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Appendix to Definition XVIII in Which the Moral Sphere Is Explained - Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence 
Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009).
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During Pufendorf’s lifetime seven editions of the Latin text appeared: The Hague 1660, Jena 1660, Zwickau 1668, Jena 1669, Cambridge 1672, Frankfurt and Jena 1680, and Frankfurt 1694. The only modern translation is the English by William Abbott Oldfather based on the text of the Cambridge 1672 edition. Supplied with scanty philological notes and a photographic reprint of the Latin text, it was published in 1931 in the Classics of International Law Series by the Carnegie Endowment for International Peace (vol. 15). Parts of the Elements were also translated in a selection of texts edited by Craig L. Carr and translated by Michael Seidler.1 I was responsible for a definitive Latin edition published as volume 3 of Samuel Pufendorf, Gesammelte Werke (general editor Wilhelm Schmidt-Biggemann). It is based on the Latin text of the first edition (1660) and supplemented by the appendix on the moral sphere that was added to editions since 1669. Like all of the Gesammelte Werke, this is a critical variorum edition that is primarily directed to a scholarly audience well acquainted with the Latin language.
The present edition is a revision of Oldfather’s translation from 1931, which has been checked for mistranslations of the Latin text of 1672.2 A great part of my revisions concern inconsistencies in the translation of technical terms, which I have standardized to their proper English equivalents. Where a term requires deviation from the standard translation, the Latin original is added in square brackets. Thus Oldfather translates potestas, an active moral power to perform a voluntary action legitimately,3 as “authority” in most instances but sometimes switches to “power,” even in contexts where potestas has clearly been used in the normative sense. Here the translation has been standardized to “authority,” while potentia, a (natural) power or potency, is translated throughout as “power.” In those few instances where potestas has been used in the sense of a natural power, it will be rendered as “power [potestas].” In the instances where the Latin auctoritas (or autoritas) had also been translated as authority, I have added the Latin in brackets. In the case of imperium, which denotes an “authority over the persons of others,”4 Oldfather’s translation switches between “command,” “authority,” and “sovereignty,” according to the different contexts. Since Pufendorf primarily uses imperium as a technical term for the highest authority in the state, the translation has been standardized to “sovereignty” in most instances. In those few cases where imperium denotes the authority of commanding in a more general sense or a subordinate authority (for example, of a commanding officer), “command [imperium]” is used.
Appendix to Definition XVIII in Which the Moral Sphere Is Explained
For the sake of more copious instruction and illustration, by means of exterior orbs there can be represented in the diagram, in addition to the grades of intention and execution, also the objects of moral action divided into definite classes. This can be done in quite the most convenient fashion, it appears, if, according to the guidance of the Decalogue, the orbs, as it were, of human actions be constituted, and each orb be divided into two hemispheres, to wit, a polar hemisphere which includes actions enjoined, and an antipolar hemisphere, in which are located actions opposed to the injunctions. And, indeed, according to the analogy of the Copernican system, the sun can be placed in the very centre of the universe, inasmuch as it will represent to us God, Best and Greatest, whose nature one will otherwise scarcely illustrate by means of a more convenient simile than that derived from the centre and the periphery of the circle. For, aside from the fact that, as the periphery is produced from the centre, so are all other things produced by God, there is also a very great appropriateness, in that, with respect to the centre, nothing in the periphery ascends, and nothing descends, nothing is added, and nothing passes away, nothing is closer, and nothing more remote, nothing is on the right hand, and nothing on the left, nothing is set above, and nothing placed below, but all are present at the very centre in the same way, however much the circle move around and around in continuous motion; so, in respect to God, there is nothing past, nothing future, nothing more close, nothing more remote, although, in the continuous succession of duration, created things move round about, as it were, ascend, and descend, come into being, and perish. Consult Erhard Weigel’s Disputation on Duration, Leipzig, 1652, thesis no. 40.5 It was this among other things which the Pythagoreans, men without doubt far wiser than they are commonly thought by some to be, had in mind, when they defined God as a sphere, with its centre everywhere, and its periphery no where. And, in a special way, God can be called the centre of moral actions, as has been said above already, while, established in the heart of man as in a centre, not only does He flow into the physical being of actions, and with His finger point out the pole, that is, the rectitude of an action, but also while all human actions run back to Him, as to the centre from the periphery. Now we apprehend that the finger of God first of all points out Himself, and so constitutes God Himself as the prime object of moral actions. And as in the sun we see three things principally, substance, warmth, and light, so our actions towards God fall into three classes principally, (1) as we recognize in Him a Being supreme, one, best, and greatest, which, for its Majesty, is to be loved by us, cherished and honoured above all things. (2) As He is a benevolent being, by whose heat we are, as it were, warmed and animated, in consideration of which His name is to be invoked alone by us and treated with reverence. (3) As He is a most glorious being, which wishes the splendour of His praise and glory to be seen and celebrated by men. These matters are contained in the first three commandments of the Decalogue, and occupy the first three orbs of our system. Mother Earth follows the sun, and by her we designate the persons of men from whom we depend, for example, our superiors as such, who are made of the same earth as we are, and whose majesty is constrained within the limits of earth. Such are parents, and they who are equal to parents, namely guardians, magistrates, rulers, lords, to whom we are bound to show due honour, and whose legitimate commands we are bound to execute; and these are ordained in the fourth commandment. In the fifth place follows the sphere of Mars, which indicates the actions of man concerning both his life and his body, which is violated and destroyed by martial activities. These matters are contained in the fifth commandment. After Mars follows Venus, and thereby we suggest that the actions deriving their designation from her, are so to be regulated, that we preserve our body and our mind pure from every illicit lust, and do not molest the limits of another’s bed. Warning is given against this in the sixth commandment. Mercury holds the seventh Sphere, among astrologers the indicator both of those who make wealth by commerce, and of those for whom things not utterly lost are found. And thus disposition is here made concerning those actions which arise from commutative justice, and in regard to which every one is forbidden to have it appear that he desires to derive his lineage from Mercury by emulating the pitch-covered hands of Autolycus.6 This is the substance of the seventh commandment. By the eighth, or Jupiter, is indicated he, who, by the decree of horoscopes, when well disposed, promises good repute, when injured or weakened, accuses man of having a virulent tongue, and being a backbiter, bearing a serene countenance, but after he has mollified the credulous by flattering them to their face, delighting to cast infamy upon their backs when they are absent. So a bridle is here set upon the tongue, that it dare not attack wickedly the good name of others or riot in falsehoods, but that it cover their blemishes rather with honourable excuses, and give each his due praise. Those matters are promulgated in the eighth commandment. We assign the ninth orb to Saturn, the tenth to the moon; of which the former, in the understanding of the astrologers, is the index of a domicile, the latter, of marriage and children. On the former of these disposition is made in the ninth commandment, on the latter, in the tenth, that is to say, that we do not set our mind on them with the intention of defrauding our true Lord thereby. But if, according to the opinion of many theologians,7 we decide that, by the ninth commandment, actual concupiscence is forbidden, by the tenth, original concupiscence, the planets just mentioned will possess their orbs by a different title. For not inappropriately can that cold and sluggish and gloomy Saturn denote those appetites in man which make him cold and languid towards doing every good thing, and arouse sadness among the upright, who grieve that they cannot here be utterly freed from this low estate. But the moon, the mistress of fruitfulness and humours, indicates that fatal poison deeply infused in our nature and ever fruitful in a countless offspring of sins. And this poison, furthermore, causes our reason to have some brightness and penetration only in the darkness of things terrestrial, but to be utterly blind in the spiritual light; just as the moon dares to put forth her pallid countenance at night, indeed, but through the day fades away to the appearance of an obscure cloudlet. But all this, ὡς ἐν παρέργῳ [as a side issue], is merely for the sake of instruction, and to render the quantity of moral actions so much the clearer.
By the effect of a moral action is meant that which is produced by it.
1. We are here considering primarily the effect of good and bad actions as such, and this is either formal or material; and again, the former is either internal or external. The internal effect of a good action is the approbation of conscience which follows, and gives itself sweet joy in the recollection of that act. The internal effect of a bad action is the condemnation of conscience which follows, and the perturbation of the mind, anxiously held fast in contemplation of the evil deed, and shamefacedly turning away from those who know of it. The external effect of a good action is the approbation of it on the part of good men, and principally on the part of him who commanded that action; likewise, the good esteem and honour. The external effect of a bad action is the disapproval on the part of him who forbade it, and of other good men; likewise, the evil repute and ignominy.
2. The material effect of a good action, profitable and not owed, is merit; of an evil, demerit. Of these the former is recompensed by a reward and a premium; the latter is followed by punishment.
Merit is an estimative moral quality resulting to a man from an action which he is not bound to perform, in accordance with which there is owed him an equivalent good on the part of the one in whose favour that action was undertaken.
1. The foundation and, as it were, the fountain head of merit, is the performance of a work not owed, or, in other words, to receiving which at our hands the other person, for whose sake the deed was done, had no just claim. For, if I furnish the other person merely that which I am thoroughly bound to furnish, so that he has the authority to demand the same from me, it is perfectly patent, that, by the very act of furnishing the thing in question, I am merely meeting a debt and my obligation, and in the action itself there is nothing superabounding, as it were, wherefrom merit can arise for me. Hence it is well established that a mortal cannot have any merit at all towards God, even if we should grant that he can fulfil perfectly the divine law, and so God cannot in any way be man’s debtor, except on the faithfulness of a gratuitous promise, which, however, itself confers no right upon man. Thus, also, other actions which are enjoined upon us by men in virtue of their command [imperio], cannot directly produce for us merit towards the one who made the injunction, although God as well as men who are able to obligate one completely, are apt very frequently to provide definite good things and to confer them upon those who have fulfilled their commands, so as to excite promptitude in obedience. But they are not bound to furnish these because of merit on the part of the agent, or as though on the basis of a contract, but by the force of a generous promise. And so these good things are listed under the designation, not of a reward or premium, but of a gift or gratuitous premium.
2. For the acquisition of merit towards men there remain, therefore, those actions which were not owed them, whether it be that there was absolutely no binding obligation to furnish these, or nature, indeed, commanded or urged that those same actions be undertaken, the application, however, to individual cases having been left to our free choice; or else they were not commanded by a civil law, at least. The reason for this is that what I owe completely to a second person, he himself now has a right over, so that if I render it, properly speaking nothing is lost to me from that to which I myself have a right at the present moment, since, forsooth, if I am going to keep back or deny the same, I shall be doing an injury to the other party. This makes it clear enough that the thing is now his and no longer mine at all, and so there is left to me no place for merit in giving it over to him. But, in truth, when I perform something for another beyond a complete obligation, assuredly that matter, since it is lost to me, and accrues to him, leaves with me a perfect or an imperfect right to have from the second person, upon whom it was bestowed, that which will equal it in worth. And this very thing is merit.
3. When we expressly stipulate for the satisfaction of merit, it is properly called reward. But when the satisfaction of merit in all that concerns manner, time, and amount, is left to the free choice and equity of the second person, it is called premium. Now this is either a corporeal thing, as money, land, house, &c., and incorporeal, as the concession of immunities, privileges, and definite rights; or moral, as honour, praise, &c.; or else notional, as statues, inscriptions, crowns, and the like.
Demerit is an estimative moral quality resulting to a man from a bad action through which he is under obligation to make amends for the injury done to a second person thereby.
1. In any misdeeds whatsoever, at all events those which terminate in another person, there are found two things, the defect itself, or the divergence from the norm of law according to execution or intention, and the damage done, directly or indirectly, to a second person thereby. It is our task here to investigate what is wont and ought to be observed upon both of these points in a human court of law, for, as it is not ours to set forth the edicts of the Divine Tribunal, so we are averse to having them introduced there. It is certain, therefore, on the basis of the law of nature about not bringing upon a second person that whereby peace and human society would be disturbed, that every man whatsoever is bound to make amends to the other party for damage done him in any way at all by his own fault, and, if that damage has proceeded from malice, he is bound to give bond not to offend in the future.
2. Furthermore, among those who, being bound by no civil law, use merely the law of nature among one another, if, indeed, a person induced by repentance, of his own free will, and not compelled by force, presents himself in order to make amends for the damage, this same law of nature appears to obligate him to furnish no other bond than to pledge his good faith with a simple asseveration, or even with an oath, that he will avoid offences for the future, and this because that repentance is a sufficient indication of a change of mind and of a firm determination to refrain from injuries henceforward.1 And so, if the one who had received some damage should be unwilling to be content with that, but out of unjust lack of confidence or some asperity of temper should wish to extort a bond by the use of superior force, although by the law of nature the other be not bound thereto, the blame for violating the peace will attach to the first party himself, and the other can rightly resist by force the man who, out of a desire for vengeance, or excess of fear, is unwilling to be content with a fair satisfaction. In this case it results that he who did the injury is waging a just war, he who suffered it an unjust one. But, when one has to be driven by force to make satisfaction, since this very same circumstance renders quite clear his obstinacy in badness, and satisfaction cannot be obtained unless the injured forcibly overpowers the injurer, it rests with the victor to determine just what kind of bond will best provide for his own security. Here he may not merely proceed to taking away arms, demolishing or occupying fortified places, to hostages, perpetual imprisonment, and the like, but even to death itself, if, indeed, it be well enough established that the one restored to liberty will plot our destruction, and no more convenient remedy be found for avoiding that. For the rest, it cannot properly be said that one is bound to furnish a bond of this kind; because a bond presupposes and involves in him from whom it is taken some fault of the mind, and a sin against the law of nature, to wit, the denial of a spontaneous satisfaction and the defence by force of his misdeed.
3. Now, in truth, as states have been instituted for fastening with stronger bonds society among men, so the laws which they enact tend not merely to prescribe to citizens what is to be given to each man, and how each is to be recompensed for the damage done him by the fault or malice of a second person, but also to have all men whatsoever, as far as that is possible, protected, as it were, in advance against receiving injuries and losses, namely, by establishing punishments against delinquents; and this is done primarily because persons are very rarely found who without force or fear descend to making amends for the injury they have caused, and damage and injury are done not without disturbance, even if the same be afterwards made good in the most full measure. Therefore, the greatest and most convenient bond for security, which, indeed, the condition of human society allows, is this, namely, that, because of the punishment, it be more damaging to have injured a second person than not to have injured him. To that end all punishments which men exact from other men ought to tend. For that men should regard nothing but the pain in the one who is punished, is not only repugnant to the gentleness of human nature, but also quite useless, and it is characteristic only of children or weak women to get some solace for their own grief out of the suffering of their injurer. And so it appears to harmonize very poorly with reason, that among some states, for example, in homicide, it rests with the kinsmen of the murdered man to condone or to leave the punish-ment for homicide, as if it be proper for a man to be slain, not as an example, but to assuage the grief of the murdered man’s kinsmen.
4. In a state, therefore, aside from the fact that he who has done wrong is compelled by the supreme authority to make good, as far as nature admits, the damage done to a second party, precautions are taken for the future security of all men by inflicting punishment, the severity of which is to deter everybody from crime. In imposing these punishments there is regarded both the advantage of him whose interest it was that the misdeed did not take place, as well as the advantage of all other men in general, namely, that for the future neither he nor they suffer anything of the sort from the same person or from others.2 The former end can be attained if either the delinquent be destroyed, or his powers of doing harm be taken away, or by the evil which he suffers he be taught to give up his wrongdoing. That injuries be not done by others is brought about through open and conspicuous punishment, which by its example inspires terror in them. But those inflictions of pain upon others which regard nothing but the reformation of him who has done wrong, can scarcely be listed under the name of punishments, although most punishments which stop short of inflicting death, produce at the same time that effect also.
5. Now a threefold division can be made of punishments, to wit, into real punishments, which are paid in person or money, to which class also belong instances of removal from a lucrative office as such; moral, as reproof, relegation, ignominy, infamy, loss of civil status, &c.; and notional, as affixing a man’s name and effigy to the gallows, demolishing statues, erasing a man’s name from the records of some society or from some works which he has himself set up, adding to the same an ignominious designation, and the like. All these are applied with the purpose of bringing some suffering to the one upon whom they are inflicted. Hence, although laborious tasks are commonly imposed upon some persons in place of punishment; nevertheless, in so far as they are annoying to the agent, the same purposes are in mind, and so they are here regarded as suffering.
6. From all this one gathers just why it cannot be said properly that some one is bound to punishment, or punishment is owed by some one; because, namely, punishment signifies something which is to be imposed upon a man against his will, and it involves an abhorrence of the will from it3 (for otherwise it would not be adapted to its end, namely, by the sight of it to frighten men away from their evil deeds). But, in truth, the things to which we are properly bound are understood to be such that we ought to be moved of our own accord and gladly to furnish them. From this the reason is apparent why, for example, when, in constructing the same rampart, some countryman at the order of his master, and a criminal condemned thereto, do the same task, to the latter the work is a punishment, but not to the former; because, namely, the former is understood to be doing it on the basis of an obligation, and so willingly, but it is imposed upon the latter as something abhorrent to his will. Thus he also does not suffer a punishment who is compelled to pay a fine while giving surety for a second person. For, on the occasion, indeed, of the second person’s misdeed he sustains a loss, but in such a way that the second person’s misdeed is not the proximate cause of his suffering the loss, but his own will is, by which he bound himself through the giving of surety. From all this, likewise, it results that, just as a person when he has made good a damage done by him of the kind, indeed, which could be made good, is by no means bound to report upon himself, so that the punishment assigned by the law may be measured out to him; so, for the same reason, he can rightly avoid punishment by hiding or through flight. Finally, since that which I inflict upon myself cannot happen to one who is unwilling to bear it, it is patent also that no one can exact penalty from himself; and since the unwilling cannot be compelled to submit to punishment except by a superior, neither can he who does not have a superior in some state be subjected to human punishment.
7. Now as every punishment presupposes a misdeed or demerit, in such wise that it is contrary to nature for one to be punished because of some deed which cannot be imputed against him; so that pain or loss which in due consequence comes from the punishment of one person upon other persons who have done no wrong, cannot be designated by the name of punishment. For, just as other persons are by the punishment to be deterred from wrongdoing, so also the punishment ought to be imposed directly in view of the misdeed, and the pain or loss, which, in the case of a second person, is to have the character of punishment, ought to regard his own misdeed as the cause. And so that pain which one feels at the punishment of a kinsman or friend of his, is not a punishment, unless, perchance, he himself has concurred in that misdeed. Thus, properly speaking, children are not punished when their father because of some misdeed is fined in money or by the loss of his feudal holding; especially since on that score damage is not done directly to the children by taking away that to which they had their own right, but the loss comes to them merely as a consequence, namely, in that they do not have what they otherwise would have had, to wit, by the expiration of that condition without which they had no right, this condition being that the goods in question should have been kept by their parents until their death. Thus, when, on the parents having been reduced to servitude because of some misdeed, the children born thereafter to them become slaves also, in the case of the latter slavery does not at all have the character of punishment, but merely of a misfortune; especially since no one, before he is born, can have a right to be born in such and such a condition and no other. Precisely as an infant existing in its mother’s womb, if, indeed, it also lose life or liberty while its mother is being punished, cannot properly be said to have been punished; although the laws of many states rightly forbid that a pregnant woman suffer the death penalty before her child has been born. Also the Roman laws ordain that, if a free-woman conceive, and become thereafter a slave because of a misdeed, and give birth in this status, the child which is born of her is free.4 But those are improper expressions, whereby, for example, one extremely poor or sickly is said to be born of his parents to punishment.
8. Moreover, as it is in the highest degree conformable to nature for any one whatsoever to entrust to some honest third person the decision of his controversies with a second; so how each is to be safeguarded in his own security, or what the measure of punishment ought to be, is most conveniently fixed by a third person, because the sensitiveness of self-love, when irritated by a hurt, commonly forces us to punish the injurer more harshly than in the judgement of reason might otherwise suffice us. Since in states both of these matters are in the hands of those who enjoy the supreme sovereignty therein, it has also been placed in their free choice to determine what punishments they desire to inflict upon what crimes, and how severe these punishments shall be. Now in determining the degree of punishments, although the defect of the formal action is altogether to be considered, above all, as regards the intention, in such wise that the delinquent out of weakness, and the delinquent out of malice, be treated differently, as also the one who is carried away through emotions immediately followed by penitence, and the one who approaches the crime with his mind deliberately made up; nevertheless, it is not necessary that there always be the same proportion between punishments that there is between the objects violated through the misdeed; since, forsooth, the reason for not committing some misdeed does not properly result from the nobility or ignobility of the object, but from the authority and decree of the legislator, whose will he who commits a misdeed about a smaller object opposes quite as much as he who does the same about a larger one; although here legislators do not so follow their mere free choice, or ought not so to follow it, but intensify or remit punishments as it is of great or small concern to the commonwealth, or at the immediate moment, for some misdeed not to be committed. Thus he can be visited with the utmost punishment who is caught in the lowest grade of that crime by which the greatest injuries can be inflicted. From this is apparent also the reason for that trite saying: “Punishments are to be made more severe, as misdeeds increase or grow more frequent.” Just as, on the contrary, when some fault has passed into a custom, with the result that, because of the multitude of delinquents, there is no room to exact punishment, unless you wish utterly to exhaust or overturn the state by inflicting penalties, the necessity of the commonwealth orders that the punishments be remitted. This could not take place if we imagine vindicative justice among men to be of such a sort as to order that the punishment, appropriate in itself to the crime, should always be inflicted promiscuously upon any one at all, and not rather such as to adapt itself to the seasons and the advantage of the commonwealth, especially since in no other respect is it necessary for one man to exact a punishment from another for any crime at all, except to insure the preservation of human society. Thus, when a war is on, if other suitable men are wanting, who would doubt that a vigorous general ought deservedly to have the punishment of exile or death remitted, simply because the commonwealth cannot well do without his services at that time?
9. Now we are not of the opinion that it is always in all commonwealths necessary for that penalty which is expressed by the divine law to be imposed upon misdeeds; and this because that was the civil law of the Jews, in which the punishments attached were determined by the positive direction of God according to the genius of that people and commonwealth. Nay, since the character of different peoples is different, it is also proper that punishments be adjusted to the same. But, in truth, it can very well be doubted whether this principle ought to be applied also to the capital punishment for homicide expressed in the divine writings, since this punishment seems to have been enacted into law, not for the one nation of the Jews, but for the whole race of men. The reason for that is assuredly clear; because he whose wickedness is so great that he does not fear of set resolution to shed human blood, cannot be adequately guarded against by other men unless he be deprived of life. And so, as they who have committed murder with some incomplete intention only, which was soon followed by penitence, may be punished more mildly than they deserve; so the malicious murderer, as one who sets out to subvert the foundation of human society, is not to be spared, unless, perchance, the utmost necessity of the commonwealth require it. Nevertheless, even in this we by no means feel that that divine law is violated, partly because the determined quantity of every punishment is a matter of positive law, which it is no more than right should be adjusted to the needs of the commonwealth (and an exception is properly presumed to have been made of this circumstance in that divine law);5 and partly because no matter if sometimes a murderer of that sort has escaped the punishment of men, nevertheless, the divine vengeance is generally so accustomed to pursue him, that he perishes in a bloody death by an act of violence, either in some fashion by the sword of another man, or punished for some different crime. And assuredly it appears that this punishment of homicide is not so much a constitution given to men by means of the civil law, as it is a declaration of the vengeance to be exercised by God himself through the instrumentality of men, or through other tragic chances upon murderers, no matter if they have escaped the severity of a human court of law.
10. Nor is it to be thought necessary that a man should suffer the same thing which he has inflicted on another, or in other words that misdeeds always be punished by talion. For there are a great many crimes with which that kind of punishment does not at all square. For how would you conveniently punish adultery, lewdness, vile forms of copulation, crimes of lese-majesty, and the like by talion? Now in most crimes that punishment would be lighter than is just, and it would not adequately attain the end of punishments, which is to safeguard the security of each of us. For on that score the status of insolence would be better than that of innocence, if, indeed, the former should fear nothing more from the laws than the latter from the malice of evildoers, while in addition there was the dominating hope of avoiding punishment either by deceit, or by flight, or in some other way.
11. Nevertheless, in this point, as far as is possible, an equality is to be observed in punishments, namely, that those who are equally guilty should suffer equally, and the misdeed which in the case of one is punished, should not in the case of the other be condoned, without a very weighty cause;6 since, forsooth, an inequality of that kind frequently furnishes matter for dangerous disturbances to commonwealths; and punishment which seems to be meted out, not for the public welfare, but for private satisfaction, lacks its proper effect. For the rest, that equality is to be understood of the same misdeed, not of different ones. For frequently in a human court of law, due to the necessity of the commonwealth or the free choice of legislators, a rather severe penalty has been assigned a misdeed which in itself appears somewhat light, and vice versa, but the accused cannot by any means allege this inequality, as though he were being unfairly dealt with, for, of course, he knew it beforehand, and, in having subjected himself to the magistracy, he is regarded as having himself approved of it. Thus, for example, although the crime of theft be in itself far lighter than homicide, nevertheless the thief has no cause for complaint if he himself, who has not committed things equally guilty with the murderer, should nevertheless suffer equal punishment with the same, namely, capital punishment. The reason for this is that punishment is imposed separately, as it were, for the individual misdeeds, in that quantity which the advantage of the commonwealth seems to demand, and it ought not necessarily to be attempered to the punishment of other misdeeds of a different kind, in such wise, that, as the gravity of one misdeed stands in relation to the gravity of the other, so the punishments for the same ought to correspond with one another. This is because, of course, the measure of punishments in a human court of law is not alone the gravity of the misdeeds in themselves, but it is that conjoined with respect to the advantage of the commonwealth. Thus, also, there are many misdeeds, of which one, although worse than another, is yet equally punished with death, because a more grievous punishment than death cannot be found, except that sometimes, when the misdeed has been very atrocious, tortures precede death. As for the rest, that equal punishment be rightly imposed upon those who commit the same misdeed, regard must assuredly be taken of the condition of the persons, for this has the utmost force in intensifying or diminishing the punishment. Thus the ignominy which to some very common man is a slight misfortune, affects most severely the eminent man, and the fine which is light for a man of means, will turn the humble man out of all his fortunes. All these points are to be carefully observed by him who has set his heart upon properly attempering punishments of that kind.
12. From all this it is easily understood how far there is incumbent upon the magistrate the obligation to inflict punishment, so that, namely, quite as much in the very exercise of the punishment, as in its determination relative to quantity, the good of the state may be advanced; and when this good urges the contrary, it is not to be believed that he is altogether bound to inflict punishment. And so, if one who has suffered injury calls upon the magistrate in regard to it, if, indeed, he obtains the restitution of the damage, but because of the condition of the commonwealth it should not appear wise to the magistrate to inflict an additional punishment upon the injurer, the magistrate does by no means derive the guilt of the misdeed upon himself, nor does the injured party have reason to complain of justice denied himself, because he could not satisfy his grief or his vengeance. Thus, when a man on committing a crime in one state has fled to another, the magistrate of the latter state is bound, indeed, to see to it that he give satisfaction for the damage done; but that he should give him over to corporal punishment, or himself punish him, is not necessary, unless definite considerations tending towards the advantage of the commonwealth persuade him; especially since the former state has still the faculty of proceeding against him with moral and notional punishments. This much with regard to human actions in genus. The consideration of the same in species is excluded by the narrow limits of this work. ,
THE ELEMENTS OF UNIVERSAL JURISPRUDENCE BY SAMUEL PUFENDORF BOOK II
Any action whatsoever that may be directed according to a moral norm, which is within a man’s power to do or not to do, may be imputed to him. And, on the contrary: That which neither in itself nor in its cause was within a man’s power may not be imputed to him
1. Now that we have thrown light, in our first book, according to the scheme of our plan, upon the definitions of matters contained in Universal Jurisprudence, the next step is, in this book, to look into the principles to which in juridical demonstrations one ultimately ascends. Therefore, in addition to the common axioms1 which, derived from prime philosophy, occur here and there throughout that work, there are found to be here two kinds of principles proper to this discipline, the rational, namely, and the experimental. The truth of the former, their certainty and necessity, flows from reason itself, without the perception of particulars, or without undertaking an examination, merely from the bare intuition of the mind. But the certainty of the latter is perceived from the comparison and perception of particulars uniformly corresponding to one another. These latter we shall call Observations, as we shall call the former Axioms.2 Now, since man is in this world more for the sake of action than for the sake of contemplation, and so it is more necessary for him to act rightly than subtly to contemplate matters which he may approach only with the mind’s vision; it has come about, not without the special providence of the Creator, that the certainty of theoretical verities would have to be extracted from first principles for the most part laboriously, and, as it were, through a prolonged series of consequences; but the certainty of practical matters rests very easily upon an extremely small number of principles, and those most perspicuous, from which, for the most part, these practical matters can be deduced by a simple operation. And this, of course, was so that no one who has even slight intellectual ability, could advance as an excuse for his sins, that, because of the obscurity of the case, it was not vouchsafed him to understand what was to be done. And so it does not appear to us that there should be set up more than two rational principles for this discipline; to wit, A man must render an account of those actions which are within his power to do or not to do, and The obligation to act can be enjoined upon us by the authority of a second person. If any one add to these the principles which are most manifest through common sense and experience, namely, that upon man, to whom it has been given by nature to understand matters, and from an intrinsic movement of the will to bestir himself to action, it has been enjoined by God, to whose sovereignty he is absolutely subject, to lead a social life, and to observe that which, on the basis of the dictates of right reason, makes for the preservation of the same, it will then be easy for any one whatsoever to recognize what he ought to do or to leave undone, especially after civil sovereignties which the necessity of social life required should be established have ratified most of them with civil laws.
