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269 u d e f i n i t i o n x x i u Demerit is an estimative moral quality resulting to a man from a bad action through which he is under obligation to make amends for the injury done to a second person thereby. 1. 2. 3. 4. 5. 6. He who has damaged a second person is bound to restitution of the damage and to bond. What bond is required on the basis of the law of nature? In states a bond is furnished by means of punishment. The purposes of punishments. How many kinds of punishments are there? No one is bound to a punishment. 7. 8. 9. 10. 11. 12. No one can be punished for another. To what measure are punishments to be imposed? Is the divine law the measure of punishments among men? What is to be judged of talion? What equality is to be observed in punishment? Just what sort of an obligation to inflict punishment rests upon the magistrate? 1. In any misdeeds whatsoever, at all events those which terminate in another person, there are found two things, the defect itself, or the divergence from the norm of law according to execution or intention, and the damage done, directly or indirectly, to a second person thereby. It is our task here to investigate what is wont and ought to be observed upon both of these points in a human court of law, for, as it is not ours to set forth the edicts of the Divine Tribunal, so we are averse to having them introduced there. It is certain, therefore, on the basis of the law of nature about not bringing upon a second person that whereby peace and human society would be disturbed, that every man whatsoeverisbound tomakeamendstotheother party for damage done him in any way at all by his own fault, and, if that 270 book i, definition xxi damage has proceeded from malice, he is bound to give bond not to offend in the future. 2. Furthermore, among those who, being bound by no civil law, use merely the law of nature among one another, if, indeed, a person induced by repentance, of his own free will, and not compelled by force, presents himself in order to make amends for the damage, this same law of nature appears to obligate him to furnish no other bond than to pledge his good faith with a simple asseveration, or even with an oath, that he will avoid offences for the future, and this because that repentance is a sufficient indication of a change of mind and of a firm determination to refrain from injuries henceforward.1 And so, if the one who had received some damage should be unwilling to be content with that, but out of unjust lack of confidence or some asperity of temper should wish to extort a bond by the use of superior force, although by the law of nature the other be not bound thereto, the blame for violating the peace will attach to the first party himself, and the other can rightly resist by force the man who, out of a desire for vengeance, or excess of fear, is unwilling to be content with a fair satisfaction. In this case it results that he who did the injury is waging a just war, he who suffered it an unjust one. But,when one has to be driven by force to make satisfaction, since this very same circumstance renders quite clear his obstinacy in badness, and satisfaction cannot be obtained unless the injured forcibly overpowers the injurer, it rests with the victor to determine just what kind of bond will best provide for his own security. Here he may not merely proceed to taking away arms, demolishing or occupying fortified places, to hostages, perpetual imprisonment, and the like, but even to death itself, if, indeed, it be well enough established that the one restored to liberty will plot our destruction , and no more convenient remedy be found for avoiding that. For the rest, it cannot properly be said that one is bound to furnish a bond of this kind; because a bond presupposes and involves in him from whom it is taken some fault of the mind, and a sin against the law of nature, to wit, the denial of a spontaneous satisfaction and the defence by force of his misdeed. 1. See bk. II, Observ. 4, §19. [52...

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