Equity and natural justice require punishment to be inflicted on ALL offenders, whereas the law of nations makes an exception in favour of ambassadors, and those who have the public faith for their protection. Wherefore to try or punish ambassadors, is contrary to the law of nations, which prohibits many things, that are permitted by the law of nature.

The law of nations, thus deviating from the law of nature, gives rise to those interpretations and conjectures, which reconcile with the principles of justice a greater extension of privileges than the law of nature strictly allows. For if ambassadors were protected against nothing more than violence and illegal constraint, their privileges would confer no extraordinary advantage. Besides, the security of ambassadors is a matter of much greater moment to the public welfare than the punishment of offences. Because reparation for the misconduct of an ambassador may be looked for from the sovereign, by whom he is sent, unless that sovereign chuses to expose himself to hostilities by approving of his crimes. An objection to such privileges is made by some, who assert, that it is better for one person to be punished than for whole nations to be involved in war. But if a sovereign has SECRETLY given his sanction to the misconduct of his ambassador, his APPARENT intentions to punish that ambassador will not deprive the injured power of the right to seek redress by commencing hostilities.

On the other hand, the right of ambassadors would rest upon a very slippery foundation if they were accountable, for their actions, to any one but their own sovereigns. For as the interests of powers sending, and of those receiving ambassadors, are in general different, and some times even opposite, if a public minister were obliged to consult the inclinations of both, there would be no part of his conduct, to which they might not impute some degree of blame. Besides although some points are so clear, as to admit of no doubt, yet universal danger is sufficient to establish the equity and utility of a general law. For this reason it is natural to suppose, that nations have agreed, in the case of ambassadors, to dispense with that obedience, which every one, by general custom, owes to the laws of that foreign country, in which, at any time, he resides. The character, which they sustain, is not that of ordinary individuals, but they represent the Majesty of the Sovereigns, by whom they are sent, whose power is limited to no local jurisdiction. As Cicero, in his eighth Philippic, speaking of a certain ambassador, says, "he carried with him the Majesty of the Senate, and the authority of the State." From hence it is concluded, that an ambassador is not bound by the laws of the country, where he resides. If he commit an offence of a trivial nature, it may either be suffered to pass unnoticed, or he may be ordered to leave the country.

Polybius relates an instance of an ambassador, who was ordered to leave Rome, for having assisted some hostages in making their escape. Hence it is obvious why the Romans inflicted corporeal punishment upon an ambassador of Tarentum, because the Tarentines were at that time their own subjects, by right of conquest.

If a crime is of a notorious nature, affecting the government, an ambassador may be sent home, and his sovereign required to punish, or deliver him up, as we read of the Gauls having done to the Fabians. But, as we have before occasionally observed, all human laws are framed upon such principles, as, in cases of extreme necessity, to admit of equitable relaxations, among which the privileges of ambassadors may be reckoned. But these extreme cases of necessity may, according to the law of nations, as will be seen hereafter, in discussing the effects of just and solemn war, prevent punishment in CERTAIN cases, though not in ALL. For it is not the act of punishment itself, which is objected to, either in respect to time, or manner, but the exemption is created to prevent the greater public evil, which might arise from the punishment of the offender. To obviate therefore any imminent danger, if no other proper method can be devised, ambassadors may be detained and interrogated. Thus the Roman Consuls seized the ambassadors of Tarquin, previously taking care to secure their papers, to prevent the evidence, which they might afford, from being destroyed. But if an ambassador excites and heads any violent insurrection, he may be killed, not by way of punishment, but upon the natural principle of self-defence. The Gauls therefore might have put to death the Fabii, whom Livy calls violators of the law of nature.

V. Mention has before been frequently made of the exemptions, by which ambassadors are protected from all personal constraint and violence, and it is understood that all powers are bound by a tacit agreement, as it were, from the time of admitting an ambassador, to respect these exemptions. It MAY and indeed sometimes DOES happen, that one power gives notice to another that no ambassador will be received, and if one is sent, that he will be treated as an enemy. A declaration to this effect was made by the Romans to the Aetolians, and, on another occasion, the Vejentian ambassadors were ordered to leave Rome, with a menace, if they refused to comply, of being treated in the same manner as the Roman ambassadors had been treated by their king Tolumnius, who had put them to death. The Samnites too forbade the Romans to go to any council in Samnium, under pain of forfeiting their lives, or, at least, their personal safety.

The above law does not bind a power, through whose territories ambassadors pass without leave. For, if they are going to an enemy of that power, or returning from him, or are engaged in any hostile design, they may lawfully be treated as enemies; which was done by the Athenians in the case of the messengers passing between the Persians and Spartans, and by the Illyrians in that of those, who carried on the intercourse between the Essians and Romans. Xenophon maintains that in certain cases they may be made prisoners, as Alexander made those, who were sent from Thebes and Lacedaemon to Darius, and the Romans those, whom Philip sent to Hannibal, and Latius those of the Volscians. For to treat ambassadors with any degree of rigour, EXCEPT UPON THOSE SUFFICIENT GROUNDS, would be deemed not only a breach of the law of nations, but a personal offence against the sovereigns, to whom they are going, or by whom they are sent. Justin informs us, that Philip II, king of Macedon, sent an ambassador to Hannibal with credentials, empowering him to make an alliance, and that, when this ambassador was seized and carried before the Senate of Rome, they dismissed him without farther molestation, not out of respect to the king, but to prevent a doubtful enemy from becoming a decided one.

VI. But if an embassy, admitted by an ENEMY is entitled to all the privileges of the law of nations, much more so is one, admitted by a power UNFRIENDLY, but not engaged in ACTUAL HOSTILITIES. Diodorus Siculus says, that a messenger with a flag of truce claims all the security of peace, even in the midst of war. The Lacedaemonians, who had murdered the heralds of the Persians, were said by that act to have confounded every distinction between right and wrong, as it is acknowledged by all nations. For legal writers lay it down as a rule, that to offer personal violence to ambassadors, whose characters are deemed sacred, is a defiance of the law of nations, and Tacitus calls the privileges we are now discussing, the rights of embassy, sanctified by the law of nations.

Cicero, in his first speech against Verres, asks, if ambassadors ought not to be safe in the midst of an enemy's country, or even in his camp? Innumerable other instances of this kind might be produced from the highest authorities both ancient and modern. And it is with reason that such privileges are revered, for in the midst of war many circumstances arise, which cannot be decided but through ambassadors, and it is the only channel through which proposals of peace can be made, and confirmed.

