68. Sovereignty over persons cannot be acquired, strictly speaking, by seizure or occupation, as in the case of lands, and requires, even after conquest, their consent to obey; which will be given, in order to secure themselves from the other rights of war. It is a problem whether, after an unjust conquest, the forced consent of the people can give a lawful title to sovereignty. Puffendorf distinguishes between a monarchy and a republic thus unjustly subdued. In the former case, so long as the lawful heirs exist or preserve their claim, the duty of restitution continues. But in the latter, as the people may live as happily under a monarchy as under a republic, he thinks that an usurper has only to treat them well, without scruple as to his title. If he oppresses them, no course of years will make his title lawful, or bind them in conscience to obey, length of possession being only length of injury. If a sovereign has been justly divested of his power, the community becomes immediately free; but if by unjust rebellion, his right continues till by silence he has appeared to abandon it.[938]
[938] C. 7.
69. Every one will agree that a lawful ruler must not be opposed within the limits of his authority. But let us put the case that he should command what is unlawful, or maltreat his subjects. Whatever Hobbes may say, a subject may be injured by his sovereign. But we should bear minor injuries patiently, and in the worst cases avoid personal resistance. Those are not to be listened to who assert that a king, degenerating into a tyrant, may be resisted and punished by his people. He admits only a right of self-defence, if he manifestly becomes a public enemy: in all this he seems to go quite as far as Grotius himself. The next question is as to the right of invaders and usurpers to obedience. This, it will be observed, he had already in some measure discussed; but Puffendorf is neither strict in method, nor free from repetitions. He labours much about the rights of the lawful prince insisting upon them, where the subjects have promised allegiance to the usurper. This, he thinks, must be deemed temporary, until the legitimate sovereign has recovered his dominions. But what may be done towards this end by such as have sworn fidelity to the actual ruler, he does not intimate. It is one of the nicest problems in political casuistry.[939]
[939] C. 8.
70. Civil laws are such as emanate from the supreme power, with respect to things left indifferent by the laws of God and nature. What chiefly belongs to them is the form and method of acquiring rights or obtaining redress for wrongs. If we give the law of nature all that belongs to it, and take away from the civilians what they have hitherto engrossed and promiscuously treated of, we shall bring the civil law to a much narrower compass; not to say that at present whenever the civil law is deficient we must have recourse to the law of nature, and that therefore in all commonwealths the natural laws supply the defects of the civil.[940] He argues against Hobbes’s tenet that the civil law cannot be contrary to the law of nature; and that what shall be deemed theft, murder, or adultery, depends on the former. The subject is bound generally not to obey the unjust commands of his sovereign; but in the case of war he thinks it, on the whole, safest, considering the usual difficulties of such questions, that the subject should serve, and throw the responsibility before God or the prince.[941] In this problem of casuistry, common usage is wholly against theory.
[940] L. viii., c. 1.
[941] L. viii., c. 1.
71. Punishment may be defined an evil inflicted by authority upon view of antecedent transgression.[942] Hence, exclusion, on political grounds, from public office, or separation of the sick for the sake of the healthy, is not punishment. It does not belong to distributive justice, nor is the magistrate bound to apportion it to the malignity of the offence, though this is usual. Superior authority is necessary to punishment; and he differs from Grotius by denying that we have a right to avenge the injuries of those who have no claim upon us. Punishment ought never to be inflicted without the prospect of some advantage from it; either the correction of the offender, or the prevention of his repeating the offence. But example he seems not to think a direct end of punishment, though it should be regarded in its infliction. It is not necessary that all offences which the law denounces should be actually punished, though some jurists have questioned the right of pardon. Punishments ought to be measured according to the object of the crime, the injury to the commonwealth, and the malice of the delinquent. Hence, offences against God should be deemed most criminal, and next, such as disturb the state; then whatever affect life, the peace or honour of families, private property or reputation, following the scale of the Decalogue. But though all crimes do not require equal severity, an exact proportion of penalties is not required. Most of this chapter exhibits the vacillating, indistinct, and almost self-contradictory resolutions of difficulties so frequent in Puffendorf. He concludes by establishing a great truth, that no man can be justly punished for the offence of another; nor even a community for the acts of their forefathers, notwithstanding their fictitious immortality.[943]
[942] C. 3.
[943] C. 3.