken place, it has only been among the oriental nations, who easily submit to a despotic government.3
2°. Experience teaches us, that this absolute dominion of the sovereign over the goods of the subject does not tend to the advantage of the state. A modern traveller observes, that the countries, where this propriety of the prince prevails, however beautiful and fertile of themselves, become daily more desolate, poor, and barbarous; or that at least they are not so flourishing as most of the kingdoms of Europe, where the subjects possess their estates as their own property, exclusive of the prince.
3°. The supreme power does not of itself require, that the prince should have this absolute dominion over the estates of his subjects. The property of individuals is prior to the formation of states, and there is no reason which can induce us to suppose that those individuals entirely transferred to the sovereign the right they had over their own estates;<204> on the contrary, it is to secure a quiet and easy possession of their properties, that they have instituted government and sovereignty.
4°. Besides, if we should suppose an absolute sovereignty acquired by arms, yet this does not of itself give an arbitrary dominion over the property of the subject. The same is true even of a patrimonial sovereignty, which confers a right of alienating the crown; for this right of the sovereign does not hinder the subject from enjoying his respective properties.4
V. Let us therefore conclude, that, in general, the right of the prince over the goods of the subjects is not an absolute dominion over their properties, but a right founded on the nature and end of sovereignty, which invests him with the power of disposing of those estates in different manners, for the benefit of individuals as well as of the state, without depriving the subjects of their right to their properties, except in cases where it is absolutely necessary for the public good.
VI. This being premised, the prince, as sovereign, has a right over the estates of his subjects principally in three different manners.
The first consists in regulating, by wise laws, the use which every one ought to make of his goods and estate, for the advantage of the state and that of individuals.
The second, in raising subsidies and taxes.<205>
The third, in using the rights of sovereign or transcendental propriety.*
VII. To the first head we must reduce all sumptuary laws, by which bounds are set to unnecessary expences, which ruin families, and consequently impoverish the state. Nothing is more conducive to the happiness of a nation, or more worthy of the care of the sovereign, than to oblige the subjects to oeconomy, frugality, and labour.
When luxury has once prevailed in a nation, the evil becomes almost incurable. As too great authority spoils kings, so luxury poisons a whole people. The most superfluous things are looked upon as necessary, and new necessities are daily invented. Thus families are ruined, and individuals disabled from contributing to the expences necessary for the public good. An individual, for instance, who spends only three fifths of his income, and pays one fifth for the public service, will not hurt himself, since he lays up a fifth to increase his stock. But if he spends all his income, he either cannot pay the taxes, or he must break in upon his capital.
Another inconveniency is, that not only the estates of individuals are squandered away by luxury, but, what is still worse, they are generally carried abroad into foreign countries, in pursuit of those things which flatter luxury and vanity.
The impoverishing of individuals produces also another evil for the state, by hindering marriages. On the contrary, people are more inclined to mar-<206>riage, when a moderate expence is sufficient for the support of a family.
This the emperor Augustus was very sensible of; for when he wanted to reform the manners of the Romans, among the various edicts which he either made or renewed, he re-established both the sumptuary law, and that which obliged people to marry.
When luxury is once introduced, it soon becomes a general evil, and the contagion insensibly spreads from the first men of the state to the very dregs of the people. The king’s relations want to imitate his magnificence; the nobility that of his relations; the gentry, or middle sort of people, endeavour to equal the nobility; and the poor would fain pass for gentry: Thus every one living beyond his income, the people are ruined, and all orders and distinctions confounded.
History informs us, that, in all ages, luxury has been one of the causes which has more or less5 contributed to the ruin and decay even of the most powerful states, because it sensibly enervates courage, and destroys virtue. Suetonius observes, that Julius Caesar invaded the liberties of his country only in consequence of not knowing how to pay the debts he had contracted by his excessive prodigality, nor how to support his expensive way of living. Many sided with him, because they had not wherewith to supply that luxury to which they had been accustomed, and they were in hopes of getting by the civil wars enough to maintain their former extravagance.*
We must observe, in fine, that, to render the sumptuary laws more effectual, princes and magistrates<207> ought, by the example of their own moderation, to put those out of countenance who love extravagance, and to encourage the prudent, who would easily submit to follow the pattern of a good oeconomy and honest frugality.
