The Law of War and Peace (1625)
by Hugo Grotius
On The Sharing of Punishments
I. How punishment may pass to those who have shared in the crime.
1. WHENEVER question arises in regard to the sharing of punishment, the question concerns either those who are accessories in the wrong,’ or other persons.
Those who are accessories in the wrong are punished not so much for another’s as for their own misdeed. Who these are may be seen from our previous discussion of damage unjustly inflicted. In fact one comes to participation in a wrong in almost the same way as to participation in the infliction of injury. Yet where a liability for damages arises there is not always a wrong, but only when a more notable evidence of evil intent is at hand; for any sort of fault may frequently be sufficient to give rise to a liability for damages inflicted.
2. Therefore, those who order a wicked act, or who grant to it the necessary consent,’ or who aid it, or who furnish asylum, or those who in any other way share in the crime itself; those who give advice,’ who praise, or approve; those who do not forbid such an act although bound by law properly so called to forbid it,’ or who do not bring aid to the injured although bound to do so by the same law; those who do not dissuade when they ought to dissuade; those who conceal the fact which they are bound by some law to make known all these may be punished, if there is in them evil intent sufficient to deserve punishment, according to the discussion which immediately precedes.
II. A community, or its rulers, may be held responsible for the crime of a subject if they know of it and do not prevent it when they could and should prevent it.
1. The matter will become clearer from illustrations. A civil community, just as any other community, is not bound by the acts of individuals, apart from some act or neglect of its own. For Augustine well says: ‘The particular sin committed by the individual in a state is one thing, and differs from a common sin, which is done with one mind and one will, when the multitude has been united for some purpose.’ Hence we find in the formula for treaties the clause, ‘If he has violated this by public agreement.”
According to Livy, the Locrians showed the Roman Senate that the blame for their defection did not rest on the public will. The same author relates that Zeno, who interceded for the Magnesians with tears, besought Titus Quintius and the delegates who accompanied him ‘not to blame the state for the madness of one man; each man’s folly should be a peril to himself.’ And the Rhodians, in the presence of the Senate, separated the public cause from the cause of individuals, saying: ‘There is no state which does not have wicked citizens sometimes, and an ignorant populace all the time.’ So the father is not bound by the wrong-doing of his children, nor the master by that of his slave, nor any others of superior station [by crimes of inferiors], unless they themselves make manifest something blame-worthy in themselves.
2. Now of the ways in which those who have control over others come to participate in a crime, there are two which are especially common, and which require careful consideration, toleration, and refuge.
With respect to toleration we must accept the principle that he who knows of a crime, and is able and bound to prevent it but fails to do so, himself commits a crime. Cicero, in his speech Against Piso, declares: ‘There is not much difference, especially in the case of a consul, whether he himself troubles the state by dangerous laws or wicked harangues, or permits others to do so.’ Brutus wrote to Cicero: ‘Will you then, you will say, hold me responsible for another’s fault? Certainly for another’s, if it could have been foreseen and prevented.’ Agapetus, commenting on Justinian, says: ‘Not to restrain wrong-doers is the same as the committing of wrong.’ ‘Whoever suffers a sinner to sin,’ says Arnobius, ‘lends strength to his boldness.’ Says Salvianus: ‘He who has it in his power to prevent an action orders its accomplishment if he does not check it.’ With truth Augustine adds: ‘Whoever fails to oppose an act, when he can, gives his consent to it.’
3. Thus he who suffers a slave to be prostituted, when he could save her from such abuse, is held by the Roman laws to have prostituted her. If a slave has killed a man with the knowledge of his master, the latter is liable for full damages, for it is as if he himself had done the killing. The Fabian Law punished the master whose slave with his knowledge had enticed away a slave belonging to another.
4. But, as we have said, to participate in a crime a person must not only have knowledge of it but also have the opportunity to prevent it. This is what the laws mean when they say that knowledge, when its punishment is ordained, is taken in the sense of toleration,’ so that he may be held responsible who was able to prevent a crime but did not do so; and that the knowledge to be considered here is that associated with the will, that is, knowledge is to be taken in connection with intent.
Consequently, the master is not to be held responsible in case the slave has formally claimed his freedom, or if he has treated his master with contempt; for surely he is blameless who knows of an intended crime, but is unable to prevent it. Thus parents are responsible for the misdeeds of their children, but only the misdeeds of those who are still under their parental authority. On the other hand, even if parents have children under their authority and otherwise could have restrained them, they will not be held responsible unless they also had knowledge. For that one person may be held responsible for the act of another, these two elements, knowledge and the failure to prevent, should be present in like degree.
All that has been said of those in authority is with equal justice to be applied to those under authority; for these obligations spring from natural equity.
5. To the line of Hesiod
- Full oft the state pays penalty
For the wickedness of one
Proclus adds the excellent comment: ‘Since, when it could, it did not prevent the evil conduct of that one man.’ So in the army of the Greeks, when Agamemnon himself and other chiefs acted in accordance with a common plan, not undeservedly
- For all the madness of their kings
Do the Achaeans suffer;
it was, in fact, in their power to compel Agamemnon to restore to the priest his daughter.
