Chapter XX: On Punishments (2)

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.