2. Imputation, therefore, is when the moral effects of an action proceeding from some one directly or indirectly, or exercised upon him by a second person, are declared by him whom that action regards, to inhere and exert their force actively in the person of the former. Now men commonly make imputation twofold, namely, as a matter of grace and as a matter of desert. It is the former when a man out of benevolence derives upon a second person the effects of the action of some third person, which otherwise that second person could not rightfully claim for himself. Such imputation has place only in matters which are favourable, and not likewise in those which are odious. For just as the nature of good things is such that they can rightly and without a cause be presented to anybody, but evils cannot be inflicted without antecedent demerit; so, if any one should be unwilling to confer some good upon a second person under the name of a pure benefaction, it will be permissible to do it under the designation of some imputed action, which otherwise the second person could not claim for himself. But it is not at all permissible to impute some evil to a second person, unless the second person by his own deed has been made a participant in the guilt. Thus, for example, a prince can rightly impute to a son, not himself conspicuous because of any merits, his father’s benefactions, and in view of them confer upon him honours otherwise not his due. But an innocent son should by no means in the same fashion pay for his father’s misdeeds. Since the case in which children are compelled to lose their feudal holdings on the occasion of felony committed by their parents, does not properly possess the character of a punishment, for they do not have a right to those things except after they have been turned over intact to them by their parents. But our discussion here is principally about the latter kind of imputation, where the cause of imputation inheres in the person to whom something is imputed.
3. Imputation can also be divided into bare imputation, or imputation of simple approval and disapproval, and effective imputation. It is the former whereby we but barely approve or disapprove of some action, in such wise that no effect redounds therefrom to the agent. This imputation can be made by any persons whatsoever, whether they have an interest in the action or not. It is the latter through which the effects of an action put forth their force in the agent, and it is with this that we shall have to deal here.
4. Now actual imputation and imputability, if I may use such an expression, or in other words, for a thing to be imputed in act, and that it be possible for it to be rightly imputed, are very different things. For not all actions which can be imputed are also always actually imputed to the agent, or are they necessarily to be imputed; but that the imputation be actual, and that effective, rests with him to whose interest it was that the action take place or not. Now when he has either not imputed from the outset some imputable action, or afterwards has ceased to impute it, all the moral effects which otherwise were about to redound to the agent from that action expire. Nevertheless, it is to be noted here that, when it is to the interest of several that some action either takes place or does not take place, if one of them has not imputed that action to the agent, nothing is thereby lost to the right of the rest, which remains, indeed, after that waiver, as it were, of the imputation. Thus, as far as I am concerned, I can forgive the man who has done me a wrong; nevertheless, the right of the magistrate and the right of God against the delinquent, which has come to them as a result of that action, is by no means done away with on that account. Thus, even if God has by the act of remission forgiven some one his imputation, nevertheless the right of men is by no means done away with on that account. For, as an example, an accuser can prosecute before a court and a magistrate can put to death a murderer for whom God has already forgiven his misdeed. But that which all who are concerned fail to impute is regarded as not having been done, as far as its moral effects are concerned, since, forsooth, moral effects do not follow except upon the free choice of those who are concerned. Now that a certain action takes place or does not take place, concerns those who are either the object of the action or the directors, that is, those against whom some action is undertaken, or for whose good or evil it is, and who properly possess the authority to direct the action. Thus, if I have done an injury to a second person, and he to whom it was done, and the magistrate, have forgiven me, no other man has further the right to make trouble for me on that score.
5. A distinction, however, is to be observed regarding the imputation of good and of evil actions. Evil actions can always be imputed to the agent by those concerned, when they wish; because both he who prevents them has the right not to be compelled to allow them to take place with impunity, and any second person whatsoever has the right not to be bound to allow the same without some antecedent deed on his own part. But good actions are either deserved or undeserved. The former are followed merely by that imputation which we have just called bare imputation, on the part of those who are concerned. For he who has furnished only what he owed has, indeed, done well, yet he deserves nothing further. But actions hitherto undeserved can be effectively imputed, for, of course, they are adapted to produce moral effects as much in the agent as in him for whose sake and advantage they are performed. In the former, so that he may receive the right to demand compensation for his effort; in the latter, so that he may contract the obligation to pay the second person. In order, however, that this obligation arise in actuality, it is necessary not merely that there be in the agent the intention of doing some good to the second person, but also that the action be one undertaken upon the express or presumed will of the second person to whose use it tends. Otherwise, I am able rightly to repel, as it were, the imputation of a service which is thrust upon the unwilling. But if, by the consent of those whom it concerns, it be determined at how much something is to be imputed, there arises a pact, in which the imputation reaches its limit and has nothing further toward which it may tend in that matter. And so, when a man has accepted the estimate of his action expressed in a pact, there is nothing further left him which can be imputed.
6. Furthermore, the foundation of imputability, or, in other words, the condition in which an action can be imputed to an agent, is that the occurrence or non-occurrence of that action rested with the agent.3 For, after it came to pass that man was no longer to live in such wise that it was permissible for him to do whatever struck his fancy without taking any one into consideration, the next thing was that some account could be demanded from him concerning those actions which he himself had the faculty of doing or of neglecting. From this it is patent that the following cannot be imputed to a man: (1) Those things which are contingent upon a physical necessity, or those things which are contingent upon natural causes; except in so far, perchance, as a man for producing that effect has applied things active to passive, or in some way started the cause which directs those things to determining that effect, as if some one, for example, should obtain by prayers from God that it should rain during a drought. (2) Actions of the vegetative faculties in themselves; except in so far as one has suggested the object to them. Thus, from the fact that one has been endowed by nature with a body robust, vigorous, tall, &c., no one can demand that something be directly imputed to him. And, on the other hand, it cannot rightly be regarded as a fault for any one to have a body weak, frail, and tiny, if, indeed, no fault of his own has intervened therein. Here come in also the other things which we have from nature without any effort on our part; suppose, for example, that one rejoices in a genius somewhat active, or somewhat slow, in senses somewhat keen, or somewhat dull, &c. (3) Compulsory actions, that is, those by which a man is compelled to accommodate or to apply his members by the inescapable force of a stronger than himself, and he himself was not to blame for the possibility of its being applied to him. For just as no one can obligate a second person by his bidding or authority, or in any other way, to do something of that second person’s own accord contrary to the laws; so, if, by the exercise of force, the first person has applied the other’s members to some act otherwise illicit, the first person cannot cause this to be imputed rightly against the second. And so no one can be compelled by another person to commit a misdeed, provided he himself does not wish to commit it. Thus, for example, even if a virgin be compelled by force to accommodate her members to the lust of a stronger action, the violence of which she could not ward off from herself; nevertheless, against her herself nothing can be imputed for that reason, unless, perchance, her own fault brought her to that place where she had foreseen that force would probably be brought to bear upon her. (4) Things which can neither be prohibited by our powers, nor advanced or accomplished, if, indeed, that impotence has not been contracted by our fault. This is the source of that common saying: “There is no obligation to do the impossible,” or, in other words, “No one is bound to the impossible.” And just as the fact that a man has not performed things which were impossible to him (if, indeed, he was not to blame that they were such), or the fact that he does not understand what is beyond his ability, cannot be imputed to him, and, in consequence, for that reason there is no room for punishment in his case (from which fact that other principle also results, namely, that the objective of the laws must be possible for those for whom the laws are enacted); so no sane person is reckoned as having charged the impossible upon any one. And so, in human laws, in testaments, and in contracts, one departs from the exact meaning of the letter, if it involves something impossible. Thus, also, sheer misfortunes are not imputed, unless one has specially obligated oneself to meet them. (5) The actions of those who do not enjoy the constant use of their reason, unless they have ruined it by their own fault. Such are the mad, whose actions are regarded morally as null; likewise infants, before their reason begins to exert itself in a very clear fashion. (6) What has been committed out of concomitant or effective ignorance insuperable in itself and in its cause.
7. But, on the other hand, there can be imputed not merely deeds which are done of previous knowledge and of full and deliberate intention, but also those done of imperfect intention; suppose, for example, when the mind has been shaken by some very violent emotion. For by the right use of his reason a man might have reduced that emotion to order, and he does not properly make it an involuntary action, unless, perchance, the object by which he is excited brings upon him a terror too great for human steadfastness. And so an excuse on the part of a thief that the thing so greatly pleased him that he could not keep away from it, would be ridiculous. Just as those things, also, that proceed from a habit which has so firmly set the mind in one direction that a man can scarcely act otherwise, and often does not know when he is acting badly, are not excluded from imputation. For it rested with the man himself not to contract such a habit. There can also be imputed not merely those things in which it is in our power [potestate] at the present moment either to do them or not to do them, but also those, the faculty of performing which was formerly in our power, but has been lost by our own fault; or those which, in the present status, indeed, are impossible for a man, in the circumstance, however, that his inability to perform them now is due to his own fault. Thus the man who by his own fault has brought himself to that point (supposing, for example, this to be due to petulance or idle curiosity, where, if he had employed due diligence, he might have foreseen that force would be brought to bear upon him), can have imputed to him those bad actions to which he was forced while in that state. For he who has voluntarily admitted some act is reckoned as having also consented to all those things which he might have foreseen would follow from that act; and so he who is bound on the score of the act is also bound on the score of that which has followed by the force of the act; even if, when once that act has been committed, the effects depending thereon could no longer be prevented or stopped. Nay more, even though a man be effectively ignorant that there will emerge from the illicit act, which he knowingly commits, what does emerge thereafter, he will, nevertheless, not be free from all imputation of those consequences. And yet those things which have followed an act in an extraordinary fashion and contrary to the common course of affairs, which also would certainly have happened, even if that act had not preceded, cannot be imputed. From this source arise those common sayings: “A man is reckoned to have been willing to have brought upon himself that from which he knowingly did not turn aside, when he might have done so conveniently”; nor does it seem that what a man has cast himself into, or from which he can extract himself, is in a moral judgement to be regarded as a peril. Likewise, “He who has always acted guilefully so as not to have is to be treated as if he had; and he who has dissipated his resources through luxury or ambition, alleges with no effect an inability to make payment to his creditors.”
Finally, those things also can be imputed which were contracted by voluntary or consequent ignorance, of one’s own accord, or by supine negligence, or which were committed out of ignorance of the law or of universal principles; especially those things which proceed from ignorance of the common precepts of the law of nature, of such, namely, as a man who enjoys the use of reason cannot be invincibly ignorant, although, when ignorance has crept upon a man through inadvertence, he is in so far excused because of the absence of evil intent.
8. Now not merely are those actions imputable to us which proceed directly from us, but also those which are undertaken by others in such a way that we also concur in the same. For otherwise the moral effects of bad actions do not pass over from person to person without fault or culpable omission on the part of the second person. Thus, therefore, things can be imputed to us for which we give the order, for which we give advice, to which we furnish the requisite consent, when we supply a place of refuge for a crime, or knowingly help it on, give permission without which the other could not act, do not hinder when we can and ought, by our example incite a second person to the deed which otherwise he would have left undone, &c. And this imputation can be for the whole, if that deed otherwise would altogether not have taken place except for us or another who would have furnished the same service; or else, in proportion to the degree of our influence upon the action. Thence come these trite sayings: “A man is himself reckoned to be the author of that which he does through the instrumentality of another”; “We make our own that to which we impart our authority [autoritatem]”; “What has been done by a second person at our bidding along with others, regarding matters which concern us, binds us ourselves.” Likewise, “Whatsoever action put into execution by a second person, which he would not have undertaken at all without us, and would not have been able to undertake, is reckoned as our own, as far as its moral effects are concerned.”
9. Now it is to be observed that the deeds of some can be imputed to others, then, and then only, if there exist a certain mutual community among them in regard to the same. This comes about in a twofold way; either if they concur in a special way regarding the production of some definite deed, although in a different way of acting, for example, that the one concurs physically, the other morally, which is the case in most of the examples already enumerated; or else if they constitute one body, so united to one another by a pact, that whatever the whole body as such wishes, each and all also of the same body are understood to wish, because, in the case of those things which concern the whole body, they have each made their own will to depend entirely upon the will of the body, or of those who rule it. For, as is shown elsewhere at greater length,4 those who unite to form a society having the likeness of a single moral person, each and all obligate themselves to be willing to hold valid whatever that person or council upon which authority to transact the public business of the society has been conferred, has done regarding the affairs of the society, and so, to recognize its acts as their own. And these are no more mere legal fictions than that all men united in a society can be obligated by orders of a single person. And so it comes about that the individual members are held for a debt contracted in the name of the society. So, what a syndic has done in the name of the people is imputed to the whole people by whom he was appointed. Thus, when a prince or a commonwealth makes war upon a second prince or commonwealth, the separate individuals living under that commonwealth are all regarded as enemies. Thus, when a magistracy, by not rendering justice, has made the debts of private individuals its own, pledges can be taken from any person belonging to that state, and reprisals inflicted upon him. Thus, in the case of David, for whose deed the people were stricken with a pestilence,5 it is not necessary to take refuge in the absolute law of God, who, since He always finds a cause for death in man, can impose it when it so pleases Him; but, because that act, namely, the ascertaining of the strength of the people, pertains to the acts of a prince as such, according to the constitution of states the people also are understood to have consented to that act. And the perjury of Zedekiah was for the same reason imputed to the whole people; and for that reason, when the king makes war on some one, the whole people are regarded as enemies.6 But, as regards the deed of Alexander, who utterly destroyed the race of the Branchidae because their ancestors had betrayed Miletus,7 it is not sufficient to have said that those separate instances of guilt which are derived upon the state from persons individually, expire upon the death of the same, because the same can be continued as long as the deed in question is defended by the state, or satisfaction is not accorded a second person who demands it; but this consideration is rather to be looked into carefully, namely, whether down to that time the Greeks had had any intercourse with that people, from which it could appear that the former had forgiven the latter the misdeed and the debt which came therefrom. For, if the imputation of these things is once remitted, it can never be demanded later on. But if, from the time of the misdeed onward, there had never been peaceful intercourse between the two parties, even though the authors of the crime have long since passed away, satisfaction for the damage done could be demanded; and if those who, in the same moral body, had succeeded to their rights and goods, should refuse it, then by the right of war the same punishments could be inflicted upon them which the authors of the crime had deserved.
10. It is also to be noted here that the imputation of some future deed cannot tend backwards, as it were, unless, perchance, that future deed depend, as the effect from a necessary cause, upon a present or past act of ours, in such wise that he to whom the cause can be imputed, can have imputed to himself also the necessary effect. Indeed, it is by no means absurd for some future act of oneself or of a second person to exert in advance its effects in some one, by imputation, as an act of grace; because, since it is permissible to give any one whatsoever a benefaction gratis, it rests with the benefactor to decide whether that is to be imputed to him upon some ground. But, since evil actions can be imputed only upon desert, it is entirely unsuitable for them to be imputed backwards upon others who had no knowledge of the future act in question, no obligation to avoid it, and, finally, no community of actions with him who committed that deed.
11. Now from the circumstance that a nonentity has no positive affections, it is readily apparent that bare avoidance of moral actions which are bad and forbidden by the laws, cannot be effectively imputed. Hence I do not owe anybody something because he has not injured me. Avoidances, however, of actions licit by civil laws, can be imputed, although they have been prohibited by the mere law of nature, if, indeed, they are especially avoided for some one person’s sake. For he is altogether in my debt for whose sake I do not use my authority, even though it be imperfect. And nothing is better known than that avoidances of actions due and prescribed by the laws, are imputed, although one has done no further evil. The reason for this is that those avoidances which we have mentioned, with the exception of the first, are reckoned as positive moral entities, and so are suitable to produce also positive effects.
Any person whatsoever can effectively, or with the obligation to perform them, enjoin on someone subject to himself those things to which his authority over the other extends itself.
1. That a man can conform his actions to a definite norm is due to the fact that he has received as his lot from nature such a mind as does not necessarily act always in one way, but may be turned to either side of a contradiction. But, that he is also bound to it, comes from the circumstance that, aside from the general dominion of God, the condition of human nature ordered also the establishment of sovereign powers of men over one another, which can bring upon those whom they embrace, the necessity of determining their actions in a definite fashion. Now a certain action becomes necessary for a man in consequence of the authority of a superior, who, when he has declared what he wants done or not done by the other person, has such strength that he can compel him by the fear of some evil, if perhaps he shrinks from doing those things or can certainly inflict some evil upon him if he violates the orders. For otherwise no obligation can dispose a man to this, namely, that he be altogether unwilling or unable to do something, that is to say, that he no longer enjoy the natural liberty of contrariety or contradiction; but this liberty at least is always left him, namely, that he can elect either obedience, or else the risk of undergoing punishment.
2. Now, as a matter of fact, the authority from which obligations are fit to be generated resolves its efficacy ultimately into nothing but the force or faculty of inflicting punishment. For all other things bind the will with a bond too weak to be able to temper it to a stable harmony of its actions. A man’s own decisions hold him no longer than it suits him. The hope of future good moves most men too languidly for them to be willing to undertake present labours or neglect present advantages. And you find very few who, when nothing but praise for obedience attends upon the man who acts, and no evil but the reputation for disobedience attends upon the man who neglects, would be willing to act always in a uniform manner, and, indeed, for the most part, contrary to the inclination of the will, merely so as to be said to have obeyed a second person steadfastly. Finally, the force of all commands [imperiorum] is precarious, unless the commander [imperans] be possessed of strength of such a kind that he can bring upon the other, when disobedient, a more grievous evil than the inconvenience of necessarily undertaking to do his bidding is judged to be.
3. And, of a truth, so that a man may not be able to complain that wrong has been done him when he is compelled to adapt himself to the free choice of a second person, it is necessary that the authority in question also be legitimate, that is to say, that it be derived and constituted from the expressed or with probability presumed will of him over whom command is exercised. For, on account of the natural equality of men among one another, about which we shall later have more to say,1 authority over a second person cannot come to one except by the consent of that second person, which consent is expressly signified either in a pact, as in civil subjection, or is presumed from a tacit pact, as it were, as comes about in servitude following a state of war, and in filial subjection.2 But, in truth, when once the authority of a second person has been established by our consent, although afterwards the same begins to displease us, it can no longer be refused, because the other has now acquired a right which the law of nature has by no means allowed to be taken from him against his will.
4. Now for the rest, no one can effectually enjoin anything by way of a precept upon a second person over whom he has no measure of legitimate authority. For, however one may by force alone, without any consent on his part, hold him bound for a season, nevertheless, whenever a favourable occasion smiles upon him, he will be able rightfully to throw off the yoke and assert his freedom; a thing which is not at all permissible to those who have consented to their own subjection. For the rest, from the axiom stated above flow the following consequences, which extend over the whole subject-matter of law: Whatever the law bids is to be done. Whatever the law forbids is to be left undone. Any one whatsoever is bound to do the bidding of him who has authority over him, as far as that authority extends.
A man can judge properly of things apprehended by the power of his intellect.
1. In man there are, as it were, two faculties of the intellect, which it exerts in the case of voluntary actions, the representative faculty, and the judicative. By the former the object is placed before the will as in a mirror, and there is displayed the character of the good which is in it. Since this faculty is regarded as belonging to the class of those which men commonly call natural, in contradistinction from free, and so it is not in man’s power to apprehend things otherwise than as their images present themselves to the intellect, it is readily apparent that neither is there left any room for the laws to make a disposition about this faculty, nor can anyone’s inability either to apprehend some matter at all, or else to apprehend it in another way, be imputed to him. And so it is most utterly unfair to desire, by establishing a punishment, to compel some one to believe that some thing is other than he knows it to be; since, forsooth, assent or faith cannot help but respond to the image apprehended by the intellect. That position, however, is to be restricted in this wise: Unless some one’s supine negligence enters into the case, in that he, who, otherwise, if he had applied due zeal, would have secured the true image of the matter, attends to it but drowsily. And so, in regard to the question of a man forming a right conception of some matter in his mind, there is room for laws and obligation only in so far that he receive information regarding the same, and attend carefully to meditation. But it may happen, and it is apt to do so frequently, that, although a man may with impunity cherish in his mind his own particular view about any matter at all, nevertheless, a penalty is ordained against the one who has openly set it forth, or laboured to spread it among the common mass.
2. In view of all this the decision must be made as to how far it is appropriate for the magistracy to exert force in the matter of enjoining religion upon men. Since, of course, persuasion in regard to things divine is formed on the basis of the intellect’s apprehension, the manner of which is by no means subject to man’s free choice, it is readily apparent that a man cannot be compelled to give his assent to some matter otherwise than as it presents itself to his intellect. For this end, accordingly, only gentle means of persuasion are in place, tortures and violence are in vain, by which, perchance, a simulated confession will be extorted, but it will not be possible to extort a true assent, although by penalties a man can be compelled to receive information and use the means which, otherwise, assent to the matters in question is generally in the habit of following. Now where these are of no avail, civil sovereignty is applied in vain; especially since it is required that, for a man to give his assent to the Christian religion, a special grace be divinely granted. But, in truth, because the formulas in which religion is publicly presented are of no small concern to the commonwealth, and it contributes very greatly to the tranquillity of the state if all citizens openly profess the same view regarding religion, whose power in exciting or calming emotions is great; the magistracy can rightly, even by threatening to exact a penalty in a human court of law, forbid all who are subject to its jurisdiction to set forth, either in public or in private teaching, anything opposed to that formula which the magistracy has promulgated, as being congruent with the foundation of faith, to be followed by the citizens. To this end it is the accepted custom in some regions, for persons who are to be advanced to public offices to be bound by an oath to a definite confession about religion, whereby they are obligated, as long as they remain members of that commonwealth, to teach or propound nothing in public which is opposed to that confession.
3. Through its judicative faculty the intellect discerns and dictates what, when, and how, action is to be taken, and takes counsel regarding the means best adapted to this end. That faculty is otherwise called the practical reason and the practical judgement (for it is not ours now to inquire into what the force of the intellect is in the bare contemplation of things). Since this faculty is, as it were, the torch of human actions, and when it is not lighted in the proper manner a man must fall; and since, in truth, it can be shaped into rectitude by diligent culture and meditation, so that the cause of delinquency may not arise in it; certainly man ought earnestly to strive, in order so to form the judgement in question, that it correspond exactly to the feeling and intention of him to whom he is bound to render his actions acceptable.
4. Now, although it is our purpose to deal here especially with the good and the evil, the just and the unjust, leaving to another body of doctrine the investigation of the profitable and the unprofitable,1 still it will not be amiss also to touch briefly upon what rules the intellect ought to observe in its deliberation about a profitable judgement. Because, forsooth, there is frequently enjoined upon some one the obligation to act in the manner which he himself judges to be most expedient; and here, indeed, he who through lack of prudence has undertaken what was less profitable, has done badly. In the deliberations, accordingly, which are customarily instituted regarding matters to which we are not bound by some necessity or a definite obligation (necessity, of course, excludes deliberation, and a definite obligation leaves the agent nothing but the execution), it is presupposed as a foundation, that nothing be undertaken wherefrom the same amount, in moral estimation, of evil and of good, or also a greater amount of evil than of good, seems likely to come. The reason for this is obvious. For so much is lost from the goodness of each matter as it has of evil united with it, and so it puts off the character of good, if the evil be equal. Moreover, things of the kind about which we are now speaking are undertaken in order that we may acquire therefrom some emolument for ourselves. From this, furthermore, the following consequences flow: (1) If the matter under deliberation seems to have in moral estimation an equal efficacy for good and for evil, it is then, and only then, to be chosen, if the good have somewhat more of good about it than the evil have of evil. (2) If it should appear that the good and the evil which may proceed from the matter in question are equal, then, and only then, will the thing have to be chosen, if its efficacy for good be greater than its efficacy for evil. (3) If it should appear that both the good and the evil are unequal, and the efficacy of the matters no less unequal, the thing is then, and only then, to be chosen, if the efficacy for good be greater in comparison with the efficacy for evil, than is the evil itself compared with the good, or if the good be greater in comparison with the evil, than the efficacy for evil in comparison with the good. (4) If the good no less than the evil of each matter, as well as the efficacy for each, be uncertain, there should be abstention from both, if that be possible. (5) Even such things as may apparently be added by accident to our intent, are to be borne in mind, unless the good towards which our action tends be much greater than the evil which is feared; or, in equal good and evil, there be much greater hope of good than fear of evil.
5. Now, in a special way, the judgement of the intellect about actions morally necessary, in so far as the intellect is imbued with a knowledge of laws, is called conscience; although by this name is designated also the reflexive judgement, as it were, about acts, approving things done well, and condemning things done ill, followed as a companion by peace or anxiety of mind, according as conscience bears witness to each matter. For the sake of differentiation we can call the latter consequent conscience, because it follows the deeds of men, and subjects the same to scrutiny; but the former we can call antecedent conscience, which is antecedent to the deeds, declaring what is good, and what evil, and so what is to be done or avoided.
6. Now conscience is either in a good state or in one less good. That which is in a good state, either knows with certainty that it is such, or merely opines it. The former is called right conscience, the latter probable conscience. Right conscience is one that dictates the performance or omission of what is altogether to be done or left undone, or, in other words, one which knows certainly and indubitably that it is in agreement with divine and human law. Probable conscience rests upon an opinion based on reasons which are not thought to be obviously infallible, but only probable, in such wise that it is not regarded as impossible for the opposite side perhaps to be true, although, on the basis of the present reasons, that is not apparent. About right conscience it must be known that every spontaneous action which is done contrary to it, and every omission of an action which it declares necessary, is a sin; since, forsooth, right conscience and the sense of the law intended by the legislator, correspond to one another, and so, what is done contrary to the former, is discordant also with the latter. The same is to be judged of probable conscience, which coincides with right conscience as far as rectitude is concerned, and differs only in regard to the obvious and unshaken knowledge of its own rectitude. For the purpose of moulding this conscience it is well to note the following: (1) In probable conscience, regarding matters which have to be deduced by a somewhat obscure logical consequence, primarily from the laws of nature, when two opinions have been proposed, and, although neither is opposed to the law, nevertheless one rests upon firmer reasons, while the other appears to be safer, whichever one you please may be undertaken. (2) When two opinions have been proposed, of which the one rests upon less firm reasons, the other seems more safe, the safer is properly preferred before the other. (3) In probable conscience a learned man can follow that opinion which seems to him most probable, although to others, perchance, it may not seem to be such. (4) An unlearned man follows most safely the opinion of the more prudent. (5) A man subject to the command [imperio] of another can rightfully do at the bidding of superiors what he does not certainly know to be illicit, although it may not appear to him to be so very commendable. (6) In matters of small moment, if there be probable arguments on both sides, whichever one you please may be chosen. (7) In matters of great moment, if probable arguments present themselves on both sides, the safer side is to be preferred. Hence, in the case of uncertain proof of crime, it is better to absolve than to condemn, if the verdict non liquet be insufficient.