Likewise afterwards their fleet is said to have been burned
- For the guilt and frenzy of Ajax alone,
The son of Oileus.
Of this deed Ovid in the Metamorphoses, Book XIV, says:
- By the rape of the maid
He brought on all the punishment
Which he alone deserved,
because the others had not hindered the seizing of the maiden priestess.
In Livy we find the following:
The relatives of King Tatius maltreated the envoys of the Laurentians, and when the Laurentians sought redress under the law of nations partiality for his relations and their entreaties had the greater influence with him. In consequence he brought upon himself the punishment that was theirs.
Here properly applies what Salvianus says about kings: ‘A power great and most influential, since it can prevent the greatest crime, approves, as it were, the doing of a thing if, having knowledge thereof, it suffers the thing to be done.’
In Thucydides the principle is stated: ‘He who is able to prevent [a crime and does not] in very truth commits it.’ Thus, according to Livy, the Veientes and the Latins excused themselves before the Romans on the ground that it was without their knowledge that their subjects had aided the enemies of the Romans. But on the other hand, the plea of Teuta, queen of the Illyrians, was not accepted when she alleged that piracy was not practiced by herself but by her subjects, for the reason that she had not restrained them. In ancient times the people of Scyros were condemned by the Delphic Amphictyony because they had permitted some of their number to practice piracy.
6. Moreover we may presume that acts which are conspicuous, or frequent, are easily known, for’ none can be ignorant of what is done by many,’ as Dio of Prusa says in his Rhodian speech. Polybius severely censures the Aetolians because, although they did not wish to appear as enemies of King Philip, they secretly permitted their citizens to commit acts of hostility against him, and rewarded with offices the leaders in such enterprises.
III. Likewise a community, or its rulers, may be held responsible for refuge afforded to those who have done wrong elsewhere.
1. Let us now come to the second question, which concerns the affording a refuge against punishment. As we have said above, any one who cannot be charged with a like crime has a natural right to exact punishment. But, since the organization of states, it is agreed that the crimes of individuals, in so far as they properly concern the community to which they belong, should be left to the states themselves and their rulers, to be punished or condoned at their discretion.
2. But so comprehensive a right has not been granted to states and their rulers in the case of crimes which in some way affect human society, and which it is the right of other states and their rulers to, follow up, just as in each state it is possible for any citizen to initiate a prosecution for certain offences. Much less do states and their rulers possess this full authority in the case of crimes by which another state or its ruler is in a special sense injured, and on account of which that ruler or state, for the sake of dignity or security, has the right to exact punishment, in accordance with our previous conclusions. Therefore the state in which the guilty person dwells, or its ruler, ought not to interfere with this right.
IV. Such responsibility rests upon a community or its rulers unless they either punish or surrender the guilty parties, as is shown by examples.
1. Since as a matter of fact states are not accustomed to permit other states to cross their borders with an armed force for the purpose of exacting punishment, and since such a course is inexpedient, it follows that the state in which he who has been found guilty dwells ought to do one of two things. When appealed to it should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal. This latter course is rendition, a procedure most frequently mentioned in historical narratives.’
2. For example, the other Israelites demanded of the Benjamites that they give up certain guilty persons (Judges 20). The Philistines asked the Jews to give up Samson to them, as if he were a criminal (Judges 25). So the Lacedaemonians made war on the Messenians because the latter did not surrender a man who had slain Lacedaemonians, and at another time for the failure to give up those who had assaulted maidens sent on a sacred mission.
Cato desired that Caesar be handed over to the Germans for having attacked them unjustly. So the Gauls demanded that the Fabii be given up to them, because they had fought against them. The Romans required the Hernici to surrender to them those who had ravaged their land, and the Carthaginians to give up Hamilcar, not the famous general, but another one of that name, who was urging the Gauls to hostility; and afterward they demanded Hannibal.’ According to Sallust, the Romans demanded the surrender of Jugurtha by Bocchus with these words: ‘That you may at one and the same time relieve us from the bitter necessity of punishing alike you who are making a mistake and him who is a consummate villain.’
The Romans themselves gave up the men who had attacked the ambassadors of the Carthaginians, and also of the Apolloniates. The Achaeans required the Lacedaemonians to surrender those who had besieged the village of Las, adding that, unless these should be given up, they would consider the league violated. So the Athenians proclaimed by a herald that if any one fomented a conspiracy against Philip, and fled to Athens, ‘he would be liable to surrender.’ The Boeotians required from the Hippotians the surrender of those who had slain Phocus.
3. All these examples nevertheless must be interpreted in the sense that a people or king is not absolutely bound to surrender a culprit, but, as we have said, either to surrender or to punish him. Thus we read that the Eleans made war upon the Lacedaemonians because the latter did not punish those who had wronged them; that is, the Lacedaemonians neither punished nor surrendered the guilty. There is in fact an alternative in the liability.
