The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Application of those principles to different species of actions, in order to judge in what manner they ought to be imputed.
I. WE might be satisfied with the general principles above laid down, were it not useful to make an application of them, and to point out particularly those actions or events, for which we are, or are not answerable.
1. And in the first place it follows, from what has been hitherto said, that we may impute to a person every action or omission, of which he is the author or cause, and which he could or ought to have done or omitted.
2. The actions of those, who have not the use of reason, such as infants, fools, and madmen, ought not to be imputed to them. The want of knowledge hinders, in such cases, imputation. For these persons being incapable of knowing what they are doing, or of comparing it with the laws; their actions are not properly human actions, nor do they include any morality. If we scold or beat a child, it is not by way of punishment; it is only a simple correction, by which we propose principally to hinder him from contracting a bad habit.
3. With regard to what is done in drunkenness, this state, voluntarily contracted, does not hinder the imputation of a bad action.
II. 4. We do not impute things, that are really above a person’s strength; no more than the omission of a thing commanded, if there has been no opportunity of doing it. For the imputation of an omission manifestly supposes these two things; first that a person has had sufficient strength and means to act; and secondly that he could have made use of those means, without prejudice to any other more indispensable duty, or without drawing upon himself a considerable evil, to which there was no obligation of being exposed. It must be understood however, that the person has not brought himself into an incapacity of acting through his own fault; for then the legislator might as lawfully punish those, who have reduced themselves to this incapacity, as if they had refused to act, when they were capable of complying. Such was at Rome the case of those, who cut off their thumbs, in order to disable themselves from handling arms, and be exempted from the service. In like manner a debtor is not excusable, when, through his own misconduct, he has rendered himself unable to discharge his debts. And we even become deservedly responsible for a thing in itself impossible, if we have undertaken to do it when we knew, or might easily have known, that it surpassed our strength; in case any body happens by this means to be injured.
III. 5. The natural qualities of body or mind cannot of themselves be imputed, either as good or evil. But a person is deserving of praise when, by his application and care, these qualities are perfected, or these defects are mended; and, on the contrary, one is justly accountable for the imperfections and infirmities, that arise from bad conduct or neglect.
6. The effects of external causes and events, of what kind soever, cannot be attributed to a person either as good or evil, but inasmuch as he could and ought to procure, hinder, or direct them; and as he has been either careful or negligent in this respect. Thus we charge a good or bad harvest to a husbandman’s account, according as he has tilled well or ill the ground, whose culture was committed to his care.
IV. 7. As for things done through error or ignorance, we may affirm in general, that a person is not answerable for what he has done through invincible ignorance, especially as it is involuntary in its origin and cause. If a prince travels through his own dominions disguised and incognito, his subjects are not to blame for not paying him the respect and honor due to him. But we should reasonably impute an unjust sentence to a judge, who, neglecting to instruct himself either in the fact or the law, should happen to want the knowledge necessary to decide with equity. But the possibility of getting instruction, and the care we ought to take for this purpose, are not strictly considered in the common run of life; we only look upon what is possible or impossible in a moral sense, and with a due regard to the actual state of humanity.
Ignorance or error in point of laws and duties generally passes for voluntary, and docs not obstruct the imputation of actions or omissions thence arising. This is a consequence of the principles,1 already established. But there may happen some particular cases, wherein the nature of the thing, which of itself is difficult to investigate, joined to the character and state of the person, whose faculties, being naturally limited, have likewise been uncultivated for want of education and assistance, renders the error unsurmountable, and consequently worthy of excuse. It concerns the prudence of the legislator to weigh these circumstances; and to modify the imputation on this footing.
V. 8. Though temperament, habits, and passions, have of themselves a great force to determine some actions; yet this force is not such, as absolutely hinders the use of reason and liberty, at least in respect to the execution of the bad designs they inspire. That is what all legislators suppose; and a very good reason they have to suppose it.2 Natural dispositions, habits, and passions, do not determine men invincibly to violate the laws of nature. These disorders of the soul are not incurable; with some pains and assiduity one may contrive to remove them, according to Cicero’s observation, who alledges to this purpose the example of Socrates3.