7. That conscience which is in a less good state is called erroneous, disagreeing, that is to say, with divine or human law through an error conceived from an apparent shadow of good, or judging that something is to be done or left undone, which was not to be done or left undone. Now the error in which conscience is circumstanced is either invincible, which a man has not been able to drive away with the exercise of all morally possible diligence; or else vincible, which a man ought and could drive away with the exercise of morally possible diligence. Regarding this conscience it is to be noted: (1) If conscience is circumstanced in a vincible error regarding an evil thing, he who acts according to it is sinning. The reason is because the action, as a matter of fact, is discordant with the law, and he was bound to know the true sense of the law. (2) If conscience is circumstanced in a vincible error regarding an evil thing, he who voluntarily acts counter to the same is sinning. For, although here, that should materially, as it were, come to pass which in itself was to have been done; nevertheless, because the intention of the agent is repugnant to the law with which he thinks his conscience is in harmony, the action in question will be imputed to him as a sin; since, forsooth, the evil intention of the agent makes an action which, materially, as it were, is not contrary to the laws, to appear to be evil in the eyes of the agent. From this it is apparent also that right actions cannot proceed from the erroneous judgement of the intellect, and in the eyes of him who has been persuaded falsely that something is unjust, it is regarded as illicit, as long as he has not corrected that persuasion. Thus he sins who violates a false religion which he himself holds to be true. Thus, as far as in him lay, a husband to whom his own wife has subjected herself in place of another woman with whom he had intended to have intercourse, has committed adultery, and vice versa.2 Thus he lacks very little of the appellation of thief who, with all secrecy, in an attempt to steal the property of a second person, has unwittingly strayed over into his own property. (3) He whose conscience is bound by an invincible error regarding a matter in itself indifferent, that is, if he persuades himself that some matter is forbidden, which is, nevertheless, licit, sins if he acts contrary to that conscience, not if he acts in accordance with the same; or, in other words, he sins if he undertakes it, not if he lets it pass.
8. But if, in truth, the judgement of the intellect hang in the balance, and be unable to discern to which side of the contradiction it ought to give its assent, this is called a case of doubtful conscience. Of this you may know that action is to be taken neither in accord with it, nor contrary to it, because an error is committed in either direction. For in neither case does a man’s own intention agree with the sense of the law, yet this is required for a good action. For he decides to act even if that which he does be contrary to the laws, and so, as far as in him lies, he is violating the laws. There is a relationship between this kind of conscience and that which they call a scrupulous conscience, when an anxious timidity attends upon the judgement of the intellect, lest, perchance, that very thing which one has thought good, be bad, and vice versa. Moreover, when a scruple of that kind rests upon probable reason, action will have to be deferred until the scruple be removed; but the scruple which arises from some weak superstition is to be neglected and cast out of the mind.
9. Absence of cognition in the intellect is called ignorance, which, as far as our purposes are concerned, is divided either on the score of influx into action, or on the score of origin. In the former case it is twofold, one being the cause of what is done in ignorance, the other not. The first of these you may call effective, the second concomitant. The first denies in the intellect that knowledge by which, had it been present, the action would have been impeded; as if Abimelech had married Sarah, whom he would never have wished to marry had he known that she was married.3 The second denies the cognition which would not have impeded the deed, in such wise that a man would have performed the deed none the less, even if he had known what he did not know: as if one has unexpectedly killed his enemy, whom he would none the less have wished to kill, even if he had known that he was in that place where he is hurling the missile by chance. Such a deed is properly said to be committed by the ignorant, as that which arises from effectual ignorance is said to be committed simply out of ignorance.4
But, on the score of origin, ignorance is divided into voluntary and involuntary; the former being called by some consequent and vincible, the latter antecedent and invincible. It is the former (whether it be directly willed and striven for, or contracted out of lethargy) when a man does not know what he could and ought to know; it is the latter when one does not know those things which he neither could know, in this matter or in that, nor was bound to know. By others the former is styled ignorance of the law or of universals, as the latter is styled ignorance of the fact or of particulars. Moreover, insuperable ignorance is such either in itself, but not in its cause; or else in itself, and at the same time in its cause. It is the former when a man in the very action, indeed, is unable to overcome the ignorance from which that action proceeds; nevertheless, he is at fault because he fell into such ignorance. Thus, frequently, he who sins through drunkenness, clearly does not know what he is doing; nevertheless, he is at fault, because he does not know it.5 It is the latter, when one is not merely ignorant of those things which he could not know before the action, but also was not to blame for remaining in that ignorance, or falling into the same.
From an internal principle a man can move himself to undertake or to leave undone a certain action.
1. Since man was to be made by the Creator an animal to be governed by laws, he had to have a will as an internal moderator of his actions, to wit, in order that, when objects had been placed before him and recognized, he might move himself towards them from an intrinsic principle, without some physical necessity, and might be able to choose that which seemed most suitable to himself. This will is conceived as exerting itself through two faculties, as it were, through one of which it acts spontaneously, through the other, freely. To spontaneity are commonly attributed definite acts or movements, of which there are certain interior ones called elicited, certain exterior ones called commanded. Elicited acts are those which are directly produced by the will and received in the same. Some of them are occupied with the end, as volition, intention, fruition; others with the means, as consent, election, and utilization. Volition is applied to an act of the will whereby the will itself simply moves to an end, without regard to whether that be present or absent, or, in other words, simply where an end approves itself to the will. Intention, or moral choice, is an effectual desire to obtain the end, or, in other words, it is an act of the will by which it effectually moves to an absent end and strives to attain it.1 Although there are several grades of this, nevertheless, it is commonly divided into complete and incomplete. Men call a complete intention that whereby the will, after having weighed a matter sufficiently, and without being swept away by the vehemence of emotions, moves to something. They call an intention incomplete when it was accompanied by no sufficient deliberation, or reason was shattered by a whirlwind of emotions. Fruition is the rest or the delight of the will in the end already obtained and present. Now consent is applied to a simple approval of means, as far as they are judged useful to the end; and these means, when in our power, election destines to the obtaining of the end, and utilization employs. They call those acts commanded acts which are entrusted by others to the faculties of the mind for execution.
2. Now to spontaneous actions, which, of course, are undertaken from an internal movement of the will together with previous cognition, are to be referred also those which men commonly call mixed, when a minor non-moral evil, useless or unpleasant, is undertaken for the purpose of escaping a greater evil, which could not be avoided in any other way. For, whatever reduction can be made in a greater evil, otherwise inevitable, is to be reckoned as a gain; and so, in this case, a less evil is in very fact rendered desirable, and one to which the will in its present state spontaneously moves, seeing that for it the avoidance of the whole evil, or merely a part, is the equivalent of a good. This is the source of that trite saying: “Of two evils (non-moral) the less is to be chosen, if it be necessary to undergo one or the other.” Thus, although, for example, the casting of merchandise into the sea is not in itself something desirable, nevertheless, under definite circumstances, it is, as a matter of fact, eagerly done, supposing, for example, if I am unable to save my life in any other way when a storm has arisen. For it is better to make a loss of the merchandise than to lose my life along with it.2 Now judgement is to be passed upon actions, not so much upon the basis of the object, considered alone, but also upon the basis of the end and the circumstances which are here and now present; forasmuch as many of them enter into the very essence of the action, and a single one of them frequently determines the whole nature of the same.
3. For the rest, spontaneous actions depend upon the will, either directly, and these are properly called willed actions, which the will has produced by some positive influx; or indirectly, and these are properly called allowed actions, to wit, those which, although they are undertaken by others, we not directly willing or ordering them, are, nevertheless, reckoned to be our own, in so far as, although we might have done so, we neglected to stop them in the way in which we ought. Now the other actions which are called permissions, involve no morality, since, forsooth, they are pure negations of moral actions. As when God is said to permit the sins which He is not bound to prohibit in such a way that they cannot take place at all. Or when in jest we are said to permit what takes place of necessity, absolute or physical. Thus permission of an action undertaken by a second person which it is beyond our power to prohibit, amounts to nothing (if, indeed, the inability to prohibit has not been contracted by our own fault); as, also, permission of an action taken up without our knowledge; or permission of a good action which in fact I was able, indeed, to prohibit, but ought not to have prohibited. But, in truth, when I permit or grant, for example, a starving person to use my food, this is an action directly willed. Now the permission of legislators was discussed in the preceding book.
4. Moreover, just as the spontaneous involves two things, namely, the intrinsic movement of the will, and a previous cognition; so its opposite, the unwilling, indicates quite as much that which from an extrinsic principle is forcibly required from our locomotor faculty, with reluctance on the part of the will, as what proceeds from a defect of cognition. The latter has been discussed above, and the former is commonly called by the special term compulsion. Under this name we do not properly treat those actions which are undertaken so as to avoid a greater evil, although nothing but the present necessity makes them desirable; but only those to which a man is forced by an extrinsic stronger principle to adapt his members, and does so in such wise that he shows his aversion and dissent by signs, or principally by actual resistance. Such resistance is presumed in a civil court of law to have been present in regard to any actions or passive states whatsoever, which are commonly not thought of as being allowed spontaneously, where all signs of actual consent are lacking; and this is called by some interpretative resistance. As when, in the divine law, a virgin with whom one has lain in a field, away from the presence of onlookers, is judged to have suffered force against her will.3 Now something is compelled either in itself but not in its cause, when a man is circumstanced for the present in such a status that he is unable to repel the force brought to bear upon him, and yet was to blame for coming to that state; or in itself and in its cause at the same time, when a man was not also at fault for having come to such a status as that in which something could be forced upon him by violence.
5.Liberty is a faculty of the will, which, assuming all things requisite for action, is able, among several objects set before it, to choose one or several, and reject the rest; or, when one thing is set before it, to admit or not admit it, do or not do it. Now, in a special way, they call the faculty of choosing one or several out of a number of objects, the liberty of specification or contrariety, and the faculty of having to do with the choice of rejection of one object only, the liberty of contradiction or of exercise. Liberty, therefore, superadds to spontaneity, partly the indifference of its own acts as far as regards their exercise, in such wise that the will does not necessarily elicit the second of its acts, namely, the act of willing and of being unwilling, but, in regard to the particular object proposed, it is able to choose either one it pleases, although, perchance, it has more propensity towards this one than towards that; and partly, free determination, in such wise that the will, from an intrinsic impulse, elicits here and now either one of its two acts, namely, the act of willing or the act of being unwilling.
6. Now it is well established that the will maintains command [imperium], as it were, among the faculties of man which, indeed, are capable of that direction. For there are those which altogether reject that free regimen of the will; such as the forces of the vegetative soul, preserving a natural mode of acting which it is not given man to change, or, granted all things requisite for acting, to suspend the exercise of their actions. Merely the application to oneself of the object has been left the will, and when that happens through the medium of the locomotor faculty, it is in the power of the will to turn this faculty speedily or slowly to the service of these forces; in such wise, nevertheless, that the times when nature desires the application of the object, do not depend upon the free choice of the will. Thus hunger and thirst press upon us, not when it pleases a man, but when his more solid or more liquid sustenance has been consumed. But a man may also furnish these forces with an object more or less congruous from which they may take substance for increase or decrease; in such wise, however, that when once the object has been applied, there is no longer room for the regimen of the will. Thus it rests with a man’s free choice to supply food of good or inferior quality to his stomach; but the stomach, when once the sustenance has been placed within it, treats it in the way naturally implanted within itself, and not according to the free choice of man. Internal and external senses, when the organ is rightly disposed, cannot but perceive an object applied to them, and judge of it, just as it appears to them, although, by the intervention of the locomotor faculty, the will is able to apply objects to these senses or to take them away. It will be permissible to apply the same principles to the intellect. For, in truth, the will exercises absolute command [imperium] over the locomotor faculty, not only when that has been left to itself, but also when it is impelled by a desire of the senses. For the will has command also over the desire in question, although not so peaceful a command, nay, from time to time the emotions within a man rise up in tumults which require a great effort to suppress. However, victory is never to be despaired of for the will, when it has applied its forces rightly, even when the emotions, through lapse of time, or by habit, have become strong. But, in the case of those whose mind has been disturbed through disease, there is no longer room for reason, nor are the actions of such persons regarded as the actions of human beings.
7. But the following also is obvious, namely, that neither by an extrinsic principle, nor by an intrinsic one, can the will be so compelled to avoid something harmonious with itself, or to desire something inharmonious with itself, that absolutely no liberty, at least of exercise, is left it. For external force does not properly bring it to pass that we move towards that from which our will is abhorrent, but it either makes the lesser evil desirable, and so harmonious to the will, by proposing a greater evil, just as it is profitable to be freed from the whole debt on payment merely of a part; or else force persuades us to measure the desire for something and the aversion from it by external indications. All other matters which set out to weaken the will by soft enticements or to terrify it by harsh things, cannot bring to bear any necessity for obedience. The will, indeed, in general always seeks a good, and avoids an evil. Yet there is no particular good, even one commended by the judgement of the intellect, but the will may still neglect it.4 Just as the will is able to seek even that which the reason has judged to be a moral evil, when the appearance of good, which is united to that evil, commended by the judgement of the senses, prevails. Thus, whatever obligation the mind be clothed with, produces only this effect, namely, that reason judges you should act in accordance therewith, not that you are altogether unable in fact to tend in an opposite direction.
8. From all this it readily appears also that man is allowed to direct, in accordance with a notional norm, actions immediately dependent upon the will, or subject to its command [imperio]. For, since the will is a free faculty whose acts are bound by a natural necessity, neither with regard to the specification nor the exercise; and the will is not limited to one way of action always resembling itself, but by some intrinsic impulse, as it were, bestirs itself to action, and itself designates the manner of its own action; it is assuredly manifest that, if some rule pointing out a definite manner of acting should become known (for an antecedent cognition of the intellect is always required, and it cannot be that a man should conform his actions to a norm of which he is ignorant), the will itself can elicit its own acts and direct the other faculties subordinate to it in accordance with the prescription of that rule, if it shall have so desired. About this rule, however, it is presupposed that it should not conflict with the universal inclination of the will, that is to say, it should not order the will to seek after something which is opposed to its own nature, or to turn aside from that to which it naturally goes; or, in other words, that it should not bid the will to turn aside from the good as such, or to seek after the evil as such. For that the first be done cannot in any manner be demanded from the will, even if external acts be able to pretend that which is contrary to the inclination of the will.
9. The consequence of this is that the will of man is fit to receive an obligation from an extrinsic principle, so that it may determine, according to its prescript, the specification and execution of its own acts, and its mode of action. For, assuredly, an obligation presupposes a natural faculty of action and non-action, which, if a man so determine by some physical necessity, that, after the fashion of natural causes, he be utterly unable to strive towards the diverse, he would destroy all the morality of his own actions, just as also he who should restrain men with nothing but physical bonds, would reduce them to the condition of brutes. But, when moral bonds are placed upon the will, that is, when what is to be done unless a man should be willing to expose himself to the danger of undergoing some evil, is indicated by him who has the authority to inflict that evil; then, assuredly, although the natural faculty of tending towards the contrary remains, nevertheless, his liberty is bounded by a moral necessity, so that from the judgement of right reason he will always feel that what has been prescribed, rather than the contrary, ought to be done.
10. But, in truth, where an obligation is lacking, the will is understood to be free, and to have the authority of doing all those things which can be performed by it through the instrumentality of its natural powers. Nay, also, when it has once settled itself upon something, unless some law stands in the way, its own decree has by no means such force that it cannot rightly change or do away with it, whenever it so pleases. This change is reckoned as having intervened, not only when a man has expressly signified it, but even when he has done something which cannot comport with the decree of his former will. But, if there be a definite conflict between the instruments of the conventions regarding the same thing, that agreement which was later reached between the parties to the contract will derogate from the agreements previously reached; because no one is able at the same time to have willed to do contrary things, and such is the nature of acts which depend upon the will, that it is possible to depart from them by a new act of the will, either all together, as in contracts, and in pacts which can be dissolved by the consent of both parties, unless they have been made irrevocable by the law of a superior, or else μονομερω̑ς, that is to say, from one side only, as in testaments and in positive human laws. Here, however, it is to be observed that the decree, which cannot be established except in some definite present status or condition, after these have been removed, cannot be rescinded by the founder, when once it has been duly established. So the law which a prince has passed, he cannot do away with when he has given up sovereignty. Nor does it make any difference, if, in the preceding decree, it was stated that the one to be established later would be invalid. For he was right who said, “It is absurd to wish to invalidate some future statute by an antecedent statute.” For absolute authority cannot constrain itself, nor can that which is by nature revocable be fixed.5 No more so than if a man has declared in his will that, if he should make a new will, it would be invalid. For, although a clause of that kind might, possibly, cause the assumption to arise that, in the later testament, his true will had not been expressed; nevertheless, if that clause be revoked here, the previous testament will be altogether vain. Thus the express addition to certain constitutions (a thing which is not infrequent among princes), that, even if by a special rescript they issue some order contrary to them, magistrates or judges are, nevertheless, not to obey that rescript, has no such effect as though they were unable to abrogate those constitutions again; but the princes signify rather thereby that their later rescripts are not serious, or have escaped from them imprudently; and by this shrewd device they rid themselves of the impudence of forward petitioners, whom they could not bring themselves to deny openly.6 Nevertheless, it should be well observed that the decree of one’s own will can then, and only then, be revoked, when thereby some right has not been conferred upon some second person, of which he ought not to be robbed against his will. And from this it is apparent why, for example, in renunciations, when a man has yielded up his right in a second person’s favour,7 the following words are customarily employed: “Contrary to this instrument no attempt ought to be made by me or my heirs, and if, perchance, one should be made, it is to be held invalid and null.” For by this act I abdicate my right and confer it upon another. Hence, indeed, if anything contrary to that renunciation be decided upon in time to come, it will be null; because, of course, I have no further right to that thing, and it is without effect that I attempt to dispose of another’s property.
A man is destined by nature to lead a social life with men.
1. Man has this in common with all living things to whom it has been given to realize their own existence, that he loves himself most, is zealous to protect himself in every way, and strives to acquire the things which seem good to him, and to repel the evil. And commonly, indeed, this love of each man whatsoever towards himself is so great that any and every inclination towards any and every other man yields to it. At times some seem, indeed, to embrace others with a more tender affection than themselves, and to rejoice more in the blessings of others than in those which are especially theirs, and to grieve more over the ills of others than over their own. Thus frequently parents would prefer to have transferred to themselves the pain which they see their children suffering. Thus it is well established that many have met death with equanimity, in order to save others united to them by a special bond. But, in truth, this was done either because, as the result of an intimate relationship, they regarded the good or evil of others as their own, or else because, by that display of affection or fidelity, they were on the way to acquire some special good for themselves. Thus some parents rejoice more effusively in the blessings of their children than in their own blessings, because the blessing which affects equally both themselves and their offspring is in their judgement doubled. Thus we would often be willing to redeem the suffering of one of our loved ones by our own suffering, because the weapon, as it were, which seeks us would be inflicting a more severe wound by passing through so dear a body. And he who does not refuse to die for another, either hopes for so much glory from that act that he judges he can well afford to pay for it with his life, or else he fears that on the other’s death such evil would come upon himself that life would no longer be worth living for him.
2. Now, in truth, man would have been very little different from beasts, nor would he be living a life much more civilized or comfortable than they, were it not that he had some other inclination also implanted in him by nature, namely, that he enjoys living in the society of his kind. This is so clear that it does not need to be set forth at length. Nothing is more gloomy for a man than perpetual solitude. To him alone among animate beings has it been given to set forth to others in articulate sound the feelings of his mind, than which there is no instrument better adapted to form or to preserve society. In no genus of living beings can the advantages of one be so much promoted by others, as in that of men among one another. Such is the state of need of human life, that, were not a number to unite upon a mutual task, life could be preserved only with the utmost difficulty. The weakness of human beings just born is greater than that of any other animal, and while in the case of others but a few days or months are sufficient to enable them to look out for their own food, in the case of men a number of years is hardly sufficient. Add, also, that the earth has everywhere placed their food before beasts, but what suits man requires generally industry and cultivation. And yet the ability to gather food for the stomach is but a very small part in one’s deserving the dignity of the name man. Nay, we should not simply be the prey of beasts, but should also rage against one another mutually, in the manner of wild monsters, were it not that nature had altogether bidden us to unite to form a peaceful society.1
3. However, so that the reasons of those who undertake to deny matters as clear as the foregoing, may not, perchance, move one, it should be known: (1) These two inclinations, by which man loves himself and seeks after society, ought, by the intention of nature, so to be tempered that nothing be lost to the latter through the instrumentality of the former. That is to say, nature commended to man self-love, in such a way that he should, nevertheless, commit nothing because of it, which would conflict with his inclination to society, or injure the very nature of society. And when, through the exorbitance of his emotions, he neglects that, and seeks his own advantage together with some hurt to others, there arises whatever disturbance there be in which men conflict with one another. (2) That definite individuals unite to form a definite kind of society comes about either in consequence of a special congruence of dispositions or of other qualities, or else because they imagine that they can obtain some special end better with these persons than with those. Now it is by no means necessary for all men to coalesce into one society in which all are equal to one another; but it is sufficient if the same persons get together in several and distinct groups, which are, nevertheless, by no means altogether mutually unsociable, but refrain from unjust injuries towards one another, and, as far as they are permitted by closer obligations, share with one another their advantages and blessings.
4. All this being posited, answer can be made without difficulty to the following position which some maintain: “It is, indeed, true that for man in the course of nature, or as far as he is man, that is, immediately after birth, to have a state of perpetual solitude fall upon him, is irksome; infants need the help of others in order to live, adults their help in order to live well; and by the compulsion of nature men seek to gather together. And yet, in truth, civil societies are not mere gatherings, but they are treaties, for entering into which good faith and pacts are necessary. The force of these is unknown to infants and the uninstructed, their usefulness is unknown to those who are without experience of the losses which come from the absence of society. And so it comes about that the former, because they do not understand what society is, cannot enter into it, and the latter, because they do not know what it is good for, show no interest in it. Therefore, all men, since they are born as infants, are born unfit for society, and a very great many remain so all their life long; but, by discipline, and not by nature, man becomes fit for society.”2 But it is readily apparent that the colour of objection rises pretty much from a quibble about the Greek word πέφυκε, which Latin translators commonly turn aptus natus est [has been born fit for], and by this is properly signified a natural inclination towards something, together with a natural potency of receiving an actual fitness for exercising that thing; even if that actual fitness should not be in him immediately by birth, but have to be introduced by industry, and it alone. And so the sense of that trite saying, “Man is by nature a social animal,” is this: Man is destined by nature to society with his like, and this is most suitable and useful to him; and man has been endowed with such a disposition that, by cultivation, he can receive a fitness for acting well in that society; nay more, this is perhaps the principal fruit produced by societies, namely, that the recently born, in whom no actual understanding of those things has been implanted by nature, may, within societies, be fashioned into suitable members of the same. Nor does this fitness exist merely within the limits of marriages or families, but it extends also to the establishment of states, where several families come together for the sake of security and a richer life, and manage their affairs by the common counsel of the society under definite laws about commanding and obeying. Such societies nature has altogether wished to have among men, although it has been left within the free choice of men, and so is to be determined by pacts, just what individuals are to be united to what society, or who is to be set at their head for governing them. Nor does the state cease to be in itself congruent with nature, because many struggle to its helm by unjust force and crimes. But, as there are a number of special forms of states, so the diverse dispositions of men better agree with diverse forms. But if, in truth, some one’s disposition out of pride disdains to accept the equality of conditions, without which society cannot coalesce or stand, this is by no means an indication that man is not a social animal; but that the individual in question is either less fit to live in some special kind of society, suppose, for example, one in which all enjoy an equal right; or else in a faulty way indulges more than is right in self-love, which, however, nature bade agree peacefully with the inclination towards society. But the objection which is advanced, namely, that the advantages of life can be furthered better by mastery than by mutual effort, is of no moment. For there is no stable mastery at all without society, and it is altogether impossible for all men to have dominion over other men.
5. Now as for the further objection: “If man loved man in the course of nature, that is, as man, no reason could be given why each single individual should not love each other single individual, as being equally a man, or why he should the rather frequent those in whose society honour and advantage are accorded him beyond others.”3 To meet this it should be known that all men, indeed, have been brought together by the similarity of their nature towards one another, so that in actual fact that general friendship resulting from a common nature ought also to be common to all, unless some one, perchance, has by his crimes made himself unworthy of it. Now, in truth, a number of circumstances are added to that common nature which are responsible for one loving this one more than that one; suppose, for example, that there was between them a greater congruence of dispositions in regard to special inclinations, or else that their birthplaces were not far apart. But then and only then could no reason be given, if all men had grown up out of the earth together like fungi, without any relationship to one another,4 or if they had among one another a similarity of dispositions at every point. But as such a state of men has never existed, so no conclusion can be drawn from supposing it, contrary to what the actual facts show.
As for the rest, a man more gladly frequents those in whose society honour and advantage are accorded him, rather than to a second person, because each man loves his own advantages. And this is by no means repugnant to nature, provided only the harmony of society be not disturbed by that love. For nature has not bidden us to cultivate societies with the purpose of neglecting the care of ourselves; since, forsooth, societies bring about in the very highest degree the condition that, through the mutual sharing of aid and of blessings with a number, we can the more conveniently look out for our own blessings. And even though a man, in uniting himself to some society, should be accustomed to regard primarily his own advantage, and secondarily that of his associates, nevertheless, nothing prevents him from owing so to foster his own private advantage that the advantage of the society be not hurt, or injury brought upon individual members; or from sometimes neglecting his own advantage to care for the advantage of the society. And the argument which is advanced, namely, that the origin of great and long-enduring societies, that is, of states, did not come from the mutual benevolence of men, but from their mutual fear (using this word for any prevision and precaution whatsoever taken against a future evil),5 has nothing to do with the case. For it was in the highest degree congruent with human nature that, since one by one, or a few at a time, they had been exposed to injuries, a number united with one another should fortify themselves against ills; nor is the sole end and use of states the avoidance of evil. Nor is it required, in order for some society to be called congruent with nature, that it have arisen out of mutual benevolence alone, although neither is that entirely absent in establishing states; since, forsooth, at least those who lay the first foundations, as it were, of states, are most of them united to one another in mutual benevolence, although, perchance, others afterwards may be induced to join them out of fear.
6. Now it is worth while to have considered in just what condition men would be living if they should be deprived by nature of every obligation to cultivate society among themselves, or if they were not social animals. Here it is assuredly apparent that, since no right had obtained mutually among them, the result would have been that each individual whatsoever would have had equal rights with others to any thing whatsoever; and, without any injury, any one whatsoever, as far as each one’s strength had admitted of so doing, could have inflicted upon any one whatsoever what he thought would make for his own preservation; and from that would have resulted the war of all against all, which is the very life of beasts.6 For, just as, because of the fact that man has no community of right with the brutes, any man whatsoever (when you remove the respect in which particular men have already acquired for themselves above others rights over brutes) may properly, as far as his strength allows him, whenever he so pleases, either kill any animal whatsoever, or compel it to perform a service, without thereby doing an injury to the brute; thus, if I had no obligation towards any man, assuming that I had the natural faculty to hurt or even to kill a second person, I might properly defend my life and limbs as far as I could, and employ all the means serving thereto, and it would rest with me alone to judge of their aptness to that end; and so I might not merely appropriate to myself all those things which I judged to be conducive to my interest, but I might even kill any man whatsoever, or weaken or constrain him in some fashion, if, indeed, that should seem to be expedient for my security, especially since, in such a state, I could take no precautions for my security except by violence, as no mutual obligation existed. And, since any one whatsoever would have had the same licence regarding any one else whatsoever, what else would men have been but wild beasts, rapacious against their own kind? But, in truth, since men have never existed in such a state, and by the intention of the Creator ought never to exist in it, it is utterly incongruous and almost self-contradictory to call this the state of nature. And so the inconveniences also directly resulting from such a state ought not to be substituted as the foundations of the law of nature (although, in actual fact, that no such state exists among men is due to the law of nature); but rather this, namely, that God has directly destined man to cultivate a social life.7 For had this not been the direct intention of God, it would not have been more necessary for men to enter into pacts with one another because of the disadvantages resulting from a non-social life, than for other animals to enter into a pact with bears, wolves, or lions to avoid the disadvantages of the non-social life which they lead. Nor is there ground for retorting that they do not have reason by which they may understand the force of pacts. For neither would God have given men reason, had He not wished to destine them to cultivate society.
Right reason dictates that a man should care for himself in such a way that human society be not thrown into disorder.
1. Although, when man comes into the light of day, his mind is found to be imbued with no knowledge of affairs, nevertheless, his intellect thus disposed God has so shaped that, after his powers have begun to exert themselves simultaneously with advancing years, from the inspection of natural matters he conceives certain notions serviceable to a richer knowledge to be erected upon them later; and, from the contemplation of himself, he recognizes what actions, as being in accord with his own nature, the Creator has wished him to perform, and what to avoid, as being repugnant to the same. To be occupied with the former is the part of others; it is for us here to look with a little more care into the latter class. By experience, therefore, it is well established that, when, out of a state of infantile ignorance, the light of reason in man reveals itself with a little greater clarity, and turns itself to the contemplation of its own nature, his reason which has not been corrupted by emotions or vicious habits, dictates to him that it is right, indeed, for him to care for and save himself as far as he can; nevertheless, because he has observed that he has been destined by the Creator to cultivate society with other men, it is necessary so to modify his care for himself as not to become himself unsociable with others, or not to have society among men disturbed. It is this very thing which we call the law of nature. This law, as has been said, comes to be known, without any supernatural aid, from a consideration of nature and the condition of man. Nor does this nature cease to be known because many have not that strength of natural capacity which would enable them to investigate the same by their own processes of reasoning, or because knowledge of it is acquired by most men through information derived from others. For it is sufficient that the perspicacity of but mediocre intelligence can deduce it, and the rest of men, when, under the instruction of others, they have compared their acquired knowledge of it with the condition of their own nature, are able to observe that this law is necessarily in accord with them. And, as human society coalesces and is preserved by the law of nature, so this is by no means the least fruit of societies already established, that, in them, through instruction from others and by its very exercise, even the duller may learn the law of nature.