VII. It is frequently made a subject of inquiry, whether the ambassador of a sovereign, who has exercised any act of cruelty or rigour, will be subject to the law of retaliation. History furnishes many instances, in which punishment has been inflicted in such a manner. But history is sometimes nothing more than a catalogue of actions marked with injustice, and ungovernable fury. Whereas the law of nations, by its privileges, designs to secure the dignity not only of sovereigns themselves, but also that of the ambassadors whom they employ. Consequently there is a tacit agreement understood to be made with the latter, that HE shall be exempt, not only from any ill treatment, that may affect the principal, but from such likewise, as may affect himself. So that it was a magnanimous answer, conformable to the law of nations, which Scipio made, when the Roman ambassadors had been ill-treated by the Carthaginians, and the Carthaginian ambassadors were brought before him, upon his being asked, in what manner they should be treated, he replied, not as the Roman ambassadors had been by the Carthaginians. Livy adds, that he said, he would do nothing unbecoming the character and laws of the Roman people. Valerius Maximus assigns the same language to the Consuls, on an occasion similar, but prior to this. In addressing Hanno, they said, "the pledge of faith, which our state has given, releases you from any such fear." For even at that time, Cornelius Asina, in violation of his public character, had been arrested and thrown into prison by the Carthaginians.

VIII. The train too of an ambassador, and all the plate belonging to him are entitled to a peculiar kind of protection. Which gave rise to the passage in the ancient song of the Heralds, "O Sovereign, do you make me a royal messenger from the Roman citizens? and do you confer the same privileges on my train and every thing, which belongs to me?" And by the Julian law, an injury affecting not only ambassadors, but even their attendants, is pronounced to be a violation of public right.

But these privileges of attendants are only granted so far as an ambassador himself may think proper: so that if any of them has committed an offence, he must be required to deliver up the offender to punishment. He must be REQUIRED to give him up. Because no violence, in taking an offender of that description must be used. When the Achaeans had arrested some Lacedaemonians who were along with the Roman ambassadors, the Romans raised a great outcry against the act, as a violation of the law of nations. Sallust's opinion in the case of Bomilcar has already been referred to.

But should the ambassador refuse to give up such offender, redress must be sought in the same manner, as would be done with respect to the ambassador himself. As to his authority over his household, and the asylum, which he may afford in his house to fugitives, these depend upon the agreement made with the power, to whom he is sent, and do not come within the decision of the law of nations.

IX. Neither can the moveable property of an ambassador, nor any thing, which is reckoned a personal appendage, be seized for the discharge of a debt, either by process of law, or even by royal authority. For, to give him full security, not only his person but every thing belonging to him must be protected from all compulsion. If an ambassador then has contracted a debt, and, as is usual, has no possession in the country, where he resides: first of all, courteous application must be made to himself, and, in case of his refusal, to his sovereign. But if both these methods of redress fail, recourse must be had to those means of recovery, which are used against debtors residing out of the jurisdiction of the country.

X. Nor is there, as some think, any reason to fear, that if such extensive privileges were established, no one would be found willing to enter into any contract with an ambassador, or to furnish him with necessary articles. For the same rule will hold good in the case of ambassadors, as in that of Kings. As sovereigns, who for the best of reasons, are placed above the reach of legal compulsion, find no difficulty in obtaining credit.

XI. The importance of such exemptions may be easily inferred from the innumerable instances, in which both sacred and profane history abound, of wars undertaken on account of the ill-treatment of ambassadors. The war which David made against the Ammonites, on that account, affords us a memorable instance from holy writ; and as a profane writer, Cicero may be cited, who deemed it the most justifiable ground of the Mithridatic war.

CHAPTER XIX.
On the Right of Burial.

Right of burying the dead founded on the law of nations—Origin of this right—Due to enemies—Whether due to those guilty of atrocious crimes—Whether to those, who have committed suicide—Other rights also authorised by the law of nations.

I. The right of burying the dead is one of those originating in the voluntary law of nations. Next to the right of ambassadors Dion Chrysostom places that of burying the dead, and calls it a moral act, sanctioned by the unwritten law of nature: And Seneca, the elder, ranks the law, which commands us to commit the bodies of the dead to their parent earth, among the UNWRITTEN precepts, but says, they have a stronger sanction than the RECORDED laws of all ages can give. For, in the language of the Jewish writers, Philo and Josephus, they are marked with the seal of nature, and under the name of nature, we comprehend the customs, that are common to all mankind, and agreeable to natural reason.

We find it some where said by Aelian, that our common nature calls upon us to cover the dead, and some writer, in another place, observes that all men are reduced to an equality by returning to the common dust of the earth. Tacitus informs us, in b. vi. of his Annals, that, when Tiberius made a general massacre of all, who had been connected with Sejanus, and that he forbad them the rites of burial, every one was struck with horror to see the last offices of humanity refused; offices, which Lysias the orator calls the common hopes of our nature.

As the ancients measured the moral character of every people by their observance or neglect of these rights, in order to give them a greater appearance of sanctity, they ascribed their origin to the authority and institutions of their Gods; so that in every part of their writings we meet with frequent mention of the rights of ambassadors, and the rights of burial, as founded upon divine appointment.

In the Tragedy of the Suppliants, Euripides calls it the law of the Gods, and in the Antigone of Sophocles, the heroine makes the following reply to Creon, who had forbidden any one under pain of death, to give the rites of burial to Polynices, "A prohibition, like this, was not revealed by the supreme will, nor by that heaven-born justice, which has established those laws of respect for the dead: nor did I think that you could command mortals to transgress the unwritten and inviolable laws of God. They were not established to-day, nor yesterday, but from all eternity and will for ever be in force. Their sources are unknown. Am I through fear of a mortal, and by obeying his unjust commands, to incur the wrath of Heaven?"

The authority of Isocrates, and of Herodotus, and that of Xenophon, in the sixth book of his Grecian History, may be appealed to in support of the honours, that have at all times been paid to the dead. In short, these offices of humanity are recommended by the conspiring testimony of the orators, historians, poets, philosophers and divines of all ages, who have dignified them with the names of the most splendid virtues.

II. There seems to be no general agreement of opinion upon the origin of funeral rites, and the variety of ways, in which they were performed. The Egyptians EMBALMED, and most of the Greeks BURNED the bodies of the dead before they committed them to the grave. Cicero, in the 22d chapter of his second Book on Laws, speaks of the interment alone, which is now in use, as the most ancient method, and that, which is most congenial to nature, and in this he is followed by Pliny.

Some think that men paid it as a VOLUNTARY debt of nature, which they knew that, AT ANY RATE, they would be obliged to discharge. For the divine sentence, that the body should return to the dust, from which it was taken, was not passed upon Adam only, but, as we find it acknowledged by the writings of Greece and Rome, extended to the whole human race. Cicero, from the Hypsipyle of Euripides, says, "Earth must be returned to earth," and in the twelfth chapter of Solomon's Ecclesiastes, there is a passage to the same purport, that "the dust shall return to the earth as it was, but the spirit to God, who gave it." Euripides has enlarged on this subject in the character of Theseus in his Suppliants, "Suffer the dead to be laid in the lap of the earth; for every thing returns to its original state, the spirit to heaven, and the body to the earth: Neither of them is given in plenary possession, but only for a short use: The earth soon demands back the bodies, to which she had given birth and nourishment." In the same manner Lucretius calls the earth "a prolific parent and a common grave." Pliny also describes the earth, as receiving us at our birth, cherishing our growth, supporting us to the very last, and, when all the other parts of nature have forsaken us, taking us to her maternal bosom, and covering us with a mantle.

