XXV. The reasons for releasing any one from the penalties of the law, are of two kinds, either internal or external.
An internal reason, to justify a departure from the sentence of the law, must be one, where the punishment is severe when compared with the offence.
XXVI. An external reason is one arising from some favourable circumstance in the character of the offender, or some fair hopes that may be entertained of his future conduct. And these reasons will have the most weight in cases, where the particular motives for making the law cease to operate. For although a general reason, unopposed by any other of a weightier kind, may sufficiently authorise the enaction of a law; yet where the peculiar reason, for which that law was made, has ceased to exist, the relaxation of it, or even a total dispensation will be attended with less danger to the universal authority of law in general.
Such a dispensation indeed is most allowable, where an offence has been committed through ignorance, though the party so committing it is not entirely free from blame, or through some invincible infirmity of mind, in all which cases, a Christian ruler will have an eye to the example of God, who, under the old covenant, appointed many such offences to be atoned for by certain expiatory offerings: Levit. iv. and v.: and, in the New Testament, he has expressly declared his intention to pardon such offences, upon due repentance. Luke xxiii. 34.; Heb. iv. 15. and v. 2.; 1 Tim. 1. 13. And Chrysostom observes, that Theodosius, impressed with those words of our Saviour, "Father, forgive them, for they know not what they do," was led to grant a pardon to the people of Antioch.
XXVII. And hence it is evident, how mistaken Ferdinand Vasquez is in his judgment, when he maintains that there can be no just reason for dispensing with a law, that is, for releasing any one from its obligations, except where the lawgiver, upon being consulted, expressly declares that he never intended it should be observed to its full extent. For he does not make the proper distinction between an equitable interpretation, and the entire relaxation of a law. For which reason, in another place, he reproves Thomas, and Sotus, because they say that a law is binding although the particular reason of its being made may have ceased, as if they supposed that the mere letter of the law was the source of its obligation, an opinion which they never did entertain. So far from every relaxation coming under the idea of equity, properly so called; those relaxations may be freely granted or refused, which could not be done in matters of equity, to which even acts of charity or those of reasonable policy do not strictly belong. For there is a great difference between the repeal of a law upon fair or urgent grounds, and a legislator's declaring that at the time of passing the law he had not the particular offence or case in contemplation.
Having thus far considered the nature of dispensations, we proceed to a review of the merits upon which they may be granted.
XXVIII. From what has been said above, it appears that in punishments, two things are to be regarded, the offence, and the object for which they are inflicted. It is consonant to justice that no one should receive greater punishment than he deserves; upon which Cicero, in one of his letters, observes, that, "the same moderation, which is commended in all other things, ought to be observed in punishments." Papinian therefore calls punishment an estimation of demerit; but this equality established between crime and punishment, says Demosthenes in his Letter in behalf of the children of Lycurgus, is not the only thing to be considered: the object and intention also of the delinquent must be weighed and taken into the account. But, if care be taken to inflict no more punishment than is due for an offence; it may be greater or less, in proportion to the utility to be derived from thence.
XXIX. In examining the different degrees of guilt, we ought to take into the account the motives which impelled the offender to commit the act—the motives, which ought to have restrained him therefrom, and how far he was capable of yielding to either. Scarce any one does a wicked action without some motive, or so far strips himself of the nature of man, as to delight in such acts from pure malignity. Most men are led away by the indulgence of their appetites, which engender sin. Under the name of appetite also may be comprehended the strong desire of avoiding evil, which is the most consonant to nature, and therefore to be reckoned amongst the most laudable of all desires. So that offences committed for the sake of avoiding death, imprisonment, pain, or extreme want are generally deemed the most excusable.
Which gave occasion to Demosthenes to say, "that we are justly more exasperated against those, who, abounding in riches, commit evil actions, than against those, who are impelled by want to do the same. Humane judges are always ready to make allowance for necessity: but where wealth is united with injustice, no pretext can be pleaded in excuse." On this score, Polybius excuses the Acarnanians, for having neglected, when threatened with impending danger themselves, to fulfil the terms of a defensive treaty made with the Greeks against the Aetolians.
Besides the desire of avoiding evil there are other desires tending to some good, either real or imaginary. Real advantages, considered apart from virtues, and those actions, which have a virtuous tendency, are either such as give delight themselves, or, like abundance of riches, can procure those things, which administer to pleasure. Among advantages purely imaginary, we may reckon that of desiring to excel others, from a spirit of rivalry, rather than from any laudable intention, or the power of gratifying resentments, which the farther they deviate from natural justice the more shocking they are to natural feeling. These appetites the Apostle has described in terms of marked censure, calling them, the "lust of the flesh, the lust of the eye, the pride of life." Here the first member of the sentence expresses the love of pleasure, the second implies the insatiable love of riches, and the third comprehends the pursuit of vain glory, and the desire of revenge.
XXX. The very injustice of all offences ought to be a GENERAL motive with men, to restrain them from the commission of them. For at present we are not considering sins of any kind, but those, which extend their consequences beyond the offender himself, and affect others. And injustice is the more heinous and criminal in proportion to the greatness of the injury, which it inflicts.
In the highest rank of crimes and misdemeanours therefore, we may place those, which are carried into complete execution: and lower in the scale we find those criminal designs, which have proceeded some degrees, but not to the last stage of completion. For the aggravation of a criminal intent is measured by the length to which it goes. In either class that kind of injustice is most notorious, which tends to disturb the common peace of society, and therefore is injurious to greater numbers. Private wrongs follow in the next degree. The greatest of which are those affecting life, and very great, though somewhat inferior in the degrees of enormity, are those, that disturb the peace of families, which is founded on the marriage-contract. And the last description of wrongs are those affecting the property of individuals, either by taking it with open violence, or obtaining or injuring it by fraudulent means.
Some are of opinion that a more accurate order of division might have been used; but that which is here followed is the same used by God himself in the delivery of his commandments. For under the name of parents are included not only those, who are naturally such, but sovereign princes, magistrates, and rulers of every description, whose authority is the key-stone of the fabric of society. Next follows the prohibition of murder; the prohibition of adultery, as a violation of the marriage bond; the prohibition of theft, and false evidence: and the catalogue of offences concludes with the prohibition of criminal desires. Among the immediate causes to restrain the commission of a crime, not only the cruelty of the act itself, but all the remote and possible consequences should be taken into the account. If a fire is begun, or the barriers, that keep out the waves, are broken down, the perpetrator brings upon his own head the blood of thousands, and all the guilt of that ruin by which they perish.