2. But the method of reaching easily a knowledge of most of the laws of nature, which is strongly recommended, namely, that, when a man is on the point of doing something to a second person he should think of himself as being put in the place of the other with whom something is to be done, and the other in turn set in his place, is so to be restricted that, in such a case, there should be considered not only what would be pleasing or displeasing to have brought upon us, but also what obligation or necessity rests upon us of conferring something upon the other person. And so that trite saying, “Do not do to the other person what you would not wish to be done to you,” is valid only thus far; just as you do not wish it to happen to you that the other person brings upon you something unpleasant, to which he is not forced by some obligation or necessity; or, in other words, what amounts to the same thing, as you do not wish done to you by the other person what is unjust or inhuman, so do you not bring anything of that sort upon the other person. On this score the judge, assuredly, is not hindered by that dictum from inflicting punishment upon the guilty, although he himself, put in the place of the guilty, would desire to escape punishment quite as much as they. Thus, in regard to what was enunciated by the Saviour himself, “Whatever ye wish that others should do unto you, do ye also unto them,”1 there must likewise be borne in mind not merely what would be pleasant to have done to us by the other person, but also what the other can conveniently do. Hence it is by no means proper for me to clean my servant’s shoes for him, because I want him to clean mine for me. And there is enjoined by that precept before all things the exercise of justice and humanity. Now this humanity, assuredly, does not require me to do something for the other person which I myself cannot be deprived of without great inconvenience to myself, or supply him with things which either I cannot myself supply conveniently, or which are not so very necessary to the other that they must be supplied by me.
3. Now that dictate of reason or law of nature has force to obligate men on the authority [autoritate] of the Creator, as of one exercising supreme sovereignty over them. And, since He has so formed the nature of man as to make it apparent enough that man has been destined to cultivate society, and, for that reason, has made his mind capable of those notions, it is understood, assuredly, that He also wished man to attemper himself to the end prescribed by Himself. And so, since that end is obtained by the law of nature, He has obligated man also to preserve it, as a means not discovered by the free choice of man, and subject to change in accordance with their humour, but expressly established by God Himself for attaining this end. For he, who, by virtue of his command [imperio], enjoins upon a second person an end, is reckoned also to have obligated him to employ those things which are necessary to obtain that end. And the laws of nature would have had a perfect force to obligate man, even if God had never set them forth also in His revealed word, nor are they any less laws because they appear to be merely certain conclusions, perceived by the reason, touching things to be done and to be avoided, and not the discourses of Him who rightfully commands something to be done or not to be done. For man was bound to obey his Creator, even if, by a special revelation, He had not manifested to him His own authority [autoritatem]; since, forsooth, he might otherwise perceive that he was subject to the authority of the Supreme Arbiter of things, even without a revelation of that kind; and law is the decree of a superior, in what fashion soever it may finally become known to the subject, whether it be promulgated by means of notional signs, or a discourse expressed by the voice, or in writing, or whether from the condition of nature, or that of the transaction which must be done, it has to be inferred or presumed by the process of reasoning. And no one will deny that those also to whom the Sacred Scriptures have never become known, have sinned against the law of nature; which could not be said, if, indeed, it borrowed the force of a law from promulgation through the Scriptures.2
4. Now the fundamental laws of nature and those from which all the rest flow are two: (1) That any one whatsoever should protect his own life and limbs, as far as he can, and save himself and what is his own. (2) That he should not disturb human society, or, in other words, that he should not do anything whereby society among men may be less tranquil. These laws ought so to conspire, and, as it were, be intertwined with one another, as to coalesce, as it were, into one law, namely, That each should be zealous so to preserve himself, that society among men be not disturbed.
5. Now, indeed, there are those who, with considerable subtlety, deduce all other laws from the first alone. To wit, since, if all society among men were abolished, any man whatsoever would have an equal right to any thing whatsoever, and from that the war of all against all would have arisen, yet this status would be utterly repugnant to the conservation and security of men, and would bring with it infinite troubles and miseries: Therefore, peace is to be sought, as far as some hope of having it shine upon us, and where it cannot be had, the aid of war is to be sought:3 And so a right to everything is not to be retained, but with pacts, by which one must altogether stand, society must be established for the sake of mutual aid, and so on. But, in truth, since it has been shown above that nature has directly destined man for a social life, in such wise, that, although he may have bound himself by a special bond to some particular society, nevertheless, with all men, even those who live outside of that society, he should cultivate universal peace as far as they may allow him to, and he should exhibit the services of humanity which he can conveniently; the preservation of the social life is also deservedly laid down as the basis for the laws of nature, but is not assumed in a secondary way as something which men have been compelled by accident to take up. Hence, also, it is incongruous to wish to derive from the dictate of reason, cutting off the supposition of the social life, some primeval right of nature; since, forsooth, everything which is inferred in that way is necessarily to be attempered to the nature of social life. And let us assume that a certain people which cherishes internal peace among its citizens, has such strength that it may be feared by all the rest, and so is by no means kept from hurting others by the fear lest, perchance, its own example be applied to it: If such a people should, to its own pleasure, raven against the persons or property of other weaker peoples, drive off, carry away, kill, or drag others into slavery, just as it might judge to be expedient to itself, who would not recognize that the law of nature was directly violated by them? Or who would say that they differed from a pack of wolves? And yet (as we are supposing) that people might preserve itself, even if, perchance, it should employ no right in its dealings with others.4 Nay, beyond all other things, the persuasion that a man is sufficient unto himself, that he has made abundant provision for his own safety, and that there is no reason why he should be zealous to deserve the services of the rest, induces him to violate the law of nature. Nor from any other fountain head has flowed the custom, formerly accepted among many peoples, of disturbing strangers with brigandage and practising piracy; because men felt that they were bound only to their fellow citizens, and were obligated to strangers by no bond of right; and so, that there was peace only with their fellow citizens, and war with all others. It stands, therefore, that, as the life of men without society is destined to be like the life of beasts, so the law of nature is principally founded upon the principle that social life among men is to be preserved. And the condition of our nature is so far from conflicting with our assertion, that it rather supports it firmly. Now this condition, even if we were bound by no law of nature to cultivate society, would urge us to establish it of our own accord, because of the advantages flowing therefrom, and so as to avoid the disadvantages which accompany the non-social life.
6. But we must here consider whether that law about preserving oneself without disturbance to society or hurt to the other person, be not restricted through the case of necessity; or, in other words, whether it may not be permissible to hurt the body or the property of a second person, if, indeed, I cannot otherwise save myself and what is my own. On this point we here lay down the principle that, on the basis of the law of humanity, any one whatsoever is bound, when not under an equal necessity, to the extent of his power to come to the aid of a second person placed in an extreme necessity, and necessity gives the authority to claim this aid in very much the same manner as we claim the things to which we have a right; while there remains the obligation to make restoration, at least by way of gratitude, when the present necessity has been removed. For to necessity is deservedly ascribed such force, that it prevails over those reasons by which, otherwise, we are bidden not to claim by force what is due us by the law of humanity.
But the principal controversy is as to whether necessity gives one a legal right to the life of a second person. Here in different cases the judgement must be different. And, in the first place, indeed, if, for example, a prince, or one who otherwise has in any way at all for the present the power to dispose of my life, should bid me kill a second person, of whose innocence I was convinced, if I did not wish to be killed myself; and of course, if he have enjoined upon me merely the execution, hardly any one will doubt that I may rightly turn my hands to that service for the sake of saving my own life. For there is no reason why I should throw my life away, when the second person is going to be put to death by others just the same, especially since he who brings that necessity upon me, takes full responsibility for the deed himself, and does not appear to be deriving upon me any part of the guilt. Although I very properly deprecate such a service, where it is permissible to avoid it without great peril, even when only the execution is entrusted to me. But, in truth, the case is different, if a prince, under threat of death, should give orders to condemn as guilty a man who, in the judge’s own opinion, is innocent. For in this wise the judge lends the violation of his office to furnishing a specious occasion of wreaking vengeance upon an innocent man as though he were guilty, and so the judge derives a large part of the guilt upon himself. A good man should account it a glorious thing to escape the turpitude of such a deed even at the risk of his life. There are other cases, besides, in which, in order to save my life, the life of another can be exposed to probable peril of death, not, indeed, in direct intention, but indirectly, and as a consequence. Thus, for example, when two of us are in present peril of our life, so that both will have to die together, or only one can be saved, it is permissible to bring his fate upon the other person, who would otherwise perish anyway, so that I be not myself compelled to perish with him. Thus, in a shipwreck, when I have seized a plank not large enough for two; if some one should swim up and wish to throw himself likewise upon it, and so destroy me together with himself, nothing prevents me from driving him away from me by any kind of violence.5 Thus, when the enemy, intending death, follows hard upon two who are fleeing, in the present peril to his life one can abandon the other by breaking down a bridge behind him, or by closing a gate, if it be impossible for both to be saved at the same time.6 In like manner, if some stronger man should pursue me with threats of death, and if some one who was otherwise in no danger from him should meet me by chance in the road by which I had to flee, if, indeed, when admonished, he did not get out of the way, or the shortness of time or the narrowness of the way did not allow him to do so, it will assuredly be permissible to strike him down, and to betake myself to flight over his prostrate body; even if, in all probability, as a result of that assault, it should appear that his body would have to be struck down violently; unless, perchance, the person in my way be of such a sort that I ought rather to run a probable risk of my own life than that he should be severely hurt on my account. But, in truth, if any one has impudently or inhumanely stood in my way, and has refused to grant me a way of escape, I can kill him as an enemy and with direct intent, if, indeed, he cannot be removed from the way by any less severe means. If, however, in shipwreck, for example, more persons should leap into a boat than it can carry, in such wise, that, if the rest wish to be saved, one or more must necessarily be thrown out; assuming that all enjoy an equal right here, those who are thrown out will have to be chosen by lot, and if any one refuses to have the lot cast, he can be thrown overboard without further delay, as one who is seeking the ruin of all.7
He who has carefully weighed these cases, and others similar to them, if such occur, will not fear at all, lest therefrom follow the possibility of also doing harm to the life of a second person, in order to save some limb; and lest the matter come finally to such a pass that we feel any inconveniences of ours whatsoever can rightly be warded off to the damage of a second person. For the favour accorded the saving of one’s own life does not attend other blessings in equal measure, and no law of humanity bids me to avert, with equal or greater inconvenience to myself, inconveniences of that kind from a second person; and so force cannot be employed here by a second person with any colour of right.
7. But, when the necessity has merely to do with the property of the other, or when our life can be saved only by the property of the other, there is scarcely any doubt but that, when no other means are available, this property can be appropriated by force, and against the will of the owner, who is not under pressure of the same necessity. And this is not on the basis of some exception, added or understood in the pact establishing private ownership in the first instance, namely, that, in a case of necessity, community of goods was to return,8 but on the basis of the reason just given. And hence, if, by the exercise of violence, one man prevents another, when oppressed by such a necessity, from the use of the first man’s property, it is not said properly of the first that he has done the second an injury, but merely that he has sinned against the law of charitable affection; nevertheless, the former would necessarily have to be said, if, indeed, private ownership ceasing to exist in this case, need should grant a right to property equal to the right of the possessor of it. Nor yet is a wrong done the owner, when a service, otherwise to be furnished by him as a voluntary agent, is, because of necessity, extorted from him as an unwilling person, especially when restitution, at least by way of gratitude, is to be made in due time. But, in truth, just as in the case of need, which stood on the same footing with this, each man is naturally his own best friend; so also, a second person cannot take away from me by violence my property which I need quite as much as he does. Hence, we are of the opinion that the following is even less congruent with the truth: “The debtor left in extreme necessity is not now bound, the present moment having been fixed for payment, to restore the property to the creditor who is labouring under an equal necessity.” For it is certain that the creditor in this case can rightly take away by force from the debtor the property owed him. And yet it appears absurd for one properly to have the right of taking away any property from a second person by violence, if, indeed, in that second person there be no obligation to give him that property. For, that necessity makes things common, we have already denied, and the assertion that the legal position of the possessor is better, is valid only when the right of the claimant has not yet been clearly demonstrated. But the following case has very little doubt about it, whether, namely, when a conflagration has broken out, it may be permissible to tear down my neighbour’s house, so as to save my own. For by that tearing down my neighbour suffers properly no loss at my hand, since his house was otherwise going to burn down; nor has he ground of complaint because his house succumbed to the hands of men rather than to the flame, so that in this way damage might be averted from his neighbours.
8. Now from the former fundamental law this general law flows: Every one whatsoever ought to leave undone that which either weakens the use of the reason, or brings harm or ruin to the body. The exercise of this law, although it terminates directly in each man’s own person, does, nevertheless, altogether involve some regard for the preservation of society, and redounds consequently to its own advantage, in that it orders the very members who constitute society to preserve themselves, or so to attemper themselves that they may not be a burden both to themselves and to society. Nay more, it appears that there was scarcely any need for this law, and nature might have left each man to his own instinct regarding care for himself, had she not wished to destine man to the cultivation of a social life. Furthermore, from that law there flow the precepts of the law of nature about composing theemotions and bringing them under the command [imperium] of reason,9 forasmuch as they hinder us in forming a right judgement about things, and frequently carry us off to those things which are harmful for ourselves and others; also the precept about avoiding drunkenness, since, in addition to the harm done the body, drunkenness very commonly casts down the mind from its station. And so drunkenness makes us tend in a direction opposite to the law of nature which altogether demands the use of reason for its observance. Now it makes no difference whether a man be acting directly contrary to his duty, or be voluntarily undertaking that by which he is rendered unfit for the performance of his duty. From that law comes likewise the precept about avoiding irregular sex relations, or those vile comminglings with one’s own sex or with different species, which throw a foul stain upon body and mind, the dignity of human nature being violated by such shameful acts; aside from the fact that they tend directly to overturn the foundation of human society, which cannot endure without the propagation of the species. And finally the precept about not mutilating one’s members (except, perchance, for the safety of the whole body), and not throwing one’s life away, nature and obligation not demanding it. But that a member already irreparably injured by some disease or accident can be separated from the body, so as not to infect and destroy the whole body with its contagion, is beyond doubt.
9. But there are those who start a controversy here, as though these matters were not enjoined by the law of nature, for the reason that instinct and sense appetite moved long since to such things with adequate force, and it was not necessary for man to be obligated to them by the law of nature. Now they understand here not merely one’s own preservation, but also the appetite for society and matrimony, and the care and bringing up of offspring, which to some of the ancients were the first dictates of nature, in regard to which reason had place only in so far as to prevent a second person from being unjustly hurt by them. But, in truth, it is so far from following that the law of nature does not prescribe these matters, because natural instinct long since moved toward them with sufficient keenness, that rather it clearly appears nature wanted them to be most carefully observed, as preserving the seed plot of the human race, in that, being doubtful of reason’s dictate alone, she bade so strong a natural instinct support it, that man can with the utmost difficulty strive in the opposite direction. For, if there could be carefully weighed the troubles which necessarily attend human life, far exceeding that trifling and cheap amount of pleasures (and for how many life is prolonged so that they furnish fortune material on which to vent her fury!), how few there are who would not at the very first opportunity break off this life, if reason alone urged its preservation, and a natural instinct did not so carefully commend the love of it. Exactly as every day we see great numbers of men sin against those laws of nature which reason alone dictates. Thus how few there are who would take pains with their children, who often give occasion for grief, or at least furnish the most certain cause for cares and labours, were it not that, in addition to reason, natural inclination also propelled us in that direction. Especially as all this is attended by an act so little decorous and by intercourse with women, which would be both trivial and tedious to the wise man except for their allurements. We know, indeed, that the natural instinct and the dictate of reason, or law of nature, are utterly distinct things. In most matters also these two tend in the opposite direction, in such wise that instinct leads us away from that honourable course which reason urges. As man ought to overcome instinct when resisting reason, so the ability to overcome it belongs to the mind not degenerate. But to dull the point of that instinct which conspires with the dictate of reason, is the part of a madman. And so it is not the act of overcoming every natural instinct, which is connected with praise, but only that instinct which strives against the dictate of reason. And, although instinct alone never obligates a person to do anything, nevertheless, it happens that we are obligated to something, to which we are inclined also by instinct, because the dictate of reason also prescribes the same. Just as also brutes for that reason cannot at all be said to be capable of legal right, even though, by instinct alone, they move to those things which tend to preserve the individual or the species. Nor, in truth, for that reason is a mother who kills her offspring in order to avoid disgrace, excused from a sin against the law of nature, although she be overcoming her instinct towards her offspring by another instinct, namely that of shrinking from disgrace. For the infant’s life had been protected not by the mother’s instinct alone, but also by the law, and the mother ought to have known that her disgrace is of less consequence than the death of that which came into being by that act to which she had herself previously consented. Hence, if her good name meant more to her than the pleasure of copulation or the love of her offspring, before copulation was performed she ought to have thought about that; but, afterwards, the offspring by no means deserves to die so that the parent’s sin shall not become known. Now that it is not absurd or superfluous to ratify such matters by civil laws also, is shown clearly enough by laws of the Spartans and the Romans, among whom, to be sure, citizens were compelled to enter upon matrimony by rewards or through the fear of ignominy. As far as the law of nature is concerned, however, assuredly it enjoins matrimony upon all who are naturally capable of it, unless with the greatest probability they have foreseen that they will contribute more good to the human race by passing their life in chaste celibacy, than if they procreate their kind. However, since that is an affirmative precept, it will not obligate unless a convenient occasion has been given, and this is not to be measured merely by marriageable age, and the material means appropriate for that condition, but it is also to be borne in mind whether considerations for the status which one ought to maintain in the state, allow it.10 Now when matrimony has been contracted, as the stimulation merely of the genital field is in our power, but the germination depends upon natural causes by no means subordinate to our free choice; so, for the same reason, he who has begotten but two children only, if, indeed, nature denies him more abundant progeny, satisfies the law of nature as well as he who has been made a parent by a wife fertile with numerous offspring.
10. Furthermore, it is not superfluous to have here considered the question how far that precept of the law of nature about preserving oneself extends, and whether one in spurning the sweetness of life, or for the purpose of avoiding great miseries, may hasten one’s own fate. Here, although it be extremely invidious to depart from the common persuasion, we shall see what can be said with probability only. We presuppose, therefore, what was demonstrated above, namely, that just as no one can properly be obligated to himself, so also he who has inflicted violence upon himself is doing himself no wrong. Now the reason that a man is obligated by the law of nature to preserve himself, seems to be that he has been destined by the Creator to cultivate human society, which he cannot at all abandon at will after the fashion of a deserter or a soldier who fails to appear. Now, since, on removing that consideration looking toward the social life, non-social man would have been without any obligation, like a brute, it appears that instinct alone would have commended to man the custody of his own life and body, and, since this instinct alone does not have the force of a law, he would also not have sinned, who had done something contrary to it. Because, therefore, our life, for the good of human society, has been fortified, as it were, by a law of nature, it follows that a man can, on the basis of an obligation enjoined upon him by his sovereign, or one which he himself in the exercise of reason undertakes in behalf of the safety of a number, undergo with deliberate purpose a peril of the kind from which he can with probability foresee that he will not escape with his life, except, perhaps, on some unexpected chance. And this is approved not merely by the consent and usage of all nations, but also the very histories subscribed with the divine authority [autoritate] glorify and praise those who for the king or their fellow citizens have entered upon danger threatening present death, although sometimes it has happened that, by their own valour, or some unexpected chance, they have escaped; and yet upon the hope of escaping death it was not permissible to undertake an act otherwise in itself illicit. Hence this much, at least, is well established, that by the law of nature a man may for the safety of a number undertake an act of a kind in which he foresees that his life will probably be lost. On this score even those ship captains can be excused who, when the enemy captures the ship, throw a lighted fuse into the powder and destroy themselves along with the enemy. Although the heads of the state ought carefully to consider whether it be to the public good for lower officers to be bound by such a necessity. And the same question is to be raised by a lower officer, if, indeed, he should undertake a thing of that kind upon merely the presumed will of his superiors.
However, what may be permissible beyond this case is a matter for deeper delving. Any one, indeed, would justly excuse from the crime of suicide those who, from a disease disturbing the use of the reason, lay hands upon themselves. For their acts, since they cannot be directed by reason, are not reckoned as moral acts; unless, perchance, in so far as they themselves were at fault for having lost the use of the same. Nor does the question whether a person falls by his own hand, or in any way whatsoever forces others to put him to death, seem to have any bearing in the case. For he who did not owe it to die here and now, is not excused if he has used the hands of another in bringing about death, since, forsooth, he is reckoned as having done himself that which he does through the instrumentality of another; although he who has committed his hands to this ministration, can also contract guilt. In general, therefore, there come to be weighed the causes whereby a man has been moved to anything of the sort. For, if the cause be of the kind whereby he is going to preserve the safety of a number through his death, it appears that he can use the same excuses which are open to those who devote their lives for the public safety. But favour is merited, or at least pity, rather than a harsh judgement, is due also in the case of those who lay hands upon themselves, because, with a morally infallible certainty, they foresee that death with torture will soon thereafter be inflicted upon them by the enemy, and it does no good to the state for them to die at the free choice of a second person; or because they see directed against them by others something on the commission of which they will thenceforth be objects of disdain to the rest of men. Such persons are those who, when they see death at the hands of a truculent foe or tyrant hanging over their heads, have preferred to hasten their fate so as to escape tortures; likewise women who have avoided the violation of their chastity in this manner. With plausibility, indeed, can they put forward in excusing themselves, that, from so great a necessity brought to bear upon them they had gathered that their dismissal had already been given; also, that it is a small matter to anticipate death by so slight an interval of time, so as not to feel the torments and the insults which might, perchance, drive them to a grievous sin; and that nature does not appear to have wished to enjoin upon noble minds the necessity of altogether putting their life at the pleasure of a second person, after first having been abused with contumely. But, truly, he who has voluntarily broken off his life out of sheer boredom at the annoyances common to life, or indignation at its evils, which were not going to render him useless in human society, or through fear of torture, by having endured which bravely he might have benefited others by his example—for him assuredly no excuse avails to prevent him from being regarded as having sinned against the law of nature.
11. As for the rest, just as the latter fundamental law obligates all men whatsoever to render one another in a free and friendly fashion what they owe, and, as a result of carefully observing that law, there results peace, which is the status best suited to human nature, and for the establishment and preservation of which the law of nature has primarily been implanted in man: so, by the former law, war is licit and sometimes necessary, that is to say, when a second person has violated the latter law of nature in my case, and refuses to make good the damage incurred thereby. For here the former law about preserving myself gives me the authority to defend the welfare of myself or mine in any way at all (of course, where there is no chance to avail myself of a judge) against him who violates the same unjustly, notwithstanding the latter law which otherwise prohibits the doing of a hurt to the body and property of a second person. For, since the law of nature obligates all men equally to exercise towards one another the duties due on the score of the law of nature, it is assuredly patent, that, as long as another does for me that which the law of nature prescribes, I ought to do the same for him. But, in truth, when a second person violates right in his relations towards me, then assuredly it will be most impudent for the same man to demand from me that I continue to show him the offices of right, unless he has repented and binds himself to take them up again. Otherwise, also, all the goods which nature or industry has given us would have been granted in vain, if it were not permissible to oppose force to a second person unjustly violating them; and force, the proper means of acting in war, as it were, nature has allowed us to employ, where my welfare cannot be obtained by peaceful means. The exception, however, made by the obligation of subjects towards those who have supreme authority, is elsewhere explained.
12. Furthermore, there is need of force for a twofold purpose, either to defend myself and my property against him who is attempting to harm them; or else to compel another person to restore the damages already done by him to me and to give a guarantee that he will not offend in the future; and from all this arises the distinction between defensive wars and offensive (just) wars. Now regarding defence, it is to be observed that the right of war or of exercising violence begins when the second person attempts to injure me, whether he do that of set purpose and of malice, or out of ignorance; suppose, for example, that he was mistaken in my person, or was affected by insanity. For by what cause soever the aggressor be impelled there is no obligation upon me to throw my life away as a favour to him. But the beginning of doing hurt is not merely defined by the performance of the actual hurt, but is also reckoned as existing already at the moment when a peril is clearly threatened, and it is apparent that the other is already manifestly preparing to attack me. Here it is assuredly stupid to offer yourself to the first blow; but force is rather to be brought to bear promptly, and he who is already preparing to hurt me must be forestalled. But an uncertain suspicion of peril, although it can persuade you to surround yourself with defences, nevertheless does not give you the right to use force first,11 not even to the end that the other furnish what they call a real guarantee not to give offence, that is to say, hostages, sureties, pledges, &c. For, as long as one man has not hurt the other, and is not caught in the very act of doing hurt, he surely has the presumption of being prepared to do his duty for the future also; especially if he confirm that presumption with words and by giving a pledge. From such a person one cannot rightly extort a guarantee by force; for this would make the latter to be in a condition inferior to that of the person himself, since the latter would be demanding to be believed without a guarantee, a thing which he refuses to do for the other without a guarantee. Therefore, either each should guarantee the other, which in such a case is useless and also absurd, unless both consent to that voluntarily from the beginning, or should be content with receiving and giving an assurance of good faith.
13. Now as to the intensity and mode of defence, the law of nature does not merely permit me to employ such as will preserve me and mine for the present, but, more than that, allows me to take measures to obtain a guarantee for the future, and while the other allows himself to be driven to this guarantee by force, he shows that he has still the mind to commit an offence against me in the future, and so, when I cannot obtain a more convenient guarantee, I can legally put him to death, even if the harm first directed against me by him has not touched my life. For, from him who has in me violated the law of nature in one matter, I can expect nothing of a friendly sort, unless of his own accord he come to his senses and satisfy me on the score of the damage, or give me a guarantee for the future. Nor does he receive wrong from me in that he suffers an evil greater than he was trying to inflict; because, while unjustly hurting me, he has left himself no right which will be of avail, at all events towards me, to prevent me from inflicting upon him any amount of violence whatsoever. But when a man unjustly hurts a second person, unless he hurt me indirectly at the same time, or unless I myself am under obligation to defend that other person against unjust violence, there does not come to me the right of bringing force to bear upon the first person, as long, indeed, as he shows no evidences of a hostile mind towards me. For a wrong done to a third person does not supply me with a morally firm certainty that he will also be doing wrong to me; since special causes which are not found in me may incite him against a third person. And yet I ought quite properly to be carefully on my guard against such a man. But, truly, in states where security is protected by the common forces of individuals, to undertake the defence of oneself and of one’s own property by one’s own private strength is allowed any one only when time does not permit us to call in public aid; and, indeed, only to the extent of putting outside of present peril my life, or property not admitting of restitution; since, forsooth, the authority of the magistracy and the punishment to be inflicted upon the one doing hurt, furnish a guarantee adequate for the future. And so, he who in a state wishes to exercise in some case the control of blameless guardianship, ought to examine not merely the law of nature but also the positive civil laws.
14. Now it is to be observed further about war, that it is an unnatural status of men, permitted, nevertheless, by nature to man in a definite case, to wit, when the wrongs done by a second person do not allow me to enjoy peace. For then nature allows me to employ all means of securing my safety against those who criminally attack it; for, along with care for himself, she implanted in man’s mind a bitter sense of wrongs, so that he is unwilling to let himself be ruined through the wrongs done by others, and she armed his body with nimbleness and strength of hands so as not to be compelled to endure the same with impunity. But nature allows war only in such a way that he who wages it ought to set before himself peace as his end, or in other words, that both belligerents be allowed to exercise towards one another the offices of the law of nature, as well as to come into possession of their right and enjoy it without impediment. Otherwise, it is certain that those who wage war for war’s sake only, trampling under foot the law of nature, lead the veriest life of brute beasts, who are at war with one another and with men, without any intention of securing peace.
15. Besides that, although he who has hurt me, immediately gives me the authority, as far as he is concerned, to wage war against him; nevertheless, one ought to take heed to see how much good or evil is going to redound therefrom to me or to others who have not hurt me. For the wrongs which do not utterly destroy my welfare I ought not to avenge in warfare, if either the disadvantages which are going to come upon me and mine therefrom outweigh the advantages; or if, on the occasion of my making war, there will come to others with whom I still cultivate peace, losses of a kind which, on the basis of the law of humanity, I ought to avert by tolerating unavenged a wrong of the sort which has been inflicted upon me. Hence, rightly and laudably, any one whatsoever avoids avenging with warfare the injury done him, from the punishing of which it is judged that an evil greater than the good arises.
