The Rights of War and Peace

by Hugo Grotius

But a disposition like this, when stripped of all disguise and false colouring, will be found by no means suitable to the reasonable soul of man, whose office it is to regulate and controul the affections. Nor will that disposition receive any sanction from the law of nature, who in all her dictates, inclines to unite men in society by good will, rather than to separate them by cherishing animosity. For it is laid down by reason, as a leading axiom in her code of laws, that no man shall do any thing which may hurt another, unless it be for the purpose of some evident and essential good. But the pain of an enemy considered solely of such, is no benefit to us, but a false and imaginary one, like that derived from superfluous riches or things of the same kind.[53]

In this acceptation revenge is condemned both by Christian teachers and heathen philosophers. In this respect, the language of Seneca approaches very near to the perfection of Christian morals. He calls revenge, in its usual and proper acceptation, a term of inhumanity, differing from injury only in degree. For retaliation of pain can be considered as nothing better than excusable sin. Juvenal, after describing the different tempers, over which revenge exercises the most powerful dominion, and shewing the amiable characters over which it has no influence, concludes it to be the pleasure of a little and infirm mind.

From the preceding arguments it is plain that punishment cannot justly be inflicted from a spirit of revenge. We proceed therefore to consider the advantages attending its just infliction.

VI. This seems the most proper place for reviewing those distinctions in the motives of punishment, which have been used by Plato in his Gorgias, and by Taurus the philosopher in a passage quoted by Gellius in the fourteenth chapter of his fifth book. These distinctions seem to result naturally from the end of all punishment. Plato indeed considers the amendment of the offender, and the example given to others, as the two principal motives: but Taurus has added a third, which he calls satisfaction, and which is defined by Clemens Alexandrinus, to be repayment of evil, contributing to the benefit of both the aggrieved and avenging party. Aristotle passing over example as a motive, confines the object of punishment to the amendment or correction of the offender. But Plutarch has not made the same omission: for he has said, that "where immediate punishment follows the execution of a heinous crime, it both operates to deter others from committing the same crime, and administers some degree of consolation to the injured and suffering person." And this is what Aristotle calls commutative justice. But these matters require a more minute inquiry. We may observe therefore that there is nothing contrary either to human or divine law, in punishments, which have the good of the offender, or that of the injured party, or of any persons whatsoever in view.

The three proper ends are obtained by that kind of punishment, which some philosophers have called correction, some chastisement, and others admonition. Paulus the Lawyer, has given it the name of correction; Plato styles it a lesson of instruction, and Plutarch a medicine of the soul, reforming and healing the sufferer, while it operates as a painful remedy. For as all deliberate acts, by frequent repetition, produce a propensity, which ripens into habit, the best method of reforming vices in their earliest stage is to deprive them of their sweet savour by an infusion of subsequent pain. It is an opinion of the Platonists, repeated by Apuleius, that "impunity and the delay of reproof are more severe and pernicious to an offender than any punishment whatsoever," and, in the words of Tacitus, "violent disorders must be encountered with remedies proportionably strong."

VII. The power of inflicting the punishment, subservient to this end, is allowed by the law of nature to any one of competent judgment, and not implicated in similar or equal offences. This is evident as far as verbal reproof goes, from the maxim of Plautus, that "to bestow merited reproof upon a friend is useful, upon certain occasions, though by no means a grateful office." But in all kinds of constraint and compulsion, the difference made between the persons, who are allowed, and who are not allowed to exercise it is no appointment of natural law, but one of the positive institutions of the civil law. For no such natural distinction could be made, any farther than that reason would intrust parents with the peculiar use of such an authority, in consideration of their affection. But laws, in order to avoid animosities, have, with respect to the authority of punishing, passed over the common kindred subsisting among mankind, and confined it to the nearest degrees of relation: as may be seen in many records, and particularly in the code of Justinian, under the title of the POWER OF RELATIVES TO CORRECT IN ORDER TO REFORM OFFENDERS. And Cyrus, in the v. book and viii. chapter of Xenophon's history of the Expedition, addresses the soldiers to the following purport, "If I punish any one for his good, I am willing to submit to justice; but would it not be equally reasonable that parents and masters should submit to justice, for having corrected children, or the Surgeon be responsible for having used the incision-knife, where the patient's case required it?"

