[251] CHAPTER XXI.

Of the Communication of Punishments.

I. 1 WHEN we speak of the extension of punishment from one person to others, we speak either of those who are partakers in the delict, or of others. These who are partakers in the delict are not punished so much for another’s delict as for their own. Who these are, may be understood from what has been said above concerning damage wrongfully inflicted. For generally, a person comes to be a sharer in the delict, in the same way in which he comes to be a sharer in the damage done; yet it is not always true that when a person is bound for the damage, he is also liable to punishment; but only when there has been, besides, some notable malice; whereas to make a person bound for the damage, any fault whatever often suffices.

2 Therefore they who command a vicious act, they who give the consent which is requisite, they who assist, who receive the things, or in any other way participate in the crime itself; they who give their counsel towards it, who praise it, who assent to it; those who being bound by their special rights to forbid it, do not forbid it; or being bound by similar rights to give aid to the person who suffers wrong, do not do so; those who do not dissuade when they ought to dissuade; who keep silence with regard to a fact which they were bound by some right to make known; all these may be punished, if there be in them such malice as suffices for penal desert, according to what has already been said.

252 II. 1 The thing will be made clearer by example. A Civil Community, like any other Community, is not bound by the act of an individual member thereof, without some act of its own, or some omission. Augustine says well, Thereis a difference between the fault that, in a people, each person has of his own; and a fault common to all, which is committed with one mind and one will. And accordingly, in Treaties the formula is, [Liv. I. 24,] If he violate this by public act. The Locrians in Livy plead to the Roman Senate that their defection was by no means a public act. So again Zeno, pleading for the Magnesians, begged with tears that they would not ascribe to the whole city the insanity of one man: that each one’s madness must be at his own risk. And the Rhodians, before the Senate, separate the public cause from that of private persons, saying that there is no city which has not often wicked citizens, and always a senseless mob. So the father is not bound by the delict of the son, nor the master by that of the servant, except there be some cause of blame in themselves.

2 But of the ways in which rulers come to share in the crime of others, there are two which are most common, and require diligent consideration: their allowing and their receiving.

With regard to allowing, it is to be held that he who knows of the commission of the offense, who can, and is bound to prevent it, and who does not, does himself offend. So Cicero against Piso; Brutus, in a letter to Cicero; Agapetus to Justinian; Arnobius; Salvian; Augustine.

3 So he who allows his slave to be prostituted when he could prevent her, is held by the Roman Law to have prostituted her. If a slave commit homicide with the knowledge of his master, the master is equally liable, for he is considered as guilty of the homicide. And by the Fabian law, the master is punished if his servant, with his knowledge, has drawn away and secreted another servant.

4 But as we have said, there is required, to produce this liability, not only knowledge, but the power of prevention. And this is what the Laws say; that knowing, when it is directed to be punished, is taken for allowing; so that he who could have prevented, is held bound if he did not do so; and that the knowing here spoken of is considered as combined with willing; and that knowledge is taken along with purpose; and therefore, that the master is not bound if the slave has asserted and appealed to the laws for his liberty; or, if he have disregarded his master; for he is blameless who knows, but cannot prevent.

5 When Hesiod says,

Often the whole of the city is punished for one man’s injustice,

Proclus says well, As having had it in their power to prevent him, and not having done so. So Horace of Agamemnon,

Though ’tis the kings that are mad, the Achaians suffer the evil.

For they might have compelled him to restore the priest his daughter. And so after the Greek fleet was burnt,

All for the fault of one, for the madness of Ajax Oïleus.

253As Ovid says on the same subject,

One constrained the maid, but the penalty spread to the many:

because the others did not prevent the sacred virgin from suffering violence. So Livy about the Laurentian ambassadors, repelled by Tatius. So Salvian speaks of kings. And Thucydides says, He who could prevent it does it. So in Livy, the Veientes and Rutulians excuse themselves to the Romans, in that their subjects had assisted the enemies of the Romans, they having no knowledge of the fact. And on the other hand, the excuse of Teuta, the queen of the Illyrians, is not accepted, when she said that piracy was not practised by her, but by her subjects; for she did not prevent it. And in ancient times the Scyrians were condemned by the Amphictyons because they allowed some of their people to practise piracy.

