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CHAPTER XXI: Of the Communication 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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Of the Communication of Punishments.
I.How the Partakers of the Crime must partake of the Punishment.I. 1. Our Enquiry concerning the Communication of Punishments, relates either to those1 who are Accomplices in the Crime, or to others who are not so. Accomplices in a Crime are not said so properly to be punished for other Mens Faults, as2 their own. Who they are then, is easily learnt from what has been alreadya said, in Reference to the Damages consequent upon an Injury. For generally, by the same Means a Man may be Partaker of another’s Crime, as he is made liable to the Reparation of such Damages; tho’ an Obligation to this is not always attended with a Crime; but then only, when some more than ordinary Degree of Guilt concurs; whereas, to make a Man accountable for Damages received, the least Degree of Offence is frequently sufficient.
2. They therefore who command a wicked Action; who consent3 to it, when their Consent is necessary for committing it;4 who afford their Assistance;5 who shelter the Author of the Action, or are in any other Respect accessary to it, either6 in advising,7 commending, or encouraging the Fact; they8 who prevent it not,<454> when under a strict Obligation of so doing, or who do not aid the Sufferer, when invested with a proper Power and Authority thereunto; they who dissuade not, when in Duty they stand bound to do it; and they who then disclose not the Matter, when they are so obliged: These are all justly liable to Punishment, if there appear in them such a Measure of Guilt as deserves Punishment; according to the Maxims laid down in the foregoing Chapter.
II.The State or the Superior Powers are accountable for the Crimes of their Subjects, if they know of them, and do not prevent them, when they can and ought to do so.II. 1. This I shall illustrate by particular Instances. No civil Society, or other publick Body, is accountable for the Faults of its particular Members, unless it has concurred with them, or has been negligent in attending to its Charge. St. Austina very aptly distinguishes between the peculiar Faults of Individuls, and publick Faults committed by the Concurrence of a Multitude. Hence that Conditionb so frequent in Treaties1If the Violation was a publick Act. The Locrians in Livyc tell the Roman Senate that the Publick was not any ways concerned in their Revolt. And the same Authord reports that Zeno in his Justification of the Magnesians did with Tears beseech T. Quintius, and the other Embassadors, not to ascribe to a whole City the Follies of one particular Person, but that every Man should at his own Expence pay for his respective Extravagance. And the Rhodianse beg of the Senate to distinguish betwixt the Fact of the Publick, and the Fault of particular Men; affirming that there is no State which has not sometimes wicked Subjects and always an ignorant Mob to deal with. So neither is a Father responsible for his Children’s Crimes, nor a Master for his Servants, nor any other Superior for the Faults of those under his Care; if there be nothing criminal in his Conduct, with respect to the Faults of those, over whom he has Authority.
2. Now among those Methods that render Governours the Accomplices in a Crime, there are two of very frequent Use, and which require to be particularly considered, viz. Toleration and Protection. As to the first we thus determine, that a Man who is privy to a Fault and does not hinder it, when in a Capacity and under an Obligation of so doing, may properly be said to be the Author of it.2Cicero in his Oration against Piso says, that it is much the same Thing, especially in a Consul, whether by destructive Laws and seditious Speeches he disturbs the publick Peace himself, or connives at such a Practice in others. Thus3Brutus to Cicero; Will you charge me with another’s Crime? One is certainly guilty of another’s Crime, if it was in his Power to have prevented it. To be in a Fault ourselves, or not to hinder others to be so (says Agapetusf to Justinian) are equally criminal. And Arnobius,gThe Sufferance of an Offence makes the Offender more forward and audacious. Thus Salvian,hHe who prevents not an ill Action, when it is in his Power, injoins the doing of it; and4 St. Austin, Not to obviate and oppose a Thing, is an Argument of our assenting to it.
3. So by the Roman Laws,5 he who kept not his Slave from being prostituted, when he might, was taken for the Prostitutor himself. And if a Slave with his Master’s Knowledge commits Murder,6 the Master is wholly accountable for it, be-<455>cause it seems to be the Master’s Act; and when one Slave seduces and conceals another, the Punishment due to such a Crime is by the Fabian7 Law to be inflicted on the Master, if privy to it.
4. But as we said before, it is required that in Conjunction with the Knowledge there be sufficient Power to prevent it.8 In this Sense are we to understand Knowledge, when the Laws pronounce it criminal. So that it is he who becomes accountable for a Fault, who being invested with sufficient Power did not prevent it; and when Knowledge is punishable, it is likewise presupposed that there be an assent of the Will. As therefore, on the one Hand,9 the Actions of Slaves, who have gone to Law to prove that they are of a free Condition, or slight and disregard their Master’s Authority,10 are not imputable to their Masters, because in that Case they could not prevent what was done by their Slaves; nor those of Children11 to their Parents; if not under their Direction and Government, because Knowledge without Authority will not amount to Guilt; so, on the other Hand, are they not chargeable with any Crimes, tho’ they have it in their Power, and could otherwise have hindered them,12 if they are not privy to them. For to make a Man accountable for another’s Fault, there ought to be a Concurrence of Knowledge and Permission. All which will with respect to Princes and their Subjects hold equally good, because it is founded upon natural Equity.
5. And therefore Proculus thinks that of Hesiod not unreasonable.
14Because having proper Power, they exerted it not in preventing his Wickedness. So in the Grecian Army, as Agamemnon himself, as well as the rest, were dependent on the general Assembly, it was no Hardship that
Because it was their Business16 to have compelled him to restore the Priest his Daughter. So their Navy is afterwards said to be burnt by Pallas,
Which Affair Ovid, Metam. XIV. expresses thus:
Because they did not hinder the Rape of the Virgin Priestess. And we have an Account in18Livy, that some Laurentine Embassadors having been ill used by Persons nearly related to King Tatius, demanded of him Satisfaction for this Infringement of the Law of Nations, but by the Interest his Relations had in him, together with their Intreaties, he was byassed in their Favour, for which he brought upon himself the Punishment that was due to them. To this what Salvian says of Kings is very properly applicable, that19the Supreme Power, which is able to prevent the Commission of the greatest Villanies, does by Toleration manifest its Approbation of them. And20 in Thucydides we read that ὁ δυνάμενος, &c. He who can prevent a Crime, and does not, is more in Fault than the Actor. In Livy we find that the21Veientes and Latins excused themselves, by urging that it was without their Privity, that the Romans Enemies had received Assistance from their Subjects. But the Excuse ofiTeuta the Illyrian Queen would not serve, when she endeavoured to vindicate herself by asserting, that not by her, but her Subjects the Piracy was committed; because tho’ acquainted with their Practice, she did not prohibit them. And thekScyrians were long since condemned by the Amphictyones, for permitting some of their People to play the Pyrates.<457>
6. Now it is rational to conclude, that one must of Necessity know Things that are publickly and frequently transacted; for as Dion Prusaeensis says,22the Practice of considerable Numbers no Man can plead Ignorance of. Polybius smartly reprehends the23Aetolians, because when they would not profess themselves Enemies to Philip, they permitted their Subjects to exercise Acts of Hostility against him, and advanced their prime Leaders to great Honours.
III.And so are they if they allow a Retreat and Admittance to such as have done an ill Thing some where else.III. 1. Having thus discussed this Question, proceed we now, to shew how Guilt is contracted by Protection from Punishment: By the Law of Nature, as we observed before,a every particular Person, if himself not chargeable with any such Crime, has the Privilege of inflicting Punishment; but since the Establishment of States and Communities, it is judged reasonable to transfer this Right to the respective States or their Sovereigns, according to whose Discretion all Faults, as do properly concern them, are to be punished or remitted.
2. But the Right of punishing Offences against human Society is not so exclusively theirs, but that other publick Bodies, or their Governours have a Right to procure the Punishment of them in the same Manner as the Laws of a particular State allow1 every one an Action for certain Crimes. And much more have they this Right in regard to Offences, by which they are injured in particular, and which they may punish on that Account, in order to maintain their Honour and Safety, as we have said above. The State therefore, or Governour of the State, where the Delinquent is, ought to bring no Obstacle to the Right which belongs to the other Power.
IV.Unless they punish or deliver them up.IV. 1. But since for one State to admit within its Territories another foreign Power upon the Score of exacting Punishment is never practised, nor indeed convenient, it seems reasonable, that that State1 where the convicted Offender lives or has taken Shelter, should, upon Application being made to it, either punish the demanded Person according to his Demerits, or else deliver him up to be treated at the Discretion of the injured Party.2 This is that delivering up so commonly to be met with in History.
2. Thus did the Israelites demand of the Benjamites the Delivery of those flagitious Wretches mentioned in the twentieth of Judges; and the Philistins of the Hebrews that Sampson as a Malefactor should be given them up, Judges xv. So did the Lacedemonians make War upon theaMessenians, because they did not deliver up a Person who had slain several Lacedemonians; and at another Time,b for protecting from Punishment those who had defloured some Virgins sent to Sacrifice. And Cato was for havingcCaesar surrendered to the Germans for the unjust War he had<458> brought upon them. The Gauls likewise insistedd upon having the Fabii delivered to them, because they had invaded them. Thus did the Romans3 demand of the Hernicians some who had laid waste their Fields; and of the CarthaginianseAmilcar, not the famous General, but one who moved the Gauls to Rebellion,4 and afterwards Hannibal; and of Bocchus they required5Jugurtha in these Words, according to Sallust, That so you may ease us of the ungrateful Necessity of prosecuting not only a Villain, but you yourself for imprudently protecting him. And the Romans themselves did deliver up those who outraged the Carthaginianf Embassadors, and them likewise who had used the Embassadors ofgApollonia in the same Manner. ThehAchaeans demanded, that the Lacedemonians should deliver to them those who had laid Siege to Lanvicus, adding that their Refusal would be by them construed a Violation of their Treaty. The Athenians issued out a Proclamation importing, that whoever had conspired against Philip, and betook himself to Athens for a Sanctuary,6 should be immediately delivered up; and thus did the Boeotians demand of the Hippotenses thei Murderers of Phocus.
3. But we are to understand here, that a Prince or People is not absolutely and strictly obliged to deliver up an Offender, but only, as we said before, must either punish him or deliver him up. Thus we read, that the7Eleans made War on the Lacedemonians, because they would take no Notice of those who had injured them, that is, would neither inflict condign Punishment nor deliver them up. For the Obligation is either to one or the other.
4. Sometimes indeed the Persons demanding are indulged thek Choice in Order to give them a more ample Satisfaction. We find in8Livy, that the Caerites signify to the Romans, That the Tarquinians, tho’ they had asked no more than the Liberty of passing, had yet entered their Country in Spite of them with a Body of Troops, and had taken by Force some of their Peasants to assist them in the Pillage, which was laid to their Charge; but that they were ready, if they pleased, either to deliver them up, or to punish them themselves.
5. In a Clause of the second Treaty betwixt the Romans and the Carthaginians, which we find in Polybius, there is a Passage very ill pointed, and misunderstood by those who published that Historian: If that (what that is, by reason of a Gap in the preceding Words, we cannot tell) be not effected, then let every Man by his own private Authority pursue his Right, which if he then cannot obtain (that is if Justice be not done him) the State shall be reputed guilty of the Crime.9Aeschines in his Defence to the Accusation of Misconduct in his Embassy preferred against him by<459> Demosthenes asserts, that when he was treating with Philip King of Macedon, concerning a Peace between him and Greece, among other Things he told him, it was reasonable, that not the Publick, but those only who committed the Crime, should smart for it, and that there was no colour for punishing those States, which were willing to bring to Justice all suspected Persons. And Quintilian in his 255th Declamation says, that in his Judgment10they who afford Shelter and Sanctuary to Deserters and Rebels, are almost as criminal as the Deserters and Rebels themselves.
6. And among the Inconveniencies resulting from the Disagreement of States, Dion Chrysostom in his Oration to the Nicomedians reckons this for one, that they who have been injurious to one State, may fly too and find Refuge in another.
