The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the power of the sovereign over the lives and fortunes of his subjects in criminal cases.
I. THE principal end of civil government and society is to secure to mankind all their natural advantages, and especially their lives. This end necessarily requires, that the sovereign should have some right over the lives of his subjects, either in an indirect manner, for the defence of the state, or in a direct manner, for the punishment of crimes.
II. The power of the prince over the lives of the subjects, with respect to the defence of the state, regards the right of war, of which we shall treat hereafter. Here we intend to speak only of the power of inflicting punishments.
III. The first question, which presents itself, is to know the origin and foundation of this part of the sovereign power; a question, which cannot be answered without some difficulty. Punishment, it is said, is an evil, which a person suffers in a compulsive way. A man cannot punish himself, and consequently it seems, that individuals could not transfer to the sovereign a right, which they had not over themselves.
IV. Some civilians pretend, that, when a sovereign inflicts punishments on his subjects, he does it by virtue of their own consent; because, by submitting to his authority, they have promised to acquiesce in every thing, he should do with respect to them; and in particular a subject, who determines to commit a crime, consents thereby to suffer the punishment, established against the delinquent.
V. But it seems difficult to determine the right of the sovereign on a presumption of this nature, especially with respect to capital punishments; neither is it necessary to have recourse to this pretended consent of criminals, in order to establish the vindictive power. It is better to say, that the right of punishing malefactors derives its origin from that, which every individual originally had in the society of nature, to repel the injuries, committed against himself, or against the members of the society; which right has been yielded and transferred to the sovereign.
VI. In a word the right of executing the laws of nature, and of punishing those, who violate them, belongs originally to society in general, and to each individual in particular; otherwise the laws, which nature and reason impose on man, would be entirely useless in a state of nature, if nobody had the power of putting them in execution, or of punishing the violation of them.
VII. Whoever violates the Jaws of nature testifies thereby, that he tramples on the maxims of reason and equity, which God has prescribed for the common safety; and thus he becomes an enemy of mankind. Since therefore every man has an incontestable right to take care of his own preservation and that of society, he may, without doubt, inflict on such a person punishments, capable of producing repentance in him, of hindering him from committing the like crimes for the future, and even of deterring others by his example. In a word, the same laws of nature, which prohibit vice, do also confer a right of pursuing the perpetrator of it, and of punishing him in a just proportion.
VIII. It is true, in a state of nature, these kinds of chastisements are not inflicted by authority, and the criminal might happen to shelter himself from the punishments, he has to dread from other men, or even repel their attacks. But the right of punishment, is not for that either less real, or less founded. The difficulty of putting it in execution does not destroy it. This was one of the inconveniences of the primitive state, which men have efficaciously remedied by the establishment of sovereignty.
IX. By following these principles, it is easy to comprehend, that the right of a sovereign to punish crimes is no other, than that natural right which human society and every individual had originally to execute the law of nature, and to take care of their own safety. This natural right has been yielded and transferred to the sovereign, who, by means of the authority, with which he is invested, exercises it in such a manner, that it is difficult for wicked men to evade it. Besides, whether we call this natural right of punishing crimes the vindicative power, or whether we refer it to a kind of right of war, is a matter of indifference, neither does it change its nature on that account.
X. This is the true foundation of the right of the sovereign with respect to punishments. This being granted, I define punishment an evil, with which the prince threatens those, who are disposed to violate his laws, and which he really inflicts, in a just proportion, whenever they violate them, independently or the reparation of the damage, with a view to some future good, and finally for the safety and peace of society.
XI. I say, 1. that punishment is an evil, and this evil may be of a different nature, according as it affects the life of a person, his body, his reputation, or his estate. Besides, it is indifferent whether this evil consists in hard and toilsome labour, or in suffering something painful.
XII. I add in the second place, that it is the sovereign, who awards punishments; not that every punishment in general supposes sovereignty, but because we are here speaking of the right of punishing in society, and as the branch of the supreme power. It is therefore the sovereign alone, who is empowered to award punishments in society; but individuals cannot do themselves justice, without encroaching on the rights of the prince.
XIII. I say, 3. with which the sovereign threatens, etc. to denote the chief intention of the prince. He threatens first, and then punishes, if menaces be not sufficient to prevent the crime. Hence it also appears, that punishment ever supposes guilt, and consequently we ought not to reckon among punishments, properly so called, the different evils, to which men are exposed, without having antecedently committed a crime.