6 It is easy to know, so far as presumption goes, acts which are conspicuous and which are frequent. What is done by many, can be ignored by none, as Dio Prusæensis says. Polybius heavily blames the Etolians, because, when they were desirous of not being deemed the enemies of Philip, they allowed their people to commit hostile acts, and gave distinguished honours to those who had been prominent in such proceedings.

III. 1 Let us come to the other question, of receiving, as a subject of punishment. Punishment, as we have said, according to Natural Law, may be inflicted by any one who is not open to a like charge; though no doubt it is in conformity with civil institutions, that the delicts of individuals, which regard their own community, should be left to that community, and to its rulers, to be punished or passed over as they choose.

2 But there is not the same full power left to them in delicts which in any way pertain to human society in general: for these, other states and their rulers may prosecute, as in particular states there is a prosecutor of certain offenses which any one may put in motion: and much less have they such a power in offenses by which another state or its ruler are especially assailed; and in which, consequently, the state or the ruler have, on account of their dignity or security, a right of exacting punishment, as we have said. This right is not to be impeded by the state in which the offender lives, or its ruler.

IV. 1 But since states are not accustomed to permit another state to enter their territory armed for the sake of exacting punishment, nor is that expedient; it follows that the city, where he abides who is found to have committed the offense, ought to do one of two things: either itself, being called upon, it should punish the guilty man, or it should leave him to be dealt with by the party who makes the demand: for this is what is meant by giving him up, so often spoken of in history.

2 Thus the Israelites demand of the Benjamites, that they give up 254those who have committed the crimes; Judges xx. The Philistines require from the Hebrews that they give up Samson as an evil-doer; Judges xv. So the Lacedæmonians made war upon the Messenians because they did not give up a man who had killed Lacedæmonians: and, at another time, because those were not given up who had done violence to virgins sent to perform a sacred office. So Cato advised that Cesar should be given up to the Germans, for wrongfully making war upon them. So the Gauls demanded that the Fabii should be given up to them, because they had fought against them. The Romans required those who had plundered their land to be given up to them by the Hernici; and Amilcar, by the Carthaginians, not the celebrated general, but another, who stimulated the Gauls: they afterward, demanded Annibal; and Jugurtha from Bocchus, that, as Sallust puts it, you may relieve us from the painful necessity of punishing at the same time, you who are in error, and him who is most criminal. The Romans themselves gave up those who had done violence to the ambassadors of the Carthaginians; and again, of the Apolloniates. The Achæans required the Lacedæmonians to give up those who had attacked the town of Las, adding, that if they did not do so, the league was violated. So the Athenians proclaimed by a herald, that if any one practised secretly against Philip, and then fled to Athens, he would be liable to be given up. The Beotians required of the Hippotians that those who had slain Phocus should be given up.

3 All which passages, however, are so to be understood that the people or the king are not strictly bound to give up the person, but, as we have said, to punish him. For thus we read that the Eleans made war on the Lacedæmonians, because they had not punished those who had done injury to the Eleans; that is, they neither punished them nor gave them up. It is a disjunctive obligation.

4 Sometimes the option is given to those who demand the guilty, that the satisfaction may be more complete. The Cærians, in Livy, signify to the Romans that the Tarquinians passing through their land with a small force, though they had asked for nothing but a passage, had drawn along with them some of the country people to join them in the marauding practices of which they were accused: that if it were wished that they should be given up, they were ready to give them up; if it were wished that they should be punished, they were ready to punish them.

5 In the second league of the Carthaginians and Romans, which is extant in Polybius, there is this passage (if rightly read): If not, let each pursue his own right by private proceedings: if this does not succeed, let it be considered a public delict. Eschines, in his answer to the accusation of Demosthenes respecting his embassy to Philip, relates that when they discoursed with Philip on the peace of Greece, he said, among other things, that it was just that the punishment of the crimes which were committed should fall, not on the cities, but on 255the offenders: and that the cities who should bring to judgment the persons accused, ought not to be harmed. (Quintilian says, Thoseare next door to deserters who harbour deserters^*.)

6 Among the evils which arise from the discords of states, Dio Chrysostom puts this: It is possible that those who have injured one city, to fly to another.

