[221] CHAPTER XX.

Of Punishments.

I. 1 WHEN above we began to speak of the causes for which wars are undertaken, we said that facts might be considered in two ways, either with a view to reparation, or to punishment. We have now finished the former part of the subject, and proceed to the latter, Punishment. And this must be the more carefully treated by us, because its origin and nature, not well understood, have given rise to many errors.

222 Punishment, in its general signification, is An Evil of suffering which is inflicted on account of (ob) an evil of doing. For though labour [not pain] may be the sentence of persons as a punishment, yet such labour is considered as it is disagreeable, and therefore is a sort of suffering. But the inconveniences which some persons have to suffer on account of an infectious disease [Lev. xiii.], or a mutilation of the body [Deut xxiii. 1], or other uncleanness [Lev. xv.]; such as, to be excluded from public assemblies, or from certain functions, are not properly punishments; although on account of a certain resemblance, and by an abuse of language, they may be called by that name.

2 Among the things which nature herself dictates as lawful and not unjust, this stands; that he who has done evil should suffer evil; which the philosophers call the ancient and Rhadamanthean law, as we have elsewhere said [I. II. 3.] So Plutarch; Plato. [See.] So Hierax defined justice by this as its noblest element; and Hierocles called it the medicine of wickedness. So Lactantius.

3 And this characteristic of Punishment, that it is the return for transgression, is noticed by Augustine; [see]; which belongs also to punishments inflicted by God; though in these sometimes it appears, through human ignorance, as he says, that the transgression is hid while the punishment is apparent.

II 1 Whether Punishment belongs to attributive or to expletory justice there are different opinions. For inasmuch as those who transgress more gravely are more heavily punished, and those who sin less gravely, more lightly; and because punishment is assigned by the whole to a part, therefore they ascribe punishment to attributive justice.

But the principle on which they proceed, that attributive justice obtains wherever an equality is introduced between more than two terms, we have proved, in the beginning of this work, not to be true [I. i. 8]. And in the next place, that greater offenders are punished more severely, smaller ones more lightly, that only happens by consequence, and is not what is looked to in the first place and per se. For the thing first looked at is the equality between the offense and the punishment, as Horace says. [See.] And in like manner Deut. xxv. 2, 3; and the Novella of Leo.

2 Nor is their other principle more true, that all punishments come from the whole to a part, as will appear by what we have hereafter to say. But further: it is shewn above that the true notion of attributive justice does not properly consist, either in such equality, or in the process from the whole to a part; but in taking account of that claim which does not include right strictly taken, but gives occasion to it. And although he who is punished ought to have a moral claim, or to be worthy, to be punished, still that does not go to prove that he has such a quality as attributive justice requires.

But neither do they who hold that expletory, or, as it is commonly 223called, commutatory justice, is exercised in Punishment, explain themselves better. For they regard the transaction as if something were paid to the offender, as is commonly done in contracts. They are deceived by the vulgar expression in which we say that Punishment is the due of him who has transgressed; which is plainly an improper expression, for he to whom anything is properly a due, has a right over another. But when we say that punishment is any one’s due, we mean nothing else than that it is just that he should be punished.

3 Still, however, it is true, that in punishment the justice which is exercised is, in the first place and per se, expletory justice: because he who punishes, in order to punish rightly, ought to have a right to punish, which right arises from the delinquency of the offender. And in this matter, there is another thing which approaches to the nature of contracts; that as he who sells, although he say nothing particularly, is conceived to have obliged himself to all the things which are natural to selling; so he who has wilfully offended, seems to have obliged himself to undergo punishment; because grave crime cannot be otherwise than punishable: so that he who directly wills to offend, must also by consequence have willed to incur punishment. And in this sense, the emperors say to such a person, You have subjected yourself to this punishment; as those who take wicked counsels are said to have already incurred punishment in their own thoughts: and in Tacitus, a woman who had joined herself to a slave is said to have consented to her own slavery, because that was the punishment for such persons^*.

4 Michael Ephesius on Aristotle illustrates this.

III. 1 Of such punishment, the subject, that is, the person to whom it is due, is not determined by nature itself. Nature dictates that evildoing may be punished, but not who ought to punish: except that nature sufficiently indicates that it is most suitable that it be done by one who is superior: yet not in such way as to shew that this is necessary; except the word superior be taken in this sense, that he who has done wrong has, by that very fact, made himself inferior to any other, and has thrust himself out of the class of men into that of the inferior brutes, as some theologians hold. See Democritus, Aristotle.

2 It follows, as a consequence of this, that the offender ought not to be punished by one who has offended equally, as Christ said, Joh. viii. 7, He that is without sin among you (that is, such sin) let him cast the first stone. And this he said, the Jews being very wicked and adulterous at that time, Rom. ii. 22; where the Apostle says what Christ had said. Seneca says the same; and Ambrose, in the apology of David.

IV. 1 Another question is of the End of punishment. For what has been said hitherto only proves that transgressors have no wrong 224done them if they are punished. But from that, it does not necessarily follow that they must be punished. Nor is it necessary; for many offenders are pardoned for many things both by God and by men, and these are often praised on that account. Plato’s saying is celebrated (in his Laws), which Seneca translates, No wise man punishes because wrong has been done, but in order that wrong be not done: and so elsewhere; and in Thucydides.

2 This is true in human punishments; for men are so bound together by their common nature, that they ought not to do each other harm, except for the sake of some good to be attained. In God the case is different, and Plato does ill in extending this doctrine to him. For the actions of God may depend on his right of Supreme Authority, especially when there is some special merit [or demerit] of man in addition, although he propose to himself no extrinsic end: and so the Hebrew commentators explain Prov. xvi. 4: The Lord hath made all things for himself, yea, even the wicked for the day of evil. But even if we take the more common interpretation, it comes to the same thing: that God has done all things by the right of his supreme liberty and perfection, seeking and requiring nothing beyond himself; as he is said to be self-existent. Certainly the words of Scripture testify, that the punishments of very wicked men are inflicted on this account, when they speak (Deut. xxviii. 63) of God’s rejoicing over them to destroy them: of his mocking and laughing at them (Prov. i. 26. Isai. i. 24). And that what we have said against Plato is true, is proved by the last judgment, after which no amendment is to be expected: as also by the infliction of some inconspicuous punishment, as the hardening of the sinner’s heart, in this life.

3 But man, when he punishes a being of the same nature as himself, ought to have some object in view. And this is what the Schoolmen say, that the mind of him who inflicts punishment ought not to rest in the evil inflicted on any one. Plato had said the same before. [See.] And Seneca; so also Aristotle.

V. 1 Therefore what has been said by various writers, that the pain of the offender is a remedy of the pain of the injured person, (Publius Syrus, Plutarch, Cicero,) does indeed agree with the nature which man has in common with brutes; for anger is, in brutes as in man, a heat of the blood arising from the desire of revenge, which appetite is irrational; so that it is often directed against objects which have done them no harm, as against the offspring of the creature which did the harm, or against things which have no sense, as in a dog against the stone which hit him. But such an appetite, considered in itself, does not correspond to our rational part, of which the office is to control the passions; and consequently, not to Natural Law, because that is the dictate of our rational and social nature as such. But reason dictates to man that nothing is to be done by him so as to harm another man, except it have some good purpose. But in the 225pain of an enemy, so nakedly regarded, there is no good, but a false and imaginary one; as in superfluous riches, and many other things of that kind.

2 And in this sense revenge is condemned, not only by Christian doctors, but also by heathen philosophers. So Seneca, Maximus Tyrius, Musonius. In Plutarch, Dio, who converted the Platonic wisdom into acts, says that vengeance proceeds from the same disease of the soul as injurious aggression. [See.]

3 It is therefore contrary to the true nature of man acting on man, to find satisfaction in the pain of another person, as pain. See Juvenal on Revenge. [Sat. XIII. 180.] So Lactantius.

4 Therefore man is not rightly punished by man merely for the sake of punishing: let us see then what utility makes punishment right.

VI. 1 To this subject pertains the division of punishment stated in Plato’s Gorgias, and Taurus on the place, as quoted by Gellius: which division is taken from the end of punishment; except that while Plato mentions two ends, amendment and example, Taurus adds a third, retribution. So Clemens Alexandrinus. Aristotle takes the two latter ends. Plutarch recognizes retribution. And this is properly what Aristotle refers to synallatic justice.

2 But this must be more minutely examined. We shall say then that in punishment is regarded either the utility of the offender, or of him who suffers by the offense, or of persons in general.