XIV. I add, 4. that punishment is inflicted independently of the reparation of the damage to show, that these are two things very distinct, and ought not to be confounded. Every crime is attended with two obligations; the first is to repair the injury committed; and the second, to suffer the punishment; the delinquent ought to satisfy both. It is also to be observed on this occasion, that the right of punishment in civil society is transferred to the magistrate, who may by his own authority pardon a criminal; but this is not the. case with respect to the right of satisfaction or reparation of damages. The magistrate cannot acquit the offender in this article, and the injured person always retains his right; so that he is wronged, if he be hindered from obtaining due satisfaction.
XV. Lastly, 5. by saying, that punishment is inflicted with a view to some good; we point out the end, which the prince ought to propose to himself in inflicting punishments, and this we shall more particularly explain.
XVI. The sovereign, as such, has not only a right, but is also obliged to punish crimes. The use of punishment is so far from being contrary to equity, that it is absolutely requisite for the public tranquillity. The supreme power would be useless, were it not invested with a right, and armed with a force, sufficient to deter the wicked by the apprehension of some evil, and to make them suffer that evil, when they injure society. It was even necessary, that this power should extend so far, as to make them suffer the greatest of natural evils, which is death; in order effectually to repress the most daring audaciousness, and, as it were, to balance the different degrees of human wickedness by a sufficient counterpoise.
XVII. Such is the right of the sovereign. But if he has a right to punish, the criminal must be also under some obligation in this respect; for we cannot possibly conceive a right without an obligation corresponding to it. But wherein does this obligation of the criminal consist? Is he obliged to betray himself, and voluntarily expose himself to punishment? I answer, that this is not necessary for the end, proposed in the establishment of punishments; nor can we reasonably require that a man should thus betray himself; but this does not hinder him from being under a real obligation.
XVIII. 1. It is certain, that when there is a simple pecuniary punishment, to which a man has been lawfully condemned, he ought to pay it, without being forced by the magistrate; not only prudence requires it, but also the rules of justice, according to which we are bound to repair any injury we have committed, and to obey lawful judges.
XIX. 2. What relates to corporeal, and especially to capital punishments, is attended with greater difficulty. Such is our natural fondness for life, and aversion to infamy, that a criminal cannot be under an obligation of accusing himself voluntarily, and presenting himself to punishment; and indeed neither the public good, nor the rights of the person, entrusted with the supreme authority, demand it.
XX. 3. In consequence of this same principle, a criminal may innocently seek his safety in flight, and is not obliged to remain in prison, if he perceives the doors open, or if he can easily force them. But it is not lawful for him to procure his liberty by the commission of a new crime, as by cutting the throats of the jailors, or by killing those sent to apprehend him.
XXI. 4. But in fine if we suppose, that the criminal is known, that he is taken, that he cannot make his escape from prison, and that, after a mature examination or trial, he is convicted of the crime, and consequently condemned to condign punishment; he is in this case certainly obliged to undergo the punishment, and to acknowledge the lawfulness of his sentence; so that there is no injury done him, nor can he reasonably complain of any one but himself; much less can he withdraw from punishment by violence, and oppose the magistrate in the exercise of his right. In this properly consists the obligation of the criminal with respect to punishment. Let us now inquire more particularly into the end, the sovereign ought to propose to himself in inflicting them.
XXII. In general it is certain, that the prince never ought to inflict punishments but with a view to some public advantage. To make a man suffer merely because he has done a thing, and to attend only to what has passed, is a piece of cruelty, condemned by reason; for after all it is impossible that the fact should be undone. In short the right of punishing is a part of sovereignty; now sovereignty is founded ultimately on a beneficent power. It follows therefore, that, even when the chief ruler makes use of his power of the sword, be ought to aim at some advantage or future good, agreeebly to what is required of him by the very nature and foundation of his authority.
XXIII. The principal end of punishment is therefore the welfare of society; but as there may be different means of arriving at this end, according to different circumstances, the sovereign also, in inflicting punishments, proposes different and particular views, ever subordinate, and all finally reducible to the principal end abovementioned. What we have said agrees with the observation of Grotius.1 “In punishments we must either have the good of the criminal in view, or the advantage of him, whose interest it was that the crime should not have been committed, or the good of all indifferently.”
XXIV. Hence the sovereign sometimes proposes to correct the criminal, and make him lose the vicious habit, so as to cure the evil by its contrary, and to take away the sweets of the crime by the bitterness of the punishment. This punishment, if the criminal is reformed by it, tends to the public good. But, if he should persevere in his wickedness, the sovereign must have recourse to more violent remedies, and even to death.
