Front Page Titles (by Subject) OBSERVATION V: 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. - Two Books of the Elements of Universal Jurisprudence
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
OBSERVATION V: 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. - 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).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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.
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
This book is set in Adobe Garamond, a modern adaptation by Robert Slimbach of the typeface originally cut around 1540 by the French typographer and printer Claude Garamond. The Garamond face, with its small lowercase height and restrained contrast between thick and thin strokes, is a classic “old-style” face and has long been one of the most influential and widely used typefaces.
Printed on paper that is acid-free and meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials, z39.48-1992. (archival)
Book design by Louise OFarrell
Typography by Apex CoVantage
Printed and bound by Worzalla Publishing Company
Stevens Point, Wisconsin
[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.
[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.