The Law of War and Peace (1625)
by Hugo Grotius
I. Definition and origin of punishment.
1. Above, when we began to speak of the reasons for which wars are undertaken, we said that acts must be considered in two categories, according as they can be repaired or punished. The former class we have already discussed. There remains the latter, which concerns punishments. This we must consider all the more carefully because the lack of a clear understanding as to the origin and nature of punishment has given rise to many mistaken opinions.
Now punishment in general means an evil of suffering which, is inflicted because of an evil of action. For although it is customary to assign certain tasks to persons as a punishment, yet these tasks are regarded from the point of view of their burdensomeness, and so are, to be classed with sufferings. However, the inconveniences, such as exclusion from public meetings or offices, which are anywhere suffered on account of a contagious disease, or a bodily deformity, or other manifestations of uncleanness (many of these are mentioned in the Hebraic law), are not, strictly speaking, punishments, although they are called by this name on account of a certain resemblance and through a misuse of the term.
2. Moreover, among those things which nature itself declares are permissible and not sinful is this, that he who does evil shall suffer evil; this the philosophers call the most ancient law, and law of Rhadamanthus, as we have said elsewhere.
A sentence of Plutarch in his book On Exile contains the same idea: ‘Justice walks with God, as an avenger upon those who sin against divine law: to whom all men naturally have recourse against all men in so far as they are citizens.’ Plato’ said: ‘No god or man will dare to say this, that he who does wrong is not obliged to pay the penalty.’ Hierax, furthermore, from this most noble viewpoint defined justice as ‘the exacting of punishment from those who have first done wrong,’ and Hierocles as ‘a curative for wickedness.’ There is a saying of Lactantius: ‘Those are deceived by no small error who defame censure, either human or divine, by calling it bitterness and maliciousness, thinking that he must be called a worker of injury who afflicts with punishment them that do injury.’
3. What we have said of punishment properly so called is summed up in this, that it is a return for a crime. This was noted also by Augustine, who said: ‘Every punishment, if it is just, is a punishment for a sin.’ This applies even to punishments which are inflicted by God, although sometimes in these, owing to human ignorance, as the same writer says, ‘The fault is concealed, while the punishment is apparent.’
II. That punishment is related to expletive justice, and in what way.
1. But opinions differ as to whether punishment falls within the sphere of attributive or of expletive justice. For, on the ground that he who has committed the greater sin is punished more heavily, and he who has committed the lesser is punished more lightly, and that the penalty is given as it were by the whole to a part, punishments are assigned by some to the sphere of attributive justice.
However, this first principle which they lay down, that attributive justice comes into play whenever an equality is established between more than two terms, we have shown to be untrue at the beginning of this work; then, as regards the fact that those who have done greater injury are punished more severely, and those who have done less injury are punished more lightly, that happens only as a consequence, not because it is aimed at first and for its own sake. For first and for its own sake a balance is aimed at between the guilt and the penalty; on this point Horace says
- Why does not Reason her own weights and measures use,
And each crime check by fitting penalties?
- We need a rule to fit just punishment to sins,
Nor ply him with the scourge who but the whip has earned.
The tenor of a divine law in Deuteronomy 25, and of a novel of Leo, is the same.
2. Neither is the second principle which they lay down more true, that all punishments come from the whole to the part; this will appear from what we have to say. We have, in fact, shown above that the true nature of attributive justice properly consists neither in such a balance nor in the transference from the whole to a part, but in taking account of the aptitude, which does not contain in itself right strictly so called, but furnishes an opportunity for it. Although, to be sure, he who is punished ought to be fit or worthy to be punished, this does not mean that something should befall him which attributive justice demands.
Nor yet do those give a better explanation who claim that expletive justice, which they commonly call commutative, is exercised in punishments. For in so doing they consider this a business transaction, as if something were paid to the wrongdoer, in accordance with the usage of contracts. They are deceived by current speech, whereby we say that punishment is due to him who sins. This is plainly ‘misleading.’ For he to whom something is properly owed has a right against another. But when we say that punishment is due to some person we mean nothing more than that it is proper for him to be punished.
3. Nevertheless, it is true that expletive justice is exercised in penalties primarily and for its own sake, because he who punishes, that he may punish rightly, must have the right to punish; and this right arises from the crime of the guilty. In this matter, therefore, there is something that approaches the nature of contracts.’ For just as he who sells, even if he says nothing specifically, is considered to have obligated himself to all the things which are naturally involved in a sale, so he who does wrong seems by his own will to have obligated himself to a penalty, because a serious crime cannot be unipunishable; hence, whoever directly wills to sin, by consequence has willed also to deserve a penalty. In this sense the Emperors say to a person, ‘You yourself have subjected yourself to this punishment,” and those who take evil counsel are already punished at that time, that is they are said of their own will to have contracted for the recompense of punishment. In Tacitus a woman who had married a slave is said to have agreed to subject herself to slavery, because that penalty had been ordained for such persons.
4. Michael of Ephesus, On Aristotle’s Nicomachean Ethics, Book V, says: ‘There is here a kind of giving and receiving, which constitutes the essence of contracts; for whoever has taken property or stolen anything else pays the penalty for it.’ Later, again, ‘The ancients termed contracts not merely what men have willingly agreed to perform toward one another but also the things that are forbidden by the laws.’
III. That nature does not determine to whom punishment is due, but that according to the law of nature those free from like offences may exact punishment.
1. But the subject of this right, that is the agent to whom the tight is given, has not been definitely fixed by nature itself. For reason declares that the criminal may be punished. It does not, however, declare who ought to inflict the punishment, excepting So far as this, that nature makes it clear enough that it is most suitable that punishment be inflicted by one who is superior; yet not to the degree that this is shown to be altogether necessary, unless the word superior is understood to imply that he who has done wrong by that very act may be considered to have made himself inferior to some one else and as it were to have demoted himself from the class of men into the class of beasts which are subject to man.
This view has been advanced by certain theologians. Says Democritus: ‘It is in harmony with nature that the better should rule,’ Aristotle, too, says that baser things have been prepared for the use of the better, alike in the case of things that have their origin in nature and those that are of artificial origin.
2. Wherefore it follows that in any case a guilty person ought of to be punished by one equally guilty. This is the meaning of Christ’s saying (John 8:7): ‘Whoever of you is without sin ‘that is, clearly, sin of the same sort – let him cast the first stone.’ He said this for the reason that at that time the morals of the Jews: were most corrupt, so corrupt that those who wished to appear most holy were involved in adulteries and like wickednesses, as one may see from Romans 2:22.
In consequence the Apostle also said what Christ had said before ‘Wherefore thou art without excuse, 0 man, whosoever thou art. that judgest; for wherein thou judgest another, thou condemnest thyself; for thou that judgest dost practice the same things.’ Here a familiar saying of Seneca is in point: ‘A judgement can have nor authority where he who condemns is himself worthy of condemnation.’ Also his remark in another passage: ‘Consideration for ourselves will make us more moderate if we ask ourselves whether we ourselves have not committed any such crime.’ Ambrose in his Defense of David says: ‘Let each one who is to judge of another first judge of himself, and let him not condemn lesser shortcomings’ in another when he himself has committed more grievous sins.’
IV. That Punishment having in view some advantage must among men be inflicted differently than by God; and why.
1. Another question is concerned with the purpose aimed at it punishments. What we have said thus far does at least show this, that injustice is not done to the guilty if they are punished. Never theless, it does not follow that they are in every case to be punished This in fact is not true; for God and men pardon many things’ it many guilty persons, and for this cause they are wont to be praised.
The saying of Plato is famous: ‘For no punishment is designee for evil ‘; in another passage,’ It is not because a wrong has been done that punishment is exacted (for what has been can never be undone), but to prevent recurrence.’ This is translated by Seneca thus: ‘No wise man punishes because a sin has been committed, but that sin may not be committed. For what has passed, cannot be recalled, but what is to come may be prevented.’ In another passage he says: ‘We are not to do harm to a man because he has sinned, but that he may not sin. Punishment will never have reference to the past, but to the future; for it is not inflicted;in anger, but is a measure of precaution.’ In Thucydides, Diodotu in addressing the Athenians with regard to the Mitylenaeans said; ‘Even if I should show that they have acted with the greatest injustice I shall not vote that they are to be killed, unless that is expedient.’
2. Now these things are true in the case of men who inflict punishment, for one man is so bound to another by ties of common blood that he ought not to do harm to another save for the sake of attaining some good.’ With God the case is otherwise, although Plato wrongly extends to Him the principles that have been stated. For the actions of God can be based upon the right of the Supreme Power, particularly where a man’s special desert is concerned, even if they have in view no end outside themselves. In this sense, in fact, some of the Jews explain the saying of Solomon which has reference to this matter, so that it will mean’ God creates each thing singly, for its own sake, even the wicked man for the day of evil.’ That is, even then when He punishes a wicked man, He does so with no other purpose than of punishing him.
Nevertheless, even if we follow the more generally accepted interpretation it comes to the same thing, so that God is said to have made all things for His own sake, that is by right of the highest freedom, not seeking or regarding any perfection outside Himself; just as God is said to be ‘self-existent’ because He is not born of any one. Assuredly, Holy Writ bears witness that the punishments of those that are irretrievably lost are not exacted by God for any other purpose, when it says that He derives pleasure from their woe, and that the impious are derided and mocked by God. Then in truth both the Last judgement, after which no mending of ways is looked for, and indeed certain inconspicuous punishments in this life, such as hardening of ‘heart, demonstrate that what we maintain against Plato is true.
3. But when man punishes a man who is his equal by nature he ought to have a definite purpose in view. And this is what the schoolmen say, that the mind of the avenger ought not to rest content with the woe of a man. Even before their time, Plato in the Gorgias said that those who punish any one with death or exile or a fine ought not ‘to desire this simply,’ but to desire it ‘for some good.’ Seneca, too, said that we must come to vengeance ‘not as though it were sweet to take vengeance, but as though it were useful.’ Aristotle, also, in his Politics, VII. xiii, says that certain things are honorable per se, certain others by virtue of some necessity; and as an example of the latter he mentions the inflicting of punishment.
V. In what sense vengeance may be forbidden by nature.
1. As for the saying of comedy: ‘An enemy’s pain soothes the injured one’s woe ‘; and Cicero’s dictum that pain is assuaged by punishment, and Plutarch’s quotation from Simonides: ‘A sweet thing and far from grievous is it to apply as a remedy to a spirit distressed and enflamed the means of obtaining satisfaction ‘these befit that natural instinct which man has in common with animals.’ For anger in men as in animals is’ a warmth of the blood at the heart from the desire to avenge pain,’as Eustratius rightly defines it. But this mere desire is so lacking in reason that it often acts against things that have done no injury, as the young of a dangerous animal, or against inanimate objects, as the stone with which a dog is struck.
But a desire of this sort, taken by itself, is incompatible with the faculty of reason, whose function is to govern the desires .It is, furthermore, incompatible with the law of nature, because that is the dictate of nature in so far as it is governed by reason and takes account of society; and reason forbids a man to do anything whereby another may be harmed, unless this action has some good end in view. In the bare spectacle of the suffering even of an enemy, there is only a false and imaginary good, as in superfluous riches and many other things of the same sort.
2. Accordingly, in this sense, vengeance among men is censured not only by Christian men of learning, but also by philosophers,’ like Seneca, when he said: ‘Vengeance is an inhuman term, although accepted as just, and only differs from insult in degree. He who avenges his grief, sins, although with more excuse.’ In truth, if we are to believe Maximus of Tyre,’ He who takes vengeance is more wicked than he who did the wrong.’ Musonius says: ‘To meditate how one may bite the one who bit him and harm the one who has done harm is the mark of a beast and not of a man.’ In Plutarch Dion, who applied the Platonic philosophy to public acts, says: ‘In the judgement of law the revenge is considered more just than the wrong committed; but by nature it arises from the same spiritual defect.’
3. Therefore, it conflicts with nature for a man who acts against another to be sated with the other’s pain, merely as pain. And so the less each man employs his reason, the more apt he is to seek vengeance. Witness Juvenal:
- But vengeance is a good, sweeter than life itself.
So forsooth think unlearned men, whose passions you do see
Enflamed, for slight, or even for no cause;
However trivial the occasion is, enough to stir their wrath.
Not thus would speak Chrysippus, nor the gentle heart
Of Thales, nor the sage of sweet Hymettus,
Who, in bondage cruel, wished not to share with his accuser
The hemlock he must drink. The happy man
All faults and errors step by step puts off,
Him wisdom first the right way teaches. A mind
Small, weak and mean, will ever pleasure take
In vengeance. Mark this at once, that in revenge
A woman does rejoice above all others.
With this Lactantius agrees in saying: ‘Ignorant men and fools, whenever they receive an injury, are seized with blind and unreasoning madness, and attempt to pay back those who harm them.’