7 There occurs the question, of persons given up, if they are given up by one state, and not accepted by the other, do they remain citizens?

P. M. Scævola held that they did not: since when the people had given up a person, it was as if they had expelled him from the city, as if they had interdicted him from fire and water. Brutus, and after him Cicero, defend the opposite opinion. And this is the sounder opinion; not, however, properly for the reason which Cicero gives, that a surrender, like a donation, cannot be understood without acceptance. For the act of donation is not complete without the consent of two: but the giving up or surrender of which we have spoken is nothing more than leaving a citizen of ours to the power of another people, so that they may determine about him what they will. But this permission does not give or take away any right: it may take away an impediment to the execution of punishment. Therefore if the other people do not use the right which is conceded to it, the person so surrendered will be in a condition to be punished by his own nation, (as happened in the case of Clodius, surrendered to the Corsicans and not accepted by them;) or he may not be punished, as there are many delicts in which the one or the other may take place. And the rights of a citizen, like many other rights and possessions, are not lost by a mere fact, but by some decree or sentence; except there be some law which directs the fact to be considered as a judicial act, which cannot be said in this case. And in the same way, if goods are surrendered but not accepted, they remain whose they were. But if the surrender of a person is accepted, and afterwards he who had been surrendered happens to return, he is no longer a citizen, except by some new concession of citizenship to him: and in this sense the opinion which Modestinus gave respecting a person surrendered, is true.

8 What we have said of surrendering or punishing criminals, applies not only to those who have always been the subjects of him under whose rule they are now found; but also to those, who, after committing a crime, have fled to any place.

V. 1 Nor is this doctrine impeached by the rights of suppliants, and the cases of asylum, which are so much spoken of. These arrangements are for the advantage of those who are persecuted without deserving to be so; not of those who have committed what is injurious to human society or to other men. So Gylippus says of this right of suppliants. [See.] Menander very properly distinguishes 256misdeed from misfortune; the former, he says, happens by will, the latter by chance. So Demosthenes, and Cicero after him, say that the proper objects of pity are those who are in distress through fortune, not through malice. And so that of Antiphon^*, and that of Lysias. [See.] So in the Hebrew law, he who had killed a man by chance, might take to the city of refuge: but they who had deliberately killed an innocent man, or disturbed the state of the city, were not to be protected, even by the altar of God. So Philo. And the more ancient Greeks had the same rule. The Chalcidians would not give up Nauplius to the Achaians; but the cause is added, because he had sufficiently cleared himself from the accusations of the Achaians.

2 There was at Athens an Altar of Mercy, mentioned by Cicero^†, Pausanias, Servius, Theophilus, and described at length by Statius in his Thebaid. But to whom was it accessible? The poet says, The miserable made it sacred: and adds, that those who came together there, were those conquered in war, those driven from their country, those who had no state to which they belonged. So Aristides, in praise of the Athenians, says that Athens was the refuge for the wretched. In Xenophon, Patrocles the Phliarian says the same. So Demosthenes; and Sophocles in the ŒdipusColoneus; and Demophon, [rather the Chorus, in Euripid. Heracleid. v. 330, &c. J.B.] And this is the point for which Callisthenes especially praised the Athenians.

3 On the other hand, in the same tragedy^‡, one of the characters says that he knows no piety which withholds him from dragging guilty men from the altar to the tribunal. And the same author, in the Ion, says, that guilty men should not go to the gods for refuge, but that the temples should be open to the pious to protect them from injury. Lycurgus the orator relates that a certain Callistratus, who had committed a capital offense, having consulted the oracle, received for answer that if he went to Athens, he would have the benefit of the law: that accordingly, he took refuge at the most sacred altar at Athens, depending upon impunity; but that he was nevertheless put to death by the city, strictly careful of its religious observances; and thus the oracle was fulfilled. Tacitus blames the custom which was in his time prevalent, of protecting, in the Greek cities, the crimes of men as the ceremonies of the gods. The same writer says, that Princes are indeed like gods; but that even the gods hear only the just prayers of suppliants.