In addition to the general characters of injustice above described, we may annex the crime of being undutiful to parents, unkind to relatives, or ungrateful to benefactors, which are each of them a violation of natural, and in some respects of civil law. The repetition of these offences too aggravates their enormity: because wicked habits are sometimes worse than wicked actions. Hence we may comprehend the natural justice of that rule, which the Persians followed, comparing the past life of an offender with his present transgression. And this ought to have some weight in cases where a crime does not originate from habit, but from a momentary occasion. But not so, where a course of former rectitude has been changed into an unvaried course of wickedness. For in such cases, God himself has declared by the mouth of his prophet Ezekiel, that he has no regard to the former life. Even profane writers have the same clear views upon the subject; for Thucydides observes, that degeneracy from a righteous to a wicked course incurs double punishment: for offences are least pardonable in those, who know the difference between right and wrong. In this respect all praise and admiration are due to the wisdom of the primitive Christians, who, in estimating the magnitude of offences, weighed the preceding and the subsequent conduct of a transgressor against the action, for which he was to be punished, as may be seen from the council of Ancyra, and other councils. It heightens the enormity of an offence, where it is committed in violation of an express prohibition of the law. For, in the language of Tacitus, "the fear of prohibition may sometimes operate as a restraint, but where men once act in defiance of that, fear and shame have lost all their force."
XXXI. The capacity of the person too, with respect to judgment, disposition, age, education, and every other circumstance must be taken into consideration, when we look for resistance, or submission to the suggestions of wicked inclinations. The thought of immediate danger augments fear, and recent, unallayed pain inflames anger; so that in either case the calm dictates of reason cannot be heard. Offences therefore springing from the influence of such impressions, are of a less odious complexion than those arising from the love of pleasure, or the indulgence of hatred. Because there is less excuse for actions of the latter kind, the delay, or total forbearance of which could occasion no serious inconvenience. For it must always be kept in mind, that where there are more powerful impediments to the exercise of judgment, and more urgent persuasives to natural feeling, the criminality of an offence is proportionably softened. And these are the rules for measuring the degrees of pardon or punishment.
XXXII. The Pythagoreans maintain that justice lies in proportioning the punishment to the offence: a rule which cannot be admitted to the full extent of requiring an aggressor to suffer nothing more than a bare requital of the injury he has occasioned. For this is at variance with the most perfect laws, which in cases of theft sometimes require fourfold, and sometimes fivefold restitution to be made. And the Athenian law, besides compelling a thief to pay double the value of what he had taken sentenced him to many days' imprisonment. Among the Indians, as we are informed by Strabo, the person, who had maimed another, was condemned, in addition to the penalty of retaliation, to lose his hand. Nor is it right, as Philo, in explaining the punishment of murder, justly observes, for the suffering of an innocent and guilty person to be exactly the same. And hence it is easy to see why certain crimes not carried into actual execution, and therefore less injurious than those, which are so, are punished only proportionably to the design.—In this manner false witnesses were treated by the Jewish law; and by the Roman law, those who walked ready armed to commit murder. Consequently a greater degree of punishment is due, where the criminal intention is completed. But as death is the severest punishment that can be inflicted, and one that can never be repeated; the sentence of all human law rests there: though by the custom of some countries death is accompanied with torture, in cases of extreme atrocity.
XXXIII. In many instances, the magnitude of a punishment can only be measured by the situation of the person on whom it is to be inflicted. Thus a fine imposed upon the poor would be a heavy sentence, though it would scarcely affect the rich; and a man of high rank would feel the weight of a disgrace, that would but lightly touch an ignoble person. Such distinctions are frequently used by the Roman law, often degenerating into acts of partiality; a fault from which the law of Moses is entirely free. And the above rules may be considered as the scale for estimating the different degrees of punishment.
XXXIV. Though punishment does not exceed the bounds of justice, yet in certain cases it may be mitigated in favour of a criminal, from motives of mercy, except where such lenity to the guilty is deemed cruelty to the innocent, whose safety is thereby endangered. For the escape of a criminal is often an encouragement to his own perseverance in iniquity, and to that of others, who are encouraged by the example. Necessity indeed requires the sharpest remedies for the suppression of crimes; especially, where the incentives of habit and a facility to commit them prevail.
XXXV. The divine law given to the Hebrews punished the stealing of cattle from a pasture with more severity than breaking into a house, on account of the ease with which the former of those crimes might be committed. Exod. xxii. 1–9. Justin in speaking of the Scythians, describes them as "punishing theft with more severity than any other crime; for as they have no covered habitations to protect their flocks, and herds from depredations, what could be safe, if thieving were allowed?" Though the FAMILIARITY of certain crimes may prevent us from being surprised at their perpetration, it by no means diminishes their atrocity, or demands a mitigation of punishment. But, as Saturninus says, "the giant-strides of crimes must be impeded with the strongest bands." In trials for offences, clemency may be indulged, but in the passing of laws severity should be regarded: For the GENERAL nature of law requires that offences should be pursued with rigour: but in trials, in which individuals are the objects concerned, there may be circumstances to aggravate or diminish the offence: which leaves room for the discretionary exercise of rigour or lenity.
XXXVI. and XXXVII. The inclination to mitigate penalties, where the urgent motives to enforce them no longer exist, is a point of compassion perfectly distinct from the abolition of punishment altogether.
Nor has any thing been omitted, that might tend to clear up this difficult and delicate question. But every point, we trust, has been examined in its proper place, either respecting the magnitude of crimes, as measured by the injury done, the habitual commission of such offences, or the influence of the motives, sufficient to encourage or restrain them. Indeed the character of the offender affords the most conclusive means for judging of his capacity to commit the crime; and that of the sufferer often contributes something towards enabling us to estimate the due proportion of the penalty. The circumstances of the time, when—the place, where—or the facility, with which a crime is perpetrated, tend to aggravate, or lessen its enormity. The length of time intervening between a criminal design and its execution gives us some opportunity to examine how far the perpetrator was actuated by a malicious purpose. But the true complexion of a crime is to be discovered, partly from the nature of those appetites, to which it owes its birth; and partly, on the other hand, from the nature of the motives which ought to have restrained them. By this class of appetites the magnitude of a crime may be judged of; and the consequences are the motives which should operate to restrain them.
