On the Power of Life and Death
1. Power over the lives of the citizens belongs to the supreme civil
authority in two ways, indirectly and directly. The former is for the defense
of the state, the latter to check crimes.
2. For, since the violence of foreigners must often be repelled by violence,
or our rights must be obtained from them by force, the supreme authority
certainly may compel its citizens to carry this out, in which case there is no
intention that the citizens shall lose their lives, but they are merely exposed
to the danger of death. And that in such dangers the citizens may be able to
conduct themselves with energy and skill, the supreme authority is bound to
train and prepare them. Moreover, no citizen may render himself incapable of
military service, from fear of that danger. And the enrolled soldier will by no
means desert his assigned post out of fear, but rather will fight to the last
breath; unless he knows it to be the will of the ruler, that he preserve his
life, rather than the position; or else, in case the place is not worth so much
to the state as the lives of those citizens.
3. On the other hand, the supreme authority can take the lives of citizens
directly on account of flagrant crimes, and as a punishment, which, however,
falls upon the man's other possessions also. And at this point we must make
some general explanations of the nature of punishment.
4. Punishment then is an evil that one suffers, inflicted for an evil that
one has caused; in other words, a vexatious evil imposed upon a man by
authority and forcibly, in view of a previous offense. For although certain
acts may often be imposed upon a man as a punishment, the point, however, is
that they are laborious and vexatious to the doer, and that, while he is
acting, a certain suffering is thereby imposed upon him. Moreover, punishment
must be inflicted upon unwilling subjects, because otherwise it would not
accomplish its purpose, which is to deter men from wrongdoing by its severity.
And this effect does not belong to the things that one willingly accepts.
Finally the character of a punishment does not attach to evils which come to
one in war or battle, while resisting, since they are not ordered by authority;
nor to those which a man suffers unjustly, since they do not come to one in
view of a previous offense.
5. But although natural liberty has this effect, that one who is in that
state and has no superior but God, is liable to the divine punishments only,
with the introduction of authority among men, the safety of communities has
assigned to rulers this further power, that they themselves restrain the
wickedness of their subjects by executing punishment, so that the larger number
may be able to live in mutual security.
6. Again, although there appears to be no injustice in letting the evil-doer
suffer evil, nevertheless in human punishments we have not merely to consider
what evil has been committed, but also what advantage can be derived from the
punishment. Thus also punishments are by no means to be inflicted, with the
intent to let the injured party gloat, and take pleasure in the pain and
punishment of him who did the injury. For this pleasure is dearly inhuman and
contrary to sociability.
7. The real purpose of human punishments is the prevention of wrongs and
injuries; and this is achieved, either if the wrongdoer is reformed, or others
by his example, so that they do not desire to do wrong in the future, or else
if the wrong-doer is so restrained that he cannot henceforth injure anyone.
Which can also be stated in these terms: in punishment regard is had to the
interest either of the wrong-doer, or of him who would have gained, if the
wrong had not been done, and who has thus been injured by the wrong deed; or
for the interest of all without distinction.
8. In the first place, then, in inflicting punishment regard is had to the
interest of the wrong-doer, when his spirit is reformed by the pain of
punishment, and the desire to do wrong quenched by the same means. This kind of
punishment is in many states left to heads of households, to exercise over
their domestics. But one is evidently not permitted to go so far as a
death-penalty, for that one object, since the dead man cannot be reformed.
9. And then there is involved in punishment the interest of the injured
party, that for the future he may suffer nothing similar from the same man or
others. The former object is attained if the wrong-doer is destroyed, or else,
if, without prejudice to his life, the power to injure is taken from him; or if
by his punishment he learns not to offend. The latter object may be attained by
open and public punishment, with ceremony suited to inspire terror in others.
10. Finally, in punishment the interest of all is sought, when the aim,
namely, is to prevent the man who has injured one, from going on to injure
others, or that, frightened by his example, the rest may abstain from similar
crimes. And this is attained in the same way as above.
11. If, then, we proceed to consider both the ends of punishment and the
condition of the human race, it is evident that not all sins are of such a
character that it is at all proper for them to be punished in a human court.
Hence we exempt from human punishment acts that are merely inward, that is, the
pleasurable thought of some sin, greed, desire, intention without effect, even
if they should come to the knowledge of others by a subsequent confession. For,
as harm comes to no one from such an inward motion, it is not to the advantage
of anyone either, that a man be punished for the same.