4 Such persons, therefore, are either to be punished, or surrendered, or at least, removed. So the Cymeans, not being willing either to give up Pactyas the Persian, or to retain him, allowed him to go to Mitylene. Demetrius of Pharos, who, when defeated, had fled to 257Philip, king of Macedon, the Romans demanded from the king. Perseus, king of Macedon, in defending himself to Martius, and speaking of those who were said to have laid wait for Eumenes, said that he had commanded them to depart from his kingdom, and never to return. The Samothracians denounced to Evander, who had practised secretly against Eumenes, the necessity of freeing their temples from pollution.

5 But this right of demanding, for the sake of punishing, those who have fled out of the territory, is, in this and the last preceding ages, in most parts of Europe, used only with regard to those crimes which affect the public good, or have some peculiar features of atrocity. It has become the custom to overlook on both sides smaller offenses, except there be a treaty with some especial provisions on this subject. It is to be remarked, however, that robbers and pirates who have made themselves strong and formidable, may be received and defended [on condition of desisting from their evil practices, G.] so far as punishment goes; because it is the interest of the human race, that if they cannot be reformed in any other way, they may be so by the assurance of impunity for the past; and any people or any ruler may negotiate such a matter.

VI. 1 It is to be remarked that it sometimes happens that suppliants are defended [provisorily], till their case can be fairly judged. So Demophon says to the messenger of Eurystheus, that if he has any charge against the refugees, he will obtain justice, but that till then, they will not be given up. And in another tragedy [the Œdipus Coloneus of Sophocles, v. 904]. Theseus says to Creon that it is against the practice of Athens to give up refugees. Your attempt, he says, is an act unworthy of Thebes and of you^*.

2 And then, if that of which the refugees are accused is not a matter against the law of nature or of nations, it must be judged by the civil law of the people from whom they come; as Æschylus assumes in his Suppliants, where Danaus addresses the persona who came from Egypt to that effect.

VII. 1 We have seen how the fault passes to the rulers from the subjects, either ancient or recently acquired; in like manner the fault will pass from the rulers to the subjects, if these have consented to the crime, or if they have done anything by the command or the suasion of their superiors, which they could not do without guilt: on which point it will be more correct to treat hereafter, when we have to speak of the duties of subjects. There is even a participation of punishment by communication between the general body and individuals; for, as Augustine says, The general body consists of individuals, &c.

2 But the fault lies at the door of the individuals who have consented to the act, not of those who were outvoted by the others. For the punishments of individuals and of the general body are different. 258As the punishment of individuals is sometimes death, so it is the punishment of a city to be destroyed, which is done when the civil body is dissolved; of which case we have spoken elsewhere. And if a city or state cease to exist in this manner, Modestinus rightly said, that the life-interest which any persons have in it ceases. Individuals are reduced to slavery in the way of punishment, as the Thebans under Alexander of Macedon: excepting those who had voted against the proposal of making the alliance [with the Macedonians, G.] So also a city or state undergoes civil slavery, by being reduced into the condition of a province. Individuals lose their goods by confiscation. But [in punishing a city] the things which are taken from the city are the public property; as walls, arsenals, fleets, arms, elephants, its treasury, and its public lands.

3 But that individuals should lose what is their own property, on account of a delict of the general body, committed without their consent, is unjust: as Libanius rightly shews on the sedition of Antioch. The same writer approves an act of Theodosius, who punished a public offense by interdicting the theatre, the public baths, and the title of metropolis.

VIII. 1 This important question occurs, whether punishment may always be exacted for the delicts of the general body. So long as the constitution of the body continues, it would seem that it can, because the same body remains, though preserved by a succession of different particles, as we have elsewhere shewn. But, on the contrary side, it is to be observed that some things are asserted of the body primarily and per se, as to have a treasury, laws, and the like; others only derivatively from its members. Thus we call a body learned and brave, which has many learned and brave members. And desert [of punishment, G.] is of this kind; for, in the first place, it belongs to individuals, as having a spirit and intelligence which the body by itself has not. Therefore if these persons be extinct, from whom desert was deduced and carried to the account of the body, the desert is extinct, and also the desert of punishment; which, as we have said, cannot exist without desert. So Libanius says: It must suffice you as to punishment, that no one is left of those who offended.