XXXVIII. It has been shewn before, and it is a truth founded upon historical fact, that wars are undertaken, as acts of punishment, and this motive, added to that of redress for injuries, is the source, from which the duties of nations, relating to war, take their rise. But it is not every injury, that can be construed into a just ground of war. For laws, whose vengeance is meant to protect the innocent, and to fall upon the guilty, do not regard every case, as a sufficient warrant for their exertion. So that there is much truth in the opinion of Sopater, who says that there are trivial and common offences, which it is better to pass over unnoticed, than to punish.
XXXIX. The maxim laid down by Cato, in his speech in defence of the Rhodians, that it is not right any one should be punished upon the bare suspicion of his having intended to commit aggression or injury, was well applied in that place; because no positive decree of the people of Rhodes could be alleged against them, nor was there any other proof beyond the CONJECTURE of their wavering in their policy. But this maxim is not universally true.
For where intention has proceeded to any outward and visible signs of insatiable ambition and injustice, it is deemed a proper object of jealousy, and even of punishment. Upon this principle, the Romans, as may be seen from Livy's account in the xlii. book and xxx. chapter of his history, thought themselves justified in declaring war against Perseus, King of Macedon, unless he gave satisfactory proof, that he had no hostile intentions against them, in the naval and military armaments, which he was preparing. And we are informed by the same historians, that the Rhodians urged it as a rule established by the laws and customs of all civilized states; that if any one wished the destruction of an enemy, he could not punish him with death, unless he had actually done something to deserve it.
But it is not every unjust design, though indicated by some outward act, which can authorize and direct hostilities. For if the actual commission of crimes and aggressions is, in some cases, proper to be overlooked, much more will it be a mark of deliberate caution to use the same forbearance, where nothing further than the pure design of aggression appears. A forbearance which Cicero justifies upon the possibility that the enemy may have repented of his design, before the execution of it. No conclusive inference can be drawn from the severity of Mosaic Law against all intended acts of impiety and murder. For, in comparing human laws with the divine counsels, whose depths we cannot sound, we are liable to run into error; and the impulse of anger, where it is attended with no fatal consequence, is a case in which the infirmity of human nature calls for pardon. For altho' the precepts of the decalogue are designed to lay a restraint upon unlawful desires as well as upon unlawful actions, yet in addition to the spiritual sense, that which is called the carnal, or external commandment applies to those dispositions that are manifested by some open act. This interpretation may be deduced from a passage in the gospel of St. Mark, c. x. 19, where the prohibition to defraud is immediately preceded by the injunction not to steal. So that intended aggressions are not to be punished by force of arms, except in cases of atrocity, where the very design threatens consequences of the greatest danger. All punishment therefore must have in view either security against future aggressions, reparation for the injury done to national or private honour, or it must be used as an example of awful severity.
XL. It is proper also to observe that kings and those who are possessed of sovereign power have a right to exact punishment not only for injuries affecting immediately themselves or their own subjects, but for gross violations of the law of nature and of nations, done to other states and subjects. For the liberty of inflicting punishment for the peace and welfare of society, which belonged to individuals in the early ages of the world, was converted into the judicial authority of sovereign states and princes; a right devolving upon them not only as rulers of others, but as subject to the controul of no earthly power. For that is a right, which can belong to no subject. It is never safe to leave the entire assertion of a man's own rights, or the punishment of his wrongs, to his own judgment; for he cannot be entirely disinterested in his own cause. Partiality will make him fall short of, or prejudice will make him exceed the bounds of justice. It was the theme of praise bestowed upon the heroes of antiquity, that in their most arduous undertakings they avenged the wrongs of others rather than their own. Upon this principle there can be no hesitation in pronouncing all wars to be just, that are made upon pirates, general robbers, and enemies of the human race. So far this opinion agrees with that of Innocentius and others, who maintain all war to be lawful against those who have renounced the ties and law of nature. An opinion directly the reverse is held by Victoria, Vasquez, Azorius, Molina, and others, who deem an aggression done to a prince, his government, or his subjects, or civil jurisdiction over the aggressor, the only justifiable warrant for inflicting punishment, particularly the punishment of hostilities. For they suppose punishment to be an effect purely arising from the authority of civil law, whereas, according to the proofs established in the beginning of this treatise, it was shewn to be a right resulting entirely from the law of nature.
If the opinion of those, from whom we differ, be admitted, no enemy will have a right to punish another, by the prosecution of a just war; a right, which notwithstanding is allowed and confirmed by the practice of all nations, not only after the defeat of an enemy, but during the continuance of a war; and that too, not from any civil jurisdiction, but from a natural right, which prevailed long before the foundation of states, and which still exists in all its force, in places, where the community consists of families distinct, and united as the subjects of one sovereign.
XLI., XLII., XLIII. But certain precautions are necessary to prevent us from being carried away by an opinion that civil customs, though founded upon just reasons, and received among many nations, are to be reckoned as a part of the law of nature. And in the next place, it is necessary to guard against enumerating as prohibitions of natural law, things which are not proved to be so, as certain kinds of marriages the taking of interest for the use of money, and other positive injunctions of the divine, or Mosaic law. The third rule is, to make an accurate distinction between general principles, such as the duty of living according to the dictates of reason, and those of a more particular though not less obvious meaning; as the duty of forbearing to take what belongs to another. To which many truths may be added though not quite so easy of apprehension: among which may be named the cruelty of that kind of punishment, which consists in revenge, delighting in the pain of another. This is a method of proof similar to that which occurs in mathematics, the process of which rises from self-evident truths to demonstrations, the latter of which, though not intelligible to all alike, upon due examination obtain assent.
