[CHAPTER XXI.]
On the Communication of Punishment.
How accessories are liable to punishment—Sovereign Princes or States answerable for the misconduct of their subjects, when they know it, and do not endeavour to prevent it—Sovereigns bound not to protect offending subjects, but to deliver them up or punish them—The rights of suppliants belong to the unfortunate and not to the guilty—Suppliants may be protected while the inquiry into their case is still pending—How far states are amenable to punishment—All the different exceptions stated—Children not answerable for the offences of parents—The moral government of God in this respect considered—Individuals not answerable for offences, to which they have not given consent—Heirs, how far answerable for the acts of their ancestors.
I. The next topic of inquiry relates to the communication of punishment, as inflicted upon accomplices, who, in that capacity, cannot be said to be punished for the guilt of others, but for their own. And from what has been said above upon the loss sustained from injury, it may be understood who are the persons, that come under this description. For the partnership in loss, and the partnership in guilt are regulated by nearly the same principles. Yet the obligation to repair a loss does not always imply guilt, except where there has been any notorious malice, in which case every damage renders the party, who has occasioned it, liable to make reparation. So that persons ordering the commission of any wicked or hostile act, giving the requisite consent to it, supplying the aggressor with assistance, or protection, or, in any other shape, partaking of the crime, by giving counsel, commendation, or assent to his act, or when they have power to forbid the commission of such an act, by forbearing to exercise their authority, or by refusing to afford the succour, which they are bound by the law of nature, or by treaty to give to the injured party, by not using with the offender that power of dissuasion, which they have a right to do, or lastly by concealing what they ought to make known, in all these cases, such persons are punishable as accomplices, if they are convicted of that degree of malice, which constitutes a crime, and merits punishment: points which have before been discussed.
II. The case will be made clearer by examples. A civil community is no more bound than any other society by an act of individual members, except that act be done by its express consent and authority, or it has neglected to disavow such a proceeding. Hence it is formally stipulated in almost all treaties that no acts or aggressions are to be ascribed to a state, except those, which are done in the name of the sovereign, and by persons acting expressly under the authority of his commission. So a father is not answerable for the misconduct of his children, a master for that of his servants, nor a ruler for the acts of those under him, unless there appears in any of these some connivance, or encouragement in promoting that misconduct, or those acts.
In the case of a sovereign's responsibility for the acts of his subjects, there are two things to be considered, which require minute inquiry, and mature deliberation, and those are the forbearance, and the encouragement or protection, which he has shewn to their transgressions.
As to forbearance, it is an acknowledged point, that when he knows of a delinquency, which he neither forbids nor punishes, when he is both able and bound to do so, he becomes an accessory to the guilt thereof. Cicero, in his speech against Piso, says, "it makes no great difference especially in a consul, whether he harasses the government by moving ruinous laws, and making mischievous speeches, or suffers others to do the same. If a slave has committed a murder with the knowledge of his master, the master becomes answerable for the entire deed, as it was done with his concurrence."
But, as we have said before, besides the knowledge of a deed, to constitute a participation in the guilt, the person so knowing it, must possess the power to prevent it. And this is what is meant by the legal phrase, that the knowledge of a crime, when it is ordered to be punished, is taken in the sense of forbearance or connivance, and it is supposed that the person, who ought to have prevented it, did not do so. In this place knowledge implies a concurrence of will, and connivance a concurrence of design. A master therefore is not bound by the act of a slave, who has claimed his freedom, and done any thing in despite of his master, because the knowledge of a crime without ability to prevent it, by disclosure or some other means, cannot be construed into an act of guilt. So parents are bound by the acts of children; but only in cases where they have the children under their authority. On the other hand, altho' by having them in their power, they might have prevented their misconduct, they will not be answerable for it, unless they had a knowledge of it also. For there ought to be a concurrence of knowledge, and forbearance or encouragement to involve any one in the guilt of another's actions; circumstances all of which by a parity of reasoning may be applied to the connection between sovereigns and subjects: a connection founded on principles both of natural and civil law.
III. The matter that necessarily comes next under consideration is the case of those, who screen delinquents from punishment. It was before observed that, according to the law of nature, no one could inflict punishment, but a person entirely free from the guilt of the crime which he was going to punish. But since established governments were formed, it has been a settled rule, to leave the offences of individuals, which affect their own community, to those states themselves, or to their rulers, to punish or pardon them at their discretion. But they have not the same plenary authority, or discretion, respecting offences, which affect society at large, and which other independent states or their rulers have a right to punish, in the same manner, as in every country popular actions are allowed for certain misdemeanors. Much less is any state at liberty to pass over in any of its subjects crimes affecting other independent states or sovereigns. On which account any sovereign state or prince has a right to require another power to punish any of its subjects offending in the above named respect: a right essential to the dignity and security of all governments.
IV. But as it is not usual for one state to allow the armed force of another to enter her territories under the pretext of inflicting punishment upon an offender, it is necessary that the power, in whose kingdom an offender resides, should upon the complaint of the aggrieved party, either punish him itself, or deliver him up to the discretion of that party. Innumerable instances of such demands to deliver up offenders occur both in sacred and profane history. Thus the other Israelites required the Benjamites to deliver up offenders, Jud. xx.—And the Philistines demanded of the Hebrews the surrender of Samson, as a criminal, Jud. xv.—In the same manner the Gauls made a demand that the Fabii should be surrendered for having fought against them. Sylla too, as Sallust informs us, urged Bocchus to deliver up Jugurtha, and by so doing to relieve the Romans from the bitter necessity of implicating HIM for his erroneous conduct in the same guilt with that most desperate villain. Yet all these instances are to be understood not as strictly binding a people or Sovereign Prince to the actual surrender of offenders, but allowing them the alternative of either punishing or delivering them up. For it was upon this ground, as we are informed, that the Eleans made war upon the Lacedaemonians, because the latter neglected to punish their subjects, who had committed aggressions upon that people; that is, they had neither punished nor delivered them up: for the obligation may be taken either way, that being left to the choice of the aggrieved person, or nation, in order to make the satisfaction the more complete.
The surrender here meant is nothing more than delivering up a citizen or subject to the power of another state to decide upon his punishment. But this permission neither gives nor takes away any right, it only removes an impediment to the prosecution of a right. Wherefore if that other people make no use of the permitted right, the offender, who has been delivered up, is in such a situation, that he either MAY or may NOT be punished: either of which may happen in the case of many offences. But the right of a state, as to the enjoyment of its own laws, and many other advantages, is not lost by any particular act without a formal decree and judgment, unless in any way it has been previously enacted, that certain acts, or certain omissions, shall amount to a forfeiture of some particular rights and privileges. In the same manner, goods, if surrendered, but not accepted, will remain the property of the former owner. But if the surrender of a citizen has been accepted, and, by some accident, the person so surrendered shall afterwards return home, he will no longer be a citizen, except by some new act of grace. What has been said of punishing or giving up aggressors, applies not only to those, who always have been subjects of the sovereign, in whose dominions they are now found, but to those also, who, after the commission of a crime, have fled to some place for refuge.