2 We must therefore approve the opinion of Arrian, when he condemns^* the revenge of Alexander upon the Persians, since those who had wronged the Greeks were long ago dead. Concerning the destruction of the Branchidæ by the same Alexander, the judgment of Curtius is similar, that it was not justice, but cruelty, to punish those who could not betray Xerxes, and had never seen Miletus. And of the same kind is the judgment of Arrian respecting the burning of Persepolis, that there was no true punishment in it, since the offending Persians had long ceased to be.

259 3 Every one sees the absurdity of Agathocles’ answer to the complaints of the Ithacans, of damage done by the Sicilians; that the Sicilians had received more damage from Ulysses. And Plutarch, in his book against Herodotus, says, that it is very unlikely that the Corinthians should have wished to avenge an injury received from the Samians after three generations. Nor is the defense of such cases satisfactory, which we find in Plutarch On the delayed punishments of the gods. For the justice administered by God is one thing, that by men, another, as we shall shew hereafter. Nor again can we argue that, because descendants receive honours and rewards for the merit of their ancestors, therefore it is just that they should be punished for their crimes. For benefits are of such nature, by their matter, that they may be bestowed upon any without injury, but punishments are not.

IX. We have spoken of the ways in which a participation in the punishment takes place in consequence of a participation in the crime. It remains that we consider whether, when there is not a participation in the offense, there may be in the punishment; and here, that we may not be misled by the similarity of words when the things are different, we must make a few remarks.

X. 1 First, that a damage directly caused is one thing, and a damage caused by consequence, another. I call that a damage directly caused, by which any one is deprived of a proper right which he has; a damage by consequence, that by which any one has not that which he would have had: namely, by the cessation of the condition, without which his right cannot subsist. We have an example in Ulpian: If in my ground I have opened a well, by which the springs which would have come to you are cut off: he denies that, by the effect of my operations, a wrongful damage is done to you, since I was using my own right in my own property. And in another place, he says it makes a great difference, whether any one suffer a loss, or be prevented in a gain which he was going on to enjoy. And so Paulus says, that it is preposterous that we should be supposed to have possessions before we have acquired them.

2 So when the goods of the parents are confiscated, the children feel the loss; but that is not properly a punishment, because those goods were not to become theirs, except their parents kept possession of them till their last breath. Which is rightly noted by Alphenus, when he says that by the punishment of the parent, the children lose that which from him would have come to them; but that which was given them by the nature of things, or from any other source, they do not lose. So Cicero says, that the children of Themistocles were in absolute want, and he does not think it unjust that the children of Lepidus should bear the same lot. And this, he says, was the ancient custom, and common to all cities; though this custom was much limited and tempered by the later laws of Rome. So when by the delict of the general body, which, as we have said, stands for the whole body, the whole body is in fault, and on that ground loses, as we have 260said, civil liberty, city walls, and other advantages, innocent individuals also feel the inconveniences; but they feel it in those things which only belonged to them through the general body.

XI. 1 It is further to be remarked, that sometimes a person has harm imposed upon him, or loses good, by the occasion indeed of another’s fault, yet not so that the fault is the proximate cause of the action, so far as pertains to the right of acting. Thus he who has promised something on occasion of another’s debt, suffers damage, as the old proverb says, Suretyship is next door to mischief; but the proximate cause of the obligation is his promise. For as he who is surety for a buyer, is not properly bound by the sale, but by his promise; so he who is bound for a delinquent, is not bound by the delict, but by his own engagement. And hence the loss which he has to bear is measured, not by the other’s delict, but by the power which he had in promising.

2 From which it follows, that according to the opinion which we hold for the sounder, no body can be put to death in virtue of suretyship; because we hold that no one has such right over his own life, that he can himself take it from himself, or bind himself to have it taken: though the ancient Romans and Greeks thought otherwise on this point: and therefore held sureties to be bound to undergo capital punishment for their principal, as it is in the verse of Ausonius: [Who takes death as a substitute for another? The Surety. Quit subit in pœnam capitali judicio? Vas. Gronov.], and as appears in the well known story of Damon and Pythias^*: and hostages have often been put to death, as we have elsewhere stated. What we have said of life, may also be said of limb: for man has no right to sacrifice that, except for the sake of preserving the whole body.