There are some, who think that the custom of burial was bequeathed to us by our first parents as a testamentary hope of a resurrection. For we are instructed by Democritus to believe, that our bodies are preserved in the earth under the promise of a restoration to life. And Christians in particular have frequently ascribed the custom of decent burial to the same hope. Prudentius a Christian poet says, "What can be the meaning of hallowed rocks, or splendid monuments, except that they are the depositories of bodies, consigned not to death, but to a temporary sleep?"

But the most obvious explanation is to be found in the dignity of man, who surpassing other creatures, it would be a shame, if his body were left to be devoured by beasts of prey. It is an act of compassion then, said Quintilian, to preserve the bodies of men from ravages of birds and beasts. For to be tore by wild beasts, as Cicero observes in his first book On Invention, is to be robbed of those honours, in death, which are due to our common nature. And the Roman Poet, makes a lamentation over one of his heroes, that he had no pious mother to lay his body in the grave, but he would be left a prey to birds, or thrown into the river as food for fishes. Aen. x. 557–560.

But to speak from still higher authority, God, by the mouth of his prophets, threatens the wicked that they shall have burial like that of the brutes, and that the dogs shall lick their blood. Such a menace denounced against the wicked, as a punishment, shews that it is an indignity done to our nature, when, in the words of Lactantius, the image of God is cast out, to the insults of beasts of prey. But in such indignity if there was even nothing repugnant to the feelings of men, still the nakedness and infirmities of our perishable nature should not be exposed to the eye of day.

Consequently the rights of burial, the discharge of which forms one of the offices of humanity, cannot be denied even to enemies, whom a state of warfare has not deprived of the rights and nature of men. For, as Virgil observes, all animosity against the vanquished and the dead must cease. Aen. xi. 104. Because they have suffered the last of evils that can be inflicted. "We have been at war, I grant, says Statius, but our hatred has fallen, and all our enmity is buried in the grave." And Optatus Milevitanus assigns the same reason for reconciliation. "If there have been struggles among the living, your hatred surely must be satisfied with the death of an adversary. For the tongue of strife is now silenced."

III. Upon the principles advanced above, it is agreed by all that public enemies are entitled to burial. Appian calls it the common right of war, with which, Tacitus says, no enemy will refuse to comply. And the rules, respecting this, are, according to Dio Chrysostom, observed, even while the utmost rage of war still continues. "For the hand of death, as the writer just quoted observes, has destroyed all enmity towards the fallen, and protected their bodies from all insult." Examples to this purpose may be found in various parts of history. Alexander ordered those of the enemy, that were killed at the battle of Issus to be honoured with the rites of burial, and Hannibal did the same to Caius Flaminius, Publius Aemilius, Tiberius Gracchus, and Marcellus, the Roman Generals. So that you would suppose, says Silius Italicus, he had been paying these honours to a Carthaginian General. The Romans treated Hanno, and Pompey Mithridates in the same manner. If it were necessary to quote more instances, the conduct of Demetrius on many occasions, and that of Antony to king Archelaus might be named.

When the Greeks were at war with the Persians, in one part of their military oath they swore to bury all the dead belonging to the ALLIES, and when they were victorious, to bury even the BARBARIANS. After a battle, it was usual for both sides to obtain leave to bury the dead. Pausanias, in his account of the Athenian affairs, mentions the practice of the Athenians who buried the Medes, regarding it as an act of piety due to all men. We find from the Jewish writers, that for the same reason, their high priests, who were forbidden to come near a dead body, if they found one, were obliged to bury it. But Christians deemed BURIAL an act of such importance, that they would allow their church-plate to be melted down, and sold to defray the expences as they would have done to maintain the poor, or to redeem captives.

There are some few instances to the contrary, but they are reprobated by the universal feelings of mankind, and such cruelty deprecated in the most solemn terms. Claudian calls it a bloody deed to plunder the dead, and still more so to refuse them the covering of a little sand.

IV. Respecting those, who have been guilty of atrocious crimes, there is reason to entertain some doubt, whether the right of burial is due to them.

The divine law indeed, that was given to the Hebrews, and which is fraught with every precept of virtue and humanity, ordered those, who were crucified, which was the most ignominious kind of punishment that could be inflicted, to be buried on the same day. Owing to this law, as Josephus observes, the Jews paid such regard to burial, that the bodies of those, who were executed publicly as criminals, were taken away before sun-set, and committed to the ground. And other Jewish writers are of opinion that this was intended as a degree of reverence to the divine image, after which man was formed.

To allow burial to criminals must have been the practice in the time of Homer: for we are told, in the third book of the Odyssey, that Ægisthus, who had added the crime of murder to that of adultery, was honoured with funeral ceremonies by Orestes, the son of the murdered king. It was the custom with the Romans, as may be seen from Ulpian, never to refuse giving the bodies of criminals to their relatives, to bury. The Emperors, Diocletian, and Maximian, in a rescript, declared, that they did not refuse to deliver up, for burial, those, who had deservedly been put to death for their crimes.

In reading the history of civil wars; we find more frequent instances of indignities offered to the dead, than in the accounts of any foreign wars. In some cases, the bodies of executed criminals are exposed to public view, and hung in chains, a custom the propriety of which is very much doubted both by Theological and Political writers. So far from approving of the practice, we find such writers bestowing praises upon many, who had ordered funeral honours to be paid to those, who would not themselves have allowed the same to others. An action of this kind was done by Pausanias the Lacedaemonian, who, being urged by the people of Aegina to retaliate upon the Persians for their treatment of Leonidas, rejected the advice, as unbecoming his own character and the Grecian name. The Pharisees allowed burial even to King Jannaeus Alexander, who had treated the dead bodies of their countrymen with every kind of insult. Though indeed on certain occasions, God may have punished some offenders with the loss of such a right, he did so by virtue of his own prerogative, which places him above the restrictions of all law. And when David exposed the head of Goliah, it was done to one, who was an alien, and a despiser of God, and might be justified by that law, which confined the name and privileges of neighbour to the Hebrews.

V. There is one thing not improper to be observed, that the rule prevailing among the Hebrews with respect to burying the dead, contained an exception, as we are informed by Josephus, excluding those, who had committed suicide. Nor is it surprising that a mark of ignominy should be affixed to those, on whom death itself cannot be inflicted as a punishment. Aristotle in the fifth book of his Ethics, speaks of the infamy universally attached to suicide. Nor is the observation at all weakened by the opinions of some of the Grecian poets, that as the dead are void of all perception, they cannot be affected either by loss or shame. For it is a sufficient reason to justify the practice, if the living can be deterred from committing actions, for which they see a mark of infamy set upon the dead.

In opposition to the Stoics, and others, who admitted the dread of servitude, sickness, or any other calamity, or even the ambitious love of glory to be a just cause of voluntary death, in opposition to them, the Platonists justly maintain, that the soul must be retained in the custody of the body, from which it cannot be released, but at the command of him, who gave it. On this subject there are many fine thoughts in Plotinus, Olympiodorus, and Macrobius on the dream of Scipio.

