Front Page Titles (by Subject) CHAPTER XX: Of Punishments. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XX: Of Punishments. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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I.The Definition and Original of Punishment.I. 1. When we undertook, above, to assign the Causes of War, we laid down, that Injuries done might be considered in a twofold Respect, either as they may be repaired or punished. Of the former we have already fully treated. We come now to the latter, that of Punishment;1 which we shall the more accurately discuss, for as much as its Origine and Nature being misunderstood has given Occasion to many Mistakes. Punishment then in its general Acceptation is the Evil that we suffer for the Evil that we do. For tho’ some Sorts of Labour or Work are often imposed on Persons by Way of Punishment, yet considering the Pains and Trouble that attend such Labour and Work, they may properly enough be ranked amongst the Evils we suffer. As for those Hardships, which some People undergo on account of a contagious Distemper, for being maimed, or for any other Uncleanness (many Kinds of which are extant in the Jewish Law) so as, for Instance, to be driven from all Company and Conversation, or to be made incapable of any Office or Employment, they are not properly Punishments, tho’ for some Resemblance they have to them, and by an Abuse of the Word, they are so called.
2. Among those Things, which Nature herself tells us to be lawful and just, this is one, That he that doth Evil should suffer Evil, which the Philosophers call the most antient and the Rhadamanthean Law, as we have said elsewhere. To the same Purpose is that Saying of Plutarch, Τῷ Θεῷ ἕπεται δίκῃ, &c.2Justice is the Attendant of GOD to take Vengeance of those who transgress the divine Law, which all Men naturally have Recourse to against all Men as their Fellow Citizens. And3Plato, neither GOD nor Man ever said this, that he, who hath done Wrong to another, doth not deserve to suffer for it. And Hierax describes Justice by this as by the noblest Part of it, viz.4 That it is the Exaction of Punishment on those, who have first offended. And Hierocles calls Punishment the5Medicine of Wickedness.6 And Lactantius says, They are guilty of no small Error, who miscall Punishment, either Human or Divine, by the Name of Bitterness and Malice, imagining that he ought to be esteemed guilty, who only punishes the guilty.<402>
3. But that all Punishment, which is properly so called, must necessarily be the Consequence of some Crime or Demerit, is what St. Austin has observed,7All Punishment, if it be just, must be the Punishment of some Crime; which is true even of those Punishments that are inflicted by GOD himself, tho’ sometimes thro’ our Ignorance, The Offence is concealed where the Punishment is evident, as the same Author speaks.
II.That Punishment belongs to expletive Justice and how.II. 1. But whether Punishment belongs to attributive ora expletive Justice, divers Men are of divers Opinions. Some imagine, that because greater Offenders are to be more severely punished, and so on the contrary, and because Punishment proceeds as it were from the Whole or the Community, to a Part or Member of that Community, therefore they would ascribe it to attributive Justice.
2. But what in the first Place they lay down, that where there is a Geometrical Proportion, it always appertains to attributive Justice, we have shewnb in the beginning of this Work not to hold true. Besides, that greater Offenders are more severely punished, and lesser Offenders more lightly, falls out only by Accident, and is not primarily and of itself intended: For that which is simply and in the first Place intended, is1 an Equality between the Offence and the Punishment; whereof Horace thus,2
And it is to this that the Divine Law, Deut. xv. and Leo’s Novell have a Regard.4
2. Neither is the other Position much truer, that Punishment doth always proceed from the Whole to a Part, as will appear by what we shall say hereafter. Besides we have alreadyc shewn, that the true Nature of attributive Justice consists, neither in such an Equality, nor in a Procession from the Whole to a Part, properly speaking, but in considering an Aptitude or Merit, which doth not contain in it a Right strictly so called, but gives Occasion to it.5 For altho’ he that is punished, ought to deserve Punishment, yet can we not infer from hence, that he must necessarily acquire whatsoever attributive Justice may demand.6 Neither do they, who would have Punishment to appertain to expletive, or what is commonly called commutative Justice, explain themselves much better. For they look upon it in such a Light, as if Punishment was due to a Delinquent in the same manner,<403> that a Debt is due upon a Contract.7 The vulgar Expression, whereby we say, that Punishment is due to a Malefactor, which is very improper, has led them into this Error. For he to whom any Thing is due, hath a Right against him from whom it is due. But when we say that Punishment is due to any one, we mean no more than that it is fit he should be punished.
3. Yet it is true, that commutative Justice is primarily, and of itself conversant about Punishments, forasmuch as he that punishes, if he punish justly, must have a Right to punish, which Right arises from the Crime of the Delinquent. And herein there is another Thing8 that comes near to the Nature of Contracts; for as he who sells a Thing, tho’ he mention nothing particularly,9 is yet presumed to stand obliged to perform the Conditions that naturally belong to such a Sale: So he that commits a Crime, seems voluntarily to submit himself to Punishment, there being no great Crime that is not punishable; so that he who will directly commit it, is by Consequence willing to incur the Punishment; in which Sense some Princes10 have pronounced Sentence upon a Malefactor thus,11Thou hast brought this Punishment upon thy own Head, and they that take wicked Counsel, are then said to be punished for their Demerit, that is, to lay themselves under an Obligation of being punished by their own Will:12 And the Woman in Tacitus, who lay with another Man’s Slave, is said to have consented to her own Slavery; that being the Punishment ordained against such.13 <404>
4. Michael Ephesius, upon the fifth of Aristotle’s Nicomachia, tells us, Γέγονε τρόπον τίνα, &c. There is herein a Kind of Giving and Receiving, after the Nature of Contracts; for he who has stole either the Goods, or any Thing else, of another Man’s, is punished for it. And a little after, συναλλάγματα οἱ, &c. Under the Name of Contracts the Antients comprehended, not only such as were made by mutual Agreement, but those Actions also that were forbidden by the Laws.
III.That to punish does not naturally belong to any one Person, but that Punishment may be lawfully required according to the Law of Nature, by any Body who is not guilty of the like Crime.III. 1. But the Subject of this Right, that is, the Person to whom the Right of Punishing belongs, is not determined by the Law of Nature. For natural Reason informs us, that a Malefactor may be punished, but not who ought to punish him. It suggests indeed so much, that it is the fittest to be done by a Superior, but yet does not shew that to be absolutely necessary,1 unless by Superior we mean him who is innocent, and detrude the Guilty below the Rank of Men, and place them2 among the Beasts that are subject to Men, which is the Doctrine of some Divines. Democritus ascribes it to Nature, that the better should govern the worse.3 And Aristotle says, That both in Nature and Art, meaner Things are made for the Use of nobler.4
2. The Consequence of which is, that a Man ought not to be punished by one who is equally guilty with himself;5 according to that of our Saviour to the Pharisees, John viii. 7. Let him amongst you that is without Sin, (viz. such a Kind of Sin) cast the first Stone at her. Which he therefore spoke, because at that Time the Manners of the Jews were extremely corrupted, insomuch as they, who pretended to be the greatest Saints, would wallow in Adulteries, and other such abominable Sins, as appears by Rom. ii. 22. Wherefore thou art inexcusable, O Man, whoever thou art that judgest; for in that thou judgest another, thou condemnest thyself, seeing thou that judgest dost the same Things. Therefore what CHRIST had said before, the Apostle saith here. To the same Purpose is that of Seneca,6That Sentence can have no Authority, where he that condemneth another may as justly be condemned himself. And in another Place, A Survey of our own Actions will make us more moderate in passing Judgment upon others, if we consult our own Breasts, and consider7whether we have not been guilty of the like Crimes. Let every one, saith St. Ambrose,8that is about to judge another, first judge himself, and not condemn the Errors and Oversights of other Men, while he is guilty of far greater himself.
IV.That among Men Punishment is not to be required but for the Sake of some Benefit that may accrue thereby, but that it is otherwise with GOD; and why.IV. 1. Another Question arises concerning the End proposed in punishing. For what we have hitherto said, amounts only to this, that the guilty Person hath no Injury done him, in Case he be punished. But it doth not follow from hence, that he must necessarily be punished. Nor is it true, for both GOD and Men do pardon many Offenders, many Offences, and are commonly praised for it. For as Plato first,1 and after him2Seneca, well observed, No wise Man punishes an Offender, because he hath offended, but that he may not offend again. For what is once done cannot be recalled, but what is to come may be prevented. Therefore all Punishments have Regard to the future, and he that punisheth should not be angry, but pro-<405>vident. Diodorus, in his Speech to the Athenians, concerning the Mityleneans, saith, That they had done very unjustly, but yet that they were not to be destroyed, unless it should be judged expedient.3
2. These Things indeed are true of Punishments amongst Men: Because one Man is so linked in Bonds of Consanguinity to another,4 that he ought never to do him harm, but for the Sake of some Good; but it is otherwise with GOD, to whom Plato falsely extends the aforesaid Maxims.5 For his Actions may be grounded on the sole Right of his sovereign Dominion and Jurisdiction over us,6 especially when there is any Demerit in us, tho’ they propose no End to themselves beyond themselves. And thus do some Hebrews explain that of Solomon, which is pertinent enough to the present Purpose,aThe LORD hath made all Things for himself, even the Wicked for the Day of Wrath: That is, even then when he punisheth the Wicked, he does it for no other End but only to punish them. And altho’ we do admit of the more common Acceptation,7 yet it will return to the same Thing, viz. that GOD may be said to have made all Things for himself, that is, by the Right of that transcendent Liberty and Perfection, which is inherent in him, without seeking or regarding any Thing without him; as GOD is called Ἀυτοϕυὴς, A Being of himself, because not born or created of any. The holy Scriptures, at least, do testify that GOD inflicts Punishment sometimes upon profligate abandoned Sinners, for no other Reason but to punish them. As when he is saidbTo rejoice at their Calamity, and to mock when their Fear cometh. Besides too, the last Judgment, after which there is no Place or Hopes of Amendment; nay, and some Punishments which in this Life are imperceptible, that is, do not appear to the Eyes of Men, but are only felt by the Mind of the Sufferer, such as Obduration, do clearly evince the Truth of what we assert against Plato.
3. But when one Man punisheth another, equal to him in Nature, he ought to propose some End to himself. And this is what the Schoolmenc mean, when they say, that the Design of an Avenger in punishing, ought not to terminate in the Sufferings of the Criminal. But before them Plato declared, that those who<406>punish any Man with Death, or Banishment, or a Fine, Do not do it purely for the Sake of Punishment, but of some Good, Μὴ βούλεσθαι ἁπλω̂ς, ἀλλ’ ἕνεκα τον̂ ἀγαθον̂.8 And9Seneca, That Men ought to affect Revenge, not as it is sweet, but as it is profitable. So likewise Aristotle, Some Things are simply good, others through Necessity.10 And an Instance of the latter he gives in exacting Punishments.
V.In what Sense Revenge is naturally unlawful.V. 1. What therefore was said by the comick Writer,1
And by Cicero,2 that Pain is mitigated by Punishment. And by Plutarch,3 that Satisfaction is a Kind of Medicine to a sick and inflamed Mind: Is agreeable indeed to that Part of our Nature,4 which we have in common with Beasts; for Anger, as well in Men as in Beasts, is5A violent Agitation of the Blood about the Heart, raised by a Desire of Revenge, as Eustathius rightly defines it; which Desire or Appetite is so void of all Reason in itself, that it often mistakes its Object, and is hurried on with Violence, even against those that have done us no Harm; as when we revenge ourselves upon the Whelps of the Creature that hurts us,6 and sometimes against Things altogether without Sense, just as when a Dog bites the Stone that is thrown at it.7 But this Appetite, considered in itself, does not belong to the rational Soul, whose Office it is to govern the Affections, and, consequently, not to the Law of Nature, because that only is the Dictate of a reasonable and sociable Nature, considered as such. But our Reason tells us, that we ought not to make another Man suffer, unless it be for some Good that may accrue thereby. But in the Pain or Sufferings of our Enemy, barely considered in themselves, there can be nothing of Good, but what is false and imaginary; as in superfluous Riches, and many other Things of the like Nature.
2. And in this Sense Revenge is condemned, not only by Christian Teachers,8 but by Philosophers too. Thus Seneca,aRevenge is barbarous and inhuman, and tho’ it commonly be accounted lawful, yet it differs nothing from an Injury, but in Order of Time only. He that retaliates his Grievance upon another, only offends with a better Excuse. Nay, if we will give Credit to Maximus Tyrius,9 he is more guilty that revenges himself, than he that first did the Injury. And Musonius,10To meditate how we may bite him that has bit us, and injure him that has injured us, is the Part of a Beast, and not of a Man. Dion in Plutarch, who turned Plato’s Philosophy into Maxims for the Conduct of Life, saith, that Revenge is indeed looked upon to be more just than an Injury in the Eye of the Law, but in the Eye of right Reason they both proceed from the same Disease or Weakness of Mind.11
3. It is therefore contrary to Nature, for one Man to be pleased and satisfied with the Pain or Trouble he brings upon another, barely as it is Pain or Trouble. And there-<407>fore the weaker any one’s Reason is, the more prone he will be to Revenge. Juvenal,12
The same Observation is made by Lactantius: Foolish and unexperienced Men, saith he if they have any Injury offered them, are hurried on with a blind and inconsiderate Fury, to revenge themselves upon those that hurt them.15
4. It is evident therefore, that one Man cannot justly be punished by another, for Punishment’s Sake. Let us then enquire what those Benefits of Punishing are that can make it lawful.
VI.The Benefit of Punishment threefold.VI. 1. To this End the Division of Punishments made by Plato, in his Gorgias, may be of some Use to us, which the Philosopher Taurus has followed, as he is quoted by Gellius, Lib. 5. Cap. 14. For that Division is taken from the End of Punishing; and whereas Plato had proposed but two Ends,1Reformation and Example, Taurus adds a third,2 Τιμωρίαν which (as Clemens Alexandrinus defines it)3Is the Retribution of an Evil done, in Order to make Satisfaction to the Sufferer. Aristotle omitting that Part of the Division, which proposes Example, as one End of punishing, only adds this of Satisfaction to that of Reformation, which he says is instituted For the Sake of the Person demanding it. Nor has4Plutarch<408> omitted it, when he saith, Those Punishments which immediately follow Transgressions, do not only restrain the Audaciousness of Offenders, but are the greatest Consolation of the Offended. And this is what the same5Aristotlea has placed under that Part of Justice which he calls Commutative.
2. But, to examine this Point more accurately. I say then, that Punishment may have Regard either to the Good of the Offender, or of him who suffers by the Offence, or of any Persons indiscriminately.
VII.Punishment is for the Benefit of the Offender; and that any one has by the Law of Nature a Right to inflict it; but this with a Distinction.VII. 1. The Punishment tending to the first of these three Ends, is by the Philosophers called sometimes Correction, sometimes Chastisement,1 and sometimes Admonition; by Paulus the Lawyer,2The Punishment that is ordained for Amendment; by Plato,3The Pain that teaches us Prudence; by Plutarch, The Medicine of the Mind,4 whereby she is amended, and made better, after the Manner of Physick, which works by Contraries. For since all human Acts, if they be deliberate, and often repeated, do beget a Proneness in Nature to the same, which at Length turns to an Habit; all Allurements to Vice are to be cut off as soon as possible, which cannot be done more effectually than by allaying the Sweetness of the Sin,5 with the Sharpness of the ensuing Punishment. The Platonists hold, as6Apuleius testifies, That Impunity, and Want of Reproof, are more severe and pernicious to an Offender, than any Punishment whatsoever. And Tacitus,7 that A corrupt Mind is not to be regulated with gentle Methods, when inflamed by inordinate Appetites.
2. That it is lawful for anya one who is judicious and prudent, and not guilty of the same, or of a like Fault, himself, to inflict that Punishment, which is subservient to this End, is plain from that verbal Correction which every Body is indulged,
But if the Punishment be by Stripes, or have any Thing of Violence and Compulsion in it,b Nature does not distinguish to whom it is lawful, and to whom it is not, nor indeed could it make this Distinction, (unless it be, that our Reason gives this Right peculiarly to Parents over their Children, because they are under a strict Tie of Affection towards them) but what Nature could not do the Laws have done, which have restrained that general Kindred of Mankind (to avoid Disputes and Controversies) to our nearest Relations only, by whom we are most tenderly loved; as appears both from the Code of Justinian,9 under the Title, De Emendatione propinquorum, and elsewhere; apposite whereunto is that of Xenophon to his Soldiers, εἰ μὲν ἐπ’ ἀγαθῷ, &c.10If I beat any Man for his Good, I deserve Punishment, but no other than what is due to Parents from Children, and Masters from Scholars. For even Physicians do sometimes lance, scarify, and cauterize their Pa-<409>tients, when they cannot cure them by gentler Means. And Lactantius, GOD commands us to keep a strict Hand over our Children, that is, to chastise them as often as they transgress, lest by too much Fondness and Indulgence, they become froward and headstrong, and contract vicious Habits.11
3. But this Kind of Punishment ought never to be Capital, because Death is not a Good, unless it be so indirectly and by Way of Reduction, as Negatives are reduced to their opposite Positives. For as CHRIST said,b [[sic:c That it had been better for some, that is, it had been less evil for them, that they had never been born; so it may be said of incorrigible Tempers, that it is better for them, that is, it is less evil for them to die than to live, when it is certain such Persons would grow still worse, if their Life was prolonged. Seneca means such as these, when he says, That it is sometimes for the Advantage of them that die, to die.12 And Jamblicus;13As it is better for an Impostume to be cauterized, than to let it swell on; so it is for a Man, who is desperately wicked, to die than to live. Such a one Plutarch calls a great Plague to others, but the greatest of all to himself.14 And Galen, after he had said, that Men may be punished with Death, First to prevent the Mischief they would do,15 were they suffered to live, Secondly, that their Punishment may be a Terror to others, adds in the third Place, That it is expedient, even for themselves to die, being so wholly corrupted in Mind and Manners, that it is impossible to reclaim them.]]
4. Some there are, who think, that St. John speaks of such Men, when he said,16Therec [[sic:d is a Sin unto Death. But because no Arguments can be brought to prove this, but what are fallacious, Charity teaches us not to judge any one rashly to be incorrigible: and therefore a Punishment with this End and View ought very rarely to be made Use of.]]
VIII.For the Benefit also of the Person offended: where of Revenge allowable by the Law of Nations.VIII. 1.1 The Benefit, that arises from Punishment to him, against whom the Offence was committed, consists in this, that it prevents for the Future the like Offence against him, either by the same Person or by others. Gellius out of Taurus describes this Kind of Punishment thus, When the Dignity or Authority of the Person, against whom the Offence is committed, is to be supported and maintained, lest, if it go unpunished, his Authority be despised and his Honour impaired. Now what is there said concerning the Loss of Authority, will equally hold good of the Loss of Liberty, or of any other Right. We read in Tacitus, He should consult his Safety by a just Punishment.2 Now there are three Ways of securing a Man’s self from him who injured him; first by putting him to Death; secondly, by putting it out of his Power to do him any farther Injury; and lastly by the Severity of his Punishment, to deter him from offending any more, which has a mixture of that Reformation in it we were just now treating of. To prevent the injured Persons being injured by others, all Kinds of Punishments are not to be inflicted, but only such as are open and publick, which appertains to that End of Punishment, that is for Example.
2. If therefore our Revenge be directed to these Ends, and confined within the Bounds of Equity, if we regard the bare Law of Nature, that is, abstracted from Divine and Human Laws, and those Circumstances that are not Essential to the<410>3 Affair, tho’ it be private, yet it is not unlawful; whether it be taken by the injured Person himself or some other, since it is natural for one Man to succour another. And in this Sense may be admitted that of Cicero4 where after he had shewn that the Law of Nature does not consist in unsettled Opinions, but in the innate Sentiments of the Mind, among the Instances he gives of its Dictates he places Revenge, which he opposes to Pardon; and, lest any one should doubt what he meant by Revenge, he defines it to be That, whereby we repel Force and Injuries either defensively or offensively both from ourselves and those who ought to be dear to us, and that whereby we punish Offences. And Mithridates, in an Harangue which Justin has transcribed from Trogus, speaks thus,5Against a Robber all Men ought to draw their Swords, if not for their Safety, yet for their Revenge. And Plutarch in his Life of Aratus calls this very Thing ἀμύνης νόμον, the Law of Revenge.
3. Sampson, making his Defence against the Philistines,a does6 by this natural Right declare his Innocence, if he injured them who had first injured him: And after he had revenged himself of them, he justifies himself with the same Reason, saying,bAs they have done to me, so have I done to them. Thus the Plataeans7in Thucydides, ὀρθω̂ς ἐτιμωρησάμεθα, &c. We have deservedly punished them, for by a Law that universally prevails, we may without any Crime be revenged on an Enemy, who first assaults us. And Demosthenes in his Oration against Aristocrates argues, That the Law common to all Men suffers us to revenge ourselves upon him, who takes away any Thing from us by Force. And Jugurtha in Sallust,8 after he had endeavoured to shew that Atherbal lay in wait for his Life, adds, That the Romans would not do him common Justice and Equity, if they should hinder him to put the Law of Nations in Execution, that is, to take his Revenge. And Aristides9 the Orator proves it from Poets, from Legislators, from Proverbs, from Orators, and all other Authorities, to be lawful to take revenge on those, who have first attempted to do us an Injury. St. Ambrose commends the Maccabees10 for revenging the Death of their innocent Brethren even on the Sabbath-Day; and disputing with the Jews, who heavily complained of the Christians for burning one of their Synagogues, he pleads thus: If I should argue, saith he, according to the Law of Nations, I should recount how many Christian Churches the Jews burned in the Reign of Julian the Emperor, where11 he calls Retaliation the Law of Nations. Agreeable to which is that of Civilis in Tacitus, I have been purely rewarded for my Pains, my Brother’s Death, my own Imprisonment, and the most reproachful Language of the Soldiers, who required to have me put to Death, and therefore by the Law of Nations I demand Satisfaction of them.12
4. But because we are apt to be partial in our own Cases or of those that belong to us, and to be hurried on too far by Passion, therefore as soon as many Families came and lived together in the same Place, that Liberty which Nature indulged them in of vindicating every Man his own Quarrel, was then taken away, and Judges appointed to determine all Controversies between Man and Man.
Thus Demosthenes against Conon,14 προεώραται ἐν τοɩ̂ς νόμοις, &c. It has been ordained by the Wisdom of our Ancestors, saith he, that all these Injuries should be redressed by the Law,15and not by every private Man’s Passion and Caprice. So Quintilian,16private Revenge is not only unlawful, but an Enemy to Peace; for there are Laws, Judges and Courts whereunto we may appeal, unless there be any who are ashamed to vindicate themselves by Law. So likewise the Emperors Honorius and Theodosius,17For this Cause are Tribunals erected, and the Security of publick Laws provided, lest any Man should give himself the Liberty to revenge his own Quarrel. And King Theodorick:18Hence sprung the sacred Reverence of Laws, that no Man migh trevenge himself by his own Hand, nor commit any Outrage upon his Enemy by the sudden Impulse of an impetuous Passion.
5. Yet the antient Liberty, which the Law of Nature at first gave us, remains still in Force where there are no Courts of Justice, as upon the Sea. Hereunto may perhaps be referred that Action of Julius Caesar,19 yet a private Man, when he pursued with a Fleet, equipped all on a sudden, those Pyrates by whom he had been taken Prisoner, dispersing some of their Ships and sinking others, and when he found the Proconsul negligent in punishing the Captives, he returned to Sea and crucified them himself. The same will take Place in Desarts, or where Men lived after the Manner of the Nomades;20 so amongst the Umbrians,21 according to Nicolaus Damascenus, every one is his own Avenger; which is done with Impunity in Moscovy at this very Day, when Complaint having been made to the Judge, he does not render Justice in a certain Time. Hence came the Custom of Duelling, or fighting by single Combat,22 amongst the Germans before the Christian Religion<412> was planted in that Nation, which in some Places is not yet thoroughly rooted out. Wherefore the Germans, in Velleius Paterculus, were struck with Admiration, when they beheld the Manner of the Roman Jurisdiction,23 finding that they could redress Injuries by Justice, and determine Controversies by Law, which used to be decided by Force of Arms.
The Lawc of Moses permitted the Kinsman of him, who was murdered, to kill the Murderer with his own Hand, if he could catch him out of the Places of Refuge; and the Jewish Commentators do well remark, that a Kinsman might execute the Law of Retaliation with his own Hand for the Person killed: but for himself, if any Violence was offered him, either by Wounds, Mutilation or otherwise, he was to appeal to the Judge;24 because it is more difficult to moderate our Revenge when it is excited by our own personal Pain. The like Custom of private Revenge for Murder, prevailed amongst the most antient Greeks, as appears from the Words of Theoclymenus in Homer, Odyss. XV.25 But Instances of this Custom are the most frequent in those Places, where they have no publick Judges to decide their Quarrels. Hence just Wars, as St. Austin testifies, are usually defined to be those, whereby Injuries are revenged.26 And Plato approves of carrying on a warlike Contest so long, Till the Offender shall be compelled to make the innocent Person, who has suffered by him, just Satisfaction.27
IX.And for the Benefit of all Persons.IX. 1. The Good of the Publick, or of all Persons in discriminately, which was the third End of Punishment, demands the same Things as the Interest of the injured Party. For Care is to be taken, that either he who injured one, may not injure another, which is to be prevented by putting him to Death, or by disabling him, or by imprisoning him, or by correcting and reclaiming him, or else1 that others may not be encouraged, by the Hopes of Impunity, to be alike injurious; and this is best prevented by publick Punishments, which the Greeks call παραδείγματα, the Latins, Exempla, Examples: Which are made,aThat the Punishment of one may strike Terror into many, as the Laws express, or, as Demosthenes,bThat others may consider to be afraid.
2. And this is a Right that by the Law of Nature every one is invested with.2 Thus Plutarch, Nature, says he, hath designed the good Man to be a Magistrate,<413> and indeed a perpetual one; for, by the Law of Nature itself he who acts justly has a Superiority and Preheminence above others.3 So Cicero proves by the Example of Nasica,4that a wise Man is never a private Man: And Horace calls Lollius, [[5 not a one Year’s Consul; and Euripides in his Iphigenia at Aulis says:
Not that this Right or Privilege is to be extended any farther, than the Laws of the Land permit.]]
3. Of this natural Right Democritus thus speaks; for I will quote his own Words, because they are remarkable. First, concerning our Right of killing Beasts, this is his Opinion, κατὰ δὲ ζώων, &c. Concerning the killing living Creatures, the Case stands thus. If those Creatures either do, or attempt to do, us hurt, whosoever kills them shall be innocent; nay, he who kills them doth better than he who spares them.6 And presently after he saith, Κτείνειν χρὴ, &c. We have all Manner of Right to kill all those Creatures that without Provocation annoy us. And indeed it is not improbable, that good Men7 before the Flood observed this Maxim, till GOD revealed to the Rest of the World, that he intended the brute Creation for their Food and Sustenance. Again, Ὅπως περὶ κιναδέων τε καὶ ἑρπετέων, &c. What we have said of Foxes, and noxious Reptiles, will hold good also of Men, of whom we ought to be no less aware. And then he presently after subjoins, Κιξάλλην καὶ ληστὴν, &c. Every one who kills a Robber, or a Thief, is innocent, whether it be with his own Hand, by his Order, or by his Verdict. Upon which Passages Seneca seems to have had his Eye, when he saith,8When I command a Malefactor to be put to Death, I do it with the same Air and Mind,9that I kill a Serpent or venomous Beast. And elsewhere, As we should not kill Vipers and Snakes, and other noxious Creatures, if we could tame them, like other Animals, and secure ourselves and others against their Teeth and Stings; neither would we hurt and destroy Men, because they have offended, but only that they should not offend again.<414>
4. But since an Examination into the Nature and Circumstances of a Fact, doth often require great Diligence, and the proportioning of Punishment to it, much Prudence and Equity, lest while every one would presume too much upon his own Wisdom, and others not giving Way to him, Quarrels should arise, it has been agreed upon in all well regulated Societies, to chuse out some, whom they judged to be the best and most prudent, or were likely to prove so, and make them Magistrates. So the same Democritus, The Laws had not restrained us from living as we pleased, if one Man had not injured another. For Envy is the Mother of Sedition.10
5. But yet, as in Revenge or Punishment inflicted for the Satisfaction of the offended Party, (whereof we have just now treated) so likewise, even in this Punishment, which is for Example, there remain some Footsteps of the antient Right in those Places, and amongst those Persons, who are not subject to any established Courts of Judicature; and even among those too who are so subject, in some particular Cases. Thus by the Law of Moses,11 any private Man might upon the Spot, and with his own Hands, kill a Jew who had forsaken GOD and his Law, or who attempted to seduce his Brother to Idolatry. The Hebrews call this12 the Judgment of Zeal, which was first put in Execution by Phineas,13 and afterwards passed into a Custom. Thus Mattathias,c slew a certain Jew, who was polluting himself with the Superstitions of the Graecian Idolatry. Thus three hundred other Jews are said to have been killed by their own Countrymen, in that Book which is commonly called the third of the Maccabees. Nor was St. Stephen stonedd upon any other Pretence, nor the Conspiracye aised against St. Paul. There are many more Instances of this Kind to be met with14 in Philo and Josephus.