VII. 1 To the first of these ends, pertains punishment which is called reformatory: of which Paulus, Plutarch, and Plato speak; the object of which is to make a better man of the offender. For as repeated acts beget habits, vices are to be cured by taking away the pleasure which they bring, and putting pain for their sweetness. So Plato and Tacitus.

2 That punishment which answers such an end, is lawful to every one of sound judgment, who is not implicated in that or the like vices, appears from what is said of verbal castigation. It is an unofficial Duty. [See Plautus.] In stripes and inflictions, which contain anything of compulsion, the difference between the persons to whom it is, and to whom it is not lawful, is not made by nature, (nor could be, except that nature commends to parents the office of correcting their children,) but by the laws, which, for the sake of avoiding quarrels, have restricted that general relation [of correctors and corrected] to the nearest family relatives, as we may see in the Codex of Justinian, Title De emendatione propinquorum. So also in Xenophon, Lactantius.

3 But this kind of punishment cannot extend as far as death, except in what they call a reductive way, in which negations are reduced to the opposite class. For as Christ said, it would have been better for some if they had never been born, that is not so ill: so for incurable dispositions, it is better, that is less evil, to die than to live, since by living they are sure to become worse. Seneca says they must 226perish, in order that they may not perish. So Jamblichus, Plutarch, Galen.

4 Some think that these are those whom St John speaks of as sinning unto death. But this is doubtful, and charity requires that we should not lightly hold any one’s condition for desperate; and so we must rarely punish in such a view.

VIII. 1 The utility of him whose interest it was that the fault should not have been committed, consists in this, that he do not in future suffer anything of the same kind from the same person or from others. Gellius, from Taurus, says of this case: When the dignity or authority of him against whom the offense is committed is to be protected, lest punishment omitted produce contempt thereof, and diminish its honour; but what is said of injury done to authority, is true of injury done to liberty, or to any other right. As Tacitus says of a person, That he might consult his security by just punishment.

That he who has been injured may not suffer evil from the same person, may be provided for in three ways: first, by the removal of the delinquent; secondly, by taking away his power of doing harm; thirdly, by teaching him, by suffering, not to offend; which is connected with the amendment of which we have spoken. That the person offended shall not be injured by another, is to be procured, not by any casual punishment, but by a punishment open and conspicuous, of the nature of example.

2 Up to these limits then, if vindicative punishment be directed, and be kept within the bounds of equity, even if inflicted by a private hand, it is not unlawful, if we look at the naked law of nature, that is, abstracting divine and human law, and conditions which are not necessary concomitants of the thing itself; whether it be inflicted by him who is injured, or by another; since for man to help man is consentaneous to nature. And in this sense, we may admit what Cicero says, when he declares the law of nature to be that which is given us, not by opinion, but by an innate power; and then places among the examples thereof, vindicative punishment, which he opposes to mercy. And that no one may doubt how much be would have understood by that term, he defines vindicative punishment to be that by which we repel force and contumely from us and ours, by defending or revenging, and by which we punish offenses. So Mithridates, in Justin, speaks of our drawing the sword against robbers, if not for safety, yet for revenge. And so Plutarch calls this the law of defense.

3 On the ground of this Natural Law, Samson reasoned when he said (Judg. xv. 3), Now shall I be more blameless than the Philistines though I do them a displeasure, after they had injured him; and again, v. 11, As they did unto me so have I done unto them. So the Platæans in Thucydides said. So Demosthenes against Aristocrates. So Jugurtha in Sallust against Adherbal. Aristides the orator proves from the poets, legislators, orators, and from proverbs, the right of taking revenge on those who attack. Ambrose praises the Macca227bees, who, even on the sabbath-day, avenged the death of their innocent brethren. And he too, arguing against the Jews who complained of their synagogue as having been burnt by the Christians, says, If I went upon the law of nations, I should say how many Christian houses of worship the Jews burnt at the time of Julian: where the law of nations to which he refers is, returning like for like. So Civilis in Tacitus.

4 But because in things which concern us and ours, we are misled by affection, therefore many families were brought together in one place, judges were constituted, and to these alone was given the power of righting those that were injured, the liberty which nature had given to other persons being taken away. So Lucretius of the origin of civil society: Demosthenes against Conon: Quintilian; the emperors Honorius and Theodosius; and king Theodoric. [See.]

5 Yet the old natural liberty remains; first, in places where there are no tribunals, as at sea. And to this perhaps we may refer the proceeding of Cæsar when, as a private man, having been taken by pirates, he collected ships, and partly put theirs to flight, partly sunk them; and then, when the proconsul was slow in punishing those who were taken, he himself gibbeted them. The same holds in deserts, or where men live a Nomadic life. So among the Umbrici as Nicholas Damascenus relates, every one is his own avenger; which is also the custom among the Muscovites, after a certain time has elapsed from the application to the judge. And this was the origin of the duels which, before the introduction of Christianity, were common among the German nations, and are not yet sufficiently gone out of use. And so, as Paterculus relates, the Germans when they became acquainted with the Roman jurisdiction, admired to see injuries concluded by judicial proceedings, which they were accustomed to see terminated by an appeal to arms.

6 The Hebrew Law permitted the relative of the person slain to kill the slayer, anywhere without the places of refuge: and the Hebrew commentators rightly note, that retaliation for a person slain might be executed by personal force; but for the person himself, for example, for a wound, no otherwise than before a judge; because moderation is more difficult when the pain comes nearer ourselves. That a like mode of avenging murder by the hands of a private person prevailed among the Greeks of old, appears in Homer. But the examples of this are most frequent among those who have not a proper judge. Just wars, says Augustine, are commonly defined to be those which avenge injuries; and Plato approves battles on such ground.

IX. 1 The utility of persons in general, which was the third end of punishment, offers the same divisions as the utility of the injured man. For either the object is that he who has done harm to one may not do harm to others; which is secured, either by taking him away, or by taking away his power of mischief, or by constrain228ing him so that he cannot do harm, or by amending him: or else the object is to prevent others from being tempted by impunity to do harm to any others, which is provided for by conspicuous punishments, examples. These are employed, that the punishment of one may produce the fear of many; that others may be deterred by the kind of punishment, as the laws speak; that others may be compelled to look forward and fear, as Demosthenes says.

2 The right of inflicting such punishment, is also, by Natural Law, in the hands of every man. So Plutarch says that a good man is by nature pointed out as a perpetual magistrate; for by the law of nature, authority is given to him who does just things. So Cicero proves that a wise man is never a private man, by the example of Scipio Nasica. And Horace calls Lollius, Consul not for his year alone; so Euripides: which however must be understood with reference to the laws of the State.

3 Of this Natural Law Democritus speaks; first, of the right of killing harmful beasts; and certainly it is not improbable that good men did this before the deluge, before God had delivered his will to man, that other animals should become his food. And then he extends this to man: and afterwards says that whoever kills a thief or robber, by his hand, command, or vote, is innocent. And Seneca seems to have referred to this. [See the passages.]

4 But since the proof of the fact often requires great care, and the estimate of punishment requires great prudence and great equity, communities of men have chosen, for this office, those whom they thought to be, or hoped to find, the best and most prudent. So Democritus.

5 But as in punishment vindicative, so in punishment exemplary, there remain vestiges of the original law, in those places and between those persons who are not under fixed judgments; and besides, in some excepted cases. So amongst the Hebrew customs, a Hebrew apostatizing from the true God and joining idolatrous worship, might be at once put to death by any person. The Hebrews call it a judgment of zeal, of which they say Phineas set the first example. (Numb. xxv.) So in the Maccabees (1 Macc. ii. 24), Mattathias slew a Jew polluting himself with Greek rites; and so in 3 Maccab. [vii. 15.] 300 Jews were killed by their countrymen. And the stoning of Stephen, and the conspiracy against Paul, were on the same pretext, as well as many other examples in Philo and in Josephus.

6 So also among many peoples, masters retained the right of punishing their servants, and parents their children, even to death. So at Sparta, the Ephori could put a citizen to death without trial.

From what we have said, we may see what is the Law of Nature with regard to punishment, and how far it continued.