4. From this it is clear that man cannot rightly be punished by man merely for the sake of punishing. Let us, therefore, try to see what useful ends render punishment just.
VI. The threefold advantage of punishment.
1. Here, furthermore, applies the classification of punishments which is found in Plato’s Gorgias and in Taurus the philosopher, who is’ quoted by Gellius, V. xiv. For these classifications are made in accordance with the end in view. However, while Plato recognized two ends, namely correction and example, Taurus adds a third, ‘vengeance,’ which Clement of Alexandria defines as ‘a retribution for evil which contributes to the advantage of him who exacts it.’ Aristotle, who omits punishment for the sake of an example, accepts only this third form, and that applied for correction, and says that this is employed ‘for the satisfaction of him who exacts it.’
This was sanctioned also by Plutarch when he said: ‘The punishments which immediately follow the crime not only restrain boldness in sinning for the future but also give the greatest comfort to those affected by the wrong.’ This is properly the sort of punishment that Aristotle also attributes to the ‘justice’ which he himself calls’ commutative.’
2. We must, however, examine this question in greater detail. We shall say then that in the case of punishment we must consider the advantage either of the person who does wrong, or of the person against whose interest the wrong was committed, or of other persons in general.
To the first of these three ends belongs the punishment which by the philosophers is called now ‘admonition,’ now’ correction,’ and now ‘exhortation’; by Paul the jurist, punishment applied for correction; by Plato, ‘for wisdom ‘; and by Plutarch, ‘surgery of the soul,’ which has the object of making better the man who has sinned, like medical treatment which operates by remedies the opposite of the disease. Since every action, especially one that is deliberate and repeated, produces a certain inclination towards itself, which, when developed, is called habit, for this reason the enticement must be removed as soon as possible from vices. This cannot be accomplished more successfully than by causing them to lose the flavor of sweetness by some subsequent pain.’ The Platonic philosophers, quoted by Apuleius, teach that ‘It is a more serious and unpleasant matter! than any punishment if impunity is extended to the guilty and he is not in the meantime harassed by the censure of his fellow men.’ In Tacitus we find the saying: ‘A mind that is diseased and feverish, being at the same time corrupt and an agent of corruption, must be held in check by remedies as severe as the vices from which it suffers.’
VII. Proof that punishment for the good of the wrong-doer may be exacted by any one at all according to the law of nature.
1. The punishment which serves this end is by nature permitted to any one of sound judgement who is not subject to vices of the same kind or of equal seriousness, as is apparent from reproof that is administered verbally.
- To chide a friend for guilt deserving blame
Is a thankless task, but at times useful.
However, in the case of corporal chastisement and other punishments that contain an element of compulsion, the distinction between those who may or who may not apply them is not made by nature (for this could not be the case, except in so far as reason entrusts to parents in a special sense the exercise of this right over their children on account of the tie of relationship) but by the laws which have limited that common connection of the human race to the nearest relationships for the sake of obviating quarrels. This one may see from the section of Justinian’s Code on the right of correction of relatives, and elsewhere.
Here also applies the saying of Xenophon to his soldiers: ‘If I have beaten any one for his own good, I admit that I owe him a penalty such as parents owe to their children and teachers to their pupils. Physicians in fact even burn and cut a sick man for his own good.’ Lactantius, in Book VI, says: ‘God commands us to hold our hands continually over minors, that is, in order that we may correct them when they err by diligent chastisements and not train them for evil and rear them for vices through useless love and excessive indulgence.’
2. This form of punishment, nevertheless, cannot be made to include the death penalty, unless by the process of reduction whereby negatives are reduced to their opposing positives. For, as Christ said that it would have been better, that is not so bad, for certain ones, if they had never been born, so it is better, that is it is a lesser evil, for men of incurable natures to die than to live, when it is certain that by living they will grow worse. It is about such persons that Seneca speaks when he says that sometimes it is to their own advantage that men should die. Further, Iamblichus declares: ‘Just as in the case of gangrene it is better for a man to be cauterized than to have no treatment, so it is better for a wicked man to die than to live.’
Such a person Plutarch calls: ‘of a truth harmful to others, but most of all to himself.’ And when Galen said that men are punished with death, first that they may not live to do harm, and secondly that others may be deterred by fear of the punishment, he adds: ‘And thirdly it is to their own advantage to die, since they are so diseased in mind that they cannot be brought back to health.’
3. There are some who think that these are the very ones of whom the Apostle John says that they sin unto death. But because the proofs of this are deceptive, charity bids us hold no man for lost without clear proof. Punishment for this purpose may in consequence only be applied upon rare occasions.
VIII. Likewise for the good of him who has been wronged, where it concerns vengeance permitted by universal common law.
1. The advantage of him to whose disadvantage the wrong was committed’ consists in this, that subsequently he may not suffer any such thing from the same man or from others. Gellius quotes from Taurus the following description of this type of good ‘When the dignity or authority of him who has been wronged must be protected so that the neglect to inflict punishment may not make him despised and disgraced.’ What is said there with regard to injured authority must be understood to apply to the liberty of a person, or any other of his rights that has been transgressed. In Tacitus we read: ‘Let him take counsel for his safety by a just revenge.’
To secure a man who has been wronged from suffering harm at the hands of the same person is possible in three ways: first, by the removal of the wrong-doer; second, by depriving him of the power to do harm; finally, by teaching him to cease from his evil ways, which is closely allied with the reformation that we have already discussed. He who has been wronged may be secured from harm by others, not by an ordinary punishment, but by one that is public and conspicuous in the nature of an example.
2. Accordingly, vengeance, even if it is exacted by private individuals, is not unlawful according to the bare law of nature, that is apart from divine and human laws and from chance circumstances, provided that it is employed for these objects and within the bounds of right. It is all the same whether vengeance is exacted by one who was injured himself or by another, since it is in harmony with nature that man should be helped by man.
In this sense we may agree with Cicero, who, while saying that the law of nature is not what opinion but what innate force supplies to us, among his examples thereof places vengeance, which he contrasts with pardon. And that no one might be in doubt as to how much he wished to include under this term he defines vengeance as ‘that through which by defending ourselves and taking vengeance we deliver ourselves and those who should be dear to us from violence’ and insult, and through which we punish crimes.’ Mithradates, in a speech which Justin has excerpted from Trogus, says: ‘Even if men are unwilling to take the sword against a robber to save themselves, yet for vengeance sake they all wish to gird it on.’ This very thing Plutarch, in his life of Aratus, calls the ‘law of self-defense.’
3. Samson, defending himself by this law of nature’ against the Philistines, claims that he will be guiltless if he in turn brings harm to the Philistines who had first wronged him; and after having taken his revenge he justifies himself by the same argument, saying that he had done to them what they had first done to him. The Plataeans, in Thucydides, say: ‘We have justly taken vengeance on them according to the law recognized by all, that it is permissible to ward off him who comes as a foe.’ Demosthenes, in his speech Against Aristocrates, says that it is a law common among men that we have the right to take vengeance on him who violently despoils us. And Jugurtha, according to Sallust, when he said that Adherbal had plotted against his life, added that the Roman people’ would act neither well nor justifiably if they should exclude him from this right allowed by universal common law,’ that is, from taking vengeance.
Aristides, the orator, declares that poets, legislators, proverbs, and orators, in short all approve this,’ that vengeance should be taken upon those who have first assailed us.’ Ambrose praises the Maccabees because even on the Sabbath they avenged the death of their innocent brethren.’ Also, arguing against the Jews who complained bitterly that a synagogue had been burned by the Christians, he speaks thus: ‘And assuredly, if I should act according to the universal common law, I should state how many churches the Jews burned in the time of the reign of Julian.’ Here he calls it the universal common law to repay like with like. And from the same point of view Civilis, in Tacitus, says: ‘As a noble reward for my labor I received the death of my brother, my own bonds, and the most cruel demands of this army, calling for my execution; from whom I demand punishment by the universal common law.’
4. But since in our private affairs and those of our kinsmen we are liable to partiality, as soon as numerous families were united at a common point judges were appointed, and to them alone was given the power to avenge the injured, while others are deprived of the freedom of action wherewith nature endowed them. Says Lucretius:
- For that each one in wrath prepared his own revenge,
More bitter than our equal laws allow,
The present age of men full weary is of force.
Likewise Demosthenes, in his oration Against Conon, declares: ‘It has been agreed that justice for each of these wrongs should be found in the law, but not that they should be judged in accordance with individual anger and caprice.” And Quintilian says: ‘Personal requital of a wrong is not only hostile to law but also to peace; for there are laws, courts, judges, unless any one is ashamed to vindicate himself by legal means.’ The Emperors Honorius and Theodosius decided that ‘the power of the courts and the guardianship of the public law is established for this purpose, that no one may be able to grant himself the right of vengeance.’ And King Theodoric wrote: ‘To this end the sacred respect for the laws arose, that nothing might be done by violence, nothing by private passion.’
5. Nevertheless, the old natural liberty remains, especially in places where there are no courts, as, for example, on the sea. An example of this is perhaps the conduct of Julius Caesar. He, while’ yet a private citizen, with a hastily levied fleet pursued the pirates by whom he had been captured, sank some of their ships, and put the rest to flight. When the proconsul failed to punish the pirate, who had been taken, he himself set out to sea and crucified them. The same right will exist in desert places, or where men lead a nomadic life. Thus Nicholas of Damascus narrates that among the Umbrici each man was his own avenger. This is true today among the Moschians, when a certain time has elapsed after the appeal to a judge.
Herein is the origin of the duels which the Germanic tribes employed before the Christian era and which they have not yet entirely given up. And so, according to Velleius Paterculus, the Germans marveled when they saw the Roman form of administration )f justice, because justice put an end to injuries, and what they were accustomed to decide by force was terminated by legal procedure.
6. The Hebrew law permits a relative of a slain man to kill the slayer outside of places of asylum. And Hebrew interpreters rightly note that retaliation may be made for a dead man by force; that, however, a man can only avenge himself, for a wound for example, through a judge, clearly because moderation is more difficult to observe where one’s own suffering is concerned.
From the words of Theoclymenus in Homer, Odyssey, XV, it is clear that a similar custom of avenging death through private persons existed among the Greeks of very early times. But examples of this custom occur with especial frequency among those who have no common judicial authority. Hence, on the testimony of Augustine, ‘just wars are customarily defined as those which avenge injuries.’ ‘Plato sanctions warlike measures ‘until the guilty shall have been compelled to pay the penalty by those who have suffered innocently.’
IX. Likewise for the good of the whole.
1. The good of mankind in general, which was the third object of punishment, involves the same problems as those presented by the good of one who has been wronged. For in this case the punishment may be inflicted to prevent the man who has injured one person from injuring others, which is accomplished by removing him or weakening him or restraining him so that he cannot do harm, or by reforming him. Or the punishment may be inflicted to prevent others from being induced by a feeling of security to annoy any persons whatsoever. This is attained by the infliction of outstanding penalties, which the Greeks call paradeigmata, the Romans exempla, ‘examples.’ These exemplary punishments are employed so that the punishment of one may cause many to fear, and that others may be frightened by the nature of the punishment, as the laws say, or, according to Demosthenes, ‘that others may learn wisdom and be afraid.’
2. And the possession of the right to punish for this purpose also, according to nature, may rest with any person whatever. Thus Plutarch’ says that a good man is appointed by nature to be a magistrate and indeed a perpetual one; for by the very law of nature leadership is conferred on him who acts justly. Thus Cicero proves by the example of Nasica that no wise man can ever be a mere private citizen, and Horace calls Lollius ‘a consul not limited to a single year.’ Euripides in his Iphigenia in Aulis says:
- He whose mind is strong in wisdom holds a magistracy.
Nevertheless, within the state these things must be interpreted with reference to its laws.
3. Concerning this law of nature Democritus, whose words I shall quote because they are important, speaks as follows: First, the question of the right to kill wild beasts presents itself to him in this way: ‘In the matter of killing or not killing animals the situation is this: whoever has killed animals which actually do or desire to do harm is innocent, so much so indeed that to have done this is more justifiable than to have failed to do it.’ And shortly after ‘It is absolutely necessary to kill all those things which unjustly do us harm.’ And surely it is not improbable that good men lived in this fashion prior to the flood, before God revealed His will to adapt to human nourishment other sorts of animals. Again he says: ‘What we have written concerning foxes and poisonous reptiles, the same it seems should be done in the case of men also.’ Then he continues ‘One is innocent who kills a robber or a thief in any way at all, either by his hand, or by his order, or by his vote.’
It seems to me that Seneca had these sayings in mind when he said: ‘When I order the neck of a guilty man to, be severed, I am of the same countenance and mind as when I transfix reptiles and poisonous animals.’ And elsewhere: ‘We would not slay even vipers and adders and other creatures which harm by bite or sting, if only we could tame diem for the future, or render them innocuous to ourselves and others. Therefore, we will not harm a man because he has sinned, but to prevent him from sinning.’