As then in matters of civil law, ignorance is deemed an excuse, so with respect to the law of nature, wherever infirmity of understanding forms an invincible obstruction to the knowledge of its rules, such infirmity may be alleged as a vindication. For as, in cases of unavoidable ignorance a great degree of the guilt of sin is removed; so it is in some measure softened wherever this ignorance subsists, though it may be owing to former negligence. And for this reason, Aristotle compares barbarians, in their rude, unformed state, to persons, whose appetites are rendered sickly by disease. Plutarch also observes that there are certain infirmities and disorders, which naturally infect the soul. Once for all, by way of conclusion we may add that wars undertaken to inflict punishment may be suspected of injustice, except there be manifest and enormous aggressions, with other conspiring causes, to vindicate nations for having recourse to arms.
XLIV. The progress of the work has necessarily led to the consideration of offences against God; the propriety or impropriety of punishing which by force of arms is a fit subject of inquiry.
Admitting the affirmative part of the question, we may observe that as in ecclesiastical affairs Bishops are intrusted with a Catholic, or general power; so kings, besides the care of their own immediate states and subjects, may be regarded as protectors of the human race. The best argument, on the negative side of the question, against the justice of such wars, is the sufficiency of the divine omnipotence to avenge its own wrongs. Yet the same may be said of other offences. For the Deity possesses sufficient power to punish them, although he leaves them to the sentence of human tribunals. Some will urge and maintain that other kinds of offences are punished only in cases, where others are uninjured or endangered by the commission of them. On the other hand, it may be said that men punish not only offences, which directly hurt others, but even those, which affect them indirectly, as suicide and other similar crimes.
Although religion is a concern between the soul of man and his Maker alone, its influence on human morals is of no inconsiderable importance. So that Plato had reason to call it the bulwark of authority and law, and the bond of every thing venerable in social order and discipline. Every false opinion in divine things, says Plutarch, is pernicious, betraying itself in the disorders of the imagination, wherever it takes root, and springs up into action. So that Aristotle reckons the care and support of religion the first of public concerns. This is a truth applying not to any particular state, but to all governments, and to human society in every shape. An avowal which Xenophon makes the characteristic of a great and wise prince, attributing to Cyrus a declaration of his firm persuasion that the more his subjects feared God, the more obedient he should find them to his laws, and the more attached to his person. But once remove the motives of religion, says Tully, and you destroy faith, the intercourse between man and man, and justice the most excellent of all virtues.
The opinions of Epicurus afford a sufficient proof of this: for in banishing the providence of God from his system, he made justice nothing but an empty name, springing from human conventions, founded on self-interest, and restraining men from the commission of crimes by no other principle but that of fear.
But there is a wider sphere, than the internal welfare of independent states, on which religion operates. In the separate society, which every kingdom, state, or country forms within itself, the place of religion may occasionally be supplied by the influence and execution of municipal laws. But in all the transactions of the great community at large, where civil laws are silent, and tribunals give way to the decision of the sword, the law of nature and of nations, founded upon the fear of God, and obedience to his will, is the standard of right to which Kings and Sovereign states appeal; a violation of which is regarded as a violation of the divine law.
XLV. But to take a closer view of the subject, we must observe that true religion, which is the same at all periods of time, rests upon four evident and universally acknowledged truths. The first of which is the being and unity of God,—the second, that God is not any of the things, that can be seen, but of a nature too sublime to be the object of human conception, or of human sight,—the third is, that with the eye of his providence he regards the events of this world, and regulates them with the most equitable and unerring judgments,—the fourth is, that he is the creator of all things, except himself. And these four truths are unfolded and laid down in an equal number of commandments, the first of which plainly declares the unity of God—the second forbids any representation, by painting or image, to be made of that being, who is invisible to mortal eye. Tacitus bears testimony to the spiritual nature of the Jewish religion: for he says, that "the Jews have nothing but a mental conception of one God, and they look upon every attempt to represent him under the appearance of human form, as a profanation of his heavenly nature."—From the third commandment we deduce his knowledge of all human transactions, even of our very thoughts; an omniscience upon which the obligation and sanctity of oaths is founded. For God is a witness even of the secret designs of the heart, so that every solemn oath is an appeal to his justice and his power, for the vindication of truth, and the punishment of falsehood.—The fourth commandment presents us with an account of the creation of the world, to commemorate which God appointed the sabbath, commanding it to be observed with a degree of reverence above every other sacred institution. For the violation of any other rites, such as those respecting forbidden meats, was left to the discretionary punishment of the law: but offences against the sabbath were capital; because, considering the nature and design of its origin, such contempt implied a disbelief, that the world was created by God. Now the creation of the world by God affords a tacit proof of his goodness, wisdom, eternity and power: and the effect of this contemplative knowledge is the offering of honour, love, worship and obedience to God. So that Aristotle says that the man, who denies that God ought to be honoured, or parents loved, should be taught to renounce his error, not by reasoning, but by punishment. And, in another place, he observes that some actions are proper on certain occasions, but reverence for the majesty of God is requisite at all times, and in all places.
The truth of those contemplative opinions may undoubtedly be proved from the nature of things; the clearest of which proofs is the evidence of sense, shewing the existence of things, which naturally leads us to consider the time, when they had no being.
But as all are not able to understand these arguments and others of the same kind, it is sufficient to observe that in all ages and all countries of the world, with very few exceptions, these opinions have found a general reception with those who were too plain in their dealings, and ingenuous in their designs, to impose upon others, and with many, who had too much sagacity to be deceived themselves. But when amid such variety of laws, customs, and opinions, there is so general an agreement upon one point; that agreement may be adduced as a proof, that such a belief owes its origin to the primitive ages of the world, from whence it has been derived to us: when we consider too that it has never been clearly refuted, it is a sufficient reason to establish our faith.
XLVI. There is no excuse therefore for the rejection of those opinions, even in cases, where there is no intuitive sagacity to discover new proofs, or to comprehend old ones: as there are so many guides both in nature and reason to lead men to the knowledge of those truths, and as no solid arguments have ever been produced to establish a contrary belief. But as human punishments form the subject of our present inquiry, it is right to make a distinction between opinions themselves, and the manner of deviating from them. The belief in a supreme being, and in the controul of his providence over human affairs, is one of those universal tenets to be found in all religions, whether true or false. And in reality to deny the being of a God, and to deny the interposal of his providence in human affairs, amounts in its moral consequences to the same thing. And it is for this reason these two opinions have been inseparably united in all ages, and among every civilized people. Consequently we find, that in all well governed states, wholesome laws have been enacted to restrain those, who disturb those opinions, which have always been regarded as the chief support of social order; and all contempt, shewn to those opinions, has always been considered as contempt shewn to society itself, which it consequently has a right to punish.