Brutus, following the opinions of the Platonists, had formerly condemned the death of Cato, whom he himself afterwards imitated. He considered it as an act of impiety for any one to withdraw himself from his allegiance to the supreme being, and to shrink from evils, which he ought to bear with fortitude. And Megasthenes, as may be seen, in Strabo book xv. remarked the disapprobation, which the Indian sages expressed of the conduct of Calanus: for it was by no means agreeable to their tenets, that any one, through impatience, should quit his post in life. In the fifth book of Quintus Curtius, there is an expression of King Darius to this effect, that he had rather die by another's guilty hand than by his own. In the same manner the Hebrews call death a release, or dismission, as may be seen not only in the Gospel of St. Luke, ch. ii. v. 19, but in the Greek version of the Old Testament, Gen. xv. 2, and Numb. xx, towards the conclusion: and the same way of speaking was used by the Greeks. Plutarch, in speaking of consolation, calls death the time, when God shall relieve us from our post.

VI. There are certain other rights too, which owe their origin to the voluntary law of nations, such as the right of possession from length of time, the right of succession to any one who dies intestate, and the right resulting from contracts, though of an unequal kind. For though all these rights, in some measure, spring from the law of nature, yet they derive their confirmation from human law, whether it be in opposition to the uncertainty of conjecture, or to certain other exceptions, suggested by natural reason: points, all of which have been slightly touched upon in our discussions on the law of nature.

CHAPTER XX.
On Punishments.

Definition and origin of punishment—In what manner punishment relates to strict justice—The right of punishing allowed by the law of nature, to none, except to those, who are innocent of the crimes and misdemeanours to be punished—Difference of motive between human and divine punishment—In what sense revenge is naturally unlawful—The advantages of punishment, threefold—The law of nature allows any one to inflict punishment upon an offender, yet with a distinction—The regard which the law of nations pays to the benefit of the injured party, in the infliction of punishment—General utility of punishments—What is determined by the law of the Gospel, in this respect—Answer to the objections founded upon the mercy of God, as displayed in the Gospel—Capital punishments objected to as cutting off all possibility of repentance—Not safe for private Christians to inflict punishments, even when allowed to do so, by the law of nations—Prosecutions, for certain offences, to be carried on in the name of the public and not of individuals—Internal acts not punishable by man—Open acts, when inevitable through human infirmity not punishable—Actions, neither directly nor indirectly injurious to society, not punishable by human laws—The reasons of that exemption—The opinion, that pardon can never be granted, refuted—Pardon shewn to be allowable before the establishment of penal law—But not in all cases—Allowable also subsequently to the establishment of penalties—Internal and external reasons—Opinion, that there can be no just reason for dispensing with laws, except where such dispensation can be implied as authorised by the law, examined and refuted—Punishment estimated by the desert of the offender—Different motives compared—Motives which ought to restrain men from sin—Scale of offences according to the precepts of the Decalogue—Capacity of the offender—Punishment mitigated from motives of charity, except where there are stronger motives of an opposite kind—Facility or familiarity of crimes aggravates their nature—Clemency, proper exercise of—Views of the Jews and Romans in inflicting punishment—War considered as a punishment—Whether hostilities can justly be commenced for intended aggressions—Whether Kings and Nations are justified in making war to punish offences against the law of nature, not immediately affecting themselves or their subjects—The opinion, that jurisdiction is naturally necessary to authorise punishment, refuted—Distinction between the law of nature, and civil customs, and the divine voluntary law—The question, whether war can be undertaken to punish acts of impiety—considered—The being of God, whence known—Refusal to embrace the Christian religion not a sufficient cause of war—Cruel treatment of Christians, justifiable cause of war—Open defiance of religion punishable.

I. In the preceding part of this treatise, where the causes, for which war may be undertaken, were explained, it was considered in a two-fold light, either as a reparation for injuries, or as a punishment. The first of these points having been already cleared up, the latter, which relates to punishments, remains to be discussed, and it will require a more ample investigation; for the origin and nature of punishment, not being perfectly understood, has given rise to many errors.

Punishment taken in its most general meaning signifies the pain of suffering, which is inflicted for evil actions. For although labour may some times be imposed instead of punishment; still it is considered in that case, as a hardship and a grievous burden, and may therefore properly be classed with sufferings. But the inconveniences, which men are some times exposed to, by being excluded from the intercourse of society and the offices of life, owing to infectious disorders, or other similar causes, which was the case with the Jews on account of many legal impurities, these temporary privations are not to be strictly taken for punishments: though from their resemblance to each other, they are often, by an abuse of terms, confounded.

But among the dictates laid down by nature, as lawful and just, and which the ancient Philosophers call the law of Rhadamanthus, the following maxim may be placed, THAT IT IS RIGHT FOR EVERY ONE TO SUFFER EVIL PROPORTIONED TO THAT WHICH HE HAS DONE.

Which gave occasion to Plutarch, in his book on exile, to say that "justice is an attribute of God, avenging all transgressions of the divine law; and we apply it as the rule and measure of our dealings with each other. For though separated by the arbitrary or geographical bounds of territory, the eye of nature looks upon all, as fellow subjects of one great empire." Hierocles gives a fine character of justice, calling it the healing remedy of all mischief. Lactantius in speaking of the divine wrath calls it "no inconsiderable mistake in those, who degrade human or divine punishment with the name of cruelty or rigour, imagining that some degree of blame must always attach to the punishment of the guilty." What has been said of the inseparable connection of a penalty with every offense is similar to the remark of Augustin, "that to make a punishment JUST, it must be inflicted for some crime." He applies the expression to explain the divine justice, where through human ignorance, the offence is often undiscoverable though the judgment may be seen.

II. There are diversities of opinion whether punishment comes under the rank of ATTRIBUTIVE or that of STRICT justice. Some refer it to justice of the attributive kind, because offences are punished more or less, in proportion to their consequences, and because the punishment is inflicted by the whole community, as it were, upon an individual.

It is undoubtedly one of the first principles of justice to establish an equality between the penalty and the offence. For it is the business of reason, says Horace, in one of his Satires, to apply a rule and measure, by which the penalty may be framed upon a scale with the offence, and in another place, he observes, that it would be contrary to all reason to punish with the rack a slave, who deserved nothing more than the whip. I. Sat. iii. v. 77, and 119. The divine law, as may be seen from the xxv. Chapter of Deuteronomy, rests upon the same principle.

There is one sense, in which all punishment may be said to be a matter of strict justice. Thus, when we say that punishment is due to any one, we mean nothing more than that it is right he should be punished. Nor can any one inflict this punishment, but the person, who has a right to do so. Now in the eye of the law, every penalty is considered, as a debt arising out of a crime, and which the offender is bound to pay to the aggrieved party. And in this there is something approaching to the nature of contracts. For as a seller, though no EXPRESS stipulation be made, is understood to have bound himself by all the USUAL, and NECESSARY conditions of a sale, so, punishment being a natural consequence of crime, every heinous offender appears to have VOLUNTARILY incurred the penalties of law. In this sense some of the Emperors pronounced sentence upon malefactors in the following manner, "you have brought this punishment upon Yourselves." Indeed every wicked action done by design was considered as a voluntary contract to submit to punishment. For, as Michael the Ephesian observes on the fifth book of Aristotle's Nicomachean Ethics, the ancients gave the name of contract, not only to the voluntary agreements which men made with each other, but to the obligations arising from the sentence of the law.

