Chapter XX: On Punishments (1)

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.

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.