X. 1 We must now consider whether the Gospel Law has limited this liberty more narrowly. Certainly, as we have elsewhere said, it is not to be wondered at, that some things which are permitted by the

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Natural and the Civil Laws, are forbidden by the Divine Law; that being both the most perfect of Laws, and one which promises rewards beyond the discovery of mere human nature; and to obtain which, very reasonably, virtues are required which go beyond the mere precepts of nature. But punishments or castigations which neither leave behind them infamy nor permanent damage, and which are necessary, according to the age or other quality of the offender, if they are inflicted by those to whom human laws give such permission, as parents, tutors, masters, teachers, have nothing which is at variance with the evangelical precepts. These are remedies of the soul, as innocent as bitter medicines are.

2 With regard to revenge, the case is different. For so far as it is a mere satisfaction of the mind of the person offended, it is unlawful, not only by Gospel Law, but by Natural Law. The Hebrew Law too, not only forbids persons to bear malice against their neighbour, that is, their countryman, but even commands them to bestow certain common benefits on such enemies. And therefore the name of neighbour being by the Gospel extended to all men, it is required of us, not only that we do not do harm to our enemies, but that we do them good; which is also directly commanded, Matth. v. 44. The Hebrew Law permitted men to revenge the graver injuries, not by their own hand, but by recourse to the judge. Christ, however, does not permit the same to us; as appears by the opposition, Ye have heard it said—But I say unto you. For though what follows properly refers to the repelling of injury, and in some degree restricts even the liberty of doing that, these precepts are much more to be understood as condemning revenge; for they reject the ancient permission as suitable only to a more imperfect time. So the Clementine Constitutions.

3 Tertullian comments on Christ’s teaching, as an addition to that of the Old Testament, that vengeance is to be left to God. They who believe in Him, are to expect that He will punish; they who do not, are to fear retaliation.

4 Christ, he adds, did not destroy the teaching of the Old Law. God has provided judges of injury. Without this, forbearance loses its reward: for it is by the fear of punishment that injury is controlled. Without this, violence would go to extremes.

5 Thus Tertullian thinks that revenge was permitted to the Hebrews, not as a thing blameless, but to avoid a greater evil. And this is undoubtedly the case, with such demand of satisfaction as proceeds from wrath; and so the purpose of the law was understood, as appears in Philo. And this is the point to which Christ’s precepts tend, when he enjoins forgiveness of injuries. We are not to procure or wish ill to men from the feeling of the ill which they have done us. So Claudian: and so Lactantius and Ambrose correct Cicero.

6 But what are we to say of revenge, as it respects, not the past, but protection for the future? Hero also Christ enjoins us to for230give, if he who has injured us shows any signs of penitence; [see the passages;] in which be speaks of a plenary remission of injury, which may restore the offender to his former place in our good will; whence it appears that nothing is to be required of him in the way of punishment. And even if signs of such penitence be wanting, we are not to take it too severely, as the precept, of giving our coat also, shews. And even Plato said something like this. An Action for contumely (such as Christ indicates in speaking of one striking us on the cheek), Musonius said he would neither promote nor authorize, it being better that such things should be pardoned.

7 But if such forbearance bring great peril, we are to be content with such precaution as shall do the least harm to the offender. So among the Jews, the person offended accepted a pecuniary fine; which was also practised at Rome. So Joseph, the husband of Mary, and the educator of our Lord Jesus, when he conceived his wife to be guilty of adultery, was minded to put her away, not to bring her before a public tribunal; and this, because he was a just, that is, a merciful man. And on this account Ambrose and Lactantius praise him. So Justin, of the accuser of the Christians, says, We do not wish our calumniators to be punished: their depravity and ignorance are punishment enough.

8 There remain punishments which provide, not for private but for public good; partly by coercion of the mischievous, partly by the effect of example. And that these are not taken away by Christ, we have elsewhere clearly proved, in that while he gave his precepts, he declared that he did not destroy the Law. The Law, as long as it continued, rigidly required the magistrates to punish homicide and some other crimes. And if the precepts of Christ could stand along with the law of Moses when it pronounced even capital punishments, they may also stand along with human laws, which in this respect imitate the Divine Law.

XI. 1 There are some, who in defense of the contrary opinion, adduce the great mercy of God in the New Covenant, which they conceive must be followed by men, and even by magistrates, as the vicars of God: and that this is in some degree true, we do not deny, but it does not extend so far as they wish. For the great mercy of God in the New Covenant especially regards offenses against the primeval law [given to Adam], or the law of Moses, committed before the knowledge of the Gospel was received. [Sec the passages quoted.] For transgressions committed after this, especially if there be added contumacy, have a threatening of a much more severe judgment than that which was instituted by Moses. [See the passages.] And not in another life only, but in this also, God frequently punishes such transgressions. And such offenses are not commonly pardoned, except man punish himself, by serious contrition, 1 Cor. xi. 31, 2 Cor. ii. 7.

2 They urge that at least they who are penitent ought to receive 231impunity. But, not to say that true penitence is a matter of which men can hardly be assured, and that any one may obtain impunity, if it be sufficient to profess penitence in any way he chooses; God himself does not always remit the whole of the punishment to those who are penitent, as appears by the example of David. As therefore God could remit the punishment of the law, that is, violent or untimely death, and yet inflict evils not at all slight upon the offender; so now also, he may remit the punishment of eternal death, and yet give up the offender to untimely death, either inflicted by himself, or, in conformity with his will, by the magistrate.

XII. 1 Again, others use this argument, that when life is taken, the time for penitence is cut off. But they know that pious magis­trates take careful account of this view, and that no one is hurried to capital punishment without giving him time to see and seriously to detest his sins: and that such penitence, although works corresponding do not follow, being intercepted by death, may be accepted by God, the example of the thief crucified with Christ proves. But if it be said that a longer life might have been profitable for a more serious repentance, there may also be found those to whom may deservedly be applied what Seneca says, The only good thing which you can now furnish is the spectacle of your death: and again: Let them cease to be bad men by death, the only way they can. As Eusebius the philosopher also says, Since they can do it no other way, let them at least in this escape the bonds of wickedness, and find that refuge.

2 This then, in addition to what we said at the beginning of the work, is our answer to those who hold that either all punishment, or at least capital punishments, are without exception forbidden to Christians: which is contrary to what the Apostle teaches us, who includes the use of sword in the royal office, as the exercise of divine vengeance; and who elsewhere bids us to pray that kings may be Christian, and, as kings, be a protection to the innocent. And this, seeing the wickedness of great part of men, even after the propagation of the Gospel, cannot be secured, except, by the death of some, the boldness of others be repressed; since even now, when capital punishments and gibbets are so common, there is scarcely safety for innocence.

3 Still it will not be improper for Christian rulers, at least in some degree, to propose for their imitation the example of Sabaco, king of Egypt, who is reported by Diodorus to have commuted capital punishments for condemnation to the public works, with the happiest success. And Strabo says, that even the peoples about Caucasus punished no crimes with death, not even the greatest. Nor is that of Quintilian to be despised: None will doubt that if guilty men can be brought to a good way of thinking in any way, as it is granted that sometimes they can, it would be better for the State that they should be preserved than capitally punished. Balsamon notes that the Roman laws which enacted the punishment of death, were, by the Christian emperors, changed for 232the most part into other punishments, that both the condemned might be more thoroughly driven to penitence, and their punishment being prolonged, might be more profitable as example.

XIII. 1 But in the enumeration of the ends of punishment by Taurus, it appears that something was overlooked. Gellius thus quotes him: When there/ore there is either great hope that the offender will without punishment correct himself; or, on the other hand, there is no hope that he can be amended and corrected; or, there is no reason to fear that the dignity which is offended will suffer; or, the offense be not such as requires exemplary fear to correct it; then the offense does not seem to be one for which a punishment need be devised. For he speaks as if when one end of punishment is taken away, the punishment should be removed; while on the other hand, all the ends must cease to exist, in order that there may be no ground for punishment. And moreover he omits that end, when a man who is unamendable is removed from life, that he may not commit more or greater crimes: and what he says of loss of dignity, is to be extended to other evils which are to be feared.

2 Seneca spoke better when he said: In punishing wrongs, the law has had these three objects, which the prince also ought to aim at; either to amend him who is punished; or to make others better by the punishment; or to make the rest of mankind more secure by removing the bad. For here, if by the rest, he means not only those who have been injured, but others who may hereafter be so, you have a complete division of the subject, except that to removing you should add or repressing. For both imprisonment, and any other way of diminishing their power, tends the same way. He has another less perfect partition in another place; as has Quintilian.