XXV. Sometimes the chief ruler proposes to deprive criminals of the means of committing new crimes; as for example by taking from them the arms, which they might use, by shutting them up in prison, by banishing them, or even by putting them to death. At the same time he takes care of the public safety, not only with respect to the criminals themselves, but also with regard to those, inclined to commit the like crime, in deterring them by those examples. For this reason, nothing is more agreeable to the end of punishment, than to inflict it with such a solemnity, as is most proper to make an impression on the minds of the vulgar.
XXVI. All these particular ends of punishment ought to be constantly subordinate, and referred to the principal end, namely the safety of the public; and the sovereign ought to use them all as means of obtaining that end; so that he should not have recourse to the most rigorous punishments, till those of greater lenity are insufficient to procure the public tranquillity.
XXVII. But here a question arises, whether all actions, contrary to the laws, can be lawfully punished? I answer, that the very end of punishment, and the constitution of human nature, evince there may be actions, in themselves evil, which however it is not necessary for human justice to punish.
XXVIII. And, 1. acts purely internal, or simple thoughts, which do not discover themselves by any external acts prejudicial to society; for example the agreeable idea of a bad action, the desire of committing it, the design of it without proceeding to the execution, etc. All these are not subject to the severity of human punishment, even though it should happen, that they are afterwards discovered.
XXIX. On this subject we must however make the following remarks. The first is, that if this kind of crimes be not subject to human punishment, it is because the weakness of man does not permit, even for the good of society, that he should be treated with the utmost rigour. We ought to have a just regard for humanity in things, which though bad in themselves, do not greatly affect the public order and tranquillity. The second remark, is, that, though acts purely internal are not subject to civil punishment, we must not for this reason conclude, that these acts are not under the direction of the civil laws. We have before established the contrary.2 In a word it is evident, that the laws of nature expressly condemn such actions, and that they are punished by the Deity.
XXX. 2. It would be too severe to punish every peccadillo; since human frailty, notwithstanding the greatest caution and attention, cannot avoid a multitude of slips and infirmities. This is a consequence of the toleration due to humanity.
XXXI. 3. In a word, we must necessarily leave unpunished those common vices, which are the consequences of a general corruption; as for instance ambition, avarice, inhumanity, ingratitude, hypocrisy, envy, pride, wrath, etc. For if a sovereign wanted to punish such dispositions with rigor, he would be reduced to the necessity of reigning in a desert. It is sufficient to punish those vices, when they prompt men to enormous and overt acts.
XXXII. It is not even always necessary to punish crimes in themselves punishable, for there are cases, in which the sovereign may pardon; and of this we may judge by the very end of punishment.
XXXIII. The public good is the ultimate end of all punishment. If therefore there are circumstances, in which by pardoning as much or more advantage is procured, than by punishing, then there is no obligation to punish, and the sovereign even ought to show clemency. Thus if the crime be concealed, or be only known to a few, it is not always necessary, nay it would sometimes be dangerous to make it public by punishment; for many abstain from evil, rather from their ignorance of vice, than from a knowledge and love of virtue. Cicero observes, with regard to Solon’s having no law against parricide, that this silence of the legislator has been looked upon as a great mark of prudence; for as much as he made no prohibition of a thing, of which there had been yet no example, lest, by speaking of it, he should seem to give the people a notion of committing it, rather than deter them from it.
We may also consider the personal services, which the criminal, or some of his family, have done to the state, and whether be can still be of great advantage to it, so that the impression made by the sight of his punishment be not likely to produce so much good, as he himself is capable of doing. Thus at sea, when the pilot has committed a crime, and there is none on board capable of navigating the ship, it would be destroying all those in the vessel to punish him. This example may also be applied to the general of an army.
In a word the public advantage, which is the true measure of punishment, sometimes requires, that the sovereign should pardon, because of the great number of criminals. The prudence of government demands, that the justice, established for the preservation of society, should not be exercised in such 2 manner, as to subvert the state.
XXXIV. All crimes are not equal, and it is but equity there should he a due proportion between the crime and the punishment. We may judge of the greatness of a crime in general by its object, by the intention and malice of the criminal and by the prejudice arising to society from it; and to this latter consequence the two others must be ultimately referred.
XXXV. According to the dignity of the object the action is more or less criminal. We must place in the first class those crimes, which interest society in general; the next are those, which disturb the order of civil society; and last of all those, which relate to individuals. The latter are more or less heinous, according to the value of the thing, of which they deprive us. Thus he, who slays his father, commits a more horrid murder, than if he had killed a stranger. He, who insults a magistrate is more to blame than if he had insulted his equal. A person, who adds murder to robbery, is more guilty than he, who only strips the traveller of his money.