VIII. To this right of the sovereign of directing the subjects in the use of their estates and goods, we must also reduce the laws against gaming and prodigality, those which set bounds to grants, legacies, and testaments; and, in fine, those against idle and lazy people, and against persons that suffer their estates to run to ruin, purely by carelessness and neglect.6
IX. Above all, it is of great importance to use every endeavour to banish idleness, that fruitful source of disorders. The want of a useful and honest occupation is the foundation of an infinite number of mischiefs. The human mind cannot remain in a state of inaction, and if it be not employed on something good, it will inevitably apply itself to something bad, as the experience of all ages demonstrates. It were therefore to be wished, that there were laws against idleness, to prevent its pernicious effects, and that no person was permitted to live without some honest occupation either of the mind or body. Especially young people, who aspire after political, ecclesiastical, or military employments, ought not to be permitted to pass in shameful idleness, the time of their life most proper for the study of morality, politics, and religion. It is obvious that a wise<208> prince may, from these reflections, draw very important instructions for government.
X. The second manner, in which the prince can dispose of the goods or estates of his subjects, is, by demanding taxes or subsidies of them. That the sovereign has this right, will evidently appear, if we consider that taxes are no more than a contribution which individuals pay to the state for the preservation and defence of their lives and properties, a contribution absolutely necessary both for the ordinary and extraordinary expences of government, which the sovereign neither can nor ought to furnish out of his own fund: He must therefore, for that end and purpose, have a right to take away part of the goods of the subject by way of tax.7
XI. Tacitus relates a memorable story on this subject. “Nero,” he says, “once thought to abolish all taxes, and to make this magnificent grant to the Roman people; but the senate moderated his ardour; and, after having commended the emperor for his generous design, they told him that the empire would inevitably fall, if its foundations were sapped; that most of the taxes had been established by the consuls and tribunes during the very height of liberty in the times of the republic, and that they were the only means of supplying the immense expences necessary for the support of so great an empire.”
XII. Nothing is then generally more unjust and unreasonable than the complaints of the populace,<209> who frequently ascribe their misery to taxes, without reflecting that these are, on the contrary, the foundation of the tranquillity and safety of the state, and that they cannot refuse to pay them without prejudicing their own interests.
XIII. However, the end and prudence of civil government require not only that the people should not be overcharged in this respect, but also that the taxes should be raised in as gentle and imperceptible a manner as possible.8
XIV. And, 1°. the subjects must be equally charged, that they may have no just reason of complaint. A burden equally supported by all, is lighter to every individual; but if a considerable number release or excuse themselves, it becomes much more heavy and insupportable to the rest. As every subject equally enjoys the protection of the government, and the safety which it procures; it is just that they should all contribute to its support in a proper equality.
XV. 2°. It is to be observed however, that this equality does not consist in paying equal sums of money, but in equally bearing the burden imposed for the good of the state; that is, there must be a just proportion between the burden of the tax and the benefit of peace; for though all equally enjoy peace, yet the advantages, which all reap from it, are not equal.<210>
XVI. 3°. Every man ought therefore to be taxed in proportion to his income, both in ordinary and extraordinary exigencies.
XVII. 4°. Experience shews, that the best method of raising taxes, is to lay them on things daily consumed in life.
XVIII. 5°. As to merchandizes imported, it is to be observed, that if they are not necessary, but only subservient to luxury, very great duties may justly be laid on them.9
XIX. 6°. When foreign merchandizes consist of such things as may grow, or be manufactured at home, by the industry and application of our own people, the imposts ought to be raised higher upon those articles.