4. Sometimes the choice is given to those who demand the guilty,’ in order that they may receive more ample satisfaction. According to Livy the people of Caere informed the Romans that ‘The men of Tarquinii, passing through their territory in hostile array, although they had sought nothing but the right to march through, had drawn along with them some of the rural population, who had shared in the ravages with which the Caeretans were charged; that they were ready to surrender these, if the Romans so desired, or, if the Romans desired their punishment, to inflict the penalty.’
5. In the second treaty between the Carthaginians and the Romans, which is found in Polybius, there is a passage which generally is badly punctuated and interpreted: ‘But if this is not done (what ‘this’ is, remains uncertain, for what precedes is mutilated), let each privately prosecute his claim; but if any one has done this (unless justice is done him) let the state be held responsible for the crime.’ Aeschines, in his reply to the accusation of Demosthenes, Concerning the Badly Conducted Embassy, records that when he was negotiating with Philip of Macedon about peace for the Greeks he said, among other things, that it was not just that the states should atone for the wrongs that had been done, but that those who had committed the wrongs should pay the penalty, and that no harm should be done to the states which made such persons appear for trial. Quintilian, in his Declamations, cclv, declared: ‘I think that those who receive deserters are almost as bad as the deserters themselves.
6. In his address to the men of Nicomedia, Dio Chrysostom enumerates among the evils that arise from differences between states the fact that ‘It is possible for those who have done wrong to one state to flee for refuge to another.’
7. Here the question arises whether those who have been surrendered by their own state, and not received by others, continue to be citizens. Publius Mucius Scaevola thought that they did not remain citizens, because the people seemed to banish from their state one whom they had surrendered, just as they would do if they forbade him water and fire.
The contrary opinion is upheld by Brutus, and after him by Cicero. And this is the more correct view. The reason is not, however, that adduced by Cicero, who holds that, as with giving, so with surrendering, the act cannot be understood without an acceptance. For the act of giving cannot be completed unless by the agreement of two persons. But the surrendering with which we here have to do is nothing more than the entrusting of a citizen to the power of another state, for it to decide about him as it may wish. This entrusting neither confers nor takes away any right; it merely removes an impediment to the exaction of punishment. If therefore the other state does not make use of the right that is granted to it, the condition of him who has been surrendered will be such that he may either be punished by his own people (as happened to Clodius, who was given up to the Corsicans and not received by them) or not punished by them, since there are many crimes which may be acted upon in either way.
Further, the right of citizenship, just as other rights and properties, is not lost on account of a mere fact but through some decree or judicial sentence, unless some law requires the fact to be considered as equivalent to a judicial decision; and that cannot be said in this case. Likewise also goods, if they have been given but not received, will remain the property of their former owner. If, however, the surrender has been accepted, and afterward, by some chance, he who had been surrendered is restored, he will not be a citizen unless by a new grant. In this sense the opinion of Modestinus on the status of a person who has been surrendered is correct.
8. What we have said with regard to the surrender or punishment of guilty parties applies not merely to those who have always been subjects of the state in which they are at the time found, but also to those who after having committed a crime have fled to another state for refuge.
V. The rights of suppliants belong to the unfortunate, and not to the guilty, with exceptions.
1. The view just stated is not inconsistent with the much discussed rights of suppliants and cases of asylum. These are in fact for the benefit of those who suffer from undeserved enmity, not those who have done something that is injurious to human society or to other men. The Spartan Gylippus, in Diodorus Siculus dealing with the right of suppliants, speaks thus: ‘Those who first established such rights desired that the unfortunate indeed should look for mercy, but that those who had done wrong with evil intent should look for punishment.’ Later: ‘Let these not blame their ill-fortune, or give themselves the name of suppliants, if they have fallen upon these ills through evil purpose or in consequence of an unjust desire for what belongs to another. For the name of suppliant is rightly due to those men whose mind is innocent, but with whom fortune is angry.’ Those whose life is full of wicked acts have no way left through which they may find pity or asylum.’
Menander made an excellent distinction between these two things – misfortune and wrong.
- A mishap and a wrong have this distinction:
Chance brings the one, the other comes from choice.
With this agrees the saying of Demosthenes: ‘It is right to pity, not unjust men, but those who are undeservedly unfortunate,’ which in his second book On Invention Cicero translates thus: ‘We ought to pity those who suffer through ill-fortune, not through wickedness.’ There is also the statement of Antiphanes [Antiphon]: ‘What happens not of one’s own will is the work of fortune; what happens in accordance with will is an act of judgement.’ Lysias, too, says ‘What he has willed comes to no one as ill-fortune.’
Accordingly in that most wise law places of asylum were available for those from whose hands a chance missile had slain a man, and a refuge was provided also for slaves; but those who had deliberately slain an innocent man, or who had disturbed the peace of the state, were not protected even by the most holy altar of God Himself. In interpreting this law Philo says: ‘The temple does not offer an asylum to the unholy.’ Such, furthermore, was the view of the ancient Greeks. It is related that the Chalcidians refused to surrender Nauplius to the Achaeans,’ and the reason given is that he had adequately cleared himself from the charges brought by the Achaeans.