But this kind of corrective punishment does not extend to death, which cannot be considered, as a benefit in itself, except INDIRECTLY and BY WAY OF REDUCTION, as it is called by Logicians, who, in order to confirm negatives, reduce them to things of an opposite kind. Thus, in Mark xiv. 21, when our Saviour says, that it were better for some, they had never been born, so, for incurable dispositions, it is better, that is would be a less evil, to die than to live; since it is certain that by living they will grow worse. Plutarch calls such men a pest to others, but the greatest pest to themselves. Galen says that capital punishments are inflicted to prevent men from doing harm by a longer course of iniquity, and to deter others by the fear of punishment, adding that it is better men should die, when they have souls so infected with evil, as to be incurable.

There are some, who think that these are the persons meant by the Apostle John, who describes them as sinning a sin unto death. But as their arguments are not satisfactory, charity requires that no one should be deemed incorrigible, except upon the clearest grounds. So that punishment with such an end in view can only be inflicted for important causes.

VIII. The benefit accruing to an injured person from the punishment of an offender consists in his being secured in future against a recurrence of the same injury from that offender, or from others. There are three ways of preventing this recurrence—by removing the offender—by depriving him of the power of doing harm, or lastly by compelling him to better habits of thought or action, which is the reformation produced by the punishment already spoken of. It is not every kind of punishment, which can produce such effects; it must be open and conspicuous, to operate as an example, that may deter others from the commission of the same crimes. A vindictive punishment, inflicted by an injured individual, or by any other person, when it is restrained by bounds and limitations of this kind, has nothing unlawful in it considering the law of nature by itself, apart from all human and divine institutions, and every adventitious circumstance, that may create a deviation from the primitive dictates of nature. We have said that it may be inflicted by any other individual, as well as by the injured person: for it is conformable to nature, that one man should assist another. But as our judgment is apt to be biassed by our affections, in cases, where our interest is concerned; since the formation of families into states, judges have been appointed, and invested with the power of punishing the guilty, whereby the natural liberty of personal redress, originally allowed to individuals, was abolished, or at least abridged. And it is only in places, on the seas for instance, where no judicial remedy can be obtained, that this natural liberty continues in force. There is a circumstance related of Julius Caesar, applicable to this subject. While he was only in a private station, being taken prisoner by some pirates, after he had redeemed himself by a sum of money, he applied to the proconsul for redress. But his application being neglected, he fitted out a certain number of ships, attacked and defeated the pirates, and ordered them all to be crucified.

The practice of private individuals, exercising punishment, was the origin of single combats, so familiar to the Germans before the introduction of Christianity, and not yet sufficiently laid aside. We are informed by Velleius Paterculus, in his second book, that the Germans were surprised to see the forms of Roman jurisprudence, and those disputes, which they themselves decided by the sword, settled by law. By the Jewish law, the nearest in blood to the deceased were allowed to kill a murderer, if taken beyond the places of refuge. And the Jewish interpreters observe, that in GENERAL the infliction of punishment, as a retaliation for murder, it intrusted to no hand, but that of the judge: as it is difficult for an individual in his own case to moderate his resentment. The same custom of allowing individuals to avenge their own wrongs prevailed among the ancient Greeks, as we find from the words of Theoclymenes, in Homer's Odyssey. But it prevailed most in countries, where public courts of justice were not established. From hence St. Augustin defines those wars to be just, which are intended to avenge injuries. And Plato, in his twelfth book ON A COMMONWEALTH, justifies the prolongation of hostilities, till the aggressor is reduced to submit to just, and equitable terms.