The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

chapter xiii

Of the Power of Life and Death

I.Twofold.The Civil Government, that is supreme in every State, has a Right over the Lives of its Subjects, either indirectly, when it exposes their Lives in Defence of the Publick; or directly, in the Punishment of Crimes.

II.Indirectly.For when the Force of Foreigners in an Invasion (which often happens) is to be repell’d by Force; or, That we cannot without the Use of Violence obtain our Rights of them; it is lawful for the Government, by its supreme Authority, to compel the Subjects to enter into its Service;L. N. N. l. 8. c. 2. not thereby purposely intending their Death, only their Lives are exposed to some Danger of it. On which Occasions, that they may be able to behave themselves with Skill and Bravery, it is fit they should be exercised and prepar’d for the Purpose. Now the Fear of Danger ought not to prevail with any Subject, to render himself uncapable of undergoing the Duties of a Soldier; much less ought it to tempt a Man that is actually in Arms, to desert the Station appointed him; who ought to fight it out to the last Drop of his Blood, unless he knows it to be the Will of his Commander, that he should rather preserve his Life than his Post; or if he be certain that the maintaining of such Post is not of so great Importance, as the Preservation of the Lives ingaged therein.

III.Directly. L. N. N. l. 8. c. 3. §1.The Government claims a Power to take away the Lives of Subjects directly, upon the Occasion of any heinous Crimes committed by them; * whereon it passes Judgment of Death by way of Punishment: As likewise the Goods and Chattels of Criminals are subject to the Censure of the Law. So that here some general Things concerning the Nature of Punishments, come to be discours’d.

IV.Of Punishments L. N. N. l. 8. c. 3. §4.Punishment is an Evil that is suffered, in Retaliation for another that is done. Or, A certain grievous Pain or Pressure, imposed upon a Person by Authority, in the Manner of Force, with Regard to an Offence that has been committed by him. For although the doing of some Things may oftentimes be commanded in the Place of a Punishment, yet it is upon this Consideration, that the Things to be done are troublesome and laborious to the Doer, who will therefore find his Sufferings in the Performance of such Action. A Punishment also signifies its being inflicted against the Wills of People: For it would not otherwise obtain its End; which is, to deter them from Crimes by the Sense of its Severity:63 An Effect it never would produce, if it were only such, as an Offender is willing and pleas’d to undergo. As for other Sufferings, which happen to be undergone in Wars and Engagements; or which one bears innocently, being wrongfully and injuriously done him; the Former not being inflicted by Authority, and the Other not referring to an antecedent Crime, they do neither of them import the proper Sense and Meaning of a Punishment.

V.Inflicted by the Government. L. N. N. l. 8. c. 3. §7.By our Natural Liberty, we enjoy the Privilege to have no other Superiour but G O D over us, * and only to be obnoxious64 to Punishments Divine. But since the Introduction of Government, it is allow’d to be a Branch of the Office of those in whose Hands the Government is intrusted, for the Good of all Communities; that upon the Representation of the unlawful Practices of Subjects before them, they should have Power effectually to coerce, [punish and restrain] the same, that People may live together in Safety.

VI.The Benefit of them.Neither does there seem to be any Thing of Inequality in this; that he who Evil does should Evil suffer. Yet in the Course of Human Punishments, we are not solely to regard the Quality of the Crime, but likewise to have an Eye upon the Benefit of the Punishment: By no means executing it on purpose to feed the Fancy of the Party injur’d, or to give him Pleasure in the Pains and Sufferings of his Adversary: Because such Kind of Pleasure is absolutely inhumane, as well as contrary to the Disposition of a good Fellow-Subject.

VII.The End of them. L. N. N. l. 8. c. 3. §8.The Genuine End of Punishments in a State, is, The Prevention of Wrongs and Injuries; which then have their Effect, when he who does the Injury is amended, or for the future incapacitated to do more, or others taking Example from his Sufferings are deterr’d from like Practices; or, to express it another way, That which a Government designs in the Matter of Punishments, is the Good, either of the Offender, or the Party offended, or generally of All its Subjects.

VIII.Upon the Offender. L. N. N. l. 8. c. 3. §9.First, We consider the Good of the Offender: In whose Mind the Smart of the Punishment serves to work an Alteration towards Amendment, and corrects the Desire of doing the same again. Divers Communities leave such Kind of Punishments as are qualified with this End, to be exercis’d by Masters over the Members of their own Families. But it never was thought good they should proceed so far as to Death, because, he that is dead is past Amendment.