XLVII. There are other truths not equally self-evident, such as these, that there are not more Gods than one; that no visible thing, neither the world, nor the heavens, nor the sun, nor the air is God; that the world, and the matter of which it is formed, have not existed from all eternity, but were made by God. So that we see the knowledge of these truths disfigured, and almost entirely obliterated among many nations by the lapse of time. And this might the more easily happen, as there were no legal provisions made to preserve the purity of these truths, which were not considered as essential to the very existence of all religion. The law indeed given to that people, who were instructed in the clear knowledge of these truths, by the mouths of the prophets, by miracles seen with their own eyes, or brought to their ears by the reports of the most undoubted testimony, that law, though it expresses the greatest abhorrence of the worship of false gods, does not inflict the punishment of death upon all convicted of that crime, but only in particular instances, where they have seduced others into idolatry,—or where a state has introduced the worship of unknown Gods,—or where the true worship of God, and obedience to his laws have been forsaken for the worship of the stars, which St. Paul calls serving the creature above the creator, an offence, which was, for some time, punished among the descendants of Esau. Those too who offered their children to Moloch, that is, to Saturn, were punished with death. Yet the Canaanites, and the neighbouring nations, who had long been sunk into the most depraved superstitions, were not consigned by God to immediate punishment, but were left to fill up the measure of their crimes. And there were other nations, where, in the language of Scripture, God winked at the times of this ignorance. Where men have had no means of arriving at the knowledge of a true God, as their superstitions and errors are excusable, so where, in despite of knowledge, they have deified Daemons, and vices, which they knew to be such, their superstitions are not to be called errors, but impieties. And no less impious is the supposed homage, that is paid to God with the blood of innocent human victims, and Darius king of the Persians, and Gelo king of Syracuse, are commended for abstaining from such practices. Plutarch informs us of some barbarians, who would have been punished by the Romans for offering human victims to the deity, had they not pleaded the antiquity of the custom, which was admitted as an excuse, though they were strictly enjoined not to follow the same custom in future.
XLVIII. From the kind of evidence on which Christianity rests, it is plain that no force should be used with nations to promote its acceptance. It is not merely by natural arguments it can gain assent; for it has made an addition of many things to natural religion. Its evidence rests upon the history of Christ's resurrection, and upon the miracles performed by himself and his Apostles. So that it is a matter of fact proved by the most undeniable evidence, and of great antiquity. Therefore a doctrine of this kind cannot be thoroughly received upon the first hearing of it, without the secret assistance of God: an assistance not given as a reward for the merit of works; so that wherever it is withheld or less copiously bestowed; it is done for reasons, which though just, are generally unknown to us, and therefore not punishable by human judgments. For it is the custom in the sacred writings to assign the divine pleasure as the cause of things unknown to us.
There is another reason of no less weight, which is that Christ being the author of a new law, will have no one brought to embrace his doctrine by the fear of human punishments. Nor is the reason at all weakened by the objection drawn from the parable of the marriage-supper, where it is said the messengers are commanded to compel the guests to come in. For the term, COMPEL, here signifies nothing more than an earnest entreaty, a sense, in which it is used in other parts of the New Testament, implying an earnest request made to any one.
XLIX. But to obstruct the teachers of Christianity by pains and penalties is undoubtedly contrary to natural law and reason: for the doctrine of Christ, apart from all the corruptions added by the inventions of men, contains nothing hurtful, but every thing beneficial to society. The thing speaks for itself, and even those who were strangers to the doctrine itself were obliged to acknowledge the truth of this. Pliny says that the Christians bound themselves by an oath to commit neither theft, nor robbery, nor to violate their word. It was a common saying "Caius Seius is a good man, but he is a Christian."
Nor indeed can any danger be apprehended from the spreading of doctrines, calculated to inspire greater sanctity of manners, and the purest principles of obedience to lawful sovereigns. Philo has recorded a beautiful saying of Augustus, who observed that the assemblies of the Jews were not Bacchanalian revels, or meetings to disturb the public peace, but schools of virtue.
L. It seems unjust to persecute with punishments those who receive the law of Christ as true, but entertain doubts or errors on some external points, taking them in an ambiguous meaning or different from the ancient Christians in their explanation of them. A point which is proved by what has been said above, and by the ancient example of the Jews. For, possessing a law, which allowed them to inflict temporal punishments, they never exercised that authority upon the Sadducees, who denied the doctrine of a resurrection: a doctrine of the greatest truth, though but faintly delivered in that law, and under a typical application of words and circumstances.
But if there should be any weighty error, that discerning judges could easily refute by an appeal to sacred authority, or to the opinions of antiquity; here too it would be necessary to make allowance for ingrafted opinions, that have grown up to form an inseparable part of the human mind, and for the zealous attachment of every one to his own tenets; an evil which Galen says is more difficult to be eradicated than any constitutional disease.
How accessories are liable to punishment—Sovereign Princes or States answerable for the misconduct of their subjects, when they know it, and do not endeavour to prevent it—Sovereigns bound not to protect offending subjects, but to deliver them up or punish them—The rights of suppliants belong to the unfortunate and not to the guilty—Suppliants may be protected while the inquiry into their case is still pending—How far states are amenable to punishment—All the different exceptions stated—Children not answerable for the offences of parents—The moral government of God in this respect considered—Individuals not answerable for offences, to which they have not given consent—Heirs, how far answerable for the acts of their ancestors.