16. Now, since the performance of duties due on the basis of the law of nature ought to be mutual, in such wise that he who was the first to break them should absolve also the other person, as far as in him lies, from the obligation to observe the same towards him; it is readily apparent that he who has unjustly hurt me has on his side remitted to me whatever he otherwise could have demanded from me by the law of nature, and has destroyed all the intercourse of right between us: And so he has given me the faculty of waging war against him, that is, of exercising force against him without stint or limit.12 And this not merely if he attacks my life, but even if he should knowingly and willingly direct some lesser evil against me. Because he has no more right to inflict upon me unjustly a buffet, than he has to kill me.13 For the objection which some men raise here, namely, that retribution ought to be proportionate, has place only in tribunals where penalties are inflicted by superiors. But the things inflicted by right of war do not properly have the character of punishments, for they do not proceed from a superior as such, nor do they tend directly to the reformation of the one who does the hurt, or of other men; but to the defence and vindication of my welfare and my rights, which have been unjustly violated by the other. Here, since the one who does the damage has by his injury broken off the intercourse of right between us, it will be permissible for me to employ against him any force at all, openly or treacherously, until, induced by penitence, he has pledged his good faith once more to observe towards me for the future the offices of the law of nature. And all this is in place between those who do not recognize a common judge among men, whether they be individual moral persons, or composite, in other words, societies. For among members of the same society it is forbidden to exercise such a right of war. Here every one whatsoever is bound to commit to the magistracy the prosecution of his wrongs, except where the present crisis does not leave him time to call upon its aid.
17. But whether it be permissible to use promiscuously the service of any persons whatsoever in war, does not appear to some sufficiently clear. For a few make a distinction between traitors and deserters from their own masters who offer themselves voluntarily, and those whose fidelity is corrupted by promises or through rewards, to wit, that the services of the former can properly be utilized even by the customs of nations, not so those of the latter.14 Of this distinction, however, the mere right of war seems to be ignorant. For those two things which are striven for in seducing the subjects of my enemy, namely, to strip him of aids and defenders, and besides to inflict damage upon him, both of them, assuming a just cause for war, I have the right to do. And no sufficient reason appears why I should not be permitted to attain that end even by corrupting through hope of rewards the minds of his citizens. For, since even those individuals who come over to me are in the number of the enemy against whom war gave the licence to vent my rage with violence, and I can exercise or remit that violence as the consideration of my interests demands; it will assuredly be permissible for me to acquit them, as it were, from all the fury of war, and, more than that, heap certain blessings upon them, and this either wholly gratis, or under the condition that they perform for me a certain useful deed, to wit, that without trouble on my part, they separate themselves from my enemy, or do something additional which is of value to me. And although, perchance, they cannot do this without committing a crime themselves; nevertheless, no blame seems to redound to me from this, because there appears no obligation for me to avoid that which looks like the most convenient way to get my right, so as not to give an occasion for wickedness to those who, by their doing me wrong, have suspended the intercourse of right with me. Especially, since whatever solicitations be brought to bear upon them in any case, it is left in their own free choice whether they want to have me for an enemy, or to buy back my friendship on terms laid down by myself. But the reason why, in peace, I may not, for example, tempt a second person’s servant to desert his master and come over to me, is twofold: partly because I have no proper authority to defraud him of his property; and partly because I could not rightly inflict any evil upon the servant himself, if by that very act of fleeing over to my side he should not conciliate me to himself; but both of these conditions appear in our case. And hence, the objection otherwise made to this view, namely, that it is impossible for one person to incite another to that in doing which the other is sinning, or, in other words, he who gives a second person cause for sinning is himself sinning, seems to be valid only between non-enemies. For an enemy, in respect to me, is in such a status, that, while I am prosecuting against him my right, I do not have to care whether he find therein an occasion for sinning or not. But if, however, a man should prefer to say that, although on such a score no right either of him who is tempted or of the principal enemy suffers damage, nevertheless, such a way of harming enemies ought to be avoided, because the law of nature wishes the licence of war, as far as possible, to be tempered to the mode in which vindicative justice is commonly exercised in peace, he would not find us strongly resisting him.
18. But, in truth, that latitude of licence in war has been greatly restricted, partly by the usage of nations, which has declared certain methods of destroying the enemy to be illicit or indecorous, and in favour of warlike fortitude has established a certain intercourse, as it were, of arms, so that the victor should not interpret unfortunate valour as a crime; or because it was also to the interest of the innocent that the injuries done by those who set on foot unjust wars should be more endurable; but especially by the law of nature. For, as the latter has granted men war only as a sort of extraordinary means of establishing peace; so it has also desired that the just warrior, in regard to the foe, should restrict as far as it might be his to do so, the violence which the latter had no right to keep from ravening without stint or limit, to the customary method of exacting punishment and making restitu-tion for damage in time of peace. Hence, there are very many things that the enemy can suffer without wrong, which, however, the humane victor rightly avoids inflicting. Thus, in a public and just war, even if all who are within the enemy’s lines, even those who have been caught there by fate, even women and children, be regarded as enemies; nevertheless, the leader observant of humanity ought not to kill any one, except as a just penalty, or in so far as without doing so he cannot protect his own life and property and those of his men, and only for great causes and such as will bring about the welfare of many may he try anything of a kind that may threaten to bring ruin upon the innocent. From this it is well established that boys ought not to be killed, or women, unless they have done something calling for special punishment, or take upon themselves the offices of men. Nor are males to be killed whose mode of life is alien to arms, such as are those who attend to things sacred, husbandmen, merchants, workmen, and artisans making a living from peace, likewise those who give themselves up, suppliants, &c., unless they have especially committed a deed worthy of death. It is humane also to remit something from an extreme right on account of the multitude of those who have deserved death. On this score, also, are prohibited all those acts which are of no use for attaining our right or for finishing the war, but have as their object the mere demonstration of strength. Similarly, although the injury done by the enemy allows me an unlimited licence in regard to his property, nevertheless, the law of humanity demands that I destroy none of the enemy’s property except because of necessity, or in compensation of a debt and of the expense incurred in securing it, or in place of a fine, as it were, equal to the wrong done by the enemy. Now no fruitful thing is by any means to be destroyed, which one holds in such wise that it cannot be profitable to the enemy, nor, although it be in doubtful possession, is a field to be laid waste if there be a great hope of speedy victory, whose reward will be both the field and the fruit, or if the enemy have any other source from which he can sustain himself. Nor is property to be destroyed which is of no consequence either for making war or for carrying it on. Nor may hands be rashly laid upon things sacred or religious, nor is one to descend lightly to the violent plundering or demolition of cities. Thus, since ravishing matrons and virgins contributes nothing to the attainment of our right or to the establishment of peace, the humane enemy will consider rather what he can reputably inflict upon the other party, than what he can inflict with impunity. Thus, although the injury which the enemy has done, creates for us the licence, as far as he is concerned, to reduce to servitude all who have been captured in war, and to exercise an unlimited authority over slaves; nevertheless, it will be the part of humanity (where this kind of servitude has not been abrogated by custom) not to go ravening about in the infliction of servitude, except in so far as the amount of the original debt, or of that which arises later, allows, or unless, perchance, in the case of some persons there be a special misdeed, which deserves to be punished with loss of liberty. Upon those caught in such a position the right of life and death is to be exercised with the same religious scruples as by a public judge; as regards lesser punishments clemency is to be shown, services are to be demanded in a moderate measure, and attention is to be paid in a humane fashion to the health of slaves. Likewise, if they have saved something by denying themselves, it is to be left to them, and is not to be taken away from them except upon the demand of necessity; and after long or highly useful ministrations, liberty is to be granted. Thus, in the matter of reprisals, a man will be acting humanely, if to those who are free from the guilt of injury he leaves their property, which he can more readily do without than they, especially if it be apparent that they will not recover from their own state what they have lost in such a way. Nor is this right to be rashly exercised upon the goods of innocent subjects, as long as there is hope that we can obtain our own with sufficient ease from the original debtors, or those who have made the debt their own by not according us our right. Most things of that kind, however, regarding the licence of war, which we have called restricted by the law of humanity, are commonly said to be licit on the basis of the Law of Nations; not because they have their origin properly in an agreement of the nations (for not to have employed them deserves the very greatest praise among the more civilized nations); but because, by a certain common custom among the more civilized nations, he who has employed these means for his own advantage or through the violence of his passions, and for the purpose of striking terror into others, is not regarded as a barbarian.
19. But, in truth, because nature has granted us the faculty of waging war merely for the purpose of having our security established against those who disturb our peace, but, as for the rest, in every war bids a secure peace to be regarded as the end, and to be preserved, where it can be had conveniently; hence, the law of nature ordains for the ending of wars, that one party, after taking a guarantee for the future, grant the other pardon for the past, when he asks for it and repents:15 that is, one is to make peace with the one who gave cause for the war by doing the harm, after he has repented of the injury, made restitution for the damage done, and asked for peace. For when the other has offered peace, I have no longer left a just cause for fighting against him. Now to concede peace to one not asking for it, that is to say, still retaining a hostile spirit, and not furnishing a guarantee for the future, that is to say, looking for an opportunity to do more grievous hurt, is to betray one’s own safety through craven fear. It is, however, commonly received among the nations, for reasons adduced elsewhere, and because those who did the harm would, from the fear of disgrace, bring themselves only with the utmost difficulty to peace by confessing that they had done wrong, that, in making peace, the parties are treated as equals in regard to the justice of the war, especially when they enter upon the peace with the forces on both sides equal.
With this precept is related the one that security and safety is to be accorded the mediators of peace, since, forsooth, they are labouring upon a thing ordained by nature, which they cannot do, unless adequate provision has been made for their security.
20. From the same foundation principle proceeds also the following, namely, that in imposing punishment upon men precaution against future evil is alone to be regarded (for the payment of damages is not properly punishment), that is to say, that either he who did the wrong should be reformed, or others warned by his punishment should be afraid to do wrong, and so the severity of a punishment is to be tempered as such action seems to be required for attaining that end.16 For, in exacting a punishment, to look merely at the past misdeed and to punish with the end merely of making it hard for the wrongdoer, is the part of a man who rejects peace, where it can be had, and of one who thinks of war instead of the end of war. For the man whom I so hold under my authority that I can inflict punishments upon him, I must certainly so hold bound that I can obtain from him also a guarantee not to offend in the future. Beyond that end there appears no reason why a man should wish or rightly be able to bring evil for any deed whatsoever upon one who shares the same nature.
21. We have mentioned another fundamental law of nature: The social life is to be preserved by men towards one another, nor is anything to be done that will result in disturbing it. That social life is contained in pretty much these general offices, namely, that a hurt be done no man in person or in property without some antecedent deed of his by which there is brought to us the licence or necessity of hurting him; and that any one whatsoever should furnish a second person of his own accord and without the application of external coercion, quite as much that which is owed him on the basis of obligations especially entered into, as that which common kinship demands. Such are generally held to be things in which we can help another without inconvenience to ourselves, for example, to indicate the way to a man who is lost, or who asks it of us; to allow the use of flowing water for purposes of watering, where our ground is not made worse thereby; to grant innocent passage, and that which does not tend to any one’s injury, through our lands on a public way, especially where adequate precautions are taken, and there is no danger from contagion; not to spoil that which neither hurts nor helps me, but can be useful to another; to grant shipwrecked men the use of the shore, and the like. But the following also is required by the force of that precept, namely, that each person whatsoever freely unite himself to those special societies which necessity, or a marked advantage of life, has recommended be established.
22. Now since that obligation to cultivate the social life attends upon human nature as such, it is clear that the same binds all men equally and all men are equal in so far that, no matter how great be the blessings of mind and body in which some one surpasses the rest of men, he has no more right than the rest to inflict wrongs upon other men; just as also, on the contrary, the insufficient liberality of nature in itself, or an humble estate by itself condemns no one to be worse circumstanced in regard to the enjoyment of a common right among men than others.17 He who disdains this equality can show himself to be no more helpful a member of human society than he who desires to live in some particular society, and yet is not zealous to adjust himself to its laws. And this equality has the force of a mutual agreement, by which a second person is no longer bound, if the first falls away from it, and besides he receives the right of compelling the first person by force to make good his agreements. For he also who has not treated others according to the terms of a common obligation, cannot refuse to have his own examples practised on himself, and besides that be forcibly brought to order by the rest. This equality, however, is to be understood without any antecedent human deed, whereby it is restricted either on consent, or on account of misdeed, as far as concerns the action which comes to the injured party against the injurer. For, although whoever has not treated another according to the prescript of the same law, has equally violated the law of nature; nevertheless, on account of the necessity of supreme sovereignties, it was expedient for the human race that those men upon whom sovereignty has been bestowed, should herein be of a slightly better condition, in so far that others may not have the faculty of bringing them to order, even if, perchance, in some matters they may have violated the law of nature. And this, not because they themselves do not in that matter sin equally with others, but because in their case the force of supreme sovereignty renders those subject to them unfit to coerce them; since, otherwise, all the efficacy of sovereignties would be overturned, if, between subjects and sovereigns you should wish to devise some reciprocal authority to exact punishment because of a violation of a law of nature. The odium of this prerogative, however, if there be any, is made milder partly because it is brought about by the prerogative in question that the rest enjoy an equal right in a more secure manner among themselves; and partly because others consent to it, and this either of set purpose and directly, or else indirectly, by the infliction of a wrong upon the other person, and while the latter sets out to repress it by force, he acquires at the same time sovereignty over him from whom the injury proceeded.
From equality, so as to add this also here in passing, one may otherwise readily infer on what score things ought to be divided among several,18 to wit, so that, other things being equal, if the right of individuals be equal, things may be divided into equal shares. But what cannot be divided is to be used in common, if that may be done, and to the amount that any one wishes, if the quantity of the thing permits. If, however, the quantity does not permit, then it is to be utilized with a fixed limit and in proportion to the number of users. But, if a thing can neither be divided nor possessed in common, its use should either be alternate, or be assigned to one man only by lot, for a more convenient means cannot here be devised. Such lot is either arbitrary, that is, cast with the consent of the contestants and directed by mere chance; or natural, like first occupancy and primogeniture. Concerning these kinds of lot this procedure is commonly observed, namely, that the arbitrary lot is employed where several compete for something to which they have acquired for themselves a right by some antecedent act; but the natural lot, when no one has acquired for himself the right to the thing in question by some antecedent act. Hence, things which are regarded as derelict go to the one who first takes them up, and the hereditary indivisible dignity of the father goes to the first-born, unless disposition shall have been made otherwise by an express statute.
23. From the preceding fundamental law flows this general one: Let no one so bear himself towards a second person that the latter can properly complain that this equality of right has been violated in his case. (Now that is especially true if one’s own right be violated by a second person.) This right has to do with those things which by nature or from the institution of men have been so specially assigned some man, that, if they should not be vouchsafed, be taken away, or be injured by a second person against his will, he is offended. This law breaks up into a number of special laws.
24. I. Let no one do harm to the body of a second person. By this law are prohibited not merely those things which directly hurt the body, but also those which do so as a consequence, for example, terror, and the like, which excite the more gloomy emotions, whereby not merely the mind, but also the body is grievously afflicted. Chastisements, however, inflicting a moderate pain to the body, whereby children especially, or servile dispositions are admonished to do the right, or to abstain from evil, are not included here. But, by the institution of men, this kind of chastisement is not granted to any one whatsoever to exercise upon any one else whatsoever, but has been assigned to definite persons enjoying a special kind of authority over others, and this for the sake of avoiding disturbances which might arise, if the one chastised were not convinced of the good intent of the chastiser, and if he should interpret what is in itself an office of humanity19 as a wrong coming from an unfriendly mind. Hence, if, for example, a man who had not been authorized to do so by the parent should chastise the son of a second person, unless, perchance, he be doing so on the presumed desire of the parent, he is doing an injury to the parent as well as to his son. To the latter, because either by law or by custom he was not bound to endure chastisement by a stranger; to the former, because, against the will and without the knowledge of the master, he is usurping another’s authority. From this law are also excepted corporal punishments justly imposed by magistrates because of antecedent misdeeds. For these furnish no cause for complaint, since he who unites himself to a state subjects himself also to its laws, and he knew that these punishments had been constituted for those who violate them, especially since the rest of his fellow citizens enjoy also the same condition.
25. II. Let no one violate the chastity of a woman against her will. For women are esteemed primarily by its preservation. But that those who mutually consent ought not to indulge a roving passion, that is, when they do it merely for the satisfaction of lust, follows because they are thereby assailing the foundations of human society, which by those enticements wished to promote the propagation of the species. But if they intend to secure offspring, they are disturbing civil society, whose harmony is to the highest degree involved in scrupulous observance of marriage. But virgins who have the hope of marriage sin in a special manner when they consent to the defloration of their chastity. For thenceforward they offer damaged goods instead of sound to purchasers.
26. III. Let no one detract from the good name of a second person, or lessen the esteem in which he is held. For the soundness of this esteem in communal life builds, as it were, a road to most advantages from which those who are aspersed with infamy are excluded. Also every person is regarded by those to whom he is not very intimately known, as being the sort of man that common report makes him out to be. Besides, to be despised by others and treated with contumely affects the minds of men with a most bitter feeling and is the very greatest stimulus to wars; and, in general, the more high spirited a man is, the more incensed he is at being insultingly rated lower by a second person than he esteems himself.
27. IV. Let no one pollute in adultery the wife of a second person. For, by the nuptial pacts, the husband acquired the right that his wife should not be available for the sensual pleasures of any second person whatsoever, to wit, that he may not be compelled to nurture another’s offspring as his own. By this precept males, both unmarried and married, are prohibited from abusing the bridal bed of a second person. And wives are obligated, on the basis of the law about observing pacts, to lend their bodies to no one but their husbands, a thing which also the end of matrimony altogether requires. Any such behaviour with the consent of the husband (although otherwise it is permissible for him to grant the use of his property to a second person) is prohibited by divine laws and among most nations also by civil laws, which have circumscribed the propagation of so noble a being with great religious scrupulousness, as it were.20 On the strength of the same pact, also, the husband, whether monogamy or polygamy have been introduced by positive laws, ought not to bestow himself upon other women except his wives; although the misdeeds of husbands under this head, when, perchance, they have happened to find some loose woman, do by no means so directly conflict with the end of matrimony as does faithlessness on the part of wives.
28. V. Let no one usurp, corrupt, or purloin the property of a second person against his will. For, since the tranquillity of social life does not allow those things which a man needs for self-preservation to be possessed in common and used promiscuously by any one whatsoever,21 on the basis of a mutual agreement each one has such a right to what he has properly acquired that there is left to others no authority to dispose of it, much less to corrupt it or take it away. And this principle is valid as much in regard to things incorporeal as corporeal. For he who prevents some one from using his authority or sovereignty is just as guilty in regard to this law as he who furtively or by open violence takes away his money.22
29. VI. Let every man whatsoever furnish what he owes on a pact or on his pledged word. For, since there are a very great many things which can be furnished by a man for the use of a second person above and beyond those offices comprehended in the general law of humanity, in order for a man to be able to demand these things by right and to erect his calculations, as it were, upon them, it was necessary to the preservation of society among men, that, when a second person has, as it were, accepted my consent expressed in signs in regard to furnishing some matter, there should arise in me, indeed, an obligation or internal necessity to furnish the thing agreed upon, and for the other the right of exacting it. And these agreements are called pacts, by the scrupulous observance of which societies among men are held together as by a very firm bond, and, when they have been violated, the most just causes for complaint arise. For if, indeed, I have furnished something on the basis of the pact, while the other betrays my confidence in him, my property or effort has perished in vain; but if I have as yet furnished nothing, it is none the less annoying to have my calculations upset, and it is contrary to my deserts for me, when accepting the other’s good faith, to be made a laughing stock. Now why one should accept the other’s good faith, even when no further guarantee has been given, or why it should be judged that there is some force in the giving of good faith, comes from this, namely, that, since there is no more convenient bond than this for preserving the social life of men to which nature has destined them, any one whatsoever is presumed to be ready to attemper himself to this end, as long, indeed, as his acts have not manifested the contrary.
30. VII. Let a man make good the damage he has done to a second person by his own fault. For I should be in an inferior status, if the malice or folly of a second person could bring it about that I should be compelled against my will to go without my own property gratis. Now we are properly said to be suffering damage in regard to those things to which we duly have a perfect right, to wit, where what we now possess is either hurt, destroyed, or taken away, or else where what is due on the basis of a pact or a civil law, is not given us. For if those things be denied us to which the law of nature has given us merely an imperfect right or aptitude, it is not properly judged to be damage; and so we do not duly have therefrom the faculty of bringing one to restitution. But that a person be bound, as far as in him lies, to see to it that the property of the second person which has come into his own hands in a blameless manner should return to the real owner, that is to say, to indicate or to confess that such property is in his possession, and to restore it when its return is asked for, is based upon the universal law of humanity about caring for every one’s advantage and warding off damage, as far as that can be done without inconvenience or damage to oneself. For man’s obligation to the social life demands that he ought not to acquire something for himself, or treat as a legitimate matter of gain, that which is connected with the damage of a second person not deserving the same; nor to count it as damage if he goes without an undeserved profit, which he knows he cannot keep without the damage of a second person not deserving the same. However, because I am obliged to do this by a general bond, the other party cannot, assuredly, demand that, in saving his property, I should suffer damage to my own property; and so he will be bound to refund to me at least the expense to which I was put in saving his property, unless, perchance, some special arrangement has been made upon this point by positive laws. Now, as damage can be done to a second person directly or indirectly in a very great many ways, so the law about making good the damage, divides into a very great many particular laws, some of which we shall subjoin here in a haphazard manner, as it were.
(1) The man who has defrauded a second person in the matter of a contract is bound to make good the amount which the other has accepted less than was just, and, if an interval of time has elapsed, with the difference which that makes. Under this law are included those who defraud workmen of their due reward or a part of it; those who do not pay their stipends to men who have let them any kind of service; those who bargain for a higher reward than their services are worth; merchants who force purchasers to pay an unfair price; those who use an unfair measure or weight; those who substitute counterfeit for genuine money, to whom, however, it will be possible to return that same counterfeit money upon another occasion at the same rate at which they gave it out, although by no means to a third person, forasmuch as the wrong received from a second person gives me no privileges over a third, &c. (2) The borrower is bound to make it good if anything in the matter borrowed has been spoiled, or if it has utterly perished, unless it would altogether have perished even with its owner. (3) The one who receives a mandate is bound to make it good to the giver of the mandate, if any damage has been done by his fault or his bad faith in regard to the matter entrusted to him. (4) The one who gives surety ought not to lose what he has spent for the sake of the one for whom surety was given. (5) The loss or destruction of a pledge brought about by the creditor’s fault is imputed to him towards the payment. (6) He who being bound to do something gratis ex officio, was unwilling to do it without receiving pay, ought to restore the same. (7) The magistrate who has not employed those remedies which can and ought to be used to prevent highway robbery and piracy, is bound to make good the damage done to travellers by land and sea. (8) The debtor who was to blame for the creditor’s being compelled to incur expense in order to obtain his right is bound to pay back that expense, and he who rashly engages in a lawsuit is condemned to pay the costs of the trial. (9) The advocate who raises obstructions with calumnies and quibbles so that the other person may not be able to obtain his right is bound to pay the amount of damage which the other person has received from that delay. (10) The true debtor, even if he has been absolved before a court by an unfair sentence, remains a debtor, nevertheless, in nature; although a subject, because of the efficacy of civil sovereignty over him, cannot prosecute his right, even against an unjust sentence. (11) In a certain people, those who, by not paying what they owed, or by not rendering justice, have given cause for taking pledges, are bound to make good the damages to others who have unfairly lost something on that account. (12) He who orders, gives counsel, helps, supplies a place of refuge, does not forbid by a command, or does not give aid to the one on whom a loss is inflicted, when he can and ought to on the basis of a perfect obligation; who does not dissuade when he ought to; or keeps silence about a deed which he was bound to make known on the basis of a perfect obligation, is bound to restore as much as he contributed to the damage, and, if restitution cannot be obtained from the one who did the original hurt, to restore the whole amount. (13) He who has promised something in view of a certain thing which he has neglected to look into, or if on purpose he has not expressed his meaning correctly, is bound to make good the amount of damage which the other has suffered therefrom. (14) He who by guile has caused a man to fall into an error in view of which he was induced to promise, is bound to make good whatever damage the promisor has incurred from that error. (15) If he to whom a promise is made, or with whom a contract is entered into, has brought to bear unjust fear, as a consequence of which the promise or the contract resulted, he is bound to absolve the promisor, if, indeed, the latter so wish. (16) He who has promised another person’s deed is bound to what it amounts to, if he has failed on his side to do what he could perform with the purpose of getting the thing done. (17) Those who exercise monopolies, when, by an agreement, they bring about the sale of commodities at a price above that which is at present the highest in ordinary traffic; or when, by force or fraud, they prevent a larger supply from being imported; or buy up wares so as to sell them at a price which is unfair at the time of sale, are bound to make good that which others lose on this account. (18) An unjust homicide (that is, one who has killed a man who had a right not to be killed by him; a right which is not in the man, who, on a challenge, enters upon a fight with a second person or attacks a second person unjustly, because these men are regarded as having renounced that right; although this circumstance does not interfere with the possibility of their being punished by a magistrate, as far as the deed concerns him) is bound to pay the outlay, if any has been made, upon physicians; and to give as much to those whom the slain man was in duty bound to support as their expectation of sustenance, considering the age of the slain person, amounts to. (19) He who has mutilated some one is bound to make good the expense incurred in curing the wound, and the estimate of that which the person mutilated has now lost in his capacity to make gain. (20) Adulterers ought not merely to free the husband from the expense of supporting the offspring of adultery, but also to make it good to the legitimate children, if they suffer any damage from competition in regard to the inheritance on the part of offspring thus brought into the world. (21) He who has deflowered a virgin by force or fraud, is bound to pay her back the value of the loss to her hopes of marriage. (22) The thief by stealth and the thief by open violence are bound to restore the thing taken, together with its natural increment, and together with the subsequent damage and the loss of profit, as also, if the thing is lost, at least a moderate estimate of its value. The same is owed by those who have done damage by an unjust judgement, an accusation directed by calumny, or false testimony. (23) Those who take part in an unjust war are obligated to make good the expenses and damages which by their efforts they have caused him who is waging a just war. (24) In an unjust war whoever has done damage is bound to make it good. Generals are bound on the score of what has been done under their leadership; all the soldiers who have joined in some common act, as, for example, the burning of a city, are bound for the whole; in divisible acts, each one is bound for the damage of which he was the sole cause or among the causes. (25) The leader who has not paid his soldiers the wages due is obligated not merely to the soldiers, but is also bound to make good to his subjects or neighbours the damages which his soldiers have been compelled by want to inflict upon them. (26) A subject who defrauds the magistracy of a part of its revenues or taxes, either by concealing some of his goods or resources, or in any other way, is bound to restore that which has been kept from the magistracy in that fashion, by whatever title the same holds sovereignty, provided only that the citizens have expressly or tacitly subjected themselves to it, notwithstanding the fact that the portion which the subject keeps out, seems to him to have been imposed above what was a fair measure, unless the magistracy itself remit such to its subjects, or renounce the claim in question. This renunciation, however, does not cause the subject’s previous act to have been no misdeed. (27) Whoever himself takes by unjust violence and keeps another’s property is bound to restore it together also with what the act amounts to, even though the person despoiled shall have himself renounced it “for the sake of buying off trouble,” as men commonly say; and this, whether he seek to get it back or not. For renunciation of that kind, since it has been extorted by unjust force, does not prevent one from being in duty bound to restore the whole on the basis of the law of nature. But when one has offered again to its owner a thing which was stolen, and he has refused to receive it, then, and only then, does the former begin to possess it on the title of donation, as it were.
From all these laws it is patent that the most harmful person is most heavily in debt; and each is understood to be owing to a second person the exact amount of damage which he has done him by guile or through neglect.