2. At Athens there was an altar of Mercy, mentioned by Cicero, Pausanias, and Servius, by Theophilus, too, in his Institutes; it is described at length by Statius in the Thebaid, Book X11. But who were entitled to its protection? Listen to what the poet says:
- And the unfortunate have hallowed it.
Further on he says that there came to it
- Those who were vanquished in war, exiles from home and from country,
And rulers bereft of realms.
Aristides declares that it was a glory peculiar to the Athenians ‘to receive and console the ill-fated from all lands ‘; in another passage, ‘For all the unfortunate among every people there is a common good fortune, the kindness of the city of Athens, by which they are assured of safety.’ In Xenophon Patrocles of Phlius, speaking at Athens, said: ‘I was enamoured of this city, because I had heard that all who were wronged and were in fear, if they had fled thither, were assured of help.’ The same thought occurs in the letter of Demosthenes on behalf of the children of Lycurgus.
Hence Oedipus, fleeing for refuge at Colonus, in Sophocles’ tragedy of that name’ thus bears witness:
- Alas, ye sons of Cecrops, ills many have I borne;
But God my witness is, no ills I suffered
From deeds in malice done.
To this Theseus replies:
- A stranger, such as I see you are, Oedipus,
I never scrupled at all times to aid.
I know myself a mortal.
In like manner, Demophon, son of Theseus, when the descendants of Hercules had fled to Athens, speaks thus:
- Ever of old she chooseth, this our land,
To help the helpless ones in justice’ cause.
So hath she borne for friends unnumbered toils.
Now see I this new struggle looming nigh.
And in this way the Athenians did that for which Callisthenes especially praised them, saying that’ on behalf of the children of Hercules’ they took up arms against Eurystheus, who was at that time the oppressor of Greece.’
3. On the other hand, you find that this is said of an evil-doer in the same tragedy:
- Who conscious of his crimes, and trusting not in laws,
A suppliant, falls at altars of the gods,
I scruple not to drag before the court;
For always should he suffer ills who evil does.
The same poet in the Ion:
- Unmeet it is
With guilty hand to touch the gods; but just it was
That shrines become a refuge for the good
The orator Lycurgus tells of a certain Callistratus who had committed a capital offence, and who, when he had consulted an oracle, received the response that, if he went to Athens, ‘he would meet with justice.’Accordingly, he fled to the most sacred altar at Athens,’ relying upon its sanctity; but nevertheless he was put to death by that city, which was most scrupulous in the observance of it., religious duties, and thus the promise of the oracle was fulfilled. Tacitus censures the custom, which in his day was prevalent among the Greek cities, of protecting the crimes of men as one would the rites of the gods. He says also: ‘The emperors indeed are like the gods: but even the gods do not hear the prayers of suppliants unless; they are just.’
4. Such persons, then, are to be punished, or surrendered, o at least removed from the country. Thus, according to Herodotus, when the people of Cyme did not wish to surrender Pactys the Lydian and did not dare to keep him, they allowed him to depart to Mitylene. From King Philip of Macedon the Romans demanded Demetrius’ of Pharos, who had fled to Philip after he had been vanquished. Perseus, king of Macedon,’ in his defense before Marcius, dealing with those who were reported to have plotted against Eumenes, said: ‘As soon as I learned, upon information from you, that they were in Macedon, I had them sought out and ordered them to leave the kingdom, and closed my frontiers to them for all time.’ The Samothracians informed Evander, who had plotted against Eumenes, that he must free the temple from the profanation of his presence.
5. In the present and in recent generations, and in the majority of European countries, this right, which we have discussed, of demanding for punishment those who have fled beyond the frontier, has been exercised only with respect to crimes that affect the public weal or that manifest extraordinary wickedness. It has become customary mutually to ignore lesser crimes, unless some more definite agreement has been made by the terms of a treaty.’ We must, however, recognize this, that robbers and pirates who have become so strong that they have made themselves formidable may justly be received and defended, so far as their punishment is concerned, because it is to the advantage of mankind that they should be brought back from their wicked ways through confidence in their freedom from punishment, if such reform is in no other way possible; and any people or ruler may undertake to accomplish this.
VI. Nevertheless suppliants are to be protected pending the hearing of their case; under what law the hearing is to be conducted.
1. This, furthermore, must not be forgotten, that, during the time when the justice of their case is being investigated, suppliants are to be protected. Thus Demophon says to the ambassador of Eurystheus:
- If crime you prove against these guests, justice
You will obtain; by force you shall not drag them hence.
In another tragedy Theseus addresses Creon:
- Creon, thou hast dared a deed unworthy of thee
And of thy Thebes and of thy ancestors.
Entering a city that respects what holy is and pious,
And all things executes in law’s due form,
Forgetful of our habits, what pleases thee
Thou dost attempt, thinking thou canst carry all by force.