But if, instead of endeavouring to correct those vicious dispositions, we strengthen them by habit, this does not render us inexcusable. The power of habit is indeed very great; it even seems to impel us by a kind of necessity. And yet experience shows it is not impossible to master it, when we are seriously resolved to make the attempt. And were it even true, that inveterate habits had a greater command over us than reason; yet, as it was in our power not to contract them, they do not at all diminish the immorality of bad actions, and consequently they cannot hinder them from being imputed. On the contrary, as a virtuous habit renders actions more commendable; so the habit of vice cannot but augment its blame and demerit. In short, if inclinations, passions, or habits, could frustrate the effect of laws, it would be needless to trouble our heads about any direction of human actions; for the principal object of laws in general is to correct bad inclinations, to prevent vicious habits, to hinder their effects, and to eradicate the passions; or at least to contain them within their proper limits.
VI. 9. The different cases, hitherto exposed, contain nothing very difficult or puzzling. There are some others a little more embarrassing, which require a particular discussion.
The first question is, what we are to think of forced actions; whether they are of an imputable nature, and ought actually to be imputed?
I answer, 1. That a physical violence, and such as absolutely cannot be resisted, produces an involuntary action, which, so far from meriting to be actually imputed, is not even of an imputable nature.4 In this case the author of the violence is the true and only cause of the action, and as such is the only person answerable for it; whilst the immediate agent being merely passive, the fact can be no more attributed to him, than to the sword, to the stick, or to any other weapon, with which the blow or wound was given.
2. But if the constraint arises from the apprehension or fear of some great evil, with which we are menaced by a person more powerful than ourselves, and who is able instantly to inflict it; it must be allowed, that the action, done in consequence of this fear, does not cease to be voluntary, and therefore, generally speaking, is of an imputable nature.5
In order to know afterwards whether it ought actually to be imputed, it is necessary to inquire, whether the person, on whom the constraint is laid, is under a rigorous obligation of doing or abstaining from a thing, at the hazard of suffering the evil, with which he is menaced. If so, and he determines contrary to his duty, the constraint is not a sufficient reason to screen him absolutely from imputation. For, generally speaking, it cannot be questioned but a lawful superior can lay us under an indispensable obligation of obeying his orders, at the hazard of bodily pain, and even at the risk of our lives.
VII. Pursuant to these principles, we must distinguish between indifferent actions, and those that are morally necessary.
An action indifferent in its nature, extorted by main force, cannot be imputed to the person constrained; because, not being under any obligation in this respect, the author of the violence has no right to require any thing of him. And, as the law of nature expressly forbids all manner of violence, it cannot authorise it at the same time, by laying the person, who suffers the violence, under a necessity of executing a thing, to which he has given only a forced consent. Thus every forced promise or convention is null of itself, and has nothing in it obligatory, as a promise or convention; on the contrary it may and ought to be imputed as a crime to the author of the violence. But were we to suppose that the person, who uses the constraint, exercises in this respect his own right, and pursues the execution thereof; the action, though forced, is still valid and attended with all its moral effects. Thus a debtor, who, void of any principle of honesty, satisfies his creditor only through imminent fear of imprisonment, or of execution on his goods, cannot complain against his payment, as made by constraint and violence. For being under an obligation of paying his just debts, he ought to have done it willingly and of his own accord, instead of being obliged to it by force.
As for good actions, to which a person is determined by force, and, as it were, through fear of blows or punishment, they pass for nothing, and merit neither praise nor recompense. The reason hereof is obvious. The obedience, required by the law, ought to be sincere; and we should discharge our duties through a conscientious principle, voluntarily, and with our own consent and free will.
Finally, with regard to actions manifestly bad or criminal, to which a person is forced through fear of some great evil, and especially death; we must lay down as a general rule, that the unhappy circumstances, under which a person labours, may indeed diminish the crime of a man unequal to this trial, who commits a bad action in spite of himself, and against his own inward conviction, yet the action remains intrinsically vicious, and worthy of censure; wherefore it may be, and actually is imputed, unless the exception of necessity can be alledged in the person’s favor.