XX. 7°. With regard to the exportation of commodities of our own growth, if it be the interest of the state that they should not go out of the country, it may be right to raise the customs upon them; but on the contrary, if it is for the public advantage that they should be sent to foreign markets, then the duty of exportation ought to be diminished, or absolutely taken away. In some countries, by a wise piece of policy, rewards are given to the subjects, who export such commodities as are in too great plenty, and far surpassing the wants of the inhabitants.
XXI. 8°. In a word, in the application of all these maxims, the sovereign must attend to the good<211> of trade, and take all proper measures to make it flourish.
XXII. It is unnecessary to observe, that the right of the sovereign, with respect to taxes, being founded on the wants of the state, he ought never to raise them but in proportion to those wants; neither should he employ them but with that view, nor apply them to his own private uses.
XXIII. He ought also to attend to the conduct of the officers who collect them, so as to hinder their importunity and oppression. Thus Tacitus commends a very wise edict of the emperor Nero, “who ordered that the magistrates of Rome and of the provinces should receive complaints against the publicans at all times, and regulate them upon the spot.”
XXIV. The sovereign or transcendental property,* which, as we have said, constitutes the third part of the sovereign’s power over the estates of his subjects, consists in the right of making use of every thing the subject possesses, in order to answer the necessities of the state.10
XXV. Thus, for example, if a town is to be fortified, he may take the gardens, lands, or houses of private subjects, situated in the place where the ramparts or ditches are to be raised. In sieges, he may beat down houses and trees belonging to private persons, to the end that the enemy may not be sheltered by them, or the garrison incommoded.<212>
XXVI. There are great disputes, among politicians, concerning this transcendental property. Some absolutely will not admit of it; but the dispute turns more upon the word than the thing. It is certain that the very nature of sovereignty authorizes a prince, in case of necessity, to make use of the goods and fortunes of his subjects; since in conferring the supreme authority upon him, they have at the same time given him the power of doing and exacting every thing necessary for the preservation and advantage of the state. Whether this be called transcendental property, or by some other name, is altogether indifferent, provided we are agreed about the right itself.
XXVII. To say something more particular concerning this transcendental property, we must observe it to be a maxim of natural equity, that when contributions are to be raised for the exigencies of the state, and for the preservation of some particular object, by persons who enjoy it in common, every man ought to pay his quota, and should not be forced to bear more of the burden than another.11
XXVIII. But since it may happen that the pressing wants of the state, and particular circumstances, will not permit this rule to be literally followed, there is a necessity that the sovereign should have a right to deviate from it, and to seize on the property of a private subject, the use of which, in the present circumstances, is become necessary to the public. Hence this right takes place only<213> in the case of a necessity of state, which ought not to have too great an extent, but should be tempered as much as possible with the rules of equity.
XXIX. It is therefore just in that case, that the proprietors should be indemnified, as near as possible, either by their fellow-subjects, or by the exchequer. But if the subjects have voluntarily exposed themselves, by building houses in a place where they are to be pulled down in time of war, then the state is not in rigour obliged to indemnify them, and they may be reasonably thought to have consented to this loss. This is sufficient for what relates to the right of the sovereign over the estates12 of the subjects.
XXX. But, besides these rights, the prince has also originally a power of disposing of certain places called public goods, because they belong to the state as such: but as these public goods are not all of the same kind, the right of the sovereign in this respect also varies.13
XXXI. There are goods intended for the support of the king and the royal family, and others to defray the expences of the government. The former are called the crown lands, or the patrimony of the prince; and the latter the public treasure, or the revenue of the state.
XXXII. With regard to the former, the sovereign has the full and entire profits, and may dispose of<214> the revenues arising from them as he absolutely pleases. So that what he lays up out of his income makes an accession to his own private patrimony, unless the laws of the land have determined otherwise. With regard to the other public goods, he has only the simple administration of them, in which he ought to propose only the advantage of the state, and to express as much care and fidelity as a guardian with respect to the estate of his pupil.
