VI. There are certain other rights too, which owe their origin to the voluntary law of nations, such as the right of possession from length of time, the right of succession to any one who dies intestate, and the right resulting from contracts, though of an unequal kind. For though all these rights, in some measure, spring from the law of nature, yet they derive their confirmation from human law, whether it be in opposition to the uncertainty of conjecture, or to certain other exceptions, suggested by natural reason: points, all of which have been slightly touched upon in our discussions on the law of nature.
[CHAPTER XX.]
On Punishments.
Definition and origin of punishment—In what manner punishment relates to strict justice—The right of punishing allowed by the law of nature, to none, except to those, who are innocent of the crimes and misdemeanours to be punished—Difference of motive between human and divine punishment—In what sense revenge is naturally unlawful—The advantages of punishment, threefold—The law of nature allows any one to inflict punishment upon an offender, yet with a distinction—The regard which the law of nations pays to the benefit of the injured party, in the infliction of punishment—General utility of punishments—What is determined by the law of the Gospel, in this respect—Answer to the objections founded upon the mercy of God, as displayed in the Gospel—Capital punishments objected to as cutting off all possibility of repentance—Not safe for private Christians to inflict punishments, even when allowed to do so, by the law of nations—Prosecutions, for certain offences, to be carried on in the name of the public and not of individuals—Internal acts not punishable by man—Open acts, when inevitable through human infirmity not punishable—Actions, neither directly nor indirectly injurious to society, not punishable by human laws—The reasons of that exemption—The opinion, that pardon can never be granted, refuted—Pardon shewn to be allowable before the establishment of penal law—But not in all cases—Allowable also subsequently to the establishment of penalties—Internal and external reasons—Opinion, that there can be no just reason for dispensing with laws, except where such dispensation can be implied as authorised by the law, examined and refuted—Punishment estimated by the desert of the offender—Different motives compared—Motives which ought to restrain men from sin—Scale of offences according to the precepts of the Decalogue—Capacity of the offender—Punishment mitigated from motives of charity, except where there are stronger motives of an opposite kind—Facility or familiarity of crimes aggravates their nature—Clemency, proper exercise of—Views of the Jews and Romans in inflicting punishment—War considered as a punishment—Whether hostilities can justly be commenced for intended aggressions—Whether Kings and Nations are justified in making war to punish offences against the law of nature, not immediately affecting themselves or their subjects—The opinion, that jurisdiction is naturally necessary to authorise punishment, refuted—Distinction between the law of nature, and civil customs, and the divine voluntary law—The question, whether war can be undertaken to punish acts of impiety—considered—The being of God, whence known—Refusal to embrace the Christian religion not a sufficient cause of war—Cruel treatment of Christians, justifiable cause of war—Open defiance of religion punishable.
I. In the preceding part of this treatise, where the causes, for which war may be undertaken, were explained, it was considered in a two-fold light, either as a reparation for injuries, or as a punishment. The first of these points having been already cleared up, the latter, which relates to punishments, remains to be discussed, and it will require a more ample investigation; for the origin and nature of punishment, not being perfectly understood, has given rise to many errors.
Punishment taken in its most general meaning signifies the pain of suffering, which is inflicted for evil actions. For although labour may some times be imposed instead of punishment; still it is considered in that case, as a hardship and a grievous burden, and may therefore properly be classed with sufferings. But the inconveniences, which men are some times exposed to, by being excluded from the intercourse of society and the offices of life, owing to infectious disorders, or other similar causes, which was the case with the Jews on account of many legal impurities, these temporary privations are not to be strictly taken for punishments: though from their resemblance to each other, they are often, by an abuse of terms, confounded.
But among the dictates laid down by nature, as lawful and just, and which the ancient Philosophers call the law of Rhadamanthus, the following maxim may be placed, THAT IT IS RIGHT FOR EVERY ONE TO SUFFER EVIL PROPORTIONED TO THAT WHICH HE HAS DONE.
Which gave occasion to Plutarch, in his book on exile, to say that "justice is an attribute of God, avenging all transgressions of the divine law; and we apply it as the rule and measure of our dealings with each other. For though separated by the arbitrary or geographical bounds of territory, the eye of nature looks upon all, as fellow subjects of one great empire." Hierocles gives a fine character of justice, calling it the healing remedy of all mischief. Lactantius in speaking of the divine wrath calls it "no inconsiderable mistake in those, who degrade human or divine punishment with the name of cruelty or rigour, imagining that some degree of blame must always attach to the punishment of the guilty." What has been said of the inseparable connection of a penalty with every offense is similar to the remark of Augustin, "that to make a punishment JUST, it must be inflicted for some crime." He applies the expression to explain the divine justice, where through human ignorance, the offence is often undiscoverable though the judgment may be seen.
II. There are diversities of opinion whether punishment comes under the rank of ATTRIBUTIVE or that of STRICT justice. Some refer it to justice of the attributive kind, because offences are punished more or less, in proportion to their consequences, and because the punishment is inflicted by the whole community, as it were, upon an individual.