7. This Discourse of giving Persons up suggests to us another Question,11Whether they who have been delivered up by one State, and not received by the other, do still continue Subjects of the former. Publius Mutius Scaevola12 was for the Negative, because such a Surrender is in some Manner a Banishment, just as if they had been solemnly interdicted the use of Fire and Water: But Brutus, and after him Cicerol held the contrary; whom I think in the right, tho’ not properly for the Reason assigned by Cicero;13 because as there is no Gift, so can there be no Delivery of a Criminal without an Acceptance. For indeed no Act of Donation can be compleat, unless both Parties be agreed. Whereas by the giving up we are now speaking of, we are to understand no more than a Willingness to deliver a Subject of ours into the Hands of a foreign Power, to be treated as that foreign Power shall think fit. Now this Permission neither gives nor takes away any14 Right, but only what before obstructed the Execution of the Punishment is thereby removed. And therefore if that Power will make no use of this Liberty, then is the Person that was delivered reduced to his former State of Subjection (this being a parallel Case with that of Clodius delivered up to, but not accepted by the Corsians) to be, at the Discretion of his own State, either15 punished or not punished by them, as there are several Offences in regard to which they may do either one or the other. But the Privilege of a Subject, and other Rights or Properties, he is not by a bare Fact deprived of; he must be moreover condemned by a publick Judgment, unless there be some Law which declares, that the Moment one commits the Crime he is to be reputed as legally condemned, which cannot be said in the present Case. So Goods likewise when offered, but not accepted, continue his whose they were before. But if the Person, whose Delivery was accepted of, and who was actually seized on, shall chance afterwards to return, he is not then to be deemed a natural Subject, unless by an after-Act this Privilege be conferred upon him; in which Sense16Modestinus’s Decision about a Person given up is certainly very true.<460>
8. What we have said on this Head, does not only respect those who have always been Subjects of the Government they now live under, but them also who after the Commission of their Crimes fly thither.
V.The Privilege of Suppliants or Refugees belong not to Offenders but to the unfortunate, with an Exception.V. 1. The so much revered1 Rights of Suppliants or Refugees, and the many Precedents of Asylums, affect not our last Conclusions; for they are intended only for the Benefit of them who suffer undeservedly, and not for such whose malicious Practices have been injurious to any particular Men, or to human Society in general. Gylippus the Lacedemonian, in2Diodorus Siculus, speaking of the Privilege of Refugees has these Words: It was the Design of the first Institutors of these Rights, that the Unfortunate should find Compassion, but that such who by their Villanies made Punishment their due, should not expect an Exemption from it. And a little afterwards: But let not those, who by Fraud and Avarice have made themselves miserable complain of Fortune, or dare to assume the Title of Suppliants, because that is due only to those3who are free from Guilt, tho’ not from Infelicity; but the flagitious Lives of these have divested them of any Claim to Compassion or Protection. Between these two Cases of Misfortune and Crime Menander puts this nice Distinction, that
Not very foreign to this is that of4Demosthenes, δίκαιον, &c. translated to this Effect by Cicero, in his second Book of Invention: It is our Duty to have Compassion on such whose Misery is owing not to their Crimes but Misfortune. And that of Antiphanes:5A Fault unwillingly committed must be ascribed to Fortune, but if with Design to ourselves. And that of Lysias, Misfortune is no Body’s Choice. Accordingly by the best and wisest of Laws, he who by an accidental slip of a Weapon chanced to kill a Man, might safely betake himself to theb Cities of Refuge; and<461> the same Protection was allowed toc Slaves; but the veryd Altar of GOD was no Sanctuary to him, who was a premeditated Murderer, or a Disturber of the publick Peace.6Philo in his Explication of this Law says, That no consecrated Place can afford Shelter to such vile Wretches. The same was the Practice of the antient Greeks. The Chalcidians are said to have denied7 the Delivery of Nauplius to the Grecians; the Reason assigned was, because he had proved himself innocent of the Crimes laid to his Charge.
2. Cicero,8Pausanias, Servius and Theophilus mention an Altar of Mercy among the Athenians, of which we have an ample Description in Statius. But for whom was this designed? Let the Poet inform you, who tells you that
And he says that those who came thither are
Aristides makes it10 the peculiar Commendation of the Athenians, that they always administred Succour and Relief to those, who thro’ Misfortune became Objects of Pity. And again he says, that the Distressed of all Parts of the World had this Felicity in common, that in the good City of Athens they were sure to find a Retreat of Security. In Xenophon11 we have Patroclus Phliasius in an Oration of his spoken at Athens, commending that City; because that they who were any ways oppressed, or in Danger of being so, were sure to meet with a kind Reception, and a generous Assistance there. Demosthenes in a Letter of his in Favour of Lycurgus’s Children speaks to the same Effect. And Oedipus, in a Tragedy of that Name, is introduced by Sophocles, upon his Retreat to Colonos, representing his Case in the following Manner:<462>
To whom Theseus replies:
So Demophoon the Son of Theseus thus speaks, in regard to the Descendants of Hercules, who had fled to Athens:
And this is the very Thing that Callisthenesg cried up the Athenians for;12because that in the Defence of Hercules’s Children, says he, they engaged in a War against Eurystheus, who then tyrannised over Greece.
3. But on the contrary, it is of Malefactors and profligate wicked People in the same Tragedy thus pronounced:
And in his Ione he adds:
Lycurgus the Orator relates,h that a certain Person named Callistratus, who was guilty of a capital Offence, having consulted the Oracle, had this Answer returned him, that if he would go to Athens, τέυξσθαι τω̂ν νόμων, &c. he should have Justice done him; that upon Hopes of Impunity he fled14 to Athens, to the Altar reputed the most Sacred there; but that notwithstanding he was slain by Order of the State, a State the most strictly observant of every thing religious among them, and that so the Oracle’s Prediction was accomplished.iTacitus blames some of the Grecian Cities, because in his Time it was usual with them to encourage Wickedness by protecting the Authors of it, and to think that thereby they endeared themselves to their Gods. And in another Place he says, thatkPrinces are the Representatives of the Gods, but that neither by the Gods are the Petitions of any but of the just regarded.
4. Upon the Whole therefore, such Criminals are either to be punished or delivered up, or at least obliged to quit the Country. Thus the Cymeans, as Herodotus tells the Story, when to give up Pactyes the15Persian they were very unwilling, and to retain him they did not dare, permitted him to make his Escape to Mitylene. The Romans demanded of Philip of Macedon, Demetrius Pharius, who being overcome in Battle, had fled to him for Refuge; Perseus the Macedonian King speaking in his own Defence to16Martius, with reference to those who were said to have attempted the Life of K. Eumenes says, as soon as I was informed by you, that they were in Macedon, I strictly enjoined their immediate Departure out of the Kingdom, and have for ever forbid them Entrance into my Territories. The Samothracians sent to tell Evander, who was charged with this Attempt,17 that if he dared not put himself upon his Trial, he must quit the Asylum of their Temple, and get off as well as he could.
5. But in most Parts of Europe, for some Ages last past, this Right of demanding fugitive Delinquents to Punishment, has not been insisted upon, unless their Crimes be such as affect the State, or are of a very heinous and malignant Nature. As for lesser Faults it has been the Custom to connive at them,18 unless by the Articles of Treaty it has been particularly agreed on to the contrary. And here we must observe too, that Robbers and Pyrates, who by their Power have made themselves formidable, may very innocently be entertained and protected, so far as regards their Punishment; because to bring them off from this pernicious Course of Life by<464> Assurances of Pardon, when19 other Expedients fail, is what the common Interest of Mankind requires; and therefore the Practice of this, either by King or Nation, is certainly warrantable.
VI.But all Sorts of Refugees are to be protected till their Cause be decided; and by what Law such a Decision is to be had.VI. 1. Here likewise it is observed that Refugees are, whilst their Case is depending, entitled to Protection. Thus Demophoon to the Embassador of Eurystheus:1
And Theseus to Creon. [[2
2. But if what is laid to the Charge of Refugees be not a Crime by the Law of Nature or that of Nations, then it must be determined by the Civil Laws of the State they come from, which is excellently shewn by Aeschylus in his Supplices, where the King of Argos is introduced thus addressing himself to the Daughters of Danaus coming from Aegypt:3
VII.How Subjects participate of their Sovereign’s Crimes, or the Members of a Community of the Crimes of that Community; and how the Punishment of a whole State differs from that of particular Persons.VII. 1. We have already seen by what means Rulers may participate of the Crimes of their Subjects, whether Natives or Foreigners. On the other Hand Subjects too may make themselves accessary to their Prince’s Faults, by giving their Consent to them, or by acting at his Instance or by his Command what they cannot do with-<465>out a Crime, but to treat of this will be more proper hereafter,a when we come to consider each Branch of the Subject’s Duty. There is likewise a Communication of Guilt between a Community and the particular Persons who are Members of it; for (as St. Austin says in the forecited Place)1Where there is a Community there must needs be Particulars, because a Community is composed of Particulars, and Particulars collected and united, make up together what we call a Community.
2. But yet the Faults of this Body are, in Propriety of Speech, theirs only who consented to the Commission of them, and not theirs who were obliged to submit to the others, and the Punishment2 likewise of the whole Community, and that of particular Persons are distinct. As the Punishment of Particulars is sometimes Death, so3the Death of a State, is the Ruin of it, and this happens when there is an entire Dissolution of the Body Politick, of which we have alreadyb treated, where upon that State does, as4Modestinus says very well, as utterly lose its usufructuary Right as if by Death. Sometimes a servile State is imposed on particular Persons by Way of Punishment, as it was upon the Thebans bycAlexander the Great, exclusive of those who opposed passing the Act for breaking off the Alliance with the Macedonians. So likewise a whole Nation is sometimes brought to a5 Civil Slavery, by being reduced into a Province. The Goods of particular Persons are sometimes confiscated, so a City is sometimes divested of all it has in common, as its Walls, Ports, Men of War, Arms, Elephants, Treasury and publick Lands.
3. But to punish particular Men with the Loss of their Properties, for the Faults of the Publick, to which they did not consent, is a Piece of great Injustice, as it is clearly evinced by Libanius in his Oration concerning the Sedition at Antioch. And he mightily approves the Proceedings of6Theodosius, who had punished the publick Crime with the Forfeiture of their Theatres, their Baths, and the Title of Metropolitan.
VIII.How long after the Commission of a Fault may a Community be punished for it.VIII. 1. But here occurs a Question very well worth our Consideration, Whether or no a Punishment due to the Faults of a Community, may at any Time whatever be inflicted. That it may, during the continuance of that very Community, seems reasonable, because tho’ there be a Succession of the constituent Parts, the Body is still the same, as we have elsewherea proved. But on the other Hand we must observe, that some Things are essential to a Community, as it is a Community, such as the having of a Treasury, Laws, &c. other Things are applied to it only as derivedb from the single Members of it. In this Sense we give to a Nation the Character of Learned, or Valiant, because many of it are such. Of this Sort is the Merit or Demerit of an Action, for it belongs principally and directly to particular Persons, as having a physical Will, of which a Community as such is destitute. And therefore when they are extinct and gone, thro’ whose Means the Publick contracted the Guilt, the Guilt also must cease too, and by Consequence the Obligation of Punishment, which (as we beforec observed) can never subsist without some Demerit. Libanius in the above-mentioned Oration, says, [[1 That in his Judgment, when none of the actual Offenders are yet in Being, no farther Satisfaction should be sought after.]]
2. We must therefore conclude Arrianus in the right, when he condemned<466> Alexander for punishing2 the Persians,3 when not one of them who had injured the Greeks was then surviving. The Opinion of Curtius concerning the Extirpation of the Branchidae by Alexander is,4 that had these Severities been contrived for and executed upon the Authors of the Treason, it would have looked like Justice, and not Cruelty. But now their Posterity (who never saw Miletus, and consequently could not betray it to Xerxes ) smart for their Predecessors Crimes. The same is Arrianus’s Sentiment of the burning of Persepolis by way of Revenge, for what the Persians had formerly done to the Athenians: ἀλλ’ οὐδ’ ἐμοὶ, &c. In my Opinion, (says he) Alexander did not act discreetly in this Affair, nor do I think it any Punishment of those Persians who were long since dead.