III. But to whom the right of punishing properly belongs, is a matter not determined by the law of NATURE. For though reason may point out the necessity of punishing the guilty, it does not specify the PERSON, to whom the execution of it is to be committed.

Natural reason indeed does so far point out the person, that it is deemed most SUITABLE for a SUPERIOR ONLY to be invested with the power of inflicting punishment. Yet this demonstration does not amount to an ABSOLUTE NECESSITY, unless the word superior be taken in a sense implying, that the commission of a crime makes the offender inferior to every one of his own species, by his having degraded himself from the rank of men to that of the brutes, which are in subjection to man; a doctrine, which some Theologists have maintained. Philosophers too agreed in this. For Democritus supposed that power naturally belonged to superior merit, and Aristotle was of opinion that both in the productions of nature and art the inferior were provided for the use of the superior parts.

From this opinion there arises a necessary consequence, that in a case where there are equal degrees of guilt in two parties, the right of punishment belongs to neither.

In conformity to which, our Saviour, in the case of the woman taken in adultery, pronounced that whoever of the accusers was without sin, meaning sins of equal enormity, should cast the first stone. John viii. 7. He said so for this reason, because in that age the manners of the Jews were so corrupt, that, under a great parade of sanctity, the most enormous vices, and the most wicked dispositions were concealed. A character of the times which the Apostle has painted in the most glowing colours, and which he closes with a reproof similar to what his divine master had given, "therefore thou art inexcusable, O man, whosoever thou art that judgest: for wherein thou judgest another thou condemnest thyself; for thou that judgest doest the same things." Rom. ii. 1. Applicable to which there is a remark of Seneca's, that "no sentence, which is passed by a guilty person can have any weight." And in another place, the same writer observes, that "if we look into ourselves and consider whether we have been guilty of the offences we are going to condemn, we shall be more moderate in our judgments."

IV. Another part of our inquiry respects the end proposed by punishment. For by what has hitherto been said, it was only meant to shew that in punishing the guilty no injury is done to them. Still the absolute necessity of punishment does not follow from thence. For the pardon of the guilty on many occasions has been considered as the most beauteous feature in the divine and human character. Plato is celebrated for his saying that "justice does not inflict punishment for the evils that are done and cannot be retrieved; but to prevent the same from being done for the time to come." From Thucydides we find that Diodorus in addressing the Athenians on the conduct of the Mitylenaeans, advises them "to forbear punishing their avowed injustice, unless it was probable that the punishment would be attended with some good effect."

These maxims may be true with regard to human punishments: for one man being so nearly allied to another by blood, no degree of suffering should be inflicted, but for some consequent good. But the case is different with respect to God, to whom Plato injudiciously applies the above sentiments. For though the divine counsels will undoubtedly have the good of men in view, as the end of all punishment, yet the bare reformation of the offender cannot be the sole object. Since the divine justice, though tempered with mercy must adhere to the truth of the revealed word, which threatens the wicked with punishment or destruction.

The honour therefore of God, as well as the example held up to men, will be a consequence resulting from his punishment of the wicked.

V. A dramatic writer has said that "the pain of an enemy is a healing remedy to a wounded spirit," in which he agrees with Cicero and Plutarch: in the opinion of the former "pain is mitigated by the punishment of an adversary," and in that of the latter "satisfaction is a sweet medicine to a troubled mind."

But a disposition like this, when stripped of all disguise and false colouring, will be found by no means suitable to the reasonable soul of man, whose office it is to regulate and controul the affections. Nor will that disposition receive any sanction from the law of nature, who in all her dictates, inclines to unite men in society by good will, rather than to separate them by cherishing animosity. For it is laid down by reason, as a leading axiom in her code of laws, that no man shall do any thing which may hurt another, unless it be for the purpose of some evident and essential good. But the pain of an enemy considered solely of such, is no benefit to us, but a false and imaginary one, like that derived from superfluous riches or things of the same kind.53

In this acceptation revenge is condemned both by Christian teachers and heathen philosophers. In this respect, the language of Seneca approaches very near to the perfection of Christian morals. He calls revenge, in its usual and proper acceptation, a term of inhumanity, differing from injury only in degree. For retaliation of pain can be considered as nothing better than excusable sin. Juvenal, after describing the different tempers, over which revenge exercises the most powerful dominion, and shewing the amiable characters over which it has no influence, concludes it to be the pleasure of a little and infirm mind.

From the preceding arguments it is plain that punishment cannot justly be inflicted from a spirit of revenge. We proceed therefore to consider the advantages attending its just infliction.

VI. This seems the most proper place for reviewing those distinctions in the motives of punishment, which have been used by Plato in his Gorgias, and by Taurus the philosopher in a passage quoted by Gellius in the fourteenth chapter of his fifth book. These distinctions seem to result naturally from the end of all punishment. Plato indeed considers the amendment of the offender, and the example given to others, as the two principal motives: but Taurus has added a third, which he calls satisfaction, and which is defined by Clemens Alexandrinus, to be repayment of evil, contributing to the benefit of both the aggrieved and avenging party. Aristotle passing over example as a motive, confines the object of punishment to the amendment or correction of the offender. But Plutarch has not made the same omission: for he has said, that "where immediate punishment follows the execution of a heinous crime, it both operates to deter others from committing the same crime, and administers some degree of consolation to the injured and suffering person." And this is what Aristotle calls commutative justice. But these matters require a more minute inquiry. We may observe therefore that there is nothing contrary either to human or divine law, in punishments, which have the good of the offender, or that of the injured party, or of any persons whatsoever in view.

The three proper ends are obtained by that kind of punishment, which some philosophers have called correction, some chastisement, and others admonition. Paulus the Lawyer, has given it the name of correction; Plato styles it a lesson of instruction, and Plutarch a medicine of the soul, reforming and healing the sufferer, while it operates as a painful remedy. For as all deliberate acts, by frequent repetition, produce a propensity, which ripens into habit, the best method of reforming vices in their earliest stage is to deprive them of their sweet savour by an infusion of subsequent pain. It is an opinion of the Platonists, repeated by Apuleius, that "impunity and the delay of reproof are more severe and pernicious to an offender than any punishment whatsoever," and, in the words of Tacitus, "violent disorders must be encountered with remedies proportionably strong."

VII. The power of inflicting the punishment, subservient to this end, is allowed by the law of nature to any one of competent judgment, and not implicated in similar or equal offences. This is evident as far as verbal reproof goes, from the maxim of Plautus, that "to bestow merited reproof upon a friend is useful, upon certain occasions, though by no means a grateful office." But in all kinds of constraint and compulsion, the difference made between the persons, who are allowed, and who are not allowed to exercise it is no appointment of natural law, but one of the positive institutions of the civil law. For no such natural distinction could be made, any farther than that reason would intrust parents with the peculiar use of such an authority, in consideration of their affection. But laws, in order to avoid animosities, have, with respect to the authority of punishing, passed over the common kindred subsisting among mankind, and confined it to the nearest degrees of relation: as may be seen in many records, and particularly in the code of Justinian, under the title of the POWER OF RELATIVES TO CORRECT IN ORDER TO REFORM OFFENDERS. And Cyrus, in the v. book and viii. chapter of Xenophon's history of the Expedition, addresses the soldiers to the following purport, "If I punish any one for his good, I am willing to submit to justice; but would it not be equally reasonable that parents and masters should submit to justice, for having corrected children, or the Surgeon be responsible for having used the incision-knife, where the patient's case required it?"