XXXIII. By these principles we may judge to whom the acquisitions belong, which a prince has made during his reign; for if these acquisitions arise from the goods intended to defray the public expences, they ought certainly to accrue to the public, and not to the prince’s private patrimony. But if a king has undertaken and supported a war at his own expence, and without engaging or charging the state in the least, he may lawfully appropriate the acquisitions he has made in such an expedition.
XXXIV. From the principles here established it follows also, that the sovereign cannot, without the consent of the people or their representatives, alienate the least part either of the public patrimony, or of the crown lands, of which he has only the use. But we must distinguish between the goods themselves and the profits or produce of them. The king may dispose of the revenues or profits as he thinks proper, though he cannot alienate the principal.14
XXXV. A prince indeed, who has a right of laying taxes if he thinks meet and just, may, when<215> the necessities of the commonwealth require it, mortgage a part of the public patrimony: for it is the same thing to the people, whether they give money to prevent the mortgage, or it be levied upon them afterwards in order to redeem it.
XXXVI. This however is to be understood upon supposition, that things are not otherwise regulated by the fundamental laws of the state.
XXXVII. In respect to the alienation of the kingdom, or some part of it; from the principles hitherto established, we may easily form a judgment of the matter.
XXXVIII. 2°. But if the kingdom be not possessed as a patrimony, the king cannot, by his own authority, transfer or alienate any part of it; for then the consent of the people is necessary. Sovereignty of itself does not imply the right of alienation, and as the people cannot take the crown from the prince against his will, neither has the king a power of substituting another sovereign in his place without their consent.
XXXIX. 3°. But if only a part of the kingdom is to be alienated, besides the approbation of the king<216> and that of the people, it is necessary that the inhabitants of the part, which is to be alienated, should also consent; and the latter seems to be the most necessary. It is to no purpose that the other parts of the kingdom agree to the alienation of this province, if the inhabitants themselves oppose it. The right of the plurality of suffrages does not extend so far, as to cut off from the body of the state those who have not once violated their engagements, nor the laws of society.
XL. And indeed it is evident, that the persons who first erected the commonwealth, and those who voluntarily came into it afterwards, bound themselves, by mutual compact, to form a permanent body or society, under one and the same government, so long at least as they inclined to remain in the territories of the same state; and it is with a view to the advantages which accrued to them in common from this reciprocal union, that they first erected the state. This is the foundation of their compacts in regard to government. Therefore they cannot, against their will, be deprived of the right they have acquired of being a part of a certain body politic, except by way of punishment. Besides, in this case, there is an obligation corresponding to the above right. The state, by virtue of the same compact, has acquired a right over each of its members, so that no subject can put himself under a foreign government, nor disclaim the authority of his natural sovereign.
XLI. 4°. It is however to be observed, that there are two general exceptions to the principles here<217> established, both of them founded on the right and privileges arising from necessity. The first is, that though the body of the state has not the right of alienating any of its parts, so as to oblige that part, against its will, to submit to a new master, the state however may be justified in abandoning one of its parts, when there is an evident danger of perishing if they continue united.
XLII. It is true that even under those circumstances, the sovereign cannot directly oblige one of his towns or provinces to submit to another government. He only has a power to withdraw his forces, or abandon the inhabitants; but they retain the right of defending themselves if they can: so that if they find they have strength sufficient to resist the enemy, there is no reason why they should not; and if they succeed, they may erect themselves into a distinct commonwealth. Hence the conqueror becomes the lawful sovereign of that particular country only by the consent of the inhabitants, or by their swearing allegiance to him.
XLIII. It may be said, that, properly speaking, the state or the sovereign do not alienate, in this case, such a part, but only renounce a society whose engagements are at an end by virtue of a tacit exception arising from necessity. After all, it would be in vain for the body to persist in defending such a part, since we suppose it unable to preserve or defend itself. It is therefore a mere misfortune which must be suffered by the abandoned part.<218>
XLIV. 5°. But if this be the right of the body with respect to the part, the part has also, in like circumstances, the same right with regard to the body. Thus we cannot condemn a town, which, after having made the best resistance it could, chuses rather to surrender to the enemy, than be pillaged and exposed to fire and sword.
