subscription of the powers of individuals_.
1. The Greeks had a name [Greek: eranos], which meant a feast where
the viands were supplied by each guest contributing in kind. If, in a
party of four, one man brought a ham, another a rabbit, a third a dish
of truffles, and a fourth a salmon, no one would expect that, when the
cover was raised, there should appear a pigeon-pie. That would not be
in the nature of an [Greek: eranos]. Now not only Hobbes and Rousseau,
but Locke and a great multitude of modern Englishmen with him, hold
that the power of the State is an aggregate, the algebraic sum of the
powers whereof the component members would have stood possessed, had
they lived in what is called, by a misleading phrase, "the state of
nature," that is, the condition of men not subject to civil authority.
These powers,--either, as Hobbes and Rousseau virtually say, _all_ of
them, or, as Locke and the common opinion has it, only _some_ of them,
--men are supposed to resign as they enter into the State. If
therefore there appears in the City, Nation, State, or Commonwealth, a
certain new and peculiar power, which belongs to no individual in the
"state of nature," or, as I prefer to call it, the _extra-civil
state_, then what we may designate as the Aggregation Theory breaks
down, and another origin must be sought of civil principality. But
there is such a power in the State, new and peculiar, and not found in
any of the component individuals: it is the power and authority to
punish on civil grounds. It is the right of the rods and axes, that
were borne before the Roman magistrate. It is, in its most crucial
form, the right to punish with death.
2. We are not here concerned with proving the existence of this right.
It is generally admitted: we assume it accordingly, and shall prove it
later on. Nor are we concerned with _domestic punishment_, inflicted
by the head of a family within his own household, for the good of that
household, stopping short of any _irreparable harm_ to the sufferer.
(St. Thos., 2a 2æ, q. 65, art. 2, ad. 2.) Leaving this aside, we say,
and have proved already, that one private individual has no right to
punish another, neither _medicinally_ for the amendment of the
delinquent, nor by way of _deterrent_ for the good of the community,
nor in the way of _retribution_ for his own satisfaction. He has the
right of self-defence, but not of punishment: the two things are quite
different. He may also exact restitution, where restitution is due:
but that again is not punishing. If he is in the extra-civil state, he
may use force, where prudence allows it, to recover what he has lost.
This _right of private war_ really is surrendered by the individual,
when the State is established: but war and punishment are two totally
different ideas. Subjects are punished: war is levied on independent
powers. (_Ethics_, c. ix., s. iii., nn. 4-6, pp. 171-174; _Natural
Law_, c. ii., s. ii., n. 6, p. 212.)
3. Opposite is the opinion of Locke, who writes:
"The execution of the law of nature is in that state [of nature] put
into every man's hands, whereby every one has a right to punish the
transgressors of that law to such a degree as may hinder its
violation: for the law of nature would, as all other laws that concern
men in this world, be in vain, if there were nobody that in the state
of nature had a power to execute that law." We observe that the
punishment of offenders against the law of nature, as such, belongs to
the Legislator, who is God alone. Certainly it is well, nay necessary,
that there should be human law to bear out the law of nature: but
human law is the creation of human society in its perfection, which is
the State. Man is punished by man for breaking the laws of man,
not--except remotely--for breaking the laws of God. Nor would it be
any inconvenience, if the law of nature were in vain in a state
wherein nature never intended men to live, wherein no multitude of men
ever for any notable time have lived, a state which is neither actual
fact nor ideal perfection, but a mere property of the philosophic
stage, a broken article, an outworn speculation. Such is "the state of
nature," as identified with the extra-civil state by Hobbes, Locke,
and Rousseau.