But this kind of corrective punishment does not extend to death, which cannot be considered, as a benefit in itself, except INDIRECTLY and BY WAY OF REDUCTION, as it is called by Logicians, who, in order to confirm negatives, reduce them to things of an opposite kind. Thus, in Mark xiv. 21, when our Saviour says, that it were better for some, they had never been born, so, for incurable dispositions, it is better, that is would be a less evil, to die than to live; since it is certain that by living they will grow worse. Plutarch calls such men a pest to others, but the greatest pest to themselves. Galen says that capital punishments are inflicted to prevent men from doing harm by a longer course of iniquity, and to deter others by the fear of punishment, adding that it is better men should die, when they have souls so infected with evil, as to be incurable.

There are some, who think that these are the persons meant by the Apostle John, who describes them as sinning a sin unto death. But as their arguments are not satisfactory, charity requires that no one should be deemed incorrigible, except upon the clearest grounds. So that punishment with such an end in view can only be inflicted for important causes.

VIII. The benefit accruing to an injured person from the punishment of an offender consists in his being secured in future against a recurrence of the same injury from that offender, or from others. There are three ways of preventing this recurrence—by removing the offender—by depriving him of the power of doing harm, or lastly by compelling him to better habits of thought or action, which is the reformation produced by the punishment already spoken of. It is not every kind of punishment, which can produce such effects; it must be open and conspicuous, to operate as an example, that may deter others from the commission of the same crimes. A vindictive punishment, inflicted by an injured individual, or by any other person, when it is restrained by bounds and limitations of this kind, has nothing unlawful in it considering the law of nature by itself, apart from all human and divine institutions, and every adventitious circumstance, that may create a deviation from the primitive dictates of nature. We have said that it may be inflicted by any other individual, as well as by the injured person: for it is conformable to nature, that one man should assist another. But as our judgment is apt to be biassed by our affections, in cases, where our interest is concerned; since the formation of families into states, judges have been appointed, and invested with the power of punishing the guilty, whereby the natural liberty of personal redress, originally allowed to individuals, was abolished, or at least abridged. And it is only in places, on the seas for instance, where no judicial remedy can be obtained, that this natural liberty continues in force. There is a circumstance related of Julius Caesar, applicable to this subject. While he was only in a private station, being taken prisoner by some pirates, after he had redeemed himself by a sum of money, he applied to the proconsul for redress. But his application being neglected, he fitted out a certain number of ships, attacked and defeated the pirates, and ordered them all to be crucified.

The practice of private individuals, exercising punishment, was the origin of single combats, so familiar to the Germans before the introduction of Christianity, and not yet sufficiently laid aside. We are informed by Velleius Paterculus, in his second book, that the Germans were surprised to see the forms of Roman jurisprudence, and those disputes, which they themselves decided by the sword, settled by law. By the Jewish law, the nearest in blood to the deceased were allowed to kill a murderer, if taken beyond the places of refuge. And the Jewish interpreters observe, that in GENERAL the infliction of punishment, as a retaliation for murder, it intrusted to no hand, but that of the judge: as it is difficult for an individual in his own case to moderate his resentment. The same custom of allowing individuals to avenge their own wrongs prevailed among the ancient Greeks, as we find from the words of Theoclymenes, in Homer's Odyssey. But it prevailed most in countries, where public courts of justice were not established. From hence St. Augustin defines those wars to be just, which are intended to avenge injuries. And Plato, in his twelfth book ON A COMMONWEALTH, justifies the prolongation of hostilities, till the aggressor is reduced to submit to just, and equitable terms.

IX. General utility which was considered as the third end proposed by punishment, may be divided into the same number of parts, as the benefit accruing from thence to individuals. For these are the objects in view, either to prevent the individual, who has injured one person, from doing injury to others: an object which can be accomplished only by removing the offender, disarming him of the means of farther injury, or by reforming him: or it may be inflicted to deter others from being allured, by an example of impunity, to commit acts of molestation or enmity. And the infliction of punishment, for such reasons, is a RIGHT granted by the law of nature to every individual. Upon this principle, Plutarch observes in the life of Pelopidas, that good men are designed by nature for the office of perpetual magistracy, and superiority belongs to those, in whom the characters of truth and justice unite.

But as it requires a painful degree of patience to examine into facts, and no inconsiderable share of skill and equity to affix the extent of punishments; in order to prevent quarrels from arising through the presuming conceit, which every man entertains of his own wisdom, and to which others are averse to yield; in all well regulated communities, it has been usual to select for the tribunals of justice those, who were deemed worthy of such honour, or likely to become so, from their integrity and wisdom. Democritus has said, there would have been no occasion for laws to prevent every man from living according to his own humour, if one had not done injury to another. For envy was the origin of strife. But as we have just observed, that it happens, in the case of revenge, so in this kind of punishment, inflicted for the sake of example, there are traces and remains of ancient law, in those places, and among those persons, that are subject to no CIVIL jurisdiction; and in certain other cases besides. Thus any Hebrew, according to the customs of that people, if he should turn away from God, or from the law of God, or should seduce others to false worship, might immediately be put to death by any one whatsoever. The Hebrews call that an act of ZEAL, which was first done by Phinehas, and which afterwards became a custom. Thus Mattathias slew a Jew, who was polluting himself with Grecian rites. In the same manner, in the book commonly called the third book of Maccabees, it is related that three hundred other Jews were put to death by their own countrymen. Nor could any other pretext be assigned for stoning Stephen, and conspiring against Paul. Philo, and Josephus abound in instances of this kind. There are many countries where we may trace the remains of primitive law, in the plenary power allowed to masters over their slaves, and to parents over their children, extending even to inflict the punishment of death. So the Ephori of Sparta might put a citizen to death without the formality of trial. From what has been said, it is easy to infer what punishment the law of nature authorises, and how far it has remained in force.

X. We come now to consider whether the law of the Gospel has confined that liberty within closer bounds. It has been observed in another part of this treatise, that it is not surprising that some things, which are allowed by natural and civil law, should be forbidden by the divine law, owing to its great perfection, and the superiority of its rewards over any thing that human nature can bestow. To the attainment of which it is not unreasonable that virtues should be required, far exceeding the simple precepts of nature. Those kinds of correction that leave neither any mark of infamy, nor any permanent injury, but are suited to the age, or other circumstances of the sufferer, if inflicted by those, who derive such a permission from human laws, for instance by parents, guardians, or masters, contain nothing repugnant to the precepts of the Gospel, as may be clearly understood from the nature of the thing itself. For they are remedies to the mind no less harmless than medicines ungrateful to the palate are to the body. But as to revenge the case is different. For the infliction of punishment, only to gratify resentment, so far from being conformable to the Gospel, has been shewn above to be repugnant even to the law of nature.