3. The Answer given by5Agathocles to the People of Ithaca, upon the Complaint of some Damages done them, that truly the Sicilians had been much greater Sufferers by Ulysses, is perfectly ridiculous. Plutarch6 in his Book against Herodotus says, it is very unlikely that the Corinthians should be for revenging upon the Samians an Injury received three Generations before. Nor is the Defence of this<467> and such other Proceedings which we meet with in Plutarch, in his Treatise of the late Vengeance of GOD, any ways well grounded. For GOD’s Right is different from that of Man, as you will find more distinctlyc [[sic:d by and by. Nor does the7 Justice of conferring Honours and Rewards upon Children for their Father’s Merits, infer the Equity of punishing them for their Faults: For a Benefit of such a Nature, that it may without Injustice be conferred on any Man, but it is not so with Punishment.]]
IX.Whether one free from the Fault may be liable to the Punishment.IX. Having thus traced the ways by which a Participation of the Crimes draws after it a Participation of the Punishment, we come now to shew how a Man may be obnoxious to Punishment, tho’ free from Guilt; that this Matter may be apprehended, and there be no Confusion of Things really different by Reason of a Likeness in the Terms, it will be proper to premise some Directions.
X.A Distinction between what is directly intended, and what happens consequentially.X. 1. First that a Distinction should be made between an intended and direct Damage, and what is only consequentially such. Depriving a Man of what he has an in disputable Property in, I take to be a Damage directly done. A consequential Damage I apprehend to be, when a Man is intercepted of a Benefit, by the Removal of the Condition which alone could entitle him to it. Ulpian gives us this Instance,1If by opening a Well in my own Land I exhaust those subterraneous Channels, from which another is supplied, the Damage resulting to him from my using my own Property, is not imputable to me as a Fault. And elsewhere he says,2 that there is a great deal of Difference betwixt doing an Injury, and depriving a Man of some Advantage which he before enjoyed. And Paulus3 the Civilian says, it is a preposterous Method to account ourselves rich, before we have acquired what makes us so.
2. The Sufferings that redound to Children from the Confiscation of their Father’s Goods, are not properly a Punishment inflicted on them, for they could not lay any Claim to those Effects, unless they had been possessed by their Father at the Time of his Decease. And this Alphenus very justly observes, when he says,4 that Children by the Father’s Punishment lose what would have come to them from him, by what is theirs by Nature, or from any other Cause, they are not thereby divested of. Cicero writes, that the Children of Themistocles were reduced to Want, and5 that if Lepidus’s Children had the same Fate, he thought it no Injustice. This he asserts to be antiently practised by all Nations, from the Rigour6 of which the more modern Roman Laws somewhat abated. Thus too when the major Part of a Community (which, as we elsewhere said, represents the Whole) are guilty of a Fault, the Whole being, as we told you, obliged to bear the Blame of it in the Loss of their Civil Liberty, their Walls, and other Advantages, the innocent Part are equally Sufferers, but are so in those Things only which they held as Members of the Community.
XI.The Difference between a Crime’s being the Occasion of Punishment, and its being the real Cause of it.1082 chapter xxiXI. 1. Again it is to be observed, that one Man’s Crime may be the Occasion of inflicting on another some Evil, or depriving him of some Good; tho’ as to the Right of acting, that Crime is not the immediate Cause of the Action. Thus he who is Bail for another, suffers upon the account of the other’s Debt,1 according to the old Proverb, ἐγγύα παρὰ δ’ ἄτα, Be bound for a Man, and you will soon repent it: But the immediate Cause of this Obligation is his own being Bail. And as he, who engages for the Purchaser, becomes answerable, not properly on the account of the Purchase, but upon his own Engagement; so he who vouches for an Offender, is made liable to Punishment, not for the Offence, but because he vouched for him; for which Reason his Sufferings ought to be proportioned according to the Power or Right he himself had to vouch, and not according to the Nature of the other’s Offence.<468>
2. From whence it follows, agreeably to the Opinion which we look upon to be the truer, that no Body ought to be put to Death upon the Score of any such Engagement, because no Man’s Life is so entirely at his own Disposal, as that he may take it away himself, or authorize another so to do; tho’ the Greeks and Romans held the contrary,2 thinking that Sponsors were accountable even to Loss of Life; as is evident from a Verse of3Ausonius, and the known Story of Damon and4Pythias, and from their inflicting capital Punishment on Hostages, as we shall elsewherea have Occasion to observe. The Conclusion we make with respect to a Man’s Power over his Life holds good likewise with respect to that he has over any of his Members; for the Amputation of any one of them is not allowable, unless it tends to the Preservation of the Body.
3. But if Banishment, or a Fine, be the Terms of the Delinquent, and he becomes obnoxious to them, the Bail must stand to it; but in strictness of Speech, not as a Punishment of his own. Much the same is the Case of one who enjoys any Right, the Use of which depends on the good Will of another, such as a5precarious Right for Instance, with respect to the Owner of the Thing so lent, and the Right of Subjects with regard to that eminent Domain with which the State is invested for the publick Advantage. For the taking away any such Privilege, cannot be called the Infliction of a Punishment, but the Execution of an antecedent Right, which the Person who takes it away was before entitled to. Thus the slaying of a Beast, one for Instance which a Man has been criminally concerned with, (as is enjoinedb by the Law of Moses) is not really a Punishment, because Beasts are not properly chargeable with any Crime, but it is the Exercise of that Dominion Man has over them.
XII.No Man properly speaking can be justly punished for another’s Fault, and the Reason why.XII. Having laid down these Distinctions, we assert that no Man, if entirely innocent, can be punished for another’s Crime. Of which the true Reason is, not that assigned by1Paulus the Civilian, that all Punishment is designed for Mens Reformation, for one may make an Example without the Person of the Criminal, provided it be in the Person of one who nearly touches him, as we shall shew youa presently; but because all Obligation to Punishment is grounded upon Guilt. Now<469> Guilt must of Necessity be personal, because it results from our Will, than which nothing can be said to be more strictly ours, and it is therefore styled αὐτεξούσιον, something entirely at our own Disposal.
XIII.Nor Children for the Faults of their Parents.XIII. 1. St. Jerome says,1 that neither the Virtues nor the Vices of Parents are ascribed to the Children. And St. Austin,2 that it would be Injustice in GOD himself to condemn any innocent Person. Dion Chrysostom, in his last Oration, having asserted, that according to the Laws of Solon among the Athenians, the Parents Crimes affected the Children, says, that the Divine Law does not, as that there, extend the Punishment to the Posterity of Offenders, but every one’s Misfortunes are owing to himself: Agreeable to which is that common Maxim,3Noxa caput sequitur, The Crime goes along with the Person. We ordain, say the4 Christian Emperors, that where the Guilt is found, there the Punishment be laid. And again, Letevery Man be answerable for his own Sins; and where Punishment is not due, let it not be dreaded.
2. Philo says, it is just that5Offenders should themselves alone be punished, condemning that barbarous Practice of some Nations, who put to Death the innocent Issue of Traytors and Tyrants. So likewise does Dionysius of Halicarnassus, and shews6 the Unjustness of the pretended Reason for it, because it is supposed they will imitate their Parents, since there is no more than bare Supposition and Uncertainty, and an uncertain Fear is not sufficient to put any Man to Death. Arcadius, the Christian Emperor, at the Instigation of some Body, I do not know who, ventured to say, in one of his Constitutions, That7the Children of Criminals, who are likely to follow their Examples, ought to be punished as their Fathers were. And Ammianusa reports, that young Children were executed, lest after they grew up they should take after their Parents. Nor is the Apprehensionb of Revenge a more justifiable Reason, a Reason that gave Birth to the Greek Proverb,<470>
But Seneca says, that9nothing is more unjust, than to make any one inherit the Hatred one bore his Father.
3. Pausanias the Grecian General did no manner of Harm to the Children of Attaginus, who was the Author of the Theban’s Desertion to the Medes, judging them entirely Guiltless,cbecause they could have no Hand in that Affair. And Marcus Antoninus, in a Letter of his to the Roman Senate, has the following Clause,10And therefore you shall pardon the Children, Wife, and Son-in-Law of Avidius Cassius, (who had conspired against him) but why do I say pardon, when they have done nothing that has Occasion for it?
XIV. 1. GOD indeed, in the Law given to the Hebrews, threatens to visit the Iniquity of the Fathers upon their Posterity: But as for him, he has an absolute and unlimited Dominion as well over our Lives as our Effects, as Things he has lent us, and which therefore without assigning any Reason and at any Time he may deprive us of. And therefore if by an unexpected and violent Death he snatches away the Children of Achan, Saul, Jeroboam, and Ahab,a it is by his Right of Property and not of Punishment, and he does thereby more severely punish the Parents themselves; for if they live to see their Children fall (which is the Case principally intended in the Law of GOD, whose Menaces on that account are not extended beyondb the Great-Grand-Children or fourth Generation, Exod. xx. 5. because that is a Sight which human Age may possibly arrive at) such a Spectacle must undoubtedly be a Punishment more afflicting to them than any Thing they suffer themselves, as is well observed by1 St. Chrysostom, to whom Plutarch agrees, when he affirms that there is no Punishment so piercing as to see those descended from ourselves by ourselves made miserable; or if they do not live so long as this comes to, yet to die under such an Apprehension must needs be a very sensible Affliction.2Tertullian says, that the Hardness of Peoples Hearts forced GOD upon this severe Expedient, that so their Concern for their Children after them might induce them to be obedient to his Laws.
2. It is at the same Time observable, that this grievous Punishment was inflicted by GOD for no other Crimes, but such as had a direct and immediate Tendency to his Dishonour, as Idolatry, Perjury and Sacrilege. The Greeks had the same Notion of this Affair:3 Those Crimes that were thought to affect the Person’s Posterity, by them called ἄγη, horrible Impieties, were all of this Nature; upon which Head Plutarch reasons excellently in his Book De sera numinis vindicta. In Aelian there is extant the following Delphick Oracle:
He was treating there of Sacrilege; and this is further ratified by the Story of the Gold of Tholouse, as it is related bycStrabo anddGellius. We gave you above several such Sayings in Relation to Perjury. It is likewise observable, that those severe Threats of GOD are not always put in Execution by him, especially when the Children prove to be eminently virtuous, as is manifest from Ezek. xviii, and from several Examples produced by Plutarch in the above-mentioned Place.
3. And therefore in the Gospel, where there is a more express Declaration than formerly of the Punishments that after this Life await the impious,5 there is no threatning advanced beyond the Sinner’s Person; and it is to this that Ezekiel in the aforecited Chapter chiefly alludes, tho’ not so clearly, as it was usual with the Prophets. But it is not for Men to imitate GOD in this Respect; nor is the Reason for it the same, because, as we said just now, GOD has Power over our Lives, to take them away without any regard to our Demerits, whereas Man cannot pretend to any such Power, unless for some enormous and personal Crime.
4. And therefore that very Divine Lawe does strictly prohibit both the putting to Death the Children for their Fathers Faults, and the Fathers for the Childrens: Which Law was observed by some religious Kings, such as Amasiah, even with respect[[totreasonable Practices. This Law is highly commended by Josephus and Philo, as one like it among the Aegyptians is by6Isocrates, and onef among the Romans by7Dionysius Halicarnassensis. Callistratus the Civilian translates a Passage out of Plato8 to this Effect, that neither the Crime, nor the Punishment of the Father, does any way attaint the Son, and assigns this Reason,9because every Man is answerable for his own Doings, and no one is made the Inheritor of another’s Crime. Would any State in the World (says10Cicero) tolerate such a Law-giver as should condemn the innocent Son or Grand-Child, for the Father’s or Grand-Father’s Offence? Upon this account it was that to execute a Woman with Child was prohibited by the11Aegyptian,12Grecian, and13Roman Laws.14 <472>]]
XV.Much less should other Relations be punished.XV. But if the Laws sentencing to Death the Children of Delinquents be unjust; how much more then is that of the Persians and Macedonians, which1 takes away the Lives of all who are any ways related,2that so (as Curtius says) whoever had offended against the Majesty of the King might fall with more solemn Sadness and more poignant Sorrow. This Law3Ammianus Marcellinus reports to be without a Parallel severe.