XIV. From what has been said, it may be collected, how unsafe it is for a private Christian man to inflict punishment, and especially capital punishment, either for the sake of his own or of the public good, upon a guilty person; although, as we have said, that is sometimes permitted by the Law of Nations. And hence we must approve of the usage of those peoples by whom navigators are provided with commissions from the public power to suppress pirates, if they find any upon the seas; on which commissions they may act, not as of their own motion, but by public command.

XV. Of much the same kind is the provision which prevails in many places, that not any body who chooses can take up the accusation of crimes, but only certain persons on whom that office is imposed by the public power; so that no one shall do any thing to shed the blood of another, except by the necessity of his office. Accordingly the canon of the Council of Seville provides, that if any one of the faithful shall turn informer, and by his means any one shall be proscribed or put to death, he shall not receive the Communion, even when dying.

XVI. And this too follows from what has been said, that it is not advisable for a truly Christian man, nor is even decent, that he should 233of his own accord mix himself with public business which involves capital punishment, and seek for a power of life and death, as if he were a sort of God among men. For certainly what Christ says, applies here, that it is dangerous to judge others, since as we judge them, God will judge us.

XVII. 1 It is a noted question, whether the human laws, which permit the slaying of certain men, really justify the slayers in the sight of God, or only give them impunity among men. Covarruvias and Fortunius bold the latter, which opinion Vasquius calls shocking. It is not doubtful, as we have said, that, in certain cases the Law can do both the one and the other. But whether the law had that intention, is to be understood partly from the words of the law, and partly from the matter. For when the law gives indulgence to human feeling, it takes away the punishment of the law, but not the sin, as in the case of a husband who kills the adulterous wife or the adulterer.

2 But if the law look to future danger from the delay of punishment, it is to be conceived to give right and public power to the private person, so that he is no longer a private man.

Of this kind is the law in the Codex under the rubric, When it is lawful for any one without a judge to do justice for himself or for the public service; [Cod. III. 27] where any one is allowed to suppress by force soldiers who plunder; where too the reason is added, putting such soldiers on the footing of robbers. And a similar law is given respecting deserters. As Tertullian says: Against traitors and public enemies every one is a soldier.

3 There is a difference in the right of killing exiles, outlawed persons: namely, that there, a special opinion has preceded, but in this case, a general edict, which is combined with the evidence of the fact, and has the force of a judicial sentence.

XVIII. Let us now consider whether all vicious acts are such that they may be punished by men. It is certain that they are not all such. For, in the first place, more internal acts, even if they come to be known, for instance by confession, cannot be punished by men; because, as we have said, it is not congruous to human nature that mere internal acts should give rise to right or obligation. And so the Roman law. But that does not prevent that internal acts, so far as they influence external, may not be taken into account in estimating, not themselves properly, but the external acts which receive from them their character of desert.

XIX. 1 In the next place, acts unavoidable to human nature cannot be punished by man. For though nothing is sin which is not done freely, yet to abstain from all sin and always, is above the condition of humanity; and hence sin is said to be natural to man by some of the philosophers, and by many of the Christians. See Seneca, Sopater, Philo, Thucydides, Diodorus.

2 It may even be doubted whether those acts can properly be 234called sin, which, though they have an appearance of liberty, are not free, when considered in their generality. So Plutarch in Solon. Then again there are other acts which are inevitable, not to human nature properly, but to this particular person at this moment, on account of the constitution of the body affecting the mind, or inveterate habit; which is commonly punished, not in itself, but on account of precedent fault; because either the remedies were neglected, or the diseased thoughts willingly admitted into the mind.

XX. I Thirdly; those offenses are not to be punished, which neither directly nor indirectly regard human society or any other man. The reason is, that there is no cause why such sins should not be left to God to punish, who can both know them best, and judge them most justly, and punish them most effectually. Wherefore if such a punishment were instituted, it would be useless, and therefore blameable. From this remark are to be excepted punishments for amendment, which have for their object to make the man better, though the interest of others is not concerned. Also punishments are not to be inflicted on acts opposed to those virtues of which the nature rejects all compulsion, as mercy, liberality, gratitude.

2 Seneca treats this question, Whether ingratitude ought to meet with impunity; and gives many reasons why it ought not [to be punished]; but this as the principal one, which may be extended to other like cases: Since gratitude is a most graceful thing, if it be necessary it ceases to be graceful: that is, it loses its degree of gracefulness, as appears by what follows: We praise a grateful man only as one who returns a deposit or pays a debt without being forced: and again, It could not be a glorious thing to be grateful except it were safe to be ungrateful. As Seneca the father says, I do not want to have [such] a person praised who is accused, but to have him acquitted.

XXI. We must now discuss whether it is ever lawful to excuse or pardon: The Stoics denied it, but with a poor argument: Pardon is the remission of a due penalty, but the wise man does what is due. Here the fallacy is in the word due. For if you understand that he who has transgressed owes the penalty, that is, may be punished without wrong, it will not follow that he who does not punish him, does not do what he ought. But if you say that the punishment is due on the part of the wise man, that is, that he ought by all means to require it, we deny that that is always the case, and therefore say that the punishment in that sense is not due, but only lawful. And that may be true, both before and after the penal law.

XXII. 1 Before the penal law is instituted, it is not doubtful that punishment may have place; because by Natural Law he who has transgressed is in that state in which be may be lawfully punished; but it does not follow that punishment ought to be exacted: because this depends upon the connexion of the ends for which punishment is instituted with punishment itself. Wherefore if those ends are, in moral estimation, not necessary, or if there are, opposed to those, 235other ends not less useful or necessary, or if the necessary ends of punishment can be obtained in another way, it follows that there is nothing which precisely obliges to exact punishment. We may take an example of the first case in a sin known to few, and of which the public notice is not necessary, or is even hurtful. As Cicero says of a certain Zeuxis, Being brought to trial perhaps he ought not to be dismissed, but it was not necessary to bring him to trial. An example of the second case is one who puts forward his own merits or those of his parents, as a set-off against his fault; so Seneca: an example of the third case, we have in him who is reformed by remonstrance, or who has satisfied the injured person by a verbal acknowledgment, so that punishment is not necessary for those ends.

2 And this is one part of the clemency which liberates the offender from punishment, of which the Hebrew wise man says, Clemency becomes the just man. For since all punishment has in it something opposed not to justice, but to charity, reason easily permits us to abstain from it, except some greater and juster charity oppose insurmountable obstacles. So Sopater, Cicero, Dio Prusæensis, Favorinus.

XXIII. These cases may occur: that punishment may require absolutely to be exacted, as in crimes of very bad example;—or may be fit not to be exacted, as if the public good require it to be omitted;—or either course may be allowable: when, as Seneca says, Clemency has free will. Then, say the Stoics, the wise man spares, but does not pardon: as if we might not, with common usage, call that pardon, which they call sparing. In fact, here and elsewhere, as Ciecro, Galen and others have noted, a great part of the disputatious of the Stoics is about words, which a philosopher ought carefully to avoid. So the writer to Herennius, and Aristotle say.

XXIV. 1 There seems to be a greater difficulty, after the penal law is instituted; because the author of the law is, in a certain way, obliged by his own law; but this, as we have said, is true; so far as the author of the law is considered as a part of the State, but not, so far as he bears the character and authority of the State. For in that capacity, he may rescind the whole law, because the nature of human law is, that it depends on human will, not only in its origin, but in its duration. But yet the author of the law ought not to abolish it, except for a probable cause, since otherwise he offends against the rules of governmental justice.

2 But as he may take away the whole law, so may he remove its obligation with regard to a particular person or fact, the law for the rest remaining; following the example of God himself, who, as Lactantius says, when he established the law did not deprive himself of the power of pardon. So Augustine, and Seneca in the character of Nero.

3 But this also is not to be done except there be a probable cause. What are probable causes, although it cannot be precisely 236defined, yet we must hold by this, that they ought to be greater after the law, than were regarded before the law; because the authority of the law, which it is important to preserve, has been added to the other causes of punishment.

XXV. The causes of liberating any one from the punishment of the law, are commonly either intrinsic or extrinsic: an intrinsic cause is when the punishment, though not unjust, is severe compared with the fact.

XXVI. An extrinsic cause of remission of punishment is that which arises from some merit or other thing commending the offender to mercy; or from a great hope of him in future; which kind of cause will then be of most avail, if the reason of the law, at least in a particular point, ceases as to the fact in question. For although to sustain the efficacy of the law, the universal reason suffices, there being no repugnant contrary reason; yet the cessation of the reason for the particular case, effects that the law may be more easily, and with less loss of authority, loosened. And this happens most in those offenses which are committed through ignorance, though not free from all fault; or through infirmity of mind, superable indeed, but yet difficultly superable. To these, the Christian ruler ought mainly to look, that he may imitate God, who in the Old Testament gives testimony by word and by deed that he is indulgent in forgiving such. [See the passages.] And that by those words of Christ, Father, forgive them; for they know not what they do, Theodosius was moved to pardon the Antiochians, is noted by John Chrysostom.