XLV. In a word, every one has a natural right to take care of his own preservation by all possible means; and it is principally for the better attainment of this end, that men have entered into civil societies. If therefore the state can no longer defend and protect the subjects, they are disengaged from the ties they were under, and resume their original right of taking care of themselves, independently of the state, in the manner they think most proper. Thus things are equal on both sides; and the sentiment of Grotius, who refuses the body of the state, with respect to the part, the same right which he grants the part with respect to the body, cannot be maintained.16
XLVI. We shall conclude this chapter with two remarks. The first is, that the maxim which some politicians inculcate so strongly, namely, that the goods appropriated to the crown are absolutely unalienable, is not true, except on the terms, and agreeably to the principles here established. What the same politicians add, that an alienation, succeeded by a peaceable possession for a long course of years, does not hinder a future right to what belonged to the crown, and the resumption of it by main force, on the first occasion, is altogether unreasonable.17 <219>
The second observation is, that since it is not lawful for a king, independently of the will of the people or of their representatives, to alienate the whole or any part of his kingdom, it is not right for him to render it feudatory to another prince; for this is evidently a kind of alienation.
The End of the Third Part.<220>
[1. ]The Latin was added by the translator.
[2. ]Read: “… explained all that relates to the nature of civil society in general, …”
[3. ]Read: “The Civil Laws then are all those laws that the sovereign of the society imposes on his subjects …”
[4. ]The translator adds the idea that jurisprudence is a science: in this connection, Burlamaqui states only that it is an art.
[5. ]Most of Burlamaqui’s observations in this paragraph are from DHC II.12 §§6–8 or from DNG VIII.1 §1 notes 2 and 3.
[6. ]This and the following paragraph are mainly based on DNG VIII.1 §1.
[7. ]Pufendorf presents and refutes Hobbes’s view in DNG VIII.1 §§2ff. Burlamaqui uses the reply in §5 of Pufendorf ’s account in the next paragraph.
[8. ]The translator replaces Burlamaqui’s exclamation “it is a vestige of barbarity” (“c’est là un reste de barbarie”) with “this is an absurd practice.”
[9. ]The translator modifies the passage, which is taken directly from Barbeyrac in DNG VIII.1 §1 note 3 in fine.
[10. ]Barbeyrac was strongly opposed to Pufendorf ’s contention that a citizen may innocently perform inhuman actions commanded by his sovereign; Burlamaqui’s presentation of the issue in this paragraph is borrowed from Pufendorf in DNG VIII.1 §6. Burlamaqui, in the three following paragraphs, presents Barbeyrac’s criticisms from note 4 and adds a quote from note 1. Finally, in paragraph 29, Burlamaqui returns to Pufendorf ’s criticized view, which he presents using Barbeyrac’s disapproving characterization from DNG VIII.1 §6 note 4. Yet in Burlamaqui’s text, the passage with which Barbeyrac rejected Pufendorf becomes a sentence with which Burlamaqui endorses Pufendorf ’s position—without responding to the Barbeyracian criticisms that had just been presented.
[11. ]The translator omits “always.”
[* ]Sophocl. Antigon. v. 463, &c.
[12. ]Read: “… ought to prevail in case of doubt” (“… doit l’emporter dans le doute”).
[1. ]Read: “… each acts in accordance with the opinion he entertains; …” and “… ought to make it his first care that …” This paragraph and the two following are from DNG VII.4 §8 and DNG VII.9 §4, including notes 1 and 2.
[2. ]This paragraph is from Barbeyrac in DNG VII.4 §8 note 3.
[1. ]Burlamaqui’s argument in this and the following paragraph follows Pufendorf ’s in DNG VII.4 §8 and especially in §11 in fine.