Dost thou believe the city so bereft of men,
So obedient to a yoke, and me of no account?
Amphion’s city did not teach thee this,
A state not wont to rear unfeeling men,
And it will not approve when it has heard that thou
Against rights of the gods and my rights trespassest,
Dragging from place of refuge wretched suppliants.
Had I set foot in the city of Labdacus,
Even though my cause were just beyond dispute,
On no man had I sought to lay my hand
Save by consent of him who ruled the land,
Mindful of what befits a stranger in a foreign town.
An undeserving land thou coverest
With shame and with disgrace-old of a truth
In years, but not in wisdom.
2. If the crime of which the suppliants are accused is not forbidden by the law of nature or of nations, the case must be judged according to the municipal law of their own country. This is well put in the Suppliants of Aeschylus, where the king of Argos thus’ addresses the daughters of Danaus coming from Egypt:
- If the sons of Aegyptus should lay hands upon thee
And say that by law of their state ’tis the right
Of the nearest of kin, who would dare to oppose them?
Wherefore thy task is to plead that by law of thy homeland
Right over thee they have none.
VII. How subjects share in the crimes of their rulers, and members of a community in those of the community; and how the punishment of a community differs from that of individuals.
1. We have seen how guilt passes to rulers from subjects, whether these are subjects of long standing, or recent. Conversely, guilt will pass from the highest authority to those subject to it, if those subject to it have consented to crime, or if they have done anything by order or advice of the highest authority which they could avoid doing without committing wrong. But it will be better to discuss this point later on, when we shall be investigating the duties of subjects.
A wrong may also be shared by both a community and individuals because, as Augustine says in a passage previously cited, ‘where there are communities, there are individuals also. Communities cannot exist save as made up of individuals; for individuals assembled in some place, or taken as a whole, form communities.’
2. Guilt, however, attaches to the individuals who have agreed to the crime, not to those who have been overmastered by the votes of others. For the punishments of individuals and of a community are different.. Just as death is at times the punishment for individuals, so ‘the death of a state is its dissolution,’ and such dissolution takes place when the civil body is dissolved; this question we have discussed elsewhere.
If now a state in this way ceases to exist, the right of enjoyment therein, as Modestinus rightly says, is terminated as though by death. As a punishment, individuals are reduced to slavery, as the Thebans by Alexander of Macedon, those being exempted from this fate who had opposed the decree for breaking off the alliance with him. Similarly, too, a state suffers political slavery in being reduced to a province. Individuals lose their property by confiscation. In like manner it is customary to take from a state also what belongs to it .as a whole, its fortifications, naval arsenals, ships of war, arms, elephants, public treasure, and public lands.
3. On the other hand, it is unjust for individuals to lose their private property because of a wrong done by the community without their consent, as Libanius rightly shows in his speech on the sedition at Antioch. He approves the act of Theodosius,’ who had punished the crime of the community by forbidding the use of the theatre, of the public baths, and of the name Metropolis.
VIII. How long the right of inflicting punishment upon a community continues.
1. At this point the important question arises, whether punishment may be exacted always for the crime of a community. It seems that such punishment may be exacted so long as the community exists, because the same body remains, although composed of changing elements, as we have shown elsewhere. But on the contrary it must ‘be remembered that in the case of a community certain things are said to belong to it primarily and necessarily, as a public treasury, laws, and the like; while certain things belong to it only through its individual members. Thus we say that a community is wise and brave which has a great number of wise and brave members.
Into this class of things falls whatever a community deserves, for primarily this concerns individuals, as having an intelligence which the community in and of itself lacks. When, therefore, those individuals are dead through whom the community derived its desert, the desert itself lapses also; and likewise the debt of punishment which we have said cannot exist without the desert. As Libanius says in the oration cited: ‘For it seems to me you should be content; with the thought that none of those who have done this wrong, survives.’
2. We must, then, approve the view of Arrian, who condemns Alexander’s punishment of the Persians,’ for the reason that those Persians who had wronged the Greeks had perished long before. On the slaughter of the Branchidae by the order of the same Alexander the judgement of Curtius is: ‘If this had been planned against the true authors of the treachery, it would seem to be a just vengeance,, not an act of cruelty. But as the case stands, the guilt of ancestors was atoned for by their descendants, who had not even seen Miletus, and consequently had not been able to betray it to Xerxes.’
In another place Arrian expresses a similar opinion regarding the burning of Persepolis in revenge for what the Persians had done at Athens.’ But,’ he says, ‘Alexander in doing this does not seem to me to have acted wisely, nor does this seem to have been in truth a punishment of those Persians who long ago had ceased to exist.’
3. No one can help laughing at the excuse of Agathocles, who replied to the complaints of the people of Ithaca regarding injuries inflicted upon them, that in former times the Sicilians had suffered greater harm at the hands of Ulysses. Plutarch, in his criticism of Herodotus, says that it is far from true that the Corinthians wished to avenge an injury received from the Samnians’ after the lapse of three generations.’ Nor can we accept the defense of this and similar actions which may be read in Plutarch’s work On the, Delayed Vengeance of the Deity; for the right of God is one thing, and the right of men is another, as will soon be shown more plainly.