XVI.But yet may Children and Relations of Offenders be denied what they would otherwise have enjoyed.XVI. But it must be considered, that if the Children of Traytors have or expect to have any Thing whose Property is not in them, but in the Prince or People, it may be taken from them by Vertue of the Power they have to dispose of such Things, provided that the Exercise of this Power turns to the Offender’s Punishment: Upon this Ground (as Plutarch1 relates) the Descendants of Antiphanes, as a Traytor, were for ever disqualified for Honours; and at Rome2 the Children of the proscribed, by Sylla. And so what is decreed in the aforesaid Lawa of Arcadius against the Children of such is what may pretty well be borne with, Let them never be advanced to any Places of Honour or Trust, either Civil or Military. But as to Slavery, how and how far it may justly affect Children, we have elsewhereb shewed.
XVII.Nor are Subjects properly punishable for the Prince’s Crimes.XVII. 1. What we have said with respect to making the Children Sufferers for the Parent’s Crime, is applicable to the Case of a People who are really and strictly Subjects. (For, as we told you,a a People who are not Subjects may be punished for their own Faults, that is, on account of their own Negligence) if the Question be, Whether such a People may be punished for their Prince’s or Superior’s Crimes. For our Inquiry here is not1Whether they gave their Consent or concurred in any Action that of itself deserves Punishment, but we are now talking of the2 Communication of Punishment which results from the Nature of that Body whereof the King is Head and the rest Members. GOD for the Sin of David sent a Pestilence<473> on the People, (who in David’s Judgment were entirely innocent) but it was GOD who did it, and who had an absolute Right over their Lives.
2. And besides this was properly David’s Punishment, and not the People’s; for as a Christian Author observes:3The severest Punishment that wicked Princes can undergo is that which is laid on their Subjects. For this, says the same Author, is just as if you should lash a Man upon his Back for an ill Thing his Hand had done: And Plutarch4 on the like Subject, compares it to the Physicians applying a Caustick to the Thumb in order to cure the Thigh. But why it is unlawful for Men to take this Liberty is already declared.
XVIII.Nor particular Persons for the Faults of the Whole, if they refused their Consent.XVIII. The same do we likewise pronounce of not punishing particular Persons with the Loss of what is properly and peculiarly their own for the Fault of the Publick, if they have not consented to it.
XIX. Why the Heir is bound to other Debts and Obligations1 and yet not subject to the Punishment of the Deceased,2 according to that of Paulus the Civilian,XIX.The Heir not liable to Punishment, as such; and why.it is provided by the Rules of a fictitious Right that the Punishment due to any one should not be transferred upon his Heirs, the true Reason is, that the Heir does not represent the Deceased in his Deserts or Demerits, which are Qualities merely personal,3 but only in his Effects; and in these, upon this Principle that at one and the same Time that Property was introduced, it was made an established Law that the Debts which arise4 from the Inequality of Things should be attached to them. Thus Dion Prusaeensis in his Rhodiaca: ἅπαντα ὀϕείλουσι, &c. what was due from Predecessors is no less due from their Posterity. For you cannot say, that we have renounced our Succession.
XX.But he is liable if the Punishment pass into an Obligation of another Nature.XX. From whence it follows, that if, besides the Crime, there be some new Cause of Obligation, the Heir may be bound to stand to the Penalty, tho’ not properly as a Punishment. Thus in some1 Places after Sentence is pronounced, and in2 others after the Commencement of Suit, which are Circumstances that give the force of a3 Contract, the4 Heir shall be liable to the Fine; the Case is the same, if the Deceased in treating about any Thing,5 submitted himself to a pecuniary Forfeit; for then, there was a new Cause of Obligation, distinct from the Punishment.<474>
[1 ]See Pufendorf upon this Subject, Law of Nature and Nations, Lib. VIII. Cap. III. § 28. & seq. and Cap. VI. § 12.
[2. ]Tertullian, De Resurrectione Carnis, Chap. XVI. For they will say that their Assistants and Companions are at their Liberty, either of helping and associating with them or not, that it is at their own Choice, and in their own Power, either to be one or the other, being no less than other People endued with Freedom of Will; and that therefore, since they voluntarily concurred with them, they are as criminal as the Authors themselves.Grotius.
[a ]Chap. 17. of this Book.
[3. ]At the Death of St. Stephen, tho’ Saul kept only the Cloaths of those who stoned that holy Man, he stoned him by their Hands; as St. Austin observes. Saulus manibus omnium lapidabat. Serm. V. De Sanctis. Cap. IV. See something like this, Serm. I. in idem Argument. Cap. III. and Serm. XIV. Grotius.
[4. ]As when a Man shakes Money out of one’s Pocket, that another may seize it; or stops a Person, to give another Time to take something from him; or drives away Sheep or Oxen with a Piece of red Cloth; for Example, that they may fall into the Hands of a Thief; or places a Ladder against a Window; or breaks open a Door, or Window, for a Thief to enter; or lends him a Ladder to get up, or some Instrument of Iron to open with. These are the Examples mentioned in the Institutes; Interdum Furti tenetur, qui ipse furtum non fecit. Lib. IV. Tit. I. De obligationibus, quae ex delicto nascuntur. § 11. See the Edict of Theodorick, Cap. CXX. Grotius.
[5. ]Hieronym. super parabolas, Cap. XXIX. Vol. VII. p. 53. C. Edit. Froben. 1537. Not only the Thief, but the Person who, being privy to the Theft, conceals it from the Party robbed, is guilty.Chrysostom. De Statuis, Orat. XIV οὐ γὰρ οἱ ἐπιορκον̂ντες, &c. Not only those who forswear themselves, but those who are acquainted with the Perjury, and conceal it, are criminal.Grotius.
[6. ]See the Institutes, and Edict of Theodorick, where cited Note 4. According to an antient Law of Athens, he who had advised a Crime was liable to the same Punishment as he that committed it. Καὶ ον̂̔τος ὁ νόμος, &c. Andocid. (Orat. I. De Mysteriis, p. 219. Edit. Wech.) Aristotle says, that without the Advice given, he that followed it would not have done the Fact. Rhetoric. Lib. I. Cap. VII. (p. 126. Edit. Victor. 527. Edit. Paris. Vol. II.) Grotius.
[7. ]According to St. Chrysostom, he who praises a bad Action, is worse than him who commits it: In Cap. 1. Ad Roman. circa fin. By the Laws of the antient Lombards, he, who being present encourages a Person in doing ill, is deemed to commit the Crime himself, Lib. 1. Tit. IX. § 25. See the Passages cited hereafter from Philo and Josephus in the Note upon § 17. Grotius.
[8. ]Chrysostom I. Adversus Judaeos, Orat. I. ὥσπερ ον̂̔ν, &c. So then, not only those who commit a Robbery, but those who are impowered to prevent it, and do not prevent it, deserve Punishment, and that equally too: So likewise he, who hinders a Person’s Cure, is as guilty, as if he himself had given him the Wound, says the same St. Chrysostom, upon 2 Cor. vii. Grotius.
[a ]Quaest. in Levit. xxvi.
[b ]Liv. Lib. 1. Cap. 24. n. 8.
[1 ]Ammianus Marcellinus relates, that the Embassadors of the Quadi, an antient People of Germany, used the common Excuse, that they had done nothing against the Romans by the publick Council of the Heads of the Nation, but that the Disorders had been committed by certain Robbers who were Foreigners. Docerejussi, quae ferebant, &c. Lib. XXX. (Cap. VI.) St. Chrysostom, speaking of those, who raised a Sedition in Antioch, in which the Statues of Theodosius the Emperor and of the Imperial Family had been thrown down; observes, that the Body of the City had no Share in those Disorders; but that the Authors of them were certain insolent and inconsiderate Strangers; from whence he concludes, that it would be unjust to ruin so great a City for the Folly of a small number of Persons, and to punish the innocent with the guilty. Orat. III. De Statuis. Grotius.
[c ]Lib. 29. Cap. 17. n. 2.
[d ]Lib. 35. Cap. 31. n. 14, 15.
[e ]Idem, Lib. 45. Cap. 23. n. 7, 8.
[2. ]Nondum quae feceris, sed quae fieri passus sis, &c. (Cap. V.)
[3. ]Alienae igitur, inquies, culpae me reum facies? Prorsus alienae; si provideri potuit, ne existeret. (Epist. Ad Brut. IV.)
[f ]Paraenet. Cap. 28.
[g ]Adversus Gentes. Lib. 4. p. 149 Edit. Lugd. 1651.
[h ]De Gubernat. Dei. Lib. 7. p. 266. Edit. Paris 1645.
[4. ]Qui desinit obviare, quum potest, consentit. Our Author does not say from what Work of this Father he took these Words. I find them in the Canon Law, Caus. XXIII. Quaest. III. Can. XI. where they are cited as from the Comment of St. Austin upon Psalm lxxxi.
[5. ]Imperator noster cum patre, &c. Digest. Lib. LX. Tit. VIII. Qui sine manumissione ad libertatem perveniunt, Leg. VII.
[6. ]Si servus, sciente domino, occidit, &c. Digest. Lib. IX. Tit. IV. De naxalib. Actionibus, Leg. II. Princip. See the Treatise of Mr. Noodt, Ad Leg. Aquil. Cap. X.
[7. ]Si servus, sciente domino, alienum, &c. Jul. Paul. Rec. Sentent. Lib. V. Tit. XXX. Ad Legem Fabiam, §2.
[8. ]Scientiam heic pro patientia, &c. Digest. Lib. IX. Tit. I. Ad Leg. Aquil. Leg. XLV. Is autem accipitur, scire, qui scit, & potuit prohibere: Scientiam enim spectare debemus, quae habet & voluntatem, Lib. XLVII. Tit. VI. Si Familia Furtum fecisse dicatur, Leg. I. § 1. See also Lib. XLVII. Tit. VII. Arborum furtum caesarum, Leg. VII. § 5. and Lex Wisigothor. Lib. VIII. Tit. IV. Cap. XI. XXVI. & alibi, Lib. IX. Tit. I. Cap. I. Grotius.
[9. ]In delictis servorum scientia domini, &c. Digest. Lib. IX. Tit. IV. De noxalib act. Leg. IV. Princ. In this Law our Author follows the common reading in former Times, in the Words. Aut quid si contemnat dominium? Whereas the Florence Edition has: Aut qui condemnat Dominum; which makes a different Sense, and means that the Slave has caused his Master to be condemned to leave him his Liberty: For the Word condemnare is sometimes used in regard to those who obtain a Sentence in their Favour; as may be seen in the Examples alledged by the President Brisson in his Law-Dictionary, and Peter Du Faur, Semest. II. Lib. II. Cap. XXIII. p. m. 253, 354. I find however, that the great Cujas, in his Commentary upon Julius Paulus, Ad Edictum, p. 43. and Antony Du Faur, Ration. Vol. II. p. 922. prefer also the same reading our Author has followed. For the rest, see the Treatise of Mr. Noodt upon the Foundation of the Decisions of the Roman Law in regard to Crimes committed by Slaves, Ad Legem Aquiliam, Cap. X.
[10. ]Culpâ caret, qui scit, sed prohibere non potest. Digest. Lib. L. Tit. XVII. De diversis Reg. Juris, Leg. L. See also CIX. of the same Title, with the Commentary of Peter Du Faur, from whom our Author seems to have taken the Laws, and most of the Passages cited by him in this Place.