12. It would also be excessively harsh to subject to human punishments those
very small lapses which, in the present state of human nature, it is not given
us to escape, no matter how great the attention one endeavors to bestow upon
13. Moreover, many acts are unnoticed by human laws, on account of the peace
of the state, or for other reasons; for example, in case a good act will be
more conspicuous, if it does not seem to have been undertaken with any regard
to a penalty; or where it is not worth while to trouble the judges, or if the
question is most difficult to decide, or a really inveterate evil cannot be
removed without a convulsion in the state.
14. Finally, it is necessary to exempt also from human punishment the vices
of mind, resulting from the common corruption of mankind, and so numerous that
there would be no subjects left, if you should wish to punish those faults with
severe penalties, so long as they have not broken out in wicked acts; for
example, there are ambition, avarice, inhumanity, ingratitude, hypocrisy, envy,
arrogance, anger, animosity and the like.
15. However, if some offenses worthy of human punishment have been
committed, it is not always necessary for a punishment to be exacted. It
sometimes happens, in fact, that pardon for their offense can properly be given
to the culprits. This, however, should not be done without serious reasons.
Among such are these: if the ends of punishment in a certain case do not seem
necessary, or if pardon is likely to produce a greater advantage than is
punishment, or if the ends of punishment can be better attained in some other
way. Also, in case the guilty party alleges, as worthy of special reward, his
own great services to the state, or those of his relatives; or if he is
recommended by some other distinction, as. for instance, by a rare art; or if
it is hoped that the offense will be wiped out by noble deeds; especially where
ignorance in some form, though not altogether without blame, has been involved,
or if the particular reason for the law has ceased to apply to the act in
question. Often, too, pardon must be granted on account of the number of the
guilty, that the state may not be depopulated by punishments.
16. But the seriousness of offenses is estimated from the object upon which
it was committed, according as that is accounted noble and valuable; also from
the effect, according as a great loss or a small one results for the state; and
finally from the wickedness of the intent, which is gathered from various
indications; for example, if the man could easily have resisted the reasons by
which he was impelled to sin; or if, in addition to the general, there was also
some particular, reason which should have deterred him from wrongdoing; or
where peculiar circumstances aggravate the deed; or if a man has a disposition
capable of resisting the wiles of wicked men. Moreover, we usually consider
whether a man was the first to do wrong, or seduced by the example of others,
whether once, or oftener, and after advice has been spent in vain.
17. The kind of punishment, however, and the precise amount to be inflicted
for each offense, it rests with the supreme civil authority to define. And it
should in this matter have only the advantage of the state before its eyes.
Hence it is possible and a frequent occurrence for the same penalty to be
imposed for two unequal offenses. For the equality which judges are instructed
to observe with regard to defendants, is understood to concern defendants who
have committed the same kind of offense, in so far as an offense punished in
the one case ought not, without the weightiest reason, to be condoned in the
other. But although man ought, so far as possible, to be more merciful toward
man, sometimes, however, the welfare of the state and security of the citizens
require that penalties be aggravated; for example, if there is need of a more
heroic remedy against increasing vices; or when an offense is most destructive
to the state. But in general, with regard to the scale of penalties, care must
be taken that they be sufficient to repress that desire by which men are
carried into the crime for which the penalties are established. Also severer
penalties must not be exacted than have been defined by law, unless very
extreme circumstances aggravate the deed.
18. But the same penalty does not affect all equally, and thus does not
produce the same effect upon all in repressing the desire to do wrong.
Therefore, both in the general assignment of penalties, and in the application
of them to individuals, regard must be had to the person of the delinquent
himself, and those qualities of his which may increase or dimmish his sense of
punishment; for example, age, sex, rank, wealth, strength, and the like.
19. Again, just as no one can have a penalty properly so-called visited upon
him in a human court for another man's offense, so, in case wrong has been done
by some society, he who did not consent thereto will not be bound thereby. And
hence from such dissenter nothing can be taken away which he did not acquire on
account and by virtue of the society. Yet in general when a society is
punished, even the innocent usually suffer loss. Moreover, the offenses of
societies expire when no one survives any longer of those by whose consent and
cooperation the misdeed was committed.
20. It happens frequently, however, that the crime of one man furnishes an
occasion whereby a disadvantage comes to others, or a benefit previously hoped
for is intercepted. Thus, in case the property of parents is confiscated on
account of a crime, even innocent children are reduced to poverty. And when the
defendant flees, his security is compelled to pay the fine, not because of
guilt, but because he voluntarily pledged himself in such a contingency.
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