31. VIII. Let no one in his own controversy lay down the law for himself, but let him debate it in the presence of arbitrators. It is of most frequent occurrence among men, even those men who are zealous to observe the laws of nature, that controversies arise regarding the proper application of the laws to special facts, to wit, whether what has been done be contrary to the laws, or not (which controversies are called questions of law). Here, assuredly, before anything can be demanded from a second person by law, it ought to be well established which person’s intention corresponds with the law. Neither party of the litigants can rightly claim for himself the faculty to define that matter. For, let us assume that either one wishes to look seriously into his own case and return a candid judgement, the other is, nevertheless, not bound to stand by that judgement; because, as among equals, no reason can be given why the latter ought rather to follow the opinion of the former, than the former that of the latter (for if both agree there remains no further controversy). Also any one will always be judged to favour himself more than the other person. It is necessary, therefore, for both parties to a dispute about some matter to agree upon some third person, whose opinion they obligate themselves by a mutual pact to follow.23 Now there should by no means be any flying to arms immediately, for arms can rightly be drawn only upon him who is caught in the act of doing wrong, although, perchance, out of stubbornness he himself deny it. For, to attack some one in warfare on account of a case not yet ascertained, amounts to pronouncing in one’s own case, a thing which nature allows only for manifest injury.
32. IX. Let the arbitrator show himself fair to both sides. For those who engage in controversy with one another come before the arbitrator as being themselves worthy of an equal right. And when he, beyond what is just, favours one side more than the other, there arise immediately causes for complaints, and matter for wars is ready at hand. From this it follows, that, between the arbitrator and the two sides there ought to intervene no pact or promise by the force of which the former is bound to pronounce in favour of either side. But a pact cannot intervene also between the same parties, by the force of which the arbitrator is obligated to pronounce what is fair or what he thought was fair. The reason for that is not so much because, otherwise, by the law of nature, the arbitrator would be bound to pronounce what seems just, to the obligation of which law nothing can be added on the basis of a pact, and so, such a pact would be superfluous; as, that in this wise the purpose of having taken an arbitrator would be rendered vain, and the process would go on infinitely. For a pact of that kind is so to be conceived as that the two sides promise to place themselves under the judgement of the arbitrator, if, indeed, he have rendered a fair decision. But if, accordingly, his decision afterwards appear unfair to either of the two sides, or be in fact unfair, a controversy would again arise regarding the fairness of the decision. Since the settlement of that question could not properly belong either to the arbitrator or to the parties in dispute, there would have to be recourse necessarily to another arbitrator; and if again doubt should arise about this one’s decision, once more another arbitrator will have to be appointed, and so on infinitely. But, where questions of fact are to be decided by an arbitrator, to wit, when the question is raised whether a thing was really done which is said by one side to have been done, the judge ought likewise to show himself fair to both sides, and, in fairness to both, believe neither, because at the same time they are asserting contradictory statements to be true. But, when signs do not bring us to the knowledge of the truth, the decision will have to be rendered according to the statement of witnesses, who ought not to be so bound to either side that they can scarcely be fair to the other.
33. X. Do not allow the one who, trusting to your humanity, has been the first to do you a benefaction, to be any the worse off on that account; or, in other words, Let the one who was the first to receive a benefaction, see to it that the other does not repent of having done it.24 This is what happens when he who has received a benefaction gives no sign to the one who did it, that it was gratefully received, and neglects an opportunity to do the like; or, what is wont frequently to follow thereafter, repays with hatred instead of gratitude. In this, although there be done no wrong properly so called, since, forsooth, some right acquired by pacts is not violated, and that which is furnished upon a pact is not customarily called a benefaction; nevertheless, ingratitude is reckoned an odious and detestable thing, both because it destroys all beneficence among men and the first steps in winning goodwill, and because to be unwilling to show that the second person is by no means deceived in his creditable opinion of you, is the part of an extremely ignoble mind. In returning benefactions, however, it is not necessary for us to return exactly the same as that which was given us amounted to, but merely as much as we can conveniently. Hence to keep the reputation of being grateful is possible even for him who has by no means such faculties as would enable him to make a like return to his benefactors.
34. XI. Let no one deceive a second person by signs devised to express the feelings of the mind. For, since it was of the utmost concern to human society that men might be able to know among one another the feelings of the mind, and this cannot be achieved except through definite signs, it was altogether necessary for a definite force to be ascribed by tacit agreement to those signs, by the intervention of which it was permissible to judge of the feeling of a second person, and to communicate thoughts with one another. Now, although these signs do not produce an infallible, but only a probable certainty regarding the mind of the other person, men being ready to simulate and dissimulate anything; nevertheless, it was in one way or another sufficient for the preservation of society, that, especially in regard to acts by which some obligation is to be contracted, the same signs should be valid in that sense which common usage and the present business showed. Now those signs are sounds of the voice or articulate words, either formed by the tongue, or later expressed in writing; an instrument which is so much more convenient for nurturing the social life, as men enjoy a more voluble tongue and more nimble hands than the rest of living creatures.25 Now the power to signify this or that definitely does not inhere in the words by nature or by some intrinsic necessity, but by the choice of men. It is no presumption to the contrary that Adam is said to have imposed upon things, with the very best reason, names derived from their proper nature; and that in any languages whatsoever there are some primitive words from which the rest are derived more by reason than by free choice. For, although we concede that to animals and certain other things, names were given denoting their nature or principal affection; nevertheless, those primitive words themselves from which these have been derived, come from mere free choice. Now, afterwards, although cognate words were for the most part given in turn to cognate things, preserving in most of them the conformity of inflexion which men call analogy; still analogy is not everywhere present, since a number of words follow a course peculiar to themselves, and analogy itself, also, consisting of a definite flexion and combination of words, has likewise been determined by free choice. Now, although there are also other signs by which the feelings of the mind can be expressed in one fashion or another; nevertheless, in regard to none besides this has there been a tacit agreement of that kind, and this universal agreement has been entered into, namely, that, in conformity with the common usage of life, it is necessary to use this sign, unless, perchance, some special agreement has intervened. Accordingly, since no one ought to hurt a second person with whom the relations of the law of nature are still mutually exercised, except, perchance, on the occasion of a disservice; but, on the contrary, every one whatsoever is bound to promote, according to his ability, the advantages of a second person, and to furnish without fail what he owes him on the basis of a pact; it is assuredly patent that any one whatsoever, in his relations towards a second person, who, either on the basis of a pact, or on the basis of the mere law of nature, has the right to know the feeling of his mind, should so use signs that the other person be not led by them to his hurt. And that is the very foundation of moral verity, or veracity, which consist in this, namely, that the signs should conveniently represent the concepts of our mind to the other person who has the right to know them, and to whom we are under a perfect or an imperfect obligation to disclose them.26
35. From all this it is not difficult to gather what falsehood is,27 when, namely, signs present the sense of our mind as different from what it truly was, although he to whom the signs are directed has the right to know and to judge that sense. Here, in general, it is well established that, then, and only then, I am bound to make the signs conform to the sense of my mind, when there rests upon me the perfect or imperfect obligation to indicate it to the other person, and this, either in order that he may understand it directly himself, or, in order that, if I have expressed to him a different sense I may not trouble him with damage beyond his desert; and the other person likewise has the perfect or imperfect right to understand that sense, a right which, indeed, has not been taken away by the opposition of a stronger obligation or right. When such an obligation or right does not exist, a man will be by no means telling a falsehood if he put forth signs discrepant from the sense of his own mind, or dissimulate it altogether by keeping silent. Thus, since between enemies the obligation to indicate the feelings of the mind does not obtain, a man may, without being guilty of falsehood, tell what is false to the foe, or terrify him by fictitious rumours, or inflict any detriment upon him, just as he judges it to be to his own advantage, provided no unjust damage to a third person result therefrom.28 If some reprehend this way of doing harm to enemies, that is not because thereby some right is violated; but because among more elevated minds only those things done to a foe are regarded as glory, which indicate some vigour of mind or body, not those which are done without any trouble by the unwarlike and the timid also; to which latter class of deeds belongs also the scattering of tales for the purpose of deceiving the enemy. This principle, however, is not at all to be extended to any pacts entered into with the enemy for the sake of ending or of suspending war. For, since the law of nature bids peace to be preserved as far as it can be done conveniently, or, when broken, to be mended, it is also understood to bid that those means be used without which that end cannot be obtained, to wit, that enemies may be able to judge of the feeling in each other’s minds. For otherwise it is impossible for them to unite in making peace, were not the necessity of suspecting one another removed by the obligation to employ the truth in regard to the agreements of peace. And so the instant that a pact begins to be entered into with the enemy, there arises on both sides the right to understand the sense of the other, at least in regard to the present business, and he who has not rightly expressed it, is to be reckoned as having told a falsehood, and having done a wrong. Thus there are a great many things which I am not bound to signify to a second person, things, of course, which are known to my detriment by a second person who has no right to know them from me; and to one who asks me about them it is best, indeed, to refuse an answer altogether. Just as also it has been introduced by the tacit agreement of the nations, that letters protected by a seal should be opened by him alone to whom they were written, and if any one else unseals them, unless he has done so on the presumed or express will of the one just mentioned, he is doing wrong to him, and is reckoned to have violated the common agreement of nations; a right, however, which like the rest, expires between enemies. But, when I cannot conveniently get rid of the importunate curiosity of a second person by keeping silent or dissimulating, then, assuredly, it will be permissible for me either to mock him with a fabricated tale, or to use ambiguous language, although it may be apparent that the other is understanding it in a sense different from our meaning. Here, however, precautions are to be taken, lest, in addition to the mockery which his curiosity deserves, something further by way of damage be inflicted upon him. This is valid also in case some third person, who has no right to hear my speech, be deceived, as he overhears my conversation with the second person with whom I have exchanged remarks purposely falsified. Thus, in human courts of law, since no one, when he has made restitution for damage done by his own fault, or is prepared to do so, is bound to offer himself voluntarily to punishment, or to report himself for a crime, a man will also not at all be bound to confess voluntarily to a crime, but he may either deny it or avoid it by false arguments. And yet where a matter is to be asserted on oath, out of reverence for the Divine Spirit he ought not to tell anything other than what is the fact. But, in truth, where some one is interrogated by a magistrate about the crime done by a second person, even a man who has not been sworn ought to tell the truth, on the strength of the obligation by which he is bound to promote the public good, which is presumed to be regarded in the punishment of any misdeed at all about which the magistrate judges that an inquiry should be held. But a falsehood is also [not] told,29 when, for example, a judge, in order to elicit some fact from the accused, makes up something, for example, that he has already learned the fact from another, or that he will do this or that if the accused persists in dissimulating, and the like. For, assuredly, the judge has the right to extract the truth in any way whatsoever, even if the accused be not obliged to disclose the truth in any way whatsoever; and so, if the judge elicit the truth in some shrewd way, while exercising his right, he is not doing a wrong. Thus he also deserves praise in addition, who, with a fictitious statement, protects a second person’s innocence, or placates an angry man, consoles a sad one, or does some good to somebody, which could not be secured by an open confession of the fact. For, because he was bound by the law of humanity, or by some closer obligation, to exhibit those offices to a second person, it is well established, assuredly, that he was not obligated to apply signs in that way in which they were not destined to attain their end, namely, the other’s advantage. Here belong also the figments of physicians by which they strive to persuade a morose sick man of the sweetness or the mildness of their medicine. Likewise, when an infant or an insane person is soothed by untruths, or if in battle one arouse the languishing spirits of one’s own men by a false message. Now we contract the reproach of falsehood much less when we ourselves say beforehand that we are going to tell what is false, as is the case when stories are told or written, or when we employ jesting or humour, since that is either being done for the other person’s advantage, or else we assume that this discrepancy between the words and the sense of the mind, or the figurative language, will not at all inconvenience the other person.
36. For the rest, it is not out of place here to subjoin something about the interpretation of signs30 without which the employment of them is utterly vain. Here the following general rule is to be observed: Signs or words are valid in the sense which the common usage among men of the same language conveys. For the right and norm of speech rests with this sense, and words would be deprived of their proper end if any one whatsoever could, to please himself, assign to them such sense as he wished, diverse from common usage. But the words peculiar to the arts are valid in that sense which is used by men skilled in that art, if, indeed, it be well established that these words have been invented for those engaged in it. But, if artisans disagree about the definition of a word in question, or there be otherwise some obscurity about it, it will be best to express in common words what you wish properly to be understood by such an expression. But where there is obscurity or ambiguity in the words, then the true sense will have to be drawn either from the subject-matter itself, or from the effect, or the reason which led one to use them. Thus, also, where some word has several meanings, one more strict, another more loose, if the ambiguity cannot be removed, the stricter meaning properly obtains in odious matters, the looser in favourable ones; in such wise, however, as not to relieve one party by personal favour, while the other one, on the contrary, is too much oppressed. And this, either because any one whatsoever is presumed to have preferred to have an advantage rather than a burden come upon a number of others; or else because the error is slighter if favour be extended further than odium. Thus, since no one is reckoned to have desired absurdities, or that his action have no effect, that sense of words is rightly rejected which either involves something absurd, or makes an action amount to nothing, or which is contrary to the reason in view of which the words in dispute were uttered.
The law of nature alone is not directly sufficient to preserve the social life of man, but it is necessary that sovereignties be established in particular societies.
1. Although all the precepts of the law of nature which flow from the second fundamental law tend to the cultivation of a peaceful society among men, without the infliction of injuries upon one another; nevertheless, many causes are found for those precepts not being directly sufficient to produce this end. For, although conscience sufficiently indicates to each man what is to be done or left undone; nevertheless, few have such modesty of disposition that they are willing to follow this constantly where no present punishment, and one which strikes terror to the senses, has been set before the violator; especially where, through growing accustomed to them, the sweetness of vices has entered his heart, and, shame being cast forth, the mind addicted to the passions has grown deaf to the admonitions of the reason. Since, therefore, where each man should be left to his own conscience in regard to observing the law of nature, there would come to be a most abundant crop of wrongs to the rest of men, and all others also would have to seek the protection of their own safety in nothing but violence; the result of all this would be everything resounding with warfare between those who repel and those who inflict wrong. To this is added further the fact that, although the law of nature orders that controversies be taken before arbitrators; nevertheless, since these arbitrators as such have no competent jurisdiction over the litigants whereby the latter can be altogether forced to follow their decisions, this remedy for preserving the peace will prove to be vain, if, indeed, the second person rejects that judgement of the arbitrator which displeases him. And what would result if no one should recognize the sovereignty of any man over him, when to-day among so few absolved from human sovereignty over them, so many wars are waged, in an almost unbroken series, now that the numbers of the human race and the infinite multitude of transactions have not allowed men to unite into one body, forasmuch as that one body, in such huge dimensions, would be threatened through internal disturbances by the same inconveniences as those which exercise the human race, and almost greater ones, divided, as the race is, into a large number of smaller sovereignties.
2. It was, therefore, altogether necessary for the preservation of peace and security among men, to have something established whereby it might commonly be rendered more preferable for men to perform to one another their due offices, than by injuries to contract for mutual hurt, as it were. But here no more convenient means could be found, to which the intention of nature also moves, than that men should band together for the sake of bearing mutual aid to one another; and, indeed, not merely some few, but those who from their number have such strength that the ones who are on the point of attacking to do them wrong, would gain no adequate advantage, from the accession of but a few, in their purpose to overwhelm them.1
Here, however, this much is certain, namely, that however large the number be of those who have come together for mutual defence, if they should not agree among themselves about the best means by which that ought to be brought about, but each should use his strength according to his own best judgement, the end proposed will never be attained. For either discrepant opinions in regard to the method of defence will enervate their divided forces, or rivalry will involve in domestic warfare those who refuse to yield to one another; unless they be held together by some common bond by which each and all are bound to follow one decision in regard to the common defence and safety, so that they cannot separate and go off after anything else; although this decision may have displeased certain few, or appear to be very unprofitable to their own private interests. But that cannot be obtained by any more convenient means than for each individual so to subject his own will to the will of some one man or council, that whatever this man or council shall decide upon in regard to the public welfare shall have the force of the will of all, and that this same man or council may be able to use the strength and faculties of the individuals for the common2 welfare. For this end two pacts are necessary, one, whereby individuals bind themselves with individuals to subject themselves all together to the sovereignty of some one person; the other, whereby each and all bind themselves to that one person, to the effect that they are willing to furnish for the public good the use of their resources and their strength, according to his free choice, and not to resist his bidding.3 By this same pact individuals give up also that right to attack in hostile fashion, on their own judgement, the man who does them harm, making up their minds to look to the decision of the sovereign for the prosecution of their wrongs, unless, perchance, a present necessity does not permit them to call upon him for aid. From this it results that, because to him has been transferred the right to use the force and faculties of all for that which he himself has judged to be expedient for the common interests, he is endowed with that same force, by which he can bring all men into harmony and internal peace, even if some, in view of a special advantage, should be in the highest degree desirous of seeking diverse ends; and he can also vigorously repel the injuries done by outsiders. Those men, therefore, between whom such pacts exist, have coalesced into one moral person or society, which has its very own will, property and rights distinct from the property and rights of individuals as such, and these neither a few of the members, nor even all of them together, if he in whom the sovereignty inheres be excepted, can appropriate to themselves.
3. For the rest, such pacts productive of societies exist either on the occasion of birth, or of a war in which one side has succumbed, or else in view of more ample security. By the first two methods families are established, through which that end which we have just spoken of cannot be so fully obtained; by the last method the state is established, which attains perfectly the end mentioned above, in so far as the condition of human affairs permits. Now a nuptial society, or matrimony, although it is the fountain-head and seed-plot, as it were, of all societies, is not properly contracted with that end in view. For it both exists among a number of persons too small to be able to furnish mutual security by their united strength, since, forsooth, one single man can get but a slight defence from the union with one single woman or particular women; nor does matrimony have as its end the security of the human race, but the propagation of the same; nor is any sovereignty established by matrimony in itself. In truth, not only from the superiority of the sex, but even from the very nature of the matrimonial pact, the husband properly has a right to his wife’s body only in so far as is sufficient to enable him to be certain with a degree of probability that his wife’s offspring have been procreated by him. Hence, since each man is presumed to use his own right, any one whatsoever is regarded as the son of that man to whom his mother was married at the time of his birth. And not without all reason is some stain of ignominy commonly cast upon husbands as a result of their wives’ unchastity, because from imprudence or from abjectness of mind the husbands have not used their authority aright; although there be those who derive the cause of that circumstance from the fact that it is looked upon as an opprobrium for one to be without those gifts which can deserve love or maintain a stipulation. And so the fact that, in matters concerning matrimony, the wife is bound to follow the will of her husband, and not he her will, comes properly and directly from the force of the matrimonial pact, not from some sovereignty; just as a wage-earner is bound to apply his services according to the free choice of the one who hires him, although the latter does not properly have any sovereignty over him. Hence, also, if the contractor has not furnished what he ought, the hirer has properly an action against him, not as against a refractory subject, but merely as against the violator of a pact. Thus, as the following obligations, indeed, flow from the matrimonial pact, namely, that the wife is bound to cohabit with her husband, and that she cannot go abroad or lie all by herself against his will; so, whether direction over other actions of a wife which do not touch the essence of matrimony, as also full authority over her goods, belong properly to the husband, depends upon the special agreement of the husband and wife, or on civil laws. For a stand is by all means to be taken on these, if, indeed, they have defined whether women are to be given in marriage with a dowry, or there ought to be a complete union of goods between the husband and wife, or the husband should have full or restricted authority over the goods of the dowry, and the like. Where civil laws make no disposition on this point, in regard to such matters it will be permissible for husband and wife to make such agreement with one another as they see fit.
4. Now as far as the law of nature is concerned, whoever are fit by the condition of body or age can contract matrimony. And, since by that same law we are bound to cultivate the social life whose foundation, as it were, is matrimony, it is patent that mankind are also obligated to enter upon it, in the way, however, of an affirmative indeterminate precept, that is to say, when an occasion offers itself to them, and when they do not foresee with a high degree of probability, that, in a life of celibacy for which they find themselves fit by the requisite continence, they can do more good for the human race or for their own state, than as married persons. Hence, they are not at all to be thought of as sinning who put off matrimony, so as more conveniently to cultivate the mind in freedom, and to prepare themselves for performing notable ministrations to human society, something which married men, because of the customs of the state or the disposition of women, might not so readily do. Nor, if a man be led by a very lofty spirit, so that either he does not feel the incitements to matrimony, or else easily dulls them, and can, otherwise, by deserving well, make himself a useful citizen of the universe, is he to be thought obligated by nature, so as altogether to cast fetters, as it were, upon his glorious efforts by the allurements of women. Now, as civil laws, except through the utmost unfairness, would not set out to prohibit from matrimony specific men who are fit for it; so, if it be definitely ascertained that some function can be much more conveniently performed by a bachelor than by a married man, of course nothing appears to prevent bachelors only from being admitted to that function; or, if they do not wish longer to go without a wife, to lose it. Precisely as, for example, an order can be given to a legate, or a general, or a soldier, not to take his wife with him when he goes abroad or upon some expedition.4 Thus the civil authority can rightly make other dispositions on this point, for example, about the age at which people are to be united in marriage; about their status, as illustration, that no citizen marry a foreign woman, or no nobleman a commoner; likewise about the rites to be used in the marriage contract; or the contracting parties having to obtain the consent of others, as illustration, that no one should enter matrimony when his parents or guardians are unwilling, or even without consulting the magistracy, or the like. The force of civil laws of that kind can be the following, namely, that the wedlock in which some requisite prescript of the law is wanting may be without the effects of legitimate matrimony in that state, as, for example, that the children are not to become full citizens, or are not to be admitted to the paternal inheritance or to definite civil dignities; or that such wedlock be reckoned merely as concubinage; or that it can even be altogether dissolved, despite its having been already consummated. For the mingling of bodies in itself does not by nature have the effect that those between whom that has taken place a number of times, or only once, are bound to cohabit for ever; and, for the firmness of the connubial pact, at all events in a civil court of law, it is required that what civil laws have bidden to be performed herein, should altogether be performed, as without these matters the pact would not be valid. From all of which it can be easily gathered what judgement is to be rendered about that most vexed question, whether, namely, parents can rescind the marriages of their children entered into without their knowledge and consent. Here it must be seen, before all else, whether the parent be living in the state or outside the state. For, if he live outside the state of which he is a subject, assuredly he will have over his own family what amounts to supreme sovereignty, and so, whatever prescript he has laid down for his own about such a matter, will have the force of a civil law. When his son has contravened that law it will be possible for him to be punished by his father, or for the marriage contract also to be suspended, if, indeed, that point was expressly mentioned in advance, or, if he have removed himself from his father’s sovereignty, it will be possible for him to be excluded from the family and the paternal inheritance. But if, now, there existed no order on his father’s part regarding that matter, then he is understood to have left that matter to the free choice of his children, as those things which are not interdicted by the laws are taken for licit. Here, nevertheless, the duty of respect requires that when a matter of so great moment is being considered, children properly require the consent of the parent, who is not a little concerned as to those through whom his own stock is to be propagated or upon whom his goods are to devolve; in such wise, however, that, his consent not being requisite, the marriage none the less remains firm, since, forsooth, it should altogether have been promulgated beforehand in the way of a civil law, that the failure to secure the express consent of the father would have such force that the marriage would be rendered invalid thereby. But, once the marriage has been contracted validly, when, thereafter, his son’s condition, perchance, displeases his father, it can no more be rightly rescinded than are antecedent licit deeds punished on the basis of a law passed afterwards. But, when the persons concerned live in states, the whole matter will have to be decided on the basis of civil laws. For it is theirs to define what amount of authority over their own children belongs properly to citizens, especially over those children who are of mature age.
5. For the rest, although it was both to the dignity of man not to be procreated like cattle by unregulated sexual intercourse, and it contributes very greatly to a decorous order in states for the cohabitation of males and females to be fortified, as it were, with the scrupulous observance of a pact; still it assuredly seems strange, that, among the more civilized nations, at least, a most sensitive modesty attaches both to the members destined for procreation, and to the act of generation itself, although that modesty seems to arise neither from some natural deformity of the members or an absurd shape; and the act itself is conformable to nature, and altogether necessary for the preservation of the human species, and suitable to produce a being of such dignity. Why should one blush at exercising this act any more than at eating or drinking, since without it the species can no more be preserved than individuals can be preserved without these others? Nor do those fully meet the case who here take refuge in the divine writings, where modesty of that sort is said to have manifested itself immediately after the fall. For the question none the less remains, why shame has fixed its seat, as it were, especially in these parts, since the hand and the tongue of man are no less ready for the ministrations of disordered and evil desires. The most probable cause, therefore, of this circumstance which can be presented, seems to be this, namely, that, for the purpose of preserving the social life among men, so much stress had been laid upon having the propagation of offspring circumscribed by a respectable order, otherwise than is the case among beasts. Hence, by a certain innate modesty which affects minds almost more strongly than the interdict of the law, nature wished to fortify the innocence of acts tending to this end, both so that those members should be carefully covered, lest, by being always exposed to the eyes, they over-excite a lust circumscribed by no limit of time, and also that there should be a more careful abstention from illicit love, because the sensitiveness of modesty required the performance of even legitimate love only in a hidden way and without onlookers. And this modesty is most effective between those directly generated and their generators, to such a degree that he who is not restrained by it, so as not to be ashamed to descend to that familiar commingling of bodies with a person of that sort so united to him, is judged to be a man of utterly brazen character, and one who would shrink back from no further crime.
6. From this we think the reason is to be drawn why wedlock is reckoned as being forbidden, by the very law of nature, in the direct line of ascent and descent; especially, since no case has arisen, or probably could arise in which the necessity of it would have to be admitted. For the case does not seem to be absolutely settled by the reason that either a son, as a husband, being superior by the law of matrimony, could not show such reverence to his mother as nature demands; or a daughter to a father, for, however much inferior by the law of matrimony she might be, she would, nevertheless, be prohibited because of this familiar intercourse from exhibiting the reverence of that relationship.5 For, if you remove that natural modesty which I have mentioned, it would assuredly not be so absurd for it to be possible that a mother be united with a son under his own authority, and so owing her merely respect; since, also, otherwise the condition of sex, as far as regards the essentials of the matrimonial contract, makes her in due order subject to the free choice of the other, whoever it be that she marries, and filial respect can express itself in other things. And much less, if you remove the modesty of commingling, would a daughter be prohibited by matrimony from exhibiting respect to a father who was her husband; since it is by no means necessary that as wife she be taken to a share in the domestic sovereignty, much less that she would oppose her husband. But, in truth, although among brothers also and sisters, and the rest of persons united in a very close degree, this kind of modesty is assuredly found to be more lax than between parents and children; nevertheless, the reason why we say, that, by the law of nature, marriages between these persons also have not been prohibited, is because, as the authority [autoritas] of the Sacred Scriptures teaches us regarding the origins of men, marriages were necessarily to be contracted between the children of the first husband and wife, brothers, of course, and sisters. Now it does not seem probable that God would have brought about a case of such a kind that violence would altogether have had to be done to the law of nature; especially, since it would have been easy for him to have avoided that case by having created at the very first two pairs of husbands and wives. Nevertheless, the modesty in question counselled, that, after the necessity for this wedlock has passed away, the number of mankind being sufficiently enlarged, this grade of marriage should be prohibited by positive laws; especially, since their daily and unsupervised living together would have furnished a very ready occasion for lewdness and adulteries, if such loves could have formed marriages.6 This reason is also to be extended to other grades of consanguinity and affinity, which positive laws further prohibit, or which are allowed to isolated individuals only by the special indulgence of the magistracy.
7. But, as touching polygamy, it is certain, indeed, that the form in which several men have one wife together, is utterly abhorrent from nature and the end of matrimony; but that one man should be united at the same time with several women, although it is now believed among Christians to have been forbidden by a divine law, is, nevertheless, in itself by no means repugnant to the law of nature. For it is not necessary that, just as a wife ought to grant the use of her body to no man but her one husband, so ought a husband to do the same to no other woman but his only wife. For the former regulation is necessary so as to secure certainty about offspring. But, in truth, that a man should spend upon appeasing the lust of one woman all the vigour which was sufficient to raise up offspring among a number of women, does by no means seem to be ordered by nature. But those reasons which have to do with jealousy between the wives, domestic discord, hatred on the part of stepmothers to be continued also among the offspring themselves, are valid only among those nations in whom the dispositions of women are too elevated. Such are most women to-day among Europeans, where he who is himself not beholden to his wife performs with vigour the office of a man. But, in truth, among the Asiatics and others,7 where women are left merely the glory of obedience, several wives no more disturb domestic peace than elsewhere the preposterous lust for commanding [imperandi libido] on the part of a single virago. And yet it must altogether be the finding that polygamy, formerly allowed for very weighty reasons, has later been prohibited by positive laws. But this feature also has been added to matrimony from the positive law of God, namely, that, on the violation through adultery of the essential condition of the contract, when the wife has granted the use of herself to a second person, it can be dissolved; for other inconveniences, however, which make cohabitation troublesome, it cannot be dissolved, even with mutual consent. Since, otherwise, the law of nature would not prevent any one from being able to divorce his wife on the ground of sterility, or ignoble faults and intolerable habits, especially if it has been inserted in the nuptial contract that there should be a faculty of divorce, if, indeed, something of the sort should be found in the wife, and otherwise what had been established by mutual agreement could be dissolved again by a contrary agreement, where positive law does not stand in the way.