XXVII. And hence it appears how ill Vasquius said, that a just cause of dispensing with, that is of relaxing the law, was such alone as one about which, if the author of the law had been consulted, he would have said that it was not in his mind to have it observed. Here be has not distinguished between the equity which interprets the law, and a relaxation of it. And on this ground he elsewhere reproaches Thomas Aquinas and Sotus, for saying that the law obliges, even though the cause in particular ceases, as if they had thought that the law was only the written word, which never came into their minds. For so far is it from being the case that any relaxation of the law, which may often be freely either given or omitted, is to be referred to equity, that even that relaxation which is due to charity or to governmental justice is not to be referred to that principle. For it is one thing to take away the law for a probable, or even for an urgent cause, and another to declare that the fact was from the beginning not comprehended in the mind of the law.

We have spoken hitherto of taking away punishments, lot us now consider their apportionment.

XXVIII. From what has been said above, it appears that two things are regarded in punishments; for what, and on account of whom. For what, is a question of merit; on account of whom, is a 237question of the use of the punishment. No one is to he punished beyond his desert, as Horace and Cicero say: accordingly, Papinian calls punishment the valuation [of an offense]. Aristides says that it is suitable to nature that there should be some point beyond which punishment shall not proceed; Demosthenes says that equality of punishment [and crime] is not to be regarded nakedly as in weights and measures, but with estimation of the purpose and intention of the offender. Within the limit of this desert, crimes may be punished more or less, according to utility.

XXIX. 1 In examining desert, these points come under consideration; the cause which impelled, the cause which ought to have withheld, and the fitness of the person to each. [First, of the impelling cause.] Scarce any one is wicked for nothing: if there be any person whom wickedness delights on its own account, he has gone beyond the limits of humanity. The greater part of persons are led to sin by the affections: When desire hath conceived it bringeth forth sin, James i.15. Under the name of desire, I include also the impulse to shun evil, which is the most natural, and therefore the most decent of the appetites. Hence what is done wrongly to avoid death, imprisonment, pain, or extreme want, is commonly held most excusable.

2 And so Demosthenes, Polybius, Aristotle, Porphyry.

3 Other appetites tend to some good, either imaginary or real. True good, is, besides the virtues and their actions which do not tend to sin, either things which delight, or the cause of delight, which is called utility, as abundance of possessions. Imaginary goods, not real, are superiority over others, so far as it is separate from virtue and utility, and revenge. These three appetites St John calls the lust of the flesh, the lust of the eyes, and the pride of life. The first comprehends the desire of pleasure, the second, cupidity of having, the third, the pursuit of vain glory, and anger. Philo says that all evil comes of the desire of wealth, glory, or pleasure. So Lactantius.

XXX. 1 [Second, of the withholding cause.] The general cause which ought to withhold men from offending is justice. [Hence injustice is a measure of punishment.] The injustice is the greater as the greater damage is done to any one. Therefore the first place belongs to consummated crimes; the next, to those which have proceeded to some acts, but not to the last; and among those, everything is the more grievous in proportion as it has gone further. In each class, that injustice has an eminent place which disturbs the common order, and therefore hurts the greatest number; that comes after, which affects individuals. The greatest offense here is that which affects life; the next, family, of which the foundation is matrimony; the last, desirable objects, either directly by subtracting them, or by producing damage through wrong doing.

2 These matters might be divided more subtilly; but the order which we have indicated is that which God has followed in the Decalogue. [The fifth commandment includes duties to governors]; for by 238the name of parents, who are natural magistrates, other rulers also must be understood: then follows the interdiction of homicide; then the sanction of matrimony by the prohibition of adultery; then theft; then false witness; in the last place, sins unconsummated.

Among the withholding causes, ought to be put, not only the character of that which is directly done, but of that which will probably follow: as in setting fire to a house, or breaking down a dam, great calamity, and even deaths, are to be looked for.

3 To the injustice which we put as the general cause, there is often added some other vice, as impiety towards parents, inhumanity towards neighbours, ingratitude towards benefactors; which increases the offense. Also there appears a greater pravity, if any one has often offended: because bad habits are worse than bad acts. And hence it may be understood how far that was by nature equitable, which was practised among the Persians, that the anterior life was taken into account along with the offense. That may be applied, where a person, not otherwise bad, has been overcome by some sudden temptation: but not in those who have changed their whole course of life, in whom God says he will not regard the former life (Ezek. xviii.^*). So Thucydides.

4 The ancient Christians, in assigning punishment by the canons, rightly directed, not the naked delict to be regarded only, but at the same time the preceding and succeeding life. A law directed against a special sin, if violated, adds a degree of depravity to that which the sin by itself would not have. So Augustine, Tacitus.

XXXI. I [Third, as to the aptitude of the person.] The aptitude of the person, either to consider the withholding causes, or to feel the power of the impelling affections, may be considered as to his constitution, age, sex, education, and the circumstances of the act. For children, women, persons of dull intellect, ill educated persons, are less able to perceive the differences of just and unjust, of lawful and unlawful: those in whom bile prevails are irascible; those in whom blood, lustful; and youth tends to one of these ways, age, the other. Andronicus speaks of such palliations. Then again fear is augmented by the thought of imminent danger; anger, by recent and still smarting vexation; so that they scarce suffer reason to be heard: and transgressions which thus arise are deservedly less odious than those which spring out of the desire of pleasure, which is both slower in its impulses, and may more easily be put off and led to seek other matter. Aristotle discusses this question, Eth. Nicom. VII. 7.

2 This also is to be held, that in proportion as the judgment of the person choosing his course is more impeded, and by more natural causes, the offense is less. So Aristotle in the same place. Antiphones; and old men in love, in comedies. And by these principles 239we must estimate the limiting amount of punishment according to desert.

XXXII. 1 We must remark that the doctrine of the Pythagoreans, that justice is a reciprocal proportion, is not to be so understood as if he who has deliberately and without extenuating causes, injured another, should himself receive so much harm, and no more. That this is not so, the Hebrew law shews, when it directs thefts to be punished by forfeit to four or five times the amount. By the Attic Law, the thief, besides a fine of the double, was kept in bonds some days. So Ambrose, Aristides, Seneca.

2 Among the Indians, as Strabo notes, he who had maimed any one, besides retaliation, had his hand cut off. In Aristotle’s Magna Moralia, If any one strike out the eye of another, it is just that he suffer not so much only, but more. For it is not just that the danger of the guilty and of the innocent should be the same, as Philo shows, in treating of the punishment of homicide. And this may be estimated also by considering that some delicts not consummated, and therefore less than if they were consummated, bring down, as punishment, an evil equal to that meditated: as we read of the Hebrew law of false witness, and the Roman law against him who went about with a weapon to kill a man. From which it follows, that to the crime when consummated, a heavier punishment will correspond: but because nothing is heavier than death, and that cannot be reiterated, as Philo notes, the punishment is necessarily confined within those limits, sometimes adding tortures according to the desert.

XXXIII. But the magnitude of the punishment is to be regarded, not nakedly only, but with respect to the patient. For the fine which will press down a poor man will sit lightly on a rich one: and to a disreputable person, ignominy as a punishment will be a small evil, but a great one to a man in honour. The Roman law often uses this kind of diversity; whence Bodin constructed his harmonic proportion: although in reality the proportion is simple, and resembles numerical equality: the punishment is to be equal to the desert, as, in contracts, the money to the goods: although the same goods are in one place worth more, in another less, and money in like manner. But it must be confessed that this, in the Roman law, is often not done without too much respect of persons and qualities not pertaining to the fact; while the law of Moses is always quite free from this fault. And this, as we have said, is the intrinsic apportionment of punishment.

XXXIV. But a tenderness for him who is punished, leads us to the minimum of punishment, except a juster tenderness for the greater number persuade us to some other course for an extrinsic cause; which cause is, sometimes, great danger from him who has offended, but more frequently, the necessity of example. And this necessity usually arises from the general incitements to sin, which cannot be repressed without sharp remedies. The principal incitements are custom and facility.