6. Moreover, in many Nations the plenary Right of Punishing, even with Death, remained in Masters over their Servants, and Parents over their Children, after the publick Laws were established. Thus in Sparta it was lawful for the Ephori to kill a Citizen, without any legal Prosecution.15 From what has been said<415> we may plainly see, what the Law of Nature was concerning Punishments, and how long it continued.
X.What the Gospel has injoined in this Case.X. 1. Let us now enquire whether this Liberty of punishing or revenging Injuries be not restrained by the Gospel. It is no Wonder indeed, as we saida elsewhere, that many Things which are permitted by the Law of Nature, and the Civil Law, should be forbidden by the divine Law, that being the most perfect of all Laws, and proposing a Reward above human Nature; and to obtain such a Reward, it is no Wonder if Virtues that exceed the bare Dictates of Nature are required.1 That those Corrections which leave no Infamy nor lasting Damage behind them, and in some Ages and Circumstances, are necessary, especially if they be inflicted by such Persons as human Laws permit so to do, as by Parents, Tutors, Masters, and Teachers, are no Ways repugnant to the Precepts of the Gospel, may be plainly enough gathered from the Nature of the Thing. For these Medicines of the Mind are altogether as innocent, as the disagreeable Potions given to a sick Person.
2. But the same is not to be said of Revenge. For as it tends only to satisfy the Resentment of the injured Person, it is so far from being agreeable to the Gospel, that it is not allowed of even by the Law of Nature, as we have shewn above. But the Law of Moses did not only forbid the Jews to entertain any Hatred against their Neighbour, that is, their Countrymen, Lev. xix. 17. but also to shew them some Sort of Kindness, even when they were Enemies, Exod. xxiii. 4, 5. Wherefore the Name of Neighbour being extended to all Mankind by the Gospel, it is plain that it is required of us, not only not to hate our Enemies, but even to do good to them, which is expressly commanded, Matt. v. 44. yet it was permitted to the Jews to seek Revenge for some great Injuries, not indeed by their own Hands, but by appealing to the Judge. But the Gospel takes away this Indulgence too, as is evident by the Opposition which our blessed Saviour puts between the Law and the Gospel. Ye have heard, saith he, that it hath been said, an Eye for an Eye, &c. But I say unto you, Matt. v. 38, 39. For tho’ what follows is properly concerning repelling of Injuries, and even this Liberty does in some Measure at least restrain, yet is it to be understood as much more strictly prohibiting Revenge; because it quite abrogates the old Indulgence,2as only suitable to the Time of a more imperfect Dispensation; Not that a just Revenge is evil, but that Patience is much better; as Clement’s Constitutions have it, B. vii. Chap. xxiii.
3. Whereof3Tertullian thus speaks, CHRIST plainly teaches us a new Kind of Patience, forbidding even that Retaliation which GOD before allowed of, when he required An Eye for an Eye, and a Tooth for a Tooth, commanding us to turn to him that shall smite us on the right Cheek, the other also; and to let him that shall take away our Coat, have our Cloak too; without Doubt CHRIST added these Things as Supplements, agreeable to the Precepts of the Creator. And therefore we<416> are to look back, and consider whether the Doctrine of bearing Injuries be delivered in the Old Testament. GOD there, by his Prophet Zachariah,4commands, that no Man should remember the Injury of his Brother, or even of his Neighbour. For again he saith, Let no Man think of the Evil his Neighbour has done him. And certainly, he who commands us to forget Injuries, doth much more strictly command us to bear them patiently. And when he says, Vengeance is mine, I will repay it, what doth he but teach us, that we should wait with Patience, till GOD (whose Prerogative it is to revenge) will be pleased to take our Cause into his Hand? As far therefore as it is inconsistent, that he should require a Tooth for a Tooth, and an Eye for an Eye, by Way of Return for an Injury, who does not only prohibit any such Return, but even any Revenge at all, even the very Remembrance of an Injury; so far is it made plain to us, what he designed by an Eye for an Eye, and a Tooth for a Tooth, viz. not to allow the first Injury to be punished by the second of the same Kind, by Way of Retaliation, which he had prohibited by prohibiting Revenge, but to restrain the first Injury, which he had also prohibited by ordaining the Punishment of Retaliation, that every one perceiving the Liberty of a second Injury indulged, might forbear to do the first. For he well knew, that Men would more easily be restrained from Violence, by permitting the Law of Retaliation to be put immediately in Execution, than by threatning a distant Punishment. But both these Methods were necessary, to answer the different Dispositions and Faith of Men, that he who believed in GOD, might be deterred by the Dread of divine Vengeance; and he who believed not, by the Law of Retaliation.
4. The Intent of this Law, which was hard to be understood, CHRIST, the Lord of the Sabbath, of the Law, and of all his Father’s secret Counsels, hath revealed and confirmed to us, commanding us even to turn the other Cheek, that he might the more effectually eradicate Revenge, which even the Law of Retaliation had designed to hinder, and which, at least, the Prophets had manifestly condemned, both by forbidding us to remember Injuries, and by commanding us to rely upon GOD for their Punishment. And therefore, if JESUS CHRIST hath added any Thing, to which the Precepts of GOD are not only not contrary, but even favourable; it cannot be said, that he hath overturned the Doctrine of the Creator. And, after all, if we examine this Doctrine of so exact and perfect a Patience thoroughly, it would not be reasonable, if it did not proceed from GOD, who has promised to be our Avenger, and to perform the Office of a Judge. For if he who lays so great a Burden of Patience upon me, as not only not to return a Blow, but to turn my Cheek to the Smiter; and not only not to return reproachful Language, but to bless those that curse me; and not only not to refuse my Coat, but to give my Cloak also: If he, I say, will not defend me, in vain doth he command me Patience, not giving me the Reward of the Command, the Fruit of Patience, I mean Revenge, which he ought to have permitted me to take, if he doth not do it himself; or if he permits not me to do it, he ought to do it himself; because, to punish Injuries is a necessary Part of good Discipline. For by the Fear of Punishment, all Acts of Violence are restrained. But if every one was left to his Liberty, Violence would rage to such a Degree, under the Protection of Impunity, that People would have both their Eyes, and all their Teeth, beat out.
5. Tertullian, we find, is of Opinion, that not only Christians are forbidden to require Retaliation, but also that the Jews themselves were not permitted to do it, as a Thing in itself innocent, but only to prevent a greater Evil; which certainly holds true of that Exaction of Punishment, which proceeds from a Grudge or Hatred, as appears from what we have already said. For that this was condemned by the wisest of the Jews, who did not only regard the Letter, but the Intention of the Law, is plain from Philo, in which Author the Jews of Alexandria, upon the Calamity of Flaccus, their bitter Enemy, express themselves thus, οὐκ ἐϕηδόμεθα, ὠ̑ δέσποτα, τιμωρίαις ἐχθρον̂, δεδιδαγμένοι πρὸς τω̂ν ἱερω̂ν νόμων ἀνθρωπαθεɩ̂ν, We<417> take no Pleasure, O LORD, in the Punishment of our Enemy, being taught by thy holy Laws, a Compassion and Fellow-feeling for all Mankind.5 And to this Purpose is that general Command of CHRIST, To forgive all who have offended us, Matt. vi. 14, 15. that is, neither to do nor wish them Evil, through a Resentment of the Evil they have done us. For whosoever doth so, as Claudian expresses it,
For which Reason Lactantius, B. vi. Chap. xviii. quoting that Saying of Cicero, It is the first Part of Justice not to do any Man any Harm, unless we be provoked by an Injury,6 makes this Reflection upon it, O what a plain and true Sentence is here spoiled by the Addition of two Words! And St. Ambrose saith of the same Sentence of Cicero, That it wanteth the Authority of the Gospel to confirm it.7
6. But what shall we say of Revenge, not as it regards what is past, but what is to come? Surely CHRIST would have us to forgive even this; first, if he who has offended shew any Tokens of Repentance,8Luke xvii. 3. Eph. iv. 32. Col. iii. 13. In which Places a more plenary Remission is understood, that is, such an one as restores the Offender into his former State of Friendship; from whence it follows, that no Punishment ought to be required of him. Besides, tho’ no Signs of such Repentance do appear, if the Damage we sustain be not very great, CHRIST, by the Precept of parting with our Coat, teaches us, that we ought patiently to bear it. And even Plato9 hath said, that We must not return Evil for Evil, tho’ we should suffer some considerable Grievance. The Sense of which Words are to be met with likewise in Maximus Tyrius.10 And Musonius professes of himself, that for any small Affront (such as a Box on the Ear, mentioned by our Saviour) he would neither bring an Action at Law against any Man, nor encourage any other to do it, because such little Injuries are much better forgiven.11
7. But, if to wink at the Faults and Offences of others be attended with any great Hazard, we ought then to be contented with that Security of their Behaviour, which may do them the least Damage. For the Law of Retaliation itself was not in Force, even amongst the Jews, as Josephus,12 and other Jewish Writers, observe; but the injured Person, besides his Loss of Time, and the necessary Expences of his Cure, of which Expences we have a distinct Law, Exod. xxi. 19.13 (for this imports no more than simple Restitution, having nothing penal in it) was wont, in Lieu of Retaliation, to receive a Fine,14 which was practised too at Rome, as Favorinus,15 in Gellius, informs us. Thus Joseph, the Foster-Father of JESUS, believing Mary guilty of Adultery,16 had a Mind to get rid of her by Divorce, rather than expose her, and<418> make her a publick Example: And this he is said to have done, because he was a just Man; that is, an honest and good-natured Man; upon which Place St. Ambrose has this Remark, That the just Man is free not only from the Cruelty of Revenge, but even17from the Severity of a Prosecution. As also Lactantius had before said, A just Man must not even accuse a Person of a capital Crime,18 And Justin,19 talking of those who accused the Christians, saith, We would not have them punished who caluminate us: Their own Wickedness, and their Ignorance of what is good, is sufficient Correction for them. Apol. 2.
8. It remains that we say something of those Punishments that are inflicted, not for any private Advantage but for a publick Good; partly by putting to Death, or disabling the Criminal from doing any more Mischief, partly by deterring others by the Severity of the Example; that those Punishments were not abrogated by CHRIST, we have proved by an irrefragable Argument elsewhere;b since, when he delivered those Precepts, he gave this Testimony of himself, That he did not destroy a Tittle of the Law. But the Law of Moses, which in these Cases certainly continued in Force as long as the Jewish State continued, strictly commanded their Magistrates to punish Homicides, and other great Crimes with Death, Exod. xxi. 14. Num. xxxvi. 31. Deut. xix. 13. And if the Precepts of CHRIST were consistent with the Law of Moses,20 as that Law required capital Punishments,21 well may they be consistent with human Laws, which do in this Respect imitate the divine.
XI.The Argument drawn from the Mercy of GOD declared in the Gospel, answered.XI. 1. Yet some there are, who, to maintain the contrary Opinion, alledge the great Mercy of GOD under the New Testament, which is to be imitated by all Men, and even by Magistrates themselves, as GOD’s Vice-gerents; which we grant to be true in some Measure, but yet that it is not to be extended so far as they would have it. For the great Mercy of GOD declared in the Gospel has Regard chiefly to Sins committed against the Law given to Adam,1 or against the Law of Moses, before the Promulgation of the Gospel, Acts xvii. 30. Rom. ii. 15. Acts, xiii. 38. Heb. ix. 15. For those which are committed afterwards, especially if they be persisted in with Obstinancy, are threatned2 with Judgments much more severe, than those of the Law of Moses, Heb. ii. 2, 3. x. 29. Matt. v. 21, 22, 28. Neither are they threatned with Judgments of the other Life only, but GOD often punishes such Crimes even in this, 1 Cor. xi. 30. Nor is Pardon for such Sins obtained,3 unless the Party does, as it were, punish himself, 1 Cor. xi. 31. by great Sorrow and Compunction, 2 Cor. ii. 7.<419>
2. And they farther urge, that Magistrates, in Imitation of GOD, ought, at least, to pardon the penitent. But, besides that it is scarce possible for Men to discern which are true Penitents, and that if outward Shews, and Professions of Repentance were sufficient, no Man but would come off with Impunity, GOD himself doth not always remit all Kinds of Punishment, even to the true Penitent, as appears by the Example of David. As therefore GOD might remit the Punishment of the Law, that is, a violent or an otherwise untimely Death, and yet inflict grievous Punishments upon the Delinquents;4 so now, in like Manner, he may remit the Punishment of eternal Death, and yet, either punish the Sinner with an untimely Death himself, or be willing that he should be so punished by a Magistrate.
XII.And that from the Cutting off of the Opportunity of Repentance.XII. 1. But others again condemn this Proceeding too; because, together with Life, all Opportunity for Repentance is cut off. But they themselves know very well, that good Magistrates always take special Care, that no Malefactor be hurried away to Punishment, before he has had a sufficient Time allowed him to confess his Sins in, seriously to detest and abhor them, and to make his Peace with GOD; and that GOD doth sometimes accept of1 such a Repentance, tho’ good Works being prevented by the Death of the Malefactor do not follow it, is plain from the Example of the Thief crucified with CHRIST. And if it be said, that longer Life might conduce much to a more serious and perfect Repentance; it may be answered, that Instances of those sometimes happen, to whom this2 Saying of Seneca may be justly applied, There is but one good Thing more, that we can offer you, which is Death: And that other Expression of the same Author, Let them cease to be wicked by the only Method they are capable of doing it. Which is what Eusebius, the Philosopher, had said before, ἐπειδὰν οὐχ οἷον, Since they cannot be reformed by any other Means, let them, being thus freed from those Chains, bid Adieu to their Villanies.3
2. Let these therefore, together with what we have said in thea Beginning of this Work, serve for Answers to those, who would either prohibit all Punishments in Christian Countries, or at least such as are capital, without Exception; contrary to which is the Doctrine of the Apostle, who, in the Office of a King,b includes the Power of the Sword, for the Execution of divine Vengeance; and he saith in another place,c that we are to pray that Kings may become Christians; and that as they are Kings, they may be a Guard to the Innocent: Which, in this general Corruption and Depravity of Mankind, even since the Times of the Gospel, cannot be done; unless, by the Death of some, the Audaciousness of others be restrained, seeing all the publick Punishments that are every where inflicted upon the Guilty, are scarce sufficient to protect the Innocent.
3. Nor will it be impertinent to propose to the Imitation of Christian Governors, in some Respects,4 the Example of Sabacon the Aegyptian King, a Man eminent for his Piety, by whom capital Punishments were changed into certain servile Works, with a very happy Success, asdDiodorus testifies: And Strabo says too, that there are some People bordering upon Mount Caucasus, who put no Man to<420> Death, tho’ the greatest Malefactor.5 Nor is that of Quintilian to be slighted, No Man can doubt, saith he,6but that if Malefactors could be reclaimed, and brought to behave themselves better, as it is granted they sometimes might, it would be more for the Advantage of the State, that they should live than die. It is observed by Balsamon, that the Roman Laws which condemned Men to Death, were most of them changed7 by the succeeding Christian Emperors,8 into other Punishments, in Order both to impose on the Guilty a severer Method of Repentance, and also by the Length and Tedious ness of their Punishment, to make it the more exemplary.
XIII.Imperfect Divisions of Punishment rejected.XIII. 1. By1 the Enumeration we have made of the Ends of Punishment, it appears, that Taurus the Philosopher has over-looked some of them, out of whom Gellius thus, When either there appear in the Malefactor great Hopes of Reformation, without Punishment, or, on the contrary, no Hopes at all of his Amendment, even tho’ he should be punished; or no great Reason to fear, that the Dignity of the Person, against whom the Offence is committed, should be slighted or contemned; or if the Offence be of such a Nature, as that it is not necessary to deter others from it by the Example, then is it scarce worth the While to put ourselves to the Trouble of punishing.2 For he seems thence to infer, that Punishments are needless, if any one of these Ends be wanting: Whereas, on the contrary, all these Ends must be wanting, that there be no Need of punishing. Besides, he omits that End when an incorrigible Offender is taken away, that he may not commit more or greater Crimes; and what he said of the Loss of Dignity, is to be extended even to other Damages, which we have just Occasion to fear.
2. Much better is Seneca’s Division of Punishments, In revenging Injuries, says he, the Law hath Regard to these three Things, which a Prince should likewise have Regard to.3 Either to reform the Person himself whom he punishes; or, by making an Example of him to reform others; or, to take away incorrigible Offenders, that the Rest of the World may live in greater Safety. For here, if we understand by The Rest of the World, not only those who have been injured already, but those also who may be injured hereafter, we have a perfect Division, unless after the Word take away, or disable should have been inserted. For Imprisonment, or any other Punishment that disables the Malefactor from doing more Mischief, comes in under this Head. Less perfect is that Division of Seneca in another Place,4All Punishment, saith he, is to be inflicted upon these two Accounts; either, to reclaim the flagitious, or to take them away. And that of Quintilian is yet more imperfect than this, where he saith, In all Punishments the Crime is not so much regarded, as the Example.5 <421>
XIV.That it is not safe for private Christians to punish, even when the Law of Nations permits them.XIV. From what has already been said, we may gather how dangerous it is for any private Christian1 to punish any Man, tho’ never so wicked, especially with Death, either for his own or the publick Good,2 although it be sometimes permitted by the Law of Nations, as we have shewn already. Hence is that Custom of those Nations much to be commended, where the supreme Power grants Commissions to People going to Sea, to attack Pirates wherever they meet them; that they may make use of any Opportunity that serves, not as it were of their own Head, but by the express Order of the Publick.
XV.Or to be forward in a Prosecution.XV. Not unlike to this is another Custom, which prevails in many Places,1 where not any one who has a Mind to it is allowed to be a Prosecutor, but only some particular Men, who are appointed by publick Authority; that so no Man may contribute towards the Effusion of his Neighbour’s Blood, but only he who is obliged to it by his Office. Agreeable to this is that Canon of the Council of Eliberis, If any Believer be an Informer, and another by his Information be either proscribed or put to Death, we have thought fit to forbid him the Sacrament, even to the last.
XVI.Or to affect the Office of a Judge in capital Crimes.XVI. And from what hath been already said, it may also be gathered how rash and indecent a Thing it is for a Man who is really a Christian1 to thrust himself into publick Offices, whose Business it is to sentence People to Death, and to think and profess, that the Right of Life and Death over his fellow Citizens, may safely be committed to him, as the most excellent of all others, and a Kind of God amongst Men. For certainly the Danger that CHRIST admonishesa us of, in judging others, (because, as we judge others we must expect to be judged ourselves in like Cases, by GOD) is altogether as true in this Affair.
XVII.Whether human Laws, which permit one Man to kill another, grant him a Right so to do, or only Impunity for doing it; explained by a Distinction.XVII. 1. Another important Question may be asked, Whether human Laws, which permit one Man to kill another, give him a Right so to do before GOD, or only Impunity amongst Men. Covarruviasa and Fortuniusb are for the latter, whose Opinion is so much disliked by Vasquez,c that he calls it an abominable one. It is not to be doubted, as we have said elsewhere,d but that the Law can do both in some Cases. But whether it does do so much or not, is to be gathered partly from the Words of the Law, and partly from the Nature of the Thing. For if it makes Allowances for the Transport of Passion, it only exempts from human Punishment, but does not take away the Guilt; as in the Case of an Husband1 who kills his adulterous Wife, or her Gallant.
2. But if it have Regard to the Danger that may ensue, by deferring the Punishment, then it is supposed to transfer a publick Authority to a private Person, so as that he now ceases to be a private Person. Of this Kind is that Law in the Code of Justinian, under this Title, Quando liceat unicuique sine Judice, &c.2 When it may be lawful for any one, without appealing to the Judge, to kill upon the Spot, those Soldiers who shall be found plundering the Country. And the Reason of the Law is there added, viz. That it is better to prevent Evil in Time, than to punish it afterwards. We permit you therefore to do yourselves Justice, and what, it is too late to punish by a Course of Law, we suppress by this Edict; hereby com-<422>manding, That no Man shall spare a Soldier, whom he is obliged Sword in Hand to defend himself against, as against a Thief and a Robber. And to the same Purpose is the subsequent Law, of punishing Deserters, which runs thus:3Be it known unto all Men, That against publick Robbers, and Soldiers who fly from their Colours, Power is hereby given to every Man to execute publick Revenge for the common Safety. And thus is that of Tertullian to be understood4Against Traitors and publick Enemies, every Man is a Soldier.
3. And herein the Right of killing Exiles,5 when found within the Dominions they are banished from, differs from the Laws just mentioned, inasmuch as that a particular Sentence must have been already passed upon the one; whereas in the other Case a general Edict,6 together with the Evidence of the Fact, has the Force of an anticipated Sentence.
XVIII.That internal Acts are not punishable by Men.XVIII. Now let us see whether all Kinds of vicious Acts ought to be punished by human Laws. And certainly they ought not. For first the internal Acts of the Mind, tho’ they be afterwards made known to others by Confession or any other Accident, cannot be punished by Men, because, as we have said elsewhere,a it is not agreeable to human Nature, that any Right or Obligation should rise amongst Men from Acts merely internal. And in this Sense are the Roman Laws to be understood, when they say, Cogitationis Poenam neminem mereri,1No Body deserves to suffer for his Thoughts. But yet these internal Acts,2 as far as they influence the external ones, are brought into the Account, not simply of themselves, but by Reason of the external Acts, which from the Intention become more or less worthy of Punishment.
XIX.Nor external Acts that are unavoidable by human Nature.XIX. 1. Secondly, Those Acts that are unavoidable by human Nature, are not to be punished by human Laws. For tho’ nothing be imputed to us as a Sin, but what hath the Concurrence of the Will, and is done freely; yet to abstain altogether, and at all Times from all Kinds of Sin is above the Strength and Condition of human Nature; whence it is, that all Sorts and Sects of Men have accounted it Natural for a Man to sin. As amongst Philosophers,1Sopater,2Hierocles,3Se-<423>neca; amongst the Jews,4Philo; amongst Historians,5Thucydides; and amongst Christians,6 very many have left us their Testimony upon Record. If, saith Seneca,7every Man, who is of a depraved corrupt Nature were to be punished, no Man would go unpunished. To the same Purpose is that of Sopater:8 He, who is rigid enough to punish Men as severely, as if it was possible for them to live altogether without Faults, must certainly exceed the Bounds of Correction. Which9Diodorus Siculus calls a Wrong done to the common Frailty and Weakness of Men; and in another Place, he says, It is to forget the Weakness, that is common to all Mankind. For as the same Sopater saith, Our lesser, and as it were daily Slips of Infirmity are rather to be connived at than punished.
2. And indeed it may well be doubted,10 whether these can truly and properly be called Sins, since, tho’ every particular Fault may seem to be done freely, we lie under a Kind of Necessity in general to sin. Every Law,11 saith Plutarch in the Life of Solon, ought to be made against Things that are possible to be observed, if it intend to punish a few with Advantage, and not a Multitude to no Purpose. There are likewise some Sins, that are not absolutely unavoidable to human Nature,12 but to this or that particular Person, or in this or that particular Case13 by Reason of such or such a Temperament of the Body strongly inclining the Mind, or by some inveterate Custom, which yet are commonly punished, not so much for themselves, as14 for the preceding Fault that occasioned them, because either the Remedies were neglected, or the Depravity voluntarily contracted.<424>
XX.Nor those Acts that are neither directly nor indirectly hurtful to human Society; the Reason of which is assigned.XX. 1. Thirdly, those Sins are not to be punished, which neither directly nor indirectly concern human Society, nor any Body else. Because no Reason can be assigned, why the Punishment of such Sins should not be left to GOD, who is most wise to understand, most righteous to weigh, and most mighty to revenge them. Wherefore all human Punishments, as to such Sins, are plainly unprofitable, and of Consequence improper. But those Punishments are to be excepted, that tend to the Reformation of the Party transgressing, tho’ perhaps no other may have any Interest in it. Nor are Actions to be punished, that are done in Opposition to Virtues, which by their very Nature are averse from all Compulsion, such as Mercy, Liberality and Gratitude.
2. Seneca discusses this Question, Whether the Vice of Ingratitude ought to go unpunished; and why it ought he alledges many Reasons, particularly this, which will likewise hold in other Vices of the like Nature: Since, says he, it is highly Praiseworthy to be grateful, it would cease to be so, if we were bound to be grateful; that is, Gratitude would lose that which is most commendable in it, and which puts it in the Rank of excellent Virtues, as appears from the subsequent Words: For, if Ingratitude were punishable, no Man would more commend a grateful Man, than he does him, who restores what was given him in Trust, or than he does him, who pays his just Debts without being forced to it by Law. And soon after: It would not be so glorious to be grateful,1unless we might be ungrateful with Impunity. And to these Kinds of Vices may be referred that of Seneca the Father in his Controversies,2I do not desire that the Criminal should be commended, but only acquitted.
XXI.The Opinion of those who hold that it is never lawful to pardon, rejected.XXI. It remains now that we enquire, whether we may not sometimes forgive or pardon Offences.1 For the Stoicks deny it, as appears by a Fragment in Stobaeus, entitled, De Magistratu, in Cicero’s Oration for Muraena, and at the End of Seneca’s Books De Clementia, but their Argument is very weak. Pardon, say they, is the Remission of a Punishment that is due, but a wise Man will always do what he ought to do. Here the Fallacy lies in the Word due. For if by due be meant, that he, who has offended, deserves to be punished, that is, may be punished without Injustice, it will not follow from hence, that he, who forbears to punish him, does what he ought not to do. But if it be meant, that Punishment is in such a Manner due from a wise Man, that he is indispensibly obliged to exact it, we say, that that doth not always happen, and therefore in this Sense Punishment is not always due, but permitted only. And that may be true, as well before the penal Law as afterwards.
XXII.It is shewn here that Punishment is allowable before the Establishment of any penal Law.XXII. 1. Yet it is not to be doubted, but that before the penal Law be made, an Offence may be punished, because he, who has offended, naturally brings himself into such a Condition, as that he may justly be punished:1 But it does not follow from hence, that Punishment must needs be exacted; because this depends upon the Connection of the Ends, for which Punishment was instituted, with the Punishment itself. Wherefore if those Ends be not in a Moral Sense necessary, or if quite contrary Ends do occur no less Profitable or Necessary, or the Ends proposed by Punishment can be obtained another Way, then it plainly appears, that there is nothing, which can strictly oblige us to exact Punishment. An Instance of the first<425> Case is, when an Offence is committed so privately, as that it comes to the Knowledge of but very few, so that a publick Discovery of it by Punishment, may not only be unnecessary, but even hurtful; according to what Cicero said in the Case of one Zeuxis;aBeing put into the Hands of Justice, he ought not perhaps to be dismissed, but there was no Necessity that he should have been put there at all. Of the second in him, who commits an Offence, which is over-balanced, either by his own or his Ancestors Merits. For then as Seneca well observes,2The supervening Service covers and conceals the Injury. Of the third in him, who mends upon a bare Reproof only, or makes the offended Person Satisfaction by asking his Pardon; so that for those Ends there is no need of Punishment.
2. And this is that Part of Clemency, which exempts from Punishment, with Regard to which the wise Hebrew hath declared,b That it becometh the Just to be merciful. For since all Punishment, especially if it be severe, has something in itself that is repugnant, not indeed to Justice, but Charity, surely our common Reason will easily suffer us to abstain from it, unless a Motive of Charity more strong and more just irresistibly hinder us. Very apposite to which is that of Sopater, where he says, that3That Justice, which is conversant about Contracts, admits of no Favour, but that, which is conversant about Offences, puts on sometimes the mild and gentle Countenance of the Graces. The Sense of the former Part of which Cicero has expressed in these Words: Via Juris ejusmodi est quibusdam in Rebus, ut nihil sit Loci Gratiae.4The Manner of doing Justice is in some Cases of such a Nature, as to leave no Room for Favour: And of the latter Part Dion Prusaeensis thus: χρηστον̂ ἡγεμόνος, συγγνώμη.5It is worthy of a good Prince to pardon. And in Favorinus: That which Men call Clemency, saith he, is nothing but a seasonable Mitigation of the Rigour of the Law.
XXIII.But not always.XXIII. Now one of these three Things may happen, either that some Punishment is to be in dispensibly exacted,1 as in Crimes of the most pernicious Example; or that it is not to be exacted at all, as when the publick Good requires that it should be omitted; or that we may do either the one or the other, as we think convenient. To which Intent is that of Seneca,2That Clemency is free. The wise Man, say the Stoicks,3spares, but does not pardon. As if we might not with the Vulgar, the Masters of Language, call that, to pardon, which they call, to spare. But in this as well as other Points, as Cicero, Galen, and others have observed, a great Part of the Disputations of the Stoicks4 is spent in nothing, but Words, which a Philosopher more especially ought to avoid. For as the Author to Herennius truly remarked,5It is ridiculous and a Fault to raise a Controversy about the Alteration of Names: Which Aristotle had expressed thus:6We must take Care to shun quibbling about a Term.
XXIV.And also after the penal Law is made.XIV. 1. There seems to be greater Difficulty after the penal Law is made,1 because the Law-Maker is in some Measure bound by his own Laws; but this<426> only holds, as we said before,2 as far as the Law-Maker is looked upon as a Member of the Community, not as he is the Representative, and carries with him the Power and Authority of the State. For as such he may intirely abolish the penal Laws; for the Nature of an human Law is such, that it depends upon the Will of the Legislator, not only in its Institution, but also in its Duration. But the Law-Make rought not to take away the Law, without a reasonable Cause for it, which if he does, he transgresses thea Rules of political Justice.