3 But if the promise included the expatriation of the promiser, or the payment of a sum of money, and the condition be not fulfilled by the fault of another, the person who gives such security must bear the loss; which, however, properly speaking, is not a punishment. Something similar occurs in any right which a person has in such a way that it depends on the will of another; such as a right granted to be held during the pleasure of the grantor, and even the right of private property, which is liable to be interfered with by the dominium eminens, which the state has for public purposes. If any thing of this kind is taken away from any one on account of the fault of another, it is not properly a punishment, but the execution of a pre-existing right, which was in the hands of him who takes the precarious right away. And inasmuch as brutes are not capable of punishment, when a beast is put to death, as in the case provided for in the law of Moses, this is not really punishment, but the exercise of human dominion over the beast.

XII. Having premised these distinctions, we say that no one innocent of delict can be punished for the delict of another. But the 261true reason of this, is not that which is given by Paulus, that punishment is instituted for the amendment of men: for it would seem that an example may be made even extraneously to a man’s own person, in a person whose welfare affects him, as we shall soon have to shew: but because liability to punishment arises from desert: and desert is a personal quality, since it must have its origin in the will, than which nothing is more peculiarly ours: it is, as we may say, self-causing.

XIII. 1 Neither the virtues nor the vices of parents, says Jerome, are imputed to the children: and Augustine, God would be unjust if he condemned an innocent person. Dio Chrysostom says of the law of God, speaking on the occasion of Solon’s law, by which the children were stigmatised; this law does not, like that, punish the children of criminals; in this, every one is his own cause of suffering. And hence the rule, Noxacaput sequitur, Punishment is personal. So the Christian Emperors direct.

2 It is just, says Philo, that those should have the penalty who had the sin: reprehending the manner of some nations which punished with death the children of traitors or tyrants. The same custom is blamed^* also by Dionysius, who shews that the reason sometimes given is fallacious, that the children will probably be like their parents; since that is uncertain, and an uncertain fear ought not to cause any one’s death. Some Christian did venture to advise the emperor Arcadius, that those ought to suffer the same punishment as their parents, in whom the repetition of their parents’ crime was feared: and Ammianus relates that a family was put to death, even at an early age, that they might not grow up to be like their parents. Nor is fear of revenge a more just cause of such proceeding, notwithstanding the Greek proverb, Who kills the sire and spares the son is mad.

3 Seneca on the other hand says, Nothing is more unjust than to make a man the heir of his father’s odium. When Attagines was the means of the Thebans deserting to the Medes, Pausanias did not harm his children: they had had nothing to do with Medizing, he said. M. Antoninus, in an epistle to the senate, wrote, You will pardon the wife and the son-in-law of Avidius Cassius (who had conspired against him). But why do I say pardon, when they have committed no offense?

XIV. 1 God indeed, in the law which he gave the Hebrews, threatens that he will visit the impiety of the fathers upon their posterity. But God has the most plenary right of dominion, as over our goods, so over our lives, as his gift; which he may take away from any one, whenever he will, and without any cause. If, therefore, be takes away, by an untimely and violent death, the children of Achan, Saul, Jeroboam, Ahab, he uses towards them his right of dominion, not of punishment; but by the act, he more grievously punishes the parents. For if they outlive their children, which is the case that the divine law principally regards; (and therefore the law 262does not extend its threatenings beyond great grandchildren, Exod. xx. 5: because the common age of man allows him to see them;) it is certain that then they are punished by such a spectacle; for that is more grievous to them than what they themselves suffer, as Chrysostom says; or if they do not live so long, still, to die with such a fear hanging over them, is a great punishment. The people’s hardness of heart, as Tertullian says, led to such remedies, that they might obey the divine law, even out of regard for their posterity.

2 But it is to be noted, at the same time, that God does not make use of this heavier kind of punishment, except towards offenses especially tending to his dishonour, as false worship, perjury, sacrilege. Nor did the Greeks judge otherwise; for the crimes which were supposed to entail a curse on posterity, are all of this kind; as Plutarch learnedly shews in his book On the procrastinated anger of the gods. In Elian, we have an oracle which says that the guilty cannot escape, but that vengeance follows them and their posterity. But there, sacrilege was in question, as is proved by the history of the Tholosan gold. We have above adduced similar opinions concerning perjury. Moreover, though God has threatened this, he does not always use his power, especially if the children turn out eminently virtuous; as sec Ezek. xviii., and as Plutarch proves by examples.