4. But since both the inquiry into the fact often demands great care and the evaluation of the punishment requires much prudence and fairness, to prevent strife arising from each man claiming too much for himself, while others refuse to yield, in communities animated by a sense of right men have agreed to select as arbiters those who they think are the best and wisest, or hope will prove to be such. So Democritus: ‘The laws would not have prevented each man from living according to his own judgement, had not one been wont to abuse another. For envy marks the beginning of civil strife.’
5. But as we just now remarked in the case of vengeance, so too in the matter of this punishment, as an example, traces and survivals of primitive right persist in those places and among those persons who are subject to no fixed tribunals, and in some other exceptional cases. For instance, according to Jewish customs the Jew who fell away from God and the law of God, and made himself a leader in false worships, could be killed at once by any person whatsoever.
The Jews call this the judgement of zeal, which they say was first exercised by Phineas and thence became a custom. Likewise Mathatias slew a certain Jew for defiling himself with Greek rites. Similarly, three hundred other Jews are said to have been killed by their fellow countrymen, in the book which is commonly called Third Maccabees. Upon the same ground occurred the stoning o’ Stephen and the conspiracy against Paul; and numerous example of this custom are to be found in Philo and in Josephus.
6. Furthermore, among many peoples the full right of punishment, even unto death, continued to be exercised by masters over; their slaves and parents over their children. Thus at Sparta thy Ephors could kill a man without trial.
From this discussion one may understand the character of the law of nature in regard to punishments and the extent to which it, still persists.
X. What the law of the Gospel has established in this matter.
1. Now we must see whether the law of the Gospel has more narrowly restricted freedom of action in this regard. Surely, as we have said elsewhere, it is not strange that some things which are permissible according to nature and by municipal law are forbidden by divine law, since this is most perfect and sets forth a reward greater than human nature; to obtain this reward there are justly demanded virtues which surpass the bare precepts of nature.
From the very nature of the case it is sufficiently clear that punishments which leave neither loss of reputation nor permanent injury, and which are necessary by reason of the age or another characteristic of the person punished, provided that they are inflicted by those who have the right to inflict them according to the laws of men, as by parents, guardians, masters or teachers, are in no way contrary to the teachings of the Gospel. For these are remedies of the mind which are as harmless as unpalatable drugs.
2. With vengeance the situation is far different. For we have shown above that in so far as it merely gratifies the spirit of the sufferer it is unlawful even according to nature, and in so far does it fail to harmonize with the Gospel. Moreover, the Hebraic law not only forbids hatred to be cherished against a neighbor, that is a fellow countryman (Leviticus 19:17), but also provides that certain common kindnesses be shown to enemies of this sort (Exodus 23:4, 5). Therefore, since the Gospel has extended the conception of neighbor to include all men, it is obviously required of us not only not to injure our enemies but even to do them good, as is plainly enjoined in the Gospel of Matthew (v. 44).
Nevertheless, the law allowed the Jews to avenge the more serious injuries, although not by force but by recourse to a judge. However, Christ does not allow us this privilege, as is clear from the contrast presented in the passage commencing ‘You have heard that it has been said an eye for an eye,’ and what follows, ‘But I say unto you.’ For although His words that follow properly deal with the prevention of injury and somewhat restrict freedom in this respect also, yet they are still more to be taken as censuring revenge, because they reject the old permission as befitting a less perfect age;’ ‘not because vengeance that is justly taken is unjust but because patience is preferable to it,’ as the reason is stated in the Constitutions of Clement, Book VII, chap. xxiii [VI. xxiii].
3. On this point Tertullian expresses himself thus:
Christ clearly teaches a new kind of patience, since He even prohibits the return for injury that was permitted by the Creator in requiring an eye for an eye and a tooth for a tooth, while He himself on the contrary commands rather to offer the other cheek and to give the coat in addition to the cloak. Clearly Christ has added these injunctions as supplementary, in harmony with the teaching of the Creator. Therefore we must immediately determine whether the discipline of patience is enjoined by the Creator. Verily through Zacharias He taught that no one should remember his brother’s wrong or that of his neighbor. And further: ‘Let no one,’ He says, ‘brood over his neighbor’s malice.’ Much more then has He ordained us to be patient under wrong, who ordained us to forgetfulness of it. And when He said,’ Vengeance is mine and I will repay,’ He thereby teaches the patience that waits for the infliction of vengeance.
Therefore, inasmuch as it is impossible that the same one should seem to exact a tooth for a tooth, an eye for an eye in return for injury, and at the same time forbid not only vengeance but even the remembrance and recollection of injury, it is made plain to us in what sense He required an eye for an eye, and a tooth for a tooth; that is, in order not to allow a second injury as retaliation, which He had prohibited by forbidding vengeance, but to check the first wrong which He had prohibited by the appointment of a penalty, so that each one out of regard to the freedom of the second injury would restrain himself from committing the first. For He knows that violence is more easily restrained by making clear the immediate prospect of retaliation than by a general promise of vengeance. Now, in consideration of the nature and faith of men, each provision had to be established, so that he who believed in God would await vengeance from God, while he who had less faith would fear the laws prescribing retaliation.
4. This purpose of the law, which was hard to understand, was revealed and made intelligible by Christ as the Lord of the Sabbath and of the law and of all His Father’s dispensations, when He bade us to offer the other cheek also, to the end that the more effectually He might extinguish the return for an injury, which the law had wished to check by retaliation and which prophecy had openly restrained both by prohibiting us to remember wrong and by reclaiming vengeance for God. And so whatever teaching Christ introduced, not in opposition to the law but supplementary to it, did not destroy the rules of conduct laid down by the Creator, Finally, if we look to the very reason for ordaining patience, and especially such full and perfect patience, it will not hold good if it does not come from the Creator, who promises vengeance, who holds the position of judge.
Otherwise, if He is not going to defend me, who has placed upon me so great a burden of patience not only in not returning blow for blow but also in offering the other cheek, and not only in not answering abuse with abuse but even with blessing, and not only in not retaining my coat but further of yielding my cloak also, He has ordained patience in vain; for He has not revealed to me the reward of obedience to His command, I mean the fruit of such patience; for there is vengeance, which He ought to have permitted to me if He himself did not guarantee it, or He himself should guarantee it if He did not entrust it to me, since it is to the interest of discipline also that injury should be avenged. By fear of vengeance, in fact, every iniquity is held in check. But vengeance will gain complete control if licence is accorded to it – it will pluck out both eyes and knock out every tooth as a result of immunity from punishment.
5. As we see, Tertullian thinks not only that Christians are forbidden to demand retaliation but that not even the Jews are allowed it, even although it contains nothing vicious, that a greater evil may be avoided. That this view is right in the case of such a demand arising from hatred is not to be doubted, as the foregoing proves. For that was disapproved of even by those of outstanding wisdom among the Jews, who regarded not merely the letter of the law but its spirit also. This appears in Philo, who makes the Jews of Alexandria on the occasion of the fall of Flaccus, the persecutor of the Jews, speak thus: ‘We do not rejoice, Sir, in taking revenge upon an enemy, for we have been taught by our holy laws to have compassion upon men.’
This is the force of what Christ demands from us all without exception, that we forgive all who have sinned against us (Matthew 6:14, 15). That is, we ought not to procure or wish for evil to others because we feel that we have suffered evil. For he who does this, to speak with Claudian, ‘is a cruel man and seems to claim for himself the vengeance of the laws.’ Therefore, Lactantius, recalling the statement of Cicero: ‘It is the first task of justice to see that no one injures another unless he has been provoked by a wrong,’ says that this simple and true statement is spoiled by the addition of two words. Ambrose declares that this sentence of Cicero’s lacks the sanction of the Gospel.
6. What then shall we say of revenge, not as a retaliation for the past, but as a preventive for the future? Clearly Christ wishes us to forgo this also; first, if he who has wronged us shows acceptable proofs of repentance, as in Luke 27:3, where there is question of an even fuller pardon, that is, one which would restore the sinner to the right of his former friendship, whence it follows that nothing is to be demanded of him by way of punishment; and second, even if signs of such repentance are lacking, by His doctrine of the surrender of the coat Christ teaches that we must not consider the wrong to be excessively serious.
Plato too said that wrong must not be repaid ‘even if we have to suffer worse things than before.’ The same is the opinion of Maximus of Tyre. Musonius declared that he would not institute, or, advise any one to institute, an ‘action for insult,’ that is an action for the sake of some insult that had been received, such as Christ refers to in mentioning a blow on the cheek; for such things are more; rightly pardoned.
7. But if self-restraint involves great danger we ought to be satisfied with the precaution that does the least possible harm. For not even among the Jews was revenge customary, according to Josephus and other learned Jews, but the man who had been wronged was accustomed to accept monetary payment in the place of retaliation, in addition to such expenses as he had been forced to incur, with regard to which there is a law in Exodus 21:19. The payment is a simple restitution without penalty; there was also a Roman custom, as Favorinus says in Gellius.
Accordingly, Joseph, guardian of our Lord Jesus, when he believed that his wife was guilty of adultery, preferred to divorce her rather than to prosecute her. And he is said to have done this because he was a just man, that is, upright and merciful. On this point Ambrose says that ‘the nature of a just man is foreign not only to the cruelty of vengeance but also to the harshness of accusation.’ Before him, again, Lactantius had said: ‘Neither will a just man be allowed to accuse anyone for a capital crime.’ Justin, dealing with the accusers of the Christians, says: ‘We do not wish to punish those who speak evil of us. Their own baseness and ignorance of what is good is punishment enough.’
8. Finally, we have to consider punishments inflicted, not for the good of an individual, but for the public good; partly by removing the wrong-doer or by restraining him from doing harm, partly by deterring others through the severity of punishment as an example.
Elsewhere we have proved beyond question that Christ did not abolish these punishments, because while laying down His own instructions He testified that He did not cancel anything in the law. Moreover, the law of Moses, which in these matters was to last as long as the state itself, strictly ordered the magistrates to punish homicide and certain other crimes (Exodus 21:14; Numbers 33:14, 37 [35:16-34]; Deuteronomy 24:13 [14:13]). But if the teachings of Christ could accord with the law of Moses in so far as the latter demanded even capital punishment’ they can also be in accord with human laws which imitate the divine law in this respect.’
XI. The answer to the argument drawn from the mercy of God revealed in the Gospel.
1. In order to defend the opposite point of view some cite the exceeding great mildness of God in the New Covenant, which men are thereby obliged to imitate, even when magistrates, as being vicars of God.
Although we do not deny that there is truth in this to a certain extent, it does not apply so widely as they claim. For the great mercy of God revealed the New Covenant concerns especially sins against the primeval law, or even against the law of Moses committed before men had knowledge of the Gospel (Acts 17:6 [17:301 Romans 2:5; Acts 13:38; Hebrews 9:15). For the sins committed subsequently, especially if in a spirit of contempt, are threatened with a judgement much more severe than that which was prescribed by Moses (Hebrews 2:23; 6:29 [2: 2, 3; 10:29]; Matthew 5: 21, 22, 28). Nor is it only in the other life, but in this life also that God often punishes such offences (2 Corinthians 11:30). And pardon for such sins is not usually obtained, unless a man should in a sense exact punishment from himself (2 Corinthians 11:3) through deep sorrow of heart (2 Corinthians 2:27 [2:7]).
2. The same persons urge that freedom from punishment must be accorded at least to those who have been induced to repent. But passing over the fact that it is scarcely possible for men to agree on the matter of true repentance, and that there is no one who would not obtain immunity for his crimes if it were enough for him merely to profess repentance in any chance fashion, God Himself does not always remit the full punishment to those who have been brought to penitence. This is clear from the example of David. Therefore, just as God was able to remit the punishment of the law, that is a violent or otherwise untimely death, so that He might afflict him who had sinned with evils by no means easy to bear, in like manner now He is able to remit the penalty of eternal death and at the same time Himself to punish the sinner by an untimely death,’ or even to permit him to be punished in this way by a magistrate.
XII. Answer to the argument drawn from the exclusion of repentance.
1. Again, others attack punishment on this ground, that with the taking away of life the opportunity for repentance is likewise removed. But they know that upright magistrates take serious ‘account of this matter, and that no one is hurried to execution without having time to acknowledge his sins and seriously abhor them. The example of the thief crucified with Christ proves that repentance of this kind, even if it cannot be followed by good works which are precluded by death, may be accepted by God.
But if it should be said that a longer life would have been advantageous to a more serious reformation one may reply that sometimes there are found those to whom may be applied fittingly the saying of Seneca: ‘We shall bestow on you death, the only good thing that still awaits you,’ as also this other remark of his, ‘that they may cease to be bad men, in the only way in which this is possible for them.’ This Eusebius the philosopher had expressed thus: ‘Since they can do so in no other way, let them then set themselves free in this manner from the present bondage of evil and procure for themselves a means of escape.’