2. But as he can take away the Whole Law, so he may suspend the Obligation of any Part of it, as to this or that Person, or this or that particular Fact, the same Law in all other Respects remaining in Force, after the Example of GOD himself; who, as Lactantius observes,3when he gave Men Laws, did not deprive himself of the Power of pardoning such as should transgress those Laws.4A Prince, saith St. Austin, may revoke a Sentence, and absolve and pardon the Person condemned to die: And gives this Reason for it, that he is not subject to Laws; who has Power to make them. Seneca is for having Nero to reflect upon this Sentence: Any Man can kill contrary to Law; but no Man can save besides my self.5
3. But neither is this to be done without a reasonable Cause. And what these reasonable Causes are, tho’ we cannot precisely define them, yet we must conclude, that they ought to be greater, after the Institution of the Law, than before, because the Authority of the Law, which it is fit should be maintained, is superadded to the other Causes of punishing.
XXV.What reasonable intrinsic Causes justify the doing of it.XXV. But the Causes of exempting any one from the Penalty of the Law are either intrinsical or extrinsical. It is intrinsical, when the Punishment compared with the Fact is too severe, if not unjust.1
XXVI. Extrinsical is from a Man’s former Merit,1 or some other Thing that<427> speaks in his Favour; or even from great Hopes of him for the future:XXVI.What extrinsic ones. Which Kind of Cause will then most prevail, when the Reason of the Law (at least in that particular Fact he is accused of) shall cease.2 For tho’ the general Reason3 of a Law without the Counter balance of a contrary Reason be sufficient to maintain the Law in Force and Vigour,4 yet when the Reason ceases, as to this or that particular Case, it makes the Law be dispensed with, more easily and with less Detriment to its Authority. And this takes Place the most in those Crimes which are committed through Ignorance, tho’ that Ignorance be not altogether blameless, or through an Infirmity of the Mind, that is superable indeed but not without great Difficulty; to which Circumstances, a Sovereign who professes Christianity, ought to have great Regard, after the Example of GOD himself, who in the Mosaick Dispensation was graciously pleased to provide, that Sins of this Kind should be expiated with certain Sacrifices, Lev. iv. and v. And in the New Testament he has declared both by Words and Examples, that he is ready to pardon such Sins upon Repentance, Luke xxiii. 34. Heb. iv. 15, v. 2. 1 Tim. i. 13. And it is observed by St. Chrysostome, that those Words of Christ in St. Luke xxiii. 34. Father forgive them, for they know not what they do,5 wrought so much upon Theodosius, that he freely forgave the Antiochians.
XXVII.The Opinion, that there is no just Reason for dispensing with a Penalty but what is included in the Law by Way of tacit Exception rejected.XXVII. And from hence appears the Error of Ferdinand Vasquez,1 who said that the Laws were never to be dispensed with, but in such Cases as the Maker of them, had he been consulted, would have acknowledged that he did not design that they should be binding. For he has not distinguished between an equitable Interpretation of the Law, and a Relaxation of it. Whence it is, that in another Place2 he reproves Aquinas and Sotus for saying, That the Law does still oblige, tho’ the particular Reason of that Obligation cease, as if they took the Law to consist in the bare Letter, which they never thought of. But it is so far from being true, that every Relaxation of the Law, which may be made or omitted at Pleasure, is Equity properly so called, that that Relaxation, which is made either out of Charity or Policy, does not come within the Bounds of it. For it is one Thing, to dispense with the Law for some reasonable or even urgent Cause, and another to declare, that the Fact was never comprehended under the Intention of the Law. So much for taking a way or exempting from Punishments: Let us now see how we are to put them in Execution.
XXVIII.The Punishment is to be proportioned to the Crime.XXVIII. From what has been already said, it appears, that in Punishments two things are to be considered, the Reason why and the End for which. The Reason why, is the Demerit; the End for which, is the Advantage of Punishment.1 No Body is to be punished above his Desert, according to those Passages of Horace,a which we have before quoted, and that of Cicero,2There is a Measure, saith he, and Moderation to be used in punishing, as well as in all other Things. And therefore Papinian calls Punishment the Valuation of a Crime.3Aristides saith, Leuctr. II. That it is agreeable to human Nature, that Bounds should be set beyond which Revenge should never pass. Demosthenes in his Epistle for Lycurgus’s Children, says<428> that we are not to observe barely an Equality in Punishments as in Weights and Measures, but to have Regard to the Purpose and Intention of the Delinquent. But within the Bounds of this Demerit, and with Respect to the Advantage thence arising, Faults may be more or less punished.
XXIX.Regard is to be had here to the Motives which we are to compare with one another.XXIX. 1. In the Demerit of the Crime, we are to consider,1 the Motive that induced, the Reason that ought to have restrained, and the Disposition of the Person either to one or the other. There is hardly any Man wicked for nothing, and if there be any one who loves Wickedness for its own sake, he is a Sort of Monster. The greatest Part of the World are drawn into Sin by their Affections.aWhen Lust hath conceived it bringeth forth Sin. Where under Lust or Appetite, I comprehend also that vehement Desire of declining every Thing that may hurt us, which of all others is the most natural, and consequently the most innocent. And therefore those Sins, that are committed to escape Death, Imprisonment, Pain, or extream Poverty, seem to be the most excusable.
2. Agreeable to which is that of Demosthenes,2If a rich Man be unjust, it is fit that he should be much more severely punished, than a poor Fellow whose Poverty forces him to commit the same Crime. For before Judges, who have any Sense of Humanity, Necessity pleads strongly for Indulgence, whereas they who in Affluence and Plenty do an Act of Injustice, can have no tolerable Pretence to urge in their Favour. Thus does Polybius excuse the Acarnanians, who to avoid the imminent Danger, that threatned them,3 broke the Articles of the Treaty concluded with the Greeks against the Aetolians. And Aristotle says,4Incontinence is more voluntary than Cowardice: For that proceeds from a Prospect of Pleasure, this from an Apprehension of Pain. And this Pain doth, as it were,5transport a Man out of himself, and tends to his Destruction, whilst the Privation of Pleasure doth no such Thing; and therefore Incontinence is the6more voluntary Vice. To the same Purpose there is a famous Passage in Porphyry, Lib. III. De non esu Animalium.
3. All other Appetites do tend to some Good, either real or imaginary. Those Things that are really good, besides the Virtues and their Acts, which never lead to Sin (ἀντακολουθον̂σι γὰρ αἱ ἀρεταὶ,7For the Virtues follow one another) do either themselves afford Pleasure, or are the Cause of such Things as procure it, such as Abun<429>dance of Riches. But Distinctions that raise us above others, as they are separated from Virtue and Profit; and Revenge,8 are imaginary not real Goods: And the more they deviate from Nature, the worse and more detestable they are. And these three Appetites St. John expresses in these Words.b Επιθυμία σαρκὸς, ἐπιθυμία τω̂ν ὀϕθαλμω̂ν, ἀλαζονεία τον̂ βίου. The Lust of the Flesh, the Lust of the Eyes, and the Pride of Life. The first whereof comprehends the Desire of Pleasure, the second of Profit, the third of Vain-Glory and Resentment. And9Philo in his Exposition of the Decalogue derives all that is Evil from Desire of Riches, Honour, or Pleasure. And Lactantius in his sixth Book makes all Virtue to consist, either in restraining our Anger, in bridling our Lusts, or in moderating our Avarice. For almost all our unjust and wicked Actions do spring from these Affections. And this is what he repeats elsewhere.
XXX.And Causes too which ought to restrain us: Whereof the Degrees of the Precepts in the Decalogue with Respect to our Neighbour and some other Things.XXX. 1. The Cause which in general ought to restrain a Person from offending is Injustice. For we are not treating here of every Sort of Offence, but of those which have Relation to some other Person besides that of the Offender. Now the greater the Damage is, that is done to another, the greater is the Injustice. Therefore Offences actually consummated hold the first Place, the next those which have proceeded to some Acts but not to the last of all; amongst which that is the most heinous which has proceeded the farthest. In either Kind that is the most notorious Injustice which disturbs the publick Order, and therefore hurts the most: Next to it is that which touches particular Persons; with Respect, in the first Place, to their Life; in the second, to their Family, the Foundation of which is Marriage; in the last, to particular Goods and Effects whose Possession is desirable, whether by directly taking them away, or by causing Damage in any fraudulent Manner.
2. These Things are capable of a more subtle Division; but the Order we have observed is that which GOD himself has followed in the Decalogue. For under the Name of Parents, who are our natural Magistrates, it is reasonable to understand other Rulers also, by whose Authority human Society is preserved. After this follows the interdicting of Mans laughter; then the Establishment of Matrimony, by prohibiting Adulteries: Then Thefts and Falshoods; in the last Place Offences not consummated and imperfect. Now among the Causes restraining, Consideration must be had not only of the Quality of what is directly done, but also of what may probably follow; as in the Attempt of setting a Town on Fire, or breaking down a Dam, we ought to regard the extream Calamities and Deaths of a Multitude of People.
3. To that of Injustice, which we have laid down as a general restraining Cause,1 there is sometimes annexed some other Vice, as for Instance, want of Affection<430> towards Parents, Inhumanity to Relations, Ingratitude to Benefactors, which aggravate the Offence.2 The frequency of the Offence is still a stronger Indication of a depraved Mind; because an evil Habit is worse than a single Act. And hence we may understand how far the Practice3 of the Persians was agreeable to natural Equity,4 that the preceding Course of Life be brought into Account with the Offence itself. For this ought to take Place in those who, being innocent in other Respects, have been on a sudden prevailed upon by some Temptation to commit a Crime; not in those who have perverted their Whole Course of Life: With Respect to whom GOD himself says in Ezekiel,a that he makes no Account of their former manner of Life, and to whom therefore may be applied that of Thucydides,5They deserve double Punishment in that from being good Men they are become bad: Because, as he says in another Place,6They have acted in a Manner unworthy of themselves.
4. And therefore the antient Christians did very well to require that in proportioning of ecclesiastical Punishments, they should not look upon the7 bare Offence, but at the same Time also the Course of Life both before and after the committing it, as appears from the Ancyran and other Councils. But, besides, when a Law is made against that which is in itself ab Vice, it superadds a special Aggravation to it; as St. Austin shews in these Words,8The Prohibition of a Law renders all Offences doubly criminal. For to be guilty of what is not only bad in itself, but also forbidden, is not to be reckoned a single Sin; and Tacitus in these,9If you are for doing what is not yet forbidden, you may fear lest you may be forbidden But if you transgress in Things actually prohibited, with Impunity, there is neither Fear nor Shame remaining to restrain you.
XXXI.The Capacity also of the Offender either for one or the other, which Capacity is variously considered.XXXI. 1. The Fitness of a Person, either to reflect upon the Causes that might restrain from offending, or to receive the Affections that excited to it, is usually observed from the Constitution of the Body, the Age, Sex, Education, and Circumstances of the Act itself. For Children and Women, and People of a dull Disposi<431>tion, and of a bad Education, do not so well distinguish just from unjust, lawful from unlawful. And again, those in whom Choler abounds are subject to Anger, as those of a sanguine Constitution are to Lust; besides, the Inclinations of Youth and old Age are different. Thus Andronicus Rhodius,1The natural Disposition of a Man seems to plead somewhat in his Excuse for doing amiss, and to render his Offence more tolerable. The Thought of an imminent Evil increases Fear, and the Sense of a fresh Injury inflames Anger, so that those Passions will scarce ever suffer Reason to be heard; and the Offences occasioned by such Affections are in Truth less odious than those which arise from the Desire of Pleasure, which on the one hand is not altogether so violent, and on the other may be put off, and easily2 without Injustice find another Matter to work upon. To which Purpose is that of Aristotle in the seventh Book of his Nicomachia,3Anger is more natural than a Desire of superfluous and unnecessary Things.
2. For this must be always observed, that the more the Judgment is hindered in making its Choice, and the more natural the Causes are by which it is hindered, the less is the Offence. So Aristotle in the fore mentioned Book,4A Man, who, being not at all, or but lightly moved by an impulse of Desire, seeks after forbidden Pleasures, or flies at the approach of a slight Pain, I call more intemperate than one who is urged by a vehement Passion. For what may not such a one be supposed to do, if he was to feel the Violence of Juvenile Affections, or were oppressed with the Want of those Things which it is grievous for Nature to be without? With which agrees that of Antiphanes,
As also what we frequently read in Comedies of the Amours of old Men. From these Causes therefore it is that we are to examine the Merit of the Offence, and accordingly to settle and determine the Punishment.
XXXII.That the Punishment may exceed the Proportion of the Damage done and why.XXXII. 1. But here we must observe, that what the Pythagoreans assert, that Justice is1 τὸ ἀντιπεπονθὸς, that it consists in Retaliation, or a Suffering by Way of Punishment just as much as is the Mischief one does, must not be so understood as if he who has deliberately and without such Reasons as very much lessen the Crime, done a Damage to another, ought himself to suffer the same Damage and no more. For that this is not so, that verya Law, which is the most perfect Pattern of all Laws, shews, when it commands Theft to be punished with a four-fold or five-fold Restitution. And by the Athenian Law a Thief,2 besides the Penalty of double Damage, was imprisoned for some Days, as Demosthenes against Timocrates shews. Laws, says St. Ambrose,bCommand that those Things that are stolen from any one, be restored by inflicting corporal Punishment upon the Person, or by laying a greater Mulct upon him than the Thing stolen was valued at, to the End they may either by the one deter, or by the other discourage a Thief from stealing. Aristides<432> in Leuctr. II.c says, to those who prosecute injurious Persons in a judicial Way, the Laws allow greater Damages by Way of Revenge than they sustained. And Seneca, speaking of the Judgment after this Life, says,
2. Among the Indians, as Strabo4 observes, he that had maimed another, was, besides the suffering of Retaliation, to have his Hand cut off. And in the great Morals which go under the Name of5Aristotle, we read, It is not reasonable that he who has put out another’s Eye, should only be punished with the Loss of his own, but that he likewise suffer something more. Neither indeed is it equitable that the injured and the injurious Person should suffer alike, asdPhilo shews very well, where he treats of the Punishment of Manslaughter. And we find also that some Offences, tho’ not consummated, and therefore less6 than if they had been consummated, bear a Punishment suited to the Injury designed, as we have an Instance in the Jewish Lawe concerning7 false Witness, and in the8Roman Law concerning him who went armed with an intent to kill somebody. From whence it follows, that a severer Punishment should be contrived for Crimes actually committed; but since nothing can be severer than Death, and this cannot be repeated, as9Philo observes in the Place above-mentioned, one is obliged to stop here; however, there may sometimes be the Addition of Torments, according to the Heinousness of the Fact.
XXXIII.The Opinion of harmonical Proportions in Punishments rejected.XXXIII. Now the Greatness of a Punishment is not to be estimated from what it is simply in itself, but with respect to the Person, who suffers it. For the same Fine that is burthensome to a poor Man, is not so to one that is Rich; and a Mark of Infamy which is but a trifle to a mean Person, is very gracious to a Man of Quality. This Diversity is very much considered in the Roman Law, upon which Bodina framed his harmonical Proportion; whereas here is only a simple arithmetical Equality of the Demerit and the Punishment, as there is in Contracts, of the Goods and the Money, tho’ the Goods may be worth more in one Place than another, and likewise the Money. But it must be owned, that often in the Roman<433> Law this is not done ἄνευ προσωποληψίας, that is, without too1 great a Respect had to Persons and Qualities no Ways relating to the Fact; a Fault from which the Law of Moses is entirely free. And this, as we said, is the intrinsick Valuation and proportioning of a Punishment.
XXXIV.That a Punishment is to be alleviated out of Charity, unless a greater Charity opposes it.XXXIV. But that which induces Men to mitigate the Severity which the just Proportion between the Crime and the Punishment allows of, is their Charity for the Criminal, unless a juster Motive of Charity to many Persons incline them to the contrary for some intrinsick Reason, which is sometimes the great Danger they are in from the Offender, but commonly the Necessity of making him a publick Example. Which Necessity usually arises when there are some general Encouragements to Vice, that cannot be repressed without sharp Remedies. Now the chief Encouragements are Custom and the easiness of committing the Offence.
XXXV.How the easiness of offending inclines to Punishment, and how the Custom of offending either excites us to punish, or dissuades us from punishing.XXXV. Upon account of this easiness the Law of GOD given to the Jews punishes Theft1 committed in a Field more severely than that which is committed in a House, Exod. xxii. 1. 7. 9.2Justin says of the Scythians, No Crime with them was more severely punished than Theft; for to them who had neither Houses nor Inclosures for their Herds and Flocks, what Security could there be, if stealing was allowed of ? Like to which is that in Aristotle’s Problems, Sect. XXIX. The Law-giver3considering that it was impossible for the Owners to have always an Eye on their Goods4in those Places, appointed them the Law for a Keeper. The Custom of any Fact, tho’ it somewhat takes off from the Crime (it was not without Reason, says Pliny,5that he pardoned him for a Fact which was indeed forbidden, but yet commonly committed) yet in some Respect it requires a more rigorous Punishment, because as Saturninus6 says, When Offenders grow too numerous, there is a Ne-<434>cessity for exemplary Punishment. But in passing of Judgments Clemency, in making of Laws Severity, ought to take Place, due Regard being still had to the Time when Laws are made or Judgments are passed. For the Benefit arising from Punishment is chiefly regarded, in regulating the Manner how a certain Sort of Crime is to be punished in general, and this the Laws do: Whereas in examining in what Manner each Criminal in particular is to be punished, one considers rather how great his Crime is.
XXXVI.The use of Clemency in mitigating Punishments.XXXVI. 1. Now what we said, that Where there are not great and urgent Reasons to the contrary, we ought to be ready rather to mitigate the Punishment, makes up the other Part of Clemency. For the former consisted, we told you, in the absolute Remission of the Punishment: Because it is difficult to find the just Balance, says Seneca,atherefore let the Inequality be on the milder Side. And in another Place,bIf it can be done safely, let the Punishment be quite remitted; if not, let it be moderated. And in Diodorus Siculus, an Aegyptian King is1 commended for inflicting2less Punishments than the Crimes deserved. Capitolinusc says of Marcus Antoninus, That his Custom was to award to all Crimes a less Punishment than what by the Laws they used to be punished with. Isaeus the Orator said, that Laws ought to be made severe, but3 that the Punishments should be gentler than the Laws require. And it is the Advice of4Isocrates, That Punishments be inflicted below the Degree of the Offence.
2.5 St. Austin gives Marcellinus, in the Execution of his Office, this Counsel: I am in a great Concern, lest perhaps your Highness should think that Criminals are to be punished according to the utmost Severity of the Law, that their Sufferings may be equal to their Crimes: And therefore in this Letter of mine I beseech you, by the Faith you profess in CHRIST, and by the Mercy of our Lord himself, that you do it not, nor permit it to be done. The same Author has likewise this Passage;6So terrible is the Threatning of Divine Judgment, even to the very Revengers of Crimes themselves, and who are not moved to this Office by any Provocation of their own, but are only the Executors of the Laws, and the Revengers not of their own, but other Mens Injuries, as Judges ought to be, to the End they might think that the Mercy of GOD is necessary on account of their own Sins, and that they might not look upon it as a Breach of their Duty, if they shew any Clemency to those over whom they have the Power of Life and Death.<435>
XXXVII.What the Hebrews and the Romans had regard to in Punishments, may be referred to the Places above mentioned.XXXVII. We hope we have omitted nothing that is of any great Moment towards the understanding this difficult and obscure Subject: For the four Things which1Maimonides says are chiefly regarded in Punishments, viz. the Greatness of the Offence, that is, of the Damage, the Frequency of such Offences, the Vehemency of the Desire, and the Easiness of committing the Offence, we have referred to their proper Places; as also the seven Things about Punishments considered by2Saturninus, tho’ very confusedly. For as to what relates to the Person of the Offender, that Consideration principally belongs to the Capacity of Judging, and as to the Person who suffers the Injury, this conduces somewhat towards estimating the Greatness of the Fault.3 The Place where the Injury was done, frequently adds some peculiar Aggravation to the Crime, or is considered under the Facility of committing it. The Circumstance of Time, as it is long or short, so it increases or diminishes the Freedom of Judging, and sometimes helps to shew the Depravity of the Mind. The Quality of the Offence is partly referred to the several Kinds of Desires, partly to the Reasons which ought to restrain a Man from4 the Crime. The Event, to the Reasons restraining. And the Quantity5 to the Nature and Degree of the Desires.
XXXVIII.Of War made for the exacting of Punishment.XXXVIII. That the Desire of inflicting Punishment is often the Occasion of War, we have shewn above, and we have many Instances of it in History. And this Reason of War is generally joined with that of Reparation of Damage, since the same Fact is generally both vitious in itself, and injurious to others; from which two Qualities there arise two different Obligations. Now that Wars are not to be entered into upon the Account of every Offence, is sufficiently clear; for indeed, even the Laws themselves do not exercise their vindictive Power upon all Offences, tho’ they may safely do it, as hurting none thereby but those who are guilty. Sopater rightly observes, what we have likewise already mentioned, that smaller and common Offences ought to be passed by, not punished.
XXXIX.Whether a War on the Account of Offences just begun is lawful; explained by a Distinction.XXXIX. 1. But what was said by1Cato, in his Oration for the Rhodians, that it is not reasonable a Man should suffer Punishment upon Account of having had an Intention to do ill, was indeed, in that particular Case, not observed amiss, because they could produce no Decree of the Rhodians, but had only some little Conjectures of a wavering and uncertain Design, yet this must not be received as a general Maxim. For the Intention of the Will, when it has proceeded to some external Actions, (internal Actions being, as we have said before, free from human Punishment) is usually a sufficient Ground for Punishment. Crimes, says2Seneca the Father, in his Controversies, are punished, even tho’ not put in Execution. And, He who intended to do an Injury, has done it already,3 says the other Seneca. Not only the actual Accomplishment, but the very Contriving of Mischief, is punished by the Laws, said Cicero,4 in his Defence of Milo. It was Periander’s Saying,<436>5Punish not only Offenders, but such as design to offend. So the Romans thought they had just Occasion for entring into a War against King Perseus, unless he would make Satisfaction for6 designing Hostilities against them, as having for that Purpose provided himself with Arms, Men, and a Fleet. And this very Thing is rightly observed in Livy,7 in the Speech of the Rhodians; no Customs or Laws of any State in the World punish a Man with Death, if he only intended the Destruction of his Enemy, without having done any Thing towards the Execution of it.
2. But neither is every bad Intention, tho’ already declared by some Act, a sufficient Ground for Punishment: For if all Offences, tho’ actually committed, are not punished, much less ought those to be punnished that are only projected, and commenced. What Cicero says, does in many Cases take Place,8I do not know whether it be not sufficient for him who gave the Provocation to repent of his Injury. In the Jewish Law there is no particular Punishment appointed for Offences that relate to Religion, or tend to take away a Man’s Life, when the Execution is not full and compleat; unless as to the latter, when9 an Attempt is made in a judicial Way; because it is easy to mistake in divine Matters, as being Things that do not fall under our Senses; and a sudden Transport of Anger may have a reasonable Plea for Pardon.
3. But yet for any one to attempt the Invasion of the Marriage Bed, when there was so great a Choice of Matches; or in such an equal Division of Possessions, to go about by fraudulent Methods to enrich one’s Self at another’s Loss, was a Thing by no Means to be suffered. For that Law in the Decalogue, Thou shalt not covet, (tho’, if you look to the Scope of the Law, that is, the Τὸ πνευματικὸν, or Spirituality of it, it is of larger Signification,10 for the Law requires a perfect Purity of Mind in all) yet as to what relates to the external Precept, the ἐντολὴν σαρκικὴν, or Carnal Command, it refers to such Motions of the Mind, as are discovered by open Acts, as is very evident from the Evangelist St. Mark, x. 19. who expresses that same Precept by the Words, Μὴ ἀποστερήσης, Defraud not, and that, when he had before mentioned, Μὴ κλέψης, Do not steal: And in this Sense the Hebrew Word, and the Greek answering to it, are found both in Mich. ii. 2. and several other Passages.
4. And therefore Offences that are only begun, are not to be revenged by Arms, unless in a Case of great Concern, or that the Affair proceeded so far, that the Action has been already attended with some mischievous Consequences, tho’ not those, as yet, which were intended, or at least with some extreme Hazard; that so it may appear, that we have Recourse to this Method only, either to prevent some future Mischief, (of which we have treated above, on the Head Of Self-Defence) or to vindicate a wounded Honour, or to obviate a pernicious Example.
XL.Whether it be lawful for Kings and States to make War upon such as violate the Law of Nature, tho’ they have committed nothing against them, or their Subjects; this explained, and the Opinion that would have Jurisdiction naturally necessary towards Punishing rejected.XL. 1. We must also know, that Kings, and those who are invested with a Power equal to that of Kings, have a Right to exact Punishments, not only for Injuries committed against themselves, or their Subjects, but likewise, for those which do not peculiarly concern them, but which are, in any Persons whatsoever, grievous Violations of the Law of Nature or Nations. For the Liberty of consulting the Benefit of human Society, by Punishments, which at first, as we have said, was in every particular Person, does now, since Civil Societies, and Courts of Justice, have been instituted, reside in those who are possessed of the supreme<437> Power, and that properly, not as they have an Authority over others, but as they are in Subjection to none. For, as for others, their Subjection has taken from them this Right. Nay, it is so much more honourable, to revenge other Peoples Injuries rather than their own, by as much as it is more to be feared, lest out of a Sense of their own Sufferings, they either exceed the just Measure of Punishment, or, at least, prosecute their Revenge with Malice.
2. And upon this Account it is, that Hercules is so highly extolled by the Antients, for having freed the Earth1 of Antaeus, Busiris, Diomedes, and such like Tyrants, Whose Countries, says Senecaa of him, he passed over, not with an ambitious Design of gaining them for himself, but for the Sake of vindicating the Cause of the Oppressed; being, as2Lysias shews, the Author of great Good to Mankind, by punishing the Unjust.3Diodorus Siculus speaks thus of him, He made States happy, by purging out of them unjust Men, and insolent Princes. In another Place he says,bHe travelled over the World to punish the Wickedness of Men. Of the same Person is that of Dion Prusaeensis, He punished bad Men, and either destroyed the Dominions of proud Tyrants, or transferred them upon others. And for the general Care he took of all Mankind, Aristides, in his Panathenaic Oration, says, he deserved to be taken into the Number of the Gods. In like Manner is4Theseus commended for having destroyed the Robbers Sciron, Sinis, and Procustes, and is therefore introduced by Euripides, speaking thus of himself, In his Suppliants,5
Valerius Maximus says of him,cEvery Thing that was monstrous or wicked, he subdued by the Bravery of his Mind, or the Strength of his Body.
3. For the same Reason we make no Doubt, but War may be justly undertaken against those who are inhuman to their Parents, as were the6Sogdians, before Alexander persuaded them to renounce their Brutality;7 against those8 who eat human Flesh, from which Custom vii. De Beneficiis.9Hercules compelled the antient Gauls to desist,<438> as Diodorus relates; and against those who practise Piracy. If a Man, says Seneca, does not infest my Country, but is only vexatious to his own; tho’ he is at a Distance from my Nation, yet if he disturb his own; so great a Depravity of Mind has cut him off from human Society, and makes him to me, and all the World, a Foe. And St. Augustin,dSuch abominable Crimes do they allow of in their publick Decrees, that if any City upon Earth should injoin, or had in joined, the like, it ought to have been, by the general Voice of Mankind, laid in Ruins. For of such Barbarians, and rather Beasts than Men, may be fitly said what10Aristotle spoke out of Prejudice concerning the Persians, who were indeed nothing worse than the Greeks; that War against such is natural; and as Isocrates said in his Panathenaic,11 the justest War is that which is undertaken against wild rapacious Beasts, and next to it is that against Men who are like Beasts.
4. And so far we follow the Opinion of Innocentius, and others, who hold that War is lawful against those12 who offend against Nature; which is contrary to the Opinion of Victoria, Vasquez, Azorius, Molina, and others, who seem to require, towards making a War just, that he who undertakes it be injured in himself, or in his State, or that he has some Jurisdiction over the Person against whom the War is made. For they assert, that the Power of Punishing is properly an Effect of Civil Jurisdiction; whereas our Opinion is, that it proceeds from the Law of Nature, concerning which Point we said something in the Beginning of the first Book.e And certainly, if the Opinion of those from whom we differ be admitted, the Consequence is, that one Enemy shall have no Right to punish another, even13 after the War is begun, upon the Account of any Cause that has no Rela-<439>tion to Punishment, which yet is a Right that most allow of, and the Practice of all Nations confirms, and that not only after the Enemy is subdued, but likewise during the War; not on Account of any Civil Jurisdiction, but of that natural Right which was both before the Foundation of Governments, and even is now still in Force in those Places, where Men live in Tribes or Families, and are not incorporated into States.
XLI.The Law of Nature is to be distinguished from civil Customs generally received.XLI. But here some Precautions are to be observed; the first of which is, that Civil Customs, tho’ received among many Nations, not without good Reason, be not mistaken for the Law of Nature; much of which Kind were those which caused the Difference between the Persians and Greeks, to which may be properly referred what is said by Plutarch,1They disguise their Ambition and Covetousness, under a Pretence of civilizing barbarous Nations.
