the firſt murderer Cain was ſo ſenſible, that we find him[1] expreſſing his apprehenſions, that whoever ſhould find him would ſlay him. In a ſtate of ſociety this right is transferred from individuals to the ſovereign power ; whereby men are prevented from being judges in their own cauſes, which is one of the evils that civil government was intended to remedy. Whatever power therefore individuals had of puniſhing offences againſt the law of nature, that is now veſted in the magiſtrate alone ; who bears the ſword of juſtice by the conſent of the whole community. And to this precedent natural power of individuals muſt be referred that right, which ſome have argued to belong to every ſtate, (though, in fact, never exerciſed by any) of puniſhing not only their own ſubjects, but alſo foreign embaſſadors, even with death itſelf ; in caſe they have offended, not indeed againſt the municipal laws of the country, but againſt the divine laws of nature, and become liable thereby to forfeit their lives for their guilt[2].
As to offences merely againſt the laws of ſociety, which are only mala prohibita, and not mala in ſe ; the temporal magiſtrate is alſo empowered to inflict coercive penalties for ſuch tranſgreſſions : and this by the conſent of individuals ; who, in forming ſocieties, did either tacitly or expreſſly inveſt the ſovereign power with a right of making laws, and of enforcing obedience to them when made, by exerciſing, upon their non-obſervance, ſeverities adequate to the evil. The lawfulneſs therefore of puniſhing ſuch criminals is founded upon this principle, that the law by which they ſuffer was made by their own conſent ; it is a part of the original contract into which they entered, when firſt they engaged in ſociety ; it was calculated for, and has long contributed to, their own ſecurity.
This right therefore, being thus conferred by univerſal conſent, gives to the ſtate exactly the ſame power, and no more, over all it's members, as each individual member had naturally