VIII. This last rule is a consequence of the principles, hitherto established. A man, who determines through fear of some great evil, but without suffering any physical violence, to do a thing visibly criminal, concurs in some manner to the action, and acts voluntarily, though with regret. It does not absolutely surpass the fortitude of the human mind to resolve to suffer, nay to the, rather than be wanting in our duty. We see a great many people, who have a courage of this kind for very frivolous subjects, which makes a lively impression on them; and though the thing be really difficult, yet it is not impossible. The legislator may therefore, impose a rigorous obligation of obeying, and have just reasons for so doing. The interest of society frequently requires examples of undaunted constancy. It was never a question among civilized nations, and those, that had imbibed any principles of morality, whether for example it was lawful to betray one’s country for the preservation of life? And it is well known, that the opposite maxim was a received principle among the Greeks and Romans, Several heathen moralists have strongly inculcated this doctrine, namely, that the dread of pains and torments ought not to prevail upon any man to make him do things contrary to religion or justice. If you are summoned as a witness, says a Latin poet, in a dubious and equivocal affair, tell the truth, and do not be afraid; tell it, were even Phalaris to menace you with his bull unless you bore false witness. Fix it as a maxim in your mind, that it is the greatest of evils to prefer life to honour: and never attempt to preserve it at the expence of the only thing, that can render it desirable.
………….Ambiguæ sit quando citabere testis
JUVEN. sat. viii. ver. 80.
And if a witness in a doubtful cause,
Such is the rule. It may happen nevertheless, as we have already hinted, that the necessity a person is under may furnish a favorable exception, so as to hinder the action from being imputed. To explain this, we should be obliged to enter into some particulars, that belong to another place. It is sufficient here to observe, that the circumstances a person is under give us frequent room to form a reasonable presumption, that the legislator himself excuses him from suffering the evil, with which he Is menaced, and therefore allows him to deviate from the decision of the law; and this may be always presumed, when the side a person takes, in order to extricate himself from his perplexity, includes a less evil than that, with which he is menaced.
IX. But Pufendorf’s principles concerning this question seem to be neither just in themselves, nor well connected. He lays down as a rule, that constraint, as well as physical and actual violence, excludes all imputation, and that an action, extorted through fear, ought no more to be imputed to the immediate agent, than to the sword, which a person uses in giving a wound. To which he adds, that with regard to some very infamous actions, it is a mark of a generous mind to choose rather to die, than to serve as an instrument to such flagitious deeds, and that cases like these ought to be excepted.6 But it has been justly observed, that this author gives too great an extent to the effect of constraint; and that the example of the ax or sword, which are mere passive instruments, proves nothing at all. Besides if the general principle is solid, we do not see why he should have excepted particular cases; or at least he ought to have given us some rule to distinguish those exceptions with certainty.
X. 10. But if the person, who does a bad action through fear, is generally answerable for it, the author of the constraint is not less so; and we may justly render him accountable for the share he has had therein.
This gives an opportunity to add a few reflections on those cases, in which several persons concur to the same action; and to establish some principles, whereby we may determine in what manner the action of one person is imputable to another. This subject, being of great use and importance, deserve to be treated with exactness.
1. Every man, strictly speaking, is answerable only for his own actions, that is for what he himself has done or omitted;
for with regard to another person’s actions, they cannot be imputed to us, but inasmuch as we have concurred to them, and as we could and ought to have procured, hindered, or at least directed them after a certain manner. The thing speaks for itself. For to impute another man’s actions to a person is declaring, that the latter is the efficient, though not the only cause thereof; and consequently that this action depended in some measure on his will, either in its principle, or execution.
2. This being premised, we may affirm that every man is under a general obligation of doing all he can to induce every other person to discharge his duty, and to prevent him from committing a bad action, and consequently not to contribute thereto himself cither directly or indirectly, with a premeditated purpose and will.
3. By a much stronger reason we are answerable for the actions of those, over whom we have a particular inspection, and whose direction is committed to our care; wherefore the good or evil done by those persons, is not only imputable to themselves, but likewise to those, to whose direction they are subject; according as the latter have taken or neglected the care, that was morally necessary; such as the nature and extent of their commission and power required. It is on this footing we impute, for example, to the father of a family, the good or bad conduct of his children.