I. The next topic of inquiry relates to the communication of punishment, as inflicted upon accomplices, who, in that capacity, cannot be said to be punished for the guilt of others, but for their own. And from what has been said above upon the loss sustained from injury, it may be understood who are the persons, that come under this description. For the partnership in loss, and the partnership in guilt are regulated by nearly the same principles. Yet the obligation to repair a loss does not always imply guilt, except where there has been any notorious malice, in which case every damage renders the party, who has occasioned it, liable to make reparation. So that persons ordering the commission of any wicked or hostile act, giving the requisite consent to it, supplying the aggressor with assistance, or protection, or, in any other shape, partaking of the crime, by giving counsel, commendation, or assent to his act, or when they have power to forbid the commission of such an act, by forbearing to exercise their authority, or by refusing to afford the succour, which they are bound by the law of nature, or by treaty to give to the injured party, by not using with the offender that power of dissuasion, which they have a right to do, or lastly by concealing what they ought to make known, in all these cases, such persons are punishable as accomplices, if they are convicted of that degree of malice, which constitutes a crime, and merits punishment: points which have before been discussed.
II. The case will be made clearer by examples. A civil community is no more bound than any other society by an act of individual members, except that act be done by its express consent and authority, or it has neglected to disavow such a proceeding. Hence it is formally stipulated in almost all treaties that no acts or aggressions are to be ascribed to a state, except those, which are done in the name of the sovereign, and by persons acting expressly under the authority of his commission. So a father is not answerable for the misconduct of his children, a master for that of his servants, nor a ruler for the acts of those under him, unless there appears in any of these some connivance, or encouragement in promoting that misconduct, or those acts.
In the case of a sovereign's responsibility for the acts of his subjects, there are two things to be considered, which require minute inquiry, and mature deliberation, and those are the forbearance, and the encouragement or protection, which he has shewn to their transgressions.
As to forbearance, it is an acknowledged point, that when he knows of a delinquency, which he neither forbids nor punishes, when he is both able and bound to do so, he becomes an accessory to the guilt thereof. Cicero, in his speech against Piso, says, "it makes no great difference especially in a consul, whether he harasses the government by moving ruinous laws, and making mischievous speeches, or suffers others to do the same. If a slave has committed a murder with the knowledge of his master, the master becomes answerable for the entire deed, as it was done with his concurrence."
But, as we have said before, besides the knowledge of a deed, to constitute a participation in the guilt, the person so knowing it, must possess the power to prevent it. And this is what is meant by the legal phrase, that the knowledge of a crime, when it is ordered to be punished, is taken in the sense of forbearance or connivance, and it is supposed that the person, who ought to have prevented it, did not do so. In this place knowledge implies a concurrence of will, and connivance a concurrence of design. A master therefore is not bound by the act of a slave, who has claimed his freedom, and done any thing in despite of his master, because the knowledge of a crime without ability to prevent it, by disclosure or some other means, cannot be construed into an act of guilt. So parents are bound by the acts of children; but only in cases where they have the children under their authority. On the other hand, altho' by having them in their power, they might have prevented their misconduct, they will not be answerable for it, unless they had a knowledge of it also. For there ought to be a concurrence of knowledge, and forbearance or encouragement to involve any one in the guilt of another's actions; circumstances all of which by a parity of reasoning may be applied to the connection between sovereigns and subjects: a connection founded on principles both of natural and civil law.
III. The matter that necessarily comes next under consideration is the case of those, who screen delinquents from punishment. It was before observed that, according to the law of nature, no one could inflict punishment, but a person entirely free from the guilt of the crime which he was going to punish. But since established governments were formed, it has been a settled rule, to leave the offences of individuals, which affect their own community, to those states themselves, or to their rulers, to punish or pardon them at their discretion. But they have not the same plenary authority, or discretion, respecting offences, which affect society at large, and which other independent states or their rulers have a right to punish, in the same manner, as in every country popular actions are allowed for certain misdemeanors. Much less is any state at liberty to pass over in any of its subjects crimes affecting other independent states or sovereigns. On which account any sovereign state or prince has a right to require another power to punish any of its subjects offending in the above named respect: a right essential to the dignity and security of all governments.
IV. But as it is not usual for one state to allow the armed force of another to enter her territories under the pretext of inflicting punishment upon an offender, it is necessary that the power, in whose kingdom an offender resides, should upon the complaint of the aggrieved party, either punish him itself, or deliver him up to the discretion of that party. Innumerable instances of such demands to deliver up offenders occur both in sacred and profane history. Thus the other Israelites required the Benjamites to deliver up offenders, Jud. xx.—And the Philistines demanded of the Hebrews the surrender of Samson, as a criminal, Jud. xv.—In the same manner the Gauls made a demand that the Fabii should be surrendered for having fought against them. Sylla too, as Sallust informs us, urged Bocchus to deliver up Jugurtha, and by so doing to relieve the Romans from the bitter necessity of implicating HIM for his erroneous conduct in the same guilt with that most desperate villain. Yet all these instances are to be understood not as strictly binding a people or Sovereign Prince to the actual surrender of offenders, but allowing them the alternative of either punishing or delivering them up. For it was upon this ground, as we are informed, that the Eleans made war upon the Lacedaemonians, because the latter neglected to punish their subjects, who had committed aggressions upon that people; that is, they had neither punished nor delivered them up: for the obligation may be taken either way, that being left to the choice of the aggrieved person, or nation, in order to make the satisfaction the more complete.
The surrender here meant is nothing more than delivering up a citizen or subject to the power of another state to decide upon his punishment. But this permission neither gives nor takes away any right, it only removes an impediment to the prosecution of a right. Wherefore if that other people make no use of the permitted right, the offender, who has been delivered up, is in such a situation, that he either MAY or may NOT be punished: either of which may happen in the case of many offences. But the right of a state, as to the enjoyment of its own laws, and many other advantages, is not lost by any particular act without a formal decree and judgment, unless in any way it has been previously enacted, that certain acts, or certain omissions, shall amount to a forfeiture of some particular rights and privileges. In the same manner, goods, if surrendered, but not accepted, will remain the property of the former owner. But if the surrender of a citizen has been accepted, and, by some accident, the person so surrendered shall afterwards return home, he will no longer be a citizen, except by some new act of grace. What has been said of punishing or giving up aggressors, applies not only to those, who always have been subjects of the sovereign, in whose dominions they are now found, but to those also, who, after the commission of a crime, have fled to some place for refuge.