3 And since, in the New Testament, the punishments are declared more clearly than before, which await the wicked after this life; therefore in that law there is no threatening of punishment which goes beyond the persons of the offenders: to which especially, though less openly, as the manner of the prophets is, that prophecy of Ezekiel looks. But this fact on the part of God is not to be imitated by men; nor is the reason alike: because, as we have said, God has a right over men’s lives without regarding their faults: but men have such a right only on the ground of a graver fault, and one which belongs especially to the person.

4 Wherefore the same divine law, as it forbids parents to be capitally punished for their children, so does it forbid children to be so punished for their parents. And this law pious kings have observed, even with regard to their open enemies; and the rule is greatly praised by Josephus and Philo, as also a similar law of Egypt by Isocrates, and one of Rome by Dionysius^*. And it is one of Plato’s Laws, that the ignominy and punishment of the father are not to fall upon the children. So Callistratus the Jurist, adding the reason, that a man does not succeed to the crimes of another. Would any city, asks Cicero, have a law condemning the son or grandson for the delinquencies of the father or grandfather? Hence to put to death a pregnant woman was held inadmissible by the laws of the Egyptians, Greeks, and Romans.

XV. But if those human laws are unjust which put to death children for the offenses of their fathers, still more unjust was the law of 263the Medes and Persians, which devoted to destruction the lives of the relatives of the criminal, in order that death might be more bitter to those who had offended against the king, as Curtius speaks; a law which surpasses all others in cruelty, as Ammianus Marcellinus says.

XVI. This, however, is to be noted, that if the children of enemies have anything which is not their own, but of which the right belongs to the people or the king, that may be taken from them by the right of dominion, the exercise of that right operating collaterally to the punishment of the criminal. To this we may refer the case of the children of Antiphon, who, as the children of a traitor, were excluded from honours; as at Rome were the children of those proscribed by Sulla. So in the law of Arcadius, that rule concerning children is not intolerable: Let them be admitted to no honours nor public offices. How far slavery may pass to children without wrong, we have treated elsewhere.

XVII. 1 What we have said of evil inflicted upon children for the delicts of fathers, may be applied also to a people really subject to their ruler: (for he who is not subject may be punished for his own fault, as we have said, that is, for neglecting to control the offender:) if it be asked whether such a people may be eviltreated on account of the crimes of the ruler or king. We do not now inquire if the People’s consent has been obtained, or if they have done anything which is by itself worthy of punishment; but we inquire concerning the con­nexion which naturally arises between that body of which the king is the head, and of which others are the members. God, on account of the sin of David, wasted the people with a pestilence; the people being innocent, as David judged: but God had a plenary right over their lives.

2 In the mean time, this was not the punishment of the people, but of David; for as a Christian writer says; The sharpest punishment of offending kings is the punishment of their people. It is, as the same writer says, as if one who has sinned with his hand were to be punished with strokes on his back: as Plutarch says, it is no otherwise than when a physician cauterizes the thumb to cure the hip. Why men may not lawfully do the same, we have already said.

XVIII. The same may be said of the evil inflicted through their property, or the like, upon individuals who have not consented to the crime, on account of the delict of the general body.

XIX. If we ask why, since the heir is bound to the other debts of the deceased, he is not bound to his punishment, as Paulus says the commentators^* have decided, this is the true cause; that the heir 264represents the person of the deceased, not in his deserts, which are matters merely personal, but in his possessions; and with them are inseparably connected his debts; and accordingly this rule came in as soon as ownership came in. So Dio Prusæensis.

XX. And hence it follows that if, besides desert, some new cause of obligation should arise, that which was a part of the punishment may become debt, though not as a punishment of the heir. Thus, after the sentence of a court, or after the decision of a lawsuit, to which events the power of a contract is given, the pecuniary penalty will be due from the heir, as also matters which were agreed to be so decided. For these events are a new cause of a debt being due.