240 XXXV. On account of the facility, the divine law given to the Hebrews punishes more heavily theft from the field than from the house; Exod. xxii. 1 and 7. So Justin says the Scythians account theft a most heinous crime, in consequence of its facility among their uninclosed herds. So Aristotle.

The custom of an act, though it subtracts something from the fault (so Pliny), yet on one side it demands severity, to meet the prevailing evil. But in particular judgments, we must more lean to leniency, in making laws, to severity; taking account of the time when the laws or the judgments are delivered, because the utility of the punishment is most considered in the general case; but the fault is greater or less in individual cases.

XXXVI. 1 What we have said, that when great and urgent causes cease, we should be prompt rather to diminish the punishment, is the direction in which the other part of clemency is seated: the former part consisting in taking away the punishment altogether. So Seneca speaks of tempering punishment when we cannot pardon; so Diodorus Siculus, Capitolinus, describing M. Antoninus, Isocrates, speak of punishment below the requirement of the laws.

2 Augustine admonishes Count Marcellinus of his duty, urging clemency.

XXXVII. We hope we have omitted nothing important in this obscure and difficult argument. We have taken account of the four things which Maimonides says are chiefly to be regarded in punishments; the greatness of the sin, its frequency, the amount of desire, the facility of the deed; and also the seven points which Saturninus very confusedly considers in punishments; the person who did the deed, the person who suffers, the place, the time, the quality, the quantity, the event;—all the seven belong to one or other of our heads.

XXXVIII. That wars are undertaken not unfrequently to demand punishment, we have shown above, and history everywhere teaches: but mostly this cause is conjoined with that other, the reparation of the damage, when the same act was both vicious and produced damage: from which two qualities two different obligations arise. That wars are not to be undertaken for every fault, is obvious enough; for even the laws do not apply their vindictive operation to all faults, though they only harm the guilty. This is right, as we have said. So Sopater.

XXXIX. 1 What Cato said for the Rhodians, that it was not just that a person should be punished for the evil which he was alleged only to have wished to do, was not ill put in its own place, because no decree of the Rhodians [declaring war against the Romans,] could be adduced, but only conjectures of a fluctuating mind: but this is not universally to be received. For the will which has proceeded to external acts, is commonly obnoxious to punishment. So Seneca, senior and junior. Not the event of things, but the intent, are treated by the laws, says Cicero. So Periander. So the Romans decreed the 241second war against king Philip, except he gave satisfaction concerning the designs he had entertained of making war against Rome; inasmuch as he had collected arms, soldiers, and a fleet. And this is noted in the oration of the Rhodians in Livy; that neither is it established by the laws nor by the customs of any nation, that if any one wished his enemy to perish, but did nothing to bring such a result to pass, he should be capitally condemned.

2 But again, it is not every perverse will, which comes to be indicated by a fact, that gives occasion for punishment. For if we do not punish all perpetrated crimes, much less shall we punish those only thought of and conceived. In several places we may say what Cicero says; I do not know whether it is not enough that the person who has done wrong should repent. The Hebrew law did not provide specially against most offenses against piety merely preconceived, or even against the life of man (except by means of judicial proceedings); since error about divine things, which are obscure to us, is easily committed, and the impulse of anger may be pardoned.

3 But in matrimony, where so many matches are to be had, to attempt to disturb the married life of another; or in property, when the division is so equal, to contrive devices by which one may enrich himself at the expense of another, was not to be borne. That command, Thou shalt not covet, in the Decalogue, although if you look at the object of the law, that is, the spiritual object, it is of wide extent; for the law desires all to be pure even in mind; yet as to the external precept, the carnal commandment, it refers to the affections of the mind which are disclosed by deeds; as appears by St Mark, who gives that same precept, Defraud not; having before given, Do not steal (Mark x. 19). And the Hebrew word and the Greek one corresponding are found in that sense in Micah ii. 2, And they covet fields, &c. And elsewhere.

4 Therefore inchoate delicts are not to be punished by arms, except either the matter be grave and have gone so far that, from such act, a certain evil, though not that which was intended, has ensued; or at least, great danger; so that the punishment be conjoined with protection against future mischief, or be a defense of offended dignity, or a remedy to a pernicious example.

XL. 1 It is to be understood also that kings, and they whose rights are of the nature of royal rights, have the right of requiring punishment, not only for injuries committed against them and their subjects, but for those also which do not peculiarly touch them, but which enormously violate the law of nature and nations in any persons. For the liberty of providing for human society by punishment, which at first, as we have said, was in the hands of individuals, did, when states and tribunals were instituted, fall to the share of the supreme authorities, not properly as commanding others, but as being themselves subject to none. For subjection took away the right from others. Indeed it is more honourable to punish the injuries of

others than your own, in proportion as, in your own, it is to be feared lest a person may, by the sense of his own pain, either exceed due measure, or vitiate his mind with malice.

2 And on this account Hercules is praised by the ancients for having freed the land from Antæus, Busiris, Diomedes, and similar tyrants; having, as Seneca says, passed through the land not in concupiscence, but in just indignation, and thus being the author of great good to man. So Lysias, Diodorus, Dio Prusæensis, Aristides. Theseus is praised in like manner for removing the robbers Sciron, Sinis, and Procustes. See Euripides, Valerius Maximus.

3 Thus we do not doubt that war is just against those who are impious against their parents; such as the Sogdians were, before Alexander cured them of this barbarity; against those who kill strangers; against those who feed on human flesh, which usage Hercules compelled the Gauls to give up, as Diodorus narrates: and against those who practise piracy. Seneca says, that though he does not do any harm to my country, yet such depravity cuts him of [from the tie of humanity]:Augustine says that there are things which if any state on earth have decreed or should decree, that state would require to be overthrown by a decree of the human race. Of such barbarians, and wild beasts, rather than men, we may say what Aristides previously said of the Persians, (who were really no worse than the Greeks,) that war against them is natural; and what Isocrates said, that war against brute beasts was most just, and next to that, war against men who are like brutes.

4 And so far we follow the opinion of Innocentius, and of others who say that war may be made against those who sin against nature; contrary to the tenets of Victoria, Vasquius, Azorius, Molina, and others; who seem to require, in order to justify a war, that he who undertakes it should be either injured in his own person, or in the country to which he belongs, or that he should have jurisdiction over him whom he attacks. For they hold that the power of punishing is the proper effect of Civil Jurisdiction; while we conceive that it comes also from Natural Law. If the opinion of those from whom we dissent be admitted, an enemy will not have the power of punishing an enemy, even after war has been justly begun, if it be for another cause than to inflict punishment: which right, however, most authors concede, and the usage of all nations confirms, not only after the war has been finished, but even while it is going on; and this right is claimed, not from any civil jurisdiction, but from that natural right which existed before states existed, and is still in force in places in which men live, distributed into families and not into states.

XLI. But here some cautions are to be applied; first, we are not to take instituted usages of states, though received among many nations, and not without reason, for the laws of nature; of which kind 248mostly were those things in which the Persians differed from the Grecians; to which we may refer what Plutarch says: that to profess to civilize barbarous nations, was a pretext to cover mere cupidity.

XLII. In the second place, we must take care that we do not rashly reckon, among the things forbidden by nature, those, with regard to which this is not clear; and which are rather interdicted by the divine will: in which class we must place concubinage, and some of the offenses called incest, and usury.

XLIII. 1 In the third place, we must carefully distinguish between general principles,—such as that we must live virtuously, that is, according to reason, and some which approach to them and are so manifest that they admit of no doubt, as, for instance, that we are not to take by violence what belongs to another;—and inferences from these; of which some are easy to know, for instance, that assuming matrimony, we are not to allow adultery; but others not so easy, as that the revenge which has for its ultimate object the pain of others is vicious. We have here nearly the same case as in mathematics, where there are certain primary notions, or truths immediately connected with these, [axioms], and some demonstrations which are forthwith understood and obtain assent; and again, certain propositions which are true but not apparent to all.

2 As then, with regard to civil laws, we excuse those who did not know, or did not understand the law; so also with regard to the law of nature, it is reasonable to excuse those who are embarrassed, either by weakness of reason or by a bad education. For ignorance of the law, as, when it is invincible, it takes away the sin, so too, even when mixed with some negligence, it diminishes the offense. And therefore Aristotle compares barbarians who, being educated in a depraved manner, commit offenses in such cases, to those who have appetites corrupted by disease. Plutarch says: There are certain diseases which throw the mind out of its usual balance.

