Rights by law of nations. 116. Thus far, the author begins in the eighteenth chapter, we have treated of rights founded on natural law, with some little mixture of the arbitrary law of nations. We come now to those which depend wholly on the latter. |Those of ambassadors.| Such are the rights of ambassadors. We have now, therefore, to have recourse more to the usage of civilized people, than to theoretical principles. The practice of mankind has, in fact, been so much more uniform as to the privileges of ambassadors than other matters of national intercourse, that they early acquired the authority and denomination of public law. The obligation to receive ambassadors from other sovereign states, the respect due to them, their impunity in offences committed by their principals or by themselves, are not indeed wholly founded on custom, to the exclusion of the reason of the case, nor have the customs of mankind, even here, been so unlike themselves as to furnish no contradictory precedents; but they afford, perhaps, the best instance of a tacit agreement, distinguishable both from moral right and from positive convention, which is specifically denominated the law of nations. It may be mentioned that Grotius determines in favour of the absolute impunity of ambassadors, that is, their irresponsibility to the tribunals of the country where they reside, in the case of personal crimes, and even of conspiracy against the government. This, however, he founds altogether upon what he conceives to have been the prevailing usage of civilized states.[398]
[398] C. 18.
Right of Sepulture. 117. The next chapter, on the right of sepulture, appears more excursive than any other in the whole treatise. The right of sepulture can hardly become a public question, except in time of war, and as such it might have been shortly noticed in the third book. It supplies Grotius, however, with a brilliant prodigality of classical learning.[399] But the next is far more important. |Punishments.| It is entitled On Punishments. The injuries done to us by others give rise to our right of compensation and to our right of punishment. We have to examine the latter with the more care, that many have fallen into mistakes from not duly apprehending the foundation and nature of punishment. Punishment is, as Grotius rather quaintly defines it. Malum passionis, quod infligitur ob malum actionis, evil inflicted on another for the evil which he has committed. It is not a part of attributive, and hardly of expletive justice, nor is it, in its primary design, proportioned to the guilt of the criminal, but to the magnitude of the crime. All men have naturally a right to punish crimes, except those who are themselves equally guilty; but though the criminal would have no ground to complain, the mere pleasure of revenge is not a sufficient motive to warrant us; there must be an useful end to render punishment legitimate. This end may be the advantage of the criminal himself, or of the injured party, or of mankind in general. The interest of the injured party here considered is not that of reparation, which, though it may be provided for in punishment, is no proper part of it, but security against similar offences of the guilty party or of others. All men may naturally seek this security by punishing the offender, and though it is expedient in civil society that this right should be transferred to the judge, it is not taken away, where recourse cannot be had to the law. Every man may even, by the law of nature, punish crimes by which he has sustained no injury; the public good of society requiring security against offenders, and rendering them common enemies.[400]
[399] C. 19.
[400] C. 20.
118. Grotius next proceeds to consider whether these rights of punishment are restrained by revelation, and concludes that a private Christian is not at liberty to punish any criminal, especially with death, for his own security or that of the public, but that the magistrate is expressly empowered by Scripture to employ the sword against malefactors. It is rather an excess of scrupulousness, that he holds it unbecoming to seek offices which give a jurisdiction in capital cases.[401]
[401] Id.
119. Many things essentially evil are not properly punishable by human laws. Such are thoughts and intentions, errors of frailty, or actions from which, though morally wrong, human society suffers no mischief; or the absence of such voluntary virtues as compassion and gratitude. Nor is it always necessary to inflict lawful punishment, many circumstances warranting its remission. The ground of punishment is the guilt of the offender, its motive is the advantage expected from it. No punishment should exceed what is deserved, but it may be diminished according to the prospect of utility, or according to palliating circumstances. But though punishments should bear proportion to offences, it does not follow that the criminal should suffer no more evil than he has occasioned, which would give him too easy a measure of retribution. The general tendency of all that Grotius has said in this chapter is remarkably indulgent and humane, beyond the practice or even the philosophy of his age.[402]
[402] C. 20.
120. War is commonly grounded upon the right of punishing injuries, so that the general principles upon which this right depends upon mankind, ought well to be understood before we can judge of so great a matter of national law. States, Grotius thinks, have a right, analogous to that of individuals out of society, to punish heinous offences against the law of nature or of nations, though not affecting themselves, or even any other independent community. But this is to be done very cautiously, and does not extend to violations of the positive divine law, or to any merely barbarous and irrational customs. Wars undertaken only on this score are commonly suspicious. But he goes on to determine that war may be justly waged against those who deny the being and providence of God, though not against idolaters, much less for the sake of compelling any nation to embrace Christianity, unless they persecute its professors, in which case they are justly liable to punishment. He pronounces strongly in this place against the persecution of heretics.[403]