V. Nor do the so much talked of rights of suppliants, and the inviolable nature of asylums at all weaken the argument that has been advanced. For the advantages of such protection are designed only for those, who are the victims of unmerited persecution, not for those who have committed crimes injurious to mankind, and destructive to society. Gylippus, the Lacedaemonian, as may be seen in the xiii. book of Diodorus Siculus, speaking of the rights of suppliants, says, that they were originally introduced, as measures of compassion to the unfortunate, and not a screen for malicious and wanton offenders, who have nothing but punishment to expect. And a little after he says, when such men, prompted by malice, or rapacity have plunged into evils, they have no right to talk of misfortune or to wear the name of suppliants. For that is a privilege granted by the laws of nature to the innocent, who are beaten down by the hard and oppressive strokes of ill fortune. But the refuge of compassion is withheld, where every line of a life has been marked with cruelty and injustice. Thus according to that law, which partakes of the wisdom of its divine author, asylums were open to those who had killed any one by a weapon escaping from their hand: slaves too were allowed places of refuge, but deliberate murderers, or those, who had disturbed the peaceful order of the state, found no protection even from the altar of God. Philo, in explaining this law says, that even the temple affords no refuge to the impious.
The more ancient of the Greeks acted upon the same principle. It is said that the Chalcidians refused to deliver up Nauplius to the Grecians, and the reason alleged was his having cleared himself of the charges made against him. There was among the Athenians an altar dedicated to Mercy; it is mentioned by Cicero, Pausanias, Servius, and also by Theophilus, and it is described at full length by Statius in the xii. book of his Thebais. The poet explains to what description of men it afforded shelter: it was, he says, to those who were driven from their homes by the calamity of war, or stripped of their kingdoms by usurpers. Tacitus in the third book of his Annals, and 60th chapter, reprobates the custom, prevailing in his time among the cities of Greece, of making it an act of religion to protect offenders from the punishment due to their crimes. Such offenders therefore ought either to be punished, or delivered up, or, at least, ordered to withdraw. Perseus the Macedonian king, clearing himself to Martius from the charge of screening those, who had attempted the life of Eumenes; said, "as soon as I was apprised by you of their being in Macedonia, I ordered immediate search to be made for them, peremptorily commanding their perpetual banishment from my kingdom."
The right of demanding the surrender or punishment of criminals that have fled into other kingdoms, has, in most parts of Europe, during the present, and the immediately preceding centuries, been generally exercised in cases, where the crimes were such as affected the safety of the state, or were attended with notorious atrocity. It has been usual to pass over, with mutual connivance, crimes of an inferior kind, except where it has been agreed to the contrary by express treaty. Nor can it be concealed that where robbers and pirates have gained a truly formidable power, it has often been deemed an act of humane policy both in Sovereign Princes, and States to exercise forbearance towards them, rather than to drive them to greater acts of desperation by treating them with all the rigour, which they deserve.
VI. If the act, of which refugees and suppliants are accused, is not prohibited by the law of nature or of nations, the matter must be decided by the civil law of the country, from which they come. This was a received opinion in ancient times, as we find from the language of Aeschylus, in whose Tragedy of the Suppliants, the King of Argos, addressing a number of the daughters of Danaus, on their coming from Egypt, says, "If the sons of Egypt exercise controul over you, maintaining that they are authorised to do so by the law of the state, as being the nearest allied by blood, who can resist them? It is for you to prove that, according to the laws of your country, they have no authority over you."
VII. and VIII. It has often been a celebrated topic of discussion, whether a whole community can be punished for misconduct. And this is the proper place for that inquiry.
It was shewn in a former part of this treatise, that a body politic though it may seem to vary by a succession of new members, continues the same, as long as it retains its form. In which case it seems liable to punishment no less than individuals. On the other hand bodies politic seem to possess many privileges peculiar to themselves, such as having a common treasury, a common seal, laws, and other similar advantages. But there are some distinctions, which they particularly derive from the INDIVIDUALS of which they are composed. Thus we say that Universities are learned, or Garrisons brave, according to the number of learned or gallant men, which they respectively contain. Merit is a distinction of this kind, as being a gift of nature to individuals, or an individual acquirement, which no public body, OF ITSELF, can have. So that upon the death or departure of those meritorious individuals, the degree of merit, which any public society derived from their presence, must become extinct. In the same manner, the debt of punishment which is considered as arising from some act of demerit, must cease with the debt of the individual delinquents.
Arrian is justly commended for censuring the vengeance retorted upon the Persians by Alexander, at a time, when those, who had committed the original aggressions on the Greeks, had long been laid in their graves. He passes a like sentence upon the burning of Persepolis, as a retaliation for what the Persians had done at Athens. Such acts of retaliation, after a lapse of years, have been vindicated by some writers, as an imitation of the slow, but unerring progress of divine justice. But we must remember that the ways of God are not as our ways, nor is the exercise of his justice to be measured by our counsels. For if descendents can claim no merit for the actions of their FOREFATHERS, neither is it right they should be punished for THEIR transgressions. The consequences of merit indeed may be transmitted without injury, and therefore without injustice; but it is not so with punishments.
IX. Having thus shewn that a communication of punishment is necessarily connected with a participation in guilt, it remains to consider whether punishment can be extended to those, who are no way concerned in the crime. In order to understand this clearly, and to prevent the mistakes that may arise from a similarity of expression, where there is no similarity of facts, it will be necessary to make use of some precautions.
X. In the first place there is a difference between a loss DIRECTLY occasioned by any act, and one resulting but INDIRECTLY from it. Now it may be called a direct injury to deprive any one of what peculiarly belongs to him as his right. An indirect injury is that which prevents any one from possessing what he otherwise would have done, by destroying the condition or means, which gave him such a right. As an example, Ulpian says, "if any one has opened a well in his own ground, by which the subterraneous streams of water, that would have passed to the lands of another, are cut off, here no fault is imputable to the person who has only exercised his own right." And in another place, he says, it makes a great difference, whether any one directly does an injury, or is only indirectly and unintentionally instrumental in preventing another from reaping advantages, which he would otherwise have enjoyed. And it is absurd, says Paulus, another legal authority, for men to be called rich before they possess the means of being so. Thus when the property of parents is forfeited, it is felt as an inconvenience by their children; though it cannot be considered as a direct punishment inflicted upon them, because that property would never have been theirs, unless the parents had retained it to their last breath. On which Alphenus has made a just observation, in saying, that, by the punishment of the father, children lose that which would have come to them from him, but things, which they do not receive from him, such as the gifts of nature, or those derived from any other quarter, remain untouched. Cicero relates that in this manner the children of Themistocles were reduced to want, nor does he think it unjust that the children of Lepidus should share the same fate. And he says that it is an ancient custom, and the received usage of all states, the hardship of which nevertheless was greatly softened by the laws of Rome at a later period. Thus when a whole people is implicated in the misconduct of the majority, which holds the representative character of the state, and consequently loses its civil liberties, its fortifications, and other privileges, the loss affects innocent individuals, but only in those things, which they could not have enjoyed, except as belonging to that community.