One cannot argue that, if it is right for descendants to receive honors and rewards for the deserts of their ancestors, it is also right that they should be punished for their ancestors’ sins. The character of a benefit permits its being conferred upon any one at all without injury; that is not the case with a punishment.
IX. Whether punishment may be shared without sharing the crime.
We have spoken of the ways in which a participation in punishment arises from a participation in guilt. It remains for us to consider whether there may still be a participation in the punishment when there is none in the guilt. To understand this matter aright, and to avoid confusing, through similarity of name, things which in reality are different, there are certain points which must be kept in mind.
X. The distinction between that which is inflicted directly and’ that which comes as a consequence.
1. In the first place, there is a difference between a loss directly inflicted and one that comes as a consequence.
By a loss directly inflicted I mean when a person loses something to which he had a special right; by a loss that comes as a consequence, when one does not have what he would otherwise have had, since the condition has ceased without which he did not have the right. Ulpian gives an illustration: ‘If I have opened a well on my land, from which it results that streams that would flow through to your land are cut off,’ he declares that in this case damage has not been inflicted by a wrongful act on my part, since I have merely exercised my own right.
In another place Ulpian says that there is a great difference between suffering loss and being prevented from enjoying an advantage which one had hitherto made use of. Paul the jurist also says ‘It is absurd for us to be called possessors before we have acquired something.’
2. Consequently, when the property of their parents has been confiscated children experience some inconvenience indeed, but strictly speaking this is not a punishment, because the property that was to be theirs would not become theirs actually unless it had been preserved by their parents to the end of life. Alfenus has rightly pointed this out, saying that by the punishment of their father children lose that which would have come to them from him, but that those things remain intact which are due to them not from the father but from natural conditions or from some other source. With similar thought Cicero writes that the children of Themistocles suffered want, and he does not think it unfair that the children of Lepidus should suffer the same misfortune; this, he says, was in accordance with an ancient custom, recognized in all countries. However, the custom experienced considerable modification through later Roman laws.
Now, when the community is at fault through the crime of the majority, who, as we have said elsewhere, represents the personality of the community, and when, for this cause, it loses the things that we have mentioned – political liberty, fortifications, and other profitable things – the loss is felt also by the individuals who are innocent, but only in respect to such things as belonged to them not, directly but through the community.
XI. The distinction between what is done owing to the occasion of a crime and what is done owing to the cause of the crime.
1. Furthermore, we must bear in mind that harm is sometimes done to a person, or some good taken away from a person, because of a fault committed by another, yet not in such a way that that fault is the proximate cause of the act, if the right behind the act is considered. Thus he who has promised something because of another’s debt suffers loss, according to the ancient proverb,’ Go surety, and expect loss; but the immediate cause of the obligation is the promise itself. For as he who has gone surety for a purchaser is not, strictly speaking, bound by the purchase but by his promise, so he who gives’ security for a wrong-doer is bound not by the wrong but by his surety; Hence it comes about that the harm inflicted upon him who goes’ security is not measured by the other’s wrong, but by the power which he has of fulfilling his promise.
2. In consequence, it follows that, according to the view which we believe to be the more correct, no one may be put to death by reason of suretyship, because we hold that no one has such a right over his life as to be able to take it away from himself or to bind himself to have it taken away. Nevertheless, the ancient Romans and Greeks thought differently on this point, and so they believed that sureties were liable to a capital sentence, as we see from a line of Ausonius and from the well-known story of Damon and Pythias. Often, too, they put hostages to death, as we shall recall later on.’
What we have said regarding a man’s life must be understood to apply to his limbs also; for the right has not been given to a man to deprive himself of these except in order to save the body.
3. If the promise covers exile, or pecuniary loss, and the condition thereof is fulfilled by the other’s wrong, the guarantor will suffer the loss; yet this, if we speak with exactness, will not be a punishment upon him.
A similar case arises in connection with a right that one possesses in such a way that it is dependent upon the will of another. Such a right is one terminable at the pleasure of the grantor, where account is taken of ownership of the thing concerned; or the right of private possession, in relation to the right of eminent domain, which the state enjoys for the public good. If something held by such a right be taken from any one by reason of another’s wrong, there is in this not properly a punishment, but the execution of an antecedent right that was vested in the person who takes the thing away. Thus, since, strictly speaking, no wrong can be attributed to animals, when an animal is killed, as the law of Moses provides in case of sexual intercourse with a man, this is not in fact a punishment, but an exercise of man’s proprietary right over the animal.
XII. That, properly speaking, no one may be justly punished for another’s wrong, and why.
Having drawn these distinctions, we shall say that no one who is innocent of wrong may be punished for the wrong done by another.