[11. ]This is determined in the Digest in regard to a Father, who suffers his Son to marry a Widow before the Time of her mourning be expired; or who permits his Son or Daughter to betroth themselves at the same Time to two different Persons in the Name of a third; or who suffers his Daughter, being become a Widow, to declare herself with Child, that she may be put in Possession of her deceased Husband’s Estate: For in all these Cases the Father is branded with Infamy, as well as the Son or Daughter, if they were still under his Tuition. Et [infamiâ notatur]—[quae intra id tempus, quo elugere virum moris est, in matrimonium collocata est,] &c. Digest. Lib. III. Tit. II. De his, qui notantur infamiâ, Leg. I. Si quis alieno nomine sponsalia, &c. Ibid. Leg. XIII. § 1. Idque & in patre, &c. Leg. XIX. Grotius.
[12. ]This is another Law cited by our Author in the Margin, which says, that when a Slave has committed some Offence merely of his own Head, and without his Master’s Order, the latter is however obliged either to make good the Damage, or give up the Slave: Quod si servo suo non praeceperit, &c. Digest. Lib. XLVII. Tit. VII. § 5. But this took Place whether the Master had or had not any knowledge of the Slaves bad Design. So that the Case is not to the Purpose here. See what I have said before on this Head in the tenth Chapter of this Book, § 21.
[13. ]Oper. & Dier. Ver. 240, 241. Edit. Cler.
[14. ]Proclus, In laud. vers.
[15. ]Quidquid delirant Reges, plectuntur Achivi.Hor. Lib. I. Epist. II. Ver. 14.
[16. ]According to St. Cyril in his fifth Book Adversus Julian.Grotius.
Euripides in his Troades, introduces Neptune speaking thus, Ver. 69. & seq.
And Minerva replying,
And upon the same Principle St. Chrysostom involves all the People of Antioch in the Guilt of the Sedition, wherein the Statues of the Emperor and the Imperial Family were thrown down, in his first Oration De Statuis: ἰδοὺ τὸ ἁμάρτημα, &c. Few were directly concerned in the Crime, but the Charge is common and universal. We are all upon their Accounts under sad Apprehensions, and expect ourselves every Moment to be punished for what they have dared to do: Whereas, had we expelled them the City, we might have prevented this, and had we managed the affected Part as we ought, we had not now been labouring under our present Fears. And then afterwards, δἰ αὐτὸ οὔν, &c. For this very Reason, says he, shall you smart, shall you be severely punished, because you were not there, because you did not hinder them, because you did not restrain those furious Wretches, nor hazard yourselves for the Emperor’s Honour. You had no Share in their Proceedings, you did not join them in their Audaciousness; I commend you for it, and take it kindly; but inasmuch as you did not hinder the Fact itself, you are deservedly prosecuted.Grotius.
[18. ]Post aliquot annos, &c. Lib. I. Cap. XIV. Num. 1, 2.
[19. ]Potestas quippe magna & potentissima, &c. De Gubernat. Dei, Lib. VII. p. 226. And Philo in Flaccum, ὁ γὰρ ἐπιπλήττειν, &c. For he who has the Power of inflicting Punishments, might, if he pleased, have put a Stop to it altogether; and if he did not hinder it, it is plain that he both permits and approves it.Dion in Galba, τοɩ̂ς μὲν γὰρ ἰδιώταις, &c. All that a private Person has to do, is to see that he does not himself offend; but Magistrates, and People in Government, are to take Care that others do not. In the fourth Chapter of the Synod of Pistes, inserted among the Capitularies of Charles the Bald, we have the following Sentence, He who neglects to reform what he might reform, does at the same Time give his Consent to the Fact; and therefore, no Doubt of it, makes himself an Accomplice in the Crime. See Nicetas Choniates, Lib. II. De Andronico.Grotius.
[20. ]Where he speaks of those who suffer their Allies to be enslaved by some other State, tho’ in their Power to prevent it, Lib. I. Cap. LXIX. Edit. Oxon.
[21. ]The Author cites Lib. I. and VI. in the Margin. In the latter I find the Latins and Hernicians excuse themselves on that Account, because some of their Youth were gone to serve in the Army of the Volsci against the Romans: Responsum frequenti, &c. Cap. X. Num. 7. But I find nothing of this Kind that relates to the Vejentes in the first Book, and I much doubt, whether that People, who to the Destruction of their City, were almost always Enemies to the Romans; ever thought of making them such an Excuse upon the Case in Question. Our Author has expressed himself ill in this Place, thro’ his having read Alberic Gentilis hastily, from whom he has taken these Examples and some others, alledged by him in this Chapter; as appears also from the Manner in which he quotes the Passages of Livy: For that Civilian in Chap. XXI. B. I. of his Treatise, De Jure Belli, puts also in the Margin, Liv. Lib. I. VI. In the Passage of the first Book Livy says, that the Romans being at War with the Sabines, and the latter endeavouring on all Sides to bring the neighbouring States into their Party; some Volunteers of the Vejentes joined them: But that State gave no Aid to the Sabines, to avoid breaking the Truce: At which the Historian expresses Surprize; without doubt for the Reason I have mentioned: Publico auxilio nullo, &c. Cap. XXX. Num. 7. See the Note of Mr. Le Clerc, and the Animadversiones Historicae of the late Mr. Perizonius, upon the Truce there spoken of, Cap. IV. p. 170, & seq.
[i ]Polyb. Lib. 2. Cap. 8.
[k ]Plut. in vit. Cimon. p. 483. C. Vol. 2.
[22. ]Orat. Rhodiac.
[23. ]Lib. IV. Cap. XXVII.
[a ]Chap. 20. § 3.
[1 ]Actio popularis. A Phrase in the Roman Law, which thereby gives every particular Person Power to prosecute civilly, but not criminally, those who have committed certain Offences. See Digest. Lib. XLVII. Tit. XXIII. De Popularib. Action. And the Interpreters on that Place.
[1 ]For a Man’s Case ought to be known, before he is delivered up. It is not reasonable, ἀκρίτους ἐκδιδόναι, to give up Persons untried.Plutarch in his Romulus. And the King of Scotland, in Cambden, at the Year MDLXXXV. tells Queen Elizabeth, That he would send Fernihurst and the Chancellor too into England, if by plain and legal Proofs they were found guilty of designedly breaking the Peace, or of having committed the Murder of Russel charged upon them. Grotius.
[2. ]Lucullus demanded Mithridates of Tigranes, and upon his not giving him up, made War against him. Appian in his Life of Mithridates, and Plutarch in his Lucullus. The Romans required of the Allobroges, to deliver up the Salgae,Appian, Excerpt. legat. XI. See Priscus, Exc. legat. XXI. of a certain Bishop, whom the Romans were for giving up to the Scythians. A Duke of Benevento was delivered up by a Gascoigne Prince to Ferdinand King of Castile.Mariana XX. 1. Grotius.
[a ]Pausanias. Lib. 4. Cap. 4.
[b ]Strab. Geogr. Lib. 8. p. 556. Edit Amstel. p. 362. Edit. Paris. Casaub.
[c ]Sueton in Jul. Caes. Cap. 24. See above Lib. 2. Cap. 3. § 5. n. 4.
[d ]Plutarch in Camill. p. 136, 137. Appian Exc. Legat. 9. Lib. 5. 36.
[3. ]Our Author no doubt took this Fact from Dionysius Halicarn. who says that the Hernicians refused to give up the Offenders, by Way of Reprizals, Antiq. Roman. Lib. VIII. Cap. LXIV. p. 510, 511. Edit. Oxon.
[e ]Liv. xxxi. 11.
[4. ]It was before, not afterwards, that the Romans demanded Hannibal of the Carthaginians.Livy, Lib. XXI. Cap. VI. and X. Diod. Siculus, Fragm. E, Lib. XXI. But it is true the Romans did afterwards demand Hannibal from Antiochus. Idem XXXVII. 45. This is Gronovius’s Remark.
[5. ]It is in the Speech of Marius’s Deputies. Bell. Jugurth. Cap. CIX. p. 504. Edit. Wass.
[f ]Liv. xxxviii. 42.
[g ]Valer. Max. vi. 6. Num. 5.
[h ]Liv. Lib. 38. Cap. 31. Num. 2.
[6. ]Diod. Sic. Lib. XVI. Cap. XCIII. p. 557. Edit. H. Steph.
[i ]Plutarch. Narrat. amat. p. 774, 775. Vol. 2.
[7. ]Our Author cites no Authority here: But Albericus Gentilis, from whom, as I have already observed, he has borrowed this Example with some others, (Lib. I. Cap. XXI. p. 163.) refers us in the Margin to Pausanias, Lib. VI. The Passage is towards the beginning: And all that the Historian says, is that a War arose between the Lacedemonians and the Eleans, because the Hellanodicae (or Judges at the Olympick Games) had caused a Lacedemonian named Lichas, to be scourged. Cap. II. p. 178. Edit. Graec. Wechel. So that our Author changes the Persons, and makes the Lacedemonians the Aggressors; whereas the Eleans were so: And he advances besides another Circumstance, of which there is nothing in Pausanias, I mean, the refusal to deliver up or punish the Offenders. Nor is there any thing to be found of it either in Xenophon, Hist. Graec. Lib. III. Cap. II. § 16. or in Thucydides, Lib. V. Cap. L. where the same Fact is related. But our Author having read that Example in Albericus Gentilis, immediately after another taken also from Pausanias, Lib. IV. Cap. IV. which he quotes himself above, and in which we see a War actually declared against the Messenians by the Lacedemonians, under Pretext, that the former would not deliver up a Messenian called Polychares, who killed as many Lacedemonians as came in his Way; our Author, I say, conceived from thence, that the same Thing was precisely the Subject of the following Example, which the Civilian, whom he used, expresses thus: Haec belli causa Eleos inter & Lacedaemonios: Quod Lacedamonius vir ab Eleis habitus male.
[k ]See the Treaty between England and Denmark, in Is. Pontanus de Mari.
[8. ]Transuentes agmine infesto, &c. Lib. VII. Cap. XX. Num. 6, 7.
[9. ]He represented to that Prince, as he had also done in the Assembly of the Amphictyons, that those who had plundered the Temple of Delphos in Person, or who had advised the plundering of it, ought to be punished, and not the Cities, of which they were Inhabitants, which had offered to deliver them up, in order to their being tried. Orat. de mala obita legatione, p. 262. B. Edit. Basil 1572.
[10. ]Bardas, surnamed the Cruel, having taken Refuge with Chosroez, King of Persia, the Emperor Basilius Porphyrogennetus sent to desire Chosroez, not to protect a Rebel, who had attempted to dethrone his lawful Sovereign; and to consider, that in doing so, he would set an Example, which might prove of ill Consequence to himself. Zonar. Vol. III. in Basil. Porphyrogennetus. See what Laonicus Chalcocondylas says of some Corsairs, to whom the Island of Lesbos had given Refuge. Hist. Turc. Lib. X. init.Grotius.
[11. ]See Pufendorf upon this Question, Law of Nature and Nations, B. VIII. Chap. XI. § 9.
[12. ]Quem [deditum] hostes si non, &c. Digest. Lib. L. Tit. VII. De Legationib. Leg. VII.
[1. ]De Orator. Lib. 1. Cap. 40. and Lib. 2. Cap. 32. Topic. Chap. 8. Orat. pro Caecin. Chap. 34.
[13. ]Quo in genere etiam Mancini, &c. The Opinion of Brutus, which the Orator here embraces, was not followed in the Affair of Hostilius Mancinus; as it seems to be deduced from the last Law of the Title De Legationib. which will be cited in Note 16. See what I shall say there, and in B. III. Chap. IX. § 8.
[14. ]This is true generally speaking. But it may also happen, that the Giver up thereby deprives the Person given up of all his Rights: Which is to be judged of from the Circumstances. And such was the particular Case which gave Occasion to the Question, as we shall see upon the ninth Chapter of the following Book, § 8.
