The Rights of War and Peace

by Hugo Grotius

XXII. Before the establishment of penal laws, punishment, beyond all doubt, might be inflicted; because by the law of nature, every offender made himself subject to punishment; but it is not a natural and inevitable consequence of its being lawful, that it should be enforced. For this depends upon the connection between the ends, for which punishments were established, and the punishments themselves. If the ends proposed therefore are not immediately necessary, in a moral point of view, or if other ends of a different kind, but not less wise and salutary should be devised, or that the ends originally designed may be obtained by some other means, in all these cases, the right of punishment may be saved, there being no immediate occasion to inflict it. Thus for instance, where an offence is known to very few, there can be no immediate occasion for a public punishment, by way of exemplary exposure, which in some cases might be even injurious to society rather than productive of advantage. Upon which Cicero in a letter to his brother makes a pertinent remark, respecting one Zeuxis, observing, that "had he once been brought into court, he could not have been released, but there was no necessity that a search should be made for him, in order to bring him to trial."—In the next place the right and end of punishment may be dispensed with, where a man's own services, or those of his family are sufficient to outweigh the consideration of his offences. "For, in the words of Seneca, an act of kindness eclipses the fault of an injury."—And in the last place, where reproof operates upon an offender, as a means of correction and amendment, or where the injured party is satisfied with an acknowledgment of the offence, the occasion for punishment is done away. It was this motive to clemency, which the son of David had in view, where he observes that it behoves the righteous to be merciful. For as all punishment, especially of the more severe cast, has in it some thing, which tho' not repugnant to justice, is at variance, at least, with charity, reason easily suffers us to forbear inflicting it, unless that forbearance is opposed by some weightier, juster, and more undeniable motive of charity.

XXIII. Cases may occur where it is absolutely necessary to inflict punishment, as upon notorious, and atrocious criminals, or where it is for the public good, to dispense with that severity, or where the judicial authorities may use their own discretion in mitigating or enforcing the sentence of the law. Upon which Seneca pertinently remarks, that the exercise of lenity should always be an act of free deliberation. As to the disputes of the Stoics on these points, they are, in the opinion of Cicero and others, debates upon words rather than things: consequently they are less worthy of philosophical contemplation.

XXIV. There seems to be a greater difficulty in deciding what is to be done, subsequently to the establishment of penal laws; because a legislator is bound, in some measure, by his own laws. But this, as it was proved in a former part of this treatise, is only true with respect to the legislator, in his individual capacity, as a private member of the state, but not in his public character, in which he represents the whole Majesty and Authority of the state itself. As such, he can entirely repeal the law: for it is the nature of all human laws, to depend upon the will of the maker, not only for their origin, but also for their duration. Yet a lawgiver ought not, upon trivial grounds, to repeal a statute, for, in so doing he would be acting against the rules of sovereign justice. But as the legislator has power to repeal the whole of a law, so in the case of some particular person, or individual action, he may relax its rigour, allowing it to remain in other respects, as it stood before. As an example of this, the actions of the Deity may be cited, who, according to the testimony of Lactantius, in enacting his laws, did not deprive himself of the exercise of his mercy, to grant pardons. "The Emperor, says Augustin, may recall his sentence, pardon and release a criminal; because, as he further explains it, the person who has power to make laws, is not INVARIABLY bound to observe them." Yet this privilege of departing from the letter must never be used but for the most important reasons. Although such reasons cannot be precisely defined, yet it is certain that, since the establishment of civil law, more weighty ones are required to authorise such pardons, than before that period. Because punishments have derived an additional sanction from the authority of the law, which ought to be respected and observed.

XXV. The reasons for releasing any one from the penalties of the law, are of two kinds, either internal or external.

An internal reason, to justify a departure from the sentence of the law, must be one, where the punishment is severe when compared with the offence.

XXVI. An external reason is one arising from some favourable circumstance in the character of the offender, or some fair hopes that may be entertained of his future conduct. And these reasons will have the most weight in cases, where the particular motives for making the law cease to operate. For although a general reason, unopposed by any other of a weightier kind, may sufficiently authorise the enaction of a law; yet where the peculiar reason, for which that law was made, has ceased to exist, the relaxation of it, or even a total dispensation will be attended with less danger to the universal authority of law in general.

Such a dispensation indeed is most allowable, where an offence has been committed through ignorance, though the party so committing it is not entirely free from blame, or through some invincible infirmity of mind, in all which cases, a Christian ruler will have an eye to the example of God, who, under the old covenant, appointed many such offences to be atoned for by certain expiatory offerings: Levit. iv. and v.: and, in the New Testament, he has expressly declared his intention to pardon such offences, upon due repentance. Luke xxiii. 34.; Heb. iv. 15. and v. 2.; 1 Tim. 1. 13. And Chrysostom observes, that Theodosius, impressed with those words of our Saviour, "Father, forgive them, for they know not what they do," was led to grant a pardon to the people of Antioch.

XXVII. And hence it is evident, how mistaken Ferdinand Vasquez is in his judgment, when he maintains that there can be no just reason for dispensing with a law, that is, for releasing any one from its obligations, except where the lawgiver, upon being consulted, expressly declares that he never intended it should be observed to its full extent. For he does not make the proper distinction between an equitable interpretation, and the entire relaxation of a law. For which reason, in another place, he reproves Thomas, and Sotus, because they say that a law is binding although the particular reason of its being made may have ceased, as if they supposed that the mere letter of the law was the source of its obligation, an opinion which they never did entertain. So far from every relaxation coming under the idea of equity, properly so called; those relaxations may be freely granted or refused, which could not be done in matters of equity, to which even acts of charity or those of reasonable policy do not strictly belong. For there is a great difference between the repeal of a law upon fair or urgent grounds, and a legislator's declaring that at the time of passing the law he had not the particular offence or case in contemplation.

Having thus far considered the nature of dispensations, we proceed to a review of the merits upon which they may be granted.

XXVIII. From what has been said above, it appears that in punishments, two things are to be regarded, the offence, and the object for which they are inflicted. It is consonant to justice that no one should receive greater punishment than he deserves; upon which Cicero, in one of his letters, observes, that, "the same moderation, which is commended in all other things, ought to be observed in punishments." Papinian therefore calls punishment an estimation of demerit; but this equality established between crime and punishment, says Demosthenes in his Letter in behalf of the children of Lycurgus, is not the only thing to be considered: the object and intention also of the delinquent must be weighed and taken into the account. But, if care be taken to inflict no more punishment than is due for an offence; it may be greater or less, in proportion to the utility to be derived from thence.