[2. ]This is another addition by the translator, meant to strengthen the impression that the Principles of Politic Law constitutes a genuine second part of a single Principles of Natural and Politic Law (see the introduction). Burlamaqui simply says “is incontestable.” The first argument below does not seem to be in Pufendorf or Barbeyrac, but the two others are similar to arguments in DNG VII.4 §11 or in DNG VII.9 §4 and in note 3 to the same.
[3. ]Burlamaqui’s view is opposite to Barbeyrac’s and Pufendorf ’s; see DNG VII.4 §11 note 2 and DHC II.12 §3.
[* ]Errantis poena est doceri.
[4. ]This argument was famously defended by Augustine, whose views were used in the French forced conversions of the Huguenots to Catholicism. Huguenot thinkers like Pierre Bayle and Barbeyrac were very critical of this argument; see, for example, Barbeyrac’s préface du traducteur §9 in DNG.
[5. ]The translator omits “other.”
[6. ]The translator replaces “duty” (“devoir”) with “right.”
[* ]See the gospel according to St. Luke, chap. xii. v. 14. first epistle to the Corinthians, chap. x. v. 4. Ephes. chap. vi. v. 17. Philip. iii. v. 20.
[1. ]The first paragraph is from DNG VIII.2 §1.
[2. ]This and the following paragraph are from DNG VIII.3 §1.
[3. ]Burlamaqui sides with Barbeyrac, Locke, and Grotius against Pufendorf here in his views concerning punishment. This paragraph and the next two are from DNG VIII.3 §4 note 3.
[4. ]This paragraph is based on DNG VIII.3 §4 note 3.
[5. ]Pufendorf discusses Hobbes’s view, which is here in question, in DNG VIII.3 §4; Burlamaqui’s discussion in the next four paragraphs is based on that paragraph and on Barbeyrac’s comments in note 8 to the same.
[6. ]Read: “Such is the natural instinct that attaches man to life, …”
[7. ]This paragraph is based on DNG VIII.3 §8, but the observation that sovereignty is founded on a beneficent power is added by Burlamaqui.
[8. ]For “welfare,” read “safety and tranquillity.” The quote from Grotius in this paragraph is from DNG VIII.3 §9, which is also the source for Burlamaqui’s next paragraph.
[* ]Lib. ii. cap. xx. § 6. N. 2.
[9. ]For “inflict it with such a solemnity …” read: “inflict it publicly, and with such arrangements as are most proper to make an impression …” This paragraph is from DNG VIII.3 §11.
[10. ]The discussion in this and the next four paragraphs is based on DNG VIII.3 §14, although Burlamaqui’s insistence that internal acts are also in some sense under the direction of civil laws is intended to express agreement with Pufendorf ’s critics, such as Leibniz in “The Judgment of an Anonymous Writer” §7, in Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature, ed. Ian Hunter and David Saunders (Indianapolis: Liberty Fund, 2003), pp. 267–305.
[* ]Chap. i. § 22, &c. [in this third part of PPL.]
[11. ]This is from DNG VIII.3 §15.
[12. ]For “In a word,” read: “Finally.” The above is from DNG VIII.3 §16, except the example of the pilot, which is from §17 in fine, as is the rest of this paragraph. The following two paragraphs are based on §18.
[13. ]The translator omits “that is, according to how considerable the offended persons are.”
[14. ]The first clause is from DNG VIII.3 §19, while clauses 2 and 3 are from §20. Clause 4 is from §22.
[* ]De Leg. lib. iii. cap. 14. Nec enim tantum mali est peccare principes, quanquam est magnum hoc per seipsum malum; quantum illud, quod permulti imitatores principum existunt: quo perniciosius de republica merentur vitiosi principes, quod non solum vitia concipiunt ipsi, sed ea infundunt in civitatem. Neque solum obsunt, quod ipsi corrumpuntur, sed etiam quod corrumpunt; plusque exemplo, quam peccato, nocent.