XLII.And from the voluntary divine Law not known to all Nations.XLII. The second is, that among Things forbidden by Nature, we do not inconsiderately reckon those, of which we have not sufficient Evidence that they are such, but that are rather repugnant to some positive Law of GOD; under which Class, perhaps, may be ranked1 the Sin of single Fornication, some of the Familiarities that are called Incest, and likewise2 Usury.
XLIII.What is manifest in the Law of Nature is to be distinguished from that which is not so.XLIII. 1. The third is, that we carefully distinguish between general Principles, such as this, That we ought to live honestly, that is, according to right Reason, as also some that come very near to them, and are so manifest, that they can admit of no Doubt; as for Instance, that We ought not to take that which belongs to another: And between the Inferences drawn from them, of which some are obvious enough, as, that1Admitting Matrimony, Adultery ought not to be allowed of; others again are more difficult to be discovered, as, that That Revenge is criminal which has nothing in View but another’s Sufferings. It is here almost as it is in Mathematicks, where some Things are first Notions, or next to first Notions; some are Demonstrations, which are immediately both understood and assented to, some again are true, but not evident to all.
2. As therefore, with Respect to the Civil Laws, the Ignorance of them, or of their true Meaninga excuses a Fact, so, with Respect to the Laws of Nature, it is reasonable2 that they should be excused, who either through Weakness of their Judgment, or their ill Education, violate those Laws. For as the Ignorance of the Law, if it is invincible, entirely exculpates one, so when attended even with<440> Negligence, it lessens the Fault. And therefore those Barbarians who offend in these Matters, by Reason of their bad Education, Aristotle compares3 to such as have their Appetites vitiated by some Distemper. Plutarch says, There are some Distempers of the Mind that put a Man out of his natural Situation.
3. Lastly, This must be added, which I shall now mention once for all, that those Wars which are undertaken for the exacting of Punishment, are suspected to be unjust, unless the Crimes be very heinous and manifest, or there be, at the same Time, a Concurrence of some other Cause. Perhaps it was not without Truth, that Mithridates said of the Romans,4It was not the Crimes of Princes, but their Power and Majesty that they prosecuted.
XLIV.Whether War may be made for Offences against GOD only.XLIV. 1. The Order of our Discourse has now brought us to consider, those Offences that are committed against GOD. For the Question is, Whether for the revenging of these a War may be undertaken? which Covarruvias has treated of at large. But he, following others, thinks there is no Power to punish, where there is not a Jurisdiction, properly so called; which Opinion we rejected before. Whence it follows, that, as in Ecclesiastical Affairs, Bishops are said, in some Measure, Τὴν καθολικὴν πεπιστεν̂σθαι, that is,1To have taken upon themselves the Care of the universal Church: So Kings, besides the Charge of their particular Dominions, have upon them the Care of human Society in general. The chief Argument for the Opinion that such Wars are unjust, is this, that GOD alone is sufficient to revenge the Crimes committed against himself, whence the Sayings,2The Injuries of the Gods are left to the Care of the Gods; and3Perjury has GOD for its Revenger.
2. But certainly the same may be said of other Offences. For, no Doubt of it, GOD is sufficient to punish them likewise, and yet these are justly punished by Men, as there is none who denies. Some will further insist upon this Argument, and all edge, that other Offences are punished by Men, as other Men are thereby hurt or endangered; in reply to which we must observe, that not only those Offences are punished by Men which directly hurt others, but those too which do it indirectly and consequentially, as Self-Murder; for Instance, Bestiality, and some others.
3. Now Religion, tho’ of itself it tends to procure us the Favour of GOD, yet it has likewise its peculiar Effects, and those very great, upon human Society. Nor is it undeservedly called, by4Plato, The Bulwark of Power, and The Bond of Laws and good Manners.5Plutarch, in like Manner, calls it The Cement of all Society, and the Foundation of the legislative Power. And, according to Philo,6The Worship of one GOD is the most effectual Charm, and indissoluble Tie of<441> Kindness and Friendship. Irreligion is attended with all the contrary Effects,
Every8 Error, says Plutarch, in Matters of Religion, is pernicious, and if accompanied with Passion, it is so in the highest Degree. In Jamblichus we find this Sentence of Pythagoras, The Knowledge of GOD is Virtue, and Wisdom, and perfect Happiness. Hence Chrysippus called9 Law the Queen over all Affairs divine and human; and, according to Aristotle,a among publick Cares, the first and chiefest is that which concerns divine Things. So the Romans defined10Jurisprudence to be The Knowledge of Things divine and human: And Philo makes the whole Business of kingly Government to consist, In11taking Care of private, publick, and sacred Things.
4. Now all this must be considered as holding true, not in one State only, as when Cyrus says, in Xenophon,12 that Subjects, the more they fear GOD, the more loyal and obedient they will be, but likewise in the general Society of Mankind.13Take away Piety, saith Cicero, and you destroy, at the same Time, Fidelity, human Society, and the most excellent Virtue, Justice. And in another Place,14To know what is the Deity, what the Counsel, what the Will of the supreme Governor and Lord of the World, is the Foundation of Justice. And of this, one evident Argument is, that Epicurus, after he had taken away divine Providence,15 left nothing to Justice but an empty Name, to which, as he allowed no other Original but that of the Agreement of Men, so neither would he have it continue longer than it made for the common Benefit; and thought, that the only Reason that ought to restrain Men from injuring others, should be the Fear of Punishment. His very Words to this Purpose, which are very remarkable, are extant in16Diogenes Laertius.
5. Aristotle likewise observed this Connection, when in his fifth De Repub. Ch. xi. speaking of a King, he says,17For a People will less fear ill Treatment from a Prince whom they believe to be religious. And Galen, (in his ninth Book, De placitis Hippocratis & Platonis) after he had said, that there are many Questions concerning the World and the Divine Nature, which are of no Use in Morality, owns that the Enquiry about Providence is of the greatest Use toward the Practice both of private and publick Virtues. The same was likewise observed by Homer, who<442> in the sixth and ninth Book of his Odysses, to savage and unjust Men, opposes those who have Sentiments of Religion. So Justinb from Trogus Pompeius commends the Justice of the antient Jews, as being mixt with Religion; as does also Strabo,c saying, They were People who were really just and religious. If it is Piety, says Lactantius,dto know GOD, the Sum of which Knowledge is, that you worship him, he must be altogether ignorant of Justice, who does not hold to the Religion of GOD: For how can he know Justice, who is ignorant of the Source from whence it is derived? And the same Author elsewhere,eJustice properly belongs to Religion.
6. Now the Usefulness of Religion is even greater in that great Society of Mankind in general, than in any particular Civil Society; for in a Civil State it is partly supplied by the Laws, and the easy Execution of the Laws; whereas, on the contrary, in the universal Society of Mankind, the Execution of Right is very difficult, as being to be performed no other Way than by Force of Arms, and the Laws are very few, which themselves, moreover, derive their Force chiefly from the Fear of a Deity; from whence those who offend against the Law of Nations, are every where said to violate the Law of GOD. It was not amiss therefore, that the Emperors asserted, that18The Corruption of Religion was an Injury to all the World.
XLV.Which are the most common Notions of a GOD, and how they are contained in the first Precepts of the Decalogue.XLV. 1. To take a closer View of the whole Matter, we must observe, that the true Religion, which has been common to all Ages, is built upon four fundamental Principles; of which the first is, that There is a GOD, and but one GOD only. The second, that GOD is not any of those Things we see, but something more sublime than them. The third, that GOD takes Care of human Affairs, and judges them with the strictest Equity. The fourth, that The same GOD is the Creator of all Things but himself. These four are expressed in so many Commandments of the Decalogue.
2. For in the first is plainly delivered the Unity of GOD; in the second, his invisible Nature, by Reason of which any Image of him is forbid to be made, Deut. iv. 12. as1Antisthenes also said, He is not seen with the Eyes, there is nothing to which he bears any Resemblance, so that no Man can know him by an Image. And2Philo, It is a profane Thing to represent the Image of him that is invisible, by any Picture or Statue. Diodorus Siculusa speaking of Moses, says,bHe made no Image of the Divinity, because he did not believe GOD to be of human Shape. The Jews, says Tacitus,cconceive GOD in their Minds only, and him as but one; esteeming them profane who frame Images of Gods, out of perishable Matter, after the Likeness of Men. And Plutarch assigns this Reason for Numa’s removing Images out of Temples, Because GOD cannot be conceived but by the Mind only. In the third Commandment is implied, GOD’s Knowledge and Care of the Affairs, and even of the Thoughts of Men. For this is the Foundation of an Oath, in which we call GOD to witness what passes in our Hearts, and at the same Time submit to his Vengeance; whereby we likewise acknowledge his Justice and Power. In the<443> fourth is delivered the Origin of the whole World, from GOD its Author,3 in Memory of which the Sabbath was instituted of old, and that indeed to be observed with a peculiar Sanctity; above all other Rites. For the Breach of any other ceremonial Observations was, by the Law, left to be punished at the Discretion of the Judge: But of this the Punishment was capital; because the Violation of the Sabbath did, from the very Manner of its Institution, imply a Denial of GOD’s Creation of the World. Now the very Notion of GOD’s having created the World, gives a tacit Indication of his Goodness, and Wisdom, and Eternity, and Power.
3. And from these speculative Notions follow the practical, as, that GOD is to be honoured, loved, worshipped, and obeyed. Therefore, said Aristotle,4 he who denies that GOD is to be honoured, or his Parents loved, must be reduced to better Reason, not by Argument but by Punishment.5 And again, that in different Places different Notions, as to what is Virtue and Honesty, prevail, but in this of honouring GOD the Agreement is universal. Now the Truth of these speculative Notions, as we called them, may, no Doubt, be demonstrated by Arguments drawn from Nature, amongst which this is one of the strongest, That it is evident to Sense that some Things are made, or have a Beginning; now the Things that are made do necessarily lead us to acknowledge something that was never made. But because this Reason, and others like it, are not understood by all, it is sufficient that in all Ages, and through all Countries, a very few excepted, these Notions have been entertained, both by those who were too gross of Understanding to be conceived willing to impose upon others, and by those who were too wise to be imposed upon themselves:6 Which general Consent, in so great a Variety, both of Laws and Opinions about other Matters, sufficiently shews that this Tradition has been derived to us from the very first Men in the World, and has never been solidly confuted, which even of itself is enough to make it be believed.
4. Agreeable to what we have now advanced, concerning GOD, is the Testimony of Dion Prusaeensis, when he says, that The Persuasion of a GOD is partly<444> born with us, as being gained by Arguments of our own Reason; and partly7acquired by Tradition.8Plutarch calls the same, An antient Opinion, which, for its Certainty, is equal to any Argument that can be brought or imagined, it being the common Foundation of Piety. And9Aristotle says, All Men are persuaded that there are Gods.10Plato says something to the same Purpose, in his tenth Book of Laws.
XLVI.That those who first violate these Notions are punishable.XLVI. 1. And therefore those Men are not entirely blameless, who, tho’ they are too stupid to find out, or comprehend, the Arguments that serve to demonstrate these Notions, do yet reject them, since these Truths lead to Virtue; and besides, the contrary Opinion has not Arguments to support it. But because we are here discoursing of Punishments, and those such Punishments as relate to Men, we must distinguish between the Notions themselves, and the Manner of rejecting them. That there is a Deity, (one or more I shall not now consider) and that this Deity has the Care of human Affairs, are Notions universally received, and are absolutely necessary to the Essence of any Religion, whether true or false. He that cometh to GOD, (that is, he who has any Religion, for Religion, by the Hebrews, is termed A Coming to GOD) must believe that he is, and that he is a Rewarder of them that diligently seek him. Heb. xi. 6.
2. Thus1Cicero too, There still are, and always have been, some Philosophers, who thought the Gods had no Regard at all to human Affairs; whose Opinion, if it were true, what Piety could there be, what Holiness, what Religion? For the Reason why we ought to practise these Virtues, with a holy and pure Heart towards the immortal Gods, is because they observe them, and have done good to Mankind. The principal Part of Religion, says2Epictetus, consists in having right Conceptions of the Gods, as of self-existent Beings, that superintend and dispose of all Things with Wisdom and Justice.3Aelian remarks, that none, even of People the most unpolite and uncivilized, did ever sink so low as to entertain and profess Atheism, but that a Divinity, and a Providence, were allowed and affirmed by all.4Plutarch, in his Book of Common Ideas, declares, that If we take away a Providence, we quite destroy the Notion of a GOD. For GOD must be conceived and understood to be, not only an immortal and an happy, but also an affectionate, a careful, and a beneficent Being. Nor, as Lactantius,acan there any Honour be due to GOD, if he does nothing for him who worships him; nor any Fear, if he is not angry with him who worships him not. And indeed it is all one, if we regard the moral Effect of such Notions, whether we deny a GOD, or deny he is concerned in the Management of human Affairs.
3. Wherefore even out of meer Necessity, as it were, that these two Notions have for so many Ages been preserved5 among all the People of the known World. And from hence Pomponius6 ascribes Religion to the Law of Nations. And Socrates, in7Xenophon, says, that To worship the Gods is a Law and Maxim that<445> every where prevails. Which8Cicero, both in his first Book Of the Nature of the Gods, and in his second Of Invention, does also assert. And Dion of Prusa, Oration xii. calls it An Opinion common to all Mankind, both to Greeks and to Barbarians, necessary for, and naturally implanted in all who have the Use of Reason. And a little farther he stiles it, A powerful and eternal Persuasion, which at all Times, and in all Places, was begun, and is continued. Xenophon,b in his Feast, says that both Greeks and Barbarians think and allow, that all Things, whether present or future, are known to the Gods.
4. It is my Judgment therefore, that those who first9 attempt to destroy these Notions, ought, on the Account of human Society in general, which they thus, without any just Grounds, injure,10 to be restrained, as in all well-governed Communities has been usual: It is what we read was practised towards11Diagoras of Melos, and towards the12Epicureans, who were expelled and banished all Cities that had any Regularity and good Manners amongst them. Himerius, an antient Rhetorician, in his Pleadings against Epicurus,13Do you punish me then for my Opinion? No; but for your Impiety: You may propose your Sentiments, but you must not be impious.
XLVII.But not others which is shewn by an Argument drawn from the Mosaick Law.XLVII. 1. Other general Notions, as that There is but one GOD, that No Object of our Sight is GOD, not the World, not the Heavens, not the Sun, nor the Air; that The World is not eternal, nor its compound Matter, but that it was created by GOD, have not the same Degrees of Evidence as the former, and therefore the Knowledge of them in some Nations, through Length of Time, we find effaced, and almost extinguished; to this did contribute the Remisness of the Laws, which made but little Provision for them, because not deemed so absolutely necessary, but that without them some Sort of Religion might be kept up.
2. The Law of GOD, tho’ delivered to a Nation, which by the concurrent Proof of Prophecies and Miracles, either seen or transmitted to them by in contested Authority, was infallibly assured of the Truth of these Notions, tho’ it utterly detested the Adoration of false Gods, did not sentence to Death every Offender in that Case, but such only whose Crime was attended with some particular Circumstance; as, for Instance, one who was the Ringleader and Chief in seducing others, Deut. xii. 1, &c. 6, &c. or a City that began to1 serve Gods unknown before, Deut. xiii. 12, &c. or him who paid divine Honour to any of the Host of Heaven,2 hereby cancelling the whole Law, and entirely relinquishing the Wor-<446>ship of the true GOD, Deut. xvii. 2. (which by St. Paul is interpreted to be, Worshipping the Creature, and not the Creator: For παρὰ, as well in this as other Places, is to be understood in an exclusive Sense, which from Job xxxi. 26, 27. appears to have been a Crime liable to Punishment for some Time, even among the Descendants of Esau;) or lastly, him who sacrificed his Seed to Moloch, that is, to Saturn, Lev. xx. 2.
3. Nor did GOD himself think the Canaanites, and their neighbouring Nations, tho’ long addicted to vile Superstitions, ripe for Punishment, till by an accumulation of other Crimes they had enhanced their Guilt, Gen. xv. 16. And in Reference to the Worship of false Gods among other Gentiles, we read that He winked at the Times of their Ignorance, Acts xvii. 30. It was a true Observation of Philo,3 that every Man thinks his own Religion the best; in as much as not by the Test of Reason, but Affection, he forms a Judgment of it. Parallel to which is that of Cicero, that no Philosopher approves of any Discipline but that of his own Sect; who likewise adds, that it is usual with Men to be immoveably prejudiced in Favour of some Tenets, before4 they are in a Capacity of distinguishing betwixt Truth and Falshood.
4. As then they are excusable, and certainly do not deserve human Punishment, who having received no revealed Law, worship the Powers and Qualities of the Stars, or other natural Beings, or Spirits, either in Images, Animals, or any other Objects, or even the departed Souls of Men eminent for their Virtues, and useful in their Generations, or other spiritual Substances, especially if they were not themselves the Inventers of this Worship,5 and therefore do not forsake the Service of the true GOD: So, on the other Hand, those are not to be looked upon as People pardonably ignorant and mistaken, but as impious and perversly wicked,6 who pay divine Honours to evil Spirits under the Notion of such, to the Names of Vices, or to Men infamous for flagitious Lives.
5. Of the same Stamp are they likewise, who honour their false Deities with human Sacrifices; to a Disuse of this detestable Rite the Carthaginians were compelled by7Darius the Persian King, and Gelo8 King of Syracuse, which Action of theirs gained them much Credit and Apluse plause. We have an Account in Plutarch,9 that the Romans thought to have punished some barbarous People for<447> making Victims of Men, but when, to extenuate their Guilt, they urged the Antiquity of this Custom, they were exempted from Punishment, but strictly enjoined to discontinue it for the future.
XLVIII.That War cannot be justly made upon those who refuse to embrace the Christian Religion.XLVIII. 1. But how shall we determine of that War which is brought against a Nation, for no other Reason but because they reject the Laws of Christianity, when proposed unto them. I shall not here stand to enquire whether it be such, or after such a Manner propounded, as it ought: But taking them both for granted, there are two Things which occur observable. The first is, that the Truth of the Christian Religion, in those Particulars which are additional to natural and primitive Religion, cannot be evidenced by mere natural Arguments, but depends upon the History we have of CHRIST’s Resurrection, and the Miracles performed by him and his Apostles, which have been confirmed by unexceptionable Testimonies, but many Ages since, so that the Question now is of Matters of Fact, and those of a very antient Date; for which Reason1 this Doctrine cannot so easily gain Belief, and procure Mens Assent upon the first Promulgation of it, without the inward Assistance of GOD’s Grace, in the Distribution of which his Methods are unsearchable; when he affords it plentifully, Merit in us is not the Motive, and when he withholds it, or dispenses it but sparingly, it is for Reasons not unjust, but concealed from Men, and therefore not punishable by any human Judicature. To this Effect is that Canon of the Council of Toledo,2 which forbids the Use of compulsive Means, in gaining Converts to Christianity, for On whom he will have Mercy he will have Mercy; and whom he will he hardeneth. It being the Practice of the inspired Writers to ascribe those Effects, whereof human Reason cannot discover the Cause, to the Divine Will. []
2. The second Thing to be considered is, that it was not the Intention of the Author of Christianity, that any should be4 forced by temporal Punishments, or be awed by the Dread of them, to a Profession of his Laws, Rom. viii. 15. Heb. ii. 15. John vi. 67. Luke ix. 54, 55. Matt. xiii. 29. In which Sense Tertullian is doubtless in the Right, when he says,5 that The Christian Religion avenges not it self by the Help of the Sword. In an old Book, entitled The Constitutions of Clement,6 it is said of CHRIST, that He indulged every Man in the Freedom of his Will; not inflicting present Death as a Punishment for their Disobedience to his Laws, but bringing them to a strict Examination in the World to come. To the same Purpose St. Athanasius says,7 That Our LORD, using no Force, but allowing<448> every one the Liberty of his Choice, was contented to address himself to all, in no other Terms than these, If any Man will come after me; and to his Apostles,8 Will ye also go away? Thereby disclaiming all Violence and Compulsion; as St.9Chrysostom interprets this Passage of St. John.
3. The seeming Repugnancy that is in the Parable of the great Supper to this, because we read that some were ordered to be Compelled to come in, Luke xiv. 23. will be easily removed, if we consider, that, as in the Parable, so in the moral Explication of it, the Word Compel10 signifies no more than Earnestly to invite; in this Sense do we find another Word of the same Signification, in Luke xxiv. 29. and nothing different is that in Matt. xiv. 22. Mark vi. 45. Gal. ii. 14. Procopius, in his secret History, informs us, that11 the Proceedings of Justinian were by wise Men censured, because in proselyting the Samaritans to Christianity, he made use of external Force and Menaces. And adds, that from thence several Inconveniencies arose, the Particulars of which may be seen in his Narrative.
XLIX.War may justly be made against those who persecute Christians, only for their being so.XLIX. 1. But they who punish Men, because they preach or profess Christianity, do, no Doubt of it, act against the Dictates of Reason; for the Christian Religion (considered untainted with Mixture, and in its primitive Purity) is so far from doing any Thing destructive to human Society, that in every Particular it tends to the Advantage of it. The Nature of it declares thus much, and those of a different Religion are forced to acknowledge the same. The Account given by Pliny1 of the Christians is, that Binding themselves by Oath, they had abjured the Commission of Theft and Robberies, and falsifying their Word. And of their Religion2Ammianus says, that Therein is nothing taught but what is agreeable to Justice and Clemency. And it was a common Saying,3Such a-one is a good Man, only he is a Christian. And as to the Objection that all Novelties, particularly Assemblies and Conventicles, are to be feared, it is of no Force; for those Tenets which encourage the Practice of all Virtues, especially that of Obedience to Government, tho’ before unheard of, leave not the least Room for Fear, nor ought the4 Assemblies of honest and in offensive People to be suspected, especially since they affect not any Privacy, unless compelled: What5Philo informs us to have been said by Au-<449>gustus, of the Jewish Synagogues, is more truly and properly applicable to the Christian Congregations, That they were not Meetings for Revellings, or seditious Cabals, but pure Seminaries of Virtue.
2. They, therefore, who persecute Christians, as such, do make themselves justly obnoxious to Punishment. This is the Opinion of Thomas Aquinas. (Summ. Theol. ii. 2. Quaest. 103.) It was for this Reason that6Constantine commenced a War against Licinius, and othera Emperors, against the Persians; which Wars however relate rather to an innocent self Defence, of which we shall treat hereafter, than to a Punishment properly so called.
L.But not against those who are mistaken in the Interpretation of the Divine Law; this illustrated by Authorities and Examples.L. 1. But as for those who use professed Christians with Rigour, because they are doubtful, or erroneous as to some Points either not delivered in Sacred Writ, or not so clearly but to be capable of various Acceptations, and which have been differently interpreted by the1 primitive Christians they are undoubtedly very unjust; which is evident, both from what has been already said, and from the standing Practice of the Jews, who, tho’ their Law had for its Barrier temporal Punishments, did not inflict any upon the Sadducees, for denying the Resurrection of the Dead, because (tho’ infallibly true) it was not directly and explicitly asserted in their Law; but obscurely, under the dark Veil of Words or Types.
2. But suppose the Error be more palpable, and such as one may be easily convicted of before equitable Judges, from the holy Scriptures, and from the concurrent Opinions of the primitive Fathers; even in this Case it is requisite to consider how prevalent the Force of along standing Opinion is, and how much the Attachment every Man has to his own Sect, perverts his Judgment, and destroys the Freedom of it; an Evil, according to2Galen, more incurable than a Leprosy. Very much to this Purpose says3Origen, Ἐυχερεστερόν γε ἄνθρωπος, &c. That a Man with more Ease can remove any Habit, tho’ never so inveterate, than discard Notions that have been entertained a great While. Besides, to determine how criminal this is, it is requisite to be acquainted with the Degrees of Men’s Understanding, and other inward Dispositions of Mind, which it is impossible for Men to find out.
3. According to St. Austin’s Definition,4An Heretick is one5who, out of a Desire of any temporal Interest, chiefly of Glory, and of being reputed the Head of a Sect, is the Author, or Follower, of new and false Opinions. Salvian’s Judgment of the Arians is thus expressed,6They are Hereticks, but not wittingly: With Respect to us they are Hereticks, but not with Respect to themselves; for so unquestionably do<450> they think themselves Orthodox, that they load us with the infamous Imputation of being Hereticks: What therefore they are to us, that do we seem to them: We are well assured, that their Conceptions of the Divine Generation are too mean; inasmuch as they assert the Son to be subject to the Father. And they think that we derogate from the Honour due unto the Father, by putting the Son on an Equality with him. The Truth is maintained by us, but they fancy it is so by them. GOD’s Honour is advanced by us, but they imagine that their Belief is more conducive to it. They do not discharge their Duty, but in that very Omission do they place the chief Duty of Religion. In Reality they are impious, but in their own Thoughts truly pious. They are guilty of Error then,7but it is out of an honest Intention, from a Principle of Love, and not of Hatred, to GOD, since they believe that they honour and love the LORD. And that very Part of their Creed in which they are unorthodox, they look upon as the Perfection of their Love of GOD: And how they will be punished for their Errors at the Day of Judgment,8is a Secret to all but the Judge himself; but for the present, it is my Opinion that GOD does patiently bear with them, because he sees, that tho’ their Tenets be false, yet do they proceed from a pious Zeal.
4. As to the Manicheans let us hear St. Austin, who himself was for a considerable Time tainted with their Heresy.9Let them, says he, exert their Rage against you, who know not what Labour and Pains the Discovery of Truth costs, and with what Care and Circumspection Errors are avoided. Let them exert their Rage against you, who know not how rare and difficult it is to surmount the Phantoms of a gross Imagination, by the Calm of a pious Judgment. Let them exert their Rage, who are not sensible what Trouble there is in curing the Eye of the inward Man, so as to be able to look upon its Sun. Let them exert their Rage, who are ignorant how many bitter Sighs and Groans we must emit, before we can arrive at the least Portion of divine Knowledge. Finally, Let them exert their Rage, who themselves are not seduced by any such Error as it is your Unhappiness to be fallen into. But as for my own Part, I cannot be at all severe against you, being persuaded it is my Duty to bear with your Infirmities, and to allow you the same mild and gentle Usage as others did me, when I blindly maintained, and madly persisted in these very Errors my self.
5. St. Athanasius, in his Epistle to the Hermits, sharply exclaims10 against the Arians, because they were the first who introduced the Use of the secular Power<451> against Dissenters, endeavouring to bring over to their Opinion by Violence, Scourges, and Prisons, those whom they could not convince by Dint of Reason;11Which, as he says, shews that this Heresy is neither pious nor religious. Spoken, very probably, in Allusion to that of St. Paul,a Gal. iv. 29. As then he that was born of the Flesh, persecuted him that was born of the Spirit, even so it is now. To the same Effect does St. Hilary deliver his Sentiments, in his Speech to Constantius. And we have an Account of12 some Bishops in the antient Gaul, who incurred the Censure of the Church for procuring the Execution of the Priscillianists; and in the East a Council was censured, for consenting to the Burning of Bogomilus. It was a wise Saying of Plato, that13The only Punishment of one14under an Error, is to be better informed.<452>
LI.But justly against those who are impious towards such as they believe to be Gods.LI. 1. But1 to punish those, whose Deportment to the Objects which they esteem as Gods, is irreverent and irreligious, is more reasonable and just; and this, in Conjunction with others, was assigned a Cause of the Peloponnesian Wara between the Athenians and Lacedemonians, and of Philip King of Macedon’s Warb with the Phocians, whose Sacrilege2Justin represents to be such, that To have it expiated, the whole World should have united their Forces. St. Jerom, upon Daniel, Chap. v. says,3As long as the Vessels were kept in the Idol Temple at Babylon the LORD was not wroth, (for these Vessels they looked upon as dedicated to GOD, and applied them accordingly to Uses, in their mistaken Judgment, the best and most sacred) but immediately upon their polluting them with ordinary Uses, their Sacrilege was attended with a severe Punishment. And St. Austin thinks that GOD gave the Romans such great Dominions,4 because they had a Zeal for their Religion, tho’ a false one, and because (as Lactantius says)5 they applied themselves to the principal Duty of Man, if not by a true Practice, at least with a good Intention.
2. We have already taken Notice,c that whatever GOD we invoke in our Oaths, the Violation of them will be punished by the only true GOD,6Because, as Seneca says, we believe that we affront GOD, which Opinion of ours makes us justly liable to Punishment. In this Sense I take too that other Passage of Seneca,7The Violators of Religion are in different Places differently punished, but no where are suffered to go unpunished. And it is thus also that I understand Plato,d when he is for inflicting Death upon all who despise Religion.<453>
[1 ]Almost this Whole Chapter should be compared with the third of the eighth Book of Pufendorf, where the same Matter is treated of, and our Author’s Thoughts frequently explained or corrected; tho’ sometimes defended in the Notes.
[2. ]De exsilio, Tom. II. p. 601. Edit. Wech. The first Words of this Passage are taken Word for Word from Plato, De Legib. Lib. IV. p. 716. Tom. II. Edit. Steph.
[3. ]St. Irenaeus’s Expositor in his third Book, Chap. XIV. has set down his Words thus: And GOD, as a very antient Report goes having the beginning and the Means of all Things at his Disposal, brings them to a just Perfection, visiting them according to their respective Nature, always attended with Justice ready to punish those who presume to deviate from the Law the ALMIGHTY has given.Grotius.