3 In the last place, that also is to be added, which I say once for all, that wars undertaken on the ground of punishment, must be very suspected, except the crimes are very atrocious and very manifest; or except some other cause concur. Perhaps Mithridates was not very wrong when he said of the Romans, that they did not really attack the vices of kings, but their power and majesty.

XLIV. 1 Our order has led us to the offenses which are committed against God. For it is made a question whether war may be undertaken to punish these; and this is treated at sufficient length by Covarruvias. But he, following others, thinks that there is no punitive power without jurisdiction properly so called; which opinion we have already rejected. Whence it follows, that as bishops are said, in a certain way, to have received the care of the catholic or universal Church, so kings, besides the care of their particular state, have incumbent upon them a general care for human society. The sounder reason for the doctrine that such wars are not just, is this, that God is 244sufficient to punish offenses against himself; whence it is commonly said, that wrongs against the gods are the business of the gods, and that, perjury has a sufficient avenger in God.

2 But it is to be recollected that this may be said of other offenses also. For God is no doubt sufficient to punish those also; and yet they are rightly punished by men, no one dissenting. Some pursue the argument, and say, that other offenses are punished by men, so far as men are by them hurt or injured. But it is to be noted, on the other hand, that offenses are punished which not only hurt others directly, but those also which do so by consequence, as self-murder, and bestiality, and others.

3 For though religion of itself is efficacious in conciliating the favour of God, yet it has in human society its especial effects, and those very important ones. For Plato, with great reason, called religion the bulwark of virtue, and the bond of the laws and of honest discipline; and Plutarch similarly, the cement of society, and the foundation of laws. So Philo calls it the most potent love-charm, and indissoluble bond of benevolence. And the reverse of all this is said of impiety. All false persuasion concerning divine things is pernicious, and if passions are combined with it, is most pernicious. In Jamblichus we have a dictum of Pythagoras: The knowledge of God is virtue and wisdom and perfect happiness. Hence Chrysippus called Law the Queen of divine and human things, and Aristotle held, that among public cares, the first was that of divine things; and the Roman jurisprudence was described as the knowledge of things human and divine: and in Philo, the royal art is the care of things private, public and sacred.

4 All these things are to be considered, not only in one state, as when Xenophon makes Cyrus say, that his subjects would be more attached to him in proportion as they feared God more; but also, in the common society of the human race. If we take away piety, says Cicero, good faith and the fellow-­feeling of mankind and justice are taken away. And again: We learn what justice is when we know the authority of the supreme Governor and Lord what is his design, what his will. And an evident proof of this is, that Epicurus, when he had taken away divine providence, left nothing but the empty name of justice, saying that it arose from convention only, and lasts so long only as the common utility continues; that we must abstain from every thing which would turn others, solely from the fear of punishment. See his words in Diogenes Laertius.

5 Aristotle also saw this connexion, as where he says of a king, that the people will the less fear to be unjustly treated by the prince, if they believe him to be religious. And Galen says that many discussions are carried on, about the world and the divine nature, without any moral use; but he acknowledges the question concerning providence to be of the greatest use, both in its bearing upon private and upon public virtues. So Homer opposes, to wild and unjust men, those who have a 245religious mind. So Justin praises, in the ancient Jews, their justice mixed with religion: and so Strabo. So Lactantius says that he who is not religious does not know what justice is.

6 And religion is even more useful in that larger society [of the human race] than in civil society; since in the latter, its place is supplied by laws, and the easy execution of laws; while on the contrary, in that wider community, the execution of law is very difficult, since it can only be carried into effect by arms, and the laws are very few. And these too have their sanction mainly from the fear of the divine power and hence, they who transgress the Laws of Nations, are everywhere said to violate the divine laws. And hence the Emperors have rightly said that the infraction of religion is a wrong against all.

XLV. 1 To examine the whole matter, we must remark that true religion, common to all ages, rests mainly on four principles; of which the first is, that God exists, and is one: the second, that God is not any visible object, but something higher: the third, that God cares for human affairs, and judges them with perfect justice: the fourth, that God is the creator of all other things. These four points are delivered in the first four commandments of the Decalogue.

2 For in the first, the unity of God is plainly delivered: in the second, his nature, as invisible; for on this account it is forbidden to make any image of him. So Antisthenes; Philo; Diodorus, speaking concerning Moses; Tacitus, of the Jews; Plutarch, of Numa.

By the third commandment is indicated God’s knowledge and care of human things, even of human thoughts; for that is the foundation of oaths. For God is a witness even of the heart; and if any one swear falsely, He is invoked as the punisher: and by this is declared both the justice and the power of God.

By the fourth, the origin of the whole world in the act of God, in memory of which the sabbath was instituted, and hallowed with a peculiar sanction above other rites. For if any one transgressed other rites, the penalty of the law was arbitrary, as concerning forbidden meats: but for the violation of the sabbath, it was death; because the violation of the sabbath implied the denial of the creation of the world by God. And the world, as created by God, contains a tacit indication of his goodness, wisdom, eternity, and power.

3 From these contemplative notions follow active precepts; as that God is to be honoured, loved, worshipped, and obeyed. Hence Aristotle says that he who denies that God is to be honoured, or parents to be loved, is to be brought to reason, not by arguments, but by punishment. And elsewhere he says that other things are reckoned right in one place or another, but to honour God, in all places.

The truth of those contemplative notions, as we have called them, may doubtless be demonstrated by arguments taken from the nature of things; among which arguments, that is the strongest; that our senses shew us that some things are made; and that the things which are made lead us to something not made. But because all 246cannot take in this reason and similar ones, it is sufficient that all ages, and all countries, with very few exceptions, have given their consent to these notions: and those, some too dull to intend to deceive, and others too wise to be deceived. And this consent, in so great a variety of other laws and other opinions, shews sufficiently a tradition propagated from the first race of men to us, and never solidly refuted; which of itself is sufficient to produce belief.

4 The points which we here mention concerning God are brought together by Dio Prusæensis, when he says that our conception of God is partly internal, partly acquired by tradition. So Plutarch speaks of the ancient faith, than which no more evident proof can be found, the common foundation and basis of piety. So Aristotle and Plato.

XLVI. 1 Wherefore they are not blameless who, although they are too dull either to discover or to understand the solid arguments for these points of belief, reject them; since there exist, for them, guides to the right way, and the opposite opinion has no arguments to rest upon. But since we are speaking of punishments, and of human punishments, a difference is to be taken between the notions themselves, and the mode of departing from them. These notions, that there is a deity (I do not here say whether one or many), and that he cares for human affairs, are most universal, and absolutely necessary to constitute all religion, true or false. He that cometh to God (that is he who is to be religious) must believe that he is, and that he is a rewarder of them that seek him. Heb. xi. 6.

2 So Cicero; Epictetus; Elian; Plutarch; Lactantius. To deny that God exists, and to deny that he attends to human affairs, comes to the same thing, as to its moral effect.

3 Wherefore these two points of belief have been preserved, as if by necessity, among almost all nations of which we know anything. Hence Pomponius describes religion towards God as a part of the law of nations; and Socrates in Xenophon says that to worship the gods, is a rule among all men. So Cicero; Dio Prusæensis; Xenophon in the Symposium.

4 Therefore those who first begin to take away these convictions, as they may, in well constituted states, be coerced by punishment, as was done to Diagoras Melius, and to the Epicureans, who were ejected from well-governed states; so may they be coerced, as I conceive, in the name of human society, which they violate without probable reason. So Himerius pleading against Epicurus: Do you then demand that more doctrines be punished? By no means, but that impiety should. Men may deliver doctrines; they may not oppose piety.

XLVII. 1 Other points of religion are not so evident; as, that there are not more gods than one: that God is not any visible object; not the world, not the sky, not the sun, not the air; that the world does not exist from eternity; not even matter, of which it is made, but that matter was created by God. Therefore, as to these 247points, the knowledge has been, among many peoples, obliterated by the lapse of time, and as it were extinct; and the more easily because the laws gave less attention to this point, as being that without which at least some religion might subsist.

2 Even the law of God, given to the Jewish people, who were imbued with a knowledge of these things, neither obscure nor uncertain, by the prophets, and by miracles, partly seen by themselves and partly delivered by clear tradition, still does not punish with death all who are convicted of this offense; but only those in whom there is some particular circumstance to aggravate the fact, or who have seduced others; as Deut. xiii. 1, 6; or the city which begins to worship strange gods, ver. 12, 13; or that worships the sun, or the moon, or the host of heaven, Deut. xvii. 3; (which St Paul calls serving the creature, and not the Creator, Rom. i. 25; and which also was at one time punished among the posterity of Esau, Job xxxi. 26, 27, [If I beheld the sun when it shined, or the moon walking in brightness, and my heart hath been secretly enticed, or my mouth hath kissed my hand;]) or that gave his children to Moloch, Lev. xx. 2; that is, to Saturn.