2. Therefore let these things, in addition to what we have said at the opening of our work, be an answer to those who claim that punishments, whether of all kinds, or merely capital punishments, are without exception prohibited for Christians. The Apostle teaches us the contrary, by including the use of the sword in the royal office as a symbol of divine vengeance, and elsewhere saying that we are to pray that kings may become Christians and by virtue of their office be a protection to the innocent. Owing to the wickedness of a great part of mankind even after the Gospel has been spread abroad, this result can only be obtained if the boldness of the rest is checked by the death of some offenders, especially since the innocent are scarcely safe even when there are so many capital punishments inflicted.
3. Nevertheless, it will be profitable for Christian rulers, at, least in some measure, to set before themselves for imitation the example of Sabaco, king of Egypt, most famous for his uprightness,’ who, according to Diodorus, changed capital punishments into condemnations to hard labor, with most fortunate results. Strabo says that even among some of the peoples of the Caucasus ‘they put no one to death even for the most severe crimes.’ Nor should we scorn the saying of Quintilian: ‘No one will doubt that,, if guilty men can be reformed in any way, as is agreed may sometimes occur, it is of more advantage to the state to save them than to punish them.’ Balsamon notes that the Roman laws which formerly proclaimed the punishment of death were in many cases altered by later Christian Emperors so as to prescribe other penalties, so that in this way repentance might be forced upon the condemned more sharply and, the longer punishment might better serve as an example.
XIII. Rejection of incomplete classifications of punishments.
1. In the enumeration which we have made of the purposes of punishment something seems to have been overlooked by Taurus the philosopher, whom Gellius quotes as follows:
And so whenever there is either great hope that he who has sinned will voluntarily correct himself without punishment; or whenever, on the contrary, there is no hope of his being better and corrected; or whenever there is no need to fear a diminution of the dignity which has been sinned against; or whenever no sin has been committed which must be remedied by fear as a necessary example, then whatever sin has been committed does not seem worthy of the effort to impose a penalty upon it.
Here he speaks as if punishment is done away with when one purpose of punishment is removed, although on the contrary all the purposes should be removed, so that there be no occasion for punishment. Then he omits the purpose effected by the removal of a man whose manner of life is incurable, to prevent his committing other or more serious crimes. What he says with regard to loss of dignity, moreover, must be extended to other losses which are to be feared.
2. With more justice Seneca said: ‘In punishing injuries the law has aimed at these three things, which the Prince ought also to aim at; they are either to reform him whom it punishes, or to make others better by his punishment,’ or by removing evil men to permit the rest to live in greater safety.’ For here, if you understand by ‘the rest’ both those who have already been wronged and those who may be wronged hereafter, you have a complete division of the matter, except that to ‘remove’ you must add ‘or restrain.’ For either imprisonment or any other means of limiting their power has the same result.
The following division which Seneca himself makes in another place is less complete: ‘This he will keep in view always in inflicting punishments of every sort, that one kind of punishment is applied to reform the bad, another kind to remove them.’ Somewhat more incomplete still is the saying of Quintilian: ‘Every punishment has,.reference not so much to the crime as to the example.’
XIV. It is not safe for Christians, as private citizens, to exact punishment, even when universal common law allows it.
From what we have said up to this point one may gather how unsafe it is for a Christian in a private capacity to exact punishment, especially capital punishment, from any wicked person whatsoever, either for his own or for the public good, although we have said that this is sometimes allowed by universal common law. It is, therefore, a praiseworthy custom on the part of those peoples among whom those who are about to set sail receive warrants, by the public authority, to destroy whatever pirates they discover on the sea; so that if the occasion offers they may be able to act as public servants and not upon their own initiative.
XV. Neither should Christians of their own accord be too zealous in making accusations.
In harmony with the foregoing is the widely current opinion, that not any and every person should be allowed to bring accusations for crimes,’ but that there should be certain persons upon whom this task is laid by the public authorities. The purpose is that no one may do anything toward shedding another’s blood except by the necessity of his office.
This is the object of the canon of the Synod of Seville, which ordains: ‘If any of the faithful appears as an informer, and through his deposition any one is proscribed or put to death, he is forbidden to receive the communion even when dying.’
XVI. Nor should Christians seek the office of criminal judge.
Likewise, it may be perceived from the preceding that it is by no means advisable, and not even becoming, for a man who is truly a Christian to enter of his own accord upon a public office which may have to decide upon the shedding of blood, and to think and profess that it is right that the power of life and death over his fellow citizens be conferred upon himself, as if he were the most exalted of them all and a sort of god among men. For surely here applies absolutely the warning of Christ that it is a dangerous thing to pass judgement upon others, because in like cases we must ourselves expect from God the judgement we have meted out to others.
XVII. The distinction between human laws which confer the right to kill as a punishment and those which merely give impunity for such action.
1. It is no unimportant question whether the laws of men which permit the execution of certain persons confer upon the executioners a true right even in the eyes of God, or merely freedom from retribution among men. The latter point of view is supported’ by Covarruvias and Fortunius, whose opinion, however, is so displeasing to Fernando Vazquez that he calls it accursed. There is no doubt, as we have said also elsewhere, that in certain cases the law can confer either power. And which one it does confer must be gathered partly from the substance. For if the law gives play to resentment it gives immunity from human punishment, but not from sin, as in the case of a husband who kills an adulterous wife or an adulterer.
2. But if the law regards the danger of subsequent harm arising from deferring the punishment, it must be considered as conferring upon a private individual both right and public authority, so that he is no longer in a mere private capacity.
Such a law is the one in Justinian’s Code, under the rubric ‘When it is lawful for any one without recourse to a judge to execute judgement for himself or for the public service,’ where permission is given to any one at all to repress by punishment soldiers engaged in plundering. The following reason is given: ‘For it is better to intervene in time than to seek justice after the damage has been inflicted. Therefore we allow you to take vengeance for yourselves, and because it is a serious thing to punish even by virtue of a judicial decision we have subjoined in the edict, that no one shall spare a soldier whom he ought to oppose with arms as a robber.’
A similar law, again, is the one which follows, dealing with the suppression of deserters, which says: ‘Let all men know that against public robbers and deserters from military service they have been granted the right to exercise public vengeance for the common peace.’ The remark of Tertullian is here in point: ‘Against traitors and public enemies every man is a soldier.’ I
3. But the right of killing exiles, whom we call outlaws, differs from laws of this type, because in that case we have to do with a particular sentence, but here with a general edict which, when evidence of the fact appears,’ gains the force of a judicial sentence.
XVIII. Internal acts are not punishable by men.
Now let us consider this, whether all vicious actions are such as to be punishable by men.
We must consider it as definitely established that they are not all of such a kind. For, in the first place, purely internal acts, even if they should come to the attention of others by some chance, as by subsequent confession, cannot be punished by men, because, as we have said before, it is not in accord with human nature that a right or an obligation should arise among men from purely internal, acts. And in this sense we must take the teaching of the Roman laws, that ‘No one deserves to be punished for his thoughts.’ However, this does not prevent internal acts, in so far as they influence external ones,’ from being taken into consideration, not on their own account, but in the light of the external actions which receive from them the quality of their desert.
XIX. Extrinsic acts which human frailty cannot avoid are not punish able by men.
1. In the second place, actions inevitable to human nature cannot be punished by men. For although one cannot sin except one does so of one’s own will, nevertheless the total and perpetual abstinence from all sin is a condition that is more than human. Therefore, the belief that it is natural f or man to sin has been expressed by the philosophers Sopater, Hierocles, Seneca, and Philo among Jewish writers,’ the historian Thucydides, and very many Christian writers.
‘If,’ said Seneca, ‘every one must be punished who has a base and malicious nature, no one will avoid punishment.’ Moreover, Sopater said: ‘If any one should punish men on the basis of complete freedom from sin, he oversteps the natural limits of correction.’ This Diodorus the Sicilian’ calls ‘to sin against the common weakness of mankind,’ and, in another place,’ to forget the infirmity that is human and common to all.’ Sopater, whom I have mentioned above, says that we must overlook ‘the small and habitual sins.’
2. Indeed, one may doubt whether such things are rightly and properly called sins, since they lack, when considered in general, the freedom of action which they seem to have in particular instances, Plutarch in his Solon says: ‘The law should be drawn up with a view to what is possible, if it aims to punish a few advantageously, and not punish many without advantage.’
There are also certain actions which are not inevitable to human nature itself, but to a particular person at a particular time, because of a bodily condition which influences his mind,’ or because of a mature habit. Such actions are wont to be punished not so much for their own sake as on account of the guilt that precedes them,’ because either the remedies therefor have been neglected, or corrupt thoughts have willingly been received into the mind.
XX. Acts by which human society is not injured, directly or indirectly, are not punishable by men. The explanation thereof.
1. In the third place we are not to punish sins which neither directly nor indirectly affect human society or a fellow man. The reason is that there is no cause for not leaving such sins to be punished by God, who is most wise in perceiving them, most just in judging hem, and most able to requite them. For men, therefore, to institute punishment for such acts would be clearly futile, and consequently inadequate.
From this broad statement we must except corrective punishments, the purpose of which is to improve the sinner, even although perhaps this does not concern others. And further, we are not to punish actions which are contrary to the virtues in regard to which nature rejects all compulsion, such as mercy, liberality, and gratitude.
2. Seneca discusses this problem, whether the fault of an ungrateful man ought to go unpunished; and he advances many arguments why it ought not to be punished. His chief argument, which may be extended to other similar problems, is this: ‘Since it is a most honorable thing to show gratitude, it ceases to be honorable if it is compulsory,’ that is, it loses its high degree of honor, as is shown by the following words: ‘For no one will praise the grateful man anymore than him who has restored a deposit, or one who has paid what he owed without being sued.’ Further: ‘To show gratitude is not a glorious thing, unless it is safe to remain ungrateful.’
To faults of this sort we may apply the saying of Seneca the Father, in his Controversies: ‘I do not desire the accused to be praised, but to be acquitted.’
XXI. A refutation of the view that pardon is never permissible.
We must next consider whether it is permissible at times to forgive or to excuse.
The Stoics deny that it is,’ as one may see in a fragment of Stobaeus under the title On Magistracy, in Cicero’s speech For Murena, and at the conclusion of Seneca’s work On Clemency; but their argument is a trivial one.’ Pardon,’ they say,’ is the remission of a punishment that is deserved’; ‘the wise man, moreover, does what he ought to do.’ Here the fallacy lies in the word’ deserved.’ For if you understand that he who has sinned deserves punishment, that is, can be punished without injustice, it will not thereby follow that one’ who fails to punish him does what he ought not to do. However, if you take the view that the punishment is deserved at the hands of the wise man, that is, ought by all means to be exacted, we shall say that this does not always happen, and therefore from this point of view punishment cannot be deserved but merely permitted. This, furthermore, may be true both prior to the laying down of penal law and subsequent to it.
XXII. Proof that pardon is permissible prior to the penal law.
1. Even before the establishment of the penal law beyond doubt there may be room for punishment, because the wrong-doer is naturally in the state where punishment may be permitted. But’ it does not follow from this that the punishment ought to be exacted,, for this depends upon the connection between the purposes for which the punishment is instituted and the punishment itself. Consequently if these purposes of themselves are not necessary on moral. grounds, or if they are opposed by other purposes not less useful or necessary, or if the purposes set for punishment can be attained in another way, it is clear that there is nothing which strictly compel’ the exaction of the punishment.
Take as an example of the first case a crime known to very few persons, the bringing of which to public notice is therefore unnecessary, or even harmful. Here is applicable what Cicero said of certain Zeuxis: ‘Since he has been brought to trial, perhaps he ought not to be acquitted, but it was unnecessary to have prosecuted him.’ An example of the second case is one who pleads either his own, deserts or those of his parents, which are worthy of reward, to counter,, balance his guilt; for, as Seneca says: ‘The surpassing benefit does, not suffer the injury to appear.’ An example of the third case is one, who is corrected by reproof, or who has made verbal satisfaction to” the injured person, so that there is now no need of punishment,,’ attain the desired ends.
2. This is one aspect of clemency, that it frees from punishment. With respect to this the Hebrew Wise Man said: ‘The just man must love his fellow men.’ For because every punishment, especially if of a more serious kind, contains something which viewed in itself is opposed, not indeed to justice, but to regard for others, reason readily permits us to refrain from punishment, unless a greater and more just regard for others almost irresistibly restrains us. The remark of Sopater is to the point here
The corrective element of justice in the matter of contracts altogether spurns the family of the Graces. But the element that is concerned with punishments does not shun their mild and kindly countenance.
The first part of the thought Cicero expressed thus: ‘In certain things the way of right is such that regard for others has no place.’ The latter part is thus phrased by Dio of Prusa in his oration to the Alexandrians: ‘It is the part of a good governor to pardon.’ As Favorinus says: ‘What men call clemency is a relaxation of strict justice at the opportune time.’