[4. ]Agreeable to this is that of Belisarius in Procopius’s Vandal. I. Πρω̂τον δ’ ἂν τον̂, &c. Let it be the first Maxim of Justice to punish Murderers. Add here Agathias, Lib. V. where he speaks of Anatolius.Grotius.
[5. ]It is where he says “We ought to take particular Care not to offend; but when a Man has been guilty of some Crime, he ought immediately to hasten to Punishment as the Remedy for Vice,” p. 124. Edit. Needham. As that Commentator on Pythagoras follows Plato’s Notions, he uses the very Terms of the Philosopher, in Gorg. Tom. I. p. 478. In Relation to the Thing itself see Pufendorf in the Chapter that answers to this, § 9. Note 2.
[6. ]De Irâ Dei. Cap. XVII. Num. 6: Edit. Cellar.
[7. ]Retract. Lib. I. Cap. IX. De Lib. Arbitrio, Lib. III. Cap. XVIII.
[a ]See B. i. Ch. 1. § 8.
[1 ]Seneca, De Ira II. 6. He would be unjust to bear one and the same Resentment, when the Crimes are unequal.Tacitus, Annal. III. Tho’ his Crimes are beyond Measure flagrant, yet the Prince’s Moderation, and yours and your Ancestors Examples, will qualify the Punishments. There is a Difference between what is only vain, and what is downright wicked; what is only ill said, and what is ill done: There may such a Way be found to punish him, as shall neither give us any Check or Reproach for our Clemency on the one hand nor our Severity on the other.Ammianus, Lib. XXVIII. Praying that their Punishment might not be greater than their Offence. The Scholiast upon Horace, If great Punishments be laid out upon small Crimes, great Crimes must either remain unpunished, or some new Punishments must be invented for them. And Lex Wisigoth, Lib. XII. Tit. III. Cap. I. For some Laws, tho’ they take Notice of a great variety of Faults, are yet not so distinguishing in their Punishments of them, but several Crimes are obnoxious to one and the same Penalty only. Nor is the Punishment at all proportioned to the Trespass, since a greater or a less Crime ought not to be alike in their Sufferings: And especially when the LORD does in his Law expresly ordain, that the Number and Measure of Stripes shall be according to the Degree and Nature of the Offence. See below in this Chapter, § 28. and 32. and in B. III. Chap. XI. § 1. Grotius.
[2. ]Lib. I. Serm. III. Ver. 78, 79.
[3. ]Ibid. Ver. 117, 118.
[4. ]“It is highly requisite that the Laws should ordain Punishments in Proportion to the Offence, and by no Means inflict a Punishment much greater than what the Crime deserves.” Novell. CV.
[c ]Ut supra.
[5. ]A poor Man, for Example, however deserving soever he may be of Alms, has not, strictly speaking, a Right to demand it, unless in Case of extreme Necessity. But when he has received a Piece of Money, it is entirely his own and according to the Laws of expletive Justice; so that if any one, or even the Person who gave it him, attempts to take it from him, he is guilty of Injustice properly so called.
[6. ]For no Man demands Punishment to be inflicted on himself; on the contrary, every one avoids it as much as is in his Power.
[7. ]Not so, says the learned Gronovius. On the contrary, they consider the Criminal as a Debtor who is obliged to pay. For which Reason he who punishes, is said sumere, exigere, petere poenas, and the Person punished, dare, luere, pendere, solvere poenas. See our Author’s Note on Acts vii. 60. and some Passages by him quoted in the following Note. In Reality, this whole Dispute is intirely useless. It is sufficient that we own there is a natural Connection between the Crime and the Punishment, so that no Injustice is committed when a real Criminal is punished. Every one is at full Liberty to call this Act of Justice by what Name he pleases.
[8. ]Servius often makes this Remark: Upon the fourth Aeneid, for Instance, he says, For those who exceed the Measure of the Offence, do render themselves deserving of Punishment. And again, To condemn is to discharge a Man from his Debt: Hence the Expression of Damnabis tu quoque votis. And upon the tenth Aeneid, Luant peccata. Luant, that is, absolvant, Let them pay off their Crimes. And we say too, luo poenam, but Peccatum is much better here. For an Offence is discharged or paid off by its Punishment. For whoever stands obliged by his Crime, is, by his undergoing the Penalty, freed from the former Obligation. On the other Hand, Luo poenam is not to be understood as if the Penalty was paid. But however Custom and Authority have a Liberty to confound these Things, just as it is usual to put what precedes for what follows, or what follows for what precedes. And this is what you frequently meet with in the Language of the Sacred Writings. For, as Tertullian, De Oratione, says, A Debt in the Scriptures is the Figure of a Transgression, because the Person transgressing is thereby indebted to Justice, and Justice demands a Satisfaction of him. St. Chrysostom, in his Oration De terrae motu, in Tom. V. talking of that rich Man who is opposed to Lazarus, and explaining the Word ἀπέλαβες, received, a Word used in that Passage of the Gospel, has the following Observation, Ἐχρεωστον̂ντο ἀυτῷ τιμωρίαι, ἐχρεωστον̂ντο ἀυτῷ ὀδύναι. Punishments were owing him, Pains were owing him. And in his second De poenitentia, Τά ἁμαρτήματα εἰς ὀϕειλήματα ἀναγράϕεται, Sins are accounted Debts. St. Austin, III. De libero Arbitrio, And therefore, if he does not render what he owes by living well, he shall render it by suffering the Pain which he deserves; because in both these there sounds something of the Word Debt. For it might also be expressed thus, If he does not by his Actions pay what he owes, he shall by his Sufferings pay for it.Grotius.
[9. ]Thus, according to the Roman Law, the Seller, in Case of an Action of Recovery, is obliged to pay double the Sum he has received, if it appears that the Thing sold belonged to another, and the Purchaser is deprived of it by the true Owner; and this, tho’ no such express Stipulation was made in the Contract. Digest. Lib. XXI. Tit. I. De Evictionibus & duplae Stipulation. Leg. II. See Cujas on the same Title of the Code, Tom. IX. Opp. Edit. Fabrot. p. 1337, &c.
[10. ]Severus and Antoninus, in a Rescript to Asclepiades, concerning a Fine. Digest. Lib. XLIX. Tit. XIV. De Jure Fisci, Leg. XXXIV.
[11. ]Philo, at the End of his first Book, De vita Mosis, Ἀυτοὶ γὰρ τοὶ σπέυδοντες ἁμαρτάνειν, σπέυδετε καὶ πρὸς τιμωρίας, For while you make haste to Sin, you are hurrying to Punishment.Grotius.
[12. ]Cod. Lib. IX. Tit. VIII. Ad Leg. Jul. Majest. Leg. VIII.
[13. ]Annal. Lib. XII. Cap. LIII. Num. 1. The Words of Tacitus, as they stand in the common Editions, are, Inter quae refertur ad Patres de poenâ foeminarum, quae servis conjungerentur; statuiturque, ut ignaro Domino ad id prolapsa in servitutem sui consensisset, & qui nati essent pro libertis haberentur. That is, The Senate was consulted, concerning the Punishment to be inflicted on Women who should lie with Slaves; and it was resolved, that, if this was done without the Knowledge of the Slave’s Master, the Woman had consented to her own Slavery, and their Children should be accounted Freedmen. Our Author has followed this Reading; but the true one is certainly that of Rycquius, Ut ignaro domino ad id prolapsa, in servitute; sine onsensisset, pro liberta haberetur. That is, If it was done without the Knowledge of the Slave’s Master, the Woman should become a Slave; but, if the Master consented to it, she should be considered as a Freedwoman. And thus the Passage is nothing to the present Purpose. See the Receptae Sententiae of Julius Paulus, Lib. II. Tit. XXI. § 1. with Cujas’s Comment, and the Notes of Mr. Schulting.
[1 ]See what I have said on the Chapter of Pufendorf which answers to this, §4. Note 3.
[2. ]Th. 2. 2. Qu. 64. Art. 1. & ibiCajet. So Moses Maimonides, upon Deut. xxxiii. Grotius.
[3. ]In Stobaeus, Florileg. Tit. XLVII.
[4. ]De Repub. Lib. VII. Cap. XIV. p. 442. Tom. II. Edit. Paris.
[5. ]This takes Place in the State of Nature, where all Men being equal, have an equal Right of punishing; and consequently, there is a Sort of Compensation, between two Persons equally guilty. But our Author certainly does not design to extend the Maxim so far as to deprive a Prince, or a Magistrate, of the Right to punish Crimes of which he knows himself guilty. In that Case it is not so much the Prince, or the Magistrate, that punishes as the Law, or the whole Body of the Society, which has invested those Persons with the Right of correcting and chastising, in their Name, those who shall do any Thing prejudicial to the publick Good.
[6. ]I know not whence these Words are taken. Our Author does not so much as specify the Treatise, from which he quotes them, either here or in his Note on John viii. where he has collected other Passages of the same Sort.
[7. ](De Ira, Lib. II. Cap. XXVIII.) Agreeable to this is a Passage of St. Ambrose, in his twentieth Sermon upon the Psalm, Beati immaculati, at the Verse Miserationes tuae Domine, a Passage cited Caus. III. Quaest. VII. So that of Cassiodore VI. 21. Grotius.
[8. ]Apologia Davidis, Lib. II. Cap. I.
[1 ]De Legib. Lib. XI. p. 934. Tom. II. Edit. H. Steph. See also B. IX. p. 854. and in his Protagoras, Tom. I. p. 324.
[2. ]De Ira, Lib. I. Cap. XVI. and Lib. II. Cap. XXXI.
[3. ]Thucydides, Lib. III. Cap. XLIV. Edit. Oxon.
[4. ]Cassiodore, De amicitia, If by Accident one Hand hurts the other, that which is hurt does not strike again, nor endeavour to revenge it.Grotius.
[5. ]Our Author, in his Margin, quotes the Gorgias; and certainly means to speak of a Passage in that Dialogue, where the Philosopher, having set down the several Ends of Punishments, as we shall see hereafter, says, he talks equally of human and divine Punishments; for, adds he, those who reap Advantage from the Chastisement, whether they are punished by the Gods or by Men, are such as commit Faults which are corrigible. Tom. I. p. 525.
[6. ]Our Author’s Meaning is, that some Things would be unjust between Man and Man, were they not done for some Reason, or with some View, distinct from the natural Tendency of the Action itself, which however GOD may do, merely out of his own good Pleasure, without any Violation of his Perfections. Thus, for Example, one Man may not take away the Life of another, purely and simply with the View of taking it away, but either in Defence of his own, when unjustly attacked, or in Order to exercise an Act of just and necessary Punishment. But GOD may, whenever he pleases, deprive whom he will of Life, without any other Reason than his own good Pleasure, and the Right he has over his Creatures. If the Person whom he deprives of Life is innocent, he exercises an Act of his sovereign and absolute Right on him; but if he has deserved Death, it is then an Act of absolute Right, and an Act of Punishment. Considering this as an Act of Punishment, no other Reason is necessary for ingaging GOD to punish. Even tho’ the Punishment may have no Tendency either to correct the Criminal, to set an Example, to satisfy the Persons injured, or prevent the Damage that may accrue to others; it is not therefore less lawful. It is enough that the Person punished was guilty; and GOD has a Right to punish him, barely to make him suffer what he deserves. This is all our Author intended to say, who in the first Edition spoke in such a Manner as included but half the Thought which he afterwards expressed entire, Dei enim Actiones rectae esse possunt etiamsi finem nullum sibi proponant extra ipsas. I own he might have spoken a little more clearly; but I cannot, without Indignation, see some of his Commentators charge him with extending the sovereign Right of GOD so far, as to pretend he may punish the Innocent, and even condemn them to eternal Torments. Had those Gentlemen been Persons of the least Equity, and had they been pleased to observe what our Author says in the following Chapter, § 14. they would never have taxed him with so odious an Opinion.
[a ]Prov. xiv. 4.
[7. ]Our Author, in one of his Letters, translates the Passage thus, GOD has so disposed all Things, that they answer one to the other, and the wicked Man for the Day of Adversity. Lett. XCI. Part I. That is, that GOD acts in such a Manner, by the Course of Nature, that the wicked Man is punished. In his Notes on the Old Testament, published long after the Date of this Letter, he translates it somewhat differently, GOD disposeth all Things for what is proper for each; even the wicked Man (is disposed) for the Day of Adversity.
[b ]Deut. xxviii. 63. Isa. i. 24. Prov. i. 26.
[c ]Thom. Summ. Theol. ii. 2 qu. 108. Sylvest. verb. vindicta.
[8. ]In the Gorgias, Tom. I. p. 468.
[9. ]In his second Book, De Ira, Chap. XXXII. and in B. I. Chap. XII. I will prosecute him, not through Resentment, but because it is what I ought to do.Grotius.
[10. ]Politic. Lib. VII. Cap. XIII. p. 440, 441.
[1 ]Publius Syrus, v. 340.
[2. ]Orat. pro A. Cocinâ.
[3. ]Vita Arati, Tom. I. p. 1048. Edit. Wech.
[4. ]Hence that of Homer, Χόλος δὲ μιν ἄγριος ἤρει, But him had savage Anger seized. (Iliad IV. v. 23.) And again,
[5. ]Hence in Homer, Σβέσσαι χόλον, To extinguish Wrath.
[6. ]Seneca, De Ira, Lib. II. Cap. XXI. How foolish is it to be angry with what has neither deserved, nor feels our Passion. The Brasilians, a wild savage People, revenge themselves upon the Sword, as upon the Man. Grotius.
[7. ]See what Seneca has upon this Subject, Lib. I. Cap. V. De Ira. Grotius.
[8. ]Plato, Gorgia. See what Theodoret says, Lib. XX. Curation.Grotius.
[a ]Lib. De Ira, ii. 32.
[9. ]Dissert. II. p. 24, 26. Edit. Davis.
[10. ]This Sentence may be seen in Stobaeus, Serm. XIX. De Patientia. Where the Compiler produces a pretty long Passage, from a Treatise of that Philosopher on the Question, Whether a Philosopher ought to go to Law with any one for Damage received.
[11. ]Plutarch, in Vit. Dion. Tom. I. p. 979.
[12. ]Sat. XIII. v. 180, &c.
[13. ]Seneca, De Ira, Lib. I. Cap. XIII. But Children, old People, and Persons indisposed, are always very fretful; and indeed every Thing that is weak and out of Order, is naturally given to Complaints.Grotius.
[14. ]Terence, in his Hecyra, How do Children bite and scratch for the smallest Trifles! And why? Marry because their Understandings are weak, and not able to direct them; and your Women truly are even as soon moved as Children.Ammianus Marcellinus, Lib. XXVI. speaks of Anger thus, The wise define it, the lasting Ulcer of the Mind, and sometimes a perpetual one, that usually arises from a Weakness of Mind, which they conclude with a great Deal of Probability from hence, because the infirm and the declining are more peevish than the sound and strong, Women than Men, antient People than young ones, and the unfortunate than the happy.Grotius.
[15. ]Lib. VI. Cap. XVIII. Num. 22.
[1 ]The whole Passage is as follows, “It is thought three Ends ought to be considered in the Punishment of Crimes. The first is what we call Νουθεσία, κολάσις, or παραίνεσις, when the Punishment is inflicted with a View of chastising and amending, so that he who has chanced to offend, may be more careful and circumspect. The second, which those who are nice in the Distinction of Terms call τιμωρία, is when the Offender is to be punished for the Preservation of the Dignity and Authority of the Person offended, lest an Omission of such Punishment should injure his Honour, and expose him to Contempt. For which Reason it is supposed that Word is here used. The third End of Punishment is what the Greeks term παρὰδειγμα, when such an Act is necessary for the Sake of Example, that others may be deterred by the Fear of a known Punishment, from the Commission of the like Crimes, which it is proper should be publickly forbidden. For which Reason our Ancestors also used the Word Exempla, for the greatest and most severe Punishments.—These three Reasons for Punishing are laid down by several Philosophers, and, among others, by our Countryman Taurus, in his first Commentary on Plato’s Gorgias. But Plato, in express Terms, distinguishes only two,” &c.Aulus Gellius, Noct. Attic. Lib. VI. Cap. XIV.
[2. ]St. Chrysostom too, upon 1 Cor. xi. 32. lays down these three Νουθεσίαν, τιμωρίαν, κολάσιν, Reformation, Satisfaction, Example.Grotius.
[3. ]The Passage from Clement of Alexandria, runs thus, Τιμωρία δε ἐστιν ἀνταπόδοστις κακον̂, ἐπι τὸ τον̂ τιμωρον̂ντος σύμϕερον ἀναπεμπομένη. Our Author, quoting it by Heart, had changed two Words. This is in his Pedagogue, Lib. I. Cap. VIII. p. 140. Edit. Oxon. Potter. We have almost the same Definition in his Stromata, Lib. VII. Cap. XVI. p. 895.
[4. ]De serâ Numinis vindictâ, Tom. II. p. 548.
[5. ]See Ethic. ad Nicomach. Lib. V. Cap. VII. VIII.
[a ]Rhet. 1. c. 10.
[1 ]See the Passage quoted from Aulus Gellius, in Note 1. on the foregoing Paragraph.
[2. ]We shall have Occasion to quote this Law in the following Chapter, § 12. Note 1.
[3. ]De Legib. Lib. XI. p. 933. Tom. II. Edit. H. Steph.
[4. ]See the Treatise De serâ Numinis vindictâ. Tom. II. p. 550, 559.
[5. ]Seneca, De Ira, Lib. I. Cap. V. As we put the Staff of a Spear that is crooked into the Fire, and burn it, to make it streight, and cleave it, not to break it, but to open and extend it, so we correct great Vices by the Pain of Body and Mind. And in Lib. II. Cap. XXVII. Among these will come in good Magistrates, Parents, and Judges, whose Correction must be submitted to, as the Surgeon’s Lancet, and the Physician’s low Diet, and other Expedients, which are troublesome for the Present, but are very much for future Advantage.Grotius.
[6. ]De Habitud. Doctrin. Platonic. p. 21. Edit Elmenhorst.
[7. ]Annal. Lib. III. Cap. LIV. Num. 2.
[a ]Thom. Summ. Theol. ii. 2. quaest. 33. art. 3.
[8. ]Trinumm. Act I. Scen. I. v. 1.
[b ]See Augustin Enchirid. c. 72.
[9. ]The Emperors Valentinian and Valens use the following Words: “We allow the near Relations who are at Age the Power of correcting Minors, according to the Quality of the Offence; that so wholesome Correction at least may force those to lead a regular Life, on whom the exemplary Conduct of their Family have no Influence. Our Intention is not to extend the Power of punishing a Minor’s Fault in infinitum; but let the Authority correct the young Man with the Right of a Father, and restrain him by private Animadversion. But if the Enormity of the Crime exceeds the Limits of domestick Correction, it is our Pleasure that the Offenders be submitted to the Cognizance of the Judges.” Cod. Lib. IX. Tit. XV. De emendatione propinquorum.
[10. ]De Cyri Expedit. Lib. V. Cap. VIII. § 8. Edit. Oxon.
[11. ]Institut. Divin. Lib. VI. Cap. XIX. Num. 8. Edit. Cellar.
[b ][[sic:c Mark xiv. 21.]]
[12. ]De Irâ. Lib. I. Cap. V. See also Chap. XVI.
[13. ]Protreptic. Cap. II.
[14. ]His Words are these. “He (GOD) immediately takes off the incorrigible (Sinner) as a Person hurtful to others, but most hurtful to himself; whereas he allows those a Time for Conversion, who chance to offend rather out of Ignorance of Virtue than a Preference of Vice.” De serâ Numin. Vindictâ. P. 551. Tom. II. Edit. Wech.
[15. ]De serâ Num. Vind. p. 551.
[16. ]St. Chrysostom upon 2 Cor. xiii. 9. calls those who are guilty of this, τοὺς ἀνίατα νοσον̂ντες, incurably sick. And Julian in his second Book of Constantius: διττω̂ν δε ὄντων, &c. There are two Sorts of Offenders, some are corrigible and give Hopes of Amendment, others who are irrecoverably wicked; for the latter the Laws have thought fit to make Death the Conclusion of their Evils, not so much for their own Benefit as that of others.Grotius.
[c ][[sic:d 1 John v. 16.]]
[1 ]There is some Resemblance of this to be found even among the Beasts. The Lion avenges himself of his Adulteress.Pliny’s Natur. Hist. VIII. 16. Grotius.
[2. ]These are the Words of Poppaea, whom Nero had married, in which she observes to that Emperor, “He ought either to take Octavia again willingly rather than by Compulsion, or consult his own Security by a just Severity to that Lady.” Annal. Lib. XIV. Cap. LXI. Num. 7.
[3. ]When, for Example, says the learned Gronovius, the Offender is a Father, a Man not in his right Senses, or a Person, whom we ourselves have first injured, and received his Pardon. The first and last Instances are just; but nothing is more misapplied than the Second. For can a Man do an Injury, properly so called, when he is deprived of the Use of Reason?
[4. ]De Invent. Lib. II. Cap. XXII.
[5. ]Lib. XXXVIII. Cap. IV. Num. 2.
[a ]Judges xv. 3.
[6. ]Romulus in Plutarch speaking of Tatius, murdered by the Laurentes, says, ϕόνον ϕόνῳ λελύσθαι, That Blood was expiated by Blood. And the same Plutarch of the Mantinenses ill used by the Achaeans; καὶ ταν̂τα μὲν ἔσχε τὸν τη̂ς ἀμύνης νόμον, such Treatment was entitled to a Revenge, Belisarius inProcopius, Vandal. I. Φύσει γὰρ, &c. For the injured Party is by Nature in a State of Enmity with those who offer the Violence.Grotius.
[b ]— ver. 11.
[7. ]Lib. III. Cap. LVI. Edit. Oxon.
[8. ]Bello Jugurth. Cap. XXV. Edit. Wass.
[9. ]Orat. Platon. II. pro Quatuorviris. Tom. III. p. 259. Edit. P. Steph.
[10. ]De Offic. Lib. I. Cap. 40. See too his Oration against Symmachus. See also Josephus, Antiq. Hist. XIII. 1. where he speaks of the Vengeance, that was taken on account of the Death of John, the Brother of Jonathan.Grotius.
[11. ]Epist. XXIX. So Livy too in his first Book. When what the Laurentes did was by the Law of Nations.Grotius.
[12. ]Hist. Lib. IV. Cap. XXXII. Num. 4.
[13. ]Lib. V. Ver. 1147, &c.
[14. ]P. 730. Edit. Basil 1572.
[15. ]Thus Tyndareus in Euripides’s Orestes, argues against Orestes:
Which last Expressions full of good Sense have afforded, both to Philisophers and Orators, a large Field of Discourse. Maximus Tyrius, in his Dissertation, Whether an Injury ought to be returned, delivers his Opinion thus: εἰγὰρ ὁ ἀδικηθεὶς ἀμύνεται, &c. If the injured Person may take his Revenge, the Evil will eternally pass from one to the other, and one Injustice succeed another: For if you grant him who has suffered the Injury, the Liberty of persecuting him who did it, then will it follow, that he who is thus persecuted, has also the Liberty of retaliating. For the Equity is the same on both Sides. Good GOD! what hast thou done, what Sort of Justice is this that must necessarily slow from Injustice? And how far will this Evil run, or where will it stop? And Aristides in a Speech of his about Peace: τίς γὰρ τω̂ν ἑλλήνων, &c. Where will you have a Greek left, if on the Account of those who are Dead and gone before, those who come after were always to undergo the same Fate? The same Aristides has something to the like Purpose in his second Leuctrica.Grotius.
[16. ]Declam. XIII.
[17. ]Cod Lib. I. Tit. IX. De Judaeis & Coelicolis, Leg. XIV.
[18. ]Cassiodorus, Lib. IV. Ep. X.
[19. ]Velleius Paterculus, Lib. II. Cap. XLII. Plutarchin Caes. p. 708. Tom. II. Edit. Wech.
[20. ]See B. I. Cap. I. § 1. Note 1.
[21. ]Stob. Tit. De Legib. Does he mean the Umbrians in Italy? That this was a Custom among several of the Africans, is testified by Leo Afer, Lib. II. C. de Tefechis, and C. de Teijeuta, and in other Passages. Grotius.
[22. ]King Theuderick in Cassiodore III. 23. reproving his Goths, addresses himself to them thus: Break off this old abominable Custom: Pray let your Matters be disputed with Words and not with Swords. And in the 24th. What makes you run to Duelling? What Occasion has a Man for a Tongue, if his Arms are to plead his Cause? Amongst the Trachonitae in the East, νόμος πάντα τρόπον ἐπεξίεναι τον̂ς τω̂ν οἰκέιων ϕονεɩ̂ς. It is an established Rule to pursue by any Method a Revenge upon the Murderers of ones Family or Relations.Grotius.
[23. ]Lib. II. Cap. CXVIII. Num. 1. Edit. Burman.
[c ]Numb. xxxv. 19.
[24. ]Seneca, De Clementiâ, Lib. I. Cap. XX.
[25. ]Theoclymenus there says, that Having killed a Man in his own Country, he was obliged to fly for it; for as the Deceased had left a great Number of Relations, he was apprehensive of falling by the Hands of some of them, Ver. 272, &c.
[26. ]The Passage has been already quoted Chap. I. of this Book, § 2. Num. 7. where the Author explains it in a more general Sense.
[27. ]He is speaking of Wars between the different States of Greece. De Repub. Lib. V. p. 471. Tom. II. Edit. H. Steph.
[1 ]Polybiussaw some Lyons crucified for their ravenous Desire of devouring Men, that so the Rest thro’ Fear of the like Punishment might be deterred from the like Barbarity.Pliny, Lib. VIII. Cap. XVI. Grotius.
[a ]Cod. l. 9. tit. 17. Ad Leg. Jul. repet. leg. 1. Ibid. tit. 20. Ad Leg. Fabiam de plagiar. leg. 7.
[b ]Orat. in Neaeram.
[2. ]The same Author in his Pelopid. ὁ γὰρ πρω̂τος, &c. For it was, as indeed it is fit it should be, the Original and most antient Custom and what Nature Designs, that he who is capable of giving Assistance should be the Ruler of him who wants it. And in his Philopoemenes: τοὺς ἑαυτον̂ πολίτας, &c. Taking upon him the Command of some Troops, who never waited for the Formality of Law and Election, but voluntarily followed him, in Conformity to an universal Maxim of the Law of Nature, that the better Man should Rule. You have some other Passages like these at the End of the Life of T. Flaminius. The Author of the Causes of the Corruption of Eloquence talking of Orators, says; Nor were these, tho’ mere private Persons, without Power, since both Senate and People were governed by their Advice and Authority. St. Chrysostom, 2 Cor. vii. 13. speaking of Moses: καὶ πρὸ τη̂ς χειραγωγίας, &c. Even before he led them he was by his Merit their Leader. It was therefore very foolishly demanded by the Hebrews, who made thee a Ruler and a Judge over us? What doest thou say? Thou seest his Deeds, and doest thou raise a Controversy about a Title? As if a wounded Person seeing an excellent Surgeon come to his Assistance in order to perform a necessary Operation, should impertinently ask him, Who made you a Surgeon, or commissioned you to perform such an Operation? Why, it was my Art and your Distemper, Good Sir! Thus was itMoses’s Knowledge and Capacity that made him what he was. For Government is not only a Piece of Honour, but an Art, nay, and the sublimest Art. The same Writer is upon this very Subject at the End of the third Chapter to the Ephesians: ἡ ἀδίκια, ἡ σὴ ὠμότης, ϕήσιν, ἄυτη μὲ κατέστησεν ἄρχοντα καὶ δικαστήν, your Injustice, your Barbarity, says he, made me your Ruler and your Judge.Grotius.
[3. ]The Passage is not exactly quoted. It runs thus: The Law always bestows the first Dignity in the State on the Man who practises Justice, and knows what is advantageous to Society. Praecept. gerend. Reipub. Tom. II. p. 817. Where by the Word Law may be understood the general Law or Rule of Policy or Government. Besides, this Passage, and those produced by our Author in the following Notes, are so far from being to his Purpose, that they may insinuate something contrary to his Notions. Their Tendency is to prove that every Man has a natural Right of inflicting Punishment for the Advantage of others in general; because every Man has a Right to command such as are less knowing and wise than himself. Now this Doctrine does not agree with either what our Author maintains, Chap. XXII. of this Book, § 12. or with the Principle he has laid down above, that the Right of inflicting Punishment is not the natural Consequence of the Right of Superiority.
[4. ]Tuscul. Disput. Lib. IV. Cap. XXIII.
[5. ][[Footnote number missing in text, supplied from Latin edition. Lib. IV. Od. IX.]]
[6. ]Apud.Stobaeum, Serm. XLIV. See Plutarch, De solertiâ Animalium, Tom. II. p. 964. Edit. Wech.
[7. ]And some were afterwards observant of this primitive Custom, as Dicaearchus, and others whom St. Jerome cites as Evidences against Jovinian. Grotius.
[8. ]De Irâ, Lib. I. Cap. XVI.