The true reason for this is not the one advanced by Paul the jurist, that punishments are established for the correction of mankind; for it is clear that an example may be made apart from the person of the wrong-doer, but yet of a person whose punishment affects him, as we shall soon point out. But the true reason is that an obligation to punishment arises from desert; and desert is something personal, since it has its origin in the will, than which nothing is more peculiarly ours; hence the expression ‘in one’s own power.’
XIII. That children may not be punished for the sins of their parents.
1. ‘Neither the virtues nor the vices of parents,’ says Jerome, ‘are attributed to their children.’ Augustine declares that God Himself would be unjust if He should condemn an innocent man. Dio Chrysostom, after saying that by the sanction which the Athenians appended to the laws of Solon descendants of the guilty were doomed to punishment, adds the following words regarding the law of God ‘It does not, like the former, punish the children and the house of those who sin; but, under it, each one is responsible for his own ill-fortune.’
Here applies the common saying, ‘Guilt is personal.’ ‘We ordain,’ say the Christian Emperors,’ that punishment shall fall where the guilt is.’ Then, ‘Therefore, let those responsible for crimes be held for them; and let not the fear of punishment extend beyond those in whom an offence may be found.’
2. It is just that those should suffer the punishments who have committed the sins, Philo declares,’ censuring the custom of some peoples who punished with death the guiltless children of tyrants and traitors. This practice is condemned also by Dionysius of Halicarnassus, who shows that the excuse accepted for such action, that it is considered that the children will become like their parents, is wicked, since this is doubtful and since fear of something that is uncertain should not be enough to cause any one to be put to death. Some one dared to advise the Christian Emperor Arcadius that those who, it might be feared, would imitate their father’s crime, should like him be punished with death. Ammianus recounts that certain children, although still very young, were put to death ‘to prevent their growing up to follow the example of their parents.’
Fear, again, does not constitute a more just reason for taking vengeance, although the belief that it does gave rise to the Greek proverb:
- Mad is he who kills the father but the children spares.
Seneca says: ‘There is nothing more unjust than to make an heir subject to the enmity against his father.’ Pausanias, the Greek commander, inflicted no harm upon the children of Attagines, who was responsible for the desertion of the Thebans to the Medes, ‘saying that they in no way shared in the guilt of Medism.’ Marcus Aurelius Antoninus, in a letter to the Senate, wrote: ‘Wherefore you will grant pardon to the sons, to the son-in-law, and to the wife of Avidius Cassius (the one who had conspired against him). And, yet, why do I speak of pardon, since they have committed no wrong?’
XIV. Answer is made concerning the acts of God with regard to the children of the wicked.
1. It is true that in the law given to the Jews God threatens to avenge upon descendants the iniquity of the parents; but He Himself possesses the most complete right of ownership, both over our property and over our life, as it is His gift, which He can take away from any one when He pleases, without any reason and at any time. Consequently, if He carried off by a violent and untimely death the children of Achan, of Saul, of Jeroboam and of Ahab, He exercised His right of ownership over them,’ not of punishment, but thereby He punished their parents all the more heavily.
For if the parents survive, a contingency which the divine law has in view above all else (it is with this in view that the law does not extend these threats beyond great-grandchildren, Exodus, xxv, since it is possible for men to live long enough to behold these), they are certainly punished by the sight of such a loss, which is harder for them to bear than their own suffering, as Chrysostom, with whom Plutarch agrees, rightly says: ‘No other punishment causes greater suffering than the sight of our descendants suffering for our sake.’ But if the parents do not live long enough to see this, it is nevertheless a heavy punishment for them to be put to death while fearing it. ‘The obstinacy of mankind,’ says Tertullian,’ had compelled a resort to such remedies, in order that out of a regard for their posterity at any rate men might obey the divine law.’
2. At the same time the fact must be recognized that God does not make use of this more severe punishment except to punish crimes committed as a direct insult to Himself, such as false worship, perjury, and sacrilege. This was the view of the Greeks also; for the crimes which were believed to implicate posterity, and which they called ‘pollutions,’ are all of this nature. Plutarch has discoursed ably on this subject in his book On the Delayed Vengeance of the Deity. In Aelian’ is found the following Delphic oracle
- But divine justice pursues the authors of crime;
Avoid it they cannot, not even if children of Zeus.
The life of such men, and their offspring, it threatens,
While woe follows woe in their house.
In this case it was a question of sacrilege,’ and the view thus expressed is supported by the story of the gold of Toulouse, recounted in Strabo and Gellius. With regard to perjury, we have cited similar opinions already. However, even if God has threatened to inflict such punishment, He does not always make use of this right, especially if some remarkable virtue appears in the children of the guilty, as we may see from Ezekiel 28, and as Plutarch proves by certain examples in the book just mentioned.
3. Although the punishments that await the impious after this life are set forth in the New Covenant more openly than they were in the older time, yet in this Covenant there is no threat extending beyond the persons of the sinners. This is particularly indicated also in the prophecy of Ezekiel referred to, although, after the manner of prophets, less openly.