XXXVI. The greater or less degree of malice also contributes very much to the enormity of the crime, and is to be deduced from several circumstances.
1. From the motives, which engage mankind to commit a crime, and which may be more or less easy to resist. Thus he, who robs or murders in cold blood, is more culpable than he, who yields to the violence of some furious passion.
2. From the particular character of the criminal, which, besides the general reasons, ought to retain him in his duty:
The higher a man’s birth is, says Juvenal, or the more exalted he is in dignity, the more enormous is the crime he commits.3 This takes place especially with respect to princes, and so much the more, because the consequences of their bad actions are fatal to the state, from the number of persons, who endeavor to imitate them.” This is the judicious remark made by Cicero.4 The same observation may also be applied to magistrates and clergymen.
3. We must also consider the circumstances of rime and place, in which the crime has been committed, the manner of Committing it, the instruments used for that purpose, etc.
4. Lastly we are to consider whether the criminal has made a custom of committing such a crime, or if he is but rarely guilty of it, whether he has committed it of his own accord, or been seduced by others, etc.
XXXVII. We may easily perceive that the difference of these circumstances interests the happiness and tranquillity of society, and consequently either augments or diminishes the enormity of the crime.
XXXVIII. There are therefore crimes less or greater than others; and consequently they do not all deserve to to be punished with equal severity; but the kind and precise degree of punishment depend on the prudence of the sovereign. The following are the principal rules, by which he ought to be directed.
1. The degree of punishment ought ever to be proportioned to the end of inflicting is, that is, to repress the insolence and malignity of the wicked, and to procure the internal peace and safety of the state. It is upon this principle, that we must augment or diminish the rigour of punishment. The punishment is too rigorous, if we can by milder means obtain the end proposed; and, on the contrary, it is too moderate, when it has not a force sufficient to produce these effects, and when the criminals themselves despise it.
2. According to this principle, every crime may be punished as the public good requires, without considering whether there be an equal or less punishment for another crime, which in itself, appears more or less heinous. Thus robbery, for instance, is of its own nature a less crime than murder; and yet highwaymen may, without injustice, be punished with death, as well as murderers.
3. The equality, which the sovereign ought ever to observe in the exercise of justice, consists in punishing those alike, who have trespassed alike; and in not pardoning a person, without very good reason, who has committed a crime, for which others have been punished.
4. It must be also observed, that we cannot multiply the kinds and degrees of punishment in infinitum; and, as there is no greater punishment than death, it is necessary, that certain crimes, though unequal in themselves, should be equally subject to capital punishment. All, that can be said, is, that death may be more or less terrible, according as we employ a milder or shorter method to deprive a person of life.
5. We ought, as much as possible, to incline to the merciful side, when there are not strong reasons for the contrary. This is the second part of clemency. The first consists in a total exemption from punishment, when the good of the state permits it. This is also one of the rules of the Roman law.5
6. On the contrary, it is sometimes necessary and convenient to heighten the punishment, and to set such an example, as may intimidate the wicked, when the evil can be prevented only by violent remedies.6
7. The same punishment does not make the same impression on all kinds of people, and consequently has not the same force to deter them from vice. We ought therefore to consider, both is the general penal sanction and in the application of it, the person of the criminal, and in that all those qualities of age, sex, state, riches, strength, and the like, which may either increase or diminish the sense of punishment. A particular fine, for instance, will distress a beggar, while it is nothing to a rich man. The same mark of ignominy will be very mortifying to a person of honor and quality, which would pass for a trifle with a vulgar fellow. Men have more strength to support punishments than women, and full grown people more than those of tender years, etc. Let us also observe, that it belongs to the justice and prudence ox government, always to follow the order of judgement and of the judiciary procedure in the infliction of punishments. This is necessary, not only that we may not commit injustice in an affair of such importance, but also that the sovereign may be secured against all suspicion of injustice and partiality. However there are sometimes extraordinary and pressing circumstances, where the good of the state and the public safety do not permit us exactly to observe all the formalities of the criminal procedure, and provided, in those circumstances, the crime be duly proved, the sovereign may judge summarily, and without delay punish a criminal, whose punishment cannot be deferred without imminent danger to the state. Lastly it is also a rule of prudence, that if we cannot chastise a criminal without exposing the state to great danger, the sovereign ought not only to grant a pardon, but also to do it in such a manner, that it may appear rather to be the effect of clemency than of necessity.
XXXIX. What we have said relates to punishments, inflicted for crimes, of which a person is the sole and proper author. With respect to crimes committed by several, the following observations may serve as principles.