XXIII. But pardon is not permissible in all cases.
There are these three possibilities. Either the penalty is to be exacted absolutely, as in crimes of the worst type; or it is not to be, exacted at all, as when the public good requires its omission; or either alternative may be possible, in which case, as Seneca says, clemency has freedom of judgement. In this last case, say the Stoics, the wise man spares, but does not pardon. As if, indeed, following the common people who determine the use of language, we could not call ‘to pardon’ what the Stoics call ‘to spare.’ In truth both here and elsewhere, as Cicero, Galen, and others point out, a great part of the Stoic arguments is taken up with discussions about terms,’ which a philosopher ought especially to avoid. For as the writer of the Ad Herennium said with the greatest truth: ‘It is a bad thing to raise a dispute over a change of terms,’ or, as Aristotle had put it: ‘One must avoid disputing over the name.’
XXIV. Proof that pardon is permissible even after the establishment of the penal law.
1. There seems to be a greater difficulty with regard to pardon after the establishment of the penal law, because the lawmaker is in some way bound by his own laws. But this we have said is true in so far as the lawmaker is regarded as a member of the state,’ not in so far as he sustains the person and authority of the state itself. For in so far as he does this he can even suspend the whole law because it is the nature of a human law to depend upon a human will, not merely in its origin but also in its duration. However, the lawmaker should not suspend the law except for a worthy reason, otherwise he will sin against the principles of governmental justice.
2. But just as the lawmaker can suspend the whole law, so he can suspend its obligation in respect to a particular person or fact, while in other respects the law remains in force. According to Lactantius, God Himself furnishes an example; for ‘When He established the law, He did not thereby take from Himself all power, but retained this right to pardon freely.’ ‘The Emperor,’ says Augustine,’ may repeal a sentence,’ and acquit a defendant on a capital charge and pardon him,’ giving as the reason ‘that he who has it in his power to create laws is not bound by the laws.’ And Seneca wishes Nero to reflect on this: ‘No one can put to death against the law; nobody can save except me.’
3. But this step also is not to be taken except for a worthy reason. Although we cannot define with exactness what are worthy reasons, nevertheless we must hold that they ought to be more cogent after the institution of the law than those which were accepted before the law, because to the reasons for punishing there is added the authority of the law which it is expedient to preserve.
XXV. What intrinsic causes are sufficient to cause the suspension of the law.
Now the causes for freeing any one from the punishment of the law are internal or external.
An intrinsic cause occurs when the punishment, although not unlawful, is severe in comparison with the act.
XXVI. What extrinsic causes are sufficient.
An extrinsic cause for freeing any one from the punishment of the law arises from some merit, or from some other commendatory thing, or even from a strong hope entertained for the future. This type of cause is especially effective if the reason for the law, at least in the particular instance, should cease with respect to the act in question. For although the general reason, when not opposed by a contrary reason, is sufficient ground for maintaining the efficacy of the law, nevertheless an absence of the reason, even in a particular instance, renders it possible to suspend the law more easily and with less loss of authority.’
This occurs especially in the case of crimes which are committed through ignorance, even if it is not altogether excusable, or through some mental infirmity that is conquerable indeed, but only with difficulty. These things ought to be taken into especial consideration ‘by a Christian ruler, that he may imitate God, who even in the Old Covenant desired that many crimes of this sort should be expiated by the offering of certain victims; Leviticus 4 and 5:5. And in the New Covenant by word and by examples He has shown that He is ready to pardon such things to those who repent (Luke 23:34; Hebrews 4:15; 52; 2 Timothy 1:13). John Chrysostom in fact notes that Theodosius the Great was led to pardon the men of Antioch by these words of Christ in the Gospel of St. Luke, ‘Father, forgive them, for they know not what they do.’
XXVII. Rejection of the view that there is no just cause to suspend the law, unless it is one that is contained in the law as an implied exception.
Now from this it is clear how far wrong Fernando Vazquez was in saying that the only just cause of suspending the law, that is of freeing from the operation of the law, is that with regard to which the lawsmaker, if consulted, would say that it was not his intention that the law should be observed. For he has not distinguished between equity, which serves to interpret the law, and relaxation. Upon this ground in another place he censures Thomas Aquinas and Soto for saying that the law continues to be binding even if the cause should cease in a particular case, as though they thought that the law consisted merely in what was written; an idea that never occurred to them.
However, we are so far from having to attribute every relaxation of the law, which may often be given freely or omitted, to what is properly called equity, that not even the relaxation due either to regard for others or to ruling justice can be referred thereto. For it is one thing to annul the law for a worthy or even a pressing cause, and another to declare that an act from the beginning was not embraced in the intent of the law.
Now that we have discussed exemptions from punishments, let us consider their measure.
XXVIII. The measure of punishment according to what is deserved.
From what has been previously said it appears that in applying punishments we must have regard to two things: that for which, an that for the sake of which. That for which is what is deserved; that, for the sake of which is the advantage to come from the punishment.
No one is to be punished beyond what he has deserved.’ This’ view is supported by what we have previously quoted from Horace, and by the saying of Cicero: ‘In punishment as in other things there is a measure and a sort of moderation.’ Thus Papinian calls punishment by the name of evaluation. Aristides in his second speech On Leuctra says that it accords with human nature to find in each crime some point beyond which vengeance ought not to proceed. Moreover, Demosthenes in his letter on behalf of the children of Lycurgus says that in the matter of punishment we must not regard the bare balance, as in the case of weights and measures, but we must weigh the purpose and the wish of him who has committed the wrong; Within the limits of their desert, sins are punished more or less,’ severely with an eye to the advantage to be attained.
XXIX. A consideration, in this connection, of the causes which lead to, crime, and a comparison of these with one another.
1. In estimating what is deserved we must take into consideration the compelling cause, the cause which ought to have restrained, and the disposition of the person toward each. Scarcely any one is bad for no purpose, while if any one delights in wickedness for its own sake he is beyond the pale of humanity. Most people are led to sin by the”desires; ‘The lust when it hath conceived beareth sin.’
Now under the name of desire I include also the impulse to, avoid evil, which is very natural and consequently the most honor, able of desires. Hence, unjust actions committed for the sake; at avoiding death, imprisonment, pain, or extreme poverty, usually seem in great measure excusable.
2. Here applies the saying of Demosthenes:
It is right to be more angry with those who are bad when they are rich than with those who are so under the pressure of poverty. For with judges of a humane disposition; necessity has some value as an excuse, while those who are unjust while enjoying weal have no worthy pretext.
On this ground Polybius excuses the Acarnanians for not fulfilling the terms of the treaty concluded with the Greeks against the Aetolians, in view of the danger which threatened them. Aristotle also declares: ‘Incontinence is more voluntary than cowardice; for the former arises from hope of pleasure, but the latter from fear of pain. Pain, moreover, as it were, carries a man out of himself,’ corrupting his nature; but pleasure does no such thing, and so is the more voluntary.’ Of the same sense is a significant passage in Porphyry,” On the Abstaining from Animal Food, Book III.
3. But the other desires aim at some good, whether true or imaginary. True goods, apart from virtues and their actions, which do not lead to sin (for virtues harmonize with one another) are either pleasing things or the cause of pleasant things, which are called advantageous, as abundance of possessions. Imaginary but not true goods a are superiority over others, apart from virtue and advantage, and revenge. And the further these depart from nature, the more shameful they become.
Now these three desires John expresses in the following words: ‘the lust of the flesh, the lust of the eyes, and the vain glory of life.’ For the first member includes the desires for pleasures, the second the greed of possessing, and the third anger and the pursuit of vain glory. Philo, in his explanation of the Ten Commandments, says that ‘All things are evil that arise from the desire either for money or for glory or for pleasure ‘; and Lactantius, in his sixth book, that ‘Virtue consists in restraining anger, abating greed, and bridling lust. For almost all unjust and wicked acts arise from these desires.’ This idea he expresses in another place also.
XXX. Also a consideration of the causes that should have restrained from sin; with a discussion of the order of the commandments of the decalogue that apply to one’s neighbor, and some other things.
1. The general cause, which ought to restrain from wrong-doing, is injustice. For here we are not dealing with sins of all kinds, but only with such as carry their effect beyond the criminal himself. The injustice is the greater the heavier the loss that is brought upon another. Therefore, in order of seriousness, the first place is assigned to crimes actually carried out, and the next place to those which have proceeded to certain actions but not to the final act. Among the latter each is more serious the farther it has proceeded. In either sort of crimes that form of injustice is prominent which disturbs the public order and therefore harms the greatest number.
Next in importance comes the injustice which affects individuals. Here the greatest injustice is that which affects human life; the next that affecting the family, the basis of which is marriage; and the last that affecting desirable things severally, either by directly taking them away or through evil intent giving rise to loss.
2. These things may be analysed with greater precision, but we have indicated the order that God has followed in the Decalogue. For under the name of parents, who are magistrates by nature, it is right for us to understand other rulers whose authority extends over human society. There follows the forbidding of homicide; then the, sanction of matrimony by the prohibition of adultery; then thefts and the bearing of false witness; and, finally, unconsummated crime.
However, among the reasons that should deter from crime we ought to include not only the character of the crime that is actually committed, but also the character of what is likely to follow, for in the case of arson and the destruction of a dike most serious injuries and even death in the case of many persons are to be looked for.
3. In addition to injustice, which we have stated as the general reason for abstaining from wrong, there is sometimes added another vice,” as impiety toward one’s parents, cruelty toward neighbors, and ingratitude toward benefactors, which add to the seriousness of the offence. Also the depravity appears to be greater if one sins frequently, because evil habits are worse than evil acts.
From this we may see how far the Persian custom is by nature right, which takes into consideration a man’s former life along with his crime. This ought, to be sure, to have a place in the case of those who, while not otherwise prone to evil, have suddenly been carried away by some charm felt in sinning; but not in the case of those who have changed the whole character of their life. Regarding them God Himself, according to Ezekiel, says that no account must be taken of their previous life. We may also apply to, them the words of Thucydides: ‘They are worthy of a twofold penalty, because from good men they have become bad’; and also what he has said in another place: ‘Because it least of all became them to sin.’
4. Consequently, the early Christian writers, in adjusting punishments according to the Canons, very rightly desired that the crime should not be considered by itself alone,’ but with it the preceding and subsequent life; as one may see from the Council of Ancyra and other Councils.
But the enactment of a law against a particular crime also adds a sort of special wickedness thereto. So Augustine teaches: ‘The law by its prohibition renders all crimes doubly guilty; of or it is not a simple crime to do what is not only wrong but is also forbidden.’ According to Tacitus: ‘If you desire what is not yet forbidden, you may fear that it will be forbidden; but if you transgress with impunity what is prohibited there is no fear or sense of restraint remaining.’
XXXI. Also the inclination of the sinner toward incentives to and deterrents from sinning, which is considered from various points of view.
1. The fitness of the person, either to take into consideration deterrent causes, or to receive incentive desires, is usually considered to be the result of his bodily constitution, age, sex, education, and the immediate circumstances of the act. For alike children, women, and men of dull intellect and bad education, are not well able to appreciate the distinction between just and unjust, lawful and unlawful. Those too who suffer from an excess of bile are prone to anger, and those who have an excess of blood are prone to lust; moreover,,youth leads to the latter, while old age tends to the former. Says Andronicus of Rhodes: ‘It appears that a natural inclination toward what is bad provides a sort of defense for these acts, and renders the crime more tolerable.’
Reflection upon a threatening evil increases fear, and pain that is fresh and not yet assuaged fires one’s anger, so that they scarcely permit reason to be heard. And the crimes that arise from such impulses are deservedly less hateful than those which spring from a desire for pleasure, both because this affects one less powerfully and because it can be more easily deferred and can find for itself another object without suffering harm. As Aristotle says in his Nicomachean Ethics, Book VII: ‘Anger and severity are more natural than the desires for excessive and unnecessary things.’
2. We must in fact absolutely adopt this point of view, that the more the judgement of a mind that can choose is restricted, and the more this restriction is due to natural causes, the less the offence that is committed. According to Aristotle in the book cited: ‘Rather should we call intemperate the man who, without suffering from desire, or suffering but slightly, pursues excesses and shuns moderate pains, than he who does so under the influence of strong passion. For what are we to think the former would do if he should be influenced by youthful desires or severe pain along with the lack of necessities?’ With this agree the words of Antiphanes:
- He who when rich yet does act wickedly,’
What think you he would fail to do, were he but poor,
And what we read everywhere in comedy about the loves of old men.
Accordingly, for these reasons we must estimate the desert which punishment ought not to exceed.
XXXII. The desert of punishment may be extended to include a greater harm than the sinner has actually inflicted. The reasons therefore.
1. Further, we must hold that the teaching of the Pythagoreans that justice is ‘suffering in return for suffering’ that is, the suffering of the punishment equalling the suffering of the wrongs ought not to be taken in the sense that he who has injured another with intent and without reasons that sensibly diminish his guilt ought only to suffer the equivalent of the harm he has wrought and nothing more. That this is not so is shown in fact by that law which is the most perfect example of all laws, when it provides that thefts are to be atoned for by fourfold or fivefold restitution. In Attic law, again, a thief, besides the condemnation to double damages, was kept in prison for some days, as Demosthenes informs us in his speech against Timocrates.