The Jewish law indeed not only forbids the cherishing of hatred against a neighbour, that is, one of the same country and people, but requires certain common acts of kindness to be bestowed even upon enemies of that description. The Gospel therefore, comprehending all men under the appellation of neighbour, not only forbids us to hurt our enemies, but commands us to do them good; a commandment clearly stated in the Gospel of St. Matthew. Yet the law permitted the Jews to seek revenge for injuries of a more grievous kind, not with their own hands, but by appealing to the judge. But Christ does not give us the same permission, as appears from that opposition which he makes between the permissions of former times, and those of his own law. "You have heard that it was said an eye for an eye—but I say unto you, love your enemies, etc."

For although what follows relates peculiarly to the repelling of injury, and, in some measure, abridges this permission, yet it passes a much greater censure upon revenge, rejecting it as an indulgence suitable only to a more imperfect, and carnal state.

To inflict punishment by way of retaliation was disapproved of even by those of the Jews, who were distinguished for their worth and wisdom; because they regarded not only the LETTER, but the PURPOSE and SPIRIT of the law. This appears from Philo, in whose writings we find the Jews of Alexandria, upon the calamity of Flaccus, their persecutor, addressing themselves to God in the following language, "We do not rejoice, O Lord, in the calamity or punishment of an enemy, being taught by thy holy laws to feel for the miseries of men." And in this case we may apply that general command given by Christ to forgive all who have offended or injured us, that is, neither to do, nor to wish them evil, through resentment of the evil they have done to us. But what can be said of revenge, not as regarding the past, but as providing security for the future? Here too Christ requires of his followers the same disposition to pardon injuries, particularly, if the offender shews any probable signs of repentance. Luke xvii. 3. Eph. iv. 32. Col. iii. 13. In those passages a full remission is intended, such a remission as restores the offender to his former situation of friendship or confidence: and consequently nothing can be required of him under the name of punishment. Besides, if there were no such marks of repentance, the reparation of a loss is not to be pursued with too much rigour; a doctrine inferred from the precept of Christ enjoining us to give up the garment along with the cloak.

But if it is likely that connivance at an offence will be attended with imminent inconvenience and even danger to ourselves, we should be contented with such securities as may be effectual, and at the same time operate with as little prejudice as possible to the offender. For even among the Jews, the law of retaliation was not in use, as we are informed by Josephus, and other writers of that nation. But in addition to the expence incurred, which the law treats of as a separate point, the injured party usually received a pecuniary fine instead of retaliation; the repayment of expences being considered simply as a restitution, and not a penalty.

It remains now to consider punishment, as providing for the PUBLIC and not INDIVIDUAL security, which is accomplished either by removing the guilty person out of the way or by restraining him from doing farther mischief, or by deterring others through the severity of example, none of which means it has been clearly proved were abolished by Christ; for in giving his precepts he affirmed that he destroyed no part of the law. The law of Moses indeed, which in these respects was to remain in force as long as the Jewish Polity existed, strictly enjoined magistrates to punish murder and other similar crimes. But if the precepts of Christ could exist in conjunction with the law of Moses, as far as it imposed capital punishments, surely they may exist in conjunction with human laws, which in this respect are but an imitation of the divine laws.

XI. Some, in support of an opposite opinion, allege the supreme mercy of God, as it is displayed in the new covenant, and which is given as an example for men, and for magistrates, in particular, to follow, who, in the exercise of authority, execute the laws of the Deity. This opinion may in some measure be true, but not to that extent, which the authors of it intend. For the great mercy of God displayed in the new covenant has a peculiar reference to offences against the primitive law, or even against the law of Moses, before the time that men had received a knowledge of the Gospel. For offences committed after the promulgation of the Gospel, especially if they are accompanied with a hardened obstinacy, are treated with much severer judgments than any that were declared by Moses. For God punishes sins of that kind not only in a future state, but in the present life. But for sins of that kind, to obtain the act of mercy and indulgence, the offender must inflict punishment upon himself, not in a slight or trivial manner, but with a heartfelt sorrow, and resolution to sin no more.

In the same manner it is maintained that if men are actuated by repentance, they are ENTITLED to impunity. We do not say that men are never actuated by sincere repentance; but it is not every kind of avowal or acknowledgment, by which God is moved to remit the WHOLE of a punishment, as appears from the case of David. As the supreme judge therefore might dispense with the full penalty of the law, inflicting death, and yet exercise no inconsiderable severity upon offenders, so now he may dispense with the sentence of eternal death, at the same time leaving the sinner to find an early grave by the stroke of some calamity, or by the hand of human justice.

XII. and XIII. Another objection made against capital punishments is that such a kind of sentence and execution is cutting off a criminal from all possibility of repentance. But those, who make the objection, must know, that in cases of that kind, venerable and upright judges use the greatest precautions, and suffer no one to be hurried away to execution, without a reasonable time allowed for reflection and deep abhorrence of his crime: a repentance, which though prevented by the interposing hand of death from producing the fruits of righteousness, we have reason to suppose, from the case of the thief pardoned on the cross, may be accepted with God.

But if on the other hand it be said that longer life might have been of more avail to serious repentance, we may observe that, in some cases, the reply of Seneca may be made, that to men of that description death is often the greatest blessing which can be bestowed; for, in the words of Eusebius, their career of wickedness cannot otherwise be shortened, or reformed. These in addition to the preceding arguments in the former part of this treatise may be deemed a sufficient answer to those, who assert that all capital punishments, and even all punishments, without exception, are abolished by the precepts of our Saviour. The Apostle, consigning to the office of kings the use of the sword, as an exercise of his divine commission to avenge all wrongs, instructs us to pray for kings, that, as true Christians, in their royal capacity, they may be a protection to the innocent. An end, which even after the introduction of the gospel, could not easily be obtained, owing to the depravity of mankind, if the violence of some were not restrained by the exemplary punishment of others. Such authority is the more necessary, when even in the midst of so many examples and punishments, the lives of the innocent are scarcely secure. There have been indeed, it cannot be denied, happy instances where the sentence of death was changed for that of perpetual labour, a practice, as we are informed by Diodorus, followed by Sabacon, king of Egypt, a prince renowned for his piety. Balsamon observes that the penal laws of Rome, inflicting death, were most of them changed by the Christian emperors of later times, and other kinds of punishment were substituted, that the guilty might receive deeper impressions of repentance, and their punishment operate as a more durable example.

XIV. From what has been said, it may be inferred, how unsafe it is for a private Christian, whether from motives of personal interest, or from those of the public good, to take upon himself the punishment of an offender, and particularly to inflict death. Although, as it has been said before, it may, IN SOME CASES, be allowed by the law of nations. A permission, that has given rise to the laudable practice, prevailing in some countries of furnishing adventurers with public instructions and commissions to chase and capture pirates, wherever they may be found. But those adventurers may be considered as discharging a public duty rather than as acting upon their own authority.

