The Rights of War and Peace

by Hugo Grotius

XXIX. In examining the different degrees of guilt, we ought to take into the account the motives which impelled the offender to commit the act—the motives, which ought to have restrained him therefrom, and how far he was capable of yielding to either. Scarce any one does a wicked action without some motive, or so far strips himself of the nature of man, as to delight in such acts from pure malignity. Most men are led away by the indulgence of their appetites, which engender sin. Under the name of appetite also may be comprehended the strong desire of avoiding evil, which is the most consonant to nature, and therefore to be reckoned amongst the most laudable of all desires. So that offences committed for the sake of avoiding death, imprisonment, pain, or extreme want are generally deemed the most excusable.

Which gave occasion to Demosthenes to say, "that we are justly more exasperated against those, who, abounding in riches, commit evil actions, than against those, who are impelled by want to do the same. Humane judges are always ready to make allowance for necessity: but where wealth is united with injustice, no pretext can be pleaded in excuse." On this score, Polybius excuses the Acarnanians, for having neglected, when threatened with impending danger themselves, to fulfil the terms of a defensive treaty made with the Greeks against the Aetolians.

Besides the desire of avoiding evil there are other desires tending to some good, either real or imaginary. Real advantages, considered apart from virtues, and those actions, which have a virtuous tendency, are either such as give delight themselves, or, like abundance of riches, can procure those things, which administer to pleasure. Among advantages purely imaginary, we may reckon that of desiring to excel others, from a spirit of rivalry, rather than from any laudable intention, or the power of gratifying resentments, which the farther they deviate from natural justice the more shocking they are to natural feeling. These appetites the Apostle has described in terms of marked censure, calling them, the "lust of the flesh, the lust of the eye, the pride of life." Here the first member of the sentence expresses the love of pleasure, the second implies the insatiable love of riches, and the third comprehends the pursuit of vain glory, and the desire of revenge.

XXX. The very injustice of all offences ought to be a GENERAL motive with men, to restrain them from the commission of them. For at present we are not considering sins of any kind, but those, which extend their consequences beyond the offender himself, and affect others. And injustice is the more heinous and criminal in proportion to the greatness of the injury, which it inflicts.

In the highest rank of crimes and misdemeanours therefore, we may place those, which are carried into complete execution: and lower in the scale we find those criminal designs, which have proceeded some degrees, but not to the last stage of completion. For the aggravation of a criminal intent is measured by the length to which it goes. In either class that kind of injustice is most notorious, which tends to disturb the common peace of society, and therefore is injurious to greater numbers. Private wrongs follow in the next degree. The greatest of which are those affecting life, and very great, though somewhat inferior in the degrees of enormity, are those, that disturb the peace of families, which is founded on the marriage-contract. And the last description of wrongs are those affecting the property of individuals, either by taking it with open violence, or obtaining or injuring it by fraudulent means.

Some are of opinion that a more accurate order of division might have been used; but that which is here followed is the same used by God himself in the delivery of his commandments. For under the name of parents are included not only those, who are naturally such, but sovereign princes, magistrates, and rulers of every description, whose authority is the key-stone of the fabric of society. Next follows the prohibition of murder; the prohibition of adultery, as a violation of the marriage bond; the prohibition of theft, and false evidence: and the catalogue of offences concludes with the prohibition of criminal desires. Among the immediate causes to restrain the commission of a crime, not only the cruelty of the act itself, but all the remote and possible consequences should be taken into the account. If a fire is begun, or the barriers, that keep out the waves, are broken down, the perpetrator brings upon his own head the blood of thousands, and all the guilt of that ruin by which they perish.

In addition to the general characters of injustice above described, we may annex the crime of being undutiful to parents, unkind to relatives, or ungrateful to benefactors, which are each of them a violation of natural, and in some respects of civil law. The repetition of these offences too aggravates their enormity: because wicked habits are sometimes worse than wicked actions. Hence we may comprehend the natural justice of that rule, which the Persians followed, comparing the past life of an offender with his present transgression. And this ought to have some weight in cases where a crime does not originate from habit, but from a momentary occasion. But not so, where a course of former rectitude has been changed into an unvaried course of wickedness. For in such cases, God himself has declared by the mouth of his prophet Ezekiel, that he has no regard to the former life. Even profane writers have the same clear views upon the subject; for Thucydides observes, that degeneracy from a righteous to a wicked course incurs double punishment: for offences are least pardonable in those, who know the difference between right and wrong. In this respect all praise and admiration are due to the wisdom of the primitive Christians, who, in estimating the magnitude of offences, weighed the preceding and the subsequent conduct of a transgressor against the action, for which he was to be punished, as may be seen from the council of Ancyra, and other councils. It heightens the enormity of an offence, where it is committed in violation of an express prohibition of the law. For, in the language of Tacitus, "the fear of prohibition may sometimes operate as a restraint, but where men once act in defiance of that, fear and shame have lost all their force."

XXXI. The capacity of the person too, with respect to judgment, disposition, age, education, and every other circumstance must be taken into consideration, when we look for resistance, or submission to the suggestions of wicked inclinations. The thought of immediate danger augments fear, and recent, unallayed pain inflames anger; so that in either case the calm dictates of reason cannot be heard. Offences therefore springing from the influence of such impressions, are of a less odious complexion than those arising from the love of pleasure, or the indulgence of hatred. Because there is less excuse for actions of the latter kind, the delay, or total forbearance of which could occasion no serious inconvenience. For it must always be kept in mind, that where there are more powerful impediments to the exercise of judgment, and more urgent persuasives to natural feeling, the criminality of an offence is proportionably softened. And these are the rules for measuring the degrees of pardon or punishment.

XXXII. The Pythagoreans maintain that justice lies in proportioning the punishment to the offence: a rule which cannot be admitted to the full extent of requiring an aggressor to suffer nothing more than a bare requital of the injury he has occasioned. For this is at variance with the most perfect laws, which in cases of theft sometimes require fourfold, and sometimes fivefold restitution to be made. And the Athenian law, besides compelling a thief to pay double the value of what he had taken sentenced him to many days' imprisonment. Among the Indians, as we are informed by Strabo, the person, who had maimed another, was condemned, in addition to the penalty of retaliation, to lose his hand. Nor is it right, as Philo, in explaining the punishment of murder, justly observes, for the suffering of an innocent and guilty person to be exactly the same. And hence it is easy to see why certain crimes not carried into actual execution, and therefore less injurious than those, which are so, are punished only proportionably to the design.—In this manner false witnesses were treated by the Jewish law; and by the Roman law, those who walked ready armed to commit murder. Consequently a greater degree of punishment is due, where the criminal intention is completed. But as death is the severest punishment that can be inflicted, and one that can never be repeated; the sentence of all human law rests there: though by the custom of some countries death is accompanied with torture, in cases of extreme atrocity.

XXXIII. In many instances, the magnitude of a punishment can only be measured by the situation of the person on whom it is to be inflicted. Thus a fine imposed upon the poor would be a heavy sentence, though it would scarcely affect the rich; and a man of high rank would feel the weight of a disgrace, that would but lightly touch an ignoble person. Such distinctions are frequently used by the Roman law, often degenerating into acts of partiality; a fault from which the law of Moses is entirely free. And the above rules may be considered as the scale for estimating the different degrees of punishment.