‘The laws,’ says Ambrose, ‘order that those things which have been taken away from anyone with injury to the person or the thing itself shall be restored with interest, so that either they may deter the thief from taking them by the punishment provided, or recover the loss by the fine.’ According to Aristides in his second speech On Leuctra: ‘Those who follow up their wrongs in court are allowed by the law to inflict upon those who have wronged them, in the way of punishment, more than they have suffered.’ Seneca, speaking of the judgement after this life, says:
- Our [your] sins are weighed
With heavier measure.
2. Among the peoples of India, as Strabo notes, he who had maimed another, in addition to suffering retaliation, was punished by the loss of a hand. And in the Magna Moralia attributed to Aristotle we read: ‘It is not just that one, who has struck out another’s eye, should only have his struck out in turn, but he should suffer something more.’ The reason is that it is not fair that the danger to the innocent and the guilty should be equal, as Philo rightly proves in discussing the punishment of homicide.
This we can judge also from the fact that certain unaccomplished crimes, which are accordingly less heinous than those which have been accomplished, cause an injury equal to the intent, as is shown in the Hebraic law of false witness, and in the Roman law concerning one who goes about armed for the purpose of killing a man. Thereupon it follows that a heavier punishment answers to crimes that have been; executed; but since there is no punishment heavier than death, and, this can be inflicted only once, as Philo notes in the passage referred “to above, punishment necessarily stops with this, nevertheless with the occasional addition of torture, as the crime may deserve.
XXXIII. Rejection of the idea of a harmonic proportion in punishments.
However, we must take into consideration the extent of the punishment, not only by itself but in relation to the one who suffers it. For the fine that will burden a poor man will not burden one who is rich; and to a man of no repute ignominy will be a trifling harm, while for a man of consequence it will be serious.
The Roman law often makes use of this kind of difference. From that Bodin built up his harmonic proportion; although in reality we have here a simple proportion like a numerical equation, between the desert and the punishment, just as in contracts which set goods over against money, although the same goods have now more value, now less, in the same way as money. But we must admit that in the Roman law this is not done ‘without regard to persons,’ that is not without too much regard to persons and qualities extraneous to the fact. This fault is always completely absent from the Law of Moses. Such, as we have said, is the intrinsic measure of punishment.
XXXIV. Punishment may be mitigated on the ground of regard for others, unless a greater regard for others opposes.
But within the conceded limits regard for him who is punished tends to exact the minimum penalty, unless a more just regard for the greater number urges a contrary course for an extrinsic reason. This reason is sometimes the great danger from him who has sinned, but more often the need of an example. This need, moreover, usually has its origin in the general inducements to sin, which cannot be checked without sharp remedies. Of these inducements the strongest are habit and opportunity.
XXXV. How the opportunity to commit sin may urge to its punishment also how the habit of sinning may urge to the punishment of the sin or dissuade from it.
Because of the opportunity, the divine law given to the Jews punished more severely a theft committed in the field than one in the house (Exodus 12: 1and 9). Justin, writing of the Scythiains, says: ‘Among them no crime is considered more serious than theft, for, if stealing were permitted, what could they hold safe, seeing that they keep their flocks and herds without the protection of roof and walls?’ In Aristotle’s Problems, section 29, we find this similar statement: ‘The lawgiver, considering that the owners were not able to protect their property in these places, established the law as a guard.’
Although the habitual performance of an act detracts somewhat from its guilt (‘Not without reason,’ says Pliny,’ did he pardon an, act that was forbidden indeed, but yet habitual ‘), still from one point of view it requires severity in the punishment. For, as Saturninus says,’ When very many disturb the peace we must make an example.’ Now in passing judgements we must aim at leniency, but in framing laws at severity, taking due account of the time when the statutes or the judgements are made known; because the advantage derived ‘from punishment is considered more in the generality with which the statutes deal, while the guilt varies in individual cases.
XXXVI. The use of clemency in mitigating punishments.
1. A second aspect of clemency, moreover, is to be found in what we have said, that, where great and pressing grounds for punishment are lacking, we should be the more ready to mitigate the punishment; its first aspect we have held to consist in the complete suspension of punishment.’ Since an exact balance is difficult,’ said Seneca, ‘whatever is in excess should weigh on the side of humanity.’ And in another passage: ‘Let him execute the punishment, if he can with safety, but if not, let him moderate it.’
Diodorus Siculus, too, praises an Egyptian king because he imposed ‘penalties less than the deserts.’ Capitolinus says of ‘Marcus Aurelius: ‘This was a habit of the Emperor, to visit all crimes with a lighter punishment than that provided by the laws.’ Isaeus the orator also said that it was necessary that the laws be drawn up with severity, but that punishments milder than the laws should be exacted. And we have the advice of Isocrates: ‘Punishments should be made less than the crimes deserve.’
2. Augustine thus admonishes the Count Marcellinus of his duty:
I feel the greatest anxiety, lest perchance your Exalted Highness should think that .these men are to be punished with such a strict application of the laws that they should suffer punishments the equivalent of their crimes. And so in these two letters I beseech you by the faith which you have in Christ, through the mercy of our Lord himself, not to do this nor to permit it to be done at all.
In another passage he says:
Divine reproof has terrified even the very avengers of crime, although in this duty they are not prompted by their own anger but are servants of the laws, and avengers not of their own wrongs but of the wrongs of others, after examination, as befits good judges. Therefore they reflect on the mercy of God necessary to pardon their own sin, and do not think that it is a guilty neglect of their duty if in some degree they act mercifully toward those over whom they have the power of life and death which the laws confer.
XXXVII. What the Jews and the Romans thought should be taken into consideration in punishments is brought into relation with the foregoing discussion.
We hope that we have omitted nothing that would greatly contribute to the understanding of this problem, which is sufficiently difficult and obscure. For we have discussed in their proper place the four things which Maimonides says we should take into chief consideration in punishments: the greatness of the crime, that is of the harm done, the frequency of such crimes, the strength of illicit desire, and the opportunity for the act.
We have also discussed the seven points which Saturninus treats in a rather confused fashion in his consideration of punishments. For the person of him who has done the wrong is of the greatest importance in fitly judging the penalty, and the person of him who suffers the wrong sometimes is of weight in estimating the greatness, of the guilt. The place of the wrongdoing usually contributes a particular degree of guilt to the injustice, or has a bearing also upon the opportunity for the deed. According as the time was long or short it increases or restricts freedom of judgement, at times also reveals the depravity of the mind. The quality of the crime has to do partly with the kinds of desires, and partly with the reasons which should have deterred from sinning. The degree also must be taken into consideration in relation with the desire. The outcome must be viewed in relation to the deterrent reasons.
XXXVIII. On war waged to inflict punishment.
We have previously shown, and histories everywhere teach, that wars are usually begun for the purpose of exacting punishment. But very often this cause is joined with a second, the desire to make good a loss, when the same act was both wicked and involved loss; and from these two characteristics two separate obligations arise.
However, it is quite clear that war should not be undertaken for every sort of crime. For even the vengeance of the laws, which is exercised in safety and only harms the guilty, does not follow upon every wrong. As we have just now said, Sopater justly declares that crimes which are of little importance and common should be passed over and not avenged.
XXXIX. By distinguishing various cases, it is explained whether a war waged to punish wrongs that have been merely attempted is just.
1. The saying of Cato in his speech for the Rhodians, that it is not just that any one should be punished for a thing which he is accused merely of having wrongly desired to do, was not badly urged in this connection; for no decree of the people of Rhodes could in fact be adduced, but only conjectures of changing intent. The principle, however, cannot be accepted as a universal proposition. For the will which proceeds to external acts (we have said above that internal acts are not punished by men) is usually liable to punishment. According to Seneca the Father, in his Controversies: ‘Crimes are punished even although they have not been carried to completion.’ ‘He who is about to commit a wrong has already committed it,’ says the younger Seneca. Cicero in his speech For Milo said that not the outcome of deeds but the purposes were punished by the laws.’ There was also a saying of Periander: ‘Punish not only those who sin but also those who intend to sin.’
On these grounds the Romans thought that they ought to wage war with King Perseus, unless he should make amends in respect to the plans which he had formed for waging war against the Roman people, seeing that he had already gathered arms, troops, and a fleet. This very point is rightly emphasized in the speech of the Rhodians recorded in Livy, that neither in the customs nor in the laws of any state is it provided that he who wishes his enemy to perish, assuming that he has done nothing to bring this about, is condemned to capital punishment.
2. But, on the other hand, not every wicked intention, which has been revealed by some fact, gives an occasion for punishment. For if all crimes that have been committed are not punished, much less are all those which have been planned and initiated. In many cases we may apply the saying of Cicero: ‘I do not know whether or not it is enough for him who has done harm to repent of his wrongdoing.’ The law given to the Jews made no special provision against many crimes begun against piety, or even against human life, without premeditation; because it is easy to err in divine things which are not clear to us, and the impulse of anger is not undeserving of pardon.
3. However, in the midst of so many opportunities for marriage, to disturb the marriages of others, or in the case of a fair division of property to devise fraud whereby one might enrich himself through the loss of another, was by no means tolerable. For although the command ‘Thou shalt not covet,’ contained in the Decalogue, is of wide meaning if you look at the object of the law, that is ‘the spiritual object’ (for the law desires all to be most pure even in mind),’ nevertheless the external command, ‘the carnal injunction,’ so far as it extends, refers to the movements of the mind which are revealed by action. This is abundantly clear from the evangelist Mark who has given that same command, ‘Do not defraud,’ and that too after he had previously enjoined,’ Do not steal.’ In this sense, in fact, the Hebrew word and its Greek equivalent are found in Micah (2:2) and elsewhere.
4. Crimes that have only been begun are therefore not to be punished by armed force, unless the matter is serious, and has reached a point where a certain damage has already followed from such action, even if it is not yet that which was aimed at; or at least great danger has ensued, so that the punishment is joined either with a precaution against future harm (about which we spoke above in the chapter on Defense), or protects injured dignity, or checks a dangerous example.
XL. A discussion whether kings and peoples may rightly wage war on account of things done contrary to the law of nature, although not against them or their subjects; with a refutation of the view that the law of nature requires right of jurisdiction for the exaction of punishment.
1. The fact must also be recognized that kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now after the organization of states and courts of law is in the hands of the highest authorities, not, properly speaking, in so far as they rule over others but in so far as they are themselves subject to no one. For subjection has taken this right away from others.
Truly it is more honorable to avenge the wrongs of others rather than one’s own, in the degree that in the case of one’s own wrongs it is more to be feared that through a sense of personal suffering one may exceed the proper limit or at least prejudice his mind.
2. And for this cause Hercules was famed by the ancients because he freed from Antaeus, Busiris, Diomedes and like tyrants the lands which, as Seneca says, he traversed, not from a desire to acquire but to protect, becoming, as Lysias points out, the bestower of the greatest benefits upon men through his punishment of the unjust. Diodorus Siculus speaks of him thus: ‘By slaying lawless men and arrogant despots he made the cities happy.’ In another passage Diodorus said: ‘He traversed the world chastising the unjust.’ Of the same hero Dio of Prusa said: ‘He punished wicked men and overthrew the power of the haughty or transferred it to others.’ Aristides in his Panathenaic Oration declares that Hercules deserved to be elevated among the gods because of his espousal of the common interest of the human race.
In like manner Theseus is praised because he removed the robbers Sciron, Sinis, and Procrustes. Euripides in the Suppliants represents him as speaking thus about himself:
- Already throughout Greece my deeds to me
This name have given; scourge of the wicked I am called.
Of him Valerius Maximus wrote: ‘All that was anywhere monstrous or criminal, he suppressed by the courage of his heart and the strength of his right hand.’
3. So we do not doubt that wars are justly waged against those who act with impiety towards their parents, like the Sogdianians before Alexander taught them to abandon this form of barbarity; against those who feed on human flesh, from which custom, according to Diodorus, Hercules compelled the ancient Gauls to abstain; and against those who practice piracy. Says Seneca: ‘If a man does not attack my country, but yet is a heavy burden to his own, and although separated from my people he afflicts his own, such debasement of mind nevertheless cuts him off from us.’ Augustine says ‘They think that they should decree the commission of crimes of such sort that if any state upon earth should decree them, or had decreed them, it would deserve to be overthrown by a decree of the human race.’
Regarding such barbarians, wild beasts rather than men, one may rightly say what Aristotle wrongly said of the Persians, who were in no way worse than the Greeks, that war against them was sanctioned by nature; and what Isocrates said, in his Panathenaic Oration, that the most just war is against savage beasts, the next against men who are like beasts.