XV. A custom not unlike to which prevails in many places, of not allowing individuals to bring criminal charges against others at their own pleasure: that office belonging to persons invested with public authority to undertake it. So that no one can contribute towards shedding the blood of another, but as an act of necessary duty. In reference to this custom, a canon of the council of Eliberis excluded from the communion any believer who had been instrumental in causing the proscription or death of another.

XVIII.54 It is proper now to consider whether all wicked acts are of that kind, which are punishable by human laws. In reply to which we may answer that they certainly are not.—In the first place, mere acts of the mind, or criminal intentions, though by subsequent confession, or some other accident, they may come to the knowledge of others, are not punishable by human laws. Because, as it was proved in a former part of this treatise, it is not consonant to the law of nature, that INTENTIONS ONLY should give rise to any right, or obligation amongst men. And in this sense the maxim of the Roman law is to be taken, THAT NO ONE DESERVES PUNISHMENT FOR MERE THOUGHTS. Yet this does not prevent intentions, when they have an influence upon the conduct, from being considered as actual deeds, and equally deserving of punishment.

XIX. In the second place, even outward acts, cannot be punished by men where they arise through some inevitable infirmity of human nature. For although there can be no sin, except where there is a freedom of will, yet to be at all times free from all infirmity and sin, is more than can be expected from the condition of man. So that Sopater, Hierocles and Seneca among the Philosophers; Philo among the Jews; Thucydides among the historians; and innumerable writers among Christians have maintained that sin is interwoven with our very nature. Nay indeed, a doubt may be entertained whether such acts can rightly and properly be called sins. For though seeming to be voluntary actions, they will be found, when minutely considered, not to proceed from a free and deliberate exercise of the will. "Laws, says Plutarch in the life of Solon, should be framed to suit possible cases, the legislator may obtain every beneficial end by punishing a few offenders, where the indiscriminate punishment of multitudes would be attended with no good effect."

There are some actions, which though not imputable to human nature itself, are inevitable consequences of the influence of bodily habits on the mind. Actions like these are punishable in human courts, owing to the criminality of voluntary contracting, or of not sufficiently guarding against, those habits.

XX. In the third place, human courts of justice cannot take cognizance of those offences, which neither directly nor indirectly, affect the public or individuals. For no reason can be assigned, why such offences should not be left to the judgments of God, whose all-seeing eye must know them, whose equity will weigh them, and whose power can punish them. It would be unnecessary therefore, and presumptuous in human tribunals to assume such decisions. However we must except from this rule those corrective kinds of punishment, designed for the reformation of offenders, even where their conduct is no way injurious to others.

Neither are those actions punishable, which are directly opposite to the virtues of compassion, liberality, or gratitude, in the performance of which virtues natural justice allows of no compulsion.

XXI. The point, necessarily to be considered next, is the opinion, whether it is lawful some times to grant pardon. For the Stoics maintain it not to be lawful, as may be seen from a fragment in Stobaeus, under the title of Magistracy, from Cicero's speech for Murena, and towards the conclusion of Seneca's books on Clemency; but their arguments are fallacious, and unsubstantial. They say "that pardon is the remission of a penalty, that OUGHT to be paid; but a wise man does every thing, which he OUGHT to do." Here the fallacy lies in the use of the word OUGHT. For if it means that an offender owes a penalty, that is, that he may be punished without injustice, it will not necessarily follow that the person who does not punish him, is doing what he ought not to do. But if the word be taken to imply that a good man, or a wise man, ought at all events, to exact the penalty, it may be observed in reply that THIS does not always happen, and therefore, in this sense, the penalty or punishment may be considered, not as a debt, but only a permission. And this will hold good, both before and after the establishment of penal laws.

XXII. Before the establishment of penal laws, punishment, beyond all doubt, might be inflicted; because by the law of nature, every offender made himself subject to punishment; but it is not a natural and inevitable consequence of its being lawful, that it should be enforced. For this depends upon the connection between the ends, for which punishments were established, and the punishments themselves. If the ends proposed therefore are not immediately necessary, in a moral point of view, or if other ends of a different kind, but not less wise and salutary should be devised, or that the ends originally designed may be obtained by some other means, in all these cases, the right of punishment may be saved, there being no immediate occasion to inflict it. Thus for instance, where an offence is known to very few, there can be no immediate occasion for a public punishment, by way of exemplary exposure, which in some cases might be even injurious to society rather than productive of advantage. Upon which Cicero in a letter to his brother makes a pertinent remark, respecting one Zeuxis, observing, that "had he once been brought into court, he could not have been released, but there was no necessity that a search should be made for him, in order to bring him to trial."—In the next place the right and end of punishment may be dispensed with, where a man's own services, or those of his family are sufficient to outweigh the consideration of his offences. "For, in the words of Seneca, an act of kindness eclipses the fault of an injury."—And in the last place, where reproof operates upon an offender, as a means of correction and amendment, or where the injured party is satisfied with an acknowledgment of the offence, the occasion for punishment is done away. It was this motive to clemency, which the son of David had in view, where he observes that it behoves the righteous to be merciful. For as all punishment, especially of the more severe cast, has in it some thing, which tho' not repugnant to justice, is at variance, at least, with charity, reason easily suffers us to forbear inflicting it, unless that forbearance is opposed by some weightier, juster, and more undeniable motive of charity.

XXIII. Cases may occur where it is absolutely necessary to inflict punishment, as upon notorious, and atrocious criminals, or where it is for the public good, to dispense with that severity, or where the judicial authorities may use their own discretion in mitigating or enforcing the sentence of the law. Upon which Seneca pertinently remarks, that the exercise of lenity should always be an act of free deliberation. As to the disputes of the Stoics on these points, they are, in the opinion of Cicero and others, debates upon words rather than things: consequently they are less worthy of philosophical contemplation.

XXIV. There seems to be a greater difficulty in deciding what is to be done, subsequently to the establishment of penal laws; because a legislator is bound, in some measure, by his own laws. But this, as it was proved in a former part of this treatise, is only true with respect to the legislator, in his individual capacity, as a private member of the state, but not in his public character, in which he represents the whole Majesty and Authority of the state itself. As such, he can entirely repeal the law: for it is the nature of all human laws, to depend upon the will of the maker, not only for their origin, but also for their duration. Yet a lawgiver ought not, upon trivial grounds, to repeal a statute, for, in so doing he would be acting against the rules of sovereign justice. But as the legislator has power to repeal the whole of a law, so in the case of some particular person, or individual action, he may relax its rigour, allowing it to remain in other respects, as it stood before. As an example of this, the actions of the Deity may be cited, who, according to the testimony of Lactantius, in enacting his laws, did not deprive himself of the exercise of his mercy, to grant pardons. "The Emperor, says Augustin, may recall his sentence, pardon and release a criminal; because, as he further explains it, the person who has power to make laws, is not INVARIABLY bound to observe them." Yet this privilege of departing from the letter must never be used but for the most important reasons. Although such reasons cannot be precisely defined, yet it is certain that, since the establishment of civil law, more weighty ones are required to authorise such pardons, than before that period. Because punishments have derived an additional sanction from the authority of the law, which ought to be respected and observed.