[15. ]This paragraph is from DNG VIII.3 §§23–25 (including Barbeyrac’s notes), except the passages in rule 7 concerning the waiving of formalities in pressing matters.
[16. ]Read: “according as we employ milder and shorter methods, or slow and cruel torments …”
[* ]In poenalibus causis, benignus interpretandum est. Lib. cv. § 2. ff. de Reg. Jur. Vid. sup. § 33.
[† ]Nonnunquam evenit, ut aliquorum maleficiorum supplicia exacerbantur, quoties nimirum, multis personis grassantibus, exemplo opus sit. Lib. xvi. § 10. ff. de poenis.
[17. ]For “Hence it is, that …” read: “Furthermore, …” This paragraph is from DNG VIII.3 §28, with rule 4 being from note 1 to the same.
[* ]Quintil. Declam. cap. vii. p. m. 237.
[18. ]This paragraph and the beginning of the next are based on DNG VIII.3 §30.
[19. ]This paragraph is based on DNG VIII.3 §31; the next paragraphs are based on §32 and §33, respectively.
[* ]Cod. and L. Jul. Maj. lib. ix. tit. 8. leg. 5.
[1. ]The Latin is added by the translator.
[2. ]The translator throughout gives the singular “subject” for Burlamaqui’s “subjects” (“sujets”). The first three paragraphs are from DNG VIII.5 §1.
[3. ]The first two remarks are from DHC II.15 §1 note 1; the third is based on DNG VIII.5 §2 and notes 1 and 2.
[4. ]This fourth remark echoes Barbeyrac’s criticism of how the distinction between usufructory versus patrimonial kingdoms was adopted by Pufendorf; see DGP I.3 §11, note 4.
[* ]Dominium eminens. [The translator gives “sovereign or transcendental propriety” for Burlamaqui’s “domaine eminent,” that is, “eminent domain.”]
[5. ]Read: “… that has contributed most to the ruin …” This paragraph is almost entirely from Barbeyrac’s first note to DNG VIII.5 §3, or more precisely from various thinkers that Barbeyrac quoted at length in that paragraph.
[* ]See Sall. ad Caesar. de Repub. ordinand.
[6. ]This paragraph and the next are from DNG VIII.5 §3 and from Barbeyrac’s sixth note to the same.
[7. ]This and the two following paragraphs are from DNG VIII.5 §4.
[8. ]This is from DNG VIII.5 §5, while the defense of progressive taxation in the following four paragraphs is from §6, where Pufendorf presents and discusses Hobbes’s views on the topic.
[9. ]This and the next four paragraphs are mainly based on DNG VIII.5 §5.
[* ]Dominium eminens. [This paragraph is based on DNG VIII.5 §3.]
[10. ]The translator omits “in dire need” at the end here (“dans un bésoin pressant”). This paragraph and the five following are from DNG VIII.5 §7.
[11. ]Read: “… every man ought to contribute in proportion to his interest in the thing” (“… chacun doit y contribuer à proportion de l’intérêt qu’il y a”).
[12. ]The translation throughout translates Burlamaqui’s “biens” with “estates.” While this does seem to correspond to Burlamaqui’s intentions in most cases, “biens” can also be taken in a broader sense to signify different kinds of property.
[13. ]This paragraph and the three following are from DNG VIII.5 §8.
[14. ]This paragraph and the two following are from DNG VIII.5 §11.
[15. ]The translator omits “truly” here. This paragraph and the seven following are from DNG VIII.5 §9, including the presentation of Grotius’s view, where Burlamaqui adds a reference to DGP, as if that were his immediate source. In fact, most of the text here is taken from DNG.
[* ]See Grotius, lib. ii. cap. vi.
[16. ]For this paragraph, see Barbeyrac’s Pufendorfian critique of Grotius in DGP II.6 §6 note 1.
[17. ]This paragraph is from DNG VIII.5 §9 in fine, except for its ending, which is from §10.