On The Duty of Man and Citizen
According to the Natural Law (1673)
Samuel von Pufendorf
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 them.
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.