[15. ]As did the Roman Senate in regard to Marcus Clodius, whom, as our Author says, the Corsians, to whom he had been given up for having concluded a dishonourable Peace with them, would not receive; for he was executed in Prison at Rome. Marcum Clodium Senatus Corsis, &c. Valerius Maximus, Lib. VI. Cap. III. Num. 3.
[16. ]An qui hostibus deditus, &c. Digest. Lib. XLIX. Tit. XV. De Captivis & Postlim. Leg. IV. This Law is not without its Difficulties. As the Question in the particular Case, of which the Civilian Modestinus speaks here, was to know, whether Hostilius Mancinus retained the Rights of a Roman Citizen by the Refusal of the Numantines to whom he had been delivered up: It seems at first, that instead of the Words nec a nobis receptus these should be read nec ab iis receptus; and the rather as the Error might easily have crept in. And indeed, I find that several celebrated Lawyers have so conjectured long since, as Francis Baudouin in his Jurisprudentia Muciana, p. 48. Anthony Faure, Jurisprud. Papinian. Tit. XI. Princip. VIII. Illat. I. p. 612. And Julius Pacius in the Margin of his Edition of the Body of Law. Three Authors, who say nothing of their having borrowed this Correction from any Body else. I do not however believe it necessary, without the Authority of some good Manuscripts. For these Words, nec a nobis receptus, may very well be understood as if the Lawyer, at the same Time that he denies that the Person in Question becomes a Citizen again by the Right of Postliminy, insinuates, that he might become so by Rehabilitation, and a new Ordinance of the People. This took Place in the Affair of Mancinus: For a Law of the People was necessary to reinstate him in his former Condition, in Consequence of which he obtained the Dignity of Praetor, as we find in the last Law of the Title De Legationibus, cited before: De quo [Hostilio Mancino] &c. It appears from thence, that Scaevola’s Opinion took Place in the Dispute under Consideration; as Baudouin observes, (ubi supra, p. 47.) Mr. Thomasius, who pretends, that the Law in favour of Mancinus imported only a single Decision of the controverted Case, does not alledge sufficient Reasons for his Opinion. The very Office of Praetor, which Mancinus stood for a second Time, after having been Consul, supposes a Rehabilitation. See the Note of Andreas Schotus, upon Aurelius Victor, De Vir. illust. Cap. 59. Num. 4. So that our Author’s Application of Modestinus’s Words is not just.
[1 ]Κοινοὶ ἱκεσίας νόμοι, &c. as Polibyus and Malchus call them in the Excerpta Legationum, that is to say, the Laws generally received in Relation to Suppliants. Grotius.
[2. ]Οἱ γὰρ ἀπ̓ ἀρχη̂ς, &c. [Instead of ἀτυχημάτων the reading here should undoubtedly have been ἀδικημάτων as our Author and the Latin Translator have expressed it in their Version: And I have not the Edition of Rhodomanus to see whether he has corrected this manifest Error, which Henry Stephens has let pass.] Biblioth. Hist. Lib. XIII. Cap. XXIX. p. 345, 346. Edit. H. Steph.
[3. ]An antient Oracle delivers itself in the following Manner: (In regard to a young Man who in defending himself against a Robber had killed his Friend.)
This Oracle is in Aelian. Var. Histor. Lib. III. Cap. XLIV.
[a ]Apud. Stob. T. 7.
[4. ]In Aphob. Orat. II. (sub fin. p. 556.) Which Cicero expresses in Latin: Eorum misereri oportere, qui propter fortunam, non propter malitiam, in miseriis sint. De Invent. Lib. II. (Cap. XXXVI.) Grotius.
[5. ]Philo the Jew gives it for a Maxim, that Compassion is due only to the unfortunate, but that he who voluntarily does amiss, is not unfortunate, but unjust. De judice (p. 722. A.) The Emperor Marcus Antoninus is for having the Disposition of Mind examined, to know whether Men act from Ignorance or Design; and for considering those Things that have a Connection with them. Lib. IX. § 22. Edit. Gataker.Totilas distinguishes between what is done thro’ Ignorance or Forgetfulness, and what with premeditated Design. Gotthic. Lib. III. Cap. IX. (in a Letter which he wrote to the Roman Senate.) Grotius.
[b ]Deut. xix. 1, &c.
[c ]Ibid. xxiii. 15.
[d ]Exod. xxi. 14. 1 Kings ii. 29. 2 Kings xi. 13, &c.
[6. ]De legib. Specialib. p. 790. D. Edit. Paris.
[7. ]Plutarch, Quaest. Graec. XXXII. (p. 298. D. Edit. Wech. Vol. II.) K. Pepin received such as fled from the Tyranny in Neustria, and would not give them up. Fredegar. In rebus Pipini, Ad Ann. 688. The Emperor Lewis le Debonnaire gave Refuge also to those who fled to him from the Church of Rome, as appears from one of his Decrees made in the Year 817. and inserted in Vol. II. of the Gallican Councils. Charles the Bald acted in the same Manner with regard to those, who came over to him from his Brother Lewis.Aymonius, Lib. V. Cap. XXXIV. Constantine Monomachus machus refused to deliver up Cegena Patzinaca to Tyrachus a Turkish Governor. See Zonaras, Vol. III. in the Life of that Emperor. Nor would the Governor Inunginus deliver up Osman to Eskisar, as Leunclavius tells us, Hist. Turc. Lib. II. The Portuguese made the same Refusal in regard to the Duke of Albuquerque according to Mariana XVI. 18. Grotius.
[8. ]Lib. I. Cap. XVI. Servius upon the eighth Book of the Aeneid, (Ver. 342.) Theophylus in his Greek Paraphrase upon the Institutes, Lib. I. Tit. II. § 1. Grotius.
[10. ]Orat. Panathen. p. 187. B. Vol. I. Edit. P. Steph. Οὕτως ὁ παλαιός, &c. Orat. Leuct. I. p. 89. A. Vol. II. [And not De Pace as the Author quotes in the Margin.] Mariana gives the Arragonians the same Praise. Hist. Hisp. XX. 12. The Gepidae declared that they would all perish, rather than give up Ildigial to the Romans or the Lombards,Procop. Gothic. Lib. IV. (Seu Hist. Miscell. Cap. XXVII.) Grotius.
[11. ](Hist. Graec. Lib. VI. Cap. V. § 38. Edit. Oxon.)
[e ]Ver. 558. See the whole Passage which is very well worth reading.
[f ]Euripid. Heraclid. v. 330, &c.
[g ]See Eurip. in his Heraclid. and Apollodorus in his Biblioth. Lib. 2 Cap. 8. § 1.
[12. ]The Words of Callisthenes are not taken, as might be conceived, from any of the Histories composed by that Philosopher, who was the Cousin and Disciple of Aristotle: But I find them in Arrian’s History of Alexander the Great. They are an answer, which he is there said to have given Philotas, and which was probably made use of to colour the Accusation, laid against him, of being concerned in a Conspiracy to kill Alexander. He said therefore to Philotas, that the Persons whose Memory was most honoured by the Athenians were Harmodius and Aristogiton, because they had killed a Tyrant, and subverted the Tyranny: Upon which Philotas asked him where it would be proper for him, who should kill a Tyrant, to take Refuge, to which Callisthenes replied, at Athens or no where, and gave for his Reason, what our Author reports of the Aid and Protection granted by that City to the Heraclidae. De Expedit. Alexand. Lib. IV. Cap. X.
[13. ]The following Verses ought to be translated either from Sophocles or Euripides; but from the Manner in which our Author expresses himself, it does not appear at first, which of those two Poets he means:
Before this he only says: De maleficis hoc habes in eadem Tragoedia. Now he had quoted Sophocles first, Oedip. Colon. Ver. 512. & seqq. and afterwards Euripides in his Heraclidae, Ver. 330. & seqq. but without naming either the Poet or Tragedy, and as if he still quoted the same; attributing besides to Demophoon the Words of the Chorus. I find the Original in Stobaeus, where however the Edition even of our Author only refers us to Euripides without mentioning the Tragedy. He believed it to be the Heraclidae, because Stobaeus cites it just before; and from thence it was that he omitted the Verses in Question, in his Excerpta ex Frag. & Comoed. Graec. But these Verses are certainly not in the Piece above mentioned, nor are they to be found in the Fragments of Euripides, which the late Mr. Barnes collected, after our Author, whose Translation he every where gives. However that be, the following are the Verses, which our Author translates in the same Manner in his Stobaeus as here; except that he has not suffered an Erratum of the Press in the first Latin Verse to creep in, which all the Editions of my Original, not excepting the first, have retained: Nunc legibus, for nec legibus, &c.
Florileg. Tit. XLVI. De Magistrat. I have also let the same Fault pass in my Edition of this Work, because I had not then the Stobaeus of my Author.
[h ]Orat. Adversus Leocrat. (p. 156. Edit. Wech.)
[14. ]Mariana in his twenty first Book relates, That in Portugal one Ferdinand, Lord High Chamberlain, was forced from the Church to which he had retired, and burnt for a Rape committed upon a Maid of Quality. See also about Sanctuaries, a Treatise of that great Man Paul the Venetian, a Servite. Grotius.
[i ]Annal. Lib. 3. Cap. 60. Num. 2, 3.
[k ]Ibid. Cap. 36. N. 3.
[15. ]He was not a Persian, but a Lydian, as Herodotus calls him in more than one Place. The Passage wherein I find what our Author says, is: Οὐ βουλόμενοι [ὁι Κυμαɩ̂οι] οὔτε ἐκδόντες ἀπολὲσθαι, οὔτε παρ’ ἑωΰτοισι ἔχοντε; πολιορκέεσθαι, ἐς Μυτιλήνην αὐτὸν ἐκπέμπουσι. Lib. I. Cap. CLX.
[16. ]Livy, Lib. XLII. Cap. XLI. Note 8. Appianus too has this Relation, Excerpt. legat. Num. xx. There is something like it in the Latin Author of the Life of Themistocles: When he was publickly demanded by the Athenians and Lacedemonians. Admetus King of the Molossi would not deliver up his Refugee, but advised him to provide for his Safety; and for this Purpose ordered him to be conducted under a sufficient Guard to Pydna. So also the Gepidae in Procopius, Goth. III. dismiss Ildigis the Lombard. Add to this Theuderick’s Letter to King Thrasamund about the receiving of Giselic, Ver. 43, 44. and what is in the Life of King Lewis; so the Emperor Rudolphus the Second removed from him Christopher Sborowski, as is testified by Thuanus, Lib. LXXXIII. Anno 1585. Queen Elizabeth answered the Scots, that she would either deliver them up Bothwell, or banish him England.Camden has this Affair about the Year 1593. See Mariana xix. 6. of Alphonsus Earl of Gegion, who was condemned by the French King, and denied Admission into Spain.Grotius.
[17. ]Livy, Lib. XLV. Cap. V. Num. 8.
[18. ]As in the Switzers League with the People of Milan, Simlerus relates this Matter. By the Treaties of the English with the French, it was provided, that Rebels and Deserters should be delivered up; and by others of theirs with the Burgundians, that they should be expelled. Cambden at the Year 1600. Grotius.
[19. ]This Condition, which our Author supposes, is to be well observed; for otherwise the Exemption from Punishment would favour Robberies and Pyracies.
[1 ]Eurip. Heraclid. Ver. 252, 253.
[2. ][[Footnote number missing in text, supplied from Latin edition. In one of Sophocles’s Tragedies. Oed. Colon. Ver. 904. & seq.]]
[3. ]Supplic. p. 321. Edit. H. Steph.
[a ]Chap. 26. of this Book.
[1 ]In Levitic. Quaest. XXVI.
[2. ]In the Original it is Distinctae enim sunt poenae, &c. But I believe the Author intended etiam, instead of enim, which is perhaps a Fault of the Press that he overlooked. This however includes no Reason for what precedes it.