3 The Canaanites and the neighbouring peoples, who fell away to depraved superstitions, God did not straightway punish, but only at last, when they had accumulated great wickedness upon this transgression, Gen. xv. 16. [God says to Abraham, In the fourth generation they shall come again; for the iniquity of the Amorites, is not yet full.] So in other nations also, God winked at the times of this ignorance, Acts xvii. 30. Philo says truly, that each one thinks his own religion the best, judging mostly, not by reason, but by affection; as Cicero says of philosophical doctrines. He adds, that most are involved in their religious belief, before they can use their judgment.

4 As, then, those are excusable, and certainly not to be punished by men, who, not having received any law delivered by God, worship the influences or spirits of the stars, or of any other natural bodies, either in images, or in animals, or in other things; or oven the souls of those who have excelled in virtue, and in benefits bestowed on the human race; or some incorporeal minds; especially if they have not themselves invented this worship, and therefore have not deserted for it the worship of the supreme God; so, on the other hand, they are to be reckoned impious rather than erroneous, who appoint divine honour and worship for evil demons, whom they know to be such, or for names of vices, or for men whose life was marked by wicked deeds.

5 Nor are they less to be reckoned impious, who worship gods with the blood of innocent men; which custom Darius of Persia and Gelo of Syracuse compelled the Carthaginians to discontinue, and are therefore praised. Plutarch relates that some barbarians, who worshipped the gods with human victims, were on the point of being punished by the Romans; but, having excused themselves by the antiquity of the 248custom, no harm was done them; but they wore commanded not to do the like in future.

XLVIII. 1 What shall we say of making war on certain peoples because they will not embrace the Christian religion when offered to them? I will not now enquire whether it be proposed to them such as it ought to be, and in such manner as it ought to be. Suppose this: we have then two remarks to make. The first is, that the truth of the Christian religion, in so far as it adds not a few points to natural and primitive religion, cannot be proved by mere natural arguments, but rests both on the history of the resurrection of Christ, and on that of the miracles done by him and the apostles; which is a matter of fact, proved of old by irrefragable testimonies, but only of old; so that this also [the ancient testimony] is a matter of fact, and of very old fact. Hence this doctrine cannot be received by those who now hear it for the first time, without the assistance of secret help from God; and as this, when given, is not given as the reward of any work, so if it be denied, or given less largely, this is done for causes, not unjust indeed, but mostly unknown to us, and hence not punishable by human judgment. To this the canon of Toledo has respect. The Synod enjoins that henceforth no one suffer violence, to make him believe: For God will have mercy on whom he will have mercy, and whom he will he hardeneth. It is the manner of the scriptures, to ascribe to the divine will the things of which the causes are hid from us.

2 Another remark is, that it was the will of Christ, the author of the new law, that none should be urged to receive his law by the punishments of this life, or by their fear. [See the passages, Rom. viii. 15, Ye have not received the spirit of bondage again to fear. So Heb. ii. 15, subject to bondage. John vi. 67, Will ye also go away? Luke ix. 55, Ye know not what manner of spirit ye are of. Matt. xiii. 29, Nay, lest while ye gather up the tares, &c.] In this sense, that saying of Tertullian is most true, Thenew law does not assert its rights with the sword. So in the Clementine Constitutions: Athanasius. Chrysostom, on the passage, John vi. 67, says that it removes all compulsion.

3 The parable of the wedding, Luke xiv. 23, Compel them to come in, is not against this. For in that parable, the expression signifies the urgency of the invitation; and in like manner, in the interpretation, in which sense words of the like signification are used, Luke xxiv. 29, They constrained him. So Matt. xiv. 22, Jesus constrained his disciples, &c., and in the parallel passage, Mark vi. 45. So Gal. ii. 14, Why compellest thou the Gentiles, &c. Procopius says, that Justinian was blamed by wise men for compelling the Samaritans by force to become Christians: and adds the inconveniences which resulted, which you may find in his book.

XLIX. 1 They who teaching or professing Christianity, add punishments on that account, doubtless act against reason; for there is nothing in the scheme of Christianity (considered by itself, and not 249with impure mixtures,) which can hurt human society; indeed nothing which does not profit society. The thing itself speaks, and strangers are compelled to acknowledge it. Pliny says, that the Christians bound themselves by a common sacrament not to commit theft, robbery, or fraud. Ammianus says, that nothing is taught in that religion except justice and mercy. And it was a common saying, Caius Sejus is a good man, only he is a Christian. [Therefore persecution is inconsistent with Christianity^*.]

Nor can we admit the excuses for persecution, that all novelties are dangerous, and especially assemblies; for doctrines, although new, are not dangerous, if they lead to all virtue, and to obedience towards superiors: nor are assemblies of virtuous men to be feared, who do not seek to meet in secret, except they are compelled. I may here adopt what Augustus said, as recorded by Philo, respecting the assemblies of the Jews; that they were not bacchanalian meetings, or assemblies for disturbing the peace, but schools of virtue.

2 Those who persecute such, are themselves justly punishable, as also Thomas Aquinas holds. And on that account, Constantine made war on Licinius, and other emperors upon the Persians; though these wars belong rather to the defense of the innocent, of which we shall hereafter speak, than to the exaction of punishment.

L. 1 But those act most unjustly, who persecute and punish those who, while they hold the law of Christ as true, only doubt or err concerning some things which are either extraneous to the law, or being in the law, seem to have an ambiguous sense, and are not always expounded by the ancient Christians in the same way. And this appears both by what we have said, and by the ancient example of the Jews. For they, though they had a law which was sanctioned by the punishments of this life, never penally assailed the Sadducces, who rejected the doctrine of the resurrection; a doctrine most true, but not delivered in the old law, except obscurely and in images.

2 But what are we to say, if the error be more grave, and one which may easily be refuted before an impartial tribunal, by sacred authority, or the consent of the ancients? Here also we are to reflect how great is the force of inveterate opinions, and how much the party-feeling of each sect impairs their judgment; a disease, as Galen says, worse than the itch. So Origen. Add that the amount of this fault depends upon the manner in which a person is enlightened, and other dispositions of the mind, which it is not given to man to know.

3 He, and he only, is a heretic, according to Augustine, who either devises or follows false and new opinions, for the sake of his own advantage, and especially of his own glory and power.

250 Salvian urges the duty of toleration towards the Arians, on the ground of their sincerity. [See the passage.]

4 Augustine argues for toleration of the Manicheans, in whose errors he had long shared.

5 Athanasius inveighs against the Arians, because they first called in the judicial power against their adversaries; This shews, he says, that their way is not pious; referring, I think, to Gal. iv. 29: As then, he that was born after the flesh persecuted him that was born after the spirit, even so it is now. In Gaul, the bishops were condemned who used the sword against the Priscillianists; and in the east, the Synod which agreed to the burning of Bagomilus. (Plato says wisely, that the proper punishment of him who is wrong^*, is to be taught right).

LI. 1 Those may be more justly punished who are irreverent and irreligious towards those whom they believe to be gods. This cause among others was adduced for the Peloponnesian war between the Athenians and Lacedæmonians, and by Philip of Macedon against the Phocians: of whose sacrilege Justin says, that it required to be expiated by the arms of the whole world. Jerome says, on Daniel v. As long as the sacred vessels [of the Hebrews] were in the idol-temple at Babylon, God was not angry, (for they still seemed to be devoted to divine worship, though accompanied with perverted opinions;) but after that they were polluted by human uses, the punishment straightway follows the sacrilege.

Augustine thinks that the Roman Empire was favoured by God, because, though their religion was false, they were in earnest about it^†; and as Lactantius says, they held to the main duty of man, though not in truth, yet in purposes^‡.

2 We have already said that even imaginary deities when appealed to by perjured persons, have their cause taken up by the true God. He is punished, says Seneca, because he did it, as to God; his own opinion binds him to punishment. And so I take that other passage of Seneca: The punishment of violating religion is different in different places, but some punishment there everywhere is. So Plato condemns those who do not believe in the existence of the gods, to imprisonment or death (Laws, b. x. end).