[9. ]Καθάπερ ον̂̔ν ἔχεις, &c. As therefore we immediately kill Vipers and Scorpions, and other poisonous Creatures, before they either bite or wound us, or make any Attempt upon us, as soon as ever we spy them out, by a necessary Precaution, that we may not suffer by the Malignity that is in them; in like Manner is it fit that Men should be punished, who tho’ they are tame and sociable by Nature, do yet degenerate into the savage Cruelty of Brutes, and think it both Pleasure and Profit to do all the Mischief they can. Philo de Special. Lib. XI. And Claudius Neapolitanus in Porphyry, Lib. I. De non Esu Animalium, οὐκ ἔστι γὰρ ὅστις, &c. There is no one but will kill a Serpent if he can, lest himself, or some other Person, should unawares be bitten by him. See, if you are at Leisure, what follows there. And again, not a great Way further, ὄϕιν καὶ σκορπίον, &c. We kill a Serpent or a Scorpion, tho’ they do not assault us, that another Body may not be hurt by them; and this is a Piece of Revenge which we take in Justice to all Mankind. And Porphyry himself, Lib. XI. ὥσπερ γὰρ, &c. For as, tho’ there be some Sort of Society between us and ill People, People who by their own Disposition and innate Wickedness, as if they were driven on by some impetuous Wind, are for injuring any one who comes in their Way, we yet think it convenient that all of them should be punished and taken off; so is it also proper to kill any irrational Creature, which is naturally injurious, and bent to hurt whatever goes near it. And this is what Pythagoras means, in Ovid’s Metam. XV.
[10. ]ApudStobaeum, Serm. XXXVIII.
[11. ]Deut. xiii. 9. Add to this a Passage of Josephus, XII. 8. Moses Maimonides, Ad XIII. Artic. and Director, Lib. III. Cap. XLI. Grotius.
[12. ]See 1 Maccab. xi. 24. 26. Grotius.
[13. ]Numb. xxv. The Government of the Israelites was not formed at that Time. See Mr. Le Clerc on Ver. 7. of the Chapter here quoted. And a Dissertation of Mr. Buddeus, De jure Zelotarum in gente Hebraeâ, § 34, &c.
[c ]1 Macc. ii. 24.
[d ]Acts vii.
[e ]— xxii. 13.
[14. ]Whose Opinion of this Matter is this, in his Book De Sacrificantibus, Κολαστέονὡς δήμιον, &c. We ought to use him as a publick and common Enemy, without any Regard to his being related to us, and immediately to acquaint all, who have a Respect for Religion, with his Persuasions, that with the utmost Expedition they may run to the Punishment of the wicked Wretch, fully convinced that it is an Act of Piety to kill such a Fellow as this. And there is another Passage to this Purpose no less remarkable, about the End of his Treatise De Monarchia.Grotius.
[15. ]This Fact, as Gronovius observes, is taken from Isocrates’s Panath. Orat. But says the Critic, the Orator speaks of the Helotae, who were not Citizens, but little better than Slaves; he refers us to Nicholas Cragius, De Repub. Laced. Lib. II. Cap. IV. That learned Dane (p. 132. Edit. Ludg. Batav. 1670.) only says that the Ephori exercised their Power chiefly on the Helotae; however he leaves the Words of Isocrates in their general Extent, and without the least Restriction. He only intimates that the Orator may have stretched a little too far. p. 130. On considering the Passage in itself, I think that the whole Context of the Oration shews that Isocrates by no Means confines himself to the Helotae, or publick Slaves. He is speaking of the Populace, or common People, in Opposition to the most considerable Persons among the Lacedemonians, πλη̂θος δη̂μος. He is speaking of free Men, but such as had been deprived of the Advantages which they ought to have enjoyed in that Quality: Ἁπάντων δ’ ἀποστερησάντας αὐτοὺς, ὠ̑ν προση̂κε μετέχειν, &c. He is speaking of Persons, whose Minds were become as servile, as if they had been real Slaves: Τὸν δὲ δη̂μον περιοίκους ποιήσασθαι, καταδουλωσαμένους αὐτω̂ν τὰς ψυχὰς, οὐδὲν ἡ̂ττον, ἢ τὰς τω̂ν οἰκετω̂ν, &c. They were not therefore really Slaves. In the Passage last quoted, they are termed περιοίκοι, Persons, who live near, that is, in the Neighbourhood of Lacedemon. But Xenophon distinguishes these περιοίκοι, from the Helotae, Hist. Graec. Lib. III. Cap. III. § 6. Edit. Oxon. In short the Orator is speaking of Persons, who were usually obliged to serve in the Army, as appears from what he says a little before the Passage in Question. Now it is well known that the Lacedemonians employed the Helotae in that Manner, only in the greatest Extremities, as after the Battle of Leuctra, or that of Plataeae. Our Commentator’s Criticism therefore doth not seem well grounded. But he might have observed that the Ephori, being Magistrates, and invested with a very extensive Power, when they put a Man to Death without the Formality of a Trial, they might be supposed to act by publick Authority, on a Supposition that this Power was either expressly or tacitly included in the Right conferred on them by the Commonwealth. So that the Example is unreasonably alledged, for shewing that since the Establishment of Civil Courts of Judicature, private Persons have in certain Places, retained some Remains of the Right of punishing, which each Man enjoyed in the State of Nature.
[a ]See B. i. Ch. 2. § 6. B. ii. Ch. 1. § 10.
[1 ]It is a Sin not to restrain the Vices of our Servants and Children,Lactantius, De ira Dei, Cap. XVIII. where there are several more Things upon the same Subject. Grotius.
[2. ]An Eye for an Eye, which, if we may so say, is the Justice of the Unjust. St. Austin in his Exposition of Psalm cviii. quoted, C. sed differentiae XXIII. Quaest. III. Grotius.
[3. ]Against Marcion IV. And in his Book De Patientia, CHRIST superinducing Grace upon the Law, to enlarge and compleat it, gave his own Patience to its Assistance, because that alone was wanting to make up the Doctrine of Righteousness. And St. Chrysostom, upon Ephes. iv. 13. διὰ τον̂το ὀϕθαλμὸν, &c. For this Reason it is said, An Eye for an Eye, and a Tooth for a Tooth, to tye up the other’s Hands, and not to stir up thine against him; not only to secure thy Eyes from Harm, but to preserve his too. But what I wanted to know is this, Why, since Revenge is allowed, are those blamed who have Recourse to it? And presently after, Συγγινώσκει ὁ Θεὸς, &c. GOD pardons those whom the sudden Sense of an Injury and Violence offered, may perhaps hurry on to require a present Satisfaction; and therefore he says, An Eye for an Eye. But elsewhere, The Ways of the Revengeful lead to Death. Now if where it is permitted to pull one Eye out for another, the Punishment of the Revengeful be such, how much greater shall it be to those who are expressly commanded to expose themselves to new Injuries?Grotius.
[4. ]This Passage of Zechariah, on which Tertullian grounds his Argument, is Chap. VII. Ver. 10. Let none of you imagine evil against his Brother in your Heart. I know no other Place where this is repeated, and spoken of our Neighbour, as that Father asserts. But the true Sense of the Passage is widely different from that here given. The Prophet means, as our Author himself observes in his Notes on the Old Testament, that we ought to be in such a Disposition as not to entertain even a Thought of injuring any Man. He is not here speaking of Revenge in particular.
[5. ]See Origen against Celsus. Grotius.
[6. ]De Offic. Lib. I. Cap. VII.
[7. ]Offic. Lib. I. Cap. XXVIII.
[8. ]See Moses Maimonides, quoted by the learned Constantine in his Book De damno dato, Cap. VIII. § 7. Grotius.
[9. ]In his Dialogue intituled Crito, “We maintain, says he, that it is a bad and shameful Thing to injure any Man, tho’ we may be Sufferers by the Forbearance, or might find our Account in the Action; as also to return Evil for Evil. K. P. We say— it is not lawful to return an Injury, as the Generality imagine; because it is by no Means allowable to do an Injury.”
[10. ]Probably at the End of his second Dissertation; where however the Thought doth not seem exactly the same.
[11. ]He is speaking of those who adhere to the Maxims of Philosophy. The Declaration here mentioned is in a pretty long Passage preserved by Stobaeus, and taken from a Treatise written professedly on this Question.
[12. ]Josephus doth not say what our Author ascribes to him. He only observes that the Law allowed the injured Person the Choice of Retaliation, or a Fine with Damages. Antiq. Jud. Lib. IV. Cap. VIII. So that, on the contrary, he supposes the Law of Retaliation sometimes put in Execution. It is very evident, however, that the true Sense of the Law was only that the Loss of an Eye, &c. was to be punished, according to the Enormity of the Fact. See my Observations on that Subject, in Note 15. on B. I. Chap. II.
[13. ]Lex Wisigoth VI. 13. Grotius.
[14. ]See Constantine on the Baba Kama, Cap. VIII. § 1. Grotius.
[15. ]This is not the Remark of Favorinus, but of Sextus Caecilius, Noct. Attic. Lib. XX. Cap. I. p. 868. Edit. Jac. Gronov.
[16. ]St. Austin, Lib. II. De adulterinis Conjugiis. But if a Christian (which is certainly very true) may not kill his adulterous Wife, but only dismiss her.Grotius.
[17. ]In Psalm. cxviii. Serm. VII. Cap. V. See Hincmarus, De divortio ad Interrog. V. in fine. C. laicos. II. Quaest. IV. and Panormitanus there. Gail, De pace publica, VIII. 3. Add C. accusasti de accusationibus, as it is in Brocard. Grotius.
[18. ]He says that “Since Murther is prohibited, a just Man is not allowed to give Evidence against any one in capital Cases; because there is no Difference between killing a Man with the Sword and with Words,” Lib. VI. Cap. XX. Num. 16. A Maxim, which taken thus generally, is certainly false.
[19. ]He has this Expression too; Dial with Trypho, μηδὲ μικρὸν ἀμείβεσθαι, &c. Nor in the least willing to retaliate any one a Mischief as our new Legislator has enjoined us. Add to this what is below, § 15. Grotius.
[b ]B. i. Ch. 2. §7, 8.
[20. ]Josephus mightily cries up the Pharisees Moderation in punishing. And from hence are there so many Exceptions in their Laws relating to publick Punishments; and that Maxim of theirs, that where there is a Necessity to inflict Death, it ought to be done in the tenderest Manner. This is in the Thalmud, Tit. Ketuboth.Grotius.
[21. ]St. Austin, Quaest. Evang. Lib. I. Quaest. X. Grotius.
[1 ]In the Original we read Legem primaevam. In the first Edition it was contra Naturae Legem. This Alteration insinuates that GOD himself revealed the chief Rules of the Law of Nature to our first Parents, who transmitted them to their Descendents. The Author has in other Places made such Corrections, in Consequence of his Opinion, that Tradition has contributed most to the Knowledge of the Principles of the Religion, and Laws of Nature.
[2. ]St. Chrysostom says the same as well in his Oration, Ad patrem fidelem, as in his XI. De jejunio.Grotius.
[3. ]A Sinner ought, before he gets his Pardon, to lament and bewail himself.Tertullian, De poenitentia. St. Ambrose, upon Psalm xxxvii. St. Chrysostom, upon 1 Cor. Hom. XXVIII. and upon Matt. Hom. XLII. Add 2 Cor. vii. 9, 10. Grotius.
[4. ]St. Jerome, upon the first Chapter of Nahum, which Passage is inserted Caus. XXIII. Quaest. V. Agathias, Lib. V. out of Plato. Grotius.
[1 ]St. Jerome, Ad Damasum, cited in C. Importuna de poenitentia, Dist. I. Grotius.
[2. ]Who has this Expression too in his Treatise De beneficiis VII. 20. Death to such Sort of People is the only Remedy, and it is best for him to go quite out of the Way, who is never likely to come to himself. And again, At the same Time I should do a Kindness to all Mankind, and to him, since to Persons of that Temper, Death alone is a Cure.Grotius.
[3. ]ApudStobaeum, Serm. XLVI. From the whole Passage it appears, that he makes Use of this Reason, to shew that Legislators, when they ordered Sentence of Death, had no Design of injuring the Criminal who should suffer; but, on the contrary, of thus procuring them the last Remedy against their Wickedness.
[a ]B. i. Ch. 2. §7.
[b ]Rom. xiii. 4.
[c ]1 Tim. ii. 1, &c.
[4. ]Yes, and of the Romans too, in most Cases; for none of them, after the Porcian Law was made, could ever be whipped, or put to Death, unless he were a Traitor, or condemned by the People themselves. Grotius.
[d ]Lib. 1. c. 65.
[5. ]Geogr. Lib. XI. p. 790. Edit. Amst. (520. Paris.) where he says, “They banished such as had been guilty of the greatest Crimes, together with their Children. Whereas, on the contrary, the Derbicians put Men to Death for small Crimes.”
[6. ]Institut. Orat. Lib. XII. Cap. I. p. 1055. Edit. Burman.
[7. ]See what is below in this Book, Chap. XXIV: § 11. See Isaac Angelus’s Oath, in Nicetas, Lib. I. The same Author says, that not one was executed in Johannes Comnenus’s Reign. See Malchus about Zeno, and St. Augustin’s 158th and 159th Epistle to Marcellinus Comes, cited C. Circumcelliones, Caus. XXIII. Quaest. V. and in the following Chapters; and St. Chrysostom against the Jews, where he speaks of Cain’s Punishment. Grotius.
[8. ]Chiefly into Work. St. Augustin, Epist. CLX. Let them have the Use of their Limbs, and let them be employed in some profitable Service. See also Nectarius’s Letter to St. Augustin, it is the 201st. Grotius.
[1 ]We have here followed the Order of the Original. Mr. Barbeyrac places this Paragraph immediately after the ninth: For which Transposition he gives the following Reasons, “In the Place where we find it, it interrupts the Discussion of the Questions, which relate to the inflicting of Punishments, in Regard to what a Christian’s Duty allows; and I cannot but suspect that our Author, designing to add this Paragraph, after he had written the others, was not very careful where to place it, and did not afterwards perceive the Mistake; as was sometimes the Case, in Regard to the Additions he made to his printed Work. However this be, on a careful Enquiry into the Context of the Discourse, it will appear, that this Paragraph, which comes in naturally where I have inserted it, makes a disagreeable Interruption in the Place from whence I have removed it.”
[2. ]Lib. VI. Cap. XIV.
[3. ]De Clement. Lib. I. Cap. XXII. These two Designs of Punishment are also laid down by Philo, in Legatione, ὅτι καὶ ἡ κόλασις, &c. Because Punishment does often correct and amend even the Offenders; but if it does not do that, it will certainly have an Influence on the Standers by. For other’s Smartings make many People better, out of a Fear and Apprehension of suffering so themselves.Grotius.
[4. ]De Ira, Lib. I. Cap. ult.
[5. ]Declam. CCLXXIV.
[1 ]See some Passages above, B. I. Chap. III. § 3. Grotius.
[2. ]In this very Chapter, Sect. VIII. Grotius.
[1 ]St. Chrysostom, De Poenitentia VIII. Καλὸν μὲν ον̂̔ν, &c. It is therefore a good Thing, as I told you, by a kind Composition of Matters, to prevent a Suit of Law, and thus to direct your Friend, to the very End that a Court intends. But if the Process be already entered, let it take its Course, only be sure never to begin one.Grotius.
[1 ]See Seneca, De Otio Sapientis, canvassing this Question, Whether a wise Man ought to take upon himself a publick Concern.Grotius.
[a ]Matt. vi. 1.
[a ]De Matrim. par. 2. c. 7. § 7. num. 20, &c.
[b ]De ultim. fine Leg. Illat. 11.
[c ]Contr. Illustr. l. 4. c. 8.
[d ]B. ii. Ch. 1. § 14.
[1 ]See St. Austin, De Civitate Dei, cited C. quicunque, Caus. XXIII. Quaest. VIII. And C. inter with the following C. Caus. XXXIII. Quaest. II. Grotius.
[2. ]That is, and likewise Soldiers themselves; for the Law regards those also who are not such. The same Law supposes the Fact committed in the Night, and in the Fields. Cod. Lib. III. Tit. XXVII. Quando liceat, &c. Leg. I. See Cujas and Fabrot, on that Title.
[3. ]Ibid. Leg. II.
[4. ](Apolog. II.) Agathias, Lib. IV. Οὐ γὰρ στρατηγοɩ̂ς,&c. A Resolution of wishing and doing well to the Publick, is not peculiar to Generals, or other great People; but every one who will, may, and ought to be concerned at the Calamities of the State, and do all he can to put Things in a better Posture. See above in this Chapter, Sect. IX. Grotius.
[5. ][[Footnote number missing in text, supplied from Latin edition. Here the learned Gronovius quotes a Law, produced by Quintilian, which allows of killing an Exile, if found in the Country. Declam. CCCV. But, tho’ we have the same Words in his CCLXVIII. Declamation, this may have been a spurious Law, as well as several other, invented by the antient Declaimers, for furnishing them with Matter. Be that as it will, our Author is here speaking of Persons put under the Ban of the Empire; whom he calls Banniti. For, according to the Constitutions of the Empire, any one may with Impunity use such Exiles as he pleases, both in Regard to Estate and Life. See James Menochius, De arbitrar. Judic. Lib. I. Quaest. XC. Ant. Matthaeus, De Criminib. Tit. V. Cap. II. Boecler, Conductor. Carolin. Tom. II. Dissert. p. 74, 75. and the Jus publicum of Mr. Cocceius, Cap. XXXII. § 12, &c.]]
[6. ]Quintilian, in his CCLXth Declamation, There are some Crimes against the State so notorious, that the bare Sight of them is enough to declare them capital.Grotius.
[a ]B. 2. Chap. 4. § 3. Num. 2. and Chap. 6. §1. num. 1.
[1 ]The Words are Cogitationis poenam nemo patitur; No Man suffers Punishment for his Thoughts. Digest. Lib. XLVIII. Tit. XIX. De Poenis. Leg. XVIII. Add to this, that, according to Mr. Bynkershoek, Observat. Jur. Rom. Lib. III. Cap. X. the Roman Lawyers, speak there not of a bare Thought, of a loose Design, which terminates in no exterior Act, by which a Man is disposed to seek Means for executing his Design; but of a Design, the Execution of which has not been followed by the Effect. For such a Design, tho’ accompanied by actual Attempts, was not punished by the Roman Law, unless in Case of some certain enormous Crimes, specified by the Laws, and excepted from the general Rule, in Favour of the Publick. See the Particulars and Proofs at large in the Treatise above quoted. On that Foot we are to consider the following Words of Maximus of Tyre, either as not conformable to the Roman Law, or as unexact. “The Law, says he, punishes as Adulterers, Robbers, or Traitors, not only those who have actually committed the Facts, but such as designed to commit them, tho’ they did not find Means for putting the Design in Execution.” Dissert. II. p. 20. Edit. Cantab. Davis.
[2. ]So Sayrus, Lib. III. Thesauri, Cap. VI. Grotius.
[1 ]Σύμϕυτον εἰ̂ναι ἀνθρώποις τὸ ἁμαρτάνειν. These Words are in Stobaeus, Serm. XLVI. De Magistratu, &c. Let us add the following from Xenophon, a much more antient Philosopher. “I see no Man entirely exempt from Faults.” Hist. Graec. Lib. VI. Cap. III. § 6. Edit. Oxon.
[2. ]Where he says, “There is an Evil born with us, and at the same Time acquired; viz. the Motion of free Will, in a Manner contrary to Nature.” p. 192. Edit. Needham.
[3. ]And in his first Book, De Ira, Cap. XIV. There is no Man living who can intirely justify himself. In his ninth Chapter he had said, Among many other Inconveniences of Mortality, the Darkness of our Understanding is one, and not only the Necessity of erring, but the doating upon our Errors. Afterwards, Chap. XXVII. Who can declare himself free from the Breach of every Law? And in B. III. Chap. XX. We are all of us bad. In his Treatise De Clementia, I. 6. We are all faulty: Some more, some less: Some on purpose, others by Accident, or drawn away by another’s Wickedness: Some of us have been a little too weak in standing to our good Resolutions, and have lost our Integrity with Regret and Reluctance. Nor do we only for the present do amiss, but we shall always do so to the last Moment of our Lives. And if there be any one who has so well cleared his Conscience that nothing can any longer either disturb or deceive him, it is even by frequent Miscarriages that he arrives at this State of Innocence.Procopius, Gotthic. III. in a Speech of Belisarius, Τὸ μεν ον̂̔ν, &c. Not to sin at all is neither consistent with human Make, nor will the Nature of Things allow it. Add to this the Emperor Basil, Cap. L. Grotius.
[4. ]In his third Book, De Mose. To which may be added, Abenesdras upon Job v. 7. and RabbiIsrael, Cap. VIII. Grotius.
[5. ]The Passage is in the third Book, where the Historian adds, “There is no Law that can prevent Man’s committing Faults, either in a publick or private Capacity.” Cap. XLV. Edit. Oxon.
[6. ]Among others, Lactantius, who says, “If GOD should punish every Man according to his Deserts, all Mankind would be destroyed; for no one is free from Sin. There are many Inducements to Sins, our Age, Wine, Poverty, Opportunities, and a Prospect of Reward.” De Ira Dei, Cap. XX. Num. 4. Edit. Cellar.
[7. ]De Ira, Lib. II. Cap. XXXI.
[8. ]ApudStobaeum. Serm. XLVI.
[9. ]And in his Fragments he says, Μὴ συκοϕαντεɩ̂ν ἀνθρωπίνης ϕύσεως τὴν ἀσθένειαν, We must not disparage the Infirmity of human Nature.Grotius.
[10. ]This Thought has been justly censured by Pufendorf, B. I. Chap. V. § 8.
[11. ]In vita Solonis. p. 90. Tom. I. Edit. Wech.
[12. ]These Sins are not absolutely unavoidable. In Regard to Things, to which we are inclined by the Force of Constitution or Custom, the Use of our Liberty is indeed more difficult, but not entirely impossible. See Pufendorf, B. I. Chap. IV. § 5, &c. to which several Reflections might be added.
[13. ]Seneca, De Ira, Lib. II. Cap. XVIII. It is the Mixture of the Elements that causes a Variety of Manners, and therefore some Peoples Tempers incline them more to this or that, according as one Element does predominate. In another Place he calls this, the Result of the Condition of our Birth, and the Complexion of our Bodies. Epist. XI. Grotius.
[14. ]See C. Inebriaverunt. Caus. XV. Quaest. I. Grotius.
[1 ]The same Seneca, De Beneficiis I. Cap. I. Ingratitude is a shameful Thing, only when we are at Liberty to return, or not return, a Kindness.Seneca the Father, Controv. V. 34. You tell me, that he ought not to do it; it is a Thing of immense Estimation, therefore there is no Punishment. St. Augustin, Lib. II. Cap. LXXXIII. contra Petilian. Thus then because there are Laws against you, you are not compelled by them to do Good, but you are forbidden to do any Hurt.Grotius.
[2. ]This is in B. V. Controv. XXIII. You have such another Expression in the fourth Book. Controv. XXV. There is a great Deal of Difference between Reproof and Punishment. Excerpt. Contr. VI. 8. For as Plutarch, in his Cimon says, some Things are Ἐλλείματα μα̂λλον ἀρετη̂ς τίνος ἢ κακίας πονηρέυματα, Rather the Defects of some Virtue than the Effects of Vice.Grotius.
[1 ]Diodorus Siculus, in his Fragments, argues very well against them that Συγγνώμη τιμωρίας αἰρετωτέρα, Pardon is better than Punishment. And St. Cyprian shall speak for Christians, in his fifty-second Epistle. The Philosophers and Stoicks are of another Opinion, who say that all Sins are alike, and that a wise Man must not easily be bent. But Christians and Philosophers do widely disagree.Grotius.
[1 ]Julian de Eusebia, οὐδὲ γὰρ εἰ σϕόδρα, &c. For tho’ there are some who deserve ill Treatment and Correction, there is no Necessity that they should be quite destroyed.Grotius.
[a ]Add Q. Fr. i. 11.
[2. ]The Passage is in his Treatise De Benefic. Lib. VI. Cap. VI. But the Author has followed the Generality of Editions in his Time, which read Sic beneficium superveniens injuriam adparere non patitur; whereas in the Manuscripts we read injuria, as the Sense necessarily requires, according to the Remark of Justus Lipsius, cotemporary with Grotius. So that the Philosopher’s Meaning is, that an Injury done by one from whom we had before received some Favour, effaces the whole Merit of the Favour. Which has no Manner of Relation to the Question in Hand. See my Observations on Pufendorf, B. VIII. Chap. III. § 16. Note 4. Besides, even allowing our Author’s Reading the true one, the Passage would be nothing to his Purpose, for Seneca would then be speaking of a Service done after the Injury is received; whereas Grotius speaks of the Services that the Offender has already done before the Commission of the Crime, and even of his Ancestor’s Services.
[b ]Wisd. xli. 19.
[3. ]ApudStobaeum, Serm. XLVI. Tit. De Magistratu.
[4. ]Epist. ad Quintum Fratrem, Lib. I. Epist. II.
[5. ]Oratio ad Alexandrinos.
[1 ]Josephus, Πατροκτονία κοινὸν, &c. Parricide is a common Injury both against Nature and human Life, and whoever does not punish it, does himself sin against Nature.Grotius.
[2. ]De Clementia, Lib. II. Cap. VII.
[4. ]Out of Use, as the Scholiast upon Horace says. St. Augustincontra Academicos, It is absurd to keep a Stir and Wrangling about Words, when there remains no Dispute at all about Things.Grotius.
[5. ]Lib. II. Cap. XXVIII.
[6. ]Topic. Lib. I. Cap. XVII.
[1 ]Two Questions may be here started, which our Author himself proposes in his Sparsio florum ad Jus Justinianeum. Tit. De poenis, p. 213. Edit. Amst. First, Whether it be better to allow the Judge the Determination of Penalties for each Crime, or to regulate the Kind and Degrees of Punishment by express Laws? Our Author, without giving us his own Opinion, only observes that the former was at first practised among the Locrians; but that Zalecus (not Seleucus) introduced the latter, as we learn from Strabo, Geogr. Lib. VI. For my Part, I think that in this Case, as in others, as little as possible ought to be left to the Judge’s Discretion. The second Question is, whether a Judge, who is not himself a Sovereign, can inflict Penalties less than those established by the Laws? That is, not only in Cases where the Laws themselves allow him such a Liberty (for then the Difficulty vanishes) but in all Cases, without Exception. To this our Author replies, that such a discretionary Power is usually allowed to Judges of the first Rank, where he all edges the Example of the Romans, among whom the Senate might both augment and soften the Rigour of the Laws. On this Point see Mr. Schulting’s Dissertation De recusatione Judicis, Cap. VII. § 3. This supposes what is true, that an inferior Judge cannot, as such, and without the Authority of the Sovereign, either increase or diminish the Punishment, when it is fixed by the Laws.
[2. ]See what is above in the Text and Notes, in this Book, Chap. IV. § 12. Grotius.
[a ]See B. 1. C. 1. § 8.
[3. ]De Irâ Dei, Cap. XIX. Num. 9.
[4. ]Symmachus, Lib. III. Epist. LXIII. For the Circumstances of Magistrates and Princes are quite different; the Judgment of the Magistrate is thought to be corrupted, if it be milder than the Laws direct: But it is in the Power of, and very becoming the Character of Godlike Princes to mitigate the Rigour of penal Laws. There is the same Distinction between a King and a Judge in Themistius, Oration V. Grotius.
[5. ]De Clementiâ, Lib. I. Cap. V.
[1 ]For Instance, if in a Country where Hunting is prohibited under very severe Penalties, and even under Pains of corporal Punishment, a hot-headed young Fellow, or one who has not, and at present cannot have any Thing else to eat, should kill a Hare in the Road. In some Countries a Man is condemned to be hanged for a very moderate Theft. If any one, being reduced to extreme Poverty without any Fault of his own, should steal such a Sum, it would be an Act of great Severity to put him to Death: Clemency would require, at least, that his Punishment should be changed, and the Rigour of the Sentence softened, without any Alteration in the Law itself. See Pufendorf, in the Chapter that answers to this, § 17.
[1 ]See Tiraqueau, De Poenis temperandis, Caus. L. and Covarruvias, Var. Resolut. II. 9. 5, 6.
[2. ]That is, in regard to the Person, who has acted against the Law, not in regard to every other Person who may violate the Law at the same Time.
[3. ]Pufendorf, and other Writers after him understand by that Term the Authority and Will of the Legislator. But this is a Mistake. The general Reason is no more than the particular Reason of the Law, considered as always taking Place in general, tho’ it ceases in certain Cases in regard to such or such a Person; as in the Case of sumptuary Laws, the general Reason subsists, as long as the Subject sin general are not rich enough to support the Expences prohibited, without prejudice to their Circumstances; tho’ some particular Persons may be so rich that the said Expences cannot do them the least Damage. However, in order to make the Application of this Instance just, it must be supposed that the Penalty annexed to the sumptuary Laws is corporal, or consists in something which strongly affects the Rich; for if, as is usually the Case, it be reduced to a Fine, as a Man of a very large Estate will suffer no more Damage from the Fine imposed by the Law, than from the prohibited Expences, it would, on the contrary, be a Reason for aggravating the Penalty in Relation to him, lest the Easiness of transgressing the Law should encourage him to give frequent Examples of such Transgression.
[4. ]Gratianus has collected and put together several useful Things upon this Subject, Caus. I. Quaest. VII. Grotius.
[5. ]Orat. XX. De Statuis. See the Story in Zonaras. Grotius.
[1 ]Illustr. Contr. Lib. I. Cap. XXVI.
[2. ]Ibid. Cap. XLVI.