4. Thus far we follow the opinion of Innocent, and others who say that war may be waged upon those who sin against nature.’
The contrary view is held by Victoria, Vazquez, Azor, Molina, and others, who in justification of war seem to demand that he who undertakes it should have suffered injury either in his person or his state, or that he should have jurisdiction over him who is attacked. For they claim that the power of punishing is the proper effect of civil jurisdiction, while we hold that it also is derived from the law of nature; this point we discussed at the beginning of the first book. And in truth, if we accept the view of those from whom we differ, no enemy will have the right to punish another, even after a war that has been undertaken for another reason than that of inflicting punishment. Nevertheless many persons admit this right, which is confirmed also by the usage of all nations, not only after the conclusion of a war but also while the war is still going on; and not on the basis of any civil jurisdiction, but of that law of nature which existed before states, were organized, and is even now enforced, in places where men live in family groups and not in states.
XLI. The law of nature must be distinguished from widely current national customs.
But at this point certain precautions need to be stated.
First, national customs are not to be taken for the law of nature, although they have been received on reasonable grounds among many peoples. Of this type chiefly were the things which distinguished the Persians from the Greeks, to which you may rightly apply the saying of Plutarch: ‘To wish to impose civilization upon uncivilized peoples is a pretext which may serve to conceal greed for what is another’s.’
XLII. The law of nature must be distinguished also from the Divine law that is not voluntarily recognized by all.
Second, we should not hastily class with the things forbidden by nature those with regard to which this point is not sufficiently clear, and which are rather prohibited by the law of the Divine Will. In this class we may perhaps place unions not classed as marriages and those which are called incestuous, as well as usury.
XLIII. In the law of nature we must distinguish between what is evident and what is not evident.
1. Third, we should carefully distinguish between general principles, as, for example, that one must live honorably, that is according to reason, and certain principles akin to these, but so evident that they do not admit of doubt, as that one must not seize what belongs to another, and inferences; such inferences in some cases easily gain recognition, as that, for example, accepting marriage we cannot admit adultery, but in other cases are not so easily accepted, as the inference that vengeance which is satisfied with the pain of another is wicked. Here we have almost the same thing as in mathematics, where there are certain primary notions, or notions akin to those that are primary, certain proofs which are at once recognized and admitted, and certain others which are true indeed but not evident to all.
2. Therefore, just as in the case of municipal laws we excuse those who lack knowledge or understanding of the laws, so also with regard to the laws of nature it is right to pardon those who are hampered by weakness of their powers of reasoning or deficient education.’ For as ignorance of the law, if it is unavoidable, cancels the sin, so also, when it is combined with a certain degree of negligence, it lessens the offence. And for this reason Aristotle compared barbarians, who err through want of training in such things, to men having desires corrupted by disease. Plutarch says that there are certain ‘diseases and sufferings of the mind which cause a man to lose his natural character.’
3. Finally, to avoid repeating often what I have said, we must add this word of warning, that wars which are undertaken to inflict, punishment are under suspicion of being unjust, unless the crimes are very atrocious and very evident, or there is some other coincident reason. Perhaps Mithridates was not far wrong in saying of the Romans: ‘They assail not the faults of kings but the power and authority of kings.’
XLIV. Whether war may be waged on account of crimes against God.
1. Our order of treatment has brought us to the discussion of crimes which are committed against God; for there is a dispute whether war may be undertaken to avenge these. This question has been treated at sufficient length by Covarruvias. But he, accepting the position of others, thinks that the power to punish does not exist apart from jurisdiction, properly so called. This view we have already rejected. Consequently, just as in the affairs of the Church the bishops are said in some way to have been’ entrusted with the care of the Universal Church,’ so kings, in addition to the particular care of their own state, are also burdened with a general responsibility for human society.
A stronger argument for the view which denies that such wars are just is this, that God is able to punish offences committed against Himself, whence the sayings, ‘The injuries of the gods are the care of the gods,’ and ‘perjury has a sufficient avenger in God.’
2. We must, however, recognize the fact that this same thing may be said about other crimes as well. For without doubt God is able to punish these also, and yet no one disputes that they are rightly punished by men. But some will insist and say that other crimes are punished by men in so far as other men are injured or endangered thereby. But it must be noted, on the other hand, that men do not only punish the sins which directly harm others but also those which harm by their consequences, such as suicide, intercourse with animals, and some other things.
3. Moreover religion, although it is in itself effective in winning the favor of God, nevertheless has also in addition important effects on human society. For not undeservedly does Plato call religion the bulwark of authority and the laws and the bond of right training. Plutarch in like manner calls it ‘the cement of all society and the basis of legislation.’ In the view of Philo ‘the worship of one God is an unfailing means of inspiring love and an indissoluble bond of kindly good will.’ Everything opposite flows from impiety
- Alas, the first cause of crime for weak men
Is ignorance of the nature of God.
Plutarch says that every false belief in regard to divine matters is harmful, and, if coupled with a disturbance of the soul, very harmful. Iamblichus preserves a Pythagorean dictum: ‘The knowledge of the gods is virtue and wisdom and complete happiness.’ For these reasons Chrysippus said that law is the queen of things divine and human; Aristotle held that among public obligations the chief was that concerning divine things; and to the Romans jurisprudence was the knowledge of things divine and human. Philo thought that the art of ruling consisted in ‘the care of private, public, and sacred matters.’
4. All these things are to be taken into account not merely in any one state, as when, in Xenophon, Cyrus says that his subjects will be more devoted to him the more they fear the gods, but also in human society generally.’ If piety is removed,’ said Cicero, ‘with it go good faith and the friendly association of mankind, and the one most excellent virtue, justice.’ In another place he says ‘Justice arises when we fully understand what the godhead of our supreme ruler and lord is, what his purpose, what his will.’
A clear proof of all this is that Epicurus, after having abolished divine providence, left nothing of justice except the empty name, so that he could say it arose from agreement only and endured no longer than the common advantage therefrom endured; that one must then abstain from the things which are likely to injure another solely through fear of punishment. His own remarkable words on this point are found in Diogenes Laertius.
5. Aristotle also perceived this relation, and in his Politics, Book V, chapter xi, speaks thus of the king: ‘For the people will be less afraid of suffering anything unlawful from their prince if they believe that he fears the gods.’ Galen, too, in the ninth book, speaking of the precepts of Hippocrates and Plato, after saying that many inquiries are conducted with regard to the earth and the nature of the gods without any advantage to morality, recognizes that the inquiry concerning the nature of providence is of the greatest advantage alike to private and to public virtues. Homer also saw this, and in the sixth and ninth books of the Odyssey contrasts with men who are ‘insolent and fierce’ those whose ‘mind is god-fearing.’
In like manner Justin, following Trogus, praises the justice of the ancient Jews that was bound up with their religion; just as Strabo calls the same Jews ‘truly pious and righteous.’ Lactantius says: ‘If then piety is a knowledge of God, and the sum of this knowledge is His worship, then he who does not accept the religion of God is ignorant of justice. For how can he know it who knows not whence it comes?’ In another place, again: ‘Justice is peculiar to religion.’
6. Religion is of even greater use in that greater society than in that of a single state. For in the latter the place of religion is taken by the laws and the easy execution of the laws; while on the contrary in that larger community the enforcement of law is very difficult, seeing that it can only be carried out by armed force, and the laws are very few. Besides, these laws themselves receive their validity chiefly from fear of the divine power; and for this reason those who sin against the law of nations are everywhere said to transgress divine law. Therefore, the Emperors have well said that religious corruption affects all to their hurt.
XLV. What ideas of God are most generally accepted; and how these are indicated in the first commandments of the Decalogue.
1. To penetrate more deeply into the whole matter, we must observe that true religion, which is common to all ages, rests mainly upon four principles. Of these the first is, that God is, and is One; the second, that God is none of the things which are seen, but is something more exalted than these; the third, that God has a care for human affairs, and judges them with the most righteous judgements; and the fourth, that the same God is the creator of all things besides Himself. These four principles are likewise set forth in the commandments of the Decalogue.
2. For in the first commandment the oneness of God is openly revealed; in the second his invisible nature, for on this account it is forbidden to make a likeness of him (Deuteronomy 4:12). As also Antisthenes said: ‘He is not seen with the eyes, he is not like unto anything, therefore no one can learn to know him from an image.’ Moreover, Philo said: ‘It is impious to depict the Invisible One’ in painting or sculpture. Diodorus the Sicilian says of Moses: ‘He set up no image because he did not believe that God was of the likeness of men.’ According to Tacitus: ‘The Jews recognize but one divinity and that with the mind only. They treat as impious those who fashion images of the gods out of perishable materials in the likeness of men.’ Plutarch, indeed, gives this reason for Numa’s removal of images from the temples: ‘That it is not possible to reach a conception of God except in thought.’
In the third commandment we perceive God’s knowledge and care of human things, even of thoughts; for this is the basis of oaths. Since God is a witness even of the heart, He is invoked as an avenger if any one should swear falsely, which very fact reveals both the justice and the power of God. In the fourth commandment we see the origin of the whole world with God as its creator, in memory of which there was formerly instituted the Sabbath,’ and this with a certain peculiar sanctity above other rites. For if any one should transgress other religious rites the punishment of the law was discretionary, as in the case of forbidden foods; but if against the Sabbath, the punishment was death. The reason is that the violation of the Sabbath, owing to the nature of its establishment, implied a denial that the world was created by God. However, the creation of the world by God declares both His goodness and wisdom, and His eternity and power.
3. Now from these speculative ideas arise opinions leading to action, that God is to be honored, to be loved, to be worshipped, and also to be obeyed. Thus Aristotle has said that he who denies that we must honor the deity or love our parents must be subdued not by arguments but by punishment; in another passage, that some things are considered honorable in one place, others in another, but that everywhere it is held honorable to worship the deity. Moreover, the truth of the ideas which we have called speculative can doubtless be shown also by arguments drawn from the nature of things.
Among such arguments this is the strongest, that our senses show that some things are made, but the things which are made lead us absolutely to something that is not made. But because all persons do not grasp this reason and others of a like nature it is enough to say that in every age throughout all lands, with very few exceptions, men have accepted these ideas; both those men who were too dull to wish to deceive, and others who were too wise to be deceived. This agreement in so great a variety of laws and diversity in expressions of opinions regarding other matters sufficiently reveals the tradition that has been handed down to us from the beginning of the human race and has never been conclusively refuted; and that fact of itself is sufficient to cause belief.
4. These points which we have recalled concerning God were brought together by Dio of Prusa when he said that we have one ‘conception,’ that is belief concerning God that is born with us and brought out by reasoning, and another ‘acquired’ by tradition. The same is called by Plutarch ‘an ancient belief, than which we can name or discover no clearer proof, the common foundation established for piety.’ Said Aristotle: ‘All men have a belief about the gods.’ And with this Plato in his Laws, Book X [chapter iii], agrees.
XLVI. Those who first do violence to these common ideas may be punished.
1. Wherefore those are not free from blame who repudiate these ideas, even if they are too dull-witted to be able to discover or understand positive proofs thereof, since they save guides to the right path, and the contrary view rests upon no good reasons.
Since, however, we are dealing wits punishments, and indeed punishments inflicted by men, we must introduce distinctions among the ideas themselves and in the manner of departing from them. These ideas, that there is a divinity (I exclude the question of there being more than one) and that se has a care for the affairs of men, are in the highest degree universal, and are absolutely necessary to the establishment of religion, whether it be true or false.’ He that comments to God (that is, se who has religion; for the Jews called religion an approach unto God) must believe that He is, and that He is the rewarder of them that seek after Him.’
2. In like manner Cicero said:
There are, and have been, philosophers who think that the gods take no care for the affairs of men. But if their view is correct, what piety can there be, what holiness, what religion? For all these things are to be rendered to the divinity of the gods with purity and freedom from sin if they are perceived by them, and if there is something contributed by the immortal gods to the human race.
So also Epictetus: ‘In piety toward the gods, know that this is the essential thing, to sold right conceptions about them, as existing and as directing the universe well and righteously.’ Aelian says that none of the barbarians fell into atheism, but that they all declare that there is a divinity and that se has care for us.’
Plutarch, in his On Matters of Common Knowledge, declares that if we take away providence we also take away the idea of God, ‘for God must be conceived and thought of not only as immortal and blessed, but as loving man and caring for him and benefitting him.’ Said Lactantius: ‘Neither can any respect be owed to God if He in no way aids him who worships Him, nor any fear if He is not angry wits him who does not worship.’ And in very truth to deny that God exists, or to deny that He takes notice of human actions, if we look to the moral effect, amounts to the same thing.