8. By generation, furthermore, and birth there begins to exist a society between parents and children. For this supplies the occasion of acquiring over offspring a right, which is not merely valid against other non-parents, that, precisely in the way in which it is most natural for him who is the owner of the thing to be the owner of the fruits, so he who is the master of the body out of which the offspring was generated, has the first place in acquiring sovereignty over offspring; but also a right which is valid against the offspring itself. For, aside from the fact that nature herself has enjoined upon the parents the care of the children, it has enjoined upon the children reverence towards parents, for the reason, that, in taking up the infant, the parent, indeed, declares that he will fulfil the obligation laid upon him by nature, and will bring it up well, as far as in him lies. Here, although the infant, because it does not know the use of reason, cannot expressly promise the reciprocal offices enjoined by nature; none the less, by the nature of the transaction, obligation towards the parent contracted in its own person, no less than if it had been contracted by an express agreement, manifests itself as soon as it can understand what the parent has done towards it. For it is presumed that, if the infant had had the use of reason at the time when it was taken up, it would have consented expressly to such sovereignty of its parent over it without which a suitable bringing up is impossible, and would have stipulated in its turn from the parent for a suitable bringing up. This agreement reasonably presumed is valid as though expressed, precisely as he, in whose absence and without whose knowledge, business has been transacted by a second person, is understood to have contracted the obligation to pay that other person what he spent for the first person’s advantage; for it is presumed that he would have expressly consented to such a contract had he known his business needed the other’s services. But, if the family live outside states, the quasi-civil sovereignty of the father over his already adult son is continued on the basis of a tacit pact, equity and the law of gratitude also urging that the son should with his strength join him especially to whom he owes it that he is what he is; until, by the consent of his father himself, he be utterly released from that sovereignty.
9. Now, in truth, since to the procreation of offspring father and mother contribute equally, it is to be decided on the basis of the matrimonial pact which one shall duly have authority over the offspring, and to what degree.8 For, if no pact intervenes between them, that offspring is the mother’s; because, in such a status, the father cannot be known except on the evidence of the mother, at least with the certainty with which matters of fact are proved among men, and it is understood that no second person properly has here a closer right to the offspring than she, who, within her own body, carried and nourished it. Hence, even on the basis of the Roman laws, the issue which had been begotten without a marriage pact followed the venter.9 But where life is passed outside of states, the marriage pact will show clearly enough to which one properly belongs sovereignty; for it cannot be that both parents should have equal sovereignty at the same time. In this pact, since, in due order the husband takes the place of the lessor, the wife that of the lessee, and so the man has the purpose of getting offspring not so much for his wife as for himself, it is patent also, that, in due order, the father properly has sovereignty over the offspring. But if, however, it should happen outside the normal order, that the woman take the man to herself, and not the contrary; so that not only the man should properly have no sovereignty over his wife, but also that in the marriage pact the wife should be in the place of the lessor, the husband in that of the lessee, then, assuredly, the wife will also properly have sovereignty over the children. Examples of this thing occur in the case of women upon whom supreme sovereignty devolves. For they can assuredly take husbands to themselves, and are sometimes said to have done so, in such a manner that they concede the husband sovereignty neither over themselves nor over their issue. Here also you can refer what some say about the Amazons,10 namely, that they sought after offspring not by irregular copulation, but each had her own definite husband dwelling in a different land, to whom they resorted only at a definite time, and to whom the male offspring was sent back. But, in states established by men, as men are in due order the heads of the family, so private sovereignty over children rests with the fathers, in such wise that the bidding of mothers has in itself about the force of counsel only, and obtains the force of obligation only on the basis of authority communicated by the father. As for this private sovereignty itself, however, over children, as in most states there has been left to parents, and ought also to have been left, so much as is required for the bringing up of the children; so, on the basis of the same laws, it is to be judged what kind of authority parents have in regard to the other actions and things of their children, especially their adult children, and how far this extends.
10. For the rest, obligation has also been enjoined upon parents by the law of nature, that not merely shall they not destroy by abortion the offspring conceived within their flesh, nor expose it, nor put it to death after it has been brought into the light of day; but also that they shall supply it with nourishment (one or both of them, just as they have agreed in the marriage pact), until it can conveniently support itself, and, that, in proportion to their strength, they are to see that it is brought up and instructed to the good cultivation of the social life. In this latter function the principal part of the father’s office consists, and therefrom the greatest necessity for gratitude is incumbent upon children; forasmuch as parents cannot impute to their children so much their mere generation, which is without annoyance or is compensated for by their own pleasure, as they can the bringing up which is both laborious and full of the most faithful solicitude, whereby, in proportion to each one’s faculty, they are formed into useful members of human society. That this office be observed the more carefully, since, forsooth, it is among the principal supports of the social life, nature has implanted in parents a tender affection for their offspring, so that no one can be willing readily to neglect that office. But, if some parents, nevertheless, not only violating the law of nature but also overcoming common affection, are unwilling to nurture their offspring, and cast it forth, they cannot longer claim any right over it, nor can they demand from it longer any office due, as it were, to a parent. But he who has brought up an exposed infant succeeds to the rights of the parent, and to him the foster child owes the same offices which he does otherwise to those who have begotten him, nor can he go back under the authority of his natural parents, if his foster parent is unwilling.
11. Out of an antecedent war arises the society of slave-masters, that is to say, when I grant life to the man whom I could licitly have slain, and undertake to supply him with the things which make for its preservation, on condition that he be mine for ever, whatever services can be performed by him shall redound to my advantage, and that he obey absolutely my commands, as far as they can be effectively valid. For, in truth, just as the beasts, with whom we are perpetually at war, when conquered by the same right of war, indeed, are in a state of perpetual and absolute servitude to us; and yet, because they are not capable of obligation, they can be restrained by bodily bonds only, and when they have broken these, and run away, they return to natural liberty; so, with the man captured in war, whom I restrain with nothing but physical bonds, I am reckoned as having contracted as yet no pact, and so, since passage is made from war to peace only by means of pacts, a state of war is understood to be still enduring between us, nor is there any obligation upon him to serve. Hence such a man can licitly not merely run away, but even, when the chance has come to him, treat his captor as an enemy. And so the obligation to serve does not arise simply from granting him his life, but from the fact that confidence is placed in him by not having him bound or shut up in a workhouse for slaves.11
12. Moreover, since an absolute authority over the slave has been acquired by the master, and the person of the slave has become the master’s own, it is apparent also that the master properly has a right to all the things of the slave, not simply, what he has acquired after becoming a slave, but also what he had before slavery, if, indeed, the master has captured them along with him. For the things which have not fallen into the captor’s hands along with their owner, enter the status to which they would have come upon the captive’s death, unless the civil laws have otherwise disposed, so that there can be room for postliminy.12 But, if the master grants the slave some private property of his own, the latter is reckoned as having proprietorship over it to the extent only that he can retain and defend it against any one else not his master. But, where it has happened that the master as a subject comes under the authority of a second person, it is manifest that the master’s eminent domain, at least, over slaves, passes over to the other person, in such wise that the master as an intermediary cannot exercise more authority over the slave than seems best to the supreme master. Hence, if in any states the right of masters over slaves has been absolute, that particular right has not been given them by civil laws, but what they had previously had as heads of households outside states has been left them.
13. Now the society in question is dissolved when the right of the master over the slaves is extinguished. This happens, (1) If the master has given him his freedom. (2) When he has driven him away. This act differs from manumission, not in effect, but in method. For liberty is here given by way of a punishment, because, since the possession of such a wicked man is troublesome, it is judged to be far more damaging to the slave himself to be possessed of his own right, than if he should be a slave to a master. (3) If the slave be captured, the new servitude abolishes the old. (4) If the master die, and have not transferred his right to another, the slave is understood to be free, because there remains to him no obligation towards any one to be his slave. But whether he can conduct himself as a free citizen also in a state will have to be decided on the basis of civil laws. That also happens, moreover, if the master has no heir at the time of his natural or civil death. For a slave of that sort cannot be regarded as derelict and so dragged off by any one into servitude, just as goods regarded as derelict fall to the man who takes possession of them. For the rest of things, whether they be inanimate or animate, as brutes, are defended by no right, so as to prevent their being claimed by anybody at all, unless a right to them has been acquired already for a second person. But, to a man, one can assert for oneself no right, except in so far as it arise from the former’s own consent, or past deed regarding the latter. And so, when that right which the victor has acquired over the slave in a special way from war has been extinguished, there returns natural liberty, even if, perchance, servitude corresponds better with his character. For the inclination of character in itself, as some absurdly think, gives no one the right of dragging off into slavery a man against his will, and it is not licit for me forthwith to impose upon a second person by violence that which is, perchance, to his own best advantage.13 (5) Where a slave, neither on the basis of an antecedent misdeed, nor by way of punishment, is thrown into chains, or in any way at all deprived of the physical freedom of his body, he is set free from that obligation arising out of the pact wherein the master did not wish longer to bind him by throwing physical chains upon him; and so it will be permissible for a slave of that sort here to do what we have said was permissible to captives in bonds, who have never given their word of honour.
14. Now, in truth, through neither of these two societies could a peace, in itself secure and stable, fall to the lot of men, because, as men multiplied, families grew to a very large number, which, due to their slight strength, were destined not to be sufficient to defend themselves against any violence, and to clash more frequently in wars with one another, the more numerous they became. To be sure, if a family, by the multiplication of offspring and the acquisition of slaves, has become so numerous that it cannot be subjugated without the uncertain cast of the dice of war, it will be able to furnish to its members the same security as that which otherwise states are wont to furnish.14 But, in truth, unless the head of the family still lives and has, by the consent of the principal divisions, at least, of the family, so tied it together, as it were, that it is bound to remain one family for the future also; upon his death it will break up into as many families as there are sons who compete with one another for the inheritance, and so their divided strength will be rendered weak. For the prerogative of primogeniture is not of such avail that all sons born of the same parent are bound to be under the sovereignty of the first-born, unless they have submitted themselves to that subjection either through the disposition of the father or on their own agreement; which agreement is the more necessary, the farther the members of the family have separated from the common stock.
15. In order, therefore, that the security of men should be fully provided for, as far, indeed, as the condition of human affairs permits; and, where it could not be prevented that one of two persons be at all hurt unjustly by the other, that this much, at least, be achieved, namely, that he could not be so hurt with impunity; it was necessary, finally, that a number of families be united. And when they entered into a mutual pact with one another in regard to procuring the common welfare, and conferred upon him to whom they entrust the administration of that common welfare, the right to command that which will seem to contribute to this end, having contracted at the same time the obligation to do his bidding, the state arises.
16. From the end of the state, moreover, it is easy to gather what ought to be the character and extent of the sovereignty whereby it is kept together. For since, as was said above, it is not sufficient for the state that each one whatsoever of those who are going to coalesce into a state should pledge his good faith that he will observe the laws of nature towards his fellow-citizens, it is necessary that he to whom the whole of the state is entrusted for administration should have the faculty to affect with some evil or punishment the man who has refused to do what the former has laid down to be observed as being expedient for the public.15 For then, and not till then, do I not have a plausible ground for fearing my fellow-citizens, when an equal or more severe evil awaits the man who is going to affect me with wrong. But, since they who cannot protect themselves against outsiders, cultivate peace among one another to no avail, nor can they whose strength has not been united protect themselves against outsiders; it follows that in a state there ought necessarily to be in the hands of some one person the authority to unite and arm as many citizens in any peril or occasion, as shall seem to be needed for the common defence, in view of the enemy’s force, and again, to make peace with the enemy, as often as it shall be profitable to do so. This power will rest with the same one also who has the authority to exact punishments, since no one can of right force citizens to arms and to the expense of war, except the one who can also punish the recalcitrant. The same person will no less have the decision about the deeds of those in whose case there is a dispute as to whether they ought to suffer punishment. For, if the authority to judge were with one person, and the authority to execute the judgement with another, nothing would be done. For he who could not execute the decisions rendered would pass judgement to no purpose; or if he himself should execute them on the right of a second person, he himself would not have the authority to punish, but the other person, whose minister only he would be. Also, since not all transactions can be performed directly by one man or a council, the same will have the faculty of delegating the care and execution of definite transactions to definite men, who, however, will borrow all their authority [autoritatem] from him. Finally, since mutual offices between citizens cannot be rightly performed or exacted, unless it be defined how far the separate offices are due, it will belong to the same supreme authority to promulgate definite rules which they call civil laws, by which shall be declared, what right or what obligation one citizen has towards another, what they ought to furnish one another, or what they can exact from others, and on what score; in a word, what is necessary, through civil sovereignty, for them to do, or avoid doing, to one another.
17. As for the rest, just as he who confers upon a second person sovereignty over himself, contracts at the same time the obligation not to resist his bidding, since, forsooth, that would imply that some one has the right to command, in such a way, however, that the other person retains the authority to resist; so we must consider how far this obligation not to resist extends. Here this much is certain, namely, that, since every authority is understood to have been conferred upon some one, without violation of the right and authority of a superior, citizens also are reckoned as neither having been able to renounce, by having set up or recognized civil authority, the sovereignty of God over them, nor to have renounced it, and so ought to reject and not execute those orders of the supreme authority, which, it is well established, are openly opposed to the mandate of God. But if, now, on that account the supreme authority should set out to bring force to bear against my life, whether I may for that reason rightly oppose force to it, is a difficult question which arises. We are of the opinion that a distinction should here be made between those things which are properly enjoined by the Christian religion as such, and those which flow from natural religion, whose practice in large part consists in the exercise of the law of nature. In regard to the former, it is not ours to define what may be permissible when force is directed against one; since from the same Scriptures out of which that religion is drawn, any one whatsoever can determine for himself, how much it ought to be worth to him to have done or professed nothing contrary to his own religion. But we do not think the case exists that the supreme civil authority should order something to be professed which was contrary to the main theoretical precepts of nature;16 especially since by that religion the people is in the highest degree bound to obedience towards the civil authority. It is an act of madness for this bond to be broken by the one whom it most concerns to have it strong. But that one should sin even against the practice of natural religion, which consists pretty much of the observance of the law of nature, because death had been threatened him by the civil authority, we think can scarcely be possible. For, where violence is brought to bear against our life, so that we are to do something otherwise forbidden by the law of nature, the mere execution of that act will be ours, and its guilt can be imputed not against us, but against the supreme authority itself, and so the sin in this case will not rest with us, but with it alone; hence there appears no reason for resisting. But if, however, the execution of the act be of such a kind that either it cannot be undertaken at all without one’s own sin, or be judged to be in itself more bitter than death, where no reason is shown, or at least no reason is plausibly pretended, either in consequence of my own misdeed or for the public good, why there is brought upon me especially such a great necessity to perform that matter which could be done by another, or which it is absurd to do at all; it is, of course, apparent that what is being done is that I, who am an innocent man, without any pretext of right or public good, am to be ruined because of the mere whim of the sovereign, and his spirit of hostility towards me. Now when the sovereign is found to be of that spirit towards me, certainly he treats me no longer as a subject but as an enemy, and he himself is understood to have remitted the obligation by which I was held bound to his sovereignty. In this case, since I pass from being a subject into being a free enemy, the sovereign assuredly retains no right to keep me from being privileged to employ against him, for the sake of defending myself, all means commonly observed against an enemy, especially when there is no opportunity for flight, except in so far as some consideration is to be taken of my fellow-citizens, namely, that in this way they be not involved in great disorder. In our opinion the same judgement is to be rendered, if, apart from the case mentioned, the sovereign, without misdeed on our part, should set out to destroy us in our innocence. Here, although it is best for the sake of our fellow-citizens to seek safety by flight or by hiding; nevertheless, where there is no opportunity for flight or hiding, it will be permissible to defend our safety against the one who treats us no longer as subjects.17 In this case even a third person who has no obligation towards him can properly undertake our defence. But, in truth, when the sovereign has determined to inflict a punishment upon us because of some offence, although we are not bound to bring punishment voluntarily upon ourselves, but to avoid it by flight or hiding; nevertheless, the reason why we cannot here defend ourselves by force is that the one who is in authority is using his own right, and for that reason to hurt him in any respect would assuredly be a wrong.
18. Now, as a supreme sovereignty of that kind is found in every state whatsoever, and that group in which it is not found is not to be reckoned as a state, so it is self-evident that it has no one upon earth to whom it is beholden, or who can bring it to order by legitimate authority. Not in the state itself, for that is implied; nor outside the same, because, due to the natural equality of men, no one can pretend any right of sovereignty over a second person, unless he has acquired that by some antecedent act or consent of the person himself, such as we presuppose has not intervened here. From this it follows that this authority is also absolute, that is to say, that those acts which it has judged to be expedient to its own end it can perform of its own free choice, in such wise that it is not compelled to borrow, as it were, from a second person the authority to perform them, nor to recognize the rescinding of the same by a second person. And much less can he who enjoys that sovereignty be brought to face one in a civil court, or have some punishment inflicted on him because of some deed of his.18 For we can neither be judged nor punished except by him who has sovereignty over us. For the evils inflicted by those who are our equals outside the state, because of a wrong done them, do not properly have the character of punishment, since they proceed from the right of war, which obtains among those whom the force of human tribunals does not bind. From this also it is not difficult to gather how far he who rejoices in supreme authority on earth is obligated by laws. For that all men are equally obligated by natural and divine positive laws as such, is beyond doubt, and upon their violation action will be brought against prince and private person alike before the divine judgement-seat. But, when the question is raised as to just what efficacy there be in the obligations which are contracted by the supreme authority towards other men, then a distinction is found to exist between those things which are owed to outsiders and those which are owed to subjects. For that supreme authority does not prevent outsiders, indeed, from acquiring a perfect right against him on the basis of his obligation; and, by the strength of that right, since there does not exist a common tribunal among men, when he refuses, they can compel him by arms to pay his debt. But whatever obligation he has contracted towards his own subjects, provided only he has preserved the right of supreme sovereignty unimpaired, will be merely imperfect, that is, on its violation he will have to stand before the divine judgement-seat, indeed, but his subjects will be able to bring against him an action neither in a human court of law, forasmuch as there is none here, nor to apply force to him, because of the very sovereignty established over them, which becomes of no avail, when subjects are as much allowed to employ force against the bearer of authority for the violation of a law of nature, as he is to do so against them. Therein, however, monarchs are found to be in a far better condition than either aristocrats or individuals belonging to a free people. For here, since the supreme authority inheres in the whole council as such, if any individuals have been at fault in regard to the council, it will certainly be possible for them to be judged and punished in a civil court of law, according to the laws of the state, because of having violated any obligation at all, by the rest of the council, the majority of which has the force of all together; a condition which does not obtain in the case of monarchs.
19. Just as that supreme authority which we have spoken of, in any group not subject to a second person, which, indeed, constitutes a single moral body, is as though in the common subject; so, as the special forms of a commonwealth vary, it inheres now in one person, now in a certain few, now in the whole people. And in democracies, indeed, no one will readily call in doubt that the supreme authority, in the way in which we have described it, is in the whole people, in such wise that its acts can be rendered invalid by no one else, nor can it be brought to order or punished. For, when gatherings or assemblies of the people have degenerated into a confused mob of seditious men, the major part of the people can by its own right restrain and punish those disturbers, because, in the form of such a commonwealth, the major part has the force of the whole, and those fewer seditious men do not have some special right before those more numerous good citizens to look after the commonwealth. That such authority can be unlimited in a few, and so in one also, as though in the nearest subject,19 is no less certain. For, assuredly, nothing prevents also a people conquered in war from being able so to subject itself to the victor for the purpose of avoiding destruction, that it leave itself absolutely no authority in regard to sovereignty; and a people otherwise free, and not pressed by any such necessity, from utterly abdicating its own sovereignty, and being able to confer it upon a second person, so as to leave itself no right therein. For, although it should seem necessary by the law of nature that a man should not merely as an individual exercise care for his own welfare, but also while living in society, and so, as he has the considerations of his own welfare intertwined with those of securing the welfare of others, he should see to defending it by common counsel; nevertheless, the latter injunction has never been so laid upon a man by nature, that, if it should seem more suitable to him, he could not transfer that right and that care to another absolutely and irrevocably; at least, if it be probable that the second person is going to conduct that sphere of activity aright, a presumption which devolves as a regular thing upon all who take that function upon themselves. Yes, and that it be not merely licit, but even necessary, as said above, because that common welfare cannot be rightly administered except by one counsel.
Now such supreme authority is understood to be enjoyed by any person to whom the people has so conferred sovereignty over itself, that it has not reserved the right to hold, by itself or by its deputies, assemblies with the authority of inquiring into the acts of the sovereign, and of both making them invalid, and bringing him to order; or when, at the very outset, the prince is not bound to secure the express consent of the people regarding the acts of sovereignty, without which consent they will be invalid. Here, however, it is not to be supposed that, if some princes do not wish their acts to be valid except they be approved by a definite council established by themselves, this council has forthwith an authority greater than that of the prince. For, if any acts be here rescinded, they ought to be understood as being rescinded by the will of the prince himself, who in this way wished to take precautions, partly not to decide upon something without adequate consideration, partly so as all the more conveniently to rid himself of the importunate solicitations of men to whom he grants something which he knows will be disapproved by that council.20 Just as also the estates in a pure kingdom take nothing from the supreme authority of the prince, forasmuch as they have the authority [autoritatem] of counsellors only, so that the needs of the people be the better known. But, if some disadvantages seem to follow from having that supreme authority remain in the hands of one person, these do not make it impossible for one person to be so constituted; and, of course, they will be no more severe than those which attend other forms of commonwealths, since life will have to be lived everywhere by individuals under absolute authority, which not merely monarchs, but also aristocrats, and the whole people can sometimes abuse.21
20. Hence, those indulge in an extremely perilous error who from an original hatred towards monarchs, or else one drawn from a definite class of writings, contend that necessarily and always the supreme authority is with the people in so far as it is contradistinguished from its head, so that it can and ought to take cognizance of the deeds of kings and visit them with punishment.22 Nor are they more sane who imagine some mutual subjection, in such wise that princes should be subject, indeed, to no one, as long as they rule according to the laws and in a civil fashion, but on their abusing authority should be subjected to the coercion of the people, and therefore are to be deposed from office before action is taken against them. For what if a king should assert, and perchance, with truth, that he has used his authority rightly, and the people should deny it; who will be arbitrator? Especially, since, in general, so great is the obscurity of civil acts that the common people can rarely recognize their fairness or necessity, or frequently, as a result of a disturbed state of emotions, is unwilling to do so, and it is in the highest degree expedient for the commonwealth that the course of its counsels be not open to a large number. As confusion of that kind utterly subverts the purpose of sovereignties, so no people without exception in giving sovereignty to some one is presumed to have wished to introduce it. For the people which altogether wished to inquire into the acts of princes has expressly reserved to itself the authority of holding assemblies upon that matter in its own right, and has prescribed definite formulae in accordance with which those acts were to be demanded. Yes, and where there is such a prince he has by no means supreme sovereignty, and merely holds the position of a magistrate properly so called, whatever may be the title with which he shines; just as the magistrate also can make no decision about public affairs, or at least of the weightier kind, except with the express consent of the people, or of its deputies or estates, sitting in council by their own right, and not by a right dependent upon some one else.
21. No more can they be tolerated who say, that, when the king has degenerated into a tyrant, he can be stripped of his sovereignty and punished by the people. For the same difficulty as the one above will return, namely, as to just what actions cause one to be rightly called a tyrant. Any one who is taken with dislike of the prince or of the present state of affairs will apply to the prince the unpopularity of that word, an unpopularity which arose from the vanity of the Greeklings.23 Nor has any one hitherto clearly defined just what acts would make one a tyrant who is to be brought to order by his own subjects. For it is the common view that private vices do not make one a tyrant, nor a somewhat careless administration of the commonwealth. Are too heavy tributes demanded? Yes, but a subject not admitted to the counsels cannot judge whether the necessity of the state demands them. Are severe punishments imposed? Yes, but if they come in accordance with the laws, or after an antecedent misdeed, no one can justly complain, even if, perchance, clemency were better applied. Are certain great men, or others, without wrongdoing on their part, removed from the midst because of private enmities, a thing generally held to be most odious? Yes, but if the excuse of a misdeed or of machinations against the commonwealth or the status of the prince is given, or if the ordinary form of trials is observed, although, perchance, those who are removed may be quite certain of their own innocence, and a few others besides; nevertheless, how can that be clearly established to others, especially since the presumption of justice stands always on the side of the prince? Are promises not kept, or privileges previously granted (by which some part of supreme sovereignty is not given away) violated? Yes, but if the prince should offer as the ground either a misdeed, or a necessity, or a notable advantage to the commonwealth, he will be regarded as having acted in his right, and the subject will not have the faculty of judging clearly about it. From these cases other difficulties also which attend this view can easily be judged.
22. That no one should believe, however, that we grant a boundless licence to princes, and deliver over to them their subjects, from whom we have taken away every faculty of fighting back, like cattle to their pleasure, we are altogether of the opinion that, if, indeed, even an absolute prince should assume a mind utterly hostile towards his subjects, and openly seek their destruction without the pretext of a cause which has at least the appearance of justice, his subjects can rightly employ against him also the means customarily used against an enemy, for the sake of defending their own welfare. And that, because, in this case, he is reckoned to have yielded up the obligation with which they had been bound, since the situation would involve that some one wished at the same time both to be a prince and to act as an enemy towards all his subjects.24 However, it is scarcely possible for it to happen that a prince should assume such a mind towards the whole people, unless, perchance, he be exercising sovereignty over more than one nation, so that by destroying or crushing one he may make conditions more pleasant for the other. But it can easily happen that a prince be such towards individuals, or a certain few. Since he is likewise ejecting these from the number of his subjects, it will be permissible for them to use the defence otherwise licit against an enemy, observing, however, the advice which we have given above about this case. It will not be permissible, however, for the rest of his subjects on this account to put off obedience, or to defend the innocent by violence, whether the prince present some pretext or not. For, aside from the fact that it is not permissible for them to inquire into the deeds of the prince which he exercises on the basis of his judicial authority, as it were, and it often happens that an accused person falsely proclaims his innocence in order to stir up ill-will against the prince, the doing of injury to a fellow-citizen does by no means absolve the rest from their obligation towards the prince; because each one of the subjects for his own person stipulates for himself the care and protection of the same, and does not lay it down as a condition, “If he is going to treat each and all of the citizens as subjects.” Nor does fear lest he be dealt with in the same way himself suffice to break an obligation, forasmuch as this fear is an uncertain one, since there may have been special causes for hatred in that man’s case which are not found in me. But, as long as the obligation of the subject towards the prince stands, it will be permissible neither to inquire into the acts of the latter, nor for any cause or on any pretext oppose violence to him.
23. These matters having been thus distinctly set forth, it will be easy to answer the arguments which are commonly brought against the absolute authority of princes. Most of them collapse of their very selves, if it be observed that the following are by no means the same thing: “A people has authority to bring even absolute kings to order, if, indeed, these have not ruled according to its liking”; and, “A people properly has the right, in a case of extreme necessity, namely, when the prince has become an enemy, to defend its welfare against him.” For the reasons which establish the latter proposition do by no means likewise lead to the former as their conclusion, and yet these propositions are confused by many. Thus, when it is said that the people, although it has yielded itself to servitude, has still not lost every right of asserting its liberty or security; if, indeed, this be understood of such a right as that whereby a man can provide for his own welfare against the extremity of unjust force, which, when it is successful, is followed by liberty (for towards a master, after he has once turned into a foe, that is to say, when he has released me from my obligation, there is no longer a bond, although, perchance, he may afterwards wish to change his mind), we gladly concede. Apart from this case, a people which has delivered itself over into slavery has no more properly the right to assert its own liberty than have I to snatch back by violence the thing which I have already handed over to a second person on the basis of a pact. For this civil servitude is not, as some dream, so abhorrent from nature, that, even if a man at some moment, for the sake of avoiding a greater evil, shall have regarded it as necessary to consent thereto, he can afterwards, on a favourable opportunity, nature herself giving him the right, throw it off again. And, although this servitude may be repugnant to the genius of some definite people, either from the beginning, or afterwards as their minds have changed, nevertheless, it will by no means be permissible for this cause only to take away from the prince the right acquired; any more than it is permissible to take away from the purchaser a thing acquired by a pact, even if the seller has afterwards discovered that the agreement was not to his profit. Moreover, between a private master and a prince there is a great difference. For, when the former abuses his property, he is rightly restrained by the magistracy, because the latter properly has the right of eminent domain over those same goods. But, in truth, who would say that the people has eminent authority over the goods of princes, among which is also the right of sovereignty? For the sayings of the good princes which are here adduced, as of Trajan, Antoninus, &c., namely, that the commonwealth belongs to the people and not to themselves, mean nothing else, by that popular form of expression, than that sovereignty is to be administered not so much for the good of the sovereigns, as for the good of the subjects. From this it is no more permissible to infer that the people has properly a right over princes, than that children have a right over parents or their goods, because their authority, also, is commonly said to be for the sake and good of their children.25 But this we gladly concede, namely, that, since the people has itself no right to destroy itself, or to rage unjustly against its own body, it could not have given the king also such a right. For no king of sane mind ever wished to claim such a right for himself. But, in truth, just as a people had the right to administer the commonwealth in an absolute fashion at the free choice of several, even if, per-chance, this displease some few; so there is no doubt but it was able to confer the same right upon the king, that, namely, what a number had previously been able to do, henceforth the king alone should be able to do.