4. Let us observe likewise, that, in order to be reasonably esteemed to have concurred to another man’s action, it is not at all necessary for us to be sure of procuring or hindering it, by doing or omitting particular things; it is sufficient, in this respect, that we have some probability, or verisimilitude. And as, on the one side, this default of certainty does not excuse neglect; on the other if we have done all, that we ought, the want of success cannot be imputed to us; the blame in that case falls entirely upon the immediate author of the action.
5. In fine, it is proper also to remark, that, in the question now before us, we are not enquiring into the degree of virtue or malice, which is found in the action itself, and, rendering it better or worse, augments its praise or censure, its recompense or punishment. All that we want, is to make a proper estimate of the degree of influence a person has had over another man’s action, in order to know, whether he can be considered as the moral cause thereof, and whether this cause is more or less efficacious, To distinguish this properly is a matter of some importance.
[Three sorts of moral causes; principal, subaltern, and collateral.]
XI. In order to measure as it were this degree of influence, which decides the manner, wherein we can impute to any one another man’s action, there are several circumstances and distinctions to be observed, without which wo should form a wrong judgment of things. For example, it is certain that a simple approbation, generally speaking, has much less efficacy to induce a person to act, than a strong persuasion, or a particular instigation. And yet the high opinion we conceive of a person, and the credit thence arising, may occasion a simple approbation to have sometimes as great, and perhaps a greater influence over a man’s action, than the most pressing persuasion, or the strongest instigation from another quarter.
We may range under three different classes the moral causes, that influence another man’s action. Sometimes it is a principle cause, insomuch that the person, who executes, is only a subaltern agent; sometimes the immediate agent, on the contrary, is the principal cause, while the other is only the subaltern; and at other times they are both collateral causes, which have an equal influence over the action.
XII. A person ought to be esteemed the principal cause, who, by doing or omitting some things, influences in such a manner another man’s action or omission, that, were it not for him, this action or omission, would not have happened, though the immediate agent has knowingly contributed to it. An officer, by express order of his general or prince, performs an action evidently bad. In this case the prince or general is the principal cause, and the officer only the subaltern. David was the principal cause of the death Uriah, though Joab contributed thereto, being sufficiently apprized of the king’s intention. In like manner Jezebel was the principal cause of the death of Naboth.7
I mentioned that the immediate agent must have contributed knowingly to the action. For, suppose he could not know whether the action be good or bad, he can then be considered only as a simple instrument; but the person, who gave the orders, being in that case the only and absolute cause of the action, is the only one answerable for it. Such in general is the case of subjects, who serve by order of their sovereign in an unjust war.
But the reason why a superior is deemed the principal cause of what is done by those, who depend on him, is not properly their dependance; it is the order, he gives them, without which it is supposed they would not of themselves have attempted the action. From this it follows, that every other person, who has the same influence over the actions of his equals, or even of his superiors, may for the same reason be considered, as the principal cause. This is what we may very well apply to the counsellors of princes, or to ecclesiastics who have an ascendency over their minds, and who make a wrong use of it sometimes, in order to persuade them to things, which they would never have determined to do of themselves. In this case, praise or blame fans principally on the author of the suggestion or counsel.8
XIII. A collateral cause is he, who, in doing or omitting certain things, concurs sufficiently, and as much as in him lies, to another man’s action; insomuch that he is supposed to cooperate with him; though one cannot absolutely presume, that without his concurrence the action would not have been committed. Such are those, who furnish succors to the immediate agent; or those, who shelter and protect him; for example, he, who, while another breaks open the door, watches all the avenues of the house, in order to favor the robbery, etc. A conspiracy among several people renders them generally all guilty alike. They are all supposed equal and collateral causes, as being associated for the same fact, and united in interest and will. And though each of them has not an equal part in the execution, yet their actions may be very well charged to one another’s account.
XIV. Finally a subaltern cause is he, who has but a small influence or share in another man’s action, and is only a slight occasion thereof by facilitating its execution; insomuch that the agent, already absolutely determined to act, and having all the necessary means for so doing, is only encouraged to execute his resolution; as when a person tells him the manner of going about it, the favorable moment, the means of escaping, etc. or when he commends his design, and animates him to pursue it.
