When these distinctions have once been admitted, it is seen to be so untrue that there is, in the social contract, any real renunciation on the part of the individuals, that the position in which they find themselves as a result of the contract is really preferable to that in which they were before.Instead of a renunciation, they have made an advantageous exchange: instead of an uncertain and precarious way of living they have got one that is better and more secure; instead of natural independence they have got liberty, instead of the power to harm others security for themselves, and instead of their strength, which others might overcome, a right which social union makes invincible.Their very life, which they have devoted to the State, is by it constantly protected; and when they risk it in the State's defence, what more are they doing than giving back what they have received from it? What are they doing that they would not do more often and with greater danger in the state of nature, in which they would inevitably have to fight battles at the peril of their lives in defence of that which is the means of their preservation? All have indeed to fight when their country needs them; but then no one has ever to fight for himself.Do we not gain something by running, on behalf of what gives us our security, only some of the risks we should have to run for ourselves, as soon as we lost it? 5.THE RIGHT OF LIFE AND DEATH T HE question is often asked how individuals, having no right to dispose of their own lives, can transfer to the Sovereign a right which they do not possess.The difficulty of answering this question seems to me to lie in its being wrongly stated.Every man has a right to risk his own life in order to preserve it.Has it ever been said that a man who throws himself out of the window to escape from a fire is guilty of suicide? Has such a crime ever been laid to the charge of him who perishes in a storm because, when he went on board, he knew of the danger?
The social treaty has for its end the preservation of the contracting parties.He who wills the end wills the means also, and the means must involve some risks, and even some losses.He who wishes to preserve his life at others' expense should also, when it is necessary, be ready to give it up for their sake.Furthermore, the citizen is no longer the judge of the dangers to which the law-desires him to expose himself; and when the prince says to him: "It is expedient for the State that you should die," he ought to die, because it is only on that condition that he has been living in security up to the present, and because his life is no longer a mere bounty of nature, but a gift made conditionally by the State.
The death-penalty inflicted upon criminals may be looked on in much the same light: it is in order that we may not fall victims to an assassin that we consent to die if we ourselves turn assassins.In this treaty, so far from disposing of our own lives, we think only of securing them, and it is not to be assumed that any of the parties then expects to get hanged.
Again, every malefactor, by attacking social rights, becomes on forfeit a rebel and a traitor to his country; by violating its laws be ceases to be a member of it; he even makes war upon it.In such a case the preservation of the State is inconsistent with his own, and one or the other must perish;in putting the guilty to death, we slay not so much the citizen as an enemy.
The trial and the judgment are the proofs that he has broken the social treaty, and is in consequence no longer a member of the State.Since, then, he has recognised himself to be such by living there, he must be removed by exile as a violator of the compact, or by death as a public enemy; for such an enemy is not a moral person, but merely a man; and in such a case the right of war is to kill the vanquished.
But, it will be said, the condemnation of a criminal is a particular act.I admit it: but such condemnation is not a function of the Sovereign;it is a right the Sovereign can confer without being able itself to exert it.All my ideas are consistent, but I cannot expound them all at once.
We may add that frequent punishments are always a sign of weakness or remissness on the part of the government.There is not a single ill-doer who could not be turned to some good.The State has no right to put to death, even for the sake of making an example, any one whom it can leave alive without danger.
The right of pardoning or exempting the guilty from a penalty imposed by the law and pronounced by the judge belongs only to the authority which is superior to both judge and law, i.e., the Sovereign; each its right in this matter is far from clear, and the cases for exercising it are extremely rare.In a well-governed State, there are few punishments, not because there are many pardons, but because criminals are rare; it is when a State is in decay that the multitude of crimes is a guarantee of impunity.Under the Roman Republic, neither the Senate nor the Consuls ever attempted to pardon; even the people never did so, though it sometimes revoked its own decision.Frequent pardons mean that crime will soon need them no longer, and no one can help seeing whither that leads.But I feel my heart protesting and restraining my pen; let us leave these questions to the just man who has never offended, and would himself stand in no need of pardon.6.LAW B Y the social compact we have given the body politic existence and life; we have now by legislation to give it movement and will.For the original act by which the body is formed and united still in no respect determines what it ought to do for its preservation.