Now it properly follows that he who is not beholden to render accounts cannot be punished by men. For, assuredly, absolute princes can be punished neither for not running the state to suit the people (for that is what the case implies), nor for private misdeeds, a thing confessed by all. But, after they have assumed the person of enemies, the evils which, perchance, are inflicted upon them by the right of war do not have the character of a punishment properly so called.26 To cite the Roman consuls or any other magistrates (using the word properly) is distinctly out of place, for they outranked the people to a much slighter degree than do absolute princes. Hence, what is surprising about their command [imperium] having been greatly restricted, when as a matter of fact, the people had an authority superior to theirs? But it is extremely dangerous to say that the people pledged their faith to the king to the effect that they would obey as long as he performed the office of a good prince; and that a manifest tyrant (let no one be deceived in understanding that expression) does himself render invalid whatever has taken place between himself and the people in setting up sovereignty, and thus releases the people from the obligation to obey. For, although we concede the latter position (if by tyrant be understood he who of set purpose and hostile mind devises the ruin of the people), still the obligation of subjects does not at all depend on the goodness of the prince, provided only he does not assume a hostile mind; unless we are willing to give the people the authority to put down its princes whenever it so pleases. For he whose sovereignty is for any cause displeasing immediately ceases to appear to be a good prince. Nor has it been as yet defined by what acts some one loses the name of a good prince; also, whether a bad prince is made so by one or by a few bad acts, or by more bad acts than good acts, or by bad acts without any intermixture of good acts. He who wishes to give the fault-finding common people the faculty of passing judgement on these matters will doubtless deserve uncommonly well of the tranquillity of the human race! And so, when, by an express agreement between the people and the prince, a form has not been set up in accordance with which goodness on his part is to be required, and the people has not reserved to itself the authority to examine into his acts and to bring him to order; whether the prince be good or bad, provided only he be not an enemy of the people, will make no difference as far as the obligation to obey is concerned.
Nor does what is brought forward about a wife have anything to do with the case, namely, that, although the man be set over her, she is, nevertheless, by no means bound to endure the denial of the conjugal debt, the violation of the marriage pact, adulteries, and other grave injuries, but can look out for herself by securing a divorce. For if, indeed, husbands and wives live as subjects in a state, they have, of course, a superior who decides their controversies on the basis of the civil law. But, where life is spent outside a state, or husbands and wives are superior to civil laws, what they have agreed to between themselves is to be regarded. For, if a wife has subjected herself to the sovereignty of her husband, she cannot leave him, unless he puts on the character of an enemy. But, if no transaction has intervened between them beyond the marriage pact, then, as though also on a pact between equals, if one has been the first not to abide by it, the other will no longer be bound. Yet subjects do by no means bargain with an absolute prince in this latter fashion.
Finally, it is in vain that examples taken from the Sacred Scriptures are adduced, where the Israelites are said to have shaken off the yoke of the Moabites, the Ammonites, and the Philistines, after it appeared to God that they had paid enough punishment for their idolatry.27 For either they were still in a state of war, and had not yet subjected themselves to those peoples or their kings by a pact; or else they accepted the express mandate of God in that matter, which mandate no one will be able to allege for himself, except those to whom it was especially given.
Glory to God
BIBLIOGRAPHY OF WORKS CITED IN THE INTRODUCTION AND NOTES
Works of Samuel Pufendorf
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[1. ] Samuel Pufendorf, The Political Writings of Samuel Pufendorf, ed. Craig L. Carr and trans. Michael Seidler (New York: Oxford University Press, 1994).
[2. ] I am grateful to Prof. Michael Seidler, who has checked my revisions of the English translation.
[3. ] See p. xii.
[4. ] Def. 7, §3.
[5. ] Erhard Weigel, Dissertatio metaphysica posterior de modo existentiae qui dicitur duratio (Jena, 1652).
[6. ] Autolycus, son of Hermes and Chione, father of Anticleia, the mother of Odysseus, was delegated the task of theft and of swearing by Hermes (Homer, Odyssey, trans. Stanley Lombardo, intro. Sheila Murnaghan [Indianapolis: Hackett, 2000], XIX.395).
[7. ] See, for example, Johann Gerhard (1582–1637), professor of theology in Jena, in his Loci theologici, ed. Eduard Preuss (repr. Berlin, 1865), vol. 3, loc. 12 “De lege dei,” pp. 20ff).
[1. ] See bk. II, Observ. 4, §19.
[2. ] Pufendorf follows the Grotian definition of punishment as both retaliatory and utilitarian according to reason (see bk. I, Def. 12, note 44). Blind satisfaction of anger, on the other hand, results from an instinct man has in common with beasts (Grotius, JBP, II.xx.5). The real end of punishments and the sole measure of its degree is as a precaution against injury, and this is secured by reforming the offender, protecting the victim and society against further injuries, and deterring others, thus strengthening the authority of the state and its laws (JNG, 8, 3, §§9, 11–12; JBP, II.xx.6).
[3. ] Cf. JNG, 8, 3, §§1 and 4. §1 discusses whether the right to exact punishment—a harm inflicted upon someone against his will—may arise from a voluntary transfer in a pact. Following Hobbes, De cive (chap. 2, §18; chap. 5, §§7ff), Pufendorf explains it as the result of the individual’s obligation in the pact of submission not only to refrain from defending others against the sovereign but to put his strength at the latter’s disposal to coerce others.
[4. ]Dig., I.v.5, §2.
[5. ] Cf. JNG, 8, 3, §26, where Pufendorf refers to Grotius’s commentary on Matthew 5:40 and Genesis 9:6 (Opera omnia theologica, vols. I and II).
[6. ] Cf. JNG, 8, 3, §23. The sovereign’s liberty in defining the measure of punishment according to public utility does not refer to individual cases, but to the threat of punishment contained in the laws; as a rule these should be applied equally to equal cases. See also ibid., §§4 and 7: “not every evil, inflicted because of an antecedent sin, is a punishment, but such as has been announced in advance, and was imposed after cognizance was taken of the crime.”
[1. ] According to Aristotle, the common axioms which are universally valid in any discipline—in contradistinction to those peculiar to individual disciplines—are the principles of contradiction and of the excluded third. Aristotle, Posterior Analytics I.11, 77a10,22 in Analytica priora et posteriora; Metaphysics, IV.3.
[2. ] The distinction between rational and experimental principles is taken from Weigel’s Analysis Aristotelica. See preface, note 7, and Analysis Aristotelica, sect. II, chap. ix, §1.
[3. ] The idea that imputability rests on rational free choice and likewise the reasons for exclusion or diminution of imputability (in §§6–7) derive in general from Aristotle, Nicomachean Ethics III.1–5 and V.7–8 (1134b20–1136a9); see Pufendorf’s references in JNG, 1, 5, §§7ff.
[4. ] See bk. II, Observ. 5, §2.
[5. ] 2 Samuel 24.
[6. ] 2 Kings 25; 2 Chronicles 36:13ff.
[7. ] The Branchidae were a Milesian priesthood who administered Apollo’s oracle at Didyma near Panormus. Although their friendly attitude toward the Persian conquerors did not prevent the final destruction of their temple and oracle during the sacking of Miletus in 494 b.c.e. and the deportation of the priesthood to Persia, Alexander the Great is said nevertheless to have seized the descendants during his Persian campaign and to have punished them for the high treason of their ancestors. (Friedrich Cauer, “Branchidai,” Paulys Real-Encyclopädie der classischen Altertumswissenschaften, III.1, pp. 809ff)
[1. ] See bk. II, Observ. 4, §22.
[2. ] See bk. II, Observ. 5, §§2ff.
[1. ] Cf. JNG, 1, 3, §7. “Another body of doctrine” refers to prudence (phronesis), which concerns “the successful management of one’s own actions and those of others, with an eye to the security and welfare,” in contradistinction to moral science, which “concerns the rectitude of human actions in their order according to laws” (see preface, note 5). The following rules of “deliberation about a profitable judgement” rest on Grotius, JBP, 2, 24, §5, “Rules dictated by prudence regarding the choice between things that are good.”
[2. ] Allusion to Seneca, De constantia sapientis, chap. 7: “If a man lies with his wife as if she were a stranger, he will commit adultery, but his wife will not”; cf. JNG, 1, 3, §16.
[3. ] Genesis 20.
[4. ] This discussion of ignorance, the distinction between deeds committed by the ignorant and those committed out of ignorance, likewise the distinction between (inexcusable) ignorance of universals and (excusable) ignorance of particulars, rests on Aristotle, Nicomachean Ethics III, 1110b19–1111a21; cf. JNG, 1, 3, §10.
[5. ] Cf. Nicomachean Ethics III, 1113b30ff.
[1. ] Pufendorf’s distinction between volition that simply approves an end and intention or . . . choice that is the “effectual desire to obtain an end” follows Aristotle’s distinction of wish (βούλησις), which might relate to impossibles (Nicomachean Ethics III, 1111b20ff), from choice (προαίρησις) as the “deliberate desire of things in our own power”; cf. JNG, 1, 4, §1. Choice in particular qualifies an action as “voluntary . . . of which the moving principle is in the agent himself” (Nicomachean Ethics III, 1111a20ff). It also forms the background to Pufendorf’s discussion of liberty as a faculty of the will (see below §5, p. 309, and JNG, 1, 4, §2) that in the first place is understood as the faculty of choosing.
[2. ] For mixed action and the illustration of casting merchandise into the sea, as well as for the involuntary action (§4), the source is Nicomachean Ethics III, 1110a4ff; cf. JNG, 1, 4, §9.
[3. ] Deuteronomy 22:25–27.
[4. ] Cf. JNG, 1, 4, §4: “From what has been said it is clear that it belongs to the nature of the will always to seek what is generally good, and to avoid what is generally evil. For it implies a clear contradiction that you should not incline to what you see is agreeable to you, and should incline to what you feel is not agreeable. And so this general inclination of the will can admit no indifference, as though the will might seek good and evil by an appetite of simple approbation. But the will of individuals exerts the force of its indifference on particular goods and evils, as men incline to different things at particular times. . . . Hence, in almost any thing or action, aspects of good and evil, both real and apparent, present themselves and draw the mind this way and that way until finally the will by some intrinsic power determines on one side or the other. An action undertaken in this way is called spontaneous, according to Aristotle, Nicomachean Ethics, Bk. III, chap. xiii [III.iii]: ‘An action would appear to be voluntary, if the agent originates it with a knowledge of particular circumstances.’”
[5. ] See bk. II, Observ. 5, §18.
[6. ] See bk. II, Observ. 5, §19.
[7. ] See, for example, Dig., XLI.ii.12, §1.
[1. ] On the Stoic origin of the double foundation of natural sociability in the natural weakness [imbecillitas] of man and the telos of his reasonable nature, see JNG, 2, 3, §§14–15, with numerous references to Cicero, Seneca, and Marcus Aurelius.
[2. ] See Hobbes, De cive, chap. 1, §2, no. 1.
[3. ] Ibid.; cf. JNG, 7, 1, §2.
[4. ] Allusion to De cive, chap. 8, §1; cf. JNG, 2, 2, §7.
[5. ]De cive, chap. 1, §2 (at the end).
[6. ]De cive, chap. 1, §§3ff; Leviathan, chap. 13.
[7. ] Pufendorf does not yet see the methodological function of Hobbes’s natural state of war of everyone against everyone and its right to everything. It serves as a counterfactual supposition in contrast to the civil state, showing the necessity of the latter by a deduction ad absurdum of the former. See Thomas Hobbes, The Elements of Law Natural and Politic, ed. Ferdinand Tönnies, intro. M. M. Goldsmith (London: Cass, 1969), chap. 14, §§10ff: “But that right of all men to all things, is in effect no better than if no man had right to any thing. For there is little use and benefit of the right a man hath, when another as strong, or stronger than himself, hath right to the same. . . . The estate of hostility and war being such, as thereby nature itself is destroyed . . . he therefore that desireth to live in such an estate, as is the estate of liberty and right of all to all, contradicteth himself. For every man by natural necessity desireth his own good, to which this estate is contrary.” That methodological procedure is later adopted by Pufendorf himself in his mature work, the JNG,Eris, and the Dissertatio de statu hominum naturali, when he contrasts the fictitious “state of single individuals left alone by themselves” (in se) with the “state of culture,” and the (pure) “natural state of individuals in relation to one another” (ad alios) with the “civil state” in order to prove the necessity of the latter states for the survival and appropriate development of mankind. See JNG, 2, 2, §2 and 3, §15; Dissertatio de statu hominum naturali, in Dissertationes academicae selectiores (Uppsala, 1677), §§4 and 7; Eris, “Specimen controversiarum,” chap. iii “De statu hominum naturali,” §3 (pp. 134–35).
[1. ] Matthew 7:12, Luke 6:31.
[2. ] Cf. JNG, 2, 3, §19: “if these dictates of reason are to have the force of laws, it is necessary to presuppose the existence of God and His providence, whereby all things are governed, and primarily mankind.” Pufendorf follows the Hobbesian voluntarist conception of law as command of a superior and turns against the Grotian dictum, that natural law “would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him” (JBP, Prolegomena, p. 13). But he criticizes the Hobbesian qualification that those dictates of reason are laws “only as they are delivered by God in Holy Scriptures,” because for Pufendorf the promulgation by means of notional signs does not belong to the essence of the law (JNG, 2, 3, §20, with reference to De cive, chap. 3).
[3. ] Hobbes, De cive, chap. 1, §15.
[4. ] Pufendorf refers to De cive, chap. 1, §3. Here Hobbes grounds natural law on self-preservation alone because he assumes that individuals in the state of nature are equally vulnerable and consequently all subject to mutual fear. Pufendorf tries to show that the assumption of equal vulnerability does not hold under certain circumstances (as in some international relations). See also JNG, 3, 2, §2, where he accuses Hobbes of the methodological error opposing equality of physical vulnerability to inequality introduced by civil law.
[5. ] The example is from Carneades (Cicero, De re publica, ed. Konrat Ziegler [Leipzig: Teubner, 1969], 3, 20).
[6. ] Cf. JNG, 2, 6, §4, referring to Virgil, Aeneid, IX [722ff] and XI [883ff].
[7. ] Cf. JNG, 2, 6, §3, referring to Jonah 1:7ff.
[8. ] Allusion to Grotius, JBP, II.ii.6, according to which in cases of dire necessity things revert to original common ownership; cf. JNG, 2, 6, §6.
[9. ] On the Stoic background to Pufendorf’s doctrine of cultura animi [cultivation of the mind], see bk. I, Def. 11, note 2.
[10. ] On matrimony see bk. II, Observ. 5, §4.
[11. ] This is aimed against Hobbes, according to whom the mutual diffidence in the state of nature gives everyone the right to “master the persons of all men he can” in order to anticipate being mastered by them (Leviathan, chap. 13). For Pufendorf, as for Grotius, JBP, II.i.5, only an immediate and imminent danger justifies a defensive war (JNG, 8, 6, §5).
[12. ] Cf. Hobbes’s “first and fundamental law of nature” (Leviathan, chap. 14): “every man, ought to endeavour peace, as far as he has hope in obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war.” For Hobbes the first part of that law (and the resignation of the right to everything that it implies) obliges “in effect then only when there is security” (that is, in the civil state). For Pufendorf, on the contrary, a peaceful law-bound state grounded in the reciprocal exercise of offices constitutes the natural state, properly speaking, while war, characterized by a “faculty . . . of exercising force . . . without . . . limit,” forms an exceptional state even when civil authority is missing (see bk. I, Def. 3, §§5–6).
[13. ] This refers to Grotius, JBP, II.i.10: “For although death and a blow are not on the same level, yet the man who makes ready to injure me by the very act confers on me a right, a sort of actual and unlimited moral right against him, in so far as otherwise I cannot ward off the injury from myself.”
[14. ] Ibid., III.i.21–22.
[15. ] The Latin text (ut alter alteri, sumta cautione futuri temporis, praeteriti veniam, petenti & poenitenti concedat) almost literally agrees with Hobbes’s fifth precept of natural law (De cive, chap. 3, §10: oportere alterum alteri, sumtâ cautione futuri temporis, praeteriti veniam petenti & poenitenti, concedere).
[16. ] See bk. I, Def. 12, note 44.
[17. ] See Statu, §13: “Indeed, the equality we principally mean here consists not only of the fact that no one is entirely exempted from or more loosely bound than another by men’s equal obligation to observe the law of nature toward one another.” The idea of the universality of law presupposes the axiom of equality.
[18. ] See bk. I, Def. 5, §§15ff.
[19. ] This view of castigation as an “office of humanity” is derived from Luther’s conception of the secular office as a service toward your neighbor and an act of charity. See W.A., 1. dept., vol. 21, p. 307: “Und ist solch Straff ampt ein Werck der goettlichen und Christlichen Liebe, Denn solchs hat Gott auch Vater und Mutter stand auffgelegt, da doch die höheste Liebe gegen jre Kinder von Gott in die Natur gepflantzet ist.”
[20. ] See bk. I, Def. 13, §6.
[21. ] See bk. I, Def. 5, §15.
[22. ] For the broad sense of damnum [damage] as including any “injury which concerns a man’s body, reputation and virtue” (JNG, 3, 1, §3), likewise for the different kinds of damages listed in §30 and their corresponding obligations of restitution, the main source is Grotius, JBP, II.xvii; cf. JNG, 3, 1.
[23. ] The discussion of arbitration in the natural state in §§31ff largely paraphrases Hobbes, De cive, chap. 3, §§20, 23–24.
[24. ] The Latin text (Ne eum, qui fiducia humanitatis tuae prior tibi benefecerit, eam ob rem deterioris esse conditionis patiare: seu; Ut qui prior beneficium accepit, operam det, ne alterum dati poeniteat) agrees almost verbatim with Hobbes’s third precept of natural law (De cive, chap. 3, §8: Ne eum qui fiduciâ tui tibi prior benefecerit, eam ob rem, deteriore conditione esse patiaris, sive ne accipiat quisquam beneficium, nisi animo nitendi ne dantem dati meritò poeniteat).
[25. ] Cf. JNG, 4, 1, §1. For the connection of language and sociability, Pufendorf refers to Aristotle, Politics I.2; Pliny the Elder, Natural History, XI, chap. 51; and Quintilian, The Orator’s Education, II, chap. 16.
[26. ] The moral veracity implying a right (respectively an obligation) to information has to be distinguished from “logical” truth: “And so to logical truth, which is a conformity of words with facts, ethical truth, which we are now discussing, adds the intention and obligation of the speaker” (JNG, 4, 1, §8); cf. Grotius, JBP, III.i.11.
[27. ] The following discussion of different kinds of licit falsehoods is largely based on Grotius, JBP, III.i: “General rules from the law of nature regarding what is permissible in war; with a consideration of ruses and falsehood” (§§11 ff; cf. JNG, 4, 1, §§8–19).
[28. ] For Pufendorf the lack of any legal relation between enemies also implies a lack of any obligation to veracity. For Grotius, on the contrary, this holds true only when applied to falsehood in assertions but not to promises which confer a new and particular right even upon the enemy (JBP, III.i.18).
[29. ] Here all other editions of Pufendorf’s Elementa (Den Haag, 1660; Zwickau, 1668; Jena, 1669 and 1680) deviate from the Cambridge edition by containing an additional “non.” From the sense of the paragraph it is clear that the affirmative version must be mistaken, because Pufendorf has above defined “mendacium” as a false statement directed to someone who has the right to know the truth.
[30. ] The following rules of interpretation have been compiled from Grotius, JBP, II.xvi, “On Interpretation”; cf. the corresponding chapter in JNG, 5, 12.
[1. ] Cf. Hobbes, De cive, chap. 5, §3.
[2. ] Ibid., §6.
[3. ] On the contractual formation of the state, see bk. I, Def. 12, §27, and JNG, 7, 2, §§7–8, where a decree concerning the form of government is added as a third element. In contrast to the Hobbesian solution, which leaves the sovereign contractually unbound so that his continuing right to everything absorbs all right of the citizens, Pufendorf’s construction with its continuing contractual relation between sovereign and citizens preserves the latter’s legal capacity in the civil state and emphasizes that sovereign authority is limited by the end of civil society.
[4. ] Cf. JNG, 6, 1, §8, referring to Dig., I.xvi.4, §2; Tacitus, Annales, III chap. 33–34.
[5. ] Reference to Grotius, JBP, II.v.12.
[6. ] Ibid., §13. This argument originates from Moses Maimonides’ interpretation of Leviticus 18. See Moses Maimonides, The Guide of the Perplexed, ed. Shlomo Pines (Chicago: University of Chicago Press, 1991), vol. II, pt. III, chap. 49, pp. 606–7.
[7. ] Pufendorf’s knowledge of polygamy among non-European peoples came from travel books. Cf. the parallel passage in JNG (6, 1, §§16–17), where he refers to Christophe Richer, De rebus Turcarum ad Franciscum Gallorum regem christianiss. libros quinque (Paris, 1540), and to Girolamo Benzoni, La historia del Mondo Nuovo (Venice, 1565).
[8. ] Cf. Hobbes, De cive, chap. 9, §§1–6.
[9. ] See Ulpian in Dig., I.v.24: “The law of nature is that a child born out of lawful matrimony follows the mother.”
[10. ] Cf. JNG, 6, 1, §9, with references to the ancient historians Marcus Junianus Justinus, Diodorus Siculus, and Jordanis.
[11. ] Pufendorf follows Hobbes in legitimating slavery as a result of war by supposing a tacit pact implied in the act of placing confidence in the captive by granting him corporeal liberty; see De cive, chap. 8, §§3–4. Apart from war as an occasion for slavery, the parallel section of JNG (6, 1) also mentions differences of wealth leading to a permanent attachment of poor people to wealthy families. Pufendorf conceives the resulting relationship as “labour for life” based upon a contract of ”goods for work” (ibid., §4).
[12. ]Postliminium (postliminy), lit. ”return across the threshold,” denotes the right of the returning prisoner of war to regain all his former rights (Hans Kreller, “Postliminium,” in Paulys Real-Encyclopädie der classischen Altertumswissenschaften, XXII, pp. 863–73).
[13. ] On Pufendorf’s discussion of the ancient idea of the slave by nature, see bk. I, Def. 3, note 13.
[14. ] There is almost verbatim agreement with Hobbes, De cive, chap. 9, §10. Nevertheless, for Pufendorf the distinctive characteristic of the state does not consist in the greater number of people and the attendant defense capability, but in its special purpose, which differs from that of household and family and determines the extent of its respective authority (JNG, 6, 2, §10). Only civil authority possesses the right of life and death (ibid., §6; 8, 3, §1).
[15. ] Like Hobbes, Pufendorf sees the essential characteristic of sovereignty in the power of executing the law by inflicting punishment. Cf. the parallel passage in JNG (7, 4, §3) that is very close to De cive, chap. 6, §4. For Jean Bodin, on the contrary, legislative power forms the core of sovereign authority under which all its other rights are to be subsumed (Jean Bodin, Les six livres de la République [Paris, 1583; repr. Aalen: Scientia, 1961], I.10, pp. 221, 223).
[16. ] The “main theoretical precepts of nature” are the theoretical propositions of natural religion, that is, that God exists, is the founder of the universe, rules over the world and the human race, and has no attribute involving any imperfection (Off., 1, 4, §§2–5).
[17. ] Otherwise JNG, 7, 8, §5: “Nay, if flight be not possible, a man should be killed rather than kill, not so much on account of the person of the prince, as for the sake of the whole commonwealth, which is usually threatened with grave tumults under such circumstances.”
[18. ] Cf. JNG, 7, 6, “On the Characteristics of Supreme Sovereignty,” §§1ff. Supremacy, unaccountability, and indivisibility are the basic characteristics of the common early-modern concept of sovereignty. See Jean Bodin, République (bk. II, Observ. 5, note 15), I.8 (pp. 124, 131), I.10 (p. 221); cf. Hobbes, Leviathan, chap. 18, §§4–5, and Grotius, JBP, I.iii.7.
[19. ] “Nearest subject” [subjectum proximum] or “proper subject” [subjectum proprium] denotes the specific unit that holds sovereignty (that is, the monarch in a monarchy or popular assembly in a democracy) in contradistinction to the commonwealth as “common subject” [subjectum commune]. The distinction is taken from Grotius, JBP, I.iii.7.
[20. ]JBP, I.iii.18: “They are greatly mistaken, however, who think that a division of sovereignty occurs when kings desire that certain acts of theirs do not have the force of law unless these are approved by a senate or some other assembly. For acts which are annulled in this way must be understood as annulled by the exercise of sovereignty on the part of the king himself, who has taken this way to protect himself in order that a measure granted under false representations might not be considered a true act of his will.”
[21. ] According to Pufendorf, sovereign authority in a democracy is even less able to be circumscribed than in a monarchy or aristocracy: “Indeed, in democracies the distinction between absolute and circumscribed sovereignty is apparently not so clearly discoverable. For although in every democracy there must exist certain institutions established by custom, or sanctioned by written laws, . . . yet since that council in which is vested the supreme sovereignty is composed of the entire body of citizens, and so no one outside it secures any right from its decisions, nothing will prevent the same people being able to abrogate and modify them at any time” (JNG, 7, 6, §8).
[22. ] Pufendorf here turns against the doctrine of double majesty (maiestas realis and maiestas personalis) that had been influenced by the monarchomachs. That doctrine had been applied to the German Reichsstaatsrecht (imperial constitutional law) by a school of constitutional thinking established by the Dutch Calvinist Dominicus Arumeus, who taught in Jena from 1602 (see Friedrich Hermann Schubert, Die deutschen Reichstage in der Staatslehre der frühen Neuzeit (Göttingen: Vandenhoeck und Ruprecht, 1966) pp. 473ff). See Pufendorf’s criticism of that doctrine in JNG, 7, 6, §§4 and 6: “It is a better course to discuss the reasonings of those who delight to exalt above kings that real, as they imagine it, majesty of the people. They claim that all kings are created by the people, and that it is in accordance with nature for the creator to be superior to his creation. . . . Furthermore, he who constitutes a person is superior to him only when it always lies within his power to stipulate how long the other should hold the position in which he is placed. But sometimes at the first it is a matter of free choice, whom you may wish to set up, and yet, after the appointment has once been made, it becomes a matter of necessity to bear it.”
[23. ] Pufendorf, like all early modern theorists of sovereignty, excludes the question of legitimacy from the theory of forms of states that are to be distinguished from each other by their bearer of sovereignty (JNG, 7, 5, §1). Cf. Bodin, République (see bk. II, Observ. 5, note 15), II.1, pp. 252ff, and especially Hobbes, De cive, chap. 7, §2.
[24. ] Cf. Grotius, JBP, I.iv.11, who refers to the doctrine of resistance in William Barclay, De regno et regali potestate adversus Buchananum, Brutum, Boucherium et reliquos monarchomachos libri sex (Paris, 1600): “In the fourth place, says the same Barclay, the kingdom is forfeited if a king sets out with a truly hostile intent to destroy a whole people. This I grant, for the will to govern and the will to destroy cannot coexist in the same person. The king, then, who acknowledges that he is an enemy of the whole people, by that very fact renounces his kingdom.”
[25. ] Cf. Grotius, JBP, I.3.8.
[26. ] Having forfeited his title of sovereignty, such a prince returns to the status of a private citizen “against whom a man may use any defence he would against private citizens, in case they undertake to inflict grave injuries upon others” (JNG, 7, 8, §8). Cf. Grotius, JBP, I.iv.12.
[27. ] Judges 3:12ff; 11:1–33.