IX.Upon the Party offended. L. N. N. l. 8 c. 3. §11.In the next Place, a Punishment intends the Good of the Party offended: securing him, that he suffer not the like Mischief for the future, either from the same or other Persons. He becomes secure from being again injured in like Manner by the same Person; first, By the Death of the Criminal; or, secondly, If he be allow’d Life, by depriving him of Power to hurt; as, by keeping him in Custody, taking his Arms, or other Instruments of Mischief, from him, securing him in some distant Place, and the like; or, thirdly, By obliging him to learn, at his own Peril, not to incur farther Guilt, or offend any more. But then to secure the Party offended from suffering the like Injury from other Hands, it is necessary that the Offender be punished in a most Open and Publick Manner, whereby the Criminal may become an Example to all others; and that his Punishment be accompanied with such Circumstances of Form and Pomp, as are apt to strike a Dread into as many as behold it.

XII.Nor minute Lapses.It would also be over severe in Laws, to punish the more minute Lapses which may daily happen in the Actions of Men; when, in the Condition of our Natures, the greatest Attention cannot prevent them.

XIII.And other Actions. L. N. N. l. 8. c. 3. §14.There are many Instances of Actions more, of which the Publick Laws dissemble the taking of any Notice, for the sake of the Publick Peace. As sometimes, because a good Act shines with greater Glory, if it seems not to have been undertaken upon Fear of human Punishment; or, perhaps, it is not altogether worth the troubling of Judges and Courts about it; or, it is a Matter extraordinarily difficult to be decided; or it may be some old inveterate Evil, which cannot be removed, without causing a Convulsion in the State.

XIV.Nor the Vices of the Mind.In fine, it is absolutely necessary, That all those Disorders of the Mind should be exempted from Punishment, that are the Effects of the common Corruption of Mankind; such as Ambition, Avarice, Rudeness, Ingratitude, Hypocrisy, Envy, Pride, Anger, private Grudges, and the like. All these of Necessity, must be exempted from the Cognizance of Human Judicatures, so long as they break not out into publick Enormities; seeing they abound to that Degree, that if you should severely pursue them with Punishments, there would be no People left to be the Subjects of Government.

XV.Of Pardon. L. N. N. l. 8. c. 3. §15.Farther, When there have been Crimes committed, which are punishable by the Civil Judicature, it is not always necessary to execute the Sentence of Justice upon them. For in some Cases a Pardon may possibly be extended to Criminals, with a great deal of Reason, (as it never ought to be granted without it;) and amongst other Reasons, these especially may be some: That the Ends, which are intended by Punishments, seem not so necessary to be attended to in the Case in Question: Where a Pardon may produce more Good than the Punishment, and the said Ends be more conveniently obtain’d another way: That the Prisoner can allege those excellent Merits of his own or of his Family towards the Common-wealth, which deserve a singular Reward: That he is famous for some remarkable rare Art or other; or, it is hoped, will wash away the Stain of his Crime by performing some Noble Exploit: That Ignorance had a great Share in the Case, tho’ not altogether such as to render the Criminal blameless: Or, That a particular Reason of the Law ceases in a Fact of the same Nature with his. For these Reasons, and oftentimes for the Number of the Offenders, being very great, Pardons must be granted, rather than the Community shall be exhausted by Punishments.

XVI.The greatness of a Crime L. N. N. l. 8. c. 3. §18.To take an Estimate of the Greatness of any Crime, there is to be consider’d, first, The Object against which it is commited; how Noble and Precious that is: Then, The Effects; what Damage, more or less it has done to the Common-wealth: And next, The Pravity of the Author’s Intention, which is to be collected by several Signs and Circumstances: As, Whether he might not easily have resisted the Occasions that did tempt him to it? and besides the common Reason, Whether there was not a peculiar one for his Forbearance? What Circumstances aggravate the Fact? or, Is he not of a Soul dispos’d to resist the Allurements of a Temptation? Inquiring yet farther, Whether he was not the Principal in the Commission? or, Was he seduced by the Example of others? Did he commit it once, or oftner, or after Admonition spent in vain upon him?