[3. ]Lycurg. Orat. Advers. Leocrat. (p. 139. Edit. Wech.) Grotius.
[b ]Ch. ix. § 4.
[4. ]Si ususfructus, &c. Digest, Lib. VII. Tit. IV. Quibus modis ususfructus vel usus, &c. Leg. XXI.
[c ]Plut. in Alex. p. 670. Tom. 1. Edit. Wech.
[5. ]See before B. I. Chap. III. § 12. Num. 1. and B. II. Chap. V. § 32.
[6. ]St. Chrysostom says the same Thing with the Pagan Orator in his seventeenth Discourse upon the throwing down of Statues. The Emperor Marcus Antoninus had formerly condemned the People of Antioch to suffer the same Punishment, as Theodosius did afterwards; according to Capitolinus, (Cap. XXV.) Severus also destroyed the City of Byzantium, and deprived it of its Theatre, Baths, all its Honours and Ornaments. He even reduced it into a Village, and gave it to the Perinthians; as Herodian informs us, (Lib. III. Cap. VI. Num. 19. Edit. Boecler.) See also Zonaras, and what we have said above, (Chap. V. § 32.) Grotius.
[a ]Ch. 9. § 3.
[b ]See Aristot. Pol. Lib. 7. Cap. 13.
[c ]In the preceding Chapter.
[1 ][[Footnote number missing in text, supplied from Latin edition. Orat. De Sedit. Antioch.]]
[2. ]This is the Reason that Conqueror employed, when Parmenio would have dissuaded him from burning the Royal Palace of Persepolis: Ὁ δὲ τιμωρήσασθαι, &c. After which follows the Historian’s Reflection: Ἀλλ’ οὐδ’ ἐμοὶ δοκεɩ̂, &c. De Expedit. Alexand. Lib. III. Cap. XVIII. Our Author, who in the first Edition contented himself with citing Arrian once in this Place, added, in the following Editions, a like Thought of the same Author, which is placed after the Passage of Quintus Curtius. But his Memory has improperly multiplied one and the same Reflection upon one and the same Occasion; [for which Reason Mr. Barbeyrac thought, he might suppress that superfluous and ill-grounded Repetition in the Text of his Edition]. What led our Author into this Error, was Alexander’s saying elsewhere in a Letter to Darius, “Your Ancestors entered Macedonia, and the rest of Greece, and did great Damages, without our having given them any Cause for such Injuries. But I, on the contrary, tho’, having been elected General of the Greeks, it was my Inclination and Duty, to revenge the Wrongs they have received from the Persians, have not entered Asia, till you had first commenced Hostilities.” Οἰ ὑμέτεροι πρόγονοι, &c. Lib. II. Cap. XIV. The Historian says nothing here that tends to condemn the Motive of his Hero. The following Note will shew, that our Author had this Passage in View, which relates to the undertaking of the War in general against the Persians; whereas the other relates only to a particular Act of Hostility.
[3. ]And therefore the Emperor Julian ascribes to a different Motive the War undertaken by Alexander against the Persians: “All the World knows, says he, that no War, reputed just, was ever undertaken upon such an Occasion; not that of the Greeks against Troy, or of the Macedonians against Persia. For they did not enter into it to inflict Punishments for Injuries of a very antient Date, not even upon the Grandchildren or Children of the Authors of them, but attacked those, who had insulted and dispossessed the Issue of the most deserving Persons of their Crowns”: Καὶ ὅτι μὲν οὐδεὶς—τω̂ν ἐυδοκησάντων (for so it should be read instead of ἀδικησάντων) ἀπογόνους. Orat. II. De rebus gestis Constantii (p. 95. Edit. Spanheim.) Grotius.
[4. ]Lib. VII. Cap. V. Num. 35. See Plutarch, De sera numinis vindicta, p. 557. B. Vol. II. Edit. Wech.
[5. ]See Plutarch, Apophthegm. p. 176. D. E. and De sera numinis vindicta, p. 557. B.
[6. ]De Herodot. malignit. p. 859, 860. Vol. II. Edit. Wech.
[c ][[sic:d § 14.]]
[7. ]This is a false Consequence drawn by Plutarch. De sera numinis vindicta, p. 558.
[1 ]Item videamus, quando damnum, &c. Digest. Lib. XXXIX. Tit. II. Dedamno infecto, &c. Leg. XXIV. § 12.
[2. ]Multumque interesse, &c. Ibid. Leg. XXVI.
[3. ]Esse autem praeposterum, &c. Lib. XXXV. Tit. II. Ad Leg. Falcid. Leg. LXIII. Princ.
[4. ]Eum, qui civitatem amitteret, &c. Digest. Lib. XLVIII. Tit. XXII. De Interdictis & Relegatis, &c. Leg. III.
[5. ]In qua [sententia] &c. Epist. Ad Brutum XV. See also Epist. XII.
[6. ]See the Interpreters upon the Digest, Lib. XLVIII. Tit. XX. De bonis Damnatorum. Leg. VII.
[1 ]This is a very antient Saying, since it is ascribed to Thales, one of the Seven wise Men, as appears from Stobaeus, Florileg. Tit. III. See Erasm. Adag.
[2. ]It is evident, that the Hebrews were also of the same Opinion, from Reuben’s Proposals to his Father Jacob, Gen. xlii. 37. See also Josephus, Antiq. Jud. Lib. II. Cap. II. These Sureties are called Ἀυτίψυχοι (such as engaged their Life for that of another) by Eutropius, in Caligula: And Ἐγγυηταὶ θανάτου, Sureties of Death, by Diodorus Siculus, in Excerpt. Peiresk. [p. 245, where speaking of Damon, who was bound for Phintias, he says, Ἔγγυος εὐθὺς ἐγενήθη θανάτου] St. Chrysostom supposes this Custom, in the Comparison he makes of an innocent Man, who when another is condemned to die, is willing to suffer the Punishment, in order to save his Life. In Galat. Cap. II. St. Austin observes, it sometimes happens, that he, who occasions another’s Death, is more criminal, than he who kills him; as for Example, when a Surety is punished with Death, in consequence of having been deceived by the Person, for whom he was bound. Et aliquando qui causa mortis fuit, &c. Epist. LIV. Ad Macedonium.Grotius.
[3. ]Quis subit in poenam capitali judicio?Vas. Technopaegnion Monosyllab. p. 488. Edit. Tollii.
[4. ]Or rather Phintias, which is the true Name. See Cicero, De Offic. Lib. III. Cap. X. and the Commentators upon him. I had Occasion to refer in Note 2. of this Paragraph to a Passage of Diodorus Siculus, wherein that Pythagorean Philosopher is so called.
[a ]Lib. 3. c. 4. § 14.
[5. ]See Pufendorf, B. V. Chap. IV. § 6. Law of Nature and Nations.
[b ]Lev. xviii. 23. and xx. 15, 16. See Maimon. Duct. Dubitant. iii. 40.
[1 ]Si poena alicui irrogatur, &c. Digest, Lib. XLVIII. Tit. XIX. De Poenis, Leg. XX. But Ziegler observes here, that the Civilian speaks of the Punishment of the Criminal himself, and not that of other Men. Our Author himself has cited him in that Sense, in the preceding Chapter, at the beginning of § 7. But indeed it is difficult enough to explain the Meaning of Jus commentitium, to which Paulus refers the Establishment of the Maxim in Question. The Reader may consult on that Head the Jurisprudentia Papinianea of Anthony Faure, Tit. I. Princip. II. Illat. V. Marc. Lycklama, Membran. Lib. I. Eclog. IX. and the new Explanation of Mr. Waechtler, in the Acta Eruditorum of Leipsick, Ann. 1714. p. 555.
[a ]In the following Paragraph. N. 1.
[1 ]Nec virtutes, nec vitia parentum liberis imputantur, Epist. III. Ad Heliodor. De morte Nepotiani, Vol. I. p. 21. A. Edit. Froben 1537.
[2. ]Deusipse foret injustus, si quemquam damnaret innoxium. Epist. CV. So our Author relates and quotes the Passage. I do not find it in the Letter he refers to: But there is the same Thought, expressed in other Terms, in that which follows: Quamquam vero immeritum & nulli obnoxium peccato si Deus damnare creditur, alienus ab iniquitate non creditur. Epist. CVI.
[3. ]This Maxim is taken from what is said in the Digest, in Relation to Slaves: Servi quorum noxa caput sequitur, ibi defendendi sunt, ubi deliquisse arguentur, Lib. IX. Tit. IV. De noxalib. Action. Leg. XLIII. But the Roman Lawyers mean only by that, as appears from Paragraph V. of the same Title of the Institutes, and other Places, that the Action against the Master, for Damage done by a Slave, ought to be brought against him, who is in actual Possession of the Slave at the Commencement of the Suit; or against the Slave himself, if he was afterwards made free; and not against him who owned the Slave at the Time the Offence was committed. So that this is not directly to the Purpose. See what is already said above, Chap. V. B. II. § 32. Note. 7.
[4. ]Sancimus ibi esse poenam, ubi & noxia est. Propinquos, notos, familiares, procul a calumnia submovemus—Nec ulterius progrediatur metus, quam reperiatur delictum. Cod. Lib. IX. Tit. XLVII. De Poenis, Leg. XXII.
[5. ]He maintains, on that Occasion, that Justice requires only the Punishment of the Guilty, as is expressly ordained by the Law of Moses, (Deuteron. xxiv. 16. De special Legib. Lib. II. p. 802. E. 803. A. B.) The same Author observes elsewhere, that there is no Establishment more pernicious to a State than not to punish a wicked Person, because descended of honest Parents, and not to reward a Man of Worth, because the Son of a bad Father. The Laws, adds he, ought to reward or punish every one according to their personal Merit. (De Nobilitate, in fin. p. 910. A.) Josephus says, in regard to Alexander, King of the Jews, who followed a quite contrary Maxim, and caused the Throats of the Wives and Children of those he put to Death to be cut, as criminal against him; that such Punishment exceeded all Bounds of Humanity (Antiq. Jud. Lib. XIII. Cap. XXII.) Ovid insinuates, that Jupiter Ammon was unjust in ordering Andromeda to be fastened to a Rock, and punished in that manner for the Fault of Cassiope, her Mother, in boasting that she was more beautiful than the Nereids:
I cannot help taking Notice in this Place to the Reader of a false Citation, which I have corrected. Our Author gives us the second Passage of Philo, as from his Treatise upon Piety, (Libro de pietate.) Now it is well known there is no Work of that Jew which bears such a Title. The Mistake arose from the Resemblance between two Greek Words. Instead of Περὶ εὐγενείας, our Author read, without thinking of it, Περὶ εὐσεβείας.
[6. ]I have observed in my Notes upon Pufendorf, that this is not exactly related. The Historian, far from refuting the Reason in Question, does not so much as decide, whether the Custom of punishing Children for the Crimes of their Fathers be unjust or not, and leaves it to be determined by the Reader, whether his Ideas of Equity were not sufficiently just, or that he did not care to offend those of his Country. Antiq. Rom. Lib. VIII. Cap. LXXX. p. 525. Edit. Oxon. (p. 547. Sylburg.)
[7. ]Cod. Lib. IX. Tit. VIII. Ad Leg. Jul. Majestatis, Leg. V. § 1. See the whole Dissertation of James Godefroy, upon this Law in his Opuscula, printed 1654.
[a ]Lib. 28. c. 2. in fin. Edit. Vales. Gron.
[b ]See Victoria. De Jure belli. Num. 38.
[8. ]Aristot. Rhetoric. Lib. I. Cap. XV. See Adag.Erasm. at the Proverb, Stultus, qui, patre caeso, liberis pepercit.
[9. ]De Ira, Lib. II. Cap. XXXIV.
[c ][[c Herodot. l. 9. c. 87. XIV. The Objection from God’s Proceedings in Relation to the Children of Offenders answered.]]
