XII. and XIII. Another objection made against capital punishments is that such a kind of sentence and execution is cutting off a criminal from all possibility of repentance. But those, who make the objection, must know, that in cases of that kind, venerable and upright judges use the greatest precautions, and suffer no one to be hurried away to execution, without a reasonable time allowed for reflection and deep abhorrence of his crime: a repentance, which though prevented by the interposing hand of death from producing the fruits of righteousness, we have reason to suppose, from the case of the thief pardoned on the cross, may be accepted with God.
But if on the other hand it be said that longer life might have been of more avail to serious repentance, we may observe that, in some cases, the reply of Seneca may be made, that to men of that description death is often the greatest blessing which can be bestowed; for, in the words of Eusebius, their career of wickedness cannot otherwise be shortened, or reformed. These in addition to the preceding arguments in the former part of this treatise may be deemed a sufficient answer to those, who assert that all capital punishments, and even all punishments, without exception, are abolished by the precepts of our Saviour. The Apostle, consigning to the office of kings the use of the sword, as an exercise of his divine commission to avenge all wrongs, instructs us to pray for kings, that, as true Christians, in their royal capacity, they may be a protection to the innocent. An end, which even after the introduction of the gospel, could not easily be obtained, owing to the depravity of mankind, if the violence of some were not restrained by the exemplary punishment of others. Such authority is the more necessary, when even in the midst of so many examples and punishments, the lives of the innocent are scarcely secure. There have been indeed, it cannot be denied, happy instances where the sentence of death was changed for that of perpetual labour, a practice, as we are informed by Diodorus, followed by Sabacon, king of Egypt, a prince renowned for his piety. Balsamon observes that the penal laws of Rome, inflicting death, were most of them changed by the Christian emperors of later times, and other kinds of punishment were substituted, that the guilty might receive deeper impressions of repentance, and their punishment operate as a more durable example.
XIV. From what has been said, it may be inferred, how unsafe it is for a private Christian, whether from motives of personal interest, or from those of the public good, to take upon himself the punishment of an offender, and particularly to inflict death. Although, as it has been said before, it may, IN SOME CASES, be allowed by the law of nations. A permission, that has given rise to the laudable practice, prevailing in some countries of furnishing adventurers with public instructions and commissions to chase and capture pirates, wherever they may be found. But those adventurers may be considered as discharging a public duty rather than as acting upon their own authority.
XV. A custom not unlike to which prevails in many places, of not allowing individuals to bring criminal charges against others at their own pleasure: that office belonging to persons invested with public authority to undertake it. So that no one can contribute towards shedding the blood of another, but as an act of necessary duty. In reference to this custom, a canon of the council of Eliberis excluded from the communion any believer who had been instrumental in causing the proscription or death of another.
XVIII.[54] It is proper now to consider whether all wicked acts are of that kind, which are punishable by human laws. In reply to which we may answer that they certainly are not.—In the first place, mere acts of the mind, or criminal intentions, though by subsequent confession, or some other accident, they may come to the knowledge of others, are not punishable by human laws. Because, as it was proved in a former part of this treatise, it is not consonant to the law of nature, that INTENTIONS ONLY should give rise to any right, or obligation amongst men. And in this sense the maxim of the Roman law is to be taken, THAT NO ONE DESERVES PUNISHMENT FOR MERE THOUGHTS. Yet this does not prevent intentions, when they have an influence upon the conduct, from being considered as actual deeds, and equally deserving of punishment.
XIX. In the second place, even outward acts, cannot be punished by men where they arise through some inevitable infirmity of human nature. For although there can be no sin, except where there is a freedom of will, yet to be at all times free from all infirmity and sin, is more than can be expected from the condition of man. So that Sopater, Hierocles and Seneca among the Philosophers; Philo among the Jews; Thucydides among the historians; and innumerable writers among Christians have maintained that sin is interwoven with our very nature. Nay indeed, a doubt may be entertained whether such acts can rightly and properly be called sins. For though seeming to be voluntary actions, they will be found, when minutely considered, not to proceed from a free and deliberate exercise of the will. "Laws, says Plutarch in the life of Solon, should be framed to suit possible cases, the legislator may obtain every beneficial end by punishing a few offenders, where the indiscriminate punishment of multitudes would be attended with no good effect."
There are some actions, which though not imputable to human nature itself, are inevitable consequences of the influence of bodily habits on the mind. Actions like these are punishable in human courts, owing to the criminality of voluntary contracting, or of not sufficiently guarding against, those habits.
XX. In the third place, human courts of justice cannot take cognizance of those offences, which neither directly nor indirectly, affect the public or individuals. For no reason can be assigned, why such offences should not be left to the judgments of God, whose all-seeing eye must know them, whose equity will weigh them, and whose power can punish them. It would be unnecessary therefore, and presumptuous in human tribunals to assume such decisions. However we must except from this rule those corrective kinds of punishment, designed for the reformation of offenders, even where their conduct is no way injurious to others.
Neither are those actions punishable, which are directly opposite to the virtues of compassion, liberality, or gratitude, in the performance of which virtues natural justice allows of no compulsion.
XXI. The point, necessarily to be considered next, is the opinion, whether it is lawful some times to grant pardon. For the Stoics maintain it not to be lawful, as may be seen from a fragment in Stobaeus, under the title of Magistracy, from Cicero's speech for Murena, and towards the conclusion of Seneca's books on Clemency; but their arguments are fallacious, and unsubstantial. They say "that pardon is the remission of a penalty, that OUGHT to be paid; but a wise man does every thing, which he OUGHT to do." Here the fallacy lies in the use of the word OUGHT. For if it means that an offender owes a penalty, that is, that he may be punished without injustice, it will not necessarily follow that the person who does not punish him, is doing what he ought not to do. But if the word be taken to imply that a good man, or a wise man, ought at all events, to exact the penalty, it may be observed in reply that THIS does not always happen, and therefore, in this sense, the penalty or punishment may be considered, not as a debt, but only a permission. And this will hold good, both before and after the establishment of penal laws.