[1 ]The People of Milan argue very judiciously upon this Affair in a Speech of theirs related by Guicciardin, Lib. XVII. Compare what we have said in this Chapter, § 11. and what we shall say in B. III. Chap. XI. § 1. Grotius.
[a ]§2. n. 2.
[2. ]Epist. ad Brutum XV.
[3. ]Digest. Lib. XLVIII. Tit. XIX. De Poenis, Leg. XLI.
[1 ]Chrysostom X. De Statutis: οὐ γὰρ δὴ πα̂ν, &c. For every Offence does not deserve the same Correction, but what might easily have been amended requires the greater Punishment. And in his second Oration entitl’d Cur obscurum sit vetus Testamentum, he proves from hence that a Slanderer is worse than a Whoremonger, Thief or Murderer. Grotius.
[a ]Jam. i. 15.
[2. ]In his first Oration against Stephen, p. 616. Edit. Basil 1572.
[3. ]This is not exactly related. The Historian says on the contrary, that tho’ the Acarnanians had been excusable, as well as any other People in the same Case, to have used Delays, and endeavoured to avoid War with the Aetolians, their Neighbours, from whom they had every Thing to fear; Nevertheless the Embassadors of the other States of Greece, their Allies, having addressed themselves first to them, they immediately confirmed the Resolution taken in the general Assembly, frankly and without Hesitation; and on this Occasion, as on all others, the Consideration of their Duty had more Weight with them than the fear of Danger, Lib. IV. Cap. XXX. p. 415. Edit. Amstel.
[4. ](Ethic. Nicom. Lib. III. Cap. XV. init.) There is the same Thought in a fine Passage of the Emperor Marcus Antoninus, Lib. II. [Sect. X. which may be found quoted in Pufendorf’s Law of Nature and Nations, Lib. I. Chap. IV. Sect. VII. Note 7.] Plutarch in comparing Romulus with Theseus, in regard to the first’s having killed his Brother, and the other his Son, concludes Theseus the most excusable, because urged to that excess of Rage by stronger Impulses, and such as few Persons are capable of resisting; namely Love, Jealousy, and Credulity in the false Reports of his Wife. Compar. Thes. & Rom. (p. 38. Vol. I. Edit. Wech.) Grotius.
[5. ]See the fine Comparison of Solomon between a Thief and an Adulterer, Proverbs vi. 30, &c. Grotius.
[6. ]Philo the Jew observes, that every Passion does indeed put the Soul out of its natural Situation, or transports a Man out of himself, and is a Kind of Disease, but that none of them is stronger and more dangerous, than Concupiscence; because it is the only one, that has its Source in our own Hearts and Wills, whereas the other Passions arise, as it were, from without, and in a manner make their Entrance in Spite of us. De Decalogo. (p. 764. Edit. Paris.) Grotius.
[7. ]This is a Maxim of the Stoicks, who add, that he that has one Virtue has them all. Diogen. Laert. Lib. VII. § 125.
[8. ]Seneca, Epist. XVI. Our natural Wants have some Bounds to them, but those that result from a false Opinion are infinite. See St. Chrysostom, in Tract. Moral. ad Rom. vi. ad 2 Cor. xi. 12. ad Ephes. i. 14. Grotius.
[b ]1 John ii. 16.
[9. ]This Passage has been inserted above with several Things preceding it, Lib. I. Cap. II. § 8. Num. 9. Note 43. The Passage of Lactantius is in Instit. Divin. Lib. VI. Cap. V. Num. 13.
[1 ]There is a little Note here in the Original, that has a pleasant Mistake in the writing of it. It is: Vide locum insignem in Lucae verbis apudXiphilinumexDione. This is in the Edition of 1642. the last before the Author’s Death, to which that of 1646. which followed it, is conformable. In the later Editions, as it was not known what this Lucae meant, it was changed into Lucii; and because Xiphilinus has abridged the Lives of the Emperors, the Word verbis has been changed into vita. The Corrector ought to have been so good as to inform us who this Lucius is, and in what Part of his Work the Abridger has writ his Life. Or rather, he ought to have left verbis, and found Words agreeable to the Subject, in the Discourse of Somebody, whose Name, by Mistake, might have been confounded with that of Luke. I believe I have made this Discovery. Marcus Antoninus, having received Advice of the Revolt of Cassius, makes a fine Harangue to his Soldiers, and tells them amongst other Things: “Is it not a very hard Fate to be obliged to maintain War upon War? Is it not strange to see one’s self engaged in a Civil War? But is it not harder, and more strange, to find, that there is no longer any Fidelity in Man, and that he, whom I looked upon as my best Friend, rises up against me, and lays one under the Necessity, contrary to my Inclination, of taking Arms against him, without having ever done him the least Injustice, or failed in any Thing whatsoever in regard to him?” P. 277. Edit. H. Steph. He says afterwards that Cassius has violated the Laws of Friendship, p. 278. D. This squares perfectly well with our Author’s View; which is to shew, that there are Circumstances, relating even to the Person of the Criminal, which make his Crime more odious. Hence it is not difficult to conceive how this Error in the Writing crept in. The Author, (or perhaps the Person, who copied his Notes, when he sent them to the Press) intending to say in Marci verbis, may have confounded the Name of one Evangelist with that of another. Those Names which were familiar to him, might easily come into his Thoughts in a mere Citation, writ in haste and without attending to Things themselves. This Observation will help to discover the Origin of some other Mistakes, which occur either in the Text or Notes of our Author. He might have added a Passage of Aristides very applicable here, and is in a Discourse, which he sometimes cites in this Chapter: “No Man, says that Orator, suffers Injuries patiently; but the most sensible, and such as excite implacable Resentment, are those we receive from them who ought to be the farthest from committing them:” Orat. Leuct. II. Tom. II. p. 144.
[2. ]The following Passage is cited by our Author in a Note, but without saying from whom: “To have been once ignorant of the Duties of Life, is the Effect of human Frailty: But to fall often into the same Faults is Madness. For the more Faults we commit, the more rigorously we deserve to be punished:” These Words are a Fragment of the twenty first Book of Diodorus Siculus, and are to be found in Num. 15. of the Collection made of those Fragments. Quintilian has a Thought of the like Nature in Declam. CCCX. And in Declam. CCXLVIII. &c.
[3. ]If in the Course of the guilty Person’s past Life the Good outweighed the Evil, he was treated with Favour. This we have from Herodotus, Lib. I. Cap. CXXXVII.
[4. ]Asinius Pollio said, That a Man is to be judged by the general Tenour of his Conduct and Inclinations.Cicero also maintains, That in all important and enormous Affairs, Judges are to consider the Will, the Intention, and the Deed of the Person accused, not from the Crime laid to his Charge, but from his Manners and general Conduct. Orat. pro P. Sylla. (Cap. XV.) Grotius.
[a ]C. xviii. v. 24.
[5. ]One of the Lacedemonian Ephori says this in Relation to the Athenians, who boasted of their Promises against the Medes, Lib. I. Cap. LXXXVI. Edit. Oxon.
[6. ]Lib. III. Cap. LXVII.
[7. ]The twenty fifth Canon of the Council of Ancyra. St. Chrysostom upon 2 Cor. ii. ὅθεν μανθάνομεν, &c. From whence we learn that Penance ought to be determined and proportioned, not only according to the Nature of the Sins, but also according to the usual Inclinations and Carriage of the Persons sinning. And in his third Book De Sacerdotio: οὐ γὰρ ἀπλω̂ν, &c. For we must not suit the Punishment to the Measure only of the Offences, but we must inquire too into the Disposition of the Offender.Grotius.
[b ]Rom. vii. 13.
[8. ]De vera Relig. Cap. XXVI. St. Chrysostom comparing the Jews with the Greeks or Pagans, says with Reason, that the Jews are most criminal, because they have the Law of GOD: And adds, that he who has had most Instruction, deserves to be punished the most severely when he violates the Law. Grotius.
[9. ]Annal. Lib. III. Cap. LIV. Num. 4. This Passage is not to the Purpose. For the Historian is not there speaking of the Vertue of the Prohibition of a Law to render that more criminal, which is already bad in itself, but of the Effect that proceeds from Impunity, in regard to those, who venture to transgress not withstanding the Prohibition.
[1 ]In Paraph. (Lib. VII. Cap. X. p. 444. Edit. Heins.) Grotius.
[2. ]Lust, says St. Chrysostom, requires to be satisfied by the Company, not of this or that particular Woman, but of any Woman what so ever. In Galat.Tertullian observes, that the more difficult it is for unmarried Persons to preserve their Continency, the more excusable they appear when they fail in it. For, adds he, what is hard to perform, is easily excused. But the more easy it is for a Woman to marry lawfully, the more culpable she is in falling into a Sin which she might thereby have avoided: Ad Uxor. Lib. I. (Cap. I. and III.) See the Passage of Marcus Antoninus referred to a little above, in which that Emperor cites the Philosopher Theophrastus. Grotius.
[3. ]Cap. VII. p. 92. B. Tom. II. Edit. Paris.
[4. ]Cap. VI. p. 90.
[5. ]This Sentence, which our Author cites only in two Latin Verses of his own, is taken from Stobaeus, and is in the Original thus,
[6. ]“When you see (says St. Chrysostom) a rich Man unjust, avaricious, and griping, lament his Fate the more, because being rich he is guilty of such Crimes; for his Punishment will be so much the greater.” De provident. Lib. IV. Grotius.
[1 ]Or, as Harmenopulus expresses it ταυτοπάθεια, (Promptuar. Lib. I. Tit. II. § 34.) Grotius.
[a ]Exod. xxii. 1, &c.
[2. ]An Allusion to this Restitution of Double is made in the Revelations xviii. 6. Apollodorus tells us, that the Minyans having unjustly extorted a Tribute from the Thebans, Hercules obliged them to return them double the Value of it. Bibliothec. Lib. II. (Cap. III. § 11. Edit. Th. Gal.) Grotius.
[b ](Offic. Lib. III. Cap. III.)
[c ](Tom. II. p. 133.)
This Passage, which is taken from the Hercules furiosus, Ver. 746. is wrong applied, as the learned Gronovius observes. It should be read vestra according to the excellent Florence Manuscript, which he follows in his Edition. And the Sense of the Poet is, that Kings and Magistrates are more severely punished in the infernal Regions, than private Persons and common People.
[4. ]Lib. XV. p. 1036. Edit. Amst. Other Nations of the Indies punish Theft with Death, as Nicolaus Damascenus observes. Grotius.
[5. ]Lib. I. Cap. XXXIV. p. 166. Vol. II. Edit. Paris.
[d ]Lib. II. De Special Legib. p. 789, &c.
[6. ]Pliny says of the Lion, that when he receives a Wound he observes with wonderful Sagacity the Person who gave it him, and singles him out amongst the greatest Crowd. But if the Person who aimed at him misses his Blow, he contents himself with throwing him down and dragging him along, but does not wound him. (Hist. Natur. Lib. VIII. Cap. XVI.) Grotius.
[e ]Deut. xix, 19.
[7. ]This appears too by the Law concerning a Husband, who to get his Wife’s Portion, had accused her falsly of not being a Virgin. Deuteron. xxii. 19. and also by another Law against him, who unjustly prosecutes a Person in order to possess himself of his Goods. Grotius.
[8. ]Digest, Lib. XLVIII. Tit. VIII. Ad Leg. Cornel. de Sicariis, &c. Leg. I. Princ. §3. See the Observations of the illustrious Mr. Bynckershoeck, Lib. I. Cap. X.
[9. ]De Legib. Special. Lib. II. p. 789.
[a ]De repub. Lib. VI. Cap. ult.
[1 ]See the Chapter of Pufendorf which answers to this, § 25.
[1 ]See the Rabbi Maimonides, Director. Dubitant. II. 41. Cicero says, that those Crimes deserve the greatest Punishment, which are the most difficult to be guarded against. Orat. pro Sext. Rosc. Amerin. (Cap. XL.) Grotius.
[2. ]Lib. II. Chap. II. Num. 6.
[3. ]Num. 14. p. 814.
[4. ]At Athens, those who stole in Baths were punished with Death, if the Thing stolen were worth more than ten Drachmas, (that is, about two Crowns) as Demosthenes informs us. Orat. Advers. Timocrat. See also Digest. Lib. XLVII. Tit. XVII. De furibus balneariis, Leg. I. Grotius.
[5. ][Epist. Lib. IV. Ep. IX. Num. 17. Edit. Cellar.]
[6. ]Nonnunquam even it, ut, &c. Digest. Lib. XLVIII. Tit. XIX. De Poenis. Leg. XVI. § 10. See the Variae Lectiones of William de Ranchin, Lib. I. Cap. XI. where he had collected several Authorities upon this Head.
[a ]Senec. De Clement. Lib. 1. Cap. 2. in fin.
[b ]Ibid. Cap. 20.
[1 ]It is in B. I. where he says, that after the publick Sacrifices, at which the Kings of Egypt were always present, the Chief Priest recounted the King’s Virtues, amongst which he included that, which consists in not punishing the Guilty so rigorously as they deserve, and on the contrary in rewarding the Good beyond their Merit. Bibliothec. Hist. Lib. I. Cap. LXX. p. 45. Edit. H. Steph. So that it was an Encomium given to all their Kings, in order to exhort them indirectly to deserve it; as the Historian observes a little lower.
[2. ]The Emperor Justin II. writing to the Huns, says, That it was the Custom of the Romans to punish Offenders less rigorously than their Crimes deserved. Grotius.
[c ]Cap. 24.
[3. ]This is what the Emperor Henry I. designed by the Symbol of a Pomgranate with the Motto Subacre, something sharp. King Theodorick said, that it was dangerous to punish, but always safe to forgive. Nam qui periculose justi sumus, sub securitate semper ignoscimus.Cassiodore, Var. XI. 40. Grotius.
[4. ]Orat. Ad Nicocl. p. 19. D. Edit. H. Steph.
[5. ]Sic tamen etiam ipsos criminium ultores, &c. (Epist. LIV.)
[6. ]Unde mihi sollicitudo maxima incussa est, &c. Ad Marcellin. Comit. Epist. CLIX. which Passage is cited in the Canon Law, Caus. XXIII. Quaest. V. Cap. I. See Macedonius’s Letter to St. Austin, and the answer of that Father, Epist. LIII. and LIV. The former demands, why it is the Duty of an Ecclesiastick to intercede for Criminals, as the Ecclesiastick believed it to be: Officium Sacerdotii vestri esse dicitis, intervenire pro reis. See what is said in regard to Theodosius the younger in the Extracts of Johan. Antiochen. taken from the Manuscript of Mr. De Peiresc (p. 850.) Grotius.
[1 ]Director Dubitant. Lib. III. Cap. XLI. See also the Decretals, Lib. V. Tit. XI. De Homicid. voluntar. vel casual. Cap. VI. Grotius.
[2. ]Sed haec quatuor consideranda sunt septem modis: Causâ, personâ, loco, tempore, qualitate, quantitate, & eventu. Digest. Lib. XLVIII. Tit. XIX. De Poenis, Leg. XVI. §1.
[3. ]Philo the Jew observes, that Circumstances render a Crime more or less enormous. For Example, says he, it is not the same Thing whether you strike your Father or a Stranger; whether you speak ill of a Magistrate or a private Person, or do an unlawful Thing in a profane or sacred Place, upon a Festival or another Day. Delegib. special. Lib. II. (p. 805.) The same Thing may be found in a Law of the Digest. Person a atrocior—nam populi Romani. [Our Author reads it thus, with Reason, instead of Praetor is, in which he follows Cujas’s Correction. Observ. IX. 16.] In conspectu an, &c. Digest, Lib. XLVII. Tit. X. De injuriis & famosis libellis, Leg. VII. § 8. Grotius.
[4. ]The more attentively a Man considers a bad Action which he designs to commit, the more ought he to be shocked at the Turpitude of it.
[5. ]The more violent the Desire is, the more eager we are, for Instance, to steal a large Sum of Money.
[1 ]Noct. Attic. Lib. VII. Cap. III. p. 384. Edit. Gron. 1706.
[2. ]Excerpt. Controv. IV. 7. This was not a general Rule. See above, § 18, Note 1.
[3. ]De Ira, Lib. I. Cap. III. He says elsewhere, that a Highwayman is such, even before he robs and murders Travellers, because he intends to do so. Sic Latro est etiam antequam, &c. De Benefic. Lib. V. Cap. XIV. Philo the Jew says, that not only those who kill are to be deemed Murderers, but even those who either openly or privily do all they can to deprive any one of Life, tho’ they have not as yet executed their Design. De legib. special. Lib. II. (p. 790). Grotius.
[4. ]Orat. pro Milon. (Cap. VII.) A Roman was accused and condemned, for having only promised a Lady Money, without having gratified his Desires with her. Valerius Maximus says, on that Occasion, that it was not his Fact, but his Design, that was called in Question; and, that it was more disadvantageous to the Criminal, to have intended, than advantageous not to have committed, the Crime. Metellus quoque Celer stuprosae mentis acer punitor extitit, &c. (Lib. VI. Cap. I. Num. 8.) Grotius.
[5. ]Diogenes Laertius, Lib. I. § 98.
[6. ]Quodque belli parandi adversus Populum Romanum, &c.Livy, Lib. XLII. Cap. XXX. Num. 11.
[7. ]Neque moribus, neque legibus, ullius civitatis it a comparatum esse, &c. Lib. XLV. Cap. XXIV. Num. 3.
[8. ]Est enim ulciscendi & puniendi modus, &c. De Offic. Lib. I. Cap. XI.
[9. ]Extra judicium. Our Author means here the Law of Deuteronomy, in Regard to false Witnesses, xix. 19. which he has cited above, § 32. Num 2.
[10. ]St. Chrysostom has several Things to this Purpose, upon Rom. iii. 13. and upon Chap. vii. Grotius.
[1 ]And the Seas too, Philo, De legat. Ἡρακλη̂ς ἐκάθηρε γη̂ς, &c. Hercules cleared both Sea and Land, undertaking Enterprizes necessary and advantageous to all the World, Enterprizes designed purely for the Destruction of every Thing that was hurtful and pernicious amongst Men and Beasts.Grotius.
[a ]De Benef. l. 1. c. 13. See Isocr. Hel. Enc.
[2. ]Orat. XXXI. seu Funebr. Cap. V.
[3. ]Lib. IV. Cap. XVII. p. 157.
[b ]Lib. 5. c. 76. p. 236. Ed. H. Steph.
[4. ]See Plutarch, in his Life. Tom. I. p. 4, 5.
[5. ](Ver. 339, 340.) When the Herald says there,
Plutarch, in his Life, Ἀπήλλαττε τὴν Ἑλλάδα δεινω̂ν τυράννων, He delivered Greece from some terrible Tyrants. And again, Δὲν αὐτός, &c. Without being any ways injured himself, to vindicate others, and, for their Security, he employed his Arms against the Wicked.Grotius.
[c ]Lib. 5. c. 3. n. 3. ext.
[6. ]Plutarch, De fortuna Alexander. Tom. II. p. 328.
[7. ]The same may be said of those who kill Strangers that come to dwell amongst them. This Example, which is in the first Edition, is restored by Mr. Barbeyrac, having been left out in all the other Impressions. The Omission he thinks was occasioned by the Authorities added after each Example, which either caused the Author inadvertently to strike out the Words Hospites occidunt, or the Printer to skip over them through Mistake. Our Author, without Doubt, had in View what is related of the Scythians, who sacrificed Strangers, and eat them, making Cups afterwards of their Skulls. Strabo, Geograph. Lib. VII. p. 460. B. Edit. Amstel. (300. Edit. Paris.) See also Lactantius, Inst. Divin. Lib. 1. Cap. XXI. where he speaks of the Taurians, a People of Scythia, beyond the Euxine Sea, amongst whom was a Law, that all Strangers who came into their Country, should be sacrificed to Diana. Eratlexapud Tauros, in humanam & feram gentem, uti Dianae hospites immolarentur. And Ovid mentions this Practice as subsisting in his Time, Lib. IV. Trist. Eleg. IV. ver. 63, 64.
[8. ]Alexander the Great reclaimed the Scythians also from this Custom. Grotius. Plutarch, from whom our Author, no Doubt, takes this, says, that Alexander taught the Scythians to bury, and not to eat their Dead. De fortun. Alexand. p. 328. C. In Regard to the Thing itself, see what I have said on Pufendorf. Law of Nature and Nations, B. VIII. Chap. VI. § 5. Note 5.
[9. ]See an Account in Dionysius Halicarnassensis, how Hercules abolished this, and many other in human Customs, making no Distinction in his Favours between Greeks and Barbarians.Pliny XXX. 1. crys up the no less Merit of the Romans, for the Good they did Mankind, It cannot be sufficiently expressed, says he, how much is owing to the Romans, for destroying those Monsters, who imagined it an Act of great Devotion to murder a Man, and thought it very much for their Health to eat him when they had done. Add to this what we shall say in this Chapter, Sect. XLVII. Num. 9. So Justinian commanded the Princes of the Abasgi, not to castrate their Subjects Children. Procopius mentions this Affair, Gothic. IV. and Zonaras, in his Life of Leo Isaurus. And the Incha’s, Kings of Peru, compelled by Force of Arms the neighbouring Nations, whom they could not reclaim by their Admonitions, to abstain from Incest, Sodomy, Eating of Man’s Flesh, and such like abominable Practices, and by this Means obtained an Empire, of all we read of, excepting their Religion, the justest. Grotius.
[d ]This he says in Regard to the Maxims of judicial Astrology. De civit. Dei, l. 5. c. I.
[10. ]Aristotle does not directly say the Persians, but the Barbarians in general; a Name which the Greeks gave to all other Nations. The Passage which our Author has in View, is in that Philosopher’s Politicks, where he says, that War, which he considers as a Species of Hunting, is naturally just against those People who are naturally formed for obeying, or, as he terms it, naturally Slaves. Lib. I. Chap. VIII. p. 304. D. Vol. II. Edit. Paris. He had said before, after the Poets, that Slave and Barbarian were the same. Cap. II. p. 297. C.
[11. ]Τὸν δε πόλεμον ὑπελάμβανον, &c. That is, “The most necessary and just War, in the Opinion of our Ancestors, is first, that which all Men make upon wild Beasts; and next, that made by the Greeks upon the Barbarians, who are naturally our Enemies, and are perpetually laying Snares for our Ruin.” Orat. Panathen. p. 460. We see from this, that our Author does not give us exactly the Sense of the Passage.
[12. ]See Josephus Acosta, De procuranda Indorum salute, Lib. XI. Cap. IV. Grotius.
[e ]Ch 2. § 1. & § 5. n. 3.
[13. ]Etiam post susceptum bellum ex causâ non punitivâ. So it is in all the Editions before mine, in which I have thus restored the Text, PostJustesusceptum bellum. The Reasoning required the Addition of that Adverb, which had been manifestly omitted through the Fault of the Printers. The Author reasons upon the Supposition of the Opinion’s being true that opposes his own; so that, on this Supposition, no War is to be undertaken on Purpose to punish him against whom we take Arms; and yet this is what the Expression of the Text, as it stands, supposes. Besides, there is more Reason to doubt the Right of Punishing, in a War undertaken for some Cause that has no Relation to Punishment, than in a War expressly commenced to punish him against whom we take Arms; and yet the Word our Author uses here, plainly supposes the contrary. In that Case it had been necessary to say, saltem, at least, and not etiam, even. In a Word, the Sense of this Passage appears to me inexplicable, without the Word I have added to it, and which might easily have been omitted, from the Resemblance of the initial Letters of the following Word susceptum. The Moment justè is added, there is no longer the least Difficulty, and the Force of the Reasoning is perceived. For, if the War be supposed to be unjustly undertaken, the Injustice of the Cause would make it less surprizing, that it should give no Right of punishing. For the Rest, we need not wonder that our Author did not observe this Omission in the new Editions he revised: We have seen before, Chap. XII. of this Book, § 10. an undoubted Omission, which is however in all the Editions; and it is remarkable, that the Word wanting there is the Adverb opposite to that wanting here, and of which the Letters are almost the same, I mean injustè.
[1 ]It is where, censuring the unbounded Ambition of Caesar and Pompey, he says, that if they had desired Trophies and Triumphs, they might have satiated themselves with them, by making War upon the Parthians and Germans, without mentioning the Scythians and Indians, who would have found them sufficient Employment. He adds, that they would have had a fine Pretext for attacking those Nations, namely, the Desire of civilizing them. Vit. Pompeij, Vol. I. p. 656. D. Edit. Wech.
[1 ]Asterius, Bishop of Amasea, Οἱ τοɩ̂ς τον̂ βίου, &c. Those who regard only the Legislators of this Life leave the Liberty of Whoredom without a Punishment. Add to this a Passage of St. Jerome to Oceanus, cited by us at Chap. V. Sect. IX. Grotius.
[2. ]Usury considered in itself and kept within due Bounds, is very innocent, both by the Law of Nature, and by the Law of GOD. This our Author afterwards confessed, as we have observed before, in Chap. XII. of this Book, § 20.
[1 ]Philo the Jew says, that Adultery is punished in all Countries; and that it is lawful even to kill on the Spot such as are taken in the Fact. In vit a Joseph. (p. 533. B. Edit. Paris.) Ulpian the Lawyer describes Adultery as a Thing naturally dishonest, Ut puta furtum, Adulterium, natura turpe est. Digest. Lib. L. Tit. XVI. De verborum significat. Leg. XLII. And Papinian says, that neither Sex nor Age render Adultery excusable, Quum alias Adulterii crimen, &c. Lib. XLVIII. Tit. V. Ad Leg. Jul. de Adulter. Leg. XXXVIII. § 4. According to Lactantius, Adultery is contrary to the common Right of all Nations. Item non Adulterare. Sed hoc praecepto, &c. Epitom. Institut. Divin. (Cap. V. Num. 15.) Grotius.
[a ]Matt. x. 15. Luke xii 47, 48.
[2. ]St. Jerome observes, that in every Nation Men hold those Maxims to be the Law of Nature, in which they have been educated. Et in omni conversatione unaquaeque gens,—&c. Lib. II. Advers. Jovinian. (Vol. II. p. 75. B Edit. Basil.) Grotius.
[3. ]Ethic. Nicom. Lib. VII. (Cap. VI. p. 91. B.) Grotius.
[4. ]Quippe non delicta Regum illos, &c.Justin, Lib. XXXVIII. Cap. VI. Num. 1.
[1 ]This Passage is in the Constitutions ascribed to St. Clement. We find in St. Cyprian, that all Bishops are bound in Duty to watch for the Good of the whole Church, of which the Members are dispersed in different Countries, Omnes enim nos decet, &c. Epist. XXX. Edit. Pamel. (XXXVI. Fell.) That Father remarks elsewhere, There is but one Episcopacy, of which each Bishop holds his own respective Part entire, Episcopatus unus est, cujus a singulis in solidum pars tenetur. De unitat. Eccles. (p. 108.) There are many Instances to be found in his Works, of this universal Care of all the Churches, and especially in Letter LXVII. (LXVIII. Edit. Fell.) See also St. Chrysostom, in laudibus S. Eustathii.Grotius.
[2. ]Tacitus attributes this Expression to the Emperor Tiberius. Annal. Lib. I. Cap. LXXIII. Num. 4.
[3. ]Another Emperor, Alexander Severus, uses this Reason to justify the Impunity granted to Perjury by the Roman Law, Jurisjurandi contemta religio, satis Deum ultorem habet. Code, Lib. IV. Tit. I. De rebus creditis, &c. Leg. II.
[4. ]This is very conformable to the Doctrine of that Philosopher, and to the Maxims he lays down in several Places. But I find no where the very Words attributed to him by our Author, and which he gives us only in Latin, both here, and in his Treatise De imperio summarum Potestatum circa sacra, Cap. I. § 13. The learned Boecler quotes them exactly in the same Manner, in his Dissertation intitled, Romasubseptem regibus, Vol. II. p. 485. But neither does he direct us to any Passage; which shews that he copied them here without any other Examination, as is often done by him and others.
[5. ]Advers. Colot. p. 1125. E. Vol. II. Edit. Wech.
[6. ][De Monarchia, Lib. I. p. 818. B.] He observes elsewhere, that the Belief of one GOD is the most efficacious Cause of Concord, and the most in dissoluble Tie of Love and Unity amongst a People. De Fortitud. (p. 741. D. E.) Josephus says, that the best Means to unite Men, is to bring them into one and the same Opinion, concerning the Divinity, without differing in their Way of Life and Manners. Contra Apion, Lib. II. (p. 1072. F.) Grotius.
[7. ]Silius Italicus, De bello Punic. (Lib. IV. ver. 794, 795.) Josephus, enquiring into the Reasons why many antient States were very ill regulated, says, that it proceeded from their first Legislators having neither known the true Nature of GOD, nor given themselves the Trouble to make known what they might comprehend of it, and to frame their Laws by that Standard. Contra Apion. Lib. II. (p. 1078. E.) See there some excellent Thoughts that follow immediately after Grotius.
[8. ]De Superstit. init. p. 164. E. Vol. II. Edit. Wech.
[9. ]The Passage of this Philosopher, taken from his Book upon Law, is cited in the Digest, Lib. I. Tit. III. De legib. &c. Leg. II.
[a ]Pol. l. 7. c. 3.
[10. ]Jurisprudentia est divinarum atque humanarum rerum notitia, justi atqueinjusti scientia. Digest. Lib. I. Tit. I. De. Just. & Jure, Leg. X. § 2.