[10. ]See also Vulcatius in his Life of Avidius. Julian commends the like Humanity in Constantius, and shews ill Parents have often good Children, as Rocks produce Bees, a bitter Wood Figs, and Thorns the Pomegranate. He says also, ἀλλὰ καὶ τὸν παɩ̂δα, &c. But you took Care not to let the Infant of the Deceased be involved in his Father’s Punishment: This Proceeding of yours so full of Lenity and good Nature, is an evident Sign of perfect Virtue. (Orat. I. in fin.) Grotius.
[a ]This is the Opinion of the Rabbi Simeon Barsema, and a very just one.
[b ]As in the Examples of Zimri and Jehu.
[1 ]Homil. XXIX. In Cap. IX. Genes. Plutarch had said the same before him: Αἱ δὲ διὰ τω̂ν παίδων, &c. (De sera numinis vindicta, p. 561. A. Vol. II.) Grotius.
[2. ]Duritia Populi ad talia remedia compulerat, &c. (Advers. Marc. Lib. II. Cap. XV.) In Quintus CurtiusAlexander the Great says to some Conspirators, who being condemned to die, desired him to spare their Relations; they did not deserve to know their Fate, that they might die with the more Regret; but by an Effect of his Goodness, he assures them, that their Relations should suffer nothing either in their Honours or Fortunes; because he had long abolished the Custom, which had prevailed amongst the Macedonians, of putting the Innocent to Death with the Guilty.
[3. ]See Plutarch in his Pericles, and what was said above in this Book, Chap. XIII. §1. Grotius.
[4. ]Var. Hist. Lib. III. Cap. XLIII. Libanius says the same Thing speaking also of Sacrilege. There is something of the like Kind in a Discourse of that Orator published by Godefroy. Grotius.
[c ]Geogr. l. 4. p. 286. 287. Edit. Amst.
[d ]Noct. Attic. l. 3. c. 9.
[5. ]Tertullian, De Monogamia. The sour Grape that the Father eats, no longer sets the Childrens Teeth on Edge, for every one must die in his own Iniquity. Cap. VII. Grotius.
[e ]Deut. xxiv. 16. See Joseph. l. 4. c. 8. p. 129. and Philo de Legib. sp. l. 2. p. 801. & seq.
[6. ]That Orator, in his Praise of Busiris, which our Author cites in the Margin, makes no mention of a Law established in Egypt, that prohibited the putting of innocent Children to Death for the Crimes of their Fathers. But, in praising the Religion of the Egyptians, he says, that they pay more Regard to an Oath, than any other People; and believe, that the Divine Vengeance will punish every Crime immediately, without deferring the Punishment of the Guilty, or transferring it to their Offspring p. 391. I confess however, it is very probable, that the Egyptians, in whose Laws there was so much Equity, (as may be seen in Boecler’s Collection of them, Vol. II. Dissert. XXIII.) did not imitate the Barbarity of some other Nations, which as early as Moses’s Time, very probably put innocent Persons to Death upon account of their Relation to the Guilty; as the Prohibition itself of Moses’s Law seems to insinuate. At least I do not see how such a Custom can be reconciled with the Law of the Egyptians, which our Author recites a little lower, concerning the Delay of punishing Women with Child. There would be more Cruelty without doubt in putting Creatures come into the World to Death, especially after having been long in it, than to let the Infant in the Womb perish with its Mother. And I cannot comprehend how such wise Legislators would have been guilty of so gross a Contradiction.
[f ]See also Lex Wisigoth. l. 6. t. 1. c. 8.
[7. ]He does not commend it, as I have said already in Note 7. upon Paragraph XIII. He only says that those who were for introducing a contrary Practice, in regard to the Children of the Persons proscribed by Sylla, were looked upon by the Romans as doing a Thing highly odious, not only in the sight of Men, but of the Divinity, who so manifestly punished them for it, in reducing them to a mean Condition, and not suffering any of their Descendants to remain, except on the Side of the Women. Antiq. Rom. Lib. VIII. Cap. LXXX. p. 524. Edit. Oxon.
[8. ]Ἐνὶ δὲ λόγω, πατρὸς ὀνείδη καὶ τιμωρίας παίδων μηδενὶ ξυνέπεσθαι. De Legib. Lib. IX. p. 856. D. Vol. II. Edit. Steph. The Philosopher adds however an Exception to this Law of his imaginary Commonwealth; which is, that if the Father, Grandfather, and Great-Grandfather have been all condemned to die successively, the Children ought to be banished from the State; keeping however their Estates, except those inherited from their Fathers: Πλὴν ἐάν τινι πατὴρ, &c. Ibid.
[9. ]Crimen vel poena paterna nullam maculam filio infligere potest. Namque unusquisque ex suo admisso sorti subjicitur, nec alieni criminis successor constituitur. Digest, Lib. XLVIII. Tit. XIX. De Poenis. Leg. XXVI.
[10. ]Ferretne ulla civitas, &c. De Natura Deorum. Lib. III. Cap. XXXVIII.
[11. ]See Diodorus Siculus, Lib. I. Cap. LXXVII.
[12. ]The same Historian says, in the same Place, that many of the Grecian States adopted this Law: And Plutarch attributes it to some of them. De sera Numin. vindicta, p. 552. D. Vol. II. Edit. Wech. It appears to have been in Force amongst the Athenians, according to what Aelian relates, Var. Hist. Lib. V. Cap. XVIII.
[13. ]Imperator Hadrianus Publicio Marcello rescripsit, liberam, quae praegnans ultimo supplicio damnata est, liberum parere: & solitum esse servari eam, dum partum ederet. Digest, Lib. I. Tit. V. De Statu hominum, Leg. XVIII. See also Lib. XLVIII. Tit. XIX. De Poenis. Leg. III.
[14. ]Philo the Jew praises this Law. De Humanit. (p. 710. E.) Grotius.
[1 ]Philo says, it was usual with Tyrants to put to Death, with the Persons condemned, five Families of their next Relations. See Herodian, Lib. III. and an Instance at Milan upon the Death of Galeatius. In Pet. Bizaro, Hist. Genu. Lib. XIV. Grotius.
[2. ]See the Passage cited above Note 2. upon Paragraph XIV.
[3. ]He calls it an abominable Law: Leges apud eos (Persas) &c. Lib XXIII. (Cap. VI. p. 416. Edit. Vales. Gron.) See also the fourth Council of Toledo.Grotius.
[1 ]Καὶ τοɩ̂ς περὶ τω̂ν προδοτω̂ν, &c. [Vit. decem Rhetorum, Vol. II. p. 833. A.] Grotius.
[2. ]See Velleius Paterculus, Lib. II. Cap. XXVIII. Plutarch in Sylla, p. 472. C. Vol. I. But Julius Caesar abolished this: Admisit ad honores & proscriptorum liberos.Sueton. Cap. XLI.
[a ]§ 13. n. 2.
[b ]Ch. 5. § 29. of this Book.
[1 ]Philo, De Abraham. (p. 363. D.) speaking of the Aegyptian King’s Subjects in Abraham’s Days, παραπήλαυσε, &c. His whole Family as well as he, had their Share in the Punishment, because not one of them blamed his Injustice, but were all, as it were, Accomplices with him, by applauding what he did. And Josephus, where he relates the Prophecy denounced against Jeroboam, μετέξει δὲ, &c. The People too are to bear their Part in the Punishment, and are therefore to lose that good Land, and to be dispersed beyond Euphrates, because they followed the Impieties of their Prince. (Antiq. Lib. VIII. Cap. IV. p. 280 E.) Grotius.
[2. ]De eoContactuqui ex natura oritur ejus corporis, &c. It must be read so according to the first Edition, and that of 1632. as I have observed in my Latin Edition, in which the Printers however have not followed my Correction in the Text, and have left contractu. The Fault was even in the Edition of 1642. which is the last before the Author’s Death, and arose perhaps from the Ignorance of some Corrector, who did not understand that Word contactus, used for contagio, as we find it also in some Authors, for Instance in Seneca and Tacitus. The learned Gronovius had thus read the Passage, as appears by his Note, tho’ he takes no Notice of it. But Ziegler, without suspecting that the Text was faulty, as he must have perceived, if he had attentively considered the Connection of the Discourse, accuses our Author of giving an Explication more obscure than the Question itself; and after having racked his Wits to discover a rational Sense of the Passage, he at last confesses, there is none. From whence it appears, how necessary it was to consult the antient Editions carefully, before he undertook it, I do not say, to criticize, but to read a Work like this, in order to understand it.
[3. ]Quaest. ad Orthodox CXXXVIII. Grotius.
[4. ]In a Treatise, which has been already cited several Times, wherein he endeavours to justify the Punishments inflicted upon the Posterity of Criminals. De sera numinis vindicta, p. 559. E. Vol. II.
[1 ]Maimonides, Tit. כרלה Cap. VII. § 6. Gemara, Baba Cama, Cap. IX. §2. Grotius.
[2. ]This Law has been cited above, § 12. Note 1.
[3. ]See the Council of Toledo VIII. in Receswinthus’s Case; and what is above in this Book, Chap. XIV. § 10. There is no Person so proper to represent the Deceased as his Heir, says Cicero, De legibus, Lib. II. (Cap. XIX.) Grotius.
[4. ]That is from one Man’s having more and another less than he ought to have. See above Chap. XII. § 8.
[1 ]We find this for Instance, in the Law of Suabia in Germany; according to which a penal Action cannot lie against an Heir, till after Sentence, in the cases of Theft, Gaming or Usury; and for other Offences, the Fact must at least be proved juridically before the Death of the Delinquent. See a Dissertation of Mr. Thomasius, De usu Actionum Poenalium Juris Romani in foris Germaniae, Cap. II. § 16. where he cites the express Words of Speculum Suevium, Art. CCLVII.
[2. ]Post litem contestatum. This is the Decision of the Roman Law; and the Custom in Countries which follow it: Omnes poenales actiones post Litem inchoatam, & ad Haeredes transeunt. Digest. Lib. XLIV. Tit. VII. De Obligat. & Actionib. Leg. XXVI. See also Law XVIII. and Lib. I. Tit. XVII. De diversis Reg. Juris. Leg. CXXXIX. CLXIV.
[3. ]This is a general Rule in the Roman Law, as well in this as in other Cases. As soon as Sentence is given, the Person, in whose Favour it passed, or his Heir, has his Action against the Heir of the other Party: Judicati actio perpetua est, & rei persecutionem continet. Item haeredi & in haeredem competit. Digest. Lib. XLII. Tit. I. De re judicata, & de effectu sententiarum, &c. Leg. VI. § 3.
[4. ]From the Moment a Suit is commenced, the two Parties are presumed to engage thereby to pay whatsoever shall become due in Virtue of the Sentence: Nam sicut stipulatione contrahitur cum filio, ita judicio contrahi: Proinde non originem judicii spectandam, sed ipsam judicati velut obligationem. Digest. Lib. XV. Tit. I. De Peculio, Leg. III. § 11. So that there being an Obligation of the Deceased founded on this Presumption, which the Laws authorize; it is transferred to his Heirs, in the same Manner, as that of express Contracts and Engagements, which is, as it were, attached to the Defunct’s Estate.
[5. ]Ut & ea quae in conventionem deducta est. But this is only a Penalty improperly so called; in Strictness, it ought to be termed a Sort of Reparation agreed upon: The following is an Example of this Kind taken from the Roman Law. A Man had sold some Materials, and taken the Money for them, under a certain Penalty if the whole Quantity were not delivered in a Time fixed. This Person happened to die, before he had fully performed the Contract, and his Heir did not take care to make it good, by delivering the remaining Part of the Materials. The Buyer therefore had his Action against the Heir, for the Penalty or Reparation, to which the Deceased had made himself liable by the Contract of Sale: Lucius Titius, accepta pecunia, &c. Digest. Lib. XIX. Tit. I. De actionibus emti & venditi, Leg. XLVII.