1. It is certain that those, who are really accomplices in the crime, ought to be punished in proportion to the share they have in it, and according as they ought to be considered as principal causes, or subordinate and collateral instruments. In these cases, such persons suffer rather for their own crime, than for that of another.
2. As for crimes committed by a body or community, those only are really culpable, who have given their actual consent to them; but they, who have been of a contrary opinion, are absolutely innocent. Thus Alexander, having given orders to sell all the Thebans after the taking of their city, excepted those, who, in the public deliberations, had opposed the breaking of the alliance with the Macedonians.
3. Hence it is, that, with respect to crimes committed by a multitude, reasons of state and humanity direct, that we should principally punish those, who are ringleaders, and pardon the rest. The severity of the sovereign to some will repress the audaciousness of the most resolute; and his clemency to others will gain him the hearts of the multitude.7
4. If the ringleaders have sheltered themselves by flight, or otherwise, or if they have all an equal share in the crime, we must have recourse to a decimation, or other means, to punish some of them. By this method the terror reaches all, while but few fall under the punishment.
XL. Besides, it is a certain and inviolable rule, that no person can be lawfully punished, for the crime of another, in which he has had no share. All merit and demerit is entirely personal and incommunicable; and we have no right to punish any but those, who deserve it.
XLI. It sometimes happens however, that innocent persons suffer on the account of the crimes of others; but we must make two remarks on this subject.
1. Not every thing, that occasions uneasiness, pain, or loss to a person, is properly a punishment; for example when subjects suffer some grievances from the miscarriages and crimes of their prince, it is not in respect to them a punishment, but a misfortune.
The second remark is, that these kinds of evils, or indirect punishments, if we may call them so, are inseparable from the constitution of human affairs.
XLII. Thus if we confiscate the effects of a person, his children suffer indeed for it; but it is not properly a punishment to them, since those effects ought to belong to them only on supposition that their father had kept them till his death. In a word we must either almost entirely abolish the use of punishments, or acknowledge, that these inconveniences, inseparable from the constitution of human affairs, and from the particular relations, which men have to each other, have nothing in themselves unjust.
XLIII. Lastly it is to be observed, that there are crimes so enormous, so essentially affecting in regard to society, that the public good authorises the sovereign to take the strongest precautions against them, and even, if necessary, to make part of the punishment fall on the persons most dear to the criminal. Thus the children of traitors, or state criminals, maybe excluded from honors and preferments. The father is severely punished by this method, since he sees he is the cause, why the persons dearest to him are reduced to live in obscurity. But this is not properly a punishment in regard to the children; for the sovereign, having a right to give public employments to whom he pleases, may, when the public good requires it, exclude even persons, who have done nothing to render themselves unworthy of these preferments. I confess that this is a hardship, but necessity authorises it, to the end that the tenderness of a parent for his offspring may render him more cautious to undertake nothing against the state. But equity ought always to direct those judgments, and to mitigate them according to circumstances.
XLIV. I am not of opinion, that we can exceed these bounds, neither does the public good require it. It is therefore a real piece of injustice, established among several nations, namely to banish or kill the children of a tyrant or traitor, and sometimes all his relations, though they were no accomplices in his crimes. This is sufficient to give us a right idea of the famous law of Arcadius8 the Christian emperor.
1. Lib. ii. cap. xx. § 6. N. 2.
2. Chap. i. § 22, etc.
3. Omne animi vitium tanto conspectius in se, Crimen habet, quanto major, qui peccat, habetur. More public scandal vice attends, As he is great and noble, who offends. Juv. Sat. viii. 140, 141.
4. De Leg. lib. iii. cap. 14. Nec enim tantum mali est peccare principes quanquam est magnum hoc per seipsum malum; quantum illud, quod permulti imitatores principum existunt; quo perniciosius de republica merentur vitiosi principes, quod non solum vitia concipiunt ipsi, sed ea infundunt in civitatem. Neque solum obsunt, quod ipsi corrumpuntur, sed etiam quod corrumpunt; plusque exemplo, quam peccato, nocent.
5. In poenalibus causis, benignus interpretandum est. Lib. cv. § 2. ff. de Reg. Jur. Vid. sup. § 33.
6. Nonnunquam evenit, ut aliquorem maleficiorum supplicia exacerbantur, quoties nimirum, multis personis grassantibus, exemplo opus sit. Lib. xvi § 10 Æ de poenis.
7. Quintil, Declam. cap. vii. p. m. 237.
8. Cod. and L Jul. Maj. lib. ix. tit. 8. leg. 5.