3. Wherefore, as though under the influence of necessity itself, these two ideas save been preserved through so many ages, among almost all the peoples of whom we save knowledge. For this reason Pomponius incorporates the worship of God in the universal common law; and, according to Xenophon, Socrates said that ‘to reverence the gods’ is a law which has authority among all men. So Cicero also affirms both in his first book On the Nature of the Gods and in his second book On Invention. Dio of Prusa in his twelfth Oration calls it’ a belief held by the whole human race in common, alike by the Greeks and by the barbarians, necessary and implanted by nature in every reasoning being.’ A little further on he adds: ‘A belief exceedingly strong and perpetual, beginning and remaining from all time and among all peoples.’ Xenophon in the Symposium says that both Greeks and barbarians believe this, that both the present and the future are known to the gods.
4. I think, therefore, that those who first begin to abolish these ideas may be restrained in the name of human society, to which they do violence without a defensible reason; just as they are regularly restrained in well-organized states, as happened, we read, to Diagoras of Melos and to the Epicureans,’ who were banished from cities that maintained good morals. Himerius the Sophist in the suit against Epicurus said: ‘Do you then demand punishment for a belief? No, but for impiety. For it is allowable indeed to preach one’s beliefs, but not to assail piety.’
XLVII. But we may not punish others in like manner, as is shown by an argument from the Hebraic law.
1. Other ideas are not equally evident, as, for example, that there are not more gods than one; that none of the things which we see is God, neither the earth, nor the sky, nor the sun, nor the air; that the earth is not from all eternity nor even its matter, but that they were made by God. Consequently we see that the knowledge of these things has disappeared among many peoples through lapse of time, and is as it were extinct; and the more easily so because the laws gave less attention to these ideas, seeing that some religion at any rate could exist without them.
2. The law of God itself was given to that people which the Prophets, and also prodigies, in part seen and in part brought to them by the report of indubitable authority, had imbued with a knowledge of these things neither obscure nor uncertain; and although this law most strongly censures the worship of false gods, nevertheless it does not punish with death all who are convicted of guilt in this matter, but merely those whose cases present a peculiar circumstance. Such is he who has first led others astray, Deuteronomy 13:16; or the city which begins to worship gods previously unknown, Deuteronomy 12:23; or he who worships the stars so that he abandons the whole law and therefore the worship of the true God, Deuteronomy 16:2, which Paul calls ‘to serve the creature rather than the Creator,’ latreuein th ktisei para ton ktisanta; for the Greek word rara here and elsewhere often has an exclusive force. Even among the descendants of Esau this was at one time liable to punishment, as we may see in Job 31:26, 27. Such also is he who sacrificed his children to Moloch, that is to Saturn (Leviticus 20:2).
3. Moreover, God did not judge that the Canaanites and the neighboring peoples which had formerly fallen into base superstitions should be immediately punished, but only when they had increased this iniquity by heinous crimes (Genesis 25:26). So also among other peoples he excused the times of ignorance about the worship of false deities Acts 17:38). Beyond doubt it was rightly said by Philo that to each one his religion seems the best, since this is most often judged not by reason but by affection. Not very dissimilar is the saying of Cicero, that no one approves any philosophic system except that which he himself follows. He adds that most men are held in bondage before they are able to judge what is the best.
4. Just as those are worthy to be excused, and certainly not to be punished by men, who, not having received any law revealed by God, worship the powers of the stars or of other natural objects, or spirits, either in images or in animals or in other things, or even worship the souls of those who have been pre-eminent for their virtue and their benefactions to the human race, or certain intelligences without bodily form, especially if they themselves have not invented such cults, nor deserted for them the worship of the supreme God,’ so we must class with the impious rather than with the erring those who establish with divine honors the worship of evil spirits, whom they know to be such, or of personified vices, or of men whose lives were filled with crimes.
5. To be classed as impious also are those who worship gods with the shedding of innocent blood. For compelling the Carthaginians to abstain from this practice both Darius,’ king of the Persians, and Gelon, tyrant of Syracuse, have won renown. Plutarch also records that the Romans once intended to punish some barbarians, who sacrificed human victims to their gods, but did no harm to them when they defended themselves on the ground of the antiquity of this custom; and only forbade them to do the like in future.
XLVIII. Wars cannot justly be waged against those who are unwilling to accept the Christian religion.
1. What shall we say of those wars that are waged against certain peoples for the reason that they have refused to embrace the Christian religion when proffered to them? I shall not discuss here whether the religion proffered was such as it ought to be, or whether it was proffered in the manner in which it ought. Let us grant that it was; then we say that two things must be taken into account.
The first is that the truth of the Christian religion, in so far as it makes a considerable addition to natural and primitive religion, cannot be proven by purely natural arguments, but rests upon, the history both of the resurrection of Christ and, of the miracles performed by Him and by His Apostles. This is a ‘question of fact, proven long ago by irrefutable testimonies, and of fact already very ancient. Whence it results that this doctrine cannot be deeply received in the mind of those who hear it now for the first time, unless God secretly lends His aid. This aid, when given to any persons, is not given as a reward of any work; so that, if it is denied or granted less generously to any, this occurs for reasons that are not unjust indeed but are frequently unknown to us, and hence not punishable by the judgement of man. Here applies the canon of the Council of Toledo: ‘The holy synod ordains that no one should be constrained to believe by force. For God takes pity upon whom he wishes, and hardens whom he wishes.’ For it is the usage of the Sacred Writings to assign the divine will as a cause for those things whose causes escape our notice.
2. The second point to be considered is this, that Christ as the author of the new law desired that absolutely no one should be induced to receive His law by punishments in this life, or by fear thereof (Romans 8:25; Hebrews 2:25; John 6:67; Luke 9:54; Matthew 13:24). In this sense the saying of Tertullian is most true: ‘The new law does not avenge itself with the avenging sword.’ In the ancient book called the Constitutions of Clement, it is said of Christ: ‘He has set free man’s power of judgement, not sentencing him to death that is temporal, but calling him to account for this in another existence.’ Said Athanasius: ‘The Lord, not applying compulsion, but leaving to the will its freedom, to said indeed all publicly, “If any one wishes to come after me”; to the Apostles however, “Do ye wish to depart also?”‘ Chrysostom, commenting on this same passage of John, says: ‘He asks, “Do ye wish to depart also,” which is the saying of one who has removed all constraint and obligation.’
3. This view is not inconsistent with the fact that in the parable of the wedding it is ordered that some be compelled to come in, Luke 14:23. For just as in the parable itself the word ‘compel’ indicates the perseverance of the summoner, so it does in the application also, and in this sense a word of like meaning is employed in Luke 24:29, as well as in Matthew 14:22; Mark 6:45; and Galatians 2:24. Procopius, in a passage of his Secret History, informs us that the plan of Justinian,’ which led to the conversion of the Samaritans to Christianity by force and threats, was criticized by men of wisdom. He recounts also the disadvantages which ensued from this course, as you may read in his work.
XLIX. Wars are justly waged against those who treat Christians with cruelty for the sake of their religion alone.
Those who subject them that teach or profess Christianity to punishment for this cause certainly act against the dictates of reason itself. For there is nothing in the Christian teaching (here I am dealing with this by itself, and not with any impurities mingled therewith) which is injurious to human society, or rather, nothing which is not beneficial to it. The facts speak for themselves, and those not of the faith are obliged to recognize them. Pliny says that the Christians were bound by a mutual oath not to commit theft or robbery, and not to break faith. Ammianus says that this religion teaches nothing but what is mild and just. And it was a common saying, ‘Gaius Sejus is a good man, excepting that he is a Christian.’
Nor can we accept as an excuse for persecution that all new things are to be distrusted, especially gatherings of men. For we ought not to fear doctrines however new, provided that they lead to all honorable things and to an exhibition of obedience to those in authority; nor should we mistrust meetings of good men, and of those who do not seek concealment unless they are forced to. Here I may fitly apply what Philo records that Augustus said of the meetings of the Jews, that they were not drunken revels or gatherings to disturb the peace, but schools of virtue.
a. Those who show cruelty to such persons are themselves in the condition where they may be punished with justice, as Thomas Aquinas also thinks. And for this reason Constantine waged war on Licinius, and other emperors on the Persians; although these wars were directed rather to the defense of the innocent, which we shall discuss below, than to the exaction of punishment.
L. Wars may not be justly waged against those who err in the interpretation of the Divine law; as is proven by authorities and examples.
1. Likewise those who oppress with punishment persons that accept the law of Christ as true, but who are in doubt or error on some points which are either outside the law or appear to have an ambiguous statement in the law and are variously explained by the early Christians, act most wickedly. This is proven both by our previous discussion and by the ancient conduct of the Jews. For although they had a law which was supported by the punishments of this life, they never subjected to punishment the Sadducees, who rejected the doctrine of the Resurrection; a doctrine most true indeed, but in that law revealed only obscurely and in involved phraseology and metaphors.
2. What now shall we say if the error be more serious, and one which may be easily refuted before impartial judges by sacred authority, or by the agreement of ancient writers? Here we must take into account also the great power of habitual opinion, and the degree to which freedom of judgement is hampered by zeal for one’s own sect; an evil, as Galen says, more incurable than any leprosy. On this point Origen fitly says: ‘It is easier for a man to change his habits in other things, even if he should be most strongly attached to them, than in matters of doctrine.’ Remember also that the degree of guilt in this matter depends upon the method of enlightenment and other mental conditions, which it is not given to men fully to know.
3. In the view of Augustine a heretic is one who either creates or follows new and false opinions for the sake of some temporal advantage and especially for his own glory and pre-eminence. Let us listen to Salvianus on the Arians:
They are heretics, but not knowingly; in short they are heretics in our eyes, but not in their own; for they consider themselves so thoroughly catholic, that they insult us ourselves with the name of a base heresy. What therefore they are to us, this we are to them. We are confident that they do wrong to the Divine generation, because they say that the Son is less than the Father. They think that we do wrong to the Father, because we believe that Father and Son are equal. The truth is on our side, but they claim it is on theirs. The honor of God is with us, but they think that what they believe in is the honor of the Divinity. They are undutiful, but to them this is the supreme duty of religion. They are impious, but they think that this is true piety.
They err therefore, but they err with good intent, not through hatred but through love of God, believing that they honor and love the Lord. Although they have not the true faith, yet they believe that this is the perfect love of God; and how they are to be punished for this error of false belief on the Day of judgement no one can know but the Judge.’ Therefore in the meantime, in my opinion, God shows patience towards them because He sees that even if they do not believe aright they err through a devotion to a pious belief.
4. Regarding the Manicheans, let us listen to him who for a long time was involved in their dull follies, Augustine:
Those rage against you, who know not with what labor the truth is found, and with what difficulty errors are guarded against. Those rage against you, who know not how rare and difficult a thing it is to conquer by the calmness of a pious mind the vain imaginings of the flesh. Those rage against you, who know not with what difficulty the eye of the inner man is healed, so that he may be able to gaze upon his own: son. Those rage against you, who know not what groans and sighs it costs to be able to know God in the smallest degree. Finally, those rage against you, who have been deceived by no such error as they see deceives you. I But I cannot rage against you at all, you whom now I should bear with just as with myself at that time, and in dealing with whom I should manifest such patience as those nearest me showed to me when, mad and blind, I went astray in your doctrine.
5. Athanasius, in his Letter to the Monks, bitterly assails the Arian heresy because the Arians first used the power of the courts against their adversaries, and strove to draw to themselves by violence, scourging, and imprisonment those whom they could not persuade by argument. ‘And in this way,’ he says, ‘they reveal themselves as being neither pious nor worshiper of God,’ referring, unless I am mistaken, to what we read in Galatians 4:29.
Hilarius, in his address to Constantius, expresses similar views. Long ago in Gaul the judgement of the Church condemned the bishops who had seen to it that the Priscillians should be punished with the sword; and in the East the Synod, which had sanctioned the burning of Bogomil, was condemned. Plato wisely said that the punishment of the erring is: to be taught.’
LI. But war may justly be waged against those who show impiety toward the gods they believe in.
1. More justly are those punished who are irreverent and irreligious toward the gods in whom they believe. This cause in fact among others was alleged for the Peloponnesian War between the Athenians and the Lacedaemonians, and by Philip of Macedon against the Phocians, concerning whose sacrilege Justin said: ‘This had to be expiated by the forces of the whole world.’ Jerome wrote: ‘As long as the vessels (of the Jews) were in the temple of the idol of Babylon,,God was not angry (for they seemed to have dedicated the property of God according to a base superstition indeed, but yet to divine worship), but after they desecrated divine things for the use of men punishment followed immediately upon the sacrilege.’
Beyond doubt Augustine thought that the Empire of the Romans was increased by God because they had at heart a religion, although a false one; and, as Lactantius says, they sought after the supreme duty of man, in intent if not in fact.
2. We have said also above that, whatever the divinities which are so considered may be, perjury against them is avenged by the true: Divinity. Says Seneca: ‘He is punished because he acted as towards ‘God; his belief subjects him to the punishment.’ Thus I understand also that other saying of Seneca: ‘The punishment for the desecration of religion varies in different places; but everywhere there is some punishment.’ In fact Plato appoints the death penalty for those who violate religion.