XVII.Measure and Kind of Punishment. L. N. N. l. 8 c. 3. §24.But for the precise Kind and Measure of Punishment, that is fit to be pronounced upon each Crime, it belongs to the Authority of the Government to determine it, with an intire Regard to the Good of the Common-wealth. Whence the same Punishment may, and oftentimes is, impos’d upon two unequal Crimes; understanding the Equality that is commanded to be regarded by Judges, to mean the particular Case of those Criminals, who being guilty of the same Kind of Fact, the one shall not be acquitted, and the other condemned without very sufficient Reason. And although Men ought to shew to one another all the Mercy and Tenderness that may be; yet the Good of the Nation,66 and the Security of its Subjects, require, upon Occasion, when either a Fact appears most pernicious to the Publick, or there is need of a sharp Medicine to obviate the growing Vices of the Age, that the Government should aggravate its Punishments: which deserve at all times to be carried high enough, to be sufficient to controll the Propensity of Men towards the Sins against which those Punishments are levell’d. And let the Government observe, That no greater Punishments be inflicted, than the Law assigns, unless the Fact be aggravated by very heinous Circumstances.

XVIII.The Person of the Offender. L. N. N. l. 8. c. 3. §25.Moreover, Since the same Punishment, not affecting all Persons alike, meets with various Returns to the Design thereof, of restraining in them the Itch of Evil-doing, according to the Disposition of every one that incounters it; therefore both in the Designation of Punishments in general, and in the Application of them to Particulars, it is proper to consider the Person of the Offender, in Conjunction with as many Qualities as concur to augment or diminish the Sense of Punishment; as, Age, Sex, Condition, Riches, Strength, and the like.

XIX.Effects of one Man’s Crime upon another. L. N. N. l. 8. c. 3. §33.Not but that it frequently happens,67 that the Crime of one shall occasion the Inconvenience of many others, even to the Intercepting of a future Blessing from them that they justly expected to receive. So when an Estate is confiscated for a Crime done by the Parents, the innocent Children are plunged into Beggary. And when a Prisoner upon Bail makes his Escape, the Bail is forced to answer the Condition of the Bond, not as a Delinquent, but because it was his voluntary Act to oblige himself to stand to such an Event.

XX.Crimes done by Communities. L. N. N. l. 8. c. 3. §28.From whence it follows, That as no Man in a Court of Civil Judicature, can properly be punish’d for another’s Crime; so in the Commission of a Crime by a Community,68 whoever does not consent to it, shall not be condemn’d for it; nor suffer the Loss of any Thing he does not hold in the Name and Service of the Community, farther than it is usual on these Occasions for the Innocent to feel the Smart of the Common Misfortune. When all those are dead, who did consent or assist towards the said Crime; then the Guilt thereof expires, and the Community returns to its pristine Innocency.

[*] Grotius de Jure Belli & Pacis, l. 2. c. 20, & 21.

[63.]Pufendorf advances a secular conception of punishment in which severity is tied to the state’s interest in social peace and hence to the deterrent effect of the punishment, rather than to the notion of exacting retribution for a breach of the moral order. This modern conception of punishment makes sense only in a desacralized political order where security has replaced religious morality as the objective of law and government.

[*] The Author here reasons on a false Hypothesis. He pretends, as is plain from what is here laid down, That no one can inflict any Punishment on another, unless he be his Superiour. Now in the State of Nature all are equal; and then all Natural Laws would be useless and insignificant, if a Power, in such Case, were no where lodged to punish those who violate them, either with Respect to any private Person, or to Mankind in general; the Preservation of which is the End of these Laws, to the Observation of which all Men stand under a common Obligation. In this independent State, every one has a Right to put these Laws in Execution, and to punish the Person who violates them. See L. N. N. Lib. 8. Chap. 3. §4. [In this note (V.1, p. 325) Barbeyrac rejects Pufendorf’s treatment of punishment as a right belonging solely to the civil state and its sovereign; for this is a further sign of Pufendorf’s tendency to collapse natural law into positive civil law. Conversely, by arguing that men possess the natural right to punish each other for breaches of the natural law in the state of nature, Barbeyrac maintains the theological view of punishment as retribution for breaches of the moral order—a view that permits individuals to punish a “tyrannical” sovereign.]

[64.]Liable or subject to.

[66.]Originally: “the safety of the state” (salus civitatis).

[67.]Following Barbeyrac, the editors have reversed the order of Pufendorf’s final two sections.

[68.]Tooke’s all-purpose use of community is again potentially misleading. Here Pufendorf is concerned not with the political community or state (civitas) but with the private corporation (universitas) and the degree of liability of its members.