May not we rank in the same class the action of a judge, who, instead of opposing an opinion supported by a generality of votes, but by himself adjudged erroneous, should acquiesce therein, either through fear or complaisance? Bad example must be also ranked among the subaltern causes. For generally speaking, examples of this nature make impressions only on who are otherwise inclined to evil, or subject to be easily led astray; insomuch that those, who set such examples, contribute but very weakly to the evil, committed by imitation. And yet there are some examples so very efficacious, by reason of the character of the persons, who set them, and the disposition of those, who follow them, that, if the former had refrained from evil, the latter would never have thought of committing it. Such are the bad examples of superiors, or of men, who by their knowledge and reputation have a great ascendency over others; these are particularly culpable of the evil, which ensues from the imitation of their actions. We may reason in the same manner with respect to several other cases. According as circumstances vary, the same things have more or less influence on other men’s actions, and consequently those, who by so doing concur to these actions, ought to be considered sometimes as principal, sometimes as collateral, and sometimes as subaltern causes.
XV. The application of these distinctions and principles is obvious. Supposing every thing else equal, collateral causes ought to be judged alike. But principal causes merit without doubt more praise or blame, and a higher degree of recompense or punishment, than subaltern causes. I said, supposing every thing else equal; for it may happen, through a diversity of circumstances, which augment or diminish the merit or demerit of an action, that the subaltern cause acts with a greater degree of malice than the principal one, and the imputation is thereby aggravated in respect to the subaltern. Let us suppose, for example, that a person in cool blood assassinates a man, at the instigation of one, who was animated thereto by some attrocious injury he had received from his enemy. Though the instigator is the principal author of the murder, yet his action, done in a transport of choler, will be esteemed less heinous, than that of the murderer, who, calm and serene himself, was the base instrument of the other’s passion.
We shall close this chapter with a few remarks; and 1. though the distinction of three classes of moral causes, in respect to another man’s action, be in itself very well founded, we must own nevertheless, that the application thereof to particular cases is sometimes difficult. 2. In dubious cases, we should not easily charge, as a principal cause, any other person, than the immediate author of the action; we ought to consider those, who have concurred thereto, rather as subaltern, or at the most as collateral causes. 3. In fine it is proper to observe, that Puffendorf, whose principles we have followed, settles very justly the distinction of moral causes; but, not having exactly denned these different causes, in the particular examples he alledges, he refers sometimes to one class what properly belonged to another. This has not escaped Mons. Barbeyrac, whose judicious remarks have been here of particular use to us.9
1. See part i. chap. i. § 12.
2. See part i. chap. ii. § 16.
3. Tuscul quæst. lib. 4. cap. 37.
4. See sect. 1.
5. See part i. chap. ii. sect. 12.
6. See the Duties of Man and a Citizen, book i. chap. i. § 24. and the Law of Nature and Nations, book i. chap. v. § 9. with Barbeyrac’s notes.
7. See 2 Sam. chap. ii. and I Kings, chap. xxi.
8. We shall transcribe here, with pleasure the judicious reflections of M. Bernard (Nouvelles de la republique des lettres, August 1702 p. 291) In England it is very common to charge the faults of the prince to the ministers; and I own, that very often the charge is just. But the crimes of the ministers do not always excuse the faults of the sovereign; for after all they have reason and understanding, as wall as other people, and are masters to do as they please. If they let themselves be too much governed by those, who have the freest access to them, it is their fault. They ought on several occasions to see with their own eyes, and not to be led by the nose by a wicked and avaricious courtier. Bat if they are unable to manage matters themselves, and to distinguish good from evil, they ought to resign the care of government to others who are capable; for I do not know why we may not apply to princes, who govern ill, the saying of Charles Borromeus, in respect to bishops, who do not feed properly their flocks. If they are incapable of such an employment, why so much ambition? If they are capable, why so much neglect?
9. See Barbeyrac’s notes on the Duties of a Man and a Citizen, book i chap. i. sect. 27.