XI. Besides, we must observe, that the offence of one man may sometimes occasion inconvenience or loss to another, and yet that offence may not be considered as the immediate cause of the action, which is grounded on the exercise of a right. This may be explained by an example. Thus if any one has engaged for another's debt, he brings himself into the dilemma named in the ancient proverb, that being bound for any one is the next stage to ruin; but it is a MAN'S OWN PROMISE, and NOT ANOTHER'S HAVING INCURRED A DEBT, that is the real cause of his obligation. For as a person, who has given security for a purchaser, is not, properly speaking, bound by the PURCHASE, but by his own PROMISE: so if any one has engaged to be responsible for a delinquent, it is his own ENGAGEMENT, and not the ACT OF THAT DELINQUENT, which creates his obligation. And hence the inconvenience of that kind which any one incurs, must be measured not by the delinquency of another, but by his own power to enter into any such voluntary engagement. In consequence of which no one can give surety to suffer death for another; because no one has such power over his own life, as to take it away himself, or to be bound to forfeit it for another. Though the ancient Greeks and Romans thought otherwise, and therefore they maintained that a surety might be put to death for any one, as may be seen in the well known story of Damon and Pythias, and hostages were frequently punished in this manner.
What has been said of life may be applied to the limbs also, which no man has a right to part with, except for the preservation of the whole body. But if any one has engaged to suffer banishment, to submit to a pecuniary fine, or any other means of satisfying justice, any thing he suffers on this account will not, strictly speaking, be considered as a PERSONAL punishment, but as the performance of an agreement.
Something like this occurs in the right, which any one possesses dependent on another's will, both with respect to the right of individuals to private property, and to the more extensive right to demesnes possessed by a state. For if any one is deprived of such a thing owing to another's fault, here the executive power depriving that person, is not inflicting a punishment on HIM, but only exercising a prior right.
XII. and XIII. Having laid down these distinctions, we may observe that it is impossible that an innocent person should suffer for another's crime. This does not proceed from the reasons given by Paulus, who maintains that punishment is designed for the reformation of the offender. For it seems possible that an example may be made, extending beyond the person of the criminal himself, when it affects, in its consequences, those, who are nearly related to him. So that it is not for the sake of example only that punishment is inflicted, but because the obligation thereto arises from the demerit of the offending party. Now every demerit must be of a personal nature, as it proceeds from a man's own will, over which he is supposed to exercise a perfect controul.
XIV. In the law given to the Hebrews, God threatens to avenge the impiety of fathers upon their children. But he has sovereign dominion over our lives and substance, as being his gift, which he may take away from any one, whenever he pleases, without assigning his reasons. Therefore if he thinks proper to take away by a premature or violent death the children of Achan, Saul, Jeroboam or Ahab, he is exercising over them the right of sovereignty, as well as that of punishment; imposing by that awful example the more severe penalty upon the parents. For if they survive their children, which was what the divine law had most in view, and therefore did not extend these threats beyond the time of great grand-children, a period to which the age of man might reach, it is certain that parents would be severely punished by such a sight, the most afflicting of any they could witness. Or if they should not survive such an event, to die under such an apprehension would be a great calamity.
But it is proper to remark that examples like those are never employed by God, except against crimes affecting his divine Majesty, as false worship, perjury or sacrilege. Indeed those threats of divine vengeance are not always enforced; especially where any extraordinary virtue shines in the characters and conduct of the children: as may be seen in the xviii. chapter of the prophesy of Ezekiel. Plutarch has discussed this topic with great eloquence in his book on the remote vengeance of God.
As the Gospel so clearly unfolds the future punishments of the wicked, all the threats contained in that new covenant terminate in the persons of the offenders themselves. But the ways of providence in these respects are not the rule which men can follow. For God, even without any reference to crime, is the sovereign lord and disposer of human life, a commission which man is only allowed to execute against the perpetrators of certain crimes. Wherefore as that same divine law forbids parents to be put to death for the offences of children, so it exempts children from the same punishment for the actions of their fathers: a lenity which is greatly commended by Josephus and Philo. The same commendation is bestowed by Isocrates upon the laws of Egypt; and by Dionysius of Halicarnassus upon those of Rome.
XV. But if it is unjust in human laws to punish the misconduct of parents in the persons of their children, how much more severe was the law of the Persians and Macedonians extending the penalties for crimes against the state to every branch of the offender's relatives, in the most remote degree, a law surpassing all others in rigour?
XVI. XVII. and XVIII. What has been said respecting the punishment of children for the offences of their fathers or forefathers, may be applied to the relation subsisting between sovereigns and subjects. For it is a relation springing from the contract of society, which makes the sovereign the essential head, life and soul of that body, in which his people form the members. As the civil community therefore with its sovereign or head forms but one body, there can be no separation of interests, but what affects one part must be prejudicial or serviceable to the whole.
XIX. Why should an heir, it has been sometimes asked, be bound by other debts of his ancestor, and not feel the effects of his punishment for misconduct? to which answer may be given, that the heir represents the person of the deceased not in his merits or demerits, which are purely personal, but in his property; an artificial mode of preserving unbroken the chain of succession and descent.
XX. And hence it follows, that if in addition to the demerit of an offence, any new grounds of obligation should arise connected with the punishment, they must be discharged not properly as a punishment, but as a debt. Thus the heir will be liable to pay the costs awarded by a judgment after a contested suit, which is considered in the light of a contract.