Nevertheless, it is not permissible for men to imitate the action of God in this matter. They have not the same justification, because, as we have said before, God has a right over men’s lives without regard to their guilt, but men only in consequence of deep guilt, and that too when the guilt is distinctly individual.
4. Wherefore that same divine law forbids not only that parents be made subject to the penalty of death for the deeds of their children, but also that children should be put to death for the deeds of their parents.
This ordinance, we read, was observed by God-fearing kings,’ even in cases of treason. It is warmly praised by Josephus and Philo; a similar Egyptian law is praised by Isocrates, and a Roman enactment by Dionysius of Halicarnassus. There is a saying of Plato that ‘The disgrace and the punishments of the father follow none of his children.’ This was expressed in Latin by Callistratus the jurist as follows ‘A father’s crime or punishment can put no blemish upon the son’; he added the reason,’ for each is subject to the fate resulting from his deeds, and no one can be appointed to succeed to the crime of another.’
‘Would any state,’ says Cicero, ‘suffer one to propose a law of this kind, that a son or grandson should be condemned if his father or grandfather should have done wrong?’ Hence it comes about that to punish with death a pregnant woman was considered criminal by the laws of the Egyptians, Greeks, and Romans.
XV. Much the less are other relatives to be punished.
If, then, the human laws which prescribe the death of children for the crimes of their parents are unjust, more unjust still is the law of the Persians and Macedonians which decreed the death of their relatives also,’ that those who had committed wrong against the king might meet a more grievous end, as Curtius says. Ammianus Marcellinus wrote that all other laws were surpassed in cruelty by this law.
XVI. Nevertheless to children and relatives of the guilty something may be denied which they otherwise could have had; instances thereof.
At this point it must be noted that if the children of traitors have possession of, or may look forward to possession of, something the direct right over which belongs not to them but to the people or the king, this may be taken away from them by a kind of right of ownership; the exercise of such right, however, at the same time may turn into a punishment of those who have done the wrong. As an illustration we may recall that the children of Antiphanes [Antiphon], on the ground that he was a traitor, ‘were declared disqualified for honors,’ as Plutarch recounts; that is, they were excluded from public offices,’ as were the children of those proscribed by Sulla in Rome. Likewise in the law of Arcadius already mentioned there is this reasonable restraint upon the children,’ that they may attain to no civil and no military offices.’
With regard to slavery, in what manner and to what degree it may without injustice be transmitted to children, we have explained elsewhere.
XVII. Subjects may not properly be punished for a wrong committed by their king.
1. What we have said with regard to the inflicting of evil upon children because of the wrong-doings of their parents may be applied also in the case of a people that is truly subject (for a people that is not subject may be punished because of its own guilt, that is for its negligence, as we have said), if the question is raised whether such a people may suffer for the crimes of its king or its rulers. At present we are not inquiring whether the consent of the people itself is, involved, or whether there has been any other act on the part of the people deserving of punishment; we are concerned merely with the relation which arises from the nature of the body whose head is the,, king, and whose members are the other citizens.
2. It is true that because of David’s sin God consumed the people: with a pestilence, although they were innocent, as David thought, but God had the supreme right over their lives. In reality, it was not the people but David who was thus punished; for, as a Christian writer says, ‘the most grievous punishment of kings who have sinned is the punishment inflicted upon their people.’ As the same writer remarks, this is as if some one who had sinned with his hand should be scourged on his back. In a similar discussion Plutarch says that this must be regarded as the cauterizing of a thumb by a physician in order to heal the thigh. Why it is not permissible for men to inflict such punishments we have already shown.
XVIII. Individuals, who have not consented thereto, cannot be punished for the wrong-doing of the community.
The same principle must be applied with respect to the infliction., of harm upon individuals who have not given their consent, in the”” case of a wrong done by the community, that is so far as their interest as individuals is concerned.
XIX. Heirs are not subject to punishment as such; reasons therefor.
The heir is bound to discharge other obligations, but not to undergo punishment,’ as Paul the jurist wrote: ‘If anyone has been condemned to punishment, it is agreed by the interpreters of the law that this does not pass to his heirs.’ The true reason is that the heir represents the person of the deceased, not in what he deserved, which is purely personal, but in his property,’ to which, according to a custom established in connection with ownership, attach the debts owed to any one in consequence of unequal distribution of things.
Dio of Prusa says in his address to the Rhodians: ‘They are responsible for all debts, those of their ancestors not less than their own, contracted with any persons from the founding of their race. For you will not say that the inheritance has been refused by them.’
XX. Nevertheless heirs may be subject to punishment if this has passed over into an obligation of another kind.
From what has been said, it follows that if, apart from what the deceased deserved, some new cause of liability has arisen, then that which was in the penalty may become an obligation of the heir, although not strictly as a penalty. Thus in one case, after a judicial sentence in another, after the settlement of a suit (these things give the force of a contract), a pecuniary penalty will become an obligation of the heir as well as those things which were introduced into the agreement. For now a new cause of liability has developed.