[11. ]De creatione Magistrat. (p. 723. B.) Justin Martyr, exhorting the Emperors to have a due Regard for Religion, represents to them, that such a Regard is worthy of a Prince, See what is said by Covarruvias, Relect. in Cap. Peccatum, Part. II.§ 10. Grotius.
[12. ]De Cyri Institution. Lib. VIII. Cap. I. § 9. Edit. Oxon.
[13. ]De Natur. Deor. Lib. I. Cap. II.
[14. ]De finib. bon. & mal. Lib. IV. Cap. V. Philo the Jew says, that Piety and Humanity, or Justice, proceeds from the same Quality of Mind. De Abraham.Grotius.
[15. ]He asserted, that there was nothing just by Nature, and that if Crimes were to be avoided, it was only because they were inevitably attended with the Fear of Punishment; upon which Seneca declares against him. Illic dissentiamus cumEpicuro, &c. Epist. XCVII. Grotius.
[16. ]Lib. X. § 150, 151.
[17. ]Politic. Lib. V. Cap. XI. p. 409. E.
[b ]Lib. 36. c. 2. n. 16.
[c ]Geogr. l. 16. p. 1104. Ed. Amst. 761. Ed. Paris.
[d ]Inst. Divin. l. 5. c. 14. n. 12.
[e ]De Ira Dei, c. 7. n. 23.
[18. ]Quia quod in Religionem divinam, &c. Cod. Lib. I. Tit. V. De Haereticis, &c. Leg. IV. But the bare Inscription of this Title shews, that Arcadius and Honorius extended their Maxim much farther than our Author designed to admit it; for what they called A Crime against Religion, consisted in not receiving all the Opinions of the Ecclesiasticks, who had got Possession of the Minds of those Princes.
[1 ]The Philosopher Antisthenes [and not Antiphanes, as our Author calls him in his Exposition of the Decalogue] said, as Clemens Alexandrinus informs us, that the Divinity being invisible, and resembling nothing which is the Object of our Senses, it follows, that no one can know him by any Image. (Protreptric. Cap. VI. p. 61. Edit. Oxon.) Which Thought Seneca seems to have borrowed, Ipse, qui ea tractat, qui condidit, &c. Natur. Quaest. Lib. VII. Cap. XXX. Plutarch says, that it was injurious to the Divinity, to resemble him to Things below him; and besides, that he was to be conceived only by the Thought. Vit. Num. (p. 65. Vol. I. Edit. Wech.) See also Dionysius Halicarnassensis, upon Numa’s Conduct, in Regard to the corporeal Representations of the Divinity. Grotius.
[2. ]In the Letter of Agrippa to the Emperor Caligula; and he speaks there of the Opinion which the Jews always had upon this Subject. (De legat. ad Cajum. p. 1032. E.) Grotius.
[a ]In Fragm. (e lib. 40.)
[b ]Dion Cassius observes the same Thing. l. 36.
[c ]Hist. l. 5. c. 5. n. 8. See also Strabo, Geogr. 1. 16.
[3. ]The Author of the Answers to the orthodox Christians, at the sixty-ninth Question, ἵνα ον̂̔ν ϕυλαχθη̂, &c. And therefore, that the Memory of the World’s Creation might be preserved among Men, GOD, in Holy Writ, commanded a greater Honour to be paid to the seventh Number, than to any of the Rest. See also what goes before there. Grotius.
[4. ]Topic. Lib. I. Cap. XI. p. 187. E. Vol. I. Edit. Paris.
[5. ]Ibid. Lib. II. Cap. XI. p. 205, A.
[6. ]Diodorus Siculus says, that there is a natural Piety or Religion, ϕυσικὴ εὐλάβεια, Fragment. (E. Lib. XXIII. Eclog. XI.) The Emperor Julian asserts, that Every one knows, without being taught, that there is a Divinity; and adds, that he makes himself as perceptible to the Soul as the Light to the Eye. Ad Heraclium, (Orat. VII. p. 209. C. Edit. Spanheim.) Philo the Jew reasons in this Manner, Chance produces no Work of Art; now nothing can be made with more Art than the World; it was therefore made by a most skilful and perfect Artist. Hence, adds he, we come to discover the Existence of GOD. De Monarchia, (p. 815. E.) Tertullian says, that the internal Sense of a Divinity is natural to the Soul, Animae enim a primordio, conscientia DEI, dos est. Advers. Marcion. (Lib. I. Cap. X.) He observes elsewhere, that GOD is first known by Nature, and then by Doctrine: We know him by Nature from his Works; by Doctrine from the Preaching of the Gospel, Lib. I. Adv. Marcion. (Cap. XVIII.) St. Cyprian maintains, that it is the Heighth of Wickedness not to acknowledge him, of whose Existence it is impossible to be ignorant. Atque haec est summa delicti, &c. De Idolorum vanitate, (Cap. V. Num. 9. Edit. Cellar.) Grotius.
[7. ]Ὑπόληψις ἐπίκτητος. Our Author does not say in what Discourse of that antient Orator this Passage is to be found. It is probably that which he cites below, in the next Paragraph, Num. 3. But I have not the Book at present, to look for the two Passages.
[8. ]In Amator. p. 756. B. Vol. II. Edit. Wech.
[9. ]De Coelo, Lib. I. Cap. III. p. 434. E. Vol. I. Edit. Paris.
[10. ]Lib. X. p. 887. Edit. Steph.
[1 ]Sunt enim Philosophi, &c. De Natur. Deorum. Lib. I. Cap. II.
[2. ](Enchirid. Cap. XXVIII. init.) Seneca says, the Worship of the Gods consists first in the Belief of their Existence, then in the Acknowledgment of their Majesty and Goodness, without which there is no true Majesty. Primus est Deorum cultus, &c. Epist. XCV. Grotius.
[3. ]Var. Hist. Lib. II. Cap. XXXI.
[4. ]De communib. notit. adv. Stoic. (p. 1075. E. Vol. II. Edit. Wech.)
[a ]De Ira Dei, c. 6. n. 2.
[5. ]Seneca, Epist. CXVII. That there are Gods; among other Arguments that might be urged to prove it, we from hence conclude, because that such an Opinion is implanted in all Mankind. Nor is there any Nation so abandoned, so uncivilized, as not to believe it. And in his fourth Book, De Beneficiis, Chap. IV. Nor could all the World have conspired in so much Madness, as to address Deities who can neither hear their Prayers, nor give them any Assistance. Add to this, Plato, Protagor, and Lib. X. De legib. and some fine Passages in Jamblichus, about the Beginning of his Treatise, concerning the Mysteries of the Aegyptian, where he says, It is as natural for Man to know there is a GOD, as it is for a Horse to neigh. Grotius.
[6. ]Veluti [Jus Gentium est] erga Deum religio, &c. Digest. Lib. I. De. Justit. & Jure, Leg. II. The Law of Nations is here understood to be that which the Light of Nature discovers, and which is therefore received by all Nations never so little civilized.
[7. ]Xenophon, Memorab. Socrat. (Lib. IV. Cap. IV. § 19. Edit. Oxon.)
[8. ]Our Author here cites Cicero’s first Book, De Natur. Deor. and his second, De inventione. The first Passage is, Quae est enim gens, aut quod genus hominum, quod non habeat sine doctrina anticipationem quamdam Deorum? Cap. XVI. As to the other Treatise, I find nothing in it that has any Relation to the Subject, except the Beginning of a Passage already quoted, § 8. Note 5. See also the Tusculan Questions, Lib. I. Cap. XIII.
[b ]In conviv. c. 4. § 47.
[9. ]Therefore those only who dogmatize can be lawfully punished. See what I have said upon Pufendorf’s Law of Nature and Nations, B. III. Chap. IV. § 4. Note 1.
[10. ]Moxus the Lydian, having taken the City of Crambus by Siege, drowned all the Inhabitants, Οἷον ἀθέους, As Athiests, because they neither acknowledged nor worshipped any GOD. Nicolaus Damascenus, in Excerpt. Peires.Grotius.
[11. ]The Athenians expelled him their City; or, as others say, that Philosopher having fled for Fear of being punished, they set a Price upon his Head. See Aristophanes’s Comedy of the Birds, with the Note of the Greek Scholiast, and Valerius Maximus, Lib. I. Cap. I. Num. 7. extern.
[12. ]See Aelian, Var. Hist. IX. 12. and the Commentators upon that Place.
[13. ]Himerius, Action. in Epicur. Our Author has taken this Passage from the Bibliotheque of Photius. Cod. CCXLIII. p. 1083. Edit. Rothom. 1653.
[1 ]The Passage of Deuteronomy does not speak of the Introduction of an idolatrous Worship, practised by all the Inhabitants, but of the Toleration of that Worship, practised by some particular Persons, who sollicited others with Impunity. See Mr. Le Clerc upon that Place.
[2. ]Philo, upon the Decalogue, speaking of such Persons, εἰσὶ δ’ οἳ καὶ πρόσυπερ βάλλουσιν, &c. But there are some whose Impiety goes farther still, who do not so much as make an Equality between GOD and his Works, but give all the Honour to these alone; so far from letting him have a Share of it, that they do not vouchsafe that Universal Being a bare Memorial, these Wretches are unmindful of him whom alone they ought to remember, industriously contriving a voluntary Forgetfulness. So Maimonides expounds the Passage in Deuteronomy, Direct. III. 41. Grotius.
[3. ]Agrippa’s Letter to the Emperor Caligula. De Legat. ad Cajum. p. 1031. B.
[4. ]Quaest. Academic. Lib. IV. Cap. III.
[5. ]Thus the Jews admitted into their Temple, the Sacrifices sent them by the Kings of Aegypt, and the Emperors Augustus and Tiberius, as Philo (de Legat. ad Cajum. p. 1036. C.) and Josephus inform us. Grotius.
[6. ]If all such People acted in Consequence of their Idolatry; that is, if they proceeded to Things actually criminal, after the Example of the Objects of their Worship, they are punishable. But if they do not follow their Principles, as has often happened in the Pagan World, nothing obliges, or authorizes the punishing them.
[7. ]Adferentes edictum [Darii] quo Poeni, &c.Justin, Lib. XIX. (Cap. I. Num. 10.) This was Darius, the Son of Hystaspes, Father of Xerxes. See what has been said on this Head, § 41. Grotius.
[8. ]He would not make Peace with the Carthaginians but upon this Condition. Plutarch, Apophthegm. Reg. & Imper. p. 175. A. Vol. II. Edit. Wech. See also De sera Numinis Vindicta. p. 552. Iphicrates is also said to have put a Stop to this barbarous Custom of sacrificing human Victims amongst the Carthaginians. See the Remark of Isaac Vossius, upon the Passage of Justin cited in the foregoing Note. For the Rest, the Thing was the more abominable, as the People sacrificed their own Children, which the Canaanites also did, in Honour of Moloch. See a long Note of our Author upon Deuteronomy, xviii. 10. and Mr. Le Clerc upon Leviticus, xviii. 21.
[9. ]He calls these People Bletonesians: A Name which I find no where else; nor do I know that any Geographer has used it, unless the Word be corrupted, διὰ τί τον̂ς καλουμένους βλετονησίους, &c. Quaest. Roman. LXXXIII. p. 283. E. Vol. II. If more Examples are required of Nations, antient and modern, amongst whom the abominable Custom of sacrificing human Victims is established, the Reader need only consult a Dissertation of George Moebius, some Time since Professor of Theology at Leipsick, intitled De Sacrificiorum origine & materia, and printed in 1660. at the End of his Treatise De Oraculorum Ethnicorum origine, &c.
[1 ]Besides the Prejudices of Education, and the Attachment of all People to the Principles of Religion they have once imbibed.
[2. ]De Judaeis autem praecipit sancta Synodus nemini deinceps ad credendum vim inferri. Cui enim vult Deus, miseretur, & quem vult, indurat. In Jure Canonic. Distinct. XLV. Cap. V. Josephus says, that every one ought to serve GOD freely, according to the Light of his Conscience, and not to be compelled to believe such and such Things in Matters of Religion. Grotius.
[3. ][[Footnote number missing in text, supplied from Latin edition. Servius the Grammarian has observed, that whenever the Reason of an Event does not appear, and no Judgment can be formed of it, it has been customary to say, It pleased the Gods. [Visum Superis] Ut ipse ait Neptunum, Junonem, Minervam, &c.—Quotiescunque autem ratio, vel judicium non adparet, sic visum, interponitur: UtHoratius, sic visum Veneri, &c. In Aeneid III. 2. Donatus makes the same Remark, Quid si hoc quispiam voluit DEUS, Pleraque repentinis impulsionibus nata mirisque proventibus, DEO adscribi solent. Ut, Descendo, ac ducente DEO, flammam inter & hostes Expedior. Et: Hinc me digressum vestris DEUS adpulet or is. EtSallustius: Ut tanta repente mutatio non sine DEO videretur. In Eunuch.Terent. Act. V. Scen. II. (v. 36.) The Rabbi Abarbanel says the Word תפצ is taken also in the same Sense. Grotius.]]
[4. ]This Subject is treated by Gregory Nazianzen, in his Oration, entitled, Cum assumptus est à Patre: And by Bede, Lib. XXVI. Isidore, speaking of King Sisebutus, Who, in the Beginning of his Reign, attempting to bring over the Jews to the Christian Faith, had indeed a Zeal for GOD, but not according to Knowledge; for he compelled them by the Power of the Sword, when he ought to have won them by Reason and Argument.Rodericus has transcribed this Passage in his History, II. 13. The later Kings of Spain, are, on this Account blamed, by Osorius and Mariana. See the latter, XXVI. 14. XXVII. 5. Grotius.
[5. ]Lex Nova non se vindicat ultore gladio. I have already observed in a Note upon Vol. III. of Tillotson’s Sermons, p. 13. that our Author, citing by Memory, had in View the following Words, Nam vetus Lex ultione gladii se vindicabat, & oculum pro oculo eruebat, & vindictam injuriae retribuebat. Nova autem Lex clementiam designabat. Advers. Judaeos, Cap. III.
[6. ]Τὸ αὐτεξούσιον τω̂ν ἀνθρώπων, &c.
[7. ]Epist. ad solitar. vit. agent. Vol. I. p. 855. A. Edit. Colon. seu Lips. 1686.
[8. ]St. Cyprian, Epist. LV. Turning to his Apostles, he said, Will ye also go away? Observing the Method of the Law, which leaving every Man to his own Liberty, and at his own Disposal, gives him the Choice of Life and Death, and so makes himself the Author of his own Fate.Grotius.
[9. ]Ἐρωτα̂ λέγων· Μὴ καὶ ὑμεɩ̂ς θέλετε ὑπάγειν, &c. Ad loc.Joann.
[10. ]St. Cyprian, De Idolorum vanitate, with an Eye to this Passage, says, But the Disciples, by the Advice and Order of their Lord and Master, dispersing themselves over the whole World, were to offer Men the saving Precepts of GOD, to bring them out of Darkness and Error to Light and Glory, and to hand the Blind and Ignorant to the Knowledge of the Truth. But lest this should be too slight a Proof of their Fidelity, and too nice and tender a confession of CHRIST, Tortures, Crosses, and a thousand other Punishments, tempt and try their Strength and Constancy. Cap. VII. Num. 6, 7. Edit. Celler.Grotius.
[11. ]See the Letter of Theodahadus King of the Goths, to Justinian, in Cassiodorus. Var. X. 26. Grotius.
[1 ]Seque sacramento non in scelus aliquod, &c. Lib. X. Epist. XCVII. Num. 7. Edit. Cellar.
[2. ]He says this in Regard to George, Bishop of Alexandria, a turbulent Man, and a great Accuser, Profession is que suae oblitus, quae nihil nisi justum suadet & lene, ad delatorum ausa feralia desciscebat. (Lib. XXII. Cap. XI. p. 353. Edit. Vales. Gron.) The same Historian stiles Christianity, a plain and sincere Religion. Christianam Religionem absolutam & simplicem, anili superstitione confundens (Constantius, &c. Lib. XXI. Cap. XVI. p. 318.) Zosimus, another Heathen Writer, says, that the Christian Religion undertakes to deliver its Professors from all Manner of Vice and Impiety. (Lib. II. Cap. XXIX. Num. 7. Edit. Cellar.) The Pagans generally termed it, a harmless and inoffensive Sect. Secta nemini molesta.Tertullian, Scorpiaco, (Cap. I.) Justin Martyr maintains, that of all Mankind the Christians contribute most to the Tranquillity of the Empire; because they teach, that whether Men do well or ill, they cannot conceal their Actions from the Sight of GOD; and that all Men are to expect either eternal Punishment, or eternal Happiness, according to their good or bad Behaviour in this World. Apolog. II. Arnobius, speaking of the Assemblies of the Christians, says, that nothing was heard in them but what tended to inspire Humanity, Meekness, Modesty, Chastity, Liberality, Beneficence, and the Love of all Mankind. In quibus (conventiculis) aliud auditur nihil, &c. Advers. Gentes, Lib. IV. (p. 152, 153. Edit. Salmas. 1651.) Grotius.
[3. ]Bonus vir Cajus Sejus, tantum quod Christianus.Tertullian. Apologetic. Cap. III. See also Ad Nationes, Lib. I. Cap. IV.
[4. ]Our Author might very appositely have quoted here this Passage of Tertullian, Quum probi, quum boni coeunt, quum pii, quum casti congregantur, non est factio dicenda, sed Curia. Apologet. Cap. XXXIX. in fin.
[5. ]De Legat. ad Cajum. (p. 1035. E. Edit. Paris.) He shews elsewhere, how great a Difference there is between the Synagogues and the Mysteries of Paganism. Lib. De Sacrificant. (p. 856, & seq.) which Passage is well worth reading. See something of the same Kind in Josephus, contra Apion, Lib. II. Grotius.
[6. ]See Zonaras, (in the Life of Constantine, Vol. III. init.) St. Austin says, that if Maximian, Bishop of Vagiae in Africa, demanded Aid of a Christian Emperor, it was not so much to defend himself, as to defend the Church committed to his Care, against the Enemies of Christianity: Auxilium ergo petivit, &c. Ad Bonifac. Epist. L. These Words are inserted in the Canon Law, Caus. XXIII. Quaest III. Cap. II. Grotius.
[a ]See Menander Protector.
[1 ]Many Books of different Authors composed towards the Close of the last, and in the present, Age, are to be seen upon Toleration; in which Persecutors are entirely over thrown, as well by direct Proofs of the greatest Evidence, as unanswerable Arguments. All the World know these Works, which were published in several Languages, especially French and English. To these may be added the Observations of Matthias Bernegger, published at Strasburgh in 1669. Obs. XV.
[2. ]De Natur. Facult. Lib. I.
[3. ]St. Chrysostom also says, that there is nothing so difficult as to resolve to change, in Point of Religion. In I. ad Corinth. Hom. II. Grotius.
[4. ]Quandoquidem Haereticus est, ut mea fert opinio, &c. Cap. I. These Words are inserted in the Canon Law, Caus. XXIV. Quaest. III. (Cap. XXVIII.) He afterwards distinguishes between a Heretick, and a Person that suffers himself to be misled by the Arguments of a Heretick. Ille autem, qui hujus modi hominibus credit, homo est imaginatione quadam veritatis ac pietatis illusus. See the same Father’s Letter, CLXII. cited in the following Canon. In Justinian’s Code Heresy is called A mad Obstinacy. Nullus Haereticis ministeriorum locus, nulla ad exercendam animi obstinatior is dementiam pateat occasio. Lib. I. Tit. I. De summa Trinitat. &c. Leg. II. princ.Grotius.
[5. ]The Author of the Answers to the Orthodox, Quest. IV. says, Δη̂λοί εἰσιν, &c. It is evident, that either the Ambition or Jealousy of the Broachers gave Birth to all the Heresies in the World. St. Chrysostom, upon Gal. v. Ἡ γὰρ τω̂ν, &c. For Ambition is the Mother of Heresy.Grotius.
[6. ]De Gubernat. Dei. Lib. V. p. 150, 151. Edit. Paris. 1645.
[7. ]Agathias, in the first Book of his Histories, relating the ridiculous Superstitions of the Almaines, subjoins Ἐλεɩ̂σθαι μὲν, &c. But indeed whoever they are who offend against the Truth, they deserve rather our Pity than our Hatred, and are the more entitled to our Pardon: For they do not willingly deviate and stumble; but only when their Judgments are deceived in their Pursuit of Good, whatever they have once received, they are obstinately bent to retain. (Cap. V.) Grotius.
[8. ]This St. Chrysostom observes also. Can any one tell, says he, how the Person whom you conceive to be in an Error, will accuse or excuse himself, in the Day when GOD shall judge the Secrets of all Hearts: Upon which he adds, that The Judgments of GOD are unsearchable, and his Ways past finding out. Homil. contra Anathematizant. Grotius.
[9. ]Contra Epist. Manichaei, Quam vocant fundamenti, Cap. II. & III. p. 78, 79. Vol. VI. Edit. Basil. Fine Sayings, if this Father had not belied them by his Conduct! Consult Note 11. upon this Paragraph.
[10. ]It is with Reason we hate those People who were the first that introduced Persecution amongst Christians, and set so horrid an Example. See their Cruelties in Eusebius, De Vit. Constantin. Lib. I. Cap. V. XXXVIII. Socrates, Hist. Eccles. Lib. IV. Cap. XXIX. Procopius, Vandalic. Lib. I. where he speaks of Honoric, (or Huneric, Cap. VIII.) and Gotthic. Lib. I. (Cap. XIII.) concerning Amalaric; as also in Victor, Uticens. St. Epiphanius accuses the Demi-Arians of Persecuting those who profess and teach the Truth; and of endeavouring to convert them, not by Persuasion, but by Enmity, War, and the Sword; so that, adds he, they have not ruined one City or Country, but many. Gregory, Bishop of Rome, says to the Bishop of Constantinople, speaking of such Persecutors, that the converting of People to the Faith by Stripes is a new and unheard of Method of preaching the Gospel. Nova & inaudita est ista praedicatio, quae verberibus exigit fidem.Grotius.
[11. ]He adds, that it is the Property of Piety to use the Methods of Persuasion, not of Compulsion. Epist. ad Solitar. Vol. I. p. 855. A. One might take Advantage of so formal a Declaration of Saint Athanasius: But the Truth is, that he, and several others of the Fathers, who have spoke the same Language, have often contradicted themselves in their Conduct, and even admitted or established Principles, in Consequence of which Persecution, on account of Religion, was only condemned by Halves; so loose and ill-digested were their Maxims. The great St. Austin, in particular, has varied upon that Head, according to the Times, as our Author confesses in the same Place of his Notes upon the Gospel, which I have cited in the preceding Note. That Father, says he, long believed that those, who were called Hereticks, were not to be punished in any Manner whatsoever. But having many Combats afterwards to maintain against the Donatists, a pretty obstinate Sect, he changed his Sentiments, and approved of such Punishments as left the Criminal Time to repent; persisting otherwise to condemn capital Punishment, which he often opposed, in Regard to those People. See the Treatise of Mark Antony de Dominis, De Repub. Eccles. Lib. VII. Cap. VIII. in which he has collected several other Passages of the Fathers upon this Subject.
[a ]See St. Jerome upon it, as cited in Canon Law, caus. 63. qu. 4. cap. 13.
[12. ]Idacius & Ithacius.Sulpicius Severus observes, that they were very unwise to apply, as they did, immediately to the Civil Magistrates, in order to engage them to expel the Priscillianists out of the Cities. Tum vero Idacius, &c. (Hist. Sacr. Lib. II. Cap. XLVII. Num. 5. Edit. Vorst.) A little lower, speaking of the Council of Bourdeaux, in which the two Spanish Bishops before-mentioned, appeared as Accusers of the Priscillianists, that Historian says, that he would not blame their Zeal against the Heresy, if they had not acted with too much Heat, from the Desire of overcoming; and he equally condemns the Accusers and the Accused. Sequuti etiam accusatores, &c. (Cap. L. Num. 1, 2.) Martin, Bishop of Tours, spared no Pains to induce Idacius to desist from his Accusation; he begged the Emperor Maximus not to shed the Blood of those unhappy People; he represented to him, that it was sufficient, and more than sufficient, if, after having been declared Hereticks by the Sentence of the Bishops, they were excluded the Churches; that it was a new and unheard of Attempt, in Ecclesiastical Affairs, to have Recourse to the Civil Magistrate. Namque tum Martinus, &c. (Ibid. Num. 5.) Grotius.
[13. ]I find this Saying in the first Book De Republica, where that Philosopher speaks of those who, being ignorant of some Truth, are by that Ignorance generally led into some Error. p. 337. D. Vol. II. Edit. H. Steph. It is visibly from hence, that a Father of the Church has taken a Thought, quoted by our Author in the following Note.
[14. ]Error does not deserve the Name of Crime according to Seneca,
The same Philosopher says, No wise Man will hate those who are in an Error, for if he does he must hate himself. Non est autem prudentis, errantes odisse: Alioquin ipse sibi odio erit. De Ira, Lib. I. Cap. XIV. Marcus Antoninus says, “Instruct those who err, if you can; if you cannot, remember that your good Nature was given you, that you might use it towards them, and that the Gods are indulgent to such Persons.” Lib. IX. (§ 11.) St. Chrysostom says, that the Ignorant are neither to be punished nor accused, but to be instructed in what they are ignorant of. In Eph. iv. 17. Ammianus Marcellinus praises the Moderation of the Emperor Valentinian, in not molesting any one upon Account of Religion, and in suffering every Body to serve GOD in Peace, according to the Lights of his own Conscience. Postremo hoc moderamine, &c. Lib. XXX. Cap. IX. Grotius.
[1 ]See some fine Passages upon this Subject, in B. V. and VI. of St. Cyril, against the Emperor Julian. The Amphictyons, at the Persuasion of Solon, made War upon the Cirrhaeans, for having entered by Force into the Temple of Delphos; as Plutarch informs us in the Life of Solon, (p. 83. Vol. I. Edit. Wech.) So those who set themselves up for Prophets, and are not such, may be justly punished. See Agathias, Lib. V. (where he speaks of such People that rose up at Byzantium, Cap. III.) Grotius.
[a ]Thucyd. l. 1. c. 126. & seq. Ed. Oxon.
[b ]Diod. Sicul. l. 11. c. 60. & seq.
[2. ]Illum vindicem sacrilegii, &c. Lib. VIII. Cap. II. Num. 6.
[3. ]Quamdiu vasa fuerunt, &c. (Vol. V. p. 581. B. Edit. Basil.)
[4. ]Our Author does not say from whence he took this; and perhaps it is no where to be found, tho’ a learned German,Chrystopher Adam Rupert, advances the same Thing in his Observations uponValerius Maximus, Lib. I. Cap. I. p. 19. without Doubt upon our Author’s Authority. I very much suspect, that he has mistaken the Sense of the Father, or if that Father has said any Thing like it, he is not here entirely consistent in his Principles: For in his Treatise De Civitate Dei, Lib. V. Cap. XII. he proves at large, that the Divine Providence permitted the Empire of the Romans to increase, not on Account of their Attachment to their Religion, tho’ false; but because of their civil Virtues. See also Lib. IV. Cap. XII. I find in the Notes of Tesmar, a Passage of Lett. V. to Marcellinus, wherein that Compiler discovers the Thought ascribed by our Author to St. Augustin; but it is just the reverse, and I shall give the Passage, in order to prove at the same Time the Truth of my Observation, and the Want of Judgment which Tesmar shews in this Place, as he does every where else. Ut, quamdiu inde peregrinamur, feramus eos, si corrigere non valemus, qui, vitiis impunitis, volunt stare Rempublicam, quam primi Romani constituerunt, auxeruntque virtutibus: &, si non habentes veram pietatem erga DEUM verum, quae illos etiam in aeternam civitatem posset salubri religione perducere, custodientes tamen quandam sui generisProbitatem, quae possetTerrenae Civitati constituendae, augendae, conservandaequesufficere. DEUS enim sic ostendit in opulentissimo & praeclaro Imperio Romanorum, Quantum valerent civiles, etiam sine vera religione virtutes, &c. This agrees very well with what the antient Doctor says in the Places of his other Work, which I have quoted.
[5. ]He speaks of Idolaters in general, Nam isti fragilium cultores—aliquid tamen sapientiae retinent, & habere veniampossunt, quia summum hominis officium, etsi non re ipsâ, tamen proposito tenent. Instit. Divin. Lib. II. Cap. III. Num. 14. Edit. Cellar.
[c ]Chap. 13. § 12. of this Book.
[6. ]Injuriam sacrilegus DEO, &c. De benefic. Lib. VII. Cap. VII. The Philosopher does not speak of those who affront false Divinities; but his Meaning is, as appears by the whole Series of the Discourse, that tho’ by committing a Sacrilege, one does no Injury in Reality to the Divinity, whom he supposes a true GOD, because he is out of the Reach of all Harm; yet he who commits it deserves to be punished, because he believes he injures the Divinity, and others consider his Action on that Foot. Our Author, however, has since alledged this Passage, thus misapplied, in his Notes upon The Wisdom ofSolomon, ver. 31. where, upon the Word Opinio, he says, adde, aut professio.
[7. ]Et homicidii, veneficii, &c. Ibid. Lib. III. Cap. VI.
[d ]De legib. l. 10. n. 907, &c. tom. 2. Ed. Steph.