“Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience.”

No. 15
The Federalist Papers (1787–1788)

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Alexander Hamilton106

Founding Father of the United States 1757–1804

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“The unwritten laws of the gods were promulgated against depraved manners, inflicting a severe destiny and penalty on the disobedient; and these unwritten laws are the fathers and leaders of those that are written, and of the dogmas established by men.”

Archytas (-428–-347 BC) ancient Greek philosopher

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“The head of Christians does not, as a rule, have power to punish secular wrongs with a capital penalty and other bodily penalties and it is for thus punishing such wrongs that temporal power and riches are chiefly necessary; such punishment is granted chiefly to the secular power.”

William of Ockham (1285–1349) medieval philosopher and theologian

"A Letter to the Friars Minor" (1334) as translated in A Letter to the Friars Minor and other Writings (1995) edited by A. S. McGrade and John Kilcullen, p. 204.
Context: The head of Christians does not, as a rule, have power to punish secular wrongs with a capital penalty and other bodily penalties and it is for thus punishing such wrongs that temporal power and riches are chiefly necessary; such punishment is granted chiefly to the secular power. The pope therefore, can, as a rule, correct wrongdoers only with a spiritual penalty. It is not, therefore, necessary that he should excel in temporal power or abound in temporal riches, but it is enough that Christians should willingly obey him.

“This legible lesson, this ritual recording, must be repeated as often as possible; the punishments must be a school rather than a festival; an ever-open book rather than a ceremony. The duration that makes the punishment effective for the guilty is also useful for the spectators. They must be able to consult at each moment the permanent lexicon of crime and punishment. A secret punishment is a punishment half wasted. Children should be allowed to come to the places where the penalty is being carried out; there they will attend their classes in civics. And grown men will periodically relearn the laws. Let us conceive of places of punishment as a Garden of the Laws that families would visit on Sundays.”

Michel Foucault book Discipline and Punish

Source: Discipline and Punish (1977), Chapter Three, The Gentle Way in Punishment

“[On the death penalty] Seems so absurd to me that the laws, that are the expression of the public will, that hate and punish the murder, make one themselves, and, to dissuade citizens from the murder, order a public murder.”

Cesare Beccaria book On Crimes and Punishments

Source: On Crimes and Punishments (1764), Chapter XXVIII

“The law is obligated to punish the transgressor as much as the transgressor is obligated to obey the law — law has no option. Justice has but one function. The necessity of penalty is as great as the necessity of obligation. The law itself is under law; that is, it is under the necessity of its own nature; and therefore the only possible way whereby a transgressor can escape the penalty of the law, is for a substitute to endure it for him. The deep substrata and base of all God's ethical attributes are eternal law and impartial justice.”

William Greenough Thayer Shedd (1820–1894) American theologian

Source: Dictionary of Burning Words of Brilliant Writers (1895), P. 267.

“The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.”

William J. Brennan (1906–1997) American judge

Dissenting, McCleskey v. Kemp, 481 U.S. 279 (1987).

“But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever is a sovereign power […] All admit that the Government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of Congress. The right to enforce the observance of law by punishing its infraction might be denied with the more plausibility because it is expressly given in some cases. Congress is empowered "to provide for the punishment of counterfeiting the securities and current coin of the United States," and "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The several powers of Congress may exist in a very imperfect State, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given. Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the operations of the Government, and the absolute impracticability of maintaining it without rendering the Government incompetent to its great objects, might be illustrated by numerous examples drawn from the Constitution and from our laws. The good sense of the public has pronounced without hesitation that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his Constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.”

John Marshall (1755–1835) fourth Chief Justice of the United States

17 U.S. (4 Wheaton) 316, 409 and 416-418. Regarding the Necessary and Proper Clause in context of the powers of Congress.
McCulloch v. Maryland (1819)

“The essential principle of totalitarianism is to make laws that are impossible to obey.”

Christopher Hitchens (1949–2011) British American author and journalist

Source: god is Not Great: How Religion Poisons Everything

“I believe in the legal and social necessity of penalties, for penalties are not made only for delinquents. Penalties are made for all, because their essential function is to hold in sight of all citizens a threat of consequences, which operates powerfully as a psychologic motive, and does cause most citizens to observe the law.”

Alfredo Rocco (1875–1935) Italian politician and jurist

As quoted in “The Fascist Reform of the Penal Law in Italy,” Giulo Battaglin, Journal of Criminal Law and Criminology, Vol. 24, Issue 1, May-June, summer 1933, p. 286. Speech in the Senate (1925